." 

• June 2000 

Comments and Responses' 

This section of the Responsiveness Summary contains summaries of all of the public 

comments that Ecology received on the proposal and Ecology's responses. The 

comments and responses are organized in the order that the relevant sections appear in 

the Dangerous Waste Regulations. Copies of the letters and the public hearing testimony 

are included as Appendix C. 

Preamble 

Comment 1: Ecology has improved in recent years at providing preamble explanation 

for the rule changes; nonetheless, more effort should go into developing and explaining 

the basis for the proposals, particularly where Ecology proposes departures from the 

federal rules. 

Response: Comment noted. 

Comment 2: The commenter appreciates the time Ecology took in publishing the 

preamble. The explanation of differences was appreciated. 

•
 

Response: Comment noted .
 

WAC 173-303-040 

Definitions 

Comment 3: The commenter appreciates that a reference to Chemical Testing Methods 

has been included in the definition of HOCs, and notes that it will help in understanding 

the regulations. 

Response: Comment noted, 

Comment 4: Ecology has proposed a definition of"Iamp" that is different than EPA's 

definition in 40 CFR 260. With a different definition and no explanation why Ecology 

chose a different definition, the regulated community would interpret this to mean 

Ecology believes their definition has the same meaning as EPA's. Differences in 

definitions can lead to unintended consequences when interpreting the definition on 

compliance inspections. The commenter requested that Ecology change their definition 

of "lamp" to be consistent with EPA's definition from 40 CFR 273.9 (64 FR 36489). The 

commenter also requested that Ecology specifically mention incandescent lamps under 

examples of Universal Waste lamps. 

Response: While Ecology worded the definition of a lamp somewhat differently than the 

federal rule, there are no critical differences between our definition and EPA's. Our 

definition is somewhat less wordy than the federal definition, but it still includes the 

types of lamps most commonly found in business, industry and public utilities. Also, the 

17
 
c definition does not exclude other types of dangerous waste lamps. Since incandescent 

. lamps are more common to household use than business use, they aren't specifically 

mentioned, but again, they are not excluded by definition from being managed as 

universal waste. EPA's definition found at 40 CPR 273.9 (64 PR 36489) also does not 

list incandescent lamps specifically. 

Comment 5: Change the last sentence of the definition of large quantity handler of 

universal waste to: This designation as a large quantity handler of universal waste is 

retained through the end of the calendar year in which 11,000 pounds or more total of 

universal waste and/or 2,200 pounds of lamps is accumulated. 

Response: Ecology agrees with the commenter that the addition of this phrase pertaining 

to the lamp accumulation limit in the definition will provide clarification. This language 

has been added to the definition. 

Comment 6: Add "fertilizer" after "Micronutrient", which will make it easier to 

understand that this is the definition for "Micronutrient Fertilizer". 

Response: The definition will be amended as suggested. The change will also make the 

definition identical to Chapter 15.54 RCW Fertilizers, Minerals, and Limes. 

Comment 7: In the sixth line of the definition change "micronutrients are" to 

"micronutrients include" so the Department of Ecology's definition will be the same as 

the one used by the Department of Agriculture. 

Response: The language will not be amended as suggested since it is already consistent 

with Chapter 15.54 RCW Fertilizers, Minerals, and Limes. This is the law that defines 

"Micronutrient" for the Department of Agriculture. 

Comment 8: There is a typographic error in the last sentence of the definition of 

"Processed scrap metal" that refers to shredded circuit boards being recycled. 

Response: The reference will be correctedto read WAC 173-303-071(3)(gg) in the final 

rule. 

Comment 9: Ecology uses the words "public" and "human" many places in the proposed 

and current regulations. The use of these two words in WAC 173-303 appears 

interchangeable. The word "people" is used in the proposed -280(6).. This is a third term 

adding confusion regarding the scope of WAC 173-303. Ecology should use a single 

term consistently, like "public" throughout the regulations. 

-,	 Responses The terms are used interchangeably in the regulations. Ecology deals with 

the health and safety of all "humans" in various settings, for example, in the workplace 

and in public and government settings in relation to dangerous waste management. The 

Dangerous Waste Regulations have evolved over many years making it difficultto now 

select and use only one of those terms. It would not be practical, and possibly 

18 
•
 

•
 

•
 

inappropriate to select only one of these terms because one term might not encompass the 

full range of effected parties. For example, the term "public" could be chosen and used 

as in the term "public health" (rather than "human health"). However, government 

agencies, government contractors, and any other employer might then try and make the 

argument that a certain dangerous waste rule would not apply to them or their staff 

because they would not be considered "public". The term "people" is defined in Section 

-040 and used appropriately in Section -280(6). 

WAC 173-303-070
 

Designation of Dangerous Waste
 

Comment 10: The modification in WAC 173-303-070(5) appears to be a change rather 

than a clarification as stated in the preamble explanation to the rule. The three additional 

designation circumstances are viewed as independent circumstances based on the same 

designation results from subsection 070(3). The added text in the middle of the 

paragraph implies otherwise and appears to be a change in how waste designations are 

performed in the regulations. 

Response: The language was modified so that this subsection now reads correctly.' The 

clarification was made to correct the way the provision read and does not change the 

meaning of the requirement as it was previously adopted. These are still the three 

situations where additional designation is required. It was pointed out to us followirig the 

previous rulemaking that the wording was inaccurate because it lumped all three 

situations together, that is, that all three situations would be the result of designation via 

the characteristics or lists. The previous language did not make it clear that designation 

by the criteria may be a precursor to the need for further designation in situations covered 

by "(c)". The language change reflects that further designation under "(c)" is necessary if 

the waste has been designated under the lists, characteristics, or criteria. This change 

does not affect the way wastes are designated under WAC 173-303-070(3) prior to 

getting to this requirement where wastes may need to be further designated. 

Comment 11: It is unclear to us what Ecology's current policy is on immediate on-site 

recycling when there is no intervening storage or accumulation. Now would be a good 

time to clarify or re-state your counting policy on implementation of Section 

070(7)(c)(iv). 

Response: Ecology has a regulation addressing counting rather than a policy. The 

following is the counting exclusion at WAC 173-303-070(7)(c)(iv): "When making 

quantity determinations...generators must include [count] all dangerous waste they. 

generate, except dangerous waste that: Is recycled, without prior storage or 

accumulation, only in an on-site process... " 

Ecology appreciates the opportunity to add clarity to some of the aspects of this counting 

regulation. Basically, if waste is stored or accumulated prior to recycling, the waste is 

counted. "Storage" means the holding of waste for a temporary period and begins as 

soon as waste is placed into a storage unit. Storage units include, but are not limited to, 

19
 
C tanks and containers, such as a can, pail, bucket, or drum. There is no size limit to a 

container nor is there a time limit for "temporary period" in the definition of storage. A 

"temporary period" could be a year, month, day, minute, etc. There are, however, 

generator exclusions from storage if certain "accumulation" provisions are complied with 

(See WAC 173-303-200). Like storage, the accumulation provisions are used to hold 

and manage dangerous waste and begin when waste is first placed in the accumulation 

tank or container. For example, if a bucket is used to collect waste dripping from a waste 

generation unit, accumulation of waste is occurring, which requires that the waste be 

counted. Although waste needs to be counted when stored or accumulated prior to being 

recycled, the advantage to the generator is the avoidance of a dangerous waste storage 

permit for the storage activity. 

WAC 173-303-071
 

Excluded Categories of Waste
 

Comment 12: Ecology did not update the provisions of WAC 173-303-071(3)(k)(i) and 

(ii) when the EPA issued the TSCA PCB disposal rule amendments of 1998. The PCB 

exclusion should be updated to be consistent with the TSCA PCB regulations. 

Response: Ecology is concerned with the 1998 TSCA amendments in reference to the 

disposal options allowed under those amendments. It appears that a disposal option 

under some of those amendments is for the allowance of certain wastes to be land 

disposed in a municipal solid waste landfill. With the existing language of the PCB 

exclusion in the Dangerous Waste Regulations, there is an assurance that dangerous 

waste being excluded "into the TSCA program" will be managed under the TSCA 

program and not end up in municipal landfills. This assurance will be lost if the PCB 

exclusion is updated as suggested. Ifit were updated as suggested, some dangerous 

waste being excluded from the Dangerous Waste Regulations could be disposed of under 

the TSCA program into municipal landfills. This would circumvent the original intent of 

Ecology's PCB exclusion. 

Comment 13: The commenter supports the proposed changes regarding reused spent 

wood preserving solutions at WAC 173-303-071(3)(w).-

Response: Comment noted. 

. WAC 173-303-100 

Dangerous Waste Criteria 

Comment 14: WAC 173-303-100(5)(b)(ii) uses a formula that assumes that the hazards 

based on fish, rat inhalation and rabbit dermal toxicities are additive. It is more 

reasonable to assume that these toxicity values are independent and should not be added 

together. A preferable approach is to rate the components of a mixture for each.type of 

toxicity and add only with each toxicity criteria, rather than adding the highest hazard 

from across the different toxicity criteria. o 

20 
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•
 

.'
 

Response: This suggestion is beyond the scope of the current proposed rule package. 

However, Ecology appreciates the comment provided and will review it for consideration 

during the next rule making process. 

Comment 15: In WAC 173-303-100(5)(b) there is a method for book designation. There 

are wastes that designate as DW or EHW based only on inhalation toxicity data, yet the 

waste is not in a physical form that would cause an inhalation exposure. Would the State 

consider adding a provision to the section indicating wastes will not be considered a DW 

or EHW if designation as such solely based on inhalation data and the.waste is not in a 

physical state that would result in an inhalation exposure? 

Response: Again, this comment is beyond the scope of this rulemaking. However, 

Ecology will consider this suggestion for the next rule making process. 

WAC 173·303·120
 

Recycled, Reclaimed, and Recovered Wastes
 

Comment 16: WAC 173-303-120 appears a little confusing when comparing subsections 

(1), (5) and (6). It appears that subsection (1) needs to acknowledge subsections (5) and 

(6). Also subsections (5) and (6) should be combined. 

Response: Ecology concurs with the comment. Subsection (5) will be removed since it 

was added when the Solid Waste Program was writing the used oil regulations. It'was 

intended to provide a link between the two programs for purposes of authorization from 

EPA to implement the used oil regulations. Proposed subsection (6) will be renumbered 

as (5). Subsection (1) mirrors the federal rule. It would not be appropriate to add a 

reference to (5) based on the existing wording. 

WAC 173·303·180
 

Manifest
 

Comment 17: The commenter urges Ecology to adopt the manifest exemption at WAC 

173-303-180(6) exactly as EPA adopted the federal version at 40 CFR 262.20(f) without 

the caveat that Ecology must approve an alternative paper tracking system. 

Response: Ecology gave a considerable amount of thought as to whether or not the 

manifest exemption that would allow wastes to be transported along public rights of way 

between contiguous properties owned by the same person should be adopted into the 

Dangerous Waste Regulations. The manifest is the document that keeps the RCRA 

cradle to grave system intact. 

Rather than not adopting an exclusion from manifesting under these limited conditions, 

Ecology proposed a "middle ground" solution of providing relief from a manifest, but , 

continuing to require that shipping documents containing similar information accompany 

the waste shipment. This middle ground solution benefits everyone by providing relief to 

generators, but continuing to help assure that wastes are safely managed and transported. 

21
 
There has been some confusion on the part of generators as to what is allowed by this 

exemption since EPA originally proposed changing the definition of on-site. By c 

retaining approval over the alternative shipping documents, Ecology will also be able to 

prevent generators from misinterpreting the exemption, thinking they will be exempt 

from other requirements such as the need for an ill number, accumulation limits, etc. 

This exemption would not, for example, allow wastes to be consolidated in ways other 

than is allowed under current regulation. 

Entities likely to be able to take advantage of this exemption already tend to have 

alternative shipping documents in place for their own tracking purposes. Ecology will be 

able to look at those documents and approve their use in lieu of a manifest at the regional 

office level, provided they contain the same type of information found on a manifest. 

Adopting the modified version of the exemption reduces the regulatory burden of having 

to manifest wastes in these limited circumstances while continuing to retain assurances 

that wastes are being carefully tracked and transported along public rights of way. 

Comment 18: WAC 173-303-180(7) specifies a new shipping name for WA state only 

waste. Ifthe purpose of this change is to make it clearer on the manifest what the 

particular hazard is, it would seem more effective to create labels for WA state corrosive, 

toxic, and persistent wastes. The labels would be a more effective warning to personnel 

handling the waste as well as emergency responders. The waste codes WT**, WP**, or 

WSC2 could still be used on the manifest so the manifest also communicates the hazards. 

For the manifest, the commenter suggested using the names "non-RCRA Waste Liquid" C~.

or "non-RCRA Waste Solid". This would simplify the labeling and manifesting process. 

Response: Ecology formed a Transporter External Committee to review, among other 

things, potential shipping descriptions for state-only dangerous waste that does not also 

designate as a DOT 49 CFR hazardous material. The suggested shipping descriptions 

using the words "non-RCRA Waste Liquid" or "non-RCRA Waste Solid" and the use of 

state only waste codes in the shipping description were also reviewed. Upon review of 

various potential shipping description options by the Transporter External Committee and 

by Ecology, it was decided that the shipping descriptions as described in the proposed 

rule at WAC 173-303-180(7) would be the most appropriate to describe a state-only 

dangerous waste. We wanted to keep the shipping description short enough to fitwithin 

the space on the manifest for Item #11. We agreed that the proposed shipping description 

communicated sufficient information on the hazards associated with the waste in that 

package. 

Comment 19: In WAC 173-303-180(7)(b), Ecology is proposing regulation for transport 

of state-only dangerous waste without clearly addressing all the types of state-only 

dangerous waste requiring transport. While Ecology is addressing the state-only 

dangerous waste designated with state-only waste numbers for toxicity, persistent and 

solid corrosive, Ecology is not addressing listed state-only dangerous wastes and stateonly dangerous wastes designated with Federal listed and characteristic waste codes. 

There are listed wastes (e.g., WOOl, state-only F003) and characteristics wastes (e.g., 

22
 
• separated characteristic residues in empty containers) that are state-only dangerous 

wastes. 

Response: WAC 173-303-180(7)(b) is meant to apply only to state-only dangerous 

waste that does not also designate as a DOT hazardous material and as a federal 

hazardous waste (one with a federal waste code). If a dangerous waste designates as a 

DOT hazardous material and as a federal hazardous waste, then WAC 173-303-180(7) 

does not apply. The commenter is correct that there are some wastes that designate based 

on the federal system of lists and characteristics, but that can be considered state-only 

wastes. For example, certain hazardous wastes excluded under RCRA are not excluded 

by Ecology and so are state-only wastes. Ecology has not created new waste codes for 

these state-only wastes. When such waste is generated, it is subject to full designation 

and federal RCRA waste codes are applied. Any state only dangerous waste that 

designates via the lists and characteristics, and is assigned a RCRA waste code must meet 

the packaging, labeling and marking requirements of WAC 173-303-190(1), (2) and (3). 

• 

In regard to the commenter's proposed change in WAC 173-303-180(7)(b), please read 

the previous response to 173-303-180(7). The commenter's proposed language change in 

173-303-180(7)(c) to add PCB (i.e., state-only waste WOOl) as another example was 

considered. While it was not added as another example in the rule language, a person 

could certainly use this waste description if in fact they are preparing a state-only PCB 

waste for transport. 

WAC 17-303-190 

Preparing Dangerous Waste for Transport 

Comment 20: WAC 173-303-190(5) is a little confusing. From the reading of this 

section it appears we will be required to label WA state-only waste differently than 

RCRA waste. If a new label is required, the label could be used to reflect the specific 

hazard associated with the waste. If you do not agree with the comment on WAC 173­

303-180(7), I believe itwould be helpful, if you split this section in two. One section for 

RCRA waste and one for State only waste. 

Response: The commenter referred to the proposed rule under WAC 173-303-190(5) as 

a labeling requirement, which it is not. A "label" is a DOT label that defines the hazard 

class. A packaging (drum, bulk container, portable tank, etc.) holding a state-only waste 

that does not also designate as a DOT 49 CPR hazardous material is not required to be 

labeled per the requirements of 49 CPR part 172.400. 

The proposed rule, at WAC 173-303-190(5), is a marking requirement for a packaging 

holding a state-only dangerous waste. A "marking" is any marking other than a label- for 

instance, the words hazardous or dangerous waste, a shipping description, or a manifest 

number. The state-only dangerous waste shipping description,as described in WAC 173­

• 

303-180(7), that is marked on a packaging will provide the necessary information to 

communicate the hazards associated with the contents of the packaging. 

23
 
c Proposed WAC 173-303-190(5) regulates state-only dangerous waste and does not 

regulate DOT hazardous materials and RCRA wastes. Ecology does not want to require 

a packaging that contains a state-only dangerous waste to be marked per the requirements 

of WAC 173-303-190(3) when that packaging does not also contain a DOT hazardous 

material or RCRA waste. Moreover, 49 CPR part 172 prohibits the use of DOT 

specification labels and markings on packagings that do not contain a DOT hazardous 

material. 

WAC 173-303-200
 

Accumulating Dangerous Waste On-site
 

Comment 21: Ecology added text to WAC 173-303-200(1)(b)(i) and (ii) to incorporate 

Subparts AA, BB, and CC requirements for 90-day accumulation activities. Ecology can 

improve clarity by referencing WAC 173-303-630(11) and -640(11) rather than WAC 

173-303-690 through 692. The phrase "the applicable requirements of' should also be 

removed. 

Response: Comment noted. Both the changes will be made to the final rule. The 

proposed wording is redundant since the language referencing the air emission standards 

was added at WAC 173-303-630(11) and -640(11). The additional phrase is also no 

longer necessary. 

WAC 173-303-240 

Requirements for Transporters of Dangerous Waste o 

Comment 22: The amendments to WAC 173-303-240 will require transfer facilities to 

meet requirements of a 90 day accumulation area by what is being included in -240(6). 

Under the definition of a transfer facility provided.in -040, a transfer facility could 

include merely a parking area, where waste is merely 'transferred from one transport 

vehicle to another (i.e., no actual facility is involved). This will have significant impacts 

on our operations and may require establishment of a whole new facility. Ecology has 

asserted in the preamble language to the Transporter Amendments that ''The External 

Committee and Ecology came to consensus as to what these standards should be: 

Security, maintaining 10 day storage records, facility inspections, training, preparedness 

and prevention, contingency arid emergency plans, and container management". 

Recommendations from the External Committee and Ecology appear to exceed EPA's 

program found in 40 CPR 263. It is unclear from the preamble discussions what harm is 

evident to public health and the environment such that it would cause a reaction to 

impose stricter requirements on transporters and transfer facilities. 

Response: The commenter is correct in that a transfer facility could include a parking lot 

where shipments are transferred from one transport vehicle to another. A parking lot 

could be defined as a transfer facility. Operating a transfer facility in a parking lot would 

be allowed, provided that the transporter who owns or leases and operates the transfer 

facility complies with the proposed regulations under WAC 173-303-240(6).. A person o 

24
 
• 

would not be required to establish a whole new facility in order to comply with the 

proposed requirements. 

The commenter is also correct in that the proposed transfer facility requirements are more 

restrictive than 40 CPR part 263. Ecology found that there are transporters who operate a 

transfer facility in a parking lot that handle, transfer and store hazardous waste shipments 

in open, unsecured transport vehicles. In addition, Ecology found transporters who 

operate under no contingency and emergency plans, had insufficient training for 

employees who may also implement a contingency plan, had no facility inspection 

records, and were not prepared to prevent and mitigate a spill. Ecology has documented 

cases where transporters are storing shipments of hazardous waste for months on end at a 

transfer facility as well as spilling such waste onto the ground. Ecology has found that 

there are currently some transfer facilities operating in Washington state that receive, 

store and handle over a million pounds of hazardous waste each month. An interstate 

transporter can operate a transfer facility in Washington with their out of state ID#, which 

does not allow Ecology or the public to have knowledge of who the transporter or 

operator is and where all transfer facilities are located. 

Under the current WAC 173-303-240 and 40 CPR part 263 regulations, a transporter may 

store waste, transfer waste from container to container, and transfer shipments from 

transporter to transporter at its transfer facility. Ecology does not want to disallow these 

.' .activities to occur at a transfer facility. Ecology believes that the proposed transfer 

facility standards will protect human health and the environment, plus they provide a 

means to register and identify all transfer facility locations and their operators in 

Washington State. 

Comment 23: Ecology has proposed security requirements at WAC 173-303-240(6)(c) 

that go beyond TSD security requirements regarding unauthorized entry. Security 

systems can never prevent unauthorized entry, they can prevent the unknown entry of 

people (see 45 PR 33180, May 18, 1980). Recommend you modify the rule to read 

"prevent unknowing entry". 

Response: The recommended language change was considered and "unknowing entry" 

was added to the paragraph in WAC 173-303-240(6)(c) in the final rule. 

Comment 24: My only concern and request in this area (transportation) is that the state 

take a very close look at the responsibilities, the time involved, the reporting and things 

that could drive the cost for transporters up. Right now, transporters have it pretty easy. 

They register, they do the paperwork and they are done. Most of the onus for responsible 

recording lies with the generator and the receiving facilities, and in most cases, the 

transporter is either a broker or an agent for either the transporter or the facility. My 

primary concern is that if we put too much regulation and too much responsibility for 

duplicate reporting on the transporter, we will drive up costs. Those businesses that 

would have acted responsibly with their waste are now looking at increased costs and 

• 

start driving it to the woods where we don't want them to take it. 

25
 
c 

Response: In the past, Ecology had little knowledge concerning the handling and 

temporary storage of hazardous waste at l.O-day transfer facilities in Washington and 

decided to conduct a Transporter Project to obtain more information on transport 

activities. During this project, Ecology found that there are many interstate transporters 

who operate a transfer facility in Washington with their out of state ID#. This situation 

does not allow Ecology or the public to have knowledge of who operates the transfer 

facility and where all transfer facilities are located. Under current regulations this is 

allowed. 

Activities that may occur at a lO-day transfer facility include storage of an unlimited 

quantity of hazardous waste with all potential waste codes, transfer of waste from 

container to container, and transfer of shipments from transporter to transporter. Ecology 

believes that, should. such activities occur, then the proposed transfer facility standards 

will help protect human health and the environment, and also provide a means to register 

and identify all transfer facility locations and operators. A transporter operating a 

transfer facility will not be required to complete an annual report and record all hazardous 

waste quantities and waste codes that are handled at their transfer facility. 

Ecology prepared a Small Business Economic Impact Statement (SBEIS) as required by 

chapter 19.85 RCW (Regulatory Fairness Act) on the proposed amendments, which 

included the transfer facility proposal. The rules were reviewed to determine if there 

were disproportionate impacts upon small versus large businesses. If disproportionate 

impacts are found during this review, mitigative provisions must be provided to the 

extent feasible and legal under the statute being implemented. Since Ecology had 

considered potential economic impacts during rule development and built in certain 

exemptions, the SBEIS concluded that the exemptions that were proposed mitigated 

many potential impacts of the rule. , 

During the rule development process a Transporter External Committee was formed that 

was composed of members from small and large transporter companies, a local 

government representative, and Ecology to provide input into the content of the proposed 

rules. During the rule development process, specific exemptions from secondary 

containment requirements, which could be the most costly requirement, were proposed 

provided that the transporter stored shipments in secure, enclosed transport vehicles, 

intermodal containers, portable tanks, and transport units. In addition, a secondary 

containment exemption for waste stored within a building was proposed provided that the 

building floor is impervious and is designed to adequately contain any leaks or spills. A 

transporter would also be exempt from full transfer facility requirements in the event of a 

spill or other unforeseen events during transport over a public right-of-way. These 

.exemptions made good sense and helped to mitigate the economic impacts of the 

proposed requirements. 

During the Transporter Project, Ecology visited 63 different transporters in Washington 

State. Ecology found that many well run, prudent waste transportation companiesand 

transfer facilities have their own internal company polices that they operate under that 

o
 

26
 

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• 

would be in accordance with many of the features of the proposed requirements. In this 

case, the costs to meet the proposed regulations would not be a big impact. 

Ecology also noted during the Transporter Project that transporter companies wanted all 

transporter company to operate on the same level playing field, and they believed that 

any proposed transfer facility requirements, when enforced, would ensure that everybody 

operates the same. 

Comment 25: Proposed language at WAC 173-303-240(11) indicates that the standards 

applicable to the transport of solid waste military munitions would be detailed in WAC 

173-303-578. The commenter recommends adding the alternative standards at WAC 

173-303-578(6). 

• 

Response: Ecology did not propose the alternative standards for transporting certain 

munitions between military installations; however, the October 1999 public draft version 

of the proposed amendments added these requirements to the normal transportation 

requirements rather than offering them as an alternative to traditional hazardous waste 

transportation requirements. Ecology agreed that the extra transportation requirements 

(adding to the existing manifest requirement) did not make sense and removed them prior 

to proposal. The proposed language at WAC 173-303-240(11) was inadvertently left in 

the proposal although the language from WAC 173-303-578 was removed prior to formal 

proposal. The remnant language at WAC 173-303-240(11) was removed and will not 

appear in the final rule. Munitions being transported between military installations are 

subject to the same transportation requirements as all other hazardous wastes for reasons 

set out in the preamble that accompanied the proposed rule. A copy of the preamble is 

included in this Responsiveness Summary. 

Comment 26: The wording in the preamble implied that the transfer of munitions 

between military installations will require a manifest in Washington regardless of 

whether or not they are hazardous. The preamble should make clear that it is not 

Ecology's intent to require manifests for the transportation of munitions between military 

installations. . 

Response: The preamble was written to accompany the proposed rule, so the preamble 

itself cannot be changed. However, for the record, manifests are required for the 

transportation of munitions that designate as dangerous waste. Munitions that do not 

designate as dangerous waste do not have to be manifested. 

WAC 173-303-281
 

Notice of Intent
 

Comment 27: Ecology introduced the term "significant expansion" in WAC 173-303­

281(2). Elsewhere in this section the terms "expansion" and "significant change" are 

defined. Ecology needs to provide clarification on the terms significant expansion, 

• expansion, and significant change. 

27 
c 

Response: The changes to WAC 173-303-281 were made to accommodate EPA's rules 

on public involvement and to narrow the state-only requirements for a notice of intent 

(NOI) to significant expansions rather than to any expansion. 

The words "for which the department receives an application for expansion" were 

changed to "applying for a significant expansion". The notice of intent requirement is 

associated with siting requirements (see WAC 173-303-281(1)) and with Ecology's need 

to be alerted to upcoming large workloads. We chose the term "significant expansion", 

already defined in WAC 173-303-282, because it is directly related to the siting criteria 

and it indicates a potential workload we may need to plan for. However, Ecology agrees 

that using the term here is confusing without a reference to the definition. Therefore, such 

a reference was added to the final rule. 

Note that to determine if a change is a "significant expansion," first determine if it is an 

"expansion" under WAC 173-303-281(2)(c). Next determine if it meets the definition of 

a "significant" expansion under WAC 173-303-282(3). 

The term "significant change" comes from public involvement requirements we picked 

up from EPA. Because the term is broader than Ecology's definition of a "significant 

expansion", we were unable to merge the two terms. As defined in WAC 173-303­

281(4)(a), the "significant change" language applies only to "initial permits" and permit 

renewals (see the first two sentences in this subsection). 

A typographical error appeared in the proposal at WAC 173-303-281(5), which referred 

to WAC 173-303-840(4) rather than 830(4). This was corrected in the final rule. 

Comment 28: It is unclear how the pre-application public meeting and notice 

requirements in WAC 173-303-280 [sic] (4) apply to Ecology-initiated permit 

modifications under WAC 173-303-830. 

Response: The pre-application meeting/notice applies only to initial applications and 

renewals and not to modifications. See WAC 173-303-281(4)(a). 

Comment 29: A typographical error seems to have appeared at WAC 173-303-280 [sic} . 

(4)(d)(i). The word "forms" should be "forum".. 

Response: Forms is the word EPA used to begin the listing for the various ways in 

which an applicant must publish notice. While it might not be the best word for that 

sentence, it seems accurate enough for the purpose of the section, so Ecology will keep 

the federal language. Please note that we appreciate having these types of things pointed 

out because mistakes do get made when translating federal language into state rule. 

()
 

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WAC 173-303-370 

Manifest System 

Comment 30: In WAC 173-303-370(4)(b) Ecology is proposing to change the word "or" 

to an "and". This is not consistent with EPA's requirement and will impose unnecessary 

burdens on the regulated community. Ecology should not promulgate a program element 

more strict or broader in scope than EPA. 

Response: Generators are ultimately responsible for the proper management of their 

wastes and to assure the accuracy of their shipping papers. Under existing language, if a 

significant discrepancy is found by the receiving TSD on the generator's manifest 

concerning their waste, the TSD can elect to reconcile that discrepancy with the 

transporter instead of the generator and without the generator's knowledge. Of course the 

generator will be notified about the course of action taken, but not until after the fact. 

Since the generator is ultimately accountable for their waste, the proposal will provide the 

generator the input, knowledge, cooperation and ability to agree or disagree with any 

change in the final destination and management of their waste before those changes 

occur. Ecology does not anticipate that the proposal will impose unnecessary burdens on 

the regulated community, but instead views the change as an aid to generators in 

managing their dangerous waste. 

WAC 173-303-380 

Facility Recordkeeping 

Comment 31: Ecology added the term "waste determinations" to the operating record 

requirements at WAC 173-303-380(l)(c) while also adding references to 40 CFR 

264.1083 and 265.1084, the Subpart CC waste determination procedures. In order to 

prevent confusion regarding waste determinations and waste designations, Ecology 

should add that the waste determinations are Subpart CC waste determinations. 

Response: This suggestion will be added to the final rule for clarification. While the 

proposed language is identical to the federal rule, the commenter makes a good point that 

without the clarification the new requirement could be confusing. 

WAC 173-303-400 

Interim Status Facility Standards 

Comment 32: The proposed language at WAC 173-303-400(3)(c)(xii) deviates from the 

federal rule at 40 CFR 265. 1202(a) by adding a sentence that modifies the federal rule 

language that has been incorporated by reference. The modification excludes the . 

exemption for hazardous wastes managed under 40 CFR 261.3(d). The intent of this 

modification is not clear. 

Response: In the State Dangerous Waste Regulations, Ecology has never recognized (or 

adopted) the federal exemption found at 40 CFR 261.3(d). WAC 173-303-400(3)(c)(xii) 

29
 
c 

is not intended to create a new subcategory of listed waste nor does it mean that Ecology 

will not allow decontamination of structures during closure or post-closure (possible 

interpretations that the commenter offered). It is included for consistency with the rest of 

the Dangerous Waste Regulations. Ecology does not let wastes out of the hazardous 

waste system in the same manner that EPA does at 40 CPR 261.3(d). Since the Part 265 

requirements are incorporated by reference, it is necessary to add this provision so that 

users of the regulations are aware that they cannot utilize EPA's provision that is not 

recognized by the State. 

Comment 33: WAC 173-303-400(2)(c)(xiii)(C) requires compliance with interim status 

facility requirements by "[a]ny person who is covered by (c)(xiii)(A) of this section and 

who continues or initiates dangerous waste treatment or containment activities after the 

immediate response is over." The language restricts compliance to someone who both 

engages in immediate response activities and engages in post-emergency management of 

residual contamination. The proposed language also shifts the focus from management 

of the residual contamination to compliance with interim status facility requirements at 

the site of the emergency response. 

Response: The State's proposed wording is identical to the federal requirement. This 

provision is not intended to limit responsibility only to immediate responders. It says that 

immediate responders who conduct additional treatment or containment requirements are 

subject to additional regulation. The overall provision describes when an immediate 

responder isnot required to comply with interim status requirements, then goes on to 

state when the responder conducting additional activities becomes subject.to the 

applicable regulatory requirements. o 

WAC 173-303-505
 

Special Requirements for Recyclable Materials Used in a Manner Constituting
 

Disposal
 

Comments 34: Elimination of the K061 exclusion at WAC 173-303-505(1)(b)(i) 

Many commenters expressed support for removing the K061 exclusion. 

One commenter supported removing the K061 exclusion unless there is risked-based 

research that indicates that this material poses less risk than other fertilizer products. 

Two commenters noted that this amendment is negative to Washington State agriculture. 

Growers in Washington State will be at an economic disadvantage compared to farmers 

in other states. While the cost of zinc micronutrients is small compared to other fertilizer 

products that growers purchase, it is a needed component to successful crop production. 

Growers in other states will have the benefit of buying much cheaper zinc fertilizer, 

which is derived from K~61. Washington farmers will pay as much as forty percent more 

for zinc fertilizer when K061 products are not available. 

o
 

30
 
• Response: It is Ecology's understanding that K061 derived zinc micronutrients have not 

been manufactured in Washington State for about a year and that previously 

manufactured material is through the channels of trade and currently not available to 

growers in the State of Washington. This amendment ultimately does not eliminate the 

use of steel mill flue dust (known as K061) as a raw material for zinc fertilizers in the 

State of Washington. It does require that zinc fertilizer manufactured from K061 meet 

the same Land Disposal Restriction (LDR) standards as zinc fertilizer manufactured from 

other hazardous wastes, such as ash from the combustion of tires (known as "Tire Ash"). 

Both hazardous wastes have been used to manufacture zinc fertilizer in Washington 

State. Ecology believes that "leveling the playing field" between the hazardous waste 

sources is appropriate since K061 has about 5 times more cadmium and 10 times more 

lead than Tire Ash based on data reported in Ecology's 1997 report, "Screening Survey 

for Metals in Fertilizers and Industrial By-Product Fertilizers in Washington State". 

Comment 35: One commenter opposes application of federal Land Disposal Restrictions 

(LDR) at WAC 173-303-505(1)(b)(i) to fertilizer products that contain wastes that are 

regulated as hazardous wastes in the State of Washington if these wastes are excluded 

from federal hazardous waste regulations in the states where they are recycled into 

fertilizer products. 

Response: Ecology chose not to adopt some federal exclusions for wastes during past 

• , rulemakings. Imported wastes and waste generated within Washington must meet the 

same standards when disposed of within Washington. Similarly, this proposed rule 

requires that waste-derived fertilizers manufactured in other states and imported for use 

in Washington meet the same standards as waste-derived fertilizers manufactured and 

used in Washington. 

Comment 36: The initial criteria at WAC 173-303-505(l)(b)(i) should be based on the 

sources of materials in fertilizers. The proposed "one list fits all" criteria will waste 

resources and not protect the soil. Each general type of fertilizer source material should 

have unique review criteria. 

Response: The initial criteria are based on the standards that are applicable to the most 

common types of hazardous wastes used in fertilizers. A fertilizer manufacturer can 

choose to skip the initial criteria tests and, under the secondary criteria, have a custom 

review based on the actual raw materials in a particular fertilizer. Ecology believes that 

these two options provide the most efficient and effective review process at this time. 

Comments 37: Polycyclic Aromatic Hydrocarbons (pAR) test 

One commenter suggested retaining the testing requirement at WAC 173-303-505 

(1)(b)(i)(A)(III) for certain PAH's, those that are carcinogenic (as defined in MTCA) or 

the PAH's listed on Ecology's list of bioaccumulative chemicals of concern (i.e. 

anthracene, benzo(a)pyrene, benzo(ghi)perylene, benzo(a)anthracene, perylene, and 

• 

phenanthrene). Information about whether these might be present in waste-derived or 

micronutrient fertilizers is valuable to the public. 

31
 
C One commenter expressed concern that future products may evade full review without 

this test. The commenter pointed out that it may be premature to remove the test 

requirement altogether since it has only been in effect for one registration cycle. The 

commenter also pointed out that applicants with products that have been through that 

cycle will not have to test again unless the products are reformulated. This also serves to 

reduce registration costs. 

One commenter felt the test should be retained because this is still a very unknown field. 

Several commenters suggested that the PAH test could be used at the option of Ecology 

when there is potential to find PAH's due to knowledge about the source of the material. 

Several commenters expressed support for removing the PAR test requirement, primarily 

based on reducing testing costs for applicants. 

Response: The PAR test is one of the tests used by Ecology to determine if a waste 

should be subject the Dangerous Waste Regulations. In Ecology's experience, the PAH 

compounds specified in this test are associated with certain petroleum and coal wastes 

such as gasoline, diesel, coal tar, and coke oven residues. It is unlikely that these types of 

wastes are used in the manufacture of fertilizers. The test results from the fertilizers 

registered in ,1999 indicate that few fertilizers have detectable levels of PAHs. Out of 

184 samples only 17 had detectable levels of PARs. The total PAH values ranged from 

0.002 to 1.85 ppm. The current regulatory limit is 10,000 ppm. This test can account for 

approximately 50% of the total analytical costs to register a fertilizer. Ecology believes C~"

that these funds would be better spent on monitoring fertilizer production with routine 

sampling and analysis to ensure that the Washington standards are met and urges 

manufacturers to do so. In view of this, Ecology will remove the PAR test from the 

initial criteria. However, this test may still be used as part of the secondary criteria, when 

examining specific fertilizer raw materials. 

Comments 38: TCLP Test 

One commenter suggested that the test requirement should be retained since there is at 

least one incidence of a product that failed the TCLP test even though it would not have 

failed the "twenty times" criteria. 

One commenter suggested that the TCLP test should be retained because it is supported 

in federal regulation and is a direct measurement of availability of toxins leaching into 

the environment. 

Two commenters supported allowing the fertilizer applicant the option of choosing either 

the TCLP test or the "twenty times" criteria. They commented that the TCLP was 

designed to be, and in reality is, a very effective test at determining the leachability of 

various metals of concern. As' such, it is much more effective at predicting the potential 

environmental impact of land application of fertilizer products derived from K061 (or any 

other RCRA waste) than a total metals test. 

C)
 

32
 
• 

Two commenters supported allowing the fertilizer applicant the option of choosing either 

the, TCLP test or "twenty times" criteria, primarily because the "twenty times" criteria 

may be more stringent than the TCLP test in some cases. The existing TCLP standards 

are already overly conservative regarding the potential health risks from using fertilizers 

because the TCLP test clearly does not recreate the physical realities of using fertilizers. 

One commenter supported removing the TCLP test. 

Two commenters suggested that the TCLP test be used as a verification test to override a 

failure of the "twenty times" criteria. 

One commenter suggested the language should be amended to read: "In the event Of 

particular metals failing the total metals criteria, the registrant can elect to use the TCLP 

test for final determination." 

Response: Based on comments received, Ecology is concerned that there may be cases 

where the "twenty times" a criterion is less stringent than the TCLP test. Since the initial 

criteria are used as an indicator of compliance, Ecology will retain the TCLP test and 

withdraw the "twenty times" option. As a point of clarification, Ecology did not choose 

to use the TCLP test because it mayor may not model the actual risks of hazardous 

waste-derived fertilizers. The TCLP test is used because it is indicative of the Land 

Disposal Restriction (LDR) standards that apply to metal bearing hazardous wastes when 

they are used to make fertilizer products. These wastes are among the most likely type of 

hazardous waste to be used in the manufacture of fertilizers. The LDR standards are 

generally not risk based, instead, they are set at the level that can be obtained by using the 

Best Demonstrated Available Technology (BDAT) to treat the waste to remove the 

hazardous constituents, for example lead. The LDR standards are much lower for each 

metal, Cadmium for example, than the corresponding standard set by the Washington 

Fertilizer Law. 

Comments 39: Secondary Criteria at WAC 173-303-505(1)(b)(i)(B) 

Two commenters felt that requiring fertilizer manufacturers to report all the raw materials 

they use to manufacture waste or hazardous waste derived fertilizers will.contribute to an 

uneven playing field because Ecology has questionable authority over out-of-state 

manufacturers and no authority over foreign manufacturers. This rule will put 

Washington State manufacturers at a significant competitive disadvantage to those 

outside the state and particularly off shore. The emphasis of fertilizer regulation and 

protection needs to remain with the finished product, as is the intent of the Washington 

Fertilizer Law passed two years ago. The state has a regulation for controlling the 

impurities in fertilizer finished products. If it is not satisfactory, change it. By requiring 

manufacturers using waste and hazardous waste raw materials to do additional testing and 

meet different standards than manufacturers using non-waste raw materials, you create 

the ultimate in uneven playing field. Virtually identical products can be made from using 

non-wastes, wastes, or hazardous waste for raw materials. 

•
 

33
 
c 

Response: The secondary criteria where manufacturers report the origins of wastederived fertilizers, are optional and have been used by manufacturers to demonstrate that 

products are not made from hazardous waste. However Ecology agrees there is not a 

level playing field due to the much more stringent standards that apply to hazardous
 

waste derived fertilizers compared to the Washington Fertilizer Law standards that apply
 

to all fertilizers. Ecology is concerned that the difference between the standards may
 

serve to reduce the amount of hazardous waste recycled into fertilizer even if these
 

wastes are safe and effective as fertilizers. Ecology's rules on hazardous waste-derived
 

fertilizers must be as stringent as the federal regulation therefore Ecology supports
 

uniform national fertilizer standards as the way to level the playing field.
 

Additional Fertilizer Comments 40:
 

Many commenters urged Ecology to prohibit the use of K061 for fertilizer based on the
 

evidence that it contains dioxins. Several also suggested that without a ban, Ecology
 

cannot ensure that K061 will not be used in fertilizers. One commenter suggested the
 

following language be inserted in WAC 173-303-505: "(e) the manufacture or use of
 

K061 in commercial fertilizer is prohibited."
 

Many commenters urged Ecology to include a prohibition on the use of dioxin-laden
 

waste in fertilizers. One commenter suggested that the following language be inserted in
 

WAC 173-303-505: "(t) Any solid wastes, hazardous wastes, by-products, or co-products
 

resulting from an industrial process that may create or release dioxin are prohibited from
 

use in commercial fertilizer."
 

Two commenters strongly urged Ecology not to isolate or single out K061 for special
 

restrictions or requirements. K061 is still a very valuable source of Zinc. The
 

technologies exist to remove the constituents of concern and recycle the beneficial
 

elements and it would be a shame to eliminate it as a source of recyclable material.
 

Several commenters urged Ecology to reduce or ban metals such as lead and particularly
 

wastes in fertilizers.
 

Many commenters felt that citizens have the right to know which chemicals are mixed in
 

with fertilizers. Labeling should identify fertilizers that contain waste so the public can
 

choose which products to avoid; .
 

One commenter felt there should be an annual accounting of which wastes are used in
 

fertilizers.
 

Several commenters felt that asbestos should be banned from lawn care products based .
 

on the recent information about tremolite asbestos in one source of vermiculite.
 

One commenter suggested that Ecology adopt rules that hold fertilizer and steel mill 

companies liable parties for contamination and health problems caused by hazardous 

. wastes in fertilizers. These rules should include misuse by any user, and problems caused 

by the build up of the contaminants in soil over time. () 

34
 

-0 
•
 

•
 

•
 

One commenter requested that Ecology provide citizens with the right to sue if toxic 

fertilizer damages their health or crops. 

One commenter felt Ecology should hold public hearings closer to rural areas where 

commercial agriculture is taking place. 

Response: These comments are beyond the scope of the proposed regulations. However,
 

these issues are of great concern to Ecology and we are continuing to work on these
 

issues beyond the current rulemaking. Because so many commenters expressed concern
 

about dioxins in fertilizers, we want to inform the commenters of our efforts to address
 

this issue. Ecology is seeking to reduce the dioxins in hazardous wastes used as
 

fertilizers. K061 is not currently being used to manufacture zinc fertilizers in the State of
 

Washington. This rulemaking related to K061 not only creates a more even playing field,
 

it also indirectly bring levels of dioxin down in the material. That is because it is our
 

understanding that in order for fertilizer companies to meet the new metal standards for
 

K061, they will have to process the material in a way that will also reduce the levels of
 

dioxins. Another area we are working on relates to the pulp and paper industry. We have
 

had meetings with the pulp and paper industry (wood ash) and specific fertilizer
 

companies to see if we can come up with a formal agreement for them to voluntarily not
 

use material with amounts of dioxin above a certain level. We hope we are successful. If
 

not, we may reconsider a regulatory approach. A ban similar to the ones suggested is still
 

under consideration. Finally, we are working with EPA to encourage a national approach
 

to dioxin and heavy metals in their upcoming fertilizer rule-making activities. We expect
 

to see a proposed federal rule before the end of this year.
 

Comments 41:
 

Ecology received 1747 postcards with the following message:
 

Toxic wastes from pulp and paper mills, steel mills, and tire incinerators are being
 

"recycled" as fertilizer that is used to grow our food here in Washington state. Some of
 

these wastes include dioxin which can cause cancer, birth defects, and learning
 

disabilities. In recent testing, Ecology staff found significant dioxin concentrations in
 

steel mill waste-derived fertilizers. In some instances, concentrations exceeded the
 

state's standard for dioxin at hazardous waste sites in residential communities by 130
 

times. Please seize this important opportunity to protect public health, the food supply,
 

and water quality by banning steel mill and other dioxin-laden wastes in fertilizer.
 

Petitions with 795 signatures were submitted with the following messages:
 

WashPIRG's Ban Toxic Fertilizer Campaign Petition 

We, the undersigned citizens and residents of Washington State, hereby urge the 

Department of Ecology to ban all toxic wastes, which include known carcinogens, from 

beingrrecycled" in fertilizers. We also demand full labeling of fertilizer products, 

because consumers have the right to know what they are purchasing. Furthermore, we 

must develop and implement a plan to clean up the land and waterways that have been 

35
 
c 

damaged by toxic fertilizers. Finally, citizens must have the right to legal recourse if 

their health or crops are damaged by toxic fertilizers. 

WashPIRG's Campaign to Ban Toxic Fertilizer 

In the next few months, the state Department of Ecology will decide whether or not to 

ban steel mill waste in fertilizer. In recent testing the Department of Ecology found 

significant dioxin concentrations in steel mill waste-derived fertilizers. In some 

instances, concentrations exceeded the state's standard for dioxin at hazardous waste sites 

in residential communities by 130 times. To protect public health, the food supply, 

and water quality, I support a ban on steel mill and other dioxin-laden wastes in 

fertilizer. . -

Response: Thefollowing letter is being sent in response. 

Dear Concerned Citizen: 

Thank you for taking the time to contact Ecology with your concerns about the practice 

of using wastes in fertilizers in Washington State. Because we received many comments 

on the Dangerous Waste Regulations, specifically regarding the issue of fertilizers, we 

are providing this response to you. It is very helpful for us to hear what the public, as 

well as the regulated community, has to say on these issues. Ecology is greatly 

concerned about the issue of toxics such as dioxins and heavy metals in the environment. 

. . 

We have taken steps during the past two years to limit toxics and metals that can go into 

fertilizers; First, we worked to get a law passed by the Legislature in 1998 to limit the o 

amount of heavy metals that are allowed in fertilizers that are registered for use in 

Washington. Second, the recently concluded rule process withdrew an exclusion, or a 

special allowance for fertilizers that are made from steel mill flue dust (K061). This 

means that if K061 is used to make fertilizer in the future, it will be subject to the same 

standards as other wastes. And finally, we are continuing to work on solutions that will 

further limit toxics and dioxins in fertilizers. 

The elimination of the exclusion for K061 not only creates a more even playing field by 

subjecting all wastes that are used to make fertilizer to the same standard, it also 

indirectly brings levels of dioxin down in the material. That is because it is our 

understanding that in order for fertilizer companies to meet the new metal standards for 

K061, they will have to process the material in a way that will also reduce the levels of 

dioxins. As a point of information, steel mill flue dust, or K061, is not currently being 

used in the manufacture of zinc fertilizers in the State of Washington. 

Another area we are working on relates to the pulp and paper industry. We have had 

meetings with the pulp and paper industry (wood ash) to see if we can come up with a 

formal agreement for them to voluntarily not land apply material with amounts of dioxin 

above a certain level. We hope we are successful. If not, we may reconsider a regulatory 

approach. A ban similar to the one suggested in comments we received was not part of 

the scope of this rule process, but it is still an option for a future rule process. () 

36
 
• Useful metals, such as zinc, are necessary ingredients for some fertilizers. Ecology 

believes that it makes sense to allow recycled metals to be used in fertilizers rather than 

mining more raw materials, provided there is not a threat to public health or the 

environment from other contaminants that come along in the process. It is also important 

to note that we have conducted some testing of soil in the State of Washington. We 

found no evidence of increased dioxins in farmland. In fact, farmland had the lowest 

levels of dioxin compared to forestland, open land, and urban areas. Our efforts will be 

directed towards keeping dioxin levels low on all types of land. 

Finally, we are working with EPA to encourage a national approach to dioxin and heavy 

metals in their upcoming fertilizer rule-making activities. We expect to see a proposed 

federal rule for hazardous waste derived zinc fertilizers before the end of this year. 

If you would like to receive a copy of the Responsiveness Summary in which Ecology 

responded to all comments on the recent amendments to the Dangerous Waste 

Regulations, please call Dave Zink at (360) 407-6752 or send an e-mail to 

dzin461@ecy.wa.gov. The Responsiveness Summary can also be found at 

http://www. wa.gov/ecology/leglactivity/wac173303.html. 

WAC 173·303·515
 

Standards for the Management of Used Oil
 

•	 Comment 42: The definition of used oil needs to be the widest possible to capture the 

maximum recoverable material. Petroleum solvents are used oil. 

Response: The definition of used oil found in WAC 173-303-040 is identical to the 

federal RCRA definition found at 40 CPR 279.10. The definition of used oil is also being 

placed in WAC 173-303-515 (the used oil regulations) for consistency. EPA has made it 

very clear in the Federal Register (Sept 10, 1992, page 41574) and in memo (EPA Permit 

Policy Compendium document number 9592.1997(02», and Ecology concurs with them, 

that petroleum solvents are not used oil. As EPA states it: 

''Today's definition does not include oil based products used as. 

solvents refined from crude oil or manufactured from synthetic 

materials. The Agency has always viewed petroleum based solvents as 

wastes separate and distinct from used oil." 

Aside from the definition of used oil, overall, the used oil rules being adopted are . 

. somewhat broader than they were in the past in relation to allowing other non-traditional 

oily waste streams to be managed under the used oil regulations in Washington. Those 

non-traditional waste streams are found under the applicability statements of the rule. 

See WAC 173-303-515(3). 

• Comment 43: While it is common for used oils to be screened for total halogens, most . 

people use the results to classify the oil per Table 1 [WAC 173-303-515] and to evaluate 

37
 
c 

the rebuttable presumption. Most people do not use the information to designate their 

wastes for persistent halogenated organic compounds. As presented on page 25 of 

Chemical Testing Methodsfor Designating Dangerous Wastes, Publication Number 97­

407, wastes with a total halogen test result exceeding 1000 ppm designate EHW and 

therefore may not be managed as used oil when burned for energy recovery. 

I encourage Ecology to provide educational materials to the regulated community that: 

1) Explain how to designate waste for persistent halogenated organic compounds, as 

presented in Chemical Testing Methods for Designating Dangerous Wastes, 

2) List common, yet not widely known, sources of halogenated organic compounds, and 

3) Clarify how an EHW designation for persistence prevents the waste from being 

managed as used oil. 

Response: In response to the commenter's request for specific educational materials, 1) 

Chemical Tesiing Methods for Designating Dangerous Wastes (Publication #90-407) 

was written as guidance and to provide educational materials to the regulated community 

on the testing procedures required by the Dangerous Waste Regulations. Therefore, 

Ecology is not planning to develop educational material on this publication. 2) Since 

there are thousands of halogenated compounds potentially regulated under the regulatory 

definition of HOC, a list of common sources of halogenated organic compounds is not 

practical. 3) Ifit is determined at a later date that more guidance to clarify how an EHW 

designation for persistence prevents a waste from being managed as used oil is needed, 

then Ecology will consider such a request. 

r>. 

Comment 44: The proposal of WAC 173-303-515(5)(a) appears to be subjecting all used V 

oil with greater than 2 ppm PCBs to 40 CFR 761.20(e). If this sentence is for 

information purposes please clarify. 

Response: The statement was written to inform the generator of their responsibilities 

under TSCA. In order to improve clarity, the second sentence will be changed to read as 

follows: "Note: materials managed under this section containing 2 ppm or greater PCBs 

are subject to applicable requirements of 40 CFR 761.20(e)." 

Comment 45: The proposed prohibition for metalworking fluids at WAC 173-303­

515(5)(b) is unnecessary because the prohibition of (5)(a) [no burning EHW as used oil] 

has already addressed the problem of burning chlorinated compounds in a more complete 

way. 

Response: Ecology feels it is necessary to retain (5)(b) as a starting point in reducing the 

burning of dioxin-forming chemicals in Washington State such as chlorinated 

metalworking fluids. Although there are many types of metal working fluids, subsection 

(5)(b) is limited to metal working fluids formulated with chlorinated compounds such as 

chlorinated paraffins or chlorinated alkene polymers. Section (5)(b) captures these 

specific chlorinated metalworking fluids while (5)(a) may not. In the future, Ecology 

intends to evaluate other waste streams containing chlorine compounds that may 

contribute to the overall dioxin burden to the environment. The effort ECology is taking 

38 
'.
 

•
 

•
 

to reduce the dioxin burden through the used oil rule parallels Ecology's other efforts to 

limit dioxins in fertilizers and dioxin emissions from the pulp and paper industry. 

Comment 46: Chlorinated paraffins are routinely added to many oils as part of the 

additive process. Prohibiting used-oil containing chlorinated compounds from the energy 

recovery process, as proposed in WAC 173-303-515(5)(b), places the entire used-oil 

recovery system in jeopardy and will adversely affect every oil refinery operating in 

Washington State. We request Ecology to ensure a workable oil recovery system by 

removing this section of the rule and leave current federal standards in place. 

Response: Ecology shared a similar concern in drafting the prohibition and how it might 

effect refiners. (Refineries re-refine used oils back into usable oil stock.) With this 

concern, oil refinery operations in Washington State will benefit by the prohibition. The 

prohibition at section -515(5)(b) is very limited in its application in that it only applies to 

metalworking fluids formulated with chlorinated compounds such as chlorinated 

paraffins or chlorinated alkene polymers and only when those fluids are to be burned for 

energy recovery. With respect to the typical designation of the metalworking fluids in 

question as Extremely Hazardous Waste, those fluids are currently being recycled by rerefining or burned as a dangerous waste fuel (not as used oil). With these factors, the 

prohibition directs a relatively small volume of metalworking fluids with significant 

levels of chlorine compounds to refiners that were not directed toward that recycling 

process before. When looking at the overall volume of used oil generated in Washington 

State, this particular oil waste stream makes up a small percentage. The prohibition of 

section -515(5)(b) encourages and supports the re-refining of oil-based metal working 

fluids, which is a workable recycling solution in managing these particular used oils. 

Comment 47: WAC 173-303-515(5)(b) proposes to exclude metalworking fluids and 

oils used for energy recovery from the definition of used oil. That exclusion 

encompasses oil or fluid without respect to an)' quantity of chlorinated paraffins. To be 

in compliance a generator would either have to conduct very costly tests on each batch of 

used oil being generated or classify all his used oil as a hazardous waste. Both such 

options would be enormously expensive; consequently, there would be widespread if not 

universal noncompliance because generators would simply ignore this requirement. 

Moreover, no recycler would accept do-it-yourself generated oil because of the 

overwhelming probability that such oil 90ntains some level of chlorine. 

Response: Ecology appreciates this opportunity to add clarity to some issues that appear 

to have been assumed or misunderstood. First, the prohibition does not affect the 

definition of used oil. The definition of used oil, found in WAC 173-303-040, is identical 

to the federal RCRA definition found at 40 CPR 279.10. Second, as discussed above in 

previous responses, the prohibition is very limited. It is limited to certain types of 

metalworking fluids, and only when those fluids are to be burned. It does not apply to 

motor oil or do-it-yourself oil that may become contaminated with chlorinated 

compounds through use. The rebuttable presumption can be used on motor oils and doit-yourself oils by the recycler, if needed. Finally, since the prohibition is directed to a 

specific group or type of fluids, all the generator needs is to apply his or her knowledge 

39
 
c 

of the source of the waste stream (i.e., it is a metalworking fluid formulated with 

chlorinated compounds) to determine if it falls under the prohibition. That knowledge 

may be obtained from the manufacturer of the fluids in the form of an MSDS sheet. No 

testing is required or needed for that determination or to be in compliance. 

Comment 48: In WAC 173-303-515(5)(e) [prohibition of mixing dangerous waste]
 

Ecology proposed language that EPA has determined to be overly burdensome and
 

unnecessary for their rulemaking. The EPA has addressed concerns regarding the mixing
 

of hazardous waste and used oil in their rule development. Unless Ecology can
 

demonstrate the necessity for such rulemaking, section -515(e) should be deleted and the
 

federal standards should be adopted.
 

Response: WAC 173-303-515(5)(e), which prohibits the mixing of dangerous waste with
 

used oil, reflects the direction provided by Washington State Law (Chapter 70.951 RCW,
 

Used Oil Recycling). By adopting the prohibition of section -515(5)(e), Ecology is not
 

posing any new or additional restrictions on generators other than what they are currently
 

subject to. Overall, the used oil rules being adopted will be somewhat broader by
 

allowing some "non-traditional" oily waste streams (waste streams not allowed under the
 

original Washington used oil rules at WAC 173-303-515) to be managed under the used
 

oil regulations. However, Ecology has found no compelling reason why other wastes and
 

materials need to be mixed with used oil. Ecology believes that with the technologies
 

available today there are more efficient, affordable, and healthier means of recycling
 

dangerous wastes than simply adding them to the used oil waste streams and burned. The
 

prohibition will make it easier for generators of used oil to manage and market their used
 

oil for energy recovery whether it is within Washington State borders, across the border,
 

or across the country. The Dangerous Waste Regulations also provide counting
 

exemptions for wastes recycled in certain ways. By reducing the amount of wastes
 

counted, generator status and regulatory requirements can be reduced.
 

Comment 49: WAC 173-303-5.15(5)(e) would eliminate the used oil with dangerous 

waste mixture rule from Washington's Dangerous Waste Regulations. Such a change 

would not be a sound environmental policy. The proposed rule creates a zero tolerance 

for any intentional mixing of used oil with hazardous waste. As a practical matter, this is 

an impossible standard to comply with. De minimis quantities of mineral spirits, 

solvents, kerosene and gasoline in used oil should be allowed. 

Response: Ecology appreciates this opportunity to present some historical aspects 

concerning the used oil regulations in the State of Washington. WAC 173:'303-515(5)(e), 

. which prohibits mixing of dangerous waste with used oil, reflects the direction provided 

by Washington State Law, chapter 70.951 RCW, Used Oil Recycling. For the past 

approximately 20 years, Ecology has not allowed used oil to be mixed with dangerous 

waste and the mixture then managed as used oil. This includes no mixing of dangerous 

waste from conditionally exempt small quantity generators with used oil. The "no 

mixing" prohibition does not pose any change in how mixtures of used oil and dangerous 

wastes are to be managed; that is, as dangerous waste. The prohibition of section ­

515(5)(e) does not pose any new or additional restrictions on generators than what they o 

40
 

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• are currently subject to in relation to managing their dangerous waste and used oil waste 

streams separately. 

The used oil rules being adopted do allow other non-traditional waste streams (waste 

streams not formerly allowed under the original Washington used oil rules, WAC 173­

303-515) to be managed under the used oil regulations. For example, Ecology is 

proposing to adopt 40 CFR 279.1O(d)(1) which allows mixtures of used oil and fuels (like 

gasoline and kerosene) to be managed under the used oil regulations. 

Mineral spirits (which are identified by RCRA as a hazardous waste) and petroleum 

solvents (which EPA supports) are not used oil and cannot be mixed with used oil. 

Ecology has found no compelling reason why dangerous waste and non-dangerous 

wastes and materials need to be mixed with used oil. Ecology believes that with the 

technologies available today there are more efficient, affordable and healthier means of 

recycling dangerous waste solvents than simply adding them to the used oil waste 

streams and burning them. The "no mixing" prohibition will continue to make it easier 

for generators of used oil to manage and market their used oil for energy recovery across 

the country, because it is "clean". The Dangerous Waste Regulations also provide 

counting exemptions for waste solvents recycled in certain ways. By reducing the 

amount of waste counted, generator status and regulatory requirements can be reduced. 

• 

Comment 50: The language proposed in WAC 173-303-515(6)(a)(i) [closed containers] 

would place an undue burden on businesses and is unnecessary. Used oils typically do 

not pose the same risks inherent to some hazardous wastes, and therefore, should not be 

subject to the same management standards unless it is determined necessary. Funnels and 

related equipment which are commonly used to collect used oil and drain used oil filters 

may not comply with the proposed rule. 

Response: The storage requirement for containers to be closed at all times, except when 

adding or removing materials, is not meant to be an undue burden on businesses. This 

container requirement requires no paper work, recordkeeping, approvals, special training, 

or extra equipment purchases since most containers come with lids. Ecology feels this 

requirement is necessary based on field observations. For example, it has been observed 

that open containers of used oil collect rainwater, causing overflows (spills) and resulting 

in clean up expenses. When used oil filters are actively being drained in a funnel 

attached to a container, that activity would be considered adding to the container and 

would not be considered a problem by the Department. When funnels and other related 

equipment are not being used and remain attached to the container, they should be closed 

to prevent contamination and/or overflows. The requirement for closed containers is an 

inexpensive practice that will ensure a generator's used oil remains manageable under the 

used oil regulations and help prevent generators from incurring undue waste management 

expenses. 

• 

Comment 51: The language proposed in WAC 173-303-515(6)(a)(ii) [container 

handling] would place an undue burden on businesses and is unnecessary. The EPA rule 

adequately addresses Ecology's concern by requiring that containers and tanks be in good 

41
 
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condition, and not leaking. Taking into account the requirements of SPCC (40 CFR 112) 

and regulations governing USTs (40 CFR 280), the language proposed is not beneficial or 

necessary and should be deleted. 

Response: The container handling requirement requires no paper work, recordkeeping, 

approvals, special training or extra equipment purchases to comply with. Ecology feels 

this requirement is necessary based on field observations for proper management of used 

oil storage. The requirements under section 515(6)(a)(ii) are virtually no cost practices 

.that will ensure a generator's used oil remains manageable under the used oil regulations 

and help prevent generators from incurring undue waste management expenses. 40 CFR 

112 deals primarily with bulk storage of petroleum products near waterways and 40 CFR 

280 with the underground storage of petroleum and hazardous substances; the 

requirements of section 515(6)(a)(ii) provide preventative measures for the safe handling 

and storage of used oil. 

Comment 52: The language proposed in WAC 173-303-515(6)(b) and (d) contains 

discretionary language that should be addressed using other means such as administrative 

orders on a case-by-case basis. The proposed amendment gives discretionary authority 

extending far beyond the intent of the regulatory amendment. The proposed language 

places an undue burden on generators. 

Response: The secondary containment and additional reporting language found in 

-515(6)(b) is written to be applied on a case-by-case basis and will not become a burden 

on those who comply with the regulations. Secondary containment does not automatically C 

become a requirement for generators upon adoption, and Ecology does not intend to .-/ 

apply these requirements lightly. They were written in response to field observations and 

experience with real concerns for the proper management of used oil. Section -515(6)(b) 

will allow the Department to address problems that can adversely affect human health 

and the environment in a more timely manner. Note that WAC 173-303-515(6)(d) was 

inadvertently proposed in this subsection; it will be deleted and will not appear in this 

subsection in the final rule. 

Comment 53: The Department should include a time frame for facilities to come into 

compliance with the proposed rule. A twelve-month period for facility modifications 

would be,sufficient. 

Response: Ecology is aware that time may be needed for facilities to obtain local 

building permits in order to come into compliance with secondary containment 

requirements. In these situations, Ecology will use enforcement discretion to aid in 

compliance with the used oil regulations. 

Comment 54: There is an increased emphasis on finding alternatives to petroleum 

solvents in parts cleaning, such an aqueous-based solvents. It is our experience that 

aqueous based solvent/oil mixtures are generally hazardous 50% or more of the time due 

to metals and toxics. Because of the nature of these mixtures, they cannot be easily or 

economically recycled in a legitimate way, so they must be treated. Unlike petroleum () 

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solvent/oil mixtures, most of the aqueous solvent/oil mixtures are either discharged to 

local POTWs or are treated off-site. We suggest Ecology clarify the regulatory status of 

aqueous!oil mixtures from parts cleaning so that a clear direction and framework is 

established prior to it emerging as a big issue. 

Response: In the Dangerous Waste Regulations, there is no special status given to a 

waste consisting of aqueous based solvents and oil from a parts cleaner. When that waste 

is to be discharged to a publicly owned treatment works plant (POTW) the waste may be 

counted toward generator status and the conditions of the domestic sewage exclusion 

must be met. When sent off site for treatment, the waste must be managed as a 

dangerous waste (assuming it designates), manifested and counted toward generator 

status. 

Comment 55: The federal used oil regulations and Washington's proposed rules do not 

explicitly or specifically address the regulatory status of the used oil separated from parts 

cleaning solvent via distillation from parts cleaning. In a March 28, 1996 letter, Ecology 

allowed the oily distillation material from an Ace unit to be mixed and managed with 

used oil if it met certain criteria. We would like you to memorialize this position as part 

of your used oil rulemaking. 

• 

Response: Rather than "memorialize" letters into rule that were written allowing various 

activities to occur, Ecology will write guidance on the used oil regulations, including the 

circumstances described in the comment, following adoption. 

Comment 56: There is a situation that is not clearly addressed in your preamble language 

on pages 7 and 8 related to mixtures of solvent and used oil which are created as part of a 

manufacturing/production process. In parts cleaning, petroleum solvent mixes with used 

oil as part of the process of cleaning parts. This situation does not appear to fall into 

your category distinctions of "incidental/unintentional" or "deliberate! intentional" 

because the mixing occurs as part of the production process itself. It is really a third 

category of "process" mixtures. The need for explicit recognition of their category is 

important because of its affect on the regulatory status of recycling the mixture via 

distillation. Do parts cleaning process mixtures described above fall into the material 

realm or the waste realm? Does that have any bearing on the distillation or other used oil 

separation technologies, especially when done on-site or in a closed-loop fashion? We do 

not believe regulatory language needs to be added or changed but do recommend 

clarifications, changes, to the preamble. 

.Response: The preamble to the proposed rule amendments is a document that can not be 

changed and so the following clarifications are provided. Cleaning parts is not 

considered a manufacturing or production process. A typical scenario of using a parts 

cleaner unit is in a maintenance or automotive shop where the unit uses solvents to clean 

tools, equipment and parts that have been worked on or prior to being worked on. The 

cleaning unit and the cleaning solvents have not produced or manufactured the part, tool 

• 

or equipment but rather perform an ancillary function of cleaning. Materials (like 

solvents) from parts cleaners are considered waste whenever they are regenerated or 

43
 
reclaimed, in other words recycled, in any fashion prior to reuse. For example, solvents 

that are filtered or distilled prior to reuse are considered spent, and therefore a waste. If a 

solvent is not regenerated or reclaimed after use and then reused, the solvent remains a 

product. The Dangerous Waste Regulations provide counting exemptions for generators 

that may apply in this case. For more detail on counting dangerous waste refer to WAC 

173-303-070(7). There is also a "closed loop" exclusion discussed at WAC 173-303­

071(3)(q). Ecology sees no explicit need to recognize solvents used in a parts cleaner as a 

separate category for regulatory purposes. 

When solvents fitting the dangerous waste listing description for listed solvents are used 

for their solvent properties, e.g., to degrease or to clean, the waste, e.g., oily-solvent 

waste, produced from that activity becomes a listed waste (FOOl, F002, F003, F004, or 

F005). These wastes cannot be managed as used oil. The same goes for solvents that 

would exhibit any dangerous waste characteristics or criteria prior to or after their use. 

Comment 57: The ability to haul over 55 gallons is helpful. 

Response: Comment noted. 

Comment 58: The proposed tank inspections at section WAC 173-303-515(9)(b) are 

concerning as the federal SPCC, storm water rules; etc. already provide protection and 

likely will guide DOE inspectors. 

Response: The tank inspection requirements at WAC 173-303-515(9)(b), "Additional 

reports", for processors and re-refiners are written to be applied on a case-by-case basis 

and will not become a burden on those who comply with the regulations. Those 

conditions do not automatically become requirements for processors and re-refiners upon 

adoption and Ecology does not intend to apply these requirements lightly, as the language 

indicates. They were written in response to field observations and experience with real 

concerns toward the safety of human health and the environment. WAC 173-303­

515(9)(b) will allow the Department to address problems thatcan adversely affect human 

health and the environment in a more timely manner. As a final note, the inspection 

requirements would not affect those used oil processors and re-refiners located outside 

Washington State. 

Comment 59: The key problem is not allowing metal working fluids with chlorinated 

paraffins to be in used oil when going for energy recovery (burned). There is a federal 

rebuttable presumption in place of 1000ppm. Does this mean if field-testing shows over 

1000ppm chlorinated compounds they cannot be burnt? Can metalworking fluids be 

blended to less than iOOOppm and then burned? If not, can they be burned as off spec 

used oil fuels in an industrial furnace or boiler? 

Response: The federal rebuttable presumption will continue to be used for all types of 

used oils, except for chlorinated metalworking fluids, when determining their on-spec 

status. Since metalworking fluids are prohibited from being burned as used oil, even as 

off-spec used oil, the rebuttable presumption is not applicable to them. Blending o 

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 metalworking fluids with other used oils to a level below the 1000ppm threshold is
 

dilution. Dilution is not a legitimate activity to enhance the option of recycling waste oil.
 

Dilution will not destroy or remove chlorinated compounds. Metalworking fluids .
 

formulated with chlorinated compounds typically exhibit 10,000(+/-) ppm of halogenated 

organic compounds (HOC) causing a designation as Extremely Hazardous Waste. If the 

intent is to burn metalworking fluids rather than recycle or regenerate them, then the 

metalworking fluids can be burned as hazardous waste fuels in RCRA peimitted boilers 

and/or industrial furnaces under WAC 173-303-510. 

Comment 60: One has only to understand that if metalworking fluids are not allowed in 

the used oil system then one drop takes out millions of gallons of used oil making it not 

recyclable for energy recovery. Where will it go? What happens to the present used oil 

system and millions of dollars that are already invested to protect the environment? 

• 

Response: The used oil regulations allow metalworking fluids intentionally mixed with 

used oils to be burned for energy recover under WAC 173-303-510. Diluting 

metalworking fluids into used oil to evade the intent of the used oil regulations is not 

acceptable. The prohibition for burning metalworking fluids does not preclude the use of 

the rebuttable presumption for other used oils or used oil contaminated with chlorinated 

compounds through their use (e.g., tramp oils contaminated with chlorinated 

metalworking fluids). Therefore, if a generator with used oil contaminated with chlorine 

can successfully demonstrate that the source or origin of the chlorine in the used oil is 

legitimate (rebuttable presumption) then this used oil can continue to be managed as used 

oil under WAC 173-303-515. The prohibition at section -515(5)(b) is very limited in its 

application. It is anticipated that the "used oil system" will eventually show a shift in the 

management of some used oil. Most used oils will continue to be blended for energy 

recovery while metalworking fluids formulated with chlorinated compounds will be re- . 

refined back into a usable oil stock or burned in RCRA permitted boilers and/or industrial 

furnaces for energy recovery. 

Comment 61: Since all used oil will contain some chlorinated paraffin, as it is part of the 

additive package in many oils including motor oils, the whole used oil system fails. What 

studies, etc. support such a major change [re: the metal working oil prohibition]? 

Response: The prohibition at WAC 173-303-515(5)(b) is very limited in its application 

in that it only applies to metal working fluids formulated with chlorinated compounds 

such as chlorinated paraffins or chlorinated alkene polymers and only when those fluids 

are to be burned for energy recovery. The prohibition does not apply to other used oils, 

such as engine motor oil, when burned for energy recovery. Ecology does not foresee a 

failure of the used oil system due to this limited prohibition being in place. 

The prohibition is supported by the knowledge that dioxin compounds can be generated 

and released to the environment from various combustion processes when chlorine donor 

compounds are present. These processes include the burning of petroleum products and 

• 

used tires for power/energy recovery. Ecology is taking a proactive step in reducing the 

burning of dioxin forming chemicals while at the same time encouraging the re-refining 

45
 
C of certain metalworking fluids. In the future, Ecology intends to evaluate other waste 

streams containing chlorine compounds that may contribute to the overall dioxin burden 

to the environment. The effort Ecology is taking to reduce the dioxin burden through the .~

used oil rule parallels Ecology's other efforts to limit dioxins in fertilizers and dioxin 

emissions from the pulp and paper industry. 

Comment 62: There are no studies known to the commenter to support Ecology's 

metalworking fluid prohibition. Why not simply give the generators a recycling method 

already in place by simply making these fluids off spec used oil fuels when burnt for 

energy recovery. 

Response: The metalworking fluid prohibition is focused on a small segment of fluids 

that typically designate under the Washington State Dangerous Waste Regulations as 

Extremely Hazardous Waste (EHW). Declaring these fluids as simply off spec so they 

can be burned under the used oil regulations would not address the EHW status. With 

respect to the typical designation of the targeted fluids, Ecology is only further supporting 

the removal of EHW waste from the used oil waste stream. For approximately the past 

20 years, metalworking fluids designating as EHW have been prohibited from being 

burned as used oil. The prohibition directs a relatively small volume of metalworking 

fluids containing significant levels of chlorine compounds farther up the waste 

management hierarchy- to be re-refined. In this way, the metalworking fluids will be 

reused many times rather than used just once, then burned. 

Comment 63: The effect of Ecology's proposed elimination of the used oil "mixture 

rule" and the conditionally exempt small quantity generator exemption is to transform 

great quantities of what the federal rules classify as used oil into dangerous waste. The 

consequence of Ecology's proposal will be to create vast quantities of hazardous waste 

out of used oil. This creates great uncertainty as to whether other states would ever allow 

this material to be managed as used oil in those states. The proposal will have serious 

adverse consequences beyond its borders. 

Response: Ecology appreciates this opportunity to present additional historical aspects 

concerning the used oil regulations in the State of Washington. For approximately the 

past 20 years, the Dangerous Waste Regulations have not had a used oil "mixture rule" 

allowance nor an allowance to mix conditionally exempt small quantity generator 

(CESQG) waste with used oil. So, the proposed used oil regulations are not posing any 

additional or new restrictions on Washington generators in managing their used oils. 

Ecology's proposal will keep these waste streams, used oil and dangerous waste from 

CESQG, as well as any other dangerous wastes, apart- to be managed separately, as they 

should be. The Moderate Risk Waste Programs in Washington State have been very 

successful in providing a relatively inexpensive management option for CESQGs who 

cannot or choose not to recycle their dangerous waste. 

With the variety and accessibility of on-site and off-site recycling, treatment, and disposal 

options available today, Ecology believes the used oil waste stream should not function 

as a medium (a carrier) for·the easy and cheap disposal of dangerous wastes. After all, o 

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the used oil regulations are in place to allow a less rigorous pathway to recycle used oil. 

With the used oil regulations as proposed, Washington State generators will be able to 

market their used oil confidently across the State, it's borders, or across the country with 

relative ease due to the unadulterated nature of it. 

Comment 64: The commenter expressed concern that the used oil proposal might have a 

confusing impact regarding what can be mixed with used oil, for example, possibly 

mixing things such as brake fluid with oil. It might require greater education of the 

citizenry in Whatcom County about what can and cannot be mixed with waste oil that is 

collected for recycling in this area. The commenter also encouraged Ecology to make the 

new rules as stringent as possible for the protection of public health. 

Response: In drafting the used oil regulations, Ecology maintained the position that 

dangerous wastes are prohibited from being mixed with used oil. On the other hand, 

Ecology is allowing certain oily waste streams to be managed under the used oil 

regulations. For more detail please refer to the applicability statements in WAC 173-303­

515(3). EPA considers brake fluid a type of synthetic used oil that can be managed under 

the used oil regulations. Ecology anticipates that written materials will be prepared for 

the public and regulated communities concerning used oil management. In addition, 

counties may be drafting used oil guidance for homeowners and small quantity generators 

within their jurisdiction. 

Comment 65: We would prefer to see the 90 day requirement for entering used oil into 

an active recycling system extended to 120 days or more for awhile, to allow generators 

in remote areas to use responsible recyclers. There are certain operators in the state that 

we as an institution do not feel comfortable doing business with, they unfortunately 

frequent our area. The ones that are more responsible operate less profitably and 

therefore come through less often. 

Response: The 90 day requirement referenced by the commenter does not apply to 

generators of used oil. It applies to the recycler once the oil is brought on-site. 

Therefore, it would be appropriate for the generator under the scenario described above to 

wait the extra time for a legitimate recycler whom they feel comfortable doing business 

with. 

WAC 173-303-522
 

Special Requirements for Recycling Spent Antifreeze
 

Comment 66: In this section, used antifreeze is referred to as "spent antifreeze". 

Generators who label their accumuiation containers as "used antifreeze" should not be 

out of compliance because they didn't use the word "spent". The terms used and spent 

should be equivalent. 

Response: The terms "spent" and "used" are not equivalent in a regulatory scheme. 

"Spent" means a material that has been used and as a result of contamination can no 

longer serve the purpose for which it was produced without processing. If a "used" 

47 
C material, like antifreeze, is recycled (by choice or need) in any fashion prior to reuse, the 

material is considered spent, or a spent material. The term "spent" brings on the weight 

of the waste management regulations. On the other hand, "used" antifreeze removed/ 

from a radiator, for example, collected in a container, then later added back to the radiator 

without being processed remains in the product realm. In this scheme the antifreeze 

never became spent and therefore is not subject to the dangerous waste regulations. 

WAC 173-303-522 is meant only to apply to "spent" antifreeze. 

WAC 173-303-573
 

Standards for Universal Waste Management
 

Comment 67: It is not clear at WAC 173-303-573(2)(c)(iii) why you have this 

subsection discussing lamps in the section discussing generation of waste batteries. 

Response: The placement of this subsection was a mistake. This subsection was moved 

to -573(1)(a)(iii) as intended. 

Comment 68: Ecology has deviated from the federal applicability condition for used 

lamps at WAC 173-303-573(5)(c) (see 40 CFR 275.5(c» without explanation. Ecology 

would have a used lamp become a waste "on the date it is permanently removed from its 

fixture." This wording fails to recognize that there may be reasons for removing a lamp 

from one fixture and storing it for use in another application. For example, a serviceable 

lamp may be removed from.its fixture to be replaced by a higher wattage lamp. That 

should not make the removed lamp a waste. Adopt the EPA applicability statement for 

lamps (40 CFR 273.5(c». 

Response: Ecology agrees with the commenter that a lamp removed from a fixture may 

have use in another application. Ecology has changed the language to reflect that a used 

lamp becomes a waste on the date it is discarded. 

Comment 69: For both small quantity handlers and large quantity handlers there is a 

requirement to store lamps accumulated in cardboard or fiber containers indoors. To 

prevent any confusion, request you provide a definition for "indoors." 

Response: Ecology has added language at WAC 173-303-573(9)(c)(iii) and573(20(c)(iii) to clarify the meaning of "indoors." For the purposes of this regulation 

"indoors" means in a structure sufficient to prevent a container from being exposed to the 

elements. As explained in the preamble to the proposed rule, the elements include, for 

example, sunlight, rain, condensation, and storm water. 

Comments 70: Lamp Crushing 

Ecology received several comments on the proposal to include lamp crushing at WAC 

173-303-573(9)(c)(iv) and -573(20)(c)(iv). One commenter indicatedthat they liked the 

standards that had been established for lamp crushing. Another commenter wanted 

clarification of what Ecology was considering the lamp generation site for the purposes 

of lamp volume reduction. Other comments stated that it was inappropriate for Ecology (-) 

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to imbed self-implementing OSHNWISHA requirements for mercury exposure control 

into the dangerous waste rule. One commenter indicated that the requirements to manage 

lamps need to be consistent and contain the same requirements as EPA's rule. This 

commenter also stated that Ecology should not presume that residues from the lamp 

crushing activity would designate as dangerous waste and instead allow generators of 

those residues to go through the designation procedure. Another comment objected to the 

use of carbon filtration as the only means of controlling mercury emissions and preferred 

to see the rule allow a performance based standard rather than a technology based 

standard. In addition to the comments addressing specific portions of the proposed 

language, a comment was received that listed reasons why the proposal to allow lamp 

crushing should be removed and that the rule should be rewritten to be more in line with 

the federal rule. There was also a comment requesting clarification of whether lamp 

crushing is considered treatment and referred to a previous response to comment #88 as 

found in our Responsiveness Summary dated January 1998, publication #97-439. This 

comment is addressed in a separate response dedicated to the request for clarification. 

Response: One of Ecology's goals in including lamps as universal waste is to prevent the 

uncontrolled releases of mercury during collection and management of the lamps. The 

lamp crushing rules that were proposed at WAC 173-303-573(9)(c)(iv) and (v) and at­

. 573(20)(c)(iv) and (v) have not been adopted. Further research indicates that lamp 

crushing units currently on the market could not meet the performance-based standards 

that were proposed to ensure that the rule was protective of human health and the 

environment. As lamp crushing technology improves, it is possible that on-site lamp 

crushing may be allowed under the universal waste rule at some future time. 

The purpose of the universal waste management system is to streamline and simplify the 

regulatory requirements for those universal wastes so that we promote the proper 

recycling and disposal of those wastes. Ecology has concluded that the changes needed 

to the proposed language to ensure that crushing would be protective of human health and 

the environment would add layers of complexity to the rule. Added complexity conflicts 

with the purpose of the universal waste management system, 

Also, the intent of the rule is to promote recycling over disposal through a treatment,
 

storage and disposal facility. In light of this, it should be noted that at this time it would
 

most likely cost the handler less to send intact lamps to a recycler rather than purchasing
 

a lamp crusher and paying the higher costs for sending crushed lamps to recyclers.
 

Comment 71: Ecology needs to clarify whether crushing is considered treatment in the 

response to comments document. The previous Responsiveness Summary, publication 

#97-439, dated January 1998, responded to comment #88: "If crushing or compaction of 

fluorescent bulbs occurs - 1) solely for the purpose of reducing waste void space, and 2) 

as long as the activity is conducted in a manner that protects human health and prevents 

release to the environment, and 3) the activity occurs in compliance with section200(l)(b) and -395(1)(a) and (b), then that crushing activity is not considered 

treatment." Ecology needs to acknowledge previous rule making response to comment 

49
 
c language when they provide the requested clarification and inform the public of any 

change in policy it is making in this rulemaking. 

Response: Ecology's response to comment #88 in the January 1998 publication #97­

439 instructs the reader to refer to WAC 173-303-040 definition of "treatment" and 

section -600(3)(1). Section -600(3)(1) exempts activities such as compaction and 

sorting of wastes to reduce void space from being subject to final facility standards for 

treatment. Upon further review of this response and the definition of compaction versus 

crushing, Ecology now interprets that crushing of lamps to make them amenable for 

storage or to reduce volume is different than compaction. The crushing activity breaks 

apart the lamp into separate components whereas compaction would simply reduce void 

space, but leave the waste essentially intact. Therefore, the crushing of lamps to make 

the universal waste more amenable for storage or reduced in volume does meet the 

definition of treatment as found at WAC 173-303-040. Ecology's 1998 response might 

have also been based on the fluorescent tube interim policy dated January 1995, which 

included management options for fluorescent tubes other than managing them as 

dangerous waste. 

WAC 173·303·578
 

Military Munitions
 

Comment 72: WAC 173-303-578(2)(e) refers to "closed" and "transferred" ranges, but 

neither is defined in the definitions section. Recommend definitions from the proposed 

Range Rule (62 FR 50796) be added. . 

Response: As the commenter pointed out, both definitions are from a proposed federal 

rule and may change as that rulemaking proceeds. Terms that are not defined in WAC 

173-303-040 have either the same meaning as in 40 CFR Parts 260, 264, 270, and 124, or 

they have their (the term's) standard technical meaning. IfEcology were to adopt the 

proposed definitions, they could not be modified until the Dangerous Waste Regulations 

are amended in the future. It is more prudent to wait uritil EPA finalizes their rule to 

move forward. When the Range Rule is finalized at the federal level, we will evaluate 

the final definitions for inclusion in the next rulemaking. Until that time, we will look to 

the definitions as proposed in the Range Rule as guidance for interpretation of their 

meanings. 

Comment 73: The commenter opposes adoption of WAC 173-303-578(2)(e), which 

purports to designate as discarded material any military munitions that were discharged 

during military activities and that are left on a range that is closed or transferred from 

military control. The commenter also urges Ecology to postpone a decision until the 

Department of Defense (DOD) finalizes the Range Rule. (Specific points made by the 

commenter are addressed in the response.) 

Response: Ecology appreciates that the Range Rule is designed to address the clean up 

of military ranges and is supportive of that process. However, munitions are no different 

than other wastes that may designate as hazardous wastes. Wastes that were discarded 

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prior to enactment of hazardous waste laws do not have to be cleaned up until they are 

generated. However, once they are dug up, or generated, they fall under existing State 

authority. EPA's original proposal that they withdrew and did not include in their final 

rule, but that Ecology proposed does not add a new requirement. Instead, it reiterates and 

clarifies that such wastes are considered solid, then possibly hazardous wastes. The fact 

that the question regarding this provision is asked in the first place illustrates the 

importance of clarifying State authority, so that as this question arises in the future, the 

answer will be clear- that these wastes are subject to the Dangerous Waste Regulations. 

Ecology partnered with the DOD on both the Military Munitions Rule and the Range 

Rule. Both the Hazardous Waste and Toxics Reduction Program and the Toxics Cleanup Program agree that it is in the best interests of the State to adopt the provision in 

question in order to clarify that these wastes must be cleaned up when generated. 

The commenter noted that the proposal relies on "the time the range is closed or when the 

range is transferred from military control" as the criterion for classifying when munitions 

become hazardous waste as opposed to the usual criteria used for determining when 

something becomes a waste. The commenter notes that in their view, "munitions that 

were used during military activities are not discarded since DOD retains statutory and 

regulatory responsibility for those items .. :;. This illustrates why it is important to adopt 

the proposed language identifying the time when these wastes are considered solid waste. 

There has traditionally been a discrepancy between when the time when the military 

considers their wastes solid wastes and when the Dangerous Waste Regulations deem 

them to be solid wastes. The point of when a munition becomes a waste was clarified in 

other parts of the Military Munitions Rule. Adoption of this provision clarifies the point 

for munitions on closed and transferred ranges and can be used for future discussions 

when this issue may arise again. 

The commenter expressed concern that this provision could be used by others to conclude 

that all munitions on all ranges are waste. Ecology would like to assure the commenter 

that this provision will not be interpreted to include munitions other than those munitions 

on closed or transferred ranges. 

If, following federal promulgation of the Range Rule, Ecology determines that it is 

appropriate to defer to the federal rule, a decision to that effect can be made at that time, 

and the rules amended accordingly. Ecology's regulations are not intended to interfere 

with the implementation of the Range Rule; they ensure that State requirements to protect 

human health and the environment are not overlooked. 

WAC 173-303-600
 

Final Facility Standards
 

Comment 74: The commenter is concerned that the proposed language at WAC 173­

303-600(3)(p)(i)(D)(iii) implies that only emergency responders who engage in postemergency management of residual contamination are responsible for addressing any 

residual contamination from an emergency response: They note that EPA stated in the 

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Federal Register Notice that the owner of the object, the owner of the property on which 

the object rests or where the response was initiated, or the requestor is responsible for 

addressing any residual contamination from an emergency response. \J 

Response: This requirement and the State's proposed rule language are identical to the 

federal rule. This provision does not limit responsibility for addressing residual 

contamination only to emergency responders. It states that emergency responders who 

continue or initiate dangerous waste treatment or containment activities after the 

immediate response is over are subject to all applicable requirements for those activities. 

See also the related response under interim status requirements. 

WAC 173-303-610
 

Closure and Postclosure
 

Comment 75: The discussion introducing modifications to incorporate the post-closure 

permit and closure process requirements states that "regulations allowing alternative 

mechanisms to be used in'lieu of post-closure permits and amendments to the 

requirements for post-closure permit applications are not being adopted." Ecology's 

logic in rejecting these modifications is incomprehensible. 

With regard to the alternative mechanisms to be used in lieu of post-closure permits, the 

associated regulatory language is an integral part of the alternative requirement that 

Ecology claims to be adopting (e.g., see page 56, last paragraph, 1st sentence which 

specifically identifies Ecology's intended adoption of alternative requirements for postclosure care.) It appears that Ecology has erroneously concluded that certain Federal 

language is somehow separate from the alternative mechanism in lieu of post-closure 

care. As indicated at 63 Federal Register 56729, the provisions at 40 CPR 264.90(e) and 

270.1(c) are part of the changes necessary to allow use of alternative authorities. 

Strangely, the Ecology discussion on page 58 of the draft proposed rule states that 40 

CPR 270.1(c) is included in the draft amendments, but corresponding text does not 

appear in the draft rule. In a similar manner, the Ecology discussion states that language 

incorporating 40 CPR 264.118(b)(4) (necessary to allow use of alternative mechanisms in 

lieu of post-closure permitting) is present in the draft rule, but such language does not 

appear anywhere in the proposed changes to WAC 173-303-610(8). Corresponding 

language in the Federal rule for interim status facilities at 40 CPR 265.118(c)(5) is 

apparently incorporated by reference into WAC 173-303. 

With regards to the revisions to the requirements for post-closure permit applications, the 

Federal language at 40 CPR 270.28 was designed to identify appropriate information to 

be included in post-closure permit applications. This action was taken in recognition of 

the fact that the existing regulatory requirements do not distinguish between information 

for operating permits and post-closure permits, but that certain information pertinent to 

operating units may not be relevant to units in post-closure. As a consequence, EPA 

tailored the regulations to identify those information provisions appropriate to units in 

post-closure care. To address fears that additional information may be necessary for units 

subject to post-closure, EPA added a provision allowing the permitting authority to 

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specify additional information needs on a case-by-case basis. The U.S. Department of 

Energy, (USDOE) urges Ecology to adopt these common-sense provisions. 

Response: The commenter raises three issues. First, that Ecology should adopt new 

Federal regulations that allow alternative administrative mechanisms to be used instead 

of post-closure permits to impose post-closure requirements. Second, that Ecology did 

not appropriately adopt all of the necessary Federal regulations to, at certain dangerous 

waste treatment, storage and disposal units, allow for alternative requirements in lieu of 

existing closure, post-closure, ground water monitoring and financial assurance 

requirements. Third, that Ecology should choose new Federal regulations establishing 

alternative post-closure permit application requirements. 

Regarding the use of alternative administrative mechanisms to impose post-closure care 

requirements, Ecology is still not persuaded that it is appropriate to adopt these 

regulations at this time. As discussed in our preamble to the proposal, Ecology's decision 

is based primarily on three considerations. First, under existing, informal, operating 

agreements with EPA Region 10, Ecology generally postpones decisions about postclosure permits at most facilities that remain subject to post-closure care until after 

completion of a cleanup under MTCA. This informal operating arrangement means that, 

in practice, Ecology is already implementing much of the flexibility that would be 

allowed under the new Federal regulations. Second, the Federal regulations do not allow 

alternative administrative mechanisms at facilities (such as Hanford) that have already 

received permits and do not allow conversion of permits into orders or other alternative 

administrative mechanisms. (See, e.g., 63 PR 56717.) Third, gaining authorization to 

implement these requirements in lieu of EPA Region 10, would likely be a time and 

resource intensive effort for Ecology. Ecology spent approximately three years working 

with EPA Region 10 to make the Region comfortable with limited use of orders issued 

under the Model Toxics Control Act and consent decrees at facilities subject to corrective 

action. In the end, we were never able to actually receive authorization of these MTCA 

orders and, instead, are still required to incorporate these orders by reference into state 

dangerous waste permits. We believe a similar effort would be required for EPA Region 

10 to become confident that MTCA orders and consent decrees could be used to properly 

impose post-closure care requirements. 

Given their limited application, and the time and effort that would likely be involved in 

gaining authorization to implement these requirements, Ecology continues to believe it is 

not necessary to adopt these new Federal regulations at this time. IfEPA clarifies the 

regulations to allow for existing permits to be converted to alternative administrative 

mechanisms or if the universe of post-closure facilities in Washington changes, Ecology 

may reconsider this decision and may choose to adopt these regulations in the future. 

Regarding adoption of new Federal regulations to allow use of alternative requirements in 

lieu of the existing requirements for closure, post-closure, ground water monitoring and 

financial assurance at certain treatment, storage and disposal units, the commenter raises 

concerns about 40 CPR 264. 118(b)(4) and 40 CPR 270. 1(c)(7). 

53 
----~ -- -------­

40 CPR 264. 118(b)(4) provides that where alternative requirements are established at a 

unit required to have a post-closure plan, the post-closure plan must include either the C. 

alternative requirements or a reference to the enforceable document containing the 

alternative requirements. These provisions were inadvertently omitted from the proposal. 

In response to this comment, this provision has been added at WAC 173-303­

610(8)(b)(iv). As the commenter notes, the addition is consistent with Ecology's 

preamble discussion of its intent to adopt all of the Federal provisions necessary to 

support implementation of alternative requirements at eligible treatment, storage and 

disposal units. It is also analogous to our proposal to adopt this requirement for closure 

plans at WAC 173-303-610(3)(a)(ix). 

Ecology notes that 40 CPR 264.118(b)(4) is not, as the commenter asserts, necessary to 

allow use of alternative mechanisms in lieu of post-closure permitting. Rather, 40 CPR 

164.118(b)(4) provides that, where EPA has established alternative requirements for 

closure, post-closure, ground water monitoring, or financial assurance at a unit required 

to have a post-closure plan, the post-closure plan must contain the alternative 

requirements or a reference to the alternative requirements. Under the Federal regulations 

dealing with alternative mechanisms, the alternative mechanism must contain all postclosure care requirements. It is these provisions which we have chosen not to adopt. 

Under the Federal regulations for alternative requirements (which we are adopting) the 

alternative requirements can be established in either a post-closure plan or an enforceable 

document, which is referenced in a post-closure plan. 

40 CPR 270.1(c)(7) establishes that, at the discretion of EPA or an authorized state, a 

facility owner/operator may obtain an enforceable document instead of a post-closure 

permit to impose post-closure care requirements. It also provides a definition of 

"enforceable document." As discussed above, Ecology is not, at this time, persuaded that 

it should adopt the Federal regulations allowing alternative administrative mechanisms to 

be used instead of post-closure permits. However, we agree that to support our adoption 

of Federal regulations allowing use of alternative requirements in lieu of the existing 

requirement for closure, post-closure, ground water monitoring and financial assurance at 

certain treatment, storage and disposal units, we need to establish requirements for 

"enforceable documents." To that end, Ecology proposed a definition of "enforceable 

document" at WAC 173-303-040. 

-Regarding adoption of Federal regulations establishing alternative information 

submission requirements for post-closure permit applications, as discussed in our 

preamble to the proposed regulations, Ecology continues to believe that these provisions 

are not necessary because WAC 173-303-840(b) and existing guidance on post-closure 

permit applications already allows EPA and authorized states to determine that a postclosure permit application is complete even if the application does not contain all of the 

elements that would be necessary in a permit application for an operating facility. 

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WAC 173-303-646
 

Corrective Action
 

Comment 76: The discussion on page 61 of the draft rule amendment states that 

"Ecology is adding an explicit requirement that corrective actions under WAC 173-303­

646 meet the requirements of the Model Toxics Control Act Cleanup Regulation. This 

provision is intended to clarify the application of MTCA and "give additional certainty to 

members of the regulated community who might wish to begin corrective action absent 

Ecology oversight." 

The commenter concurs that attainment of the MTCA cleanup standards should clearly 

demonstrate adequacy of cleanup and supports Ecology's recognition that voluntary 

cleanup actions may be performed by the facility owner/operator outside the context of 

Ecology oversight. It is important; however, that the requirement to meet the 

requirements of MTCA be properly placed within the context of the requirements for 

corrective action. 

In order to avoid the appearance of surreptitiously revising the scope of the historically 

documented WAC 173-303 corrective action program, the Ecology discussion of the rule 

amendment needs to be revised to explain that corrective action applies both to SWMUs 

and significant one-time spill events. Ecology should reiterate the definition of a 

significant release, state that the facility owner/operator is responsible for making this 

determination, with Ecology being responsible for ensuring accurate assessments. 

MTCA Policy 101 should be identified as providing guidance as to when a one-time spill 

is considered to pose a threat to human health and the environment. Finally, the 

regulatory language in -646(2)(d) should be revised to reflect that the requirement 

applies to significant releases. If Ecology intends to impose a different application of 

corrective action from that described above, the discussion should provide an explicit 

discussion of the changes along with a request for comment. 

Response: As discussed in our preamble to the proposed regulations, WAC 173-303­

646(2)(d) does not change the scope or applicability of corrective action requirements. 

This scope and applicability is already defined at WAC 173-303-646(1) and WAC 173­

303-646(2)(a), which reads, in part: "the owner or operator of a facility must institute 

corrective action as necessary to protect human health and the environmental for all 

releases of dangerous wastes and dangerous constituents, including releases from all solid 

waste management units at the facility." Because the jurisdiction and scope of corrective 

action requirements are already defined in WAC 173-303-646(a) and WAC 173-303­

646(2)(a), we are not persuaded that it is necessary to further define the scope and 

applicability of corrective action requirements in WAC 173-303-646(2)(d). 

Ecology confirms that documents cited by the commenter continue to accurately express 

our policy on corrective action requirements for releases that are not from solid waste 

management units (SWMUs). (February 2, 1994 letter from Thomas Eaton, then Manger 

of the Hazardous Waste and Toxics Reduction Program to Kris Backes of the Association 

of Washington Business and Toxic Cleanup Program Policy 101.) We note that, since 

55
 
C 1994, in practice, the issue of non-SWMU related releases is generally addressed in 

permits. This includes in proposed permit conditions for the Department of Energy's 

Hanford Facility, by requiring corrective action for releases from SWMUs and "Areas ofj 

Concern" and including a definition of "Areas of Concern" in the permit, 

Comment 77: Ecology has proposed regulatory citations for WAC 173-303 when they 

should be WAC 173-340 in both the preamble text and the regulatory text. 

Response: Proposed regulations at WAC 173-303-646(2)(d) properly cite the Model 

Toxics Control Act, Chapter 173-340 WAC. 

WAC 173-303-692
 

Air Emission Standards for Tanks, Surface Impoundments, and Containers
 

Comment 78: Consistent with the corresponding Federal provisions, WAC 173-303­

692(l)(b)(v) needs to be revised to acknowledge that the air emissions standards do not 

apply to waste management units storing or treating hazardous waste associated with 

remediation activities conducted under CERCLA authority or under an interim status 

RCRA corrective action order. 

Response: The federal citations will be added in the final rule so that the State rule 

corresponds to the federal requirement. 

WAC 173-303-800
 

Permit Requirements for Dangerous Waste Management Facilities
 

Comment 79: Ecology has not adopted the federal exemption found at 40 CPR 

270.1(c)(3)(i)(C) at WAC 173-303-800(7)(c)(i)(C). Theexemption has been proposed 

for adoption in sections -400 and -600. The language for exemptions should be identical 

in these three sections. 

Response: The language from the federal citation will be added in the final rule. 

Ecology proposed to update sections -400, -600, and -800 to correlate with the federal 

rule. The citation in question was inadvertently omitted from the proposal. 

WAC 173-303-803
 

Permit Application Requirements
 

Comment 80: WAC 173-303-803(2)(b) and WAC 173-303-803(3) appear identical. 

Ecology should delete subsection (3) and renumber the remaining subsections of section· 

-803. 

Response: The duplicate subsection (3) will be removed in the final rule. 

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 Comment 81: Ecology added a paragraph relating to "dangerous debris" at WAC 173­


303-803(4)(n). Ecology has not defined this term. Ecology should continue to use the
 

term "hazardous debris" in order to be consistent with the rest of Chapter 173-303 WAC.
 

Response: Ecology did not intend to introduce a new tenn. The tennwill be changed to 

"hazardous debris" in the final rule for consistency with the rest of the regulations. 

WAC 173-303-805
 

Interim Status Permits
 

Comment 82: Ecology appears to have a typographical error at WAC 173-303­

805(l)(b)(ii) in the reference to section -806. It appears that the correct reference should 

be to WAC 173-303-803(4). 

Response: WAC 173-303-803(4) is the new subsection that lists the contents of a Part A 

permit application. WAC 173-303-806 was referred to in the proposed rule because it 

contains the broader requirements for submitting a Part A application. It goes on to refer 

to WAC 173-303-803(4) for the contents of an application. However, since permit 

application requirements were added at WAC 173-303-803, it is more appropriate to 

change the reference to WAC 173-303-803 since it more closely correlates to the federal 

citation. WAC 173-303-803 then refers to other appropriate sections. WAC 173-303­

• 

803 will reflect this change in the final rule. It will also be modified to include a 

reference to WAC 173-303-800 to tie in all permit application requirements. 

WAC 173-303-806 

Final Facility Permits 

Comment 83: In adding WAC 173-303-806(4)(m), Ecology appears to have overlooked 

updating subsection -806(4). Ecology should update the list to account for subsection806(4)(m). 

Response: WAC 173-303-806(4), contents of Part B, will be updated in the final rule. 

Miscellaneous Comments 

Comment 84: The time between proposal and adoption, 30 days, is not sufficient time 

for the local solid waste handling agencies to promulgate their own rules and inform their 

customers. 

Response: The commenter has a good point and we do take such things into 

consideration. Under the Administrative Procedures Act, agencies must wait at least 

thirty days following adoption before rules can go into effect. While Ecology does have 

the authority to signify a later effective date, there are benefits to having the amendments 

become effective thirty days after adoption rather than waiting for a later date. 

57
 
c The rules are very diverse and don't all affect local solid waste programs. Also, while 

some of the rules being adopted are already in effect and are implemented at the federal 

level, many will be going into effect for the first time when Washington adopts them. 

These rules will increase environmental protection. The earlier that the amendments go 

into effect, the sooner many of the improvements for environmental protection can be 

implemented. Also, there are other rules, such as some conditional exclusions that some 

generators will want to begin implementing as soon as allowable. 

Ecology makes an early pre-proposal draft of the amendments available for public review 

both to obtain public input, and to let the public know which rules are being considered 

for adoption. The early involvement opportunity and notification increase awareness of 

new rules that will need to be complied with. A pre-proposal draft was made available in 

October 1999. With universal waste lamps in particular, Ecology has written articles and 

worked to notify effected people that this rule was expected to go into effect in early 

2000. The work on this rule followed EPA's rule, which many people were aware of. 

Ecology realizes that there are administrative procedures that counties must follow. 

Ecology recognizes that there is a period of time following adoption where people are 

coming into compliance with the new regulations. Ecology takes this into consideration 

when evaluating instances of non-compliance and selecting appropriate remedies. 

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