ADDENDUM #1

September 7, 1982

.. . \

•

Mr. Donald W. Moos, Director

Washington State Department of Ecology

Mail Stop PV-11

Olympia, Washington 98504

Re: Dangerous Waste Regulatory Program

Attorney General's Statement

Dear Director Moos:

This letter is written in response to your request for

statement from the Attorney General's Office with regard to the

authority of the Washington Department of Ecology to operate a

dangerous waste regulatory program in accordance with the

Federal Resource Conservation and Recovery Act of 1976.

The Federal Resource Conservation and Recovery Act of 1976

(RCRA), 42 U.S.C. 6901 et ~., authorized hazardous waste regulation at the Federal level. Under RCRA, the u.s. Environmental

Protection Agency (EPA) is required to adopt regulations identifying hazardous wastes, defining generator responsibilities,

assuring safe transport, and setting standards for hazardous

waste treatment, storage and disposal. Most of the required

regulations published to date appeared in the May 19, 1980

Federal Register.

The EPA, under RCRA, may, however, authorize a state to

operate a state hazardous waste regulatory program in lieu of

the Federal program. 42 U.S.C. 6926(C). Regulations which set

out the procedure incident to obtaining such authorization are

published at 40 CFR part 123. These regulations require that a

state application for authority include an "Attorney General's

Statement." 40 CFR 123.125. This letter is intended to constitute the "Attorney General's Statement" element in the State of

Washington's application under 42 U.S.C. ~926(C).

The format of the statement which follows was obtained

substantially from EPA guidance material. The guidance document

we reviewed indicated that it covered I' •• the minimum legal

requirements ... " a state must meet to obtain author ization.

The organization of the material "which follows was derived

from EPA materials. An Outline is included here to "assist the

reader.

. -.._ _._~ .. '''' '., - .. --'.-. ----_..
....

1.

II.

III.

IV.

V.

VI.

VII.

VIII.

IX.

X.

XI.

XII.

XIII.

XIV.

XV.

("")

~.-.~j

OFFICE OF THE ATTORNEY GENERAL~'

OUTLINE OF CONTENTS

Topic

Overview

Identification and Listing of Dangerous

wastes . . . . • . . .. . . . . .

Standards for Generators of Hazardous Waste.

Standards for Transporters of Hazardous

Wastes . . • . . • . . . . . • . . .

Standards for Hazardous Waste Storage, Treatment, and Disposal Facilities...•.•.

Inspections.

Enforcement Remedies •

Public Participation in the State Enforcement

Process. .. . . . . . . . . . . .

Authority to Share Information with EPA.

State Authority to Regulate Activities of

Indians on Reservation Lands ..•.•••

State Permitting Requirements.

State Permitting Standards.

State Permitting Procedures.

State Permitting Requirements - Incineration

Facilities ...•............

State Permitting Standards - Incineration

Facilities •..............

State Permitting Procedures - Incineration

Facilities. . .•.•...' ....•

i

2

B

10

13

15

17

18

19

21

22

23

27

29

31

32

34

J
-..

OFFICE OF THE ATTORNEY GENERAC'

Mr. Donald W. Moos, Director

September 7, 1982

Page 2

OVERVIEW

This introductory section is intended to set out, in general

terms, the state statutory authority to regulate hazardous wastes.

This section also includes brief remarks on the Extremely Hazardous Waste/Dangerous waste structure in Washington laws and the

Energy Facility Site Evaluation Council (EFSEC). This section is

not derived from EPA guidance materials.

Chapter 70.105 RCW

1. The 1976 Legislation

The Washington State Legislature enacted ch. 70.105 RCW in

1976. Laws of Washington, 1975-1976 2d. Ex. Session, ch. 101.

At that time, ch. 70.105 RCW, in essence, provided authority to

regulate the transportation, storage, and disposal of "extremely

hazardous waste. II

"Extremely hazardous waste" (hereafter EHW) was defined as a

subcategory of "dangerous waste" in RCW 70.105.010(6) as follows:

"Extremely hazardous waste" means any dangerous

waste which

(a) will persist in a hazardous form for several

years or more at a disposal site and which in its persistent form

(i) presents a significant environmental hazard

and may be concentrated by living organisms through

a food chain or may affect the genetic makeup of man

or wildlife, and

(ii) is highly toxic to man or wildlife

(b) if disposed of at a disposal site in such

quantities as would present an extreme hazard to man

or the environment (emphasis added.)

The more general category, "dangerous waste" (hereafter

DW), was also defined but was not regulated unless the particular

DW in question also exhibited the characteristics of EHW. See

RCW 70.105.010(5) which reads:

"Dangerous Wastes" means (sic) any discarded,

useless, unwanted or abandoned nonradioactive substances, included but not limited to certain pesticides, or any residues or containers of such substances

which are disposed of in such quantity or concentration as to pose a substantial present or potential

hazard to human health, wildlife or the environment

because such wastes or constituents or combinations

of such wastes:

i

'f'
.........,

OFFICE OF THE ATTORNEY GENER.

~r. Donald W. MOOS, Director

September 7, 1982

Page 3

(a) Have short-lived, toxic properties that may

cause death, injury, or illness or have mutagenic,

teratogenic or carcinogenic properties; or

(b) Are corrosive, explosive, flammable, or may

generate pressure through decomposition or other

means.

The Washington State Department of Ecology (WDOE), in 1976,

was required to adopt regulations which would identify regulated

wastes; i.e., those waste exhibiting the characteristics of EHW,

as defined by RCW 70.105.010(6). Rew 70.105.020(1). The Department, by implication, was thus also required to identify dangerous

wastes (since EHW is a subcategory of DW), although only EHW was

regulated at that time. See, ch. 173-302 WAc·ll

2. The 198D Legislation

The Washington Legislature added three new sections to ch.

70.105 in 1980. Laws of Washington, 1980 Session, ch. 144, now

codified at RCW 70.105.120, 70.105.130 and 70.105.140. The

purpose of this legislation was to equip the Department of Ecology

with authority to administer the federal Resource Conservation and

Recovery Act (RCRA), 42 U.S.C. 6901 et~, in Washington.

Accordingly, RCW 70.105.130 provides:-

(1) The department is designated as the state

agency for implementing the federal resource conservation and recovery act (42 U.S.C. Sec. 6901 et seq.).

(2) The power granted to the department by this

section is the authority to:

(a) Establish a permit system for owners or operators of facilities which treat, store, or dispose of

dangerous wastes: Provided, That spent containers of

pesticides or herbicides which have been used in normal

farm operations and which are not extremely hazardous

wastes, shall not be subject to the permit system;

(b) Est~blish standards for the safe transport,

treatment, storage, and disposal of dangerous wastes

as may be necessary to protect human health and the

environment;

(c) Establish, to implement this section:

(i) A mcnifest systems to track dangerous wastes;

(ii) Reporting, monitoring, recordkeeping,

labeling, sampling requirements~ and

(iii) Owner, operator, and transporter responsibility;

l/ These regulations have been replaced by ch. 173-303 and were

repealed effective March 12, 1982.

7
~""'jFFICE OF THE ATTORNEY GENERP --,

-.-."

Mr. Donald W. MOOS, Director

September 7, 1982

Page 4

(d) Enter at reasonable times establishments

regulated under this section for the purposes of

inspection, monitoring, and sampling; and

(e) Adopt rules necessary to implement this

section.

The 1980 legislation also provided authority for the Attorney

General to bring suit to enforce ch. 70.105 RCW (see RCW 70.105.120)

and required that Department of Ecology rules implementing RCRA be

submitted to the legislature pr.ior to adoption (see RCW 70.105.140).

The 1980 legislation was effective June 12, 1980. 2/

3. Dangerous Waste/Extremely Hazardous

Waste DIstInctIon'

As above noted, while the 1976 Legislature authorized the

Department of Ecology to adopt rules to identify both DW and EHW

(RCW 70.105.020(1)), regulation of only EHW was permitted at

that time. Since many RCRA-controlled wastes would not be EHW,

the legislature, in 1980, expanded the Department's regulatory

authority to cover OW as well.3/ (The universe of wastes now

considered DW under ch. 173-303 WAC is nearly identical to that

under 40 CFR 261; this will be discussed below.) This added

authority, however, did not change the existing (l976) statutes

pertaining to EHW. Those state statutes are more stringent than

RCRA in some respects. Under 70.105.050, for example, disposal

of EHW at any location in this state other than a site established by or for the Department on the federal reservation at

2/

3/

The 1980 session of the Washington Legislature adjourned

March 13, 1980. That portion of ch. 70.105 RCW which

was enacted during the 1980 session thus took effect

June 12, 1980, i.e., 90 days after adjournment. Wash.

Const. Art. II, § 41. This effective date is, of

course, well within the 90-day period established by

42 U.S.C. 6926(c). Regulations intended to implement

RCRA, i.e., ch. 173-303 WAC, were adopted by the Director

of the Department of Ecology and took effect on

March 12, 1982.

An exception should be noted. Under RCW 70.105.130(2) (a)

the Department is authorized to establish a permit system

for owners or operators of facilities which treat, store, or

dispose of dangerous wastes". .PROVIDED, that spent

containers of pesticides or herbicides which have been used

in normal farm operations and which are not extremel~

hazardous wastes. "are not subject to the permit system.

(Emphasis added.)

/

(
OFFICE OF THE ATTORNEY GENERA... -

Mr. Donald W. Moos, Director

September 7, 1982

Page 5

Hanford is prohibited. WDOE rules include this limitation,

WAC 173-303-140, while there appears to be no comparable

provision in 40 eFR part 260 et seq.

4. EFSEC

Ins6far as an "energy facility" is concerned, dangerous

waste regulation may be under the jurisdiction of either

the Energy Facility Site Evaluation Council (EFSEC) I see

RCW 80.50.060(1), or the Department of Ecology, see7o:TOS.130,

supra, at page two. RCW 80.50.060(1) provides: ---

The provisions of this chapter [ch. 80.50 PCW]

shall apply to the construction of energy facilities

which includes the new construction of energy facilities and the reconstruction or enlargement of existing

energy facilities where the net increase in physical

capacity or dimensions resulting from such reconstruction or enlargement meets or exceeds those capacities

or dimensions set forth in RCW 80.50.020(7) and *(17),

as now or hereafter amended. No construction of such

energy facilities may be undertaken, ex~ept as otherwise provided in this chapter, after JU~y 15, 1977,

without first obtaining certification in the manner

prov ided in th is chapter. (emphas is added).

The legislature, in 1976, also provided by RCW

70.105.110 that:

Nothing in [chapter 70.105 RCW] shall alter,

amend, or supersede the provisions of chapter 80.50

RCW, as now exiscing or hereafter amended, or grant

to the department ... any author ity regarding the

regulation, certification, construction, or siting

of thermal power plants, as-aefined in such acts.

(emphasis added).il

"Energy facility" is defined In 80.50.020(10) as

follows:

4/ EFSEC's jurisdiction was limited to "thermal power plant

construction proposals until 1976. In that year the

"energy facility" language now in effect was added.

Laws of Washington, 1975-76 2d Ex. Sess. § 30.

/
· .0FFICE OF THE ATTORNEY GENERA..

Mr. Donald W. Moos, Director

September 7, 1982

Page 6

"Energy facility" means an energy plant or

transmission facilities: Provided, That the following are excluded from the provisions of this chapter:

(a) Facilities for the extraction, conversion,

transmission or storage of water, other than water

specifically consumed or discharged by energy production or conversion for energy purposes; and

(b) Facilities operated by and for the armed

services for military purposes or by other federal

authority for the national defense;

The terms "energy plant" and "transmission facility" are

-also defined in RCW 80.50.020 as follows:

(14) "Energy plant" means the following facilities together with their associated facilities:

(a) Any stationary thermal power plant with

generating capacity of two hundred fifty thousand

kilowatts or more and floating thermal power plants

of fifty thousand kilowatts or more, including associated facilities;

(b) Facilities which will have the capacity to

receive liquified natural gas in the equivalent of

more than one hundred million standard cubic feet of

natural gas per day, which has been transported over

marine waters;

(c) Facilities which will have the capacity to

receive more than an average of fifty thousand barrels

per day of crude or refined petroleum or liquified

petroleum gas which has been or will be transported

over marine waters, except that the provisions of

this chapter shall not apply to storage facilities

unless occasioned by such new facility construction;

(d) Any underground reservoir for receipt and

storage of natural gas as defined in RCW BO.40.010

capable of delivering an average of more than one

hundred million standard cubic feet of natural gas

per day; and

(e) Facilities capable of processing more than

twenty five thousand barrels per day of petroleum

into refined products;

(7) "Transmission facility" means any of the

following together with their associated facilities:

(a) Crude or refined petroleum or liquid petroleum product transmission pipeline of the following

dimes ions: A pipeline larger than six inches minimum

inside diameter between valves for the transmission

of these products with a total length of at least

fifteen miles;

,
.. .~

<-uFFICE OF THE ATTORNEY GENERA.

Mr. Donald W. MOOS, Director

September 7, 1982

Page 7

(b) Natural gas, synthetic fuel gas, or liquified petroleum gas transmission pipeline of the

following dimensions: A pipeline larger than fourteen inches minimum inside diameter between valves,

for the tran~mission of these products, with a total.

length of at least fifteen miles for the purpose of

delivering gas to a distribution facility, except an

interstate natural gas pipeline regulated by the

United States federal power commission;

An example of a proposed "energy facility" presented to

EFSEC for certification is the Creston Generating Station

project, EFSEC No. 80-1 (coal-fired electrical energy generation

plant near Creston, Washington).

EFSEC is authorized to act on applications for energy facility

site certification which are submitted to it. RCW 80.50.040.

EFSEC procedures require a "contested-case" hearing (see, RCW

34.04.090) to review the applications for certification-submitted.

RCW 80.50.090(3). Parties and intervenors in the case may submit

evidence, including evidence relating to dangerous waste management. See, e.g., In re Application of washington Water Power,

EFSEC No. 80-1, RP 4152-4157; ch. 463-30 WAC. At the conclusion

of the contested case hearings and reviews by EFSEC's consultants,

the council makes a report to the Governor stating the council's

recommendations concerning the particular application. If approval

is recommended, the council's report must include a draft "certification" agreement. RCW 80.50.100(1). "Certification" is defined

in RCW 80.50.020(5) to mean:

.• a binding agreement between an applicant

and the state which shall embody compliance to the

siting guidelines, in effect as of the date of certification, which have been adopted pursuant to RCW

80.50.040 as now or hereafter amended as conditions to

be met prior to or concurrent with the construction or

operation of any energy facility;

The effect of a certification, when executed, is set out in RCW

80.50.120 as follows:

Subject to the conditions set forth therein any

certification shall bind the state and each of its

departments, agencies, divisions, bureaus, commissions, boards and political subdivisions, whether a

member of the councilor not, as to the approval of

the site and the construction and operation of the

proposed energy facility.
.

. --OFFICE OF THE ATTORNEY GENERAt-\ '. ~' .,

~.,._..•

Mr. Donald W. Moos, Director

September 7, 1982

Page 8

The certification shall authorize the person

named therein to construct and operate the proposed

energy facility subject only to the conditions set

forth in such certification.

The issuance of a certificationn shall be in

lieu of any permit, certificate or similar document

required by any department, agency, division, bureau,

commission, board, or political subdivision of this

state, whether a member of the councilor not.

- See, also, AGO 1975 No. 10. A certification must include conditions necessary to protect state and local interests affected by

construction and operation of an energy facility. RCW 80.50.100.

These interests are broad enough to include acceptable procedures

to guarantee that dangerous wastes are managed in an environmentally sound manner. RCW 80.50.010.

EFSEC has authority to adopt rules. RCW 80.50.040(1). Dangerous waste management is not a subject covered in any detail

under rules adopted to date. See, e.g., WAC 463-42-490.

* * *

This concludes the Overview section of this statement. The

material which follows was taken from EPA guidance documents with

the exception of all "citations" and "remarks" which were supplied

by the undersigned. The organization of the material which

follows was derived from EPA materials.

I. IDENTIFICATION AND LISTING OF DANGEROUS WASTES

State statutes and regulations provide control over a universe of hazardous waste generated, transported, treated, stored,

and disposed of in the state at the time of program approval

which is nearly identical to that which would be controlled by

the Federal program under 40 CFR 261.

Citation of Laws: RCW 70.105.020(1) (Enacted 1976)

RCW 70.105.130 (1980)

WAC 173-303-070 (Adopted 1982)

WAC 173-303-071 (1982)

WAC 173-303-075 (1982)

WAC 173-303-080 (1982)

WAC 173-303-081 (1982)

WAC 173-303-082 (1982)

WAC 173-303-083 (1982)
--- ": ..·>~JFFI(E OF THE ATTORNEY GENERF........

Mr. Donald W. Moos, Director

September 7, 1982

Page 9

WAC 173-303-084 (1982)

WAC 173-303-090 (1982)

WAC 173-303-100 (1982)

WAC 173-303-101 (1982)

WAC 173-303-102 (1982)

WAC 173-303-103 (1982)

WAC 173-303-9901 (1982)

WAC 173-303-9~02 (1982)

WAC 173-303-9903 (1982)

WAC 173-303-9904 (1982)

WAC 173-303-9906 (1982)

WAC 173-303-9907 (1982)

Remarks: Washington statutes which authorize dangerous waste

regulation" do not specify that dangerous wastes shall be designated through any particular procedure. The statutes require that

rules be adopted, RCW 70.105.020(1), but whether designation

must be by list (for example) was left to the discretion of the

Department of Ecology. Whatever procedure was adopted by the

Department, the key issue was whether a waste exhibited the

characteristics of DW or EHW, as defined in RCW 70.105.010(6).

If so, then that waste was regulated.

The procedure used to designate solid waste as dangerous

waste und~r washington law is identical to 40 CFR 261 with respect

to dangerous waste sources, WAC 173-303-082 and 173-303-9904, discarded chemical products, WAC 173-303-081 and 173-303-9903, and

dangerous waste characteristics. WAC 173-303-090. The procedure

used in Washington to designate dangerous wastes differs somewhat

from 40 CFR 261 in the treatment of dangerous waste mixtures, WAC

173-303-084 and in designation by dangerous waste criteria, WAC

173-303-101 through 173-303-103. More wastes may be subject to

regulation under Chapter 173-303 WAC than are regulated by EPA as

a result of these differences. (See discussion below).

A. Mixtures

Under WAC 173-303-084, a waste mixture is a waste which has

not been designated as a Discarded Chemical Product, a Dangerous

Waste Source or an Infectious Dangerous Waste. Dangerous waste

mixtures are subject to regulation as mixtures if, generally, they

exhibit specified levels of toxicity, WAC 173-303-084(5), persistence, WAC 173-303-084(6), or concentrations of carcinogens, WAC

173-303-084(7). Even if a waste mixture does not meet the standards

in WAC 173-303-084 it may be regulated if it exhibits any of the DW

characteristics. WAC 173-303-070(3)(a).
.--:-'\)FFICE OF THE ATTORNEY GENERA.~'" ".-••.."J '~,~,,,J/

Mr. Donald W. Moos, Director

September 7, 1982

Page 10

B. Criteria

A dangerous waste may be designated by criteria in lieu of

designation by list. WAC 173-303-070(3)(b), 173-303-9901, 173-303-

9902. The criteria include toxicity, WAC 173-303-101, persistence,

WAC 173-303-102, and concentration of carcinogens, WAC 173-303-103.

In addition, the dangerous waste characteristics, i.e., ignitability, corrosivity, reactivity, and EP toxicity, must be analyzed

during the designation-by~criteriaprocedure. WAC 173-303-070-

(3)(b). Whether to designate solid wastes by criteria or by

list is left to the generator's discretion. WAC 173-303-070(3).

The Department of Ecology may order a generator to check his

wastes against the criteria in certain situations. WAC 173-303-

070(4). A generator of wastes designated by list is required to

designate by characteristic or criteria or both if he has knowledge

that his wastes exhibit any DW characteristics or meet any DW

criteria. WAC 173-303-070( 5).

Use of the criteria designation procedure is not expected to

permit wastes regulated under 40 CPR 261 to escape regulation under·

ch. 173-303 WAC. The dangerous waste lists (sources and discarded

chemical products) and characteristics adopted by EPA have been

adopted by the Department of Ecology. A generator of a listed waste

could, under WAC 173-303-070(3), decide to designate by criteria

instead of by list. This would not cause regulation inconsistent

with EPA's approach; if the waste met any of the criteria (which

include characteristics adopted by EPA at 40 CFR 261.20), then

it is regulated. If the waste does not meet any criteria f then it

is not, in fact, a threat to health or the environment and should

not be regulated as if it was hazardous. Moreover, if a generator

can establish that a waste designated by list does not meet any of

the criteria, then he may be able to petition successfully for an

exemption for regulation. WAC 173-303-910(3). This WDOE petition

procedure is comparable to the EPA approach published at 40 CFR

260.22. .

II. STANDARDS FOR GENERATORS OF HAZARDOUS WASTE

A. State statutes and regulations provide coverage of all

the generators of hazardous waste which is regulated under the

State program.

Citation: RCW 70.105.130 (1980)

WAC 173-303-170 (1982)

Remarks: Certain categories' of wastes are categorically

excluded from regulation under ch. 173-303 WAC. See WAC 173-303-

071. Generators of excluded wastes are thus unreguIated under
.. ·--DFFICE OF THE ATTORNEY GENERt' -'.

Mr. Donald W. Moos, Director

September 7, 1982

Page 11

ch. 173-303 WAC, insofar as an excluded waste is concerned. The

state categorical exclusions parallel 40 CFR 261.4. Small quantity

generators are also excluded from regulation; the maximum quantities thus excluded are 400 Ib-DW and 2.2 Ib-EHW per month or per

batch.

B. State statutes and regulations require all generators

of waste to determine whether their waste is hazardous.

Citation: RCW 70.105.130 (1980)

WAC 173-303-170(1) (1982)

Remarks: As a general rule, all generators must determine

whether their waste is dangerous. A generator of solid waste may,

however, apply to the Department of Ecology for a "certificate of

designation." WAC 173-303-075. A certificate of designation

amounts basically to an official statement by the Department that

a particular waste is or is not designated as a dangerous waste

under ch. 173-303 WAC. WAC 173--303-075( 3). A generator seeking

a certificate must submit an application in a form prescribed

by the Department. WAC 173-303-075(4).11 This application must,

of course, include data sufficient to accurately designate the

waste involved according to WAC 173-303-080 through 173-303-103.

WAC 173-303-075(4)(b). If a certificate of designation is issued

which states that a waste is designated, then the generator must

comply with all pertinent requirements of ch. 173-303 WAC. WAC

173-303-075(2)(c). A generator must comply with applicable

requirements of ch. 173-303 WAC while an application for a

certificate is pending. WAC 173-303-075(2)(d).

C. State statutes and regulations require all generators

covered by the state program to comply with reporting and recordkeeping requirements substantially equivalent to those found at

40 CFR 262.40 and 40 CFR 262.41.

Citation: RCW 7 0 . 1 0 5 . 1 3 0 ( 2) (c ) ( i i ) ( 1 9 80 )

WAC 173-303-210 (1982)

WAC 173-303-220 (1982)

D. For hazardous wastes that are accumulated by such generators for short periods of time prior to shipment, state

statutes and reguJations require that such generators accumulate

1/ The application form will be prescribed in guidelines to

be adopted by the Department; the Department was required

to publish said guidelines by July 10, 1982.

WAC 173-303-075(4) (a).
~FFICE OF THE ATTORNEY GENERA'-~· .....",,~

Mr. Donald W. Moos, Director

September 7, 1982

Page 12

such wastes in a manner that does not present a hazard to human

health or the environment.

Citation: RCW 7 0 • 1 0 5 . 1 30 ( 2 ) (l 9 8 0 )

WAC 173-303-200 (1982)

E. Respecting international shipments, state laws and regulations provide requirements which are substantially equivalent

to those at 40 CFR 262.50, except that advance notification of

'international shipment, as required by 40 CFR 262.50(b)(1), shall

be filed with the Administrator.

Citation: RCW 70.105.130 (1980)

WAC 173-303-230(1) (1982)

WAC 173-303-230(2) (1982)

F. State statutes and regulations require that such generators of hazardous waste who transport (or offer for transport)

such hazardous waste off-site use a manifest system that ensures

that inter- and intrastate shipments of hazardous waste are

designated for delivery and, in the case of intrastate shipments,

are delivered only to facilities that are authorized to operate

under an approved state program or the federal program.

Citation: RCW 70. 105 . 130 ( 2 )( c) (1980)

WAC 173-303-141 (1982)

WAC 173-303-180 (1982)

G. The State manifest system requires that:

1. The manifest itself identify the generator, transporter, designated facility to which the hazardous wastes will be

transported, and the hazardous waste being transported.

Citation: RCW 70.105.130(2) (1980)

WAC 173-303-180(1) (1982)

2. The manifest accompany all wastes offered for transport except in the case of shipments by rail or water specified in

40 CFR 262.23(c) and 263.20(e).

Citation: RCW 70. 105 .130 ( 2) (c) (1980)

WAC 173-303-180(3) (1982)

3. Shipments of hazardous waste that are not delivered

to a designated facility are either identified and reported by

the generator to the state in which the shipment originated or

are independently identified by the state in which the shipment

originated.
r:-~FFICE OF THE ATTORNEY GENERAJ--.

Mr. Donald W.· MOOS~:' Director

September 7, 1982

Page 13

Citations: RCW 70.105.130(2)(c) (1980)

WAC 173-303-220(2) (1982)

Remarks: Exception reports, ordinarily, must be submitted

when the generator has not received a signed copy of a manifest

within 45 days after the date the waste was accepted by the

initial transporter. The Department reserves the right, however,

to require a generator to submit exception reports in less than

45 days if it finds that the generator frequently or persistently

endangers public health or the environment through improper waste

shipment practices. WAC 173-303-220(2) (d). A generator subject

to an accelerated reporting period would have to be notified of

this finding by order. "

4. There is notification of undelivered interstate

shipments to the state in which the facility designated on the

manifest is located and to the state in which the shipment may

have been delivered" (or EPA for unauthorized states).

Remarks: This notice is not required by regulations adopted

to date by the Department of Ecology.

III. STANDARDS FOR TRANSPORTERS OF HAZARDOOS WASTE

A. State statutes and regulations provide coverage of all

the transporters of hazardous waste which is regulated under the

state program.

Citation: RCW 70.105.130 (1980)

WAC 173-303-240 (1982)

B. State statutes and regulations require all transporters

covered by the state program to comply with recordkeeping requirements substantially equivalent to those found at 40 CFR 263.22.

Citations: RCW 70.105.130 (1980)

WAC 173-303-260 (1982)

C. State statutes and regulations required such transporters of hazardous waste to use a manifest system that ensures that

inter- and intrastate Shipments of hazardous waste are delivered

only to facilities that are authorized under an approved state

program or federal program.

Citations: RCW 70.105.130 (1980)

WAC 173-303-141 (1982)

WAC 173-303-180 (1982)

WAC 173-303-250 (1982)
r">, ___

.~>bFFICE OF THE ATTORNEY GENERf .. :\

Mr. Donald W. MOos, Director

September 7, 1982

Page 15

IV. STANDARDS FOR HAZARDOUS WASTE STORAGE, TREATMENT AND

DISPOSAL FACILITIES

State statutes and regulations provide standards applicable

to storage, treatment, and disposal facilities which are substantially equivalent to 40 CFR 265. State law prohibits the operation

of facilities not in compliance with such standards. These

standards include:

A. Preparations for and prevention of releases of hazardous waste controlled by the state and contingency plans and

emergency procedures to be followed in the event of such

hazardous waste.

Citations: RCW 70.105.130 (1980)

WAC 173-303-340 (1982)

WAC 173-303-350 (1982)

WAC 173-303-400 (1982)

Remarks: Facility standards equivalent to 40 CFR 265

parts C and D appear in WAC 173-303-340 and 173-303-350 as standards applicable to all owners and operators of TSD facilities.

These administrative code sections are adopted by reference as

Interim Status Facility Standards. WAC 173-303-400(3)(a).

The state Interim Status Facility Standards include fou~

categorical exclusions. WAC 173-303-400(2) (c). These exclusions

are consistent with RCRA Interim Status Standards, 40 CFR 265.1(c),

although the state rules do not expressly exclude as many TSD

situations. See, e.g., 40 CFR 265.1(c)(5).

B. Closure and post-closure requirements.

Citations: RCW 70.105.130 (1980)

WAC 173-303-400 (3)

..... ..

Remarks: Interim Status Standards published at 40 CFR 265

Subparts G and H have been adopted by reference as Washington rules.

WAC 173-303-400(3). This adoption by reference is limited to

existing federal rules; amendments to federal rules enacted after

adoption of the state rules, i.e., after February 10, 1982, are

not incorporated into Washington rules absent further action by

the Department of Ecology. See, State v. Dougal, 89 Wn.2d 118

(1977). ---

Interim status facilities are required to comply with WAC 173-

303-400(3). WAC 173-303-400(2), 173-303-815(2)(a) .
"-

-r .~ r.~.;.

"-' OFFICE OF THE ATTORNEY GENERALMr. Donald W. Moos, Director

September 7, 1982

Page 16

C. Ground water monitoring.

Citations: RCW 70.105.130 (1980)

WAC 173-303-400(3) ri ssz:

Remarks: Interim Status Standards published at 40 CFR 265

Subpart F have been adopted by reference with very minor changes.

WAC 173-303-400(3)(b). This adoption is only effective for

existing federal rules, as noted above.

The Department of Ecology has authority under ch. ~0.48 RCW

to order ground water monitoring or remedial action on a case-bycase basis. RCW 90.48.120. Any such order must be predicated on

a finding by the Department that a person is violating or is

about to violate ch. 90.48 RCW. A finding that, e.g., a TSD

facility operator is allowing harmful chemical contamination of

ground water could serve as the basis for an order under RCW

90.48.120. Any such order is appealable. See ch. 43.21C RCW and

RCW 34.04.130.

D. Security to prevent unknowing and unauthorized access to

the facility.

Citations: RCW 70.105.130 (1980)

WAC 173-303-310 (1982)

E. Facility personnel training~

Citations: RCW 70.105.130 (1980)

WAC 173-303-330 (1982)

F. Inspection, monitoring, recordkeeping, and reporting.

Citations: RCW 70.105.130 (1980)

WAC 173-303-320 (1982)

G. Compliance with the manifest system including the

requirement that the facility owner or opertor or the state in

which the facility is located must return a copy of the manifest

to the generator or to the state in which the generator is

located indicating delivery of the waste shipment.

Citations: RCW 70.105.130 (1980)

WAC 173-303-370 (19ti2)

H. Other facility standards to the extent that they are

included in 40 CFR 264, 265, and 266.
'~FFICE OF THE ATTORNEY GENERP.·~· :-<'" --'

Mr. Donald W. Moos, Director

September 7, 1982

Page 17

Citations: RCW 70.105.130 (1980)

WAC 173-303-280 (1982)

WAC 173-303-290 (1982)

WAC 173-303-300 (1982)

WAC 173-303-310 (1982)

WAC 173-303-320 (1982)

WAC 173-303-330 (1982)

WAC 173-303-340 (19d2)

WAC 173-303-350 (1982)

WAC 173-303-360 (1982)

WAC 173-303-370 (1982)

WAC 173-303-380 (1982)

WAC 173-303-390 (1982)

WAC 173-303-395 (1982)

WAC 173-303-400 (1982)

WAC 173-303-500 (1982)

WAC 173-303-610 (1982)

WAC 173-303-620 (1982)

WAC 173-303-630 (1982)

WAC 173-303-640 (1982)

WAC 173-303-650 (1982)

WAC 173-303-660 (1982)

wAC 173-303-670 (1982)

The Department of Ecology rules incorporate provisions nearly

identical to 40 CFR 264 Subparts B through o. See WAC 173-303-280

through 173-303-395, and WAC 173-303-610 throug~73-303-670. Much

of 40 CFR Part 265, i.e., Subparts F through R, has been adopted by

reference with minor changes. WAC 173-303-400. Those subparts of

40 CFR Part 265 which were not adopted by reference in WAC 173-303-400,

i.e., Subparts A through E, have been incorporated elsewhere in

nearly identical form. See, WAC 173-303-2dO through 173-303-39S.

v. INSPECTIONS

State law provides authority for officers engaged in compliance evaluation activities to enter any conveyance, vehicle, facility, or premises subject to regulation or in which records relevant

to program operation are kept in order to inspect, monitor, or

otherwise investigate compliance with the state program including

compliance with permit terms and conditions and other program

requirements. (States whose law requires a search warrant prior

to entry conform with this requirement.)

Citations: RCW 70.105.130 (1980)

RCW 90.48.090 (1945)

WAC 173-303-810(10) (1932)
/""""--

.. ,)FFICE OF THE ATTORNEY GENERJ{ -..' ~. ".

Mr. Donald W. Moos, Director

September 7, 1982

Page 18

Remarks: The Department is granted authority to enter "establishments regulated under this section for the purposes of inspection, monitoring, and sampling .•. " by RCW 70.105.130(d). The

"establishments" referred to would include any dangerous waste generator, transporter, or TSD facility subject to regulation under

RCW 70.105.130 and ch. 173-303 WAC.~/ In addition, the department

and its agents have authority to enter on property in order to

investigate watei pollution or possible water p611ution. RCW

90.48.090. These statutory authorities are limited by the requirement to obtain a search warrant unless entry is ~btainedby consent. Any TSD facility permitted under ch. 173-303 WAC must

be open to inspection by representatives of the Department as a

condition of holding a permit. WAC 173-303-810(10).

VI. ENFORCEMENT REMEDIES

State statutes and regulations provide the following:

A. Authority to restrain immediately by order or by suit

in state court any person from engaging in any unauthorized

activity which is endangering or causing damage to public health

or the environment.

Citation: RCW 70.105.120 (1980)

~/ The Washington State Patrol has authority to inspect any

"motor carriers" vehicle transporting hazardous mat~rial.

The chief of the Washington state patrol shall

direct the necessary qualified personnel to inspect

the cargo of any motor carriers vehicle transporting hazardous material, inspect for proper

securing, and inspect for the combined loading of

cargo which would be inconsistent with the provisions of Title 49 CFR, parts laO through 199.

Authorized personnel inspecting loads of hazardous

material shall do so in the presence of a representative of the motor carrier. Seal and locking

devices may be removed as necessary to facilitate

the inspection. The seals or locking devices

removed shall be replaced by the Washington state

patrol with a written form approved by the chief to

certify seal or locking device removal for inspection of the cargo. RCW 46.48.185.
· . ...-...... ...-.

.. JFFICE OF THE ATTORNEY GENER/ ..".

Mr. Donald W. Moos, Director

September 7, 1982

Page 19

B. Authority to sue in courts of competent jurisdiction to

enjoin any threatened or continuing violation of any program

requirement.

Citation: RCW 70.105.120 (1980)

C. Authority to assess or sue to recover in court civil

penalties in at least the amount of $1,000 per day for any

program violation or to seek criminal remedies including fines in

at least the amount of $1,000 per day for any program violation.

Citations: RCW 70.105.080 (1976)

RCW 70.105.090 (1976)

Remarks: Civil penalties in amounts up to $1,000 per day

may be assessed for any violation of RCW 70.105.010 through

70.105.080 or ch. 173-303 WAC. RCW 70.105.080. A penalty, once

assessed, may be remitted or mitigated by the Department of

Ecology upon timely application made by the person penalized.

Whether a request for remission or mitigation will be granted is

decided by the Department in its discretion and may be sUbject to

such terms as will serve the purpose of ch. 70.105 RCW. Any

penalty imposed is subject to review by the Pollution Control

Hearings Board in accordance with ch. 43.21B RCW. RCW 70.105.0aO.

Criminal penalties may be imposed for violation of RCW 70-

.105.010 through 70.105.090 or ch. 173-303 WAC. RCW 70.105.0~0.

A scheme of enforcement authorities such as included in

RCW 70.105.080 and 70.105.090 has been upheld against constitutional challenge. Yakima County Clean Air Authority v. Glascam

Builders, Inc., 85 Wn.2d 255 (1975); Barry and Barry v. Department

of Motor Vehicles, 81 Wn.2d 155 (1972); Rody v. Hollis, 81 Wn~2d

88 (1972).

VII. PUBLIC PARTICIPATION IN THE STATE ENFORCEMENT PROCESS

State laws and regulations provide for public participation

in the State enforcement process by providing either:

A. Authority which allows interventlon as of right in any

civil or administrative action to obtain the remedies specified

in VI above by any citizen having an interest which is or may be

adversely affected; or

B. Assurances that the state agency or enforcement

authority will:
--"1FFICE OF THE ATTORNEY GENERpr-

. . Mr. Donald W. Moos, Director

September 7, 1982

Page 20

(1) Investigate and provide written response to all citizen

complaints duly submitted;

(2) Not oppose intervention by any citizen where permissive

intervention may be authorized by statute, rule, or regulation;

and

(3) Publish and provide at least 30 days for pUblic comment

on any proposed settlement of a state enforcement action, except

in a Case where a settlement requires some immediate action

(e.g., cleanup) which if otherwise delayed could result in

substantial damage to either public health or the environment.

Citation: RCW 70.105.130 (1980)

WAC 173-303-900 (198.2)

Remarks: The Department of Ecology does not have the

authority to guarantee intervention as of right in civil or

administrative actions to remedy violations of ch. 70.105 RCW or

ch. 173-303 WAC. As noted above, the Department's ability to

assess civil penalties against violators is limited by the violator's right to appeal to the Pollution Control Hearings Board

(PCAB). RCW 70.105.080. The PCHB is independent of the Department of Ecology. See ch. 43.218 RCW. The PCAB hearing rules

include a provision-Tncorporating by reference the Civil Rules

for Superior court. WAC 371-08-031(2). Civil Rule 24(a), which

governs intervention as a matter of right, states:

(a) Intervention of Right. Upon timely application anyone shall be permitted to interene in an

action: (1) when a statute confers an unconditional

right to intervene; or (2) when the applicant claims

an interest relating to the property or transaction

which is the subject of the action and he is so

situated that the disposition of the action may as

a practical matter impair or impede his ability to

protect that interest, unless the applicant's

interest is adequately represented by existing

parties.

Civil Rule 24 also limits the Department's power to guarantee

intervention in a court action brought by the Attorney General

under RCW 70.105.120.

Intervention as of right under CR 24(a)(2) has been allowed

to persons " ....who feel themselves aggrieved ... " Loveless v.

Yantis, 82 Wn.2d 754, 758 (1973), and to an organization whose

members are injured. Id. This standard does not provide exactly

the protection requiredin 40 CFR 123.128(f)(2)(i), e.g., an

application to intervene may be denied because the applicant's

interest is adequately represente~ by existing parties. More-
.' ..

..........

)FFICE OF THE ATTORNEY GENERA

Mr. Donald W. Moos, Director

September 7, 1982

Page 21

over, the Department has no authority to decide the issue; the

PCHB 'or superior court ruling would control their respective

jurisdictions.

While unable to guarantee intervention as of right, the

Department has, by regulation, expressed its intent to " ...foster

public awareness, information and consultation, and to respond . actively to public concerns. "WAC 173-303-900. This commitment does respond to the requirements in 40 CFR 123.128(f){2){ii)

albeit without reference to the exact language of that regulation.

VIII. AUTHORITY TO SHARE INFORMATION WITH EPA

State statutes and regulations provide authority for any

information obtained or used in the administration of the State

program to be available to EPA upon request without restriction.

Citation: Ch . 4 2 . I 7 RCW (I 9 73 )

RCW 43.21A.160 (1970)

Remarks: The Public Disclosure Act (ch. 42.17 RCW) provides,

in part, that each agency of the State of Washington shall make

available for public inspection and copying all public records.

RCW 42.17.260. A "public record" includes:

" .any writi~g containing information relating to the conduct of government on the performance

of any governmental or proprietary function prepared,

owned, used, or retained by any state or local agency

regardless of physical form or characteristics."

RCW 42.17.020(26).

"Writing" is defined to include every means of recording any form

of communication or representation. RCW 42.17.020(28).

The Department's considerable authority to share information

is slightly limited by a procedure available to enjoin examination of any specific public record. RCW 42.17.330. This procedure requires a motion and affidavit in superior court. The

court may enjoin examination if it finds that the examination

"would clearly not be in the public interest and would substantially and irreparably damage vital governmental functions."

RCW 42.17.330. While we cannot guarantee in advance that examination of any particular public record will not be enjoined, this

legal standard is clearly quite stringent.
,--... --- ')FFICE OF THE ATTORNEY GENER,l · '°"'0"

Mr. Donald W. Moos, Director

September 7, 1982

Page 22

The Department of Ecology enabling act, ch. 43.21A RCW,

authorizes a procedure to insure that information on unique

productive piocesses may be kept confidential if disclosure would

hurt the owner's competitive position. RCW 43.21A.160. Whether

confidentiality is ordered lies in the discretion of the

Director of the Department.

IX. STATE AUTHORITY TO REGULATE ACTIVITIES OF INDIANS ON

RESERVATION LANDS

State power to regulate activities of Indians on reservation

lands has often been obtained from an act of Congress authorizing

such regulation.7/ State regulatory authority may be expressly

granted 8/ or may be granted by implication. Colorado River

Water Conservation District v. United States, 424 U.S. 800 (1976)

Congressional intent, whether stated expressly or implicitly,

is controlling. Id.

The federal hazardous waste regulatory program established

by RCRA includes a provision which allows qualified state programs to operate in lieu of federal regulation. 42 U.S.C. 6926.

This federal provision itself does not limit the geographic scope

of a qualified state program. Further, RCRA defin~s "person" to

include an "individual" without limitation as to Indian or nonIndian. 42 U.S.C. 6903(15). "Person" also includes "municipality,"

id., and "municipality" in turn is defined to include" ...an

Indian tribe or authorized tribal organization. II 42 U.S.C.

Jj

~/

In certain circumstances a state may regulate Indian activities conducted within reservation boundaries without Congressional- consent. Puyallup Tribe v. Washington Game Department,

433 U.S. 165 (1977). See, also, Washington v. Confederated

Tribes of the Colville-rndian Reservation, 447 U.S. 134 (1980).

Likewise, a state is authorized to regulate non-Indian activity

within reservation boundaries without benefit of any federal

statutory authorization. Montana v. United States, 450 U.S.

544, 101 S.Ct. 1245 (1981), and Mescalero Apache Tribe v. New

Mexico, 459 U.S.I035, 101 S.Ct. 1752 (1981). See Mescalero

Apache Tribe v. Jones, 411 U.S. 145, 148 (1973); William~ v. Lee,

358 U.S. 217,220 (1959); and most recently, United States v.

Anderson, et al., No. 3643 (E.D. Wash., August 23, 1982).

Washington v. Confederated Bands and Tribes of the Yakima

Indian Nation, 439 U.S. 463 (1979).
-<:>FFICE OF THE ATTORNEY GENERA!'~

M.r. Donald W. MOO~,·,j Director

September 7, 1982

Page 23

6903(13). Under RCRA, a state with a qualified hazardous waste

regulatory program may apply for and obtain authorization to operate

its program to regulate activities of Indians on reservation lands.

The Department of Ecology has authority under state law to

adopt a dangerous waste regulatory program to operate in lieu of the

federal program in washington. RCW 70.105.130. The Department's

authority is not limited to particular geographic areas of the

state .. Further, "person" is defined as ". .any person, firm,

association, county,' public or municipal or private corporation,

agency, or other entity whatsoever." RCW 70.0).010(7). This

language obviously does not delineate between Indian and non-Indian.

When authorized by EPA pursuant to 42 U.S.C. 6926, the Department

may regulate dangerous waste management activities by Indians on

reservation lands.

X. STATE PERMITTING REQUIREMENTS

A. State statutes and regulations prohibit the construction

of new facilities or the operation of existing facilities engaged·

in the storage of hazardous waste in containers or in the storage

or treatment of hazardous waste in tanks, surface impoundments,

or waste piles without a permit and the State allows the above

named facilities which would qualify for interim status under the

Federal program to remain in operation pending peimit action if

they comply with State facility standards substantially equivalent to EPA interim status standards at 40 CFR Part 265.

Citation: RCW 70.105.130 (1980)

WAC 173-303-400 (1982)

WAC 173-303-800 (1982)

WAC 173-303-805 (1982)

WAC 173-303-815 (1982)

Remarks: The owner or operator of any facility that treats,

stores or disposes (TSD) of dangerous waste or extremely hazardous

waste must obtain a permit in accordance with WAC 173-303-800

through 173-303-845.~/ This requirement applies to a facility

engaged in storage or treatment of dangerous waste in containers,

tanks, surface impoundments or waste piles.

2/ Certain categories of TSD facilities are deemed to have a

permit by rule. WAC 173-303-805(1). This treatment is

substantially equivalent to 40 CFR 122.26 and 40 CFR 122.27.
·.

.' -

...-t:;)FFICE OF THE ATTORNEY GENERA.r-"\

Mr. Donald W. MOos, Director

September 7, 1982

Page 24

Physical construction of a new TSD facility may not begin

until the owner or operator has submitted Parts A and B of the

permit application and has received a permit. WAC 173-303-815(3).

The owner or operator of a new facility under construction prior

to adoption of ch. 173-303 WAC, i.e., prior to February 10, 1982,

may continue with construction but a permit application must

have been submitted by May 11, 1982, i.e., 90 days after adoption

of ch. 173~303 WAC. WAC 173-303-815(3) (c).

A facility operating under interim status gained under RCRA

is deemed to have interim status under ch. 173-303 WAC, provided

that state interim status facility standaros, WAC 173-303~4~0,

are met. WAC 173-303-815(2) (a).!QI State interlm status facll1ty

standards are substantially equivalent to 40 CFR Part 265.

The owner or operator of a TSD facility which receives wastes

regulated by ch. 173-303 WAC but not regulated under 40 CFR Part

261 and which is in existence III on March 12, 1982 (the effective date of ch. 173-303 WAC) may obtain an interim status permit.

In order to qualify the owner or operator must have submitted

notice, WAC 173-303-060, by May 11, 1982 (90 days after promulgation) and have submitted a permit application Part A by August 9,

1982 (180 days after promulgation). WAC 173-303-815(2). TSD

facilities receiving wastes regulated under ch. 173-303 WAC but

not regulated under 40 CFR Part 261 must also have complied with

101

III

Interim status standards included in Chapter 173-303 WAC do

not apply to persons disposing of dangerous waste subject to a

permit issued under the Marine Protection, Research and Sanctuaries Act; persons disposing of dangerous waste by underground

injection which is permitted under the Safe Drinking Water

Act; the owner or operator of a POTW who treats, stores, or

disposes of dangerous wastes; the o~uer or operator of a

totally enclosed treatment facility; and generators accumu La t>

ing waste for less than ninety days except to the extent WAC

173-303-200(6) provides otherwise. WAC l73-303-400(2)(c).

These types of facilities are also specifically excluded from

the RCRA permit program. 40 CFR 122.2(d)(2).

"Existing TSD facility" is defined as " ... a facility which

was in operation or for which construction commenced on or

before [March 12, 1982)." WAC 173-303-040(102). The

language defining whether "construction commenced" is identical to 40 CFR 122.3.
.'

......" ..- ···OFFICE OF THE ATTORNEY GENERA;:.:::

Mr. Donald W. MOOS, Director

September 7, 1982

Page 25

interim status standards, WAC 173-303-400, by August 9, 1982.

WAC l73-303-400(2)(b).~1

B. State statutes and regulations require that facilities that would be deemed to have a Federal permit by rule

under 40 CFR 122.26 must obtain permits or are otherwise

subject to fully enforceable State standards which are substantially equivalent to Federal standards at 40 CFR 122.26.

Citation: RCW 70.105.130 (1980)

WAC 173-303-805(1) (1982)

Remarks: The relevant state rule, \-JAC 173-303-805(1), is

essentially identical to 40 CFR 122.26, except that totally

enclosed treatment facilities and elementary neutralization

or wastewater treatment units are also deemed to have a permit

by rule.

C. State statutes and regulations which allow exemptions from State permitting requirements do not apply to

persons other than those excluded by the Federal program at

40 CFR l22.2l(d)(2).

Remarks: Washington statutes and regulations do not

include any specific exemptions from TSD facility permitting

requirements which are not within the exclusions in 40 CFR

122.21(d) (2).

D. State statutes and regulations require that permits

be effective for fixed terms no greater than 10 years.

Citations: RCW 70.105.130 (1980)

WAC 173-303-825(2) (1982)

E. state statutes and regulations require that all

permits contain fully enforceable conditions that are

substantially equivalent to those at 40 CFR 122.7, 122,11,

122.28, and 122.29.

Citations: RC W 7 0 . 105 . 1 30 (1980)'

WAC 173-303-810 (1982)

F. Where State statutes and regulations authorize

permit variances, permits a~e required to contain enforceable requirements that· compliance be attained in fixed

.!l/ Subject to certain .categorical exclusions. WAC 173-303-

400(2)(c); see footnote nine, supra.
·. ,,--. '.

,,0FFICE OF THE ATTORNEY GENERA~~-·

Mr. Donald W. MOOS, Director

September 7, 1982

Page 26

schedules and as soon as possible. Schedules of compliance

are required where immediate compliance is not required._

Remarks: Washington statutes and regulations do not

include any provisions authorizing permit variances. Schedules of compliance are provided for in WAC 173-303-830(6).

G. State statutes and regulations provide that where

permits are transferred, the transferee must comply with

all requirements of the permit and the State must be

notified in advance of -the transfer.

Citations: RCW 70.105.130 (1980)

WAC 173-303-810(14)(c) (1982)

WAC 173-303-830(2) (1982)

H. State statutes and regulations authorize modification

of permits where alterations are made to a facility or to activities at a facility or where new information is received.

Citations: RCW 70.105.130 (1980)

WAC l73-303-830(3) (1982)

I. State statutes and regulations authorize termination

of permits for cause, including noncompliance with the permit,

misrepresentation of or failure to disclose all relevant facts

during permit issuance or the permit term and where the activity

endangers human health or the environment and can only be acceptably regulated by termination.

Citations: RCW 70.105.130 (1980)

WAC 173-303-820(4)

WAC 173-303-825(4)

(i)

(i i)

(iii)

Remarks: - Section WAC 173-303-820(4) authorizes termination

of interim status permits for cause. This section is substantially similar to 40 CFR 122.23(e) dealing- with termination of

interim status. Section WAC 173-303-825(4), authorizing termination of final permits for cause, is identical to 40 CFR l22.l6(a).

J. State statutes and regulations require that a facility

operating in interim status amend its application where changes

occur in:

the wastes handled at the facility;

processes and activities at the facility; and

facility ownership or operational control.
_. ~jFFICE OF THE ATTORNEY GENERA. ,.:

Mr. Donald W. Moos, Director

September 7, 1982

Page 27

Citations: RCW 70.105.130 (1980)

WAC 173-303-820(3) (1982)

K. If the state allows the use of emergency permits, state

statutes and regulations only allow such temporary emergency

permits in cases of imminent and substantial endangerment to human

health similar to those at 40 CFR 122.27.

Citations: RCW 70.105.130 (1980)

WAC 173-303-805(4) (1982)

XI. STATE PERMITTING STANDARDS

State statutes and regulations require that all permits

issued by the state require compliance with standards substantially equivalent to Federal standards at 40 CFR· Part 264 Subparts A through L. These standards include:

A. Preparedness for and prevention of releases of hazardous

waste controlled by the state, and contingency plans and emergency

procedures to be followed in the event of a release of such

haz ardous waste.

Citations: RCW 70.105.130 (1980)

WAC 173-303-340 (1982)

WAC 173-303-350 (1982)

WAC 173-303-360 (1982)

WAC 173-303-600 (1982)

WAC 173-303-800(4) (1982)

B. Security to prevent unknowing and unauthorized access

to the facility.

Citations: RCW 70.105.130 (1980)

WAC 173-303-310 (1982)

WAC 173-303-600 (1982)

WAC 173-303-800(4) (1982)

C. Facility personnel training.

Citations: RCW 70.105.130 (1980)

WAC 173-303-330 (1~82)

WAC 173-303-600 (1982)

WAC 173-303-800(4) (lS82)

D. Compliance with the manifest system including the

requirement that the facility owner or operator or the state in

which the facility is located must return a copy of the manifest
..

,~JFFICE OF THE ATTORNEY GENERA" .

Mr. Donald W. Moos, Director

September 7, 1982

Page 28

to the generator or to the state in which the generator is located

indicating delivery of the waste shipment.

Citations: RCW 70.105.130 (1980)

WAC 173-303-370 (1982)

WAC 173-303-600 (1982)

WAC 173-303-800(4) (1982)

E. Closure and postclosure care and financial requirements.

Citations: RCW 70.105.130 (1980)

WAC 173-303-600 (1982)

WAC 173-303-610 (1982)

WAC 173-303-620 (1982)

WAC 173-303-800(4) (1982)

F. Inspections, monitoring, recordkeeping, and reporting by

facility personnel.

Ci tat ions: RCW 70.105.130 (1980)

WAC 173-303-320 (1982)

WAC 173-303-370 (1982)

WAC 173-303-380 (1982)

WAC 173-303-390 (1982)

WAC 173-303-600 (1982)

WAC 173-303-800(4) (1982)

G. Use and management of containers .

. Citat ion s : RCW 70.105.130 (1980)

WAC 173-303-600 (1982)

WAC 173-303-630 (1982)

WAC 173-303-800(4) (1982)

H. Requirements for tanks.

Citations: RCW 70.105.130 (1980)

WAC 173-303-600 (19H2)

WAC 173~303-640 (1982)

WAC 173-303-800(4) (1982)

I. Requirements for surface impoundments.

Citations: RCW 70.105.130 (1980)

WAC 173-303-600 (1982)

WAC 173-303-650 (1982)

WAC 173-303-800(4) (1982)
'_0·'

· .. "-'5'FFICE OF THE ATTORNEY GENERP.~~\ ~.~

Mr. Donald W. Moos, Director

September 7, 1982

Page 14

Remarks: A person transporting dangerous waste~ "on-site"

(defined in WAC 173-303-040(58)) is not required to use the

manifest system. WAC 173-3-3-240(4).

Department of Ecology regulations direct that any person who

has dangerous waste intended for treatment, storage, or disposal

(TSD) may offer this waste only to a facility permitted under WAC

173-303-800 through 173-303-845. WAC 173-303-141. This language

does not apply to shipment of wastes to a facility that is outside

the jurisdiction of the State of Washington, e.g., a TSD facility

located in Oregon. Washington law thus does not require that

out-of-state shipments of dangerous waste be delivered only to

facilities approved under the federal program or a state program.

D. State statutes and regulations require that such transporter carry the manifest with all shipments except in the case

of shipments by rail or water specified in 40 CFR 263.20(e).

Citations: RCW 70.105.130(2)(c) (1980)

WAC 173-303-250(3) (1982)

WAC 173-303-250 (7) (1982)

WAC 173-303-250(8) (1982)

E. For hazardous wastes that are discharged in transit,

state statutes and regulations require such transporters to

notify appropriate state, local, and federal agencies of the

discharges and to clean up such wastes or to take action so that

such wastes do not present a hazard to human health or the

environment. Such requirements are substantially equivalent to

those found at 40 CFR 263.30 and .31.

Citations: RCW 70.105.130 (1980)

WAC 173-303-145 (1982)

WAC 173-303-270 (1982)

Remarks: The Department of Ecology regulations may cover

more spill or discharge situations than are presently covered by

40 CFR 263.30 and 40 CFR 263.31. WAC section 173-303-145(1)

applies when any dangerous waste " •.. or any material h av i nq the

properties of a dangerous waste, as described WAC 173-303-080

through 173-303-103 ... " is spilled or discharged. The basic

idea here is that a hazardous material spilled in transport will

be considered a waste unless it is recovered.
! ...

--":)FFICE OF THE ATTORNEY GENERp· ":

Mr. Donald W. MOOS, Director

September 7, 1982

Page 29

J. Requirements for waste piles.

Citations: RCW 70.105.130 (1980)

WAC 173-303-600 (1982)

WAC 173-303-660 (1982)

WAC 173-303--800(4) (1982)

XII. STATE PERMITTING PROCEDURES

A. State statutes and regulations require that all new

facilities for the storage of hazardous waste in containers-or

for hazardous waste storage or treatment in tanks, surface

impoundments or waste piles obtain a permit prior to beginning

physical construction of the facility. For existing facilities

legally in operation, the state requires completion of the permit

application process within a reasonable time.

Citations: RCW 70.105.130 (1980)

WAC 173-303-815 (1982)

Remarks: Permit applications for new TSD facilities must

be .submitted to the Department of Ecology at least 180 days before

physical construction begins. WAC 173-303-815( 3) (c). A permit

application covering a new facility for which construction began

prior to adoption of ch. 173-303 WAC must have been submitted by

May 11, 1982 (90 days after adoption of ch. 173-303 WAC).

The owner or operator of a TSD facility existing on March 12,

1982 (effective date of ch. 173-303 WAC) may obtain an interim

status permit. (Facilities obtaining interim status undet RCRA

ar~ deemed to have interim status under ch. 173-303 WAC). Application for interim status under ch. 173-303 must have been submitted

by August 10, 1982 (180 days after promulgation). WAC 173-303-81:>-

(2)(b). The owner or o~erator of an existing TSD facility must

submit permit application Part B within six months after written

request from the department. \"iAC 173-303-815(2)(d).

B. State statues and regulations require that permit ap~lications contain information that is substantially equivalent to

information required at 40 CFR 122.4, 122.24 and 122.25.

Citations: RCW 70.105.130

WAC 173-303-815

Remarks: The department, under WAC 173-303-815(8), may

require that Part B permit applications state all necessary

information including that required under 40 CFR 122.25.
... 4FFICE OF THE ATTORNEY GENERAl--,

Mr. Donald W. Moos, Director

September 7, 1982

Page 30

C. State statutes and regulations which provide for the

protection of confidential information do not allow the name and

address of the permit applicant or permittee to be entitled to

such treatment.

Remarks: Access to permit information is covered generally

in remarks above. See, section VIII Authority to Share Information with EPA. As stated there, a procedure in superior court may

be invoked to enjoin examination of any "public record." The court

may enjoin examination if it finds that the examination "would

clearly not be in the public interest and would substantially and

irreparably damage vital governmental functions.'1 RCW 42.17.330.

Whether disclosure of the name and address of a permit applicant

or permittee would ever be enjoined cannot now be predicted with

absolute certainty, although the legal standard in RCW.42.17.330

is clearly quite stringent.

D. State statutes and regulations require that permit applications be signed by persons authorized to bind the owner and

operator of the facility under state law and contain a certification that the information contained in the application is true

and accurate.

Citations: RCW 70.105.130 (1980)

WAC 173-303-810(12) (1982)

WAC 173-303-810(13) (1982)

E. State statutes and regulations require that the state

make available for public comment prior to pe~mit issuance information substantially equivalent to the required at 40 CFR 124.6 and

124.8. That information may be contained in a draft permit.

Citations: RCW 70.105.130 (1980)

WAC 173-303-840 (1982)

F. State statutes and regulations require that notice

be issued to the public of preparation of the document containing

the information at XII E. or draft permit and of scheduling of a

public hearing.

Citations: RCW 70.105.130 (1980)

WAC 173-303-840(3) (1982)

G. State statutes and regulations require that the public

notice contain information substantially equivalent to that in 40

CFR 124.10(d)(1)(i)-(v) and (ix), 124.10(d)(2) and 124.10(e).

Citations: RCW 70.105.130 (1980)

WAC 173-303-840(4) (1982)
... ~OFFICE OF THE ATTORNEY GENERAJ-·. .J -.... Mr. Donald W. Moos, Director

September 7, 1982

Page 31

H. State statutes and regulations require that the notice

be published in major local newspapers and broadcast over local

radio stations and be sent to each unit of local government having

jurisdiction over the area in which the proposed facility seeks to

locate and other state agencies with authority over facility

construction or operation.

Citations: RCW 70.105.130 (1980)

WAC 173-303-840(3) (1982)

I. State statutes and regulations allow any interested

person to submit written comments.

Citations: RCW 70.105.130 (1980)

WAC 173-303-840(4)(b) (1982)

J. State statutes and regulations provide for informal

public hearings if the state receives written opposition anu a

request for a hearing within. 45 days of publication of the notice.

Citations: RCW 70.105.130 (1980)

WAC 173-303-840(5) (19H2)

K. State statutes and regulations require that such public

hearings allow the presentation of written and oral comments anu

be conducted in a manner substantially equivalent to the requirements of 40 CFR 124.17.

Citations: RCW 70.105.130 (1980)

WAC 173-303-840(5) (1982)

WAC 173-303-840(9) (1982)

L. State statutes and regulations require that written

responses to significant comments be made available to the public.

Citations: RCW 70.105.130 (1980)

WAC 173-303-840(9)(c) (1982)

XIII. STATE PERMITTING REQUIREMENTS - INCINERATOR FACILITIES

State statutes and regulations prohibit the operation of

incinerator facilities that treat hazardous waste if such facilities do not have a permit and the state allows such facilities

which would qualify for interim status under the Federal program

to remain in operation pending permit action if they comply with

state facility standards substantially equivalent to EPA's interim

standards at 40 CFR Part 265.
,-----OFRCE OF THE ATTORNEY GENER,Q)-,\ ..... :

Mr. Donald W. Moos, Director

September 7, 1982

Page 32

-~........,:.-

Citations: RCW 70.105.130 (1980)

WAC 173-303-400 (1982)

WAC 173-303-800 (1982)

WAC 173-303-805 (1982)

WAC 173-303-815 (1982)

Remarks: An incinerator facility that treats, stores, or

disposes of dangerous waste must be permitted in accordance with

WAC 173-303-800 through 173-303-845. This permitting system

is considered remarks supra, section X. State Permitting

Requirements.

XIV. STATE PERMITTING STANDARDS - INCINERATOR FACILITIES

State statutes and regulations require that all incinerator

permits issued by the state require compliance with standards

substantially equivalent to federal standards at 40 CFR 264

Subparts A-H as they apply to incinerators and Subpart O. These

standards include:

A. Preparedness for and prevention of releases of hazardous

waste controlled by the state and contingency plans and emergency

procedures to be followed in the event of a release of such

hazardous waste.

Citations: RCW 70.105.130 (1980)

WAC 173-303-340 (1982)

WAC 173-303-350 (1982)

WAC 173-303-360 (1982)

WAC 173-303-600 (1982)

WAC 173-303-800(4) (1982)

Remarks: An incinerator facility that treats, stores, or

disposes of dangerous waste is a TSD facility, and as such,

will be subject to applicable facility standards even though a

pertinent facility standard, e.g., WAC 173-303-340, does not

expressly mention incinerators. WAC 173-303-800(4). Similarly,

a final TSD facility permit covering an incinerator must require

compliance with relevant facility standards even if incinerators are not expressly mentioned in a particular standard.

WAC 173-303-600.!l1

III Trial burn permits are dealt with separately. WAC 173-303-

805(3).
.... rl:)FFICE OF THE ATTORNEY GENERr· ,,~,,~ .

Mr. Donald W. Moos, Director

September 7, 1982

Page 33

B. Security to prevent unknowing and unauthorized access

to the facility.

Ci tations: RCW 70.105.130 (1980)

WAC 173-303~310 (1982)

WAC 173-303-600 (1982)

WAC 173-303-800(4) (1982)

C. Facility personnel training.

Citations: RCW 70.105.130 (1980)

WAC 173-303-330 (1982)

WAC 173-303-600 (1982)

WAC 173-303-800(4) (1982)

D. Compliance with the manifest system including the

requirement that the facility owner or operator, or the state in

which the facility is located, must return a copy of the manifest

to the generator or to ~he state in which the generator is located

indicating delivery of the waste shipment.

Citations: RCW 70.105.130 (1980)

WAC 173-303-370 (1982)

WAC 173-303-600 (1982)

WAC 173-303-800(4) (1982)

E. Closure and postc1osure care and financial requirements.

Citations: RCW 70.105.130 (1980)

WAC 173-303-600 (1982)

WAC 173-303-610 (1982)

WAC 173-303-620 (1982)

WAC 173-303-800(4) (1982)

F. Inspections, monitoring, record keeping, and reporting

by facility personnel.

Citations: RCW 70.105.130 (1980)

WAC 173-303-320 (1982)

WAC 173-303-370 (1982)

WAC 173-303-380 (1982)

WAC 173-303-390 (1982)

WAC 173-300-600 (1982)

WAC 173-300-800(4) (1982)
'.

.....,

--'\ ~~-~t

--£OFFICE OF THE ATTORNEY GENERA~'-

Mr. Donald W. Moos, Director

September 7, 1982

Page 34

G. Requirements for incinerators.

Citations: RCW 70.105.130 (1980)

WAC 173-303-600 (1982)

WAC 173-303-670 (1982)

WAC 173-303-800(4) (1982)

XV. STATE PERMITTING PROCEDURES - INCINERATOR FACILITIES

State statutes and regulations set requirements and procedures

for incinertor permitting that are the same as those described at

Section XII above, with the following additions:

A. State statutes and regulations require that applications for incinerator permits contain information sUbstantially

equivalent to that required at 40 CPR 122.25(b)(5)(i)-(iii), as

well as other information at 40 CFR 122.4, 122.24 and 122.25.

Citations: RCW 70.105.130 (1980)

WAC 173-303-670(2) (1982)

WAC 173-303-805(3) (1982)

WAC 173-303-815(8) (1982)

Remarks: The department, under WAC 173-303-815(8), may require

that Part B permit applications include all necessary information.

B. State statutes and regulations set standards for "trial

burn" permits, utilized to make certain determinations which are

sUbstantially equivalent to those at 40 CFR 122.27(b).

Citations: RCW 70.105.130 (1980)

WAC 173-303-815(3) (1982)

We trust that the foregoing will be of assistance to you.

KENNETH O. EIKENBERRY

Attoroey General

Senior

C£~~~R~ Assistant Attorne~General

Q~tfJJ t(b:l6Ic(cff . CHARLES K. DOUTHWAITE

Assistant Attorney General