ADDENDUM#1 September 7, 1982 

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Mr. DonaldW. Moos, Director WashingtonStateDepartment ofEcology Mail StopPV-11 Olympia, Washington 98504 Re: DangerousWasteRegulatory Program AttorneyGeneral's Statement DearDirector Moos: This letter is written in response to your request for statement from the Attorney General's Office with regard to the authority of theWashingtonDepartment of Ecology to operate a dangerouswaste 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. UnderRCRA, the

## u.s. Environmental ProtectionAgency (EPA) is required to adopt regulations identifying hazardouswastes, 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 theMay 19, 1980 Federal Register. TheEPA, underRCRA, 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 at40 CFRpart 123. These regulations require that a state application for authority include an "AttorneyGeneral'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 statementwhich follows was obtained substantially from EPAguidancematerial. The guidance document we reviewed indicated that it covered I' •• the minimum legal requirements

..." a statemustmeet to obtain authorization. The organization of thematerial"which follows was derived fromEPAmaterials. AnOutline is included here to"assist the reader.

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1.

II. III.

IV.



### V. VI. VII.

VIII. IX.

X. XI. XII. XIII.

XIV.

XV. ("")**~.-.~j** 

### OFFICEOFTHEATTORNEY**GENERAL~'** OUTLINE OF CONTENTS

Topic Overview Identification and Listing ofDangerous wastes . . . . • . . .. . . . . . Standards for Generators of Hazardous Waste. Standards for Transporters of Hazardous Wastes . . • . . • . . . . . • . . . Standards for HazardousWaste Storage, Treatment, and Disposal Facilities...•.•. Inspections. Enforcement Remedies • Public Participation in the State Enforcement Process.

.. . . . . . . . . . . . Authority to Share Information with EPA. StateAuthority to Regulate Activities of Indians on Reservation Lands ..•.••• StatePermitting Requirements. State Permitting Standards. State Permitting Procedures. StatePermitting Requirements

- Incineration Facilities ...•............ State Permitting Standards

- Incineration Facilities •.............. State Permitting Procedures

- Incineration Facilities.

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# - .. OFFICEOFTHEATTORNEYGENERAC' Mr. DonaldW. 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 HazardousWaste/Dangerous waste structure inWashington laws and the Energy Facility SiteEvaluation Council (EFSEC). This section is not derived from EPAguidance materials. Chapter 70.105 RCW 1. The 1976 Legislation TheWashington State Legislature enacted ch. 70.105 RCW in 1976. Laws ofWashington, 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 hazardouswaste. II 

### "Extremely hazardous waste" (hereafter EHW) was defined as a subcategory of "dangerous waste" inRCW 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 makeupofman or wildlife, and (ii) is highly toxic to man or wildlife (b) ifdisposed of at a disposal site in such quantities as wouldpresent an extreme hazard to man or the environment (emphasis added.) Themore general category, "dangerous waste" (hereafter DW), was also defined butwas not regulated unless the particular DW inquestion also exhibited the characteristics of EHW. See RCW70.105.010(5) which reads: "DangerousWastes" 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 topose a substantial present or potential hazard to human health, wildlife or the environment because suchwastes or constituents or combinations of suchwastes:

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### OFFICEOFTHEATTORNEYGENER.**~r.** DonaldW. 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. TheWashington State Department of Ecology (WDOE), in 1976, was required to adopt regulations which would identify regulated wastes; i.e., thosewaste exhibiting the characteristics of EHW, as defined by RCW70.105.010(6). Rew 70.105.020(1). The Department, by implication, was thus also required to identify dangerous wastes (since EHW is a subcategory ofDW), although only EHW was regulated at that time. See, ch. 173-302 WAc·ll 2. The 198D Legislation TheWashingtonLegislature added three new sections to ch. 70.105 in 1980. Laws ofWashington, 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~,** inWashington. 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 ofdangerous wastes as may be necessary to protect human health and the environment; (c) Establish, to implement this section: (i) Amcnifest 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.



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### ~""'jFFICEOFTHEATTORNEYGENERP--, -.-." Mr. DonaldW. 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 RCW70.105.120) and required that Department of Ecology rules implementing RCRA be submitted to the legislature pr.ior to adoption (see RCW70.105.140). The 1980 legislation was effective June 12, 1980.

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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 (RCW70.105.020(1)), regulation of only EHW was permitted at that time. Sincemany 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 consideredDW under ch. 173-303WAC is nearly identical to that under 40 CFR261; 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 ofEHW at any location in this state other than a site established by or for the Department on the federal reservation at 

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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 RCW70.105.130(2)(a) theDepartment 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 beenused in normal farm operations and which are not**extremel~** hazardous wastes. "are not subject to the permit system. (Emphasis added.)

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...- Mr. DonaldW. 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:

--- Theprovisions 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 inRCW 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 provided in this chapter. (emphasis 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 authority 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 jurisdictionwas limited to "thermal power plant construction proposals until 1976. In that year the "energy facility" language now in effect was added. Laws ofWashington, 1975-76 2d Ex. Sess. § 30.



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.. Mr. DonaldW. 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 plantwith 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 petroleumor liquified petroleumgas which has been or will be transported overmarine 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 RCWBO.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 petroleumor liquid petroleum product transmission pipeline of the following dimesions: Apipeline larger than six inches minimum inside diameter betweenvalves for the transmission of theseproducts with a total length of at least fifteenmiles;



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### <-uFFICEOFTHEATTORNEYGENERA. Mr. DonaldW. MOOS, Director September 7, 1982 Page 7
(b) Natural gas, synthetic fuel gas, or liquified petroleumgas transmission pipeline of the following dimensions: Apipeline 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; Anexample of a proposed "energy facility" presented to EFSEC for certification is theCreston 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 certificationwhich 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 casemay submit evidence, including evidence relating to dangerous waste management. See, e.g., In re Application ofwashingtonWater 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. RCW80.50.100(1). "Certification" is defined inRCW 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 metprior 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.

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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. Acertification 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 soundmanner. 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.



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This concludes theOverview section of this statement. The material which follows was taken from EPAguidance 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 EPAmaterials. I. IDENTIFICATIONAND LISTING OFDANGEROUS 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 thatwhich would be controlled by the Federal program under 

### 40 CFR

### 261. Citation ofLaws: 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)

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........ Mr. DonaldW. 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, RCW70.105.020(1), butwhether designation mustbe by list (for example) was left to the discretion of the Department ofEcology. Whateverprocedure was adopted by the Department, the key issuewas whether a waste exhibited the characteristics ofDW or EHW, as defined in RCW70.105.010(6). If so, then thatwastewas regulated. Theprocedure 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 dangerouswaste characteristics. WAC 173-303-090. Theprocedure used inWashington to designate dangerous wastes differs somewhat from 40 CFR261 in the treatment of dangerous wastemixtures, WAC 173-303-084 and in designation by dangerous waste criteria, WAC 173-303-101 through 173-303-103. Morewastes may be subject to regulation under Chapter 173-303 WAC than are regulated by EPAas a result of these differences. (See discussion below). A. Mixtures UnderWAC 173-303-084, a wastemixture is a wastewhich has not been designated as a DiscardedChemical Product, a Dangerous Waste Source or an InfectiousDangerousWaste. 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 ofcarcinogens, WAC 173-303-084(7). Even if awastemixture does not meet the standards inWAC 173-303-084 itmay be regulated if it exhibits any of theDW characteristics. WAC 173-303-070(3)(a).

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### Mr. DonaldW. Moos, Director September 7, 1982 Page 10

B. Criteria Adangerous wastemay 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, andEP toxicity, must be analyzed during the**designation-by~criteria**

### procedure. 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). TheDepartment ofEcology may order a generator to check his wastes against the criteria in certain situations. WAC 173-303- 070(4). Agenerator of wastes designated by list is required to designate by characteristic or criteria or both if he has knowledge that his wastes exhibit any DWcharacteristics or meet any DW criteria. WAC 173-303-070(5). Use of the criteriadesignation procedure is not expected to permitwastes regulated under 40 CPR261 to escape regulation under· ch. 173-303 WAC. Thedangerous waste lists (sources and discarded chemical products) and characteristics adopted by EPAhave been adopted by theDepartment of Ecology. Agenerator of a listedwaste could, underWAC 173-303-070(3), decide to designate by criteria instead ofby list. This would not cause regulation inconsistent withEPA's approach; if thewaste met any of the criteria (which include characteristics adopted by EPAat 40 CFR261.20), then it is regulated. If thewaste does notmeet any criteriaf 

### then it is not, in fact, a threat to health or the environment and should not be regulated as if itwas hazardous. Moreover, if a generator can establish that awaste designated by list does not meet any of the criteria, then hemay 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 FORGENERATORS OFHAZARDOUS WASTE A. State statutes and regulations provide coverage of all the generators of hazardous waste which is regulated under the State program. Citation: RCW70.105.130 (1980) WAC 173-303-170 (1982) Remarks: Certain categories'ofwastes are categorically excluded from regulation under ch. 173-303 WAC. See WAC 173-303- 071. Generators of excluded wastes are thus unreguIated under

# . . ·--DFFICEOFTHEATTORNEYGENERt'-'. Mr. DonaldW. 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 ofwaste to determine whether their waste is hazardous. Citation: RCW70.105.130 (1980) WAC 173-303-170(1) (1982) Remarks: As a general rule, all generators mustdetermine whether their waste is dangerous. Agenerator of solid waste may, however, apply to the Department of Ecology for a "certificate of designation." WAC 173-303-075. Acertificate 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). Agenerator seeking a certificatemust 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). Agenerator 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 CFR262.40 and 40 CFR 262.41. Citation: RCW7 0 . 1 0 5 . 1 3 0 (2)(c) ( i i ) ( 1 980) 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** 

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### THEATTORNEY**GENERA'-~·**

.....**",,~** Mr. DonaldW. Moos, Director September 7, 1982 Page 12

such wastes in amanner that does not present a hazard to human health or the environment. Citation: RCW7 0 • 1 0 5 . 1 30 ( 2 ) (l9 8 0 ) WAC 173-303-200 (1982) E. Respecting international shipments, state laws and regulations provide requirements which are substantially equivalent to those at40 CFR262.50, 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 programor the federal program. Citation: RCW70.105

.130( 2)(c) (1980) WAC 173-303-141 (1982) WAC 173-303-180 (1982) G. TheStatemanifest system requires that: 1. Themanifest 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. Themanifest accompany all wastes offered for transport except in the case of shipments by rail or water specified in 40 CFR262.23(c) and 263.20(e). Citation: RCW70.105.130(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 inwhich the shipment originated or are independently identified by the state inwhich the shipment originated.**r:-~FFICE** 

### OFTHEATTORNEYGENERAJ--. Mr. DonaldW.·

### MOOS~:' Director September 7, 1982 Page 13

Citations: RCW70.105.130(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 thewaste was accepted by the initial transporter. TheDepartment 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). Agenerator 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 inwhich 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 OFHAZARDOOS WASTE A. State statutes and regulations provide coverage of all the transporters ofhazardous wastewhich is regulated under the stateprogram. Citation: RCW70.105.130 (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 programor federal program. Citations: RCW70.105.130 (1980) WAC 173-303-141 (1982) WAC 173-303-180 (1982) WAC 173-303-250 (1982)r">,

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..:\ Mr. DonaldW. MOos, Director September 7, 1982 Page 15

IV. STANDARDS FORHAZARDOUS 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 hazardouswaste controlled by the state and contingency plans and emergency procedures to be followed in the event of such hazardous waste. Citations: RCW70.105.130 (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 Cand Dappear inWAC 173-303-340 and 173-303-350 as standards applicable to all owners and operators ofTSD facilities. These administrative code sections are adopted by reference as InterimStatus 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 RCRAInterim Status Standards, 40 CFR 265.1(c), although the state rules do not expressly exclude as manyTSD situations. See, e.g., 40 CFR 265.1(c)(5). B. Closure and post-closure requirements. Citations: RCW70.105.130 (1980) WAC 173-303-400 (3)

....... Remarks: Interim Status Standards published at 40 CFR 265 Subparts Gand Hhave 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 withWAC 173- 303-400(3). WAC 173-303-400(2), 173-303-815(2)(a)

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### "-'OFFICEOFTHEATTORNEYGENERALMr. DonaldW. Moos, Director September 7, 1982 Page 16

C. Ground water monitoring. Citations: RCW70.105.130 (1980) WAC 173-303-400(3) 

## ri

### ssz: Remarks: Interim Status Standards published at 40 CFR265 Subpart Fhave 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. TheDepartment of Ecology has authority under ch.**~0.48** RCW to order ground water monitoring or remedial action on a case-bycase basis. RCW90.48.120. Any such order must be predicated on a finding by theDepartment that a person is violating or is about to violate ch. 90.48 RCW. Afinding 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 toprevent unknowing and unauthorized access to the facility. Citations: RCW70.105.130 (1980) WAC 173-303-310 (1982) E. Facility personnel**training~** Citations: RCW70.105.130 (1980) WAC 173-303-330 (1982) F. Inspection, monitoring, recordkeeping, and reporting. Citations: RCW70.105.130 (1980) WAC 173-303-320 (1982) G. Compliance with themanifest 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 inwhich the generator is located indicating delivery of the waste shipment. Citations: RCW70.105.130 (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 OFTHEATTORNEY

### GENERP.·~· :-<'" --' 

### Mr. DonaldW. Moos, Director September 7, 1982 Page 17

Citations: RCW70.105.130 (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) TheDepartment ofEcology rules incorporate provisions nearly identical to 40 CFR 264 Subparts B through

## o. SeeWAC 173-303-280 through 173-303-395, andWAC 173-303-610**throug~73-303-670.** 

### Much of40 CFRPart 265, i.e., Subparts F through R, has been adopted by referencewithminor changes. WAC 173-303-400. Those subparts of 40 CFRPart 265 whichwere not adopted by reference inWAC 173-303-400, i.e., Subparts Athrough 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, orpremises subject to regulation or in which records relevant toprogramoperation are kept in order to inspect, monitor, or otherwise investigate compliance with the state program including compliancewith permit terms and conditions and other program requirements. (States whose law requires a search warrant prior to entry conformwith this requirement.) Citations: RCW70.105.130 (1980) RCW 90.48.090 (1945) WAC 173-303-810(10) (1932)/""""--



### ..,)FFICEOFTHEATTORNEYGENERJ{-..'**~.** ". Mr. DonaldW. Moos, Director September 7, 1982 Page 18

Remarks: TheDepartment 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 investigatewateipollution 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 theDepartment as a condition of holding a permit. WAC 173-303-810(10). VI. ENFORCEMENTREMEDIES 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: RCW70.105.120 (1980)**~/** TheWashington StatePatrolhas authority to inspect any "motor carriers" vehicle transporting hazardous**mat~rial.** The chiefof theWashington 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 inconsistentwith the provisions ofTitle 49 CFR, parts laO through 199. Authorized personnel inspecting loads of hazardous material shall do so in the presence of a representative of themotor carrier. Seal and locking devices may be removed as necessary to facilitate the inspection. The seals or locking devices removed shall be replaced by theWashington 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.·

# .

...-...... ...-.



### ..JFFICEOFTHEATTORNEYGENER/

..". Mr. DonaldW. Moos, Director September 7, 1982 Page 19

B. Authority to sue in courts ofcompetentjurisdiction to enjoin any threatened or continuing violation of any program requirement. Citation: RCW70.105.120 (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 programviolation or to seek criminal remedies including fines in at least the amount of $1,000 per day for any program violation. Citations: RCW70.105.080 (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. RCW70.105.080. Apenalty, once assessed, may be remitted or mitigated by theDepartment of Ecology upon timely applicationmade 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 accordancewith 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.** Ascheme 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 ofMotor 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 inVI above by any citizen having an interestwhich is or may be adversely affected; or B. Assurances that the state agency or enforcement authority will:

### --"1FFICEOFTHEATTORNEYGENERpr-

. . Mr. DonaldW. 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: RCW70.105.130 (1980) WAC 173-303-900 (198.2) Remarks: TheDepartment 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. ThePCAB 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 CR24(a)(2) has been allowed to persons "

....who feel themselves aggrieved

..." Loveless v. Yantis, 82Wn.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-

# .' 

# .. .......... 

### )FFICEOFTHEATTORNEYGENERA Mr. DonaldW. Moos, Director September 7, 1982 Page 21

over, theDepartment 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 Departmenthas, by regulation, expressed its intent to "

...foster public awareness, information and consultation, and to respond

.actively topublic concerns. "WAC 173-303-900. This commitmentdoes respond to the requirements in 40 CFR 123.128(f){2){ii) albeitwithout reference to the exact language of that regulation. VIII. AUTHORITYTO SHARE INFORMATIONWITH EPA State statutes and regulations provide authority for any information obtained or used in the administration of the State program to be available to EPAupon requestwithout restriction. Citation: Ch . 4 2 . I 7 RCW (I9 73 ) RCW 43.21A.160 (1970) Remarks: ThePublic DisclosureAct (ch. 42.17 RCW) provides, inpart, that each agency of the State ofWashington 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 ofgovernment on the performance of any governmental or proprietary function prepared, owned, used, or retained by any state or local agency regardless ofphysical formor characteristics." RCW42.17.020(26). "Writing" is defined to include every means of recording any form ofcommunication or representation. RCW42.17.020(28). TheDepartment's considerable authority to share information is slightly limited by a procedure available to enjoin examination of any specific public record. RCW42.17.330. This procedure requires amotion and affidavit in superior court. The courtmay enjoin examination if it finds that the examination "wouldclearly not be in the public interest and would substantially and irreparably damage vital governmental functions." RCW42.17.330. While we cannotguarantee in advance that examination of any particularpublic record will not be enjoined, this legal standard is clearly quite stringent.,--... 

# --- ')FFICEOFTHEATTORNEYGENER,l · '°"'0" Mr. DonaldW. Moos, Director September 7, 1982 Page 22

TheDepartment of Ecology enabling act, ch. 43.21A RCW, authorizes a procedure to insure that information on unique productive piocesses may be kept confidential ifdisclosure would hurt the owner's competitive position. RCW43.21A.160. Whether confidentiality is ordered lies in the discretion of the Director of the Department. IX. STATE AUTHORITY TOREGULATE ACTIVITIES OF INDIANS ON RESERVATIONLANDS State power to regulate activities of Indians on reservation lands has often been obtained from an act ofCongress authorizing such regulation.7/ State regulatory authority may be expressly granted 8/or maybe 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 byRCRA includes a provisionwhich allows qualified stateprograms to operate in lieu of federal regulation. 42 U.S.C. 6926. This federal provision itself does not limit the geographic scope of aqualified 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 statemay 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, 450U.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).

### -<:>FFICEOFTHEATTORNEY**GENERA!'~** 

### M.r. DonaldW.**MOO~,·,j**

### Director September7, 1982 

### Page 23
6903(13). 

### UnderRCRA, a statewith aqualified hazardouswaste regulatory programmay apply for and obtain authorization to operate its programto regulate activities ofIndians on reservation lands. TheDepartment of Ecology has authority under state law to adoptadangerouswaste regulatory program to operate in lieu of the federal program inwashington. RCW70.105.130. 

### TheDepartment'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." RCW70.0).010(7). 

### This language obviously does not delineate between Indian and non-Indian. Whenauthorized by EPApursuant to 42 

### U.S.C. 6926, 

### theDepartment may regulate dangerouswastemanagement activities by Indians on reservation lands. X. STATEPERMITTINGREQUIREMENTS A. State statutes and regulations prohibit the construction of new facilities or the operation of existing facilities engaged· inthe storage of hazardouswaste in containers or in the storage or treatment of hazardouswaste in tanks, surface impoundments, orwastepiles without apermit and theState allows the above named facilities which wouldqualify for interim status under the Federalprogram to remain in operationpending peimit action if theycomply with State facility standards substantially equivalent to EPA interim status standards at40 

### CFRPart 265. 

### Citation: RCW70.105.130 (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) ofdangerouswaste or extremely hazardous wastemustobtain apermit in accordance withWAC 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 orwastepiles.



## 2/ Certain categories ofTSDfacilities are deemed to have a permitby rule. WAC 173-303-805(1). 

### This treatment is substantially equivalent to 40 

### CFR122.26 

### and 40 

### CFR122.27.

# ·. .'

- 

### ...-t:;)FFICEOFTHEATTORNEY

### GENERA.r-"\

Mr. DonaldW. 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 Aand B of the permit application andhas received a permit. WAC 173-303-815(3). The owner or operator of a new facility under construction prior to adoption ofch. 173-303 WAC, i.e., prior to February 10, 1982, may continue with construction but a permit application must have been submitted byMay 11, 1982, i.e., 90 days after adoption of ch.**173~303** WAC. WAC 173-303-815(3)(c). Afacility 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 CFRPart 265. The owner or operator of a TSD facility which receives wastes regulated by ch. 173-303 WAC but not regulated under 40 CFRPart 261 and which is in existence

## IIIonMarch 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 Aby 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 CFRPart 261 must also have complied with



### 101

III Interim status standards included in Chapter 173-303 WAC do not apply topersons disposing of dangerous waste subject to a permit issued under theMarine Protection, Research and Sanctuaries Act; persons disposing of dangerous waste by underground injectionwhich is permitted under the SafeDrinking Water Act; the owner or operator of a POTW who treats, stores, or disposes ofdangerous wastes; the**o~uer** or operator of a totally enclosed treatment facility; and generators accumuLat> ing waste for less than ninety days except to the extentWAC 173-303-200(6) provides otherwise. WAC l73-303-400(2)(c). These types of facilities are also specifically excluded from theRCRApermit 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..'

......

# "

..

# - ···OFFICEOFTHEATTORNEYGENERA;:.::: Mr. DonaldW. 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: RCW70.105.130 (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 CFRl22.2l(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: RCW70.105.130 (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: RCW7 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.

# ·

# . ,,--.'. 

### ,,0FFICEOFTHEATTORNEY

## GENERA~~-· Mr. DonaldW. 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 permitvariances. Schedules ofcompliance 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: RCW70.105.130 (1980) WAC 173-303-810(14)(c) (1982) WAC 173-303-830(2) (1982) H. State statutes and regulations authorize modification ofpermits where alterations are made to a facility or to activities at a facility or where new information is received. Citations: RCW70.105.130 (1980) WAC l73-303-830(3) (1982) I. State statutes and regulations authorize termination ofpermits for cause, including noncompliance with the permit, misrepresentation ofor 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: RCW70.105.130 (1980) WAC 173-303-820(4) WAC 173-303-825(4)



### (i) (ii) (iii) Remarks:

-SectionWAC 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. SectionWAC 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

### THEATTORNEYGENERA.,.: Mr. DonaldW. Moos, Director September 7, 1982 

### Page 27



### Citations: RCW70.105.130 (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 incases of imminent and substantial endangerment to human health similar to those at 40 

### CFR 122.27. 

### Citations: RCW70.105.130 (1980) 

### WAC 173-303-805(4) (1982) XI. 

### STATEPERMITTINGSTANDARDS State statutes and regulations require that all permits issued by the state require compliancewith standards substantially equivalent to Federal standards at 40 

### CFR·Part 264 

### Subparts Athrough

### L. These standards include: A. Preparedness for andprevention 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: RCW70.105.130 (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: RCW70.105.130 (1980) 

### WAC 173-303-310 (1982) WAC 173-303-600 (1982) 

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

### C. Facility personnel training. Citations: RCW70.105.130 (1980) 

### WAC 173-303-330**(1~82)** 

### WAC 173-303-600 (1982) 

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

### D. Compliance with themanifest system including the requirement that the facility owner or operator or the state in which the facility is located must return a copy of themanifest

# ..**,~JFFICE** 

### OFTHEATTORNEYGENERA"

. Mr. DonaldW. Moos, Director September 7, 1982 Page 28

to the generator or to the state inwhich the generator is located indicating delivery of the waste shipment. Citations: RCW70.105.130 (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: RCW70.105.130 (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. Citations: RCW70.105.130 (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

. . Citations : RCW70.105.130 (1980) WAC 173-303-600 (1982) WAC 173-303-630 (1982) WAC 173-303-800(4) (1982) H. Requirements for tanks. Citations: RCW70.105.130 (1980) WAC 173-303-600 (19H2) WAC**173~303-640** (1982) WAC 173-303-800(4) (1982) I. Requirements for surface impoundments. Citations: RCW70.105.130 (1980) WAC 173-303-600 (1982) WAC 173-303-650 (1982) WAC 173-303-800(4) (1982)'_0·' ·

# .. "-'5'FFICE

### OFTHEATTORNEY**GENERP.~~\ ~.~**  Mr. DonaldW. Moos, Director September 7, 1982 Page 14

Remarks: Aperson transporting dangerous**waste~** "on-site" (defined inWAC 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 underWAC 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 ofWashington, e.g., a TSD facility located inOregon. Washington law thus does not require that out-of-state shipments ofdangerous 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 themanifestwith all shipments except in the case of shipments by rail or water specified in 40 CFR 263.20(e). Citations: RCW70.105.130(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 cleanup such wastes or to take action so that suchwastes 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: RCW70.105.130 (1980) WAC 173-303-145 (1982) WAC 173-303-270 (1982) Remarks: TheDepartment of Ecology regulations may cover more spill or discharge situations than are presently covered by 40 CFR263.30 and 40 CFR 263.31. WAC section 173-303-145(1) applies when any dangerous waste "•.. or any material havinq the properties of a dangerous waste, as described WAC 173-303-080 through 173-303-103

..." is spilled or discharged. The basic ideahere is that a hazardousmaterial spilled in transportwill be considered a waste unless it is recovered.!

... 

### --":)FFICEOFTHEATTORNEYGENERp·": Mr. DonaldW. MOOS, Director September 7, 1982 Page 29



### J. Requirements for waste piles. Citations: RCW70.105.130 (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: RCW70.105.130 (1980) WAC 173-303-815 (1982) Remarks: Permit applications for new TSD facilities must be.submitted to theDepartment of Ecology at least 180 days before physical construction begins. WAC 173-303-815(3)(c). Apermit 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 undetRCRA**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 submitpermit application Part Bwithin six months after written request from the department. \"iAC 173-303-815(2)(d). B. State statues and regulations require that permit**ap~lica** tions contain information that is substantially equivalent to information required at 40 CFR 122.4, 122.24 and 122.25. Citations: RCW70.105.130 WAC 173-303-815 Remarks: The department, under WAC 173-303-815(8), may require that Part Bpermit applications state all necessary information including that required under 40 CFR 122.25.

## ... 4FFICEOFTHEATTORNEYGENERAl--, Mr. DonaldW. 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 courtmay 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 RCW42.17.330. 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: RCW70.105.130 (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: RCW70.105.130 (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 draftpermit and of scheduling of a public hearing. Citations: RCW70.105.130 (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: RCW70.105.130 (1980) WAC 173-303-840(4) (1982)

# ...**~OFFICE** 

### OFTHEATTORNEY

### GENERAJ-·

. .J 

# -.... Mr. DonaldW. Moos, Director September 7, 1982 Page 31

H. State statutes and regulations require that the notice bepublished inmajor 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: RCW70.105.130 (1980) WAC 173-303-840(3) (1982) I. State statutes and regulations allow any interested person to submitwritten comments. Citations: RCW70.105.130 (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: RCW70.105.130 (1980) WAC 173-303-840(5) (19H2) K. State statutes and regulations require that such public hearings allow thepresentation ofwritten and oral comments anu be conducted in a manner substantially equivalent to the requirements of40 CFR 124.17. Citations: RCW70.105.130 (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: RCW70.105.130 (1980) WAC 173-303-840(9)(c) (1982) XIII. STATEPERMITTING 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 CFRPart 265.

### ,-----OFRCEOFTHEATTORNEY

### GENER,Q)-,\

.....: Mr. DonaldW. 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, sectionX. 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 compliancewith relevant facility standards even if incinerators are not expressly mentioned in a particular standard. WAC 

### 173-303-600.!l1



## III Trial burn permits are dealtwith separately. WAC 

### 173-303- 805(3).

## .... rl:)FFICEOFTHEATTORNEYGENERr·**,,~,,~** . 

### Mr. DonaldW. Moos, Director September 7, 1982 Page 33

B. Security to prevent unknowing and unauthorized access to the facility. Citations: RCW70.105.130 (1980) WAC**173-303~310** 

### (1982) WAC 173-303-600 (1982) WAC 173-303-800(4) (1982) C. Facility personnel training. Citations: RCW70.105.130 (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 inwhich the generator is located indicating delivery of the waste shipment. Citations: RCW70.105.130 (1980) WAC 173-303-370 (1982) WAC 173-303-600 (1982) WAC 173-303-800(4) (1982) E. Closure andpostc1osure care and financial requirements. Citations: RCW70.105.130 (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: RCW70.105.130 (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** 

### --£OFFICEOFTHEATTORNEY**GENERA~'-** Mr. DonaldW. Moos, Director September 7, 1982 Page 34

G. Requirements for incinerators. Citations: RCW70.105.130 (1980) WAC 173-303-600 (1982) WAC 173-303-670 (1982) WAC 173-303-800(4) (1982) XV. STATEPERMITTING PROCEDURES - INCINERATOR FACILITIES State statutes and regulations set requirements and procedures for incinertor permitting that are the same as those described at SectionXII 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: RCW70.105.130 (1980) WAC 173-303-670(2) (1982) WAC 173-303-805(3) (1982) WAC 173-303-815(8) (1982) Remarks: Thedepartment, under WAC 173-303-815(8), may require thatPartBpermit applications include all necessary information. B. State statutes and regulations set standards for "trial burn" permits, utilized tomake certain determinations which are sUbstantially equivalent to those at 40 CFR 122.27(b). Citations: RCW70.105.130 (1980) WAC 173-303-815(3) (1982) We trust that the foregoing will be of assistance to you. KENNETH O. EIKENBERRY Attoroey General

# C£~~~R~ Senior Assistant**Attorne~General**

# Q~tfJJ

# t(b:l6Ic(cff

. CHARLES K. DOUTHWAITE Assistant Attorney General