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RESPONSIVENESS SUMMARY

AMENDMENTS-TO THE DANGEROUS WASTE REGULATIONS

Chapter 173-303 WAC

Washington Department Of Ecology

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February 5, 1991

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Introduction and Background Statement

The Department of Ecology is authorized by state statutory law to adopt rules

regulating the generation and management of hazardous waste by Chapters 70.105

and 70.1050 RCW. Ecology is further authorized under federal regulations (40

CFR Part 271) by the U.S. Environmental Protection Agency (EPA) to administer

and enforce the federal Resource Conservation and Recovery Act (RCRA).

Chapter 70.105 RCW (the Hazardous Waste Management Act) gives Ecology the

authority to carry out the federal RCRA program in Washington. Further

authority to carry out RCRA amendments is contained in Section (3)(d) of RCW

70.1050, the Model Toxics Control Act.

The purpose of Chapter 70.105 RCW is to provide a "comprehensive state-wide

framework for the planning, regulation, control, and management of hazardous

waste which will prevent land, air, and water pollution and conserve the

natural, economic, and energy resources of the state." The,Act also states

as its purpose, providing "broad powers of regulation to the department of

ecology relating to management of hazardous wastes and releases of hazardous

substances;"

Section 70.105.130 RCW authorizes Ecology to establish standards for the safe

transport, treatment, storage, and disposal of dangerous wastes as may be

necessary to protect human health and the environment and to "adopt rules

necessary to implement this section."

Summary of Rule Purpose

These amendments 'are being proposed for two major reasons:

A. First, some amendments are required by federal regulation (40 CFR Part

271). Ecology is authorized by U.S. EPA to carry out the federal RCRA

(hazardous waste) program in Washington. In order to remain so authorized,

periodic amendments to the state Dangerous Waste Regulations, Chapter 173-303

WAC, are required to keep the state program up to date with, equivalent to,

and no less stringent than the federal regulations.

B. Second, state-initiated amendments are proposed to improve the program.

These have been identified by Ecology staff, regulated businesses, and the

public. The changes are intended to: enhance Ecology's ability to enforce the

regulations; clarify the intent of eX1sting language; make certain rules more

practical to comply with; or enhance protection of human health and the

environment.

State-initiated amendments include:

1) new requirements designed to ensure baseline environmental quality at

hazardous waste recycling facilities;

2) new restrictions on sewer disposal of hazardous wastewaters; and

3) an exemption from obtaining a hazardous waste permit for Model Toxic

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Control Act cleanups under an Agency-signed consent decree or order.

Summary of Public Involvement Actions

1. Public Workshops

Four public workshops were held on the proposal in December 1989. Notice of

these workshops was mailed to all persons who had notified the Department that

they conduct dangerous waste activities on their sites as well as other

interested persons, totaling over 5000 individuals and businesses. Notices

were also published in major newspapers. Included in the notice was the

scheduled filing date, information regarding the public comment period, and

instructions for obtaining copies of the rule summary.

Workshop dates were:

December 11, 1989

December 12, 1989

December 13, 1989

December 14, 1989

2. Draft Rules

Spokane

Yakima

Seattle-Tacoma

Vancouver

Draft rules were sent to about 200 individuals in August 1990. This included

all. persons who attended the workshops, as well as other interested persons.

A comment period began in early August and ended on September 13, 1990.

3. Public Workshops and Hearings

Public Notice for the comment period and the hearing schedule was provide in

the October 16, 1990 State Register, direct mailings of a "Focus" to over 6000

individuals, and a news release. The "Focus" summarized the amendments,

announced the public comment period, and listed the public workshops and

hearings schedule. The comment period began on October 17, 1990 and continued

through December 13, 1990.

Public workshops (from 6:30 p.m. to 7:45 p.m.) and public hearings (starting

at 8 p.m.) on the proposed amendments were held as follows:

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SEATTLE

SPOKANE

YAKIMA

December 3, 1990

December 5, 1990

December 6, 1990

4. Declaration of Non-significance and Economic Impact Analysis

A SEPA Determination of Non-significance and a Small Business Economic Impact

Statement were filed on October 16, 1990. The comment period for the SEPA

Declaration of Non-significance ended on December 13, 1990. No SEPA-related

comments were received.

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Summaty pescription of pevelopment of Proposed Rule

Ecology developed a skeleton version of the proposed Amendments in the fall of

1989, After holding workshops in December 1989 and speaking to a number of

constituent groups, draft language was prepared in the Spring of 1990.

External comments were solicited from interested persons (all those attending

the workshops or who otherwise expressed interest) in the Summer of 1990. The

Draft Rules were filed in October and hearings held in December .of 1990.

Scheduled Adoption Date

The Dangerous Waste Regulation Amendment Rule is' scheduled for adoption on

March 7, 1991. If adopted on schedule, the effective date of the rule would

be April 7, 1991.

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Comments and Responses

This section of the Responsiveness Summary addresses written and oral comments

on the proposed Dangerous Waste Regulation (Chapter 173-303 WAC) Amendments

received between October 16, 1990 and December 17, 1990. The Comments are

summarized or paraphrased, in the order of the proposed rule, and followed by

t~e department's responses.

WAC 173-303-040: Definitions

Comment 1: We support alphabetizing the definitions.

Response 1:

Support noted.

Comment 2: The definition of "aboveground tank." We object to this

definition because it is inconsistent with federal criteria. We propose the

following definition: "Aboveground tank means a tank the volume of which is

90% or more above the surface of the ground."

Response 2:

The definition for aboveground tank is exactly the same, word for word,

as the federal hazardous waste regulation 40 CFR 260.10. The definition

in this comment is similar to "inground tank" also defined in this

section. The reason the definition of "aboveground tank" is important

in this Chapter is because the tank bottom may be visually inspected and

so is not always required to have an associated leak detection system.

[Note: The tank definitions have not been altered by this proposal - they

merely changed position because of the alphabetizing of this section.

Comment 3: Change the definition of the term "director" to include "or his

designee" to be consistent with 70.105 RCW.

Response 3:

Agreed. This change has been made.

Comment 4: Unlike the present domestic sewage exclusion to the Hazardous Waste

Management Act (Chapter 70.105 RCW) and the federal domestic sewage exclusion

to the Resource Conservation and Recovery Act (RCRA) , the proposed regulation

does not appear to exclude discharges from industrial sources. A note in

Ecology's proposed preamble suggests, however, that there are instances in

which an industrial discharge might qualify for the domestic sewage exclusion.

The preamble note reads:

"Dangerous wastes generated by business or industrial sources that have

been managed pursuant to the permit by rule provisions of WAC 173-303-

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802(5) may mix with household or residential sanitary wastes in a sewer

system that is downstream from the business or industrial source. The

mixture would be eligible for the 'domestic sewage' exclusion at that

point."

It is my understanding that Ecology does not intend to expand the scope of the

domestic sewage exclusion with this explanatory note, but instead wants to

convey that there are instances in which an industrial discharge would not be

subject to the Dangerous Waste Regulations if adequately treated prior to

discharge.

Under both the existing and proposed Dangerous Waste Regulations, if an

industrial discharger treats or neutralizes a waste pursuant to a permit by

rule (WAC 173-303-802(5» so that such waste is not a dangerous waste, that

discharge is subject only to the local pretreatment program, not the Dangerous

Waste Regulations. If after such treatment the waste is a dangerous waste,

such discharge is subject to both the local pretreatment program and, under

the proposed amendment, the Dangerous Waste Regulations.

If this is an accurate interpretation of Ecology's intent, the preamble note

might be modified to read:

"(Note: If dangerous wastes generated by business or industrial sources

that have been managed pursuant to the permit by rule provisions of WAC

173-303-802(5) are not dangerous wastes at the point that they are

discharged into the sanitary sewage system, they are not subj ect to ._.;

Dangerous Waste Regulation.)" ...:;.:..

Response 4:

Agreed. Ecology's intent was not to expand the scope of the proposed.

domestic sewage exclusion with the wording of our preamble comment:' It:C::

should be remembered that preamble language is for guidance, and to -'

express the intent of a rule or rule amendment. The language of a

preamble statement should not and cannot be substituted for the meaning~­

of the actual regulatory language of Chapter 173-303 WAC.

There are instances where a business or industrial discharge would not

be subject to further regulation under Chapter 173-303 WAC, but this .Is

only after treatment or neutralization has been conducted in accordance

with all the permit by rule provisions of WAC 173-303-802(5).

The commenter's suggested language is better, and for clarity, Ecology

is modifying the preamble note to read:

"(Note: If dangerous wastes generated by business or industrial

sources that have been managed pursuant to the permit by rule

provisions of WAC 173-303-802(5) are not dangerous wastes at the

point they are discharged into the sanitary sewage system, they

are not subject to further requirements of the Dangerous Waste

Regulations.)"

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Comment 5: The definition of "domestic sewage" [also found at WAC 173-303- 0\ . 071(3)(a)] should not be limited to residential sources, because sanitary

waste is not limited to such sources. The proposed definition would appear to

eliminate the exemption, since the words "and any mixture of domestic sewage

and other wastes" that passes through a sewer system to a POTW for treatment"

would be deleted.

Response 5:

The proposed amendment limiting the definition of "domestic sewage" to

residential sources is intentional. The basis for Ecology's rule

amendment was an October 26, 1989 decision issued by the U.S. First

Circuit Court of Appeals. In Comite Pro Rescate de la Sa1ud v. Puerto

Rico Aqueduct and Sewer Authority, et al., the court determined that the

term "domestic sewage" in RCRA refers to the point of origin of

untreated sanitary wastes, that being households and residences. The

court found it " ... difficult to believe Congress would wish to exempt

potentially large amounts of industrial waste from the statute's [RCRA]

scope simply because they mix with some small amount of bathroom

sewage." Thus, Congressional intent was not to extend the meaning of

the term "domestic sewage", and thus the domestic sewage exclusion to

business or industrial sources.

No change is made.

Comment 6: The wastewater produced by a toilet at a restaurant, bakery, motel,

or industry is not materially different from the wastewater produced by the

toilet in your own home. The proposed definition opens the way for dangerous

waste permitting of sanitary wastes solely because it is generated at the work

place. This approach contradicts the regulatory history in most states and

represents a strong departure from the intent of federal regulation. We

propose the following definition: "domestic sewage" means untreated sanitary

wastes from any source that pass through a sewer system to a publicly owned

treatment works for treatment.

Response 6:

See response 5 above. While sanitary wastes are, of course, generated

by business or industrial sources, they will not have the

characteristics or criteria of dangerous wastes and will not be captured

by the Dangerous Waste Regulations. The change to the definition of

"domestic sewage" is necessary to prevent business or industrial

sanitary wastes that have been mixed with dangerous wastes from being

excluded. Permitting of uncontaminated sanitary wastes generated in the

work place will not be necessary.

No change is made.

Comment 7: Why is domestic sewage restricted to residential sources? The

definition in 40 CFR 261.4 makes no such distinction. Does Ecology really

contend that untreated sanitary wastes from nonresidential sources (e.g.,

industrial, commercial, state and federal governmental office fapilities,

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requirements? It should be recognized that untreated sanitary waste may well

fail the toxicity tests of WAC 173-303-101. Consider eliminating the phrase

"from residential sources" from the definition of "domestic sewage."

Response 7:

See responses 5 and 6 above. Ecology has made a conscious decision to

write a definition of "domestic sewage" that is more stringent than

EPA's definition found in 40 CFR 261.4 of the federal hazardous waste

regulations. Ecology regulatory experts, chemists, and hazardous waste

specialists have indicated that it is highly unlikely that untreated

sanitary wastes from nonresidential sources will fail the toxicity (fish

and rat bioassay) tests of WAC 173-303-101.

No change is made.

[It should be noted that the definition of "Elementary neutralization

unit" appearing in the October 1990 rule amendment package is not new. "'-.

The definition appearing in the proposed rule is identical to the

existing regulatory definition.]

Comment 8: The definition of "elementary neutralization unit" excludes wastes

which may be designated for any reason other than corrosivity. This seems

like an overly conservative definition since almost all of the corrosive acid~

and bases would be designated due to toxicity under WAC 173-303-084(5) or - -

101, and hence could not qualify for elementary neutralization per the

definition. We recommend that the definition be revised to include

neutralization of acids and bases that are toxic under state code, but not

listed due to toxicity under the Federal RCRA regulations.

• Response 8: ....

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The definition of "elementary neutralization unit" was intended to be

conservative, and to provide for simple neutralization of corrosive

wastes, where toxicity of the waste was not a factor. However, Ecology

believes that the definition is flexible enough to allow for incidental

de-toxification of corrosive wastes, which are also designated due to

toxicity only under WAC 173-303-084(5) or -101, if this is accomplished

purely by the neutralization process. Treatment of dangerous wastes

designated for reasons of toxicity by the federal rules cannot occur in

elementary neutralization units.

No change is made ..

Comment 9: Wastewater treatment unit. It is our understanding that the

changes to the definition of "wastewater treatment unit" [and to WAC 173-303-

802(5)(a) permits by rule] are not intended to and do not change Ecology's

position expressed in TIM (Technical Information Memoranda) 84-6. Provided

that TIM 84-6 remains in effect, we do not have a concern with these proposed

amendments .

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Response 9:

[It should be noted that the definition of "Wastewater treatment unit"

appearing in the-October 1990 rule amendment package is not new. The

definition appearing in the proposed rule is identical to the existing

regulatory definition.]

Ecology's recent review of TIM 84-6 has revealed some concerns with the

content of the guidance document, and we reserve the right to clarify,

amend, or revoke it. The concern is that the information is quite dated

and was written before several significant statutory and regulatory

changes, at the federal and state level. Specifically, the 1984

Hazardous and Solid Waste Amendments (HSWA) dramatically expanded the

scope of the RCRA statute. HSWA expanded EPA's and authorized states'

jurisdiction over recycling processes, set new "land 'disposal

restrictions", and provided for a significant regulatory change to the

definition of "solid waste" in 1985. Ecology has revised its

regulations to remain consistent with some of the changes of the federal

program, and this may require amending or revoking earlier guidance

documents.

The current domestic sewage/industrial wastewater exclusion rule

amendments may also require alteration of TIM 84-6. Ecology will keep

interested and affected members of the regulated community informed of

any changes to guidance documents.

No change is made.

Comment 10: We ask that you rewrite this definition in English. Suggested

language was provided September 12, 1990. No substantive change would be

affected.

Response 10:

Ecology was not able to simplify or rewrite the definition of wastewater

treatment unit and retain its exact regulatory meaning. This type of

revision will be attempted again during future "regulatory reformatting"

efforts.

No change is made.

Comment 11: The definition of in-ground tank is unnecessary. We propose its

elimination. The definition of on-ground tank is also unnecessary. We

propose its elimination._

Response 11:

These terms are used in WAC 173-303-640 (7) to delineate which tank

systems, that have already leaked, require secondary containment before

they can return to service. The terms are defined and used identically

in federal regulation. Ecology therefore declines to remove these

definitions in the final rule.

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Comment 12: Underground Tank. We object to this definition because it is

inconsistent with federal criteria. We propose the federal definition in 40

crn 280.10.

Response 12:

The definition in 40 crn 280.10 applies to hazardous substances and

petroleum products ~tored in underground tanks. The Dangerous Waste

Definition applies to tanks containing dangerous wastes. Therefore, the

correct federal analog is 40 CFR 260.10. The definition in the proposal

is word for word the same as in the federal rule.

[Note: The tank definitions have not been altered by this proposal - they

merely changed position because of the alphabetizing of this section.

Comment 13: This comment was found to be a duplicate

Comment 14: Water (contaminated with spent solvent) from my small dryc1eaning

business which goes to a sewage treatment plant, has a small amount of solvent

in it. It would cost too much to send to a hazardous waste place (TSD

facility). The large drycleaners in the big cities like Seattle or Spokane

can comply easier. Consider allowing small businesses to continue to send the

water to the sewage treatment plant.

Response 14: As provided by WAC 173-303-070(8), a small quantity generator

must send their waste to a permitted facility (TSO or permit by rule),

legitimate recycling facility, etc. This allowance for the small quantity ,_..

generator has not changed under the proposed rule. In addition, the costs of ~:

compliance for a small business have been considered under the Small Business

Economic Impact Statement. No change is made.

Comment 15: In the definition of "Environment," define "totally enclosed."

Comment 15A: The meaning of term "totally enclosed" is unclear. The term is --

also used to define treatment systems and is used in PCB rules. There is

little difference between spills to containment inside or outside a building.

Response 15:

The term "totally enclosed" has been removed from the final rule.

Comment 16: Define the terms "sufficient" and "limited" that appear in

sections 084 and 103.

Response 16:

"Sufficient" and "limited" in sections 084 and 103 refer to terms used

by the International Agency on Cancer Research (IARC). IARC uses these

terms to refer to the nature of carcinogenic evidence available for a

given chemical. The language in sections 084 and 103 specifies that

these are IARC categories. The final rule has not been changed from the

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draft version.

Comment 17: Define "oil."

Response 17:

We fail to see a sufficient reason to comply with this comment. "Used

oil" is regulated and defined by this chapter. Virgin oil is generally

used as a fuel and not disposed of or discarded. However, oil or other

petroleum products may be dangerous wastes when disposed. Also, used

oil that is burned for energy recovery is regulated by section 515.

We are currently working on guidance for management of off-specification

fuels and a discussion paper regarding the regulation of used oil.

Comment 18: Definitions for "Used oil" and "Off specification used oil fuel"

do not appear but should.

Response 18:

The definitions for "used oil" and "off specification used oil" appear

in section 040 in the final rule.

WAC 173-303-070 Designation of Dangerous Waste

Comment 19: Regarding 070 (2)(a). The change to this section is unnecessary

and punitive because it allows Ecology to require unlimited testing of

dangerous waste streams, at $1700 per sample for a full scan, to accurately

describe variability. We propose its elimination.

Response 19:

The amendment in question applies to residuals from the treatment,

storage, recycling or disposal of dangerous wastes. We are not

requiring "unlimited" testing. We intend to require a reasonable amount

of testing for treatment residuals that is in proportion to the

variability of the waste stream. Thus, generators of uniform waste

streams will need to provide only a few samples for testing and

generators whose waste varies considerably will need to provide several

samples or more.

We feel that the change proposed here spells out in detail a common

sense approach to making these determinations.

Comment 20: Is TIM 85-1 still in effect with regard to delisting? That is,

wastes which are delisted by EPA are tentatively delisted by Ecology as well.

Response 20:

For the present, yes.

[Note: This issue was not proposed as a part of the rule-amendment package.)

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with recent land disposal restrictions (LOR) regulations, a generator must

designate through the lists, mixtures, and characteristics (sections) prior to

pursuing subsections 4 'and 5.

Response 21:

We agree. The final rule has been changed so that a person must always

designate his waste through lists and characteristics. Subsection (3)

has been changed to reflect this change. That is, characteristics is

mandatory, not subject only to special knowledge.

WAC 173-303-070 (8) Small Quantity Generator (SQGs) Exclusion

Comment 22: We support the amendment to this subsection. It

more flexibility in securing proper waste disposal services.

be important for Ecology to provide guidance to the counties

such facilities using solid waste standards.

Response 22:

will allow SQGs

However, it will

in permitting

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Ecology is keeping this amendment in the final rule. Further, Ecology

is planning to develop rules (amendments to Chapter 173·304, Minimum

Functional Standards) and guidance that addresses SQG disposal at

Moderate Risk Waste Facilities. For more information, please contact

Bill Green, Moderate Risk Waste Plan Coordinator, telephone (206) 459-

6322 .

VAC 173-303-071 Excluded categories of waste

(3)(a) Domestic Sewage

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Comment 23: We propose the following definition: "Domestic sewage means

untreated sanitary wastes from any source that pass through a sewer system to ~.

a publicly owned treatment works (POTW) for treatment."

Response 23:

See responses under WAC 173·303·040, Definition of Domestic Sewage.

Comment 24: This section, in conjunction with Ecology's notes, states that

sanitary wastes and sanitary waste mixtures generated at a business or

industrial source must meet permit-by-rule requirements until the wastes are

mixed with other household or residential sanitary wastes downstream. As a

result, all dischargers with sanitary wastes will be required to have written

or permitted authorization from appropriate officials that specify effluent

standards. This places an extreme burden on local POTW's.

Response 24:

Ecology has no information to suggest that normal sanitary wastewater

streams from business or industrial sources will designate as dangerous

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wastes. In fact, these sanitary" wastes are expected to be non- "

hazardous. The Dangerous Waste Regulations are applicable to "solid 0 .

wastes" as defined in WAC 173-303-016 that have the characteristics or

criteria of dangerous wastes. Ecology's rule amendment will not require

businesses with non-hazardous sanitary wastes to have an authorization

or permit to discharge. There is no additional burden on the local

officials to specify effluent standards for non-hazardous sanitary

wastes. However, those business or industrial sources that mix

dangerous wastes in with their sanitary waste stream will not be exempt

from Chapter 173-303 WAC.

No change is made.

Comment 25: Contrary to Ecology's position, we believe the EPA clearly does

not interpret the scope of the "domestic sewage" exemption to apply only to

sanitary wastes from residential sources, nor does the exemption require that

such wastes be treated in a POTW. As noted in the May 19, 1980 Federal

Register, "a waste stream comprised entirely of sanitary wastes that pass

through a sewer system is 'domestic sewage' under any reasonable

interpretation of the statutory exemption. This exemption applies regardless

of whether the sewer system or the treatment works to which it connects is

publicly or privately owned. The proposed revision to WAC l73-303-07l(3)(a)

appears to eliminate the exemption, since the words "and any mixture of

domestic sewage and other wastes that passes through a sewer system to a

publicly owned treatment"works for treatment" would be deleted. This is

contrary to the intent described on page 260 of the Washington State Register

discussion (preamble parenthetical note).

The language, as proposed, could have a disproportionate impact on rural

businesses not served by a community sewer system. The proposed regulation

goes beyond EPA's scope and congressional intent in that no waste from a

business, regardless of size or trade, would be eligible for the domestic

sewage exclusion. The effects on rural businesses could be dramatic and do

not appear to be adequately addressed in the Small Business Economic Impact

Statement.

The WAC 173-303 designation criteria includes a toxicity evaluation. The

proposed regulations would result in dangerous waste application to most

sanitary sewage since this waste would most likely fail the bioassay testing

specified in WAC 173-303-l0l(3)(c), and the domestic sewage exemption which

would otherwise apply would be eliminated except for residential sources.

In summary, we feel the proposed revisions to the domestic sewage exemption

represent an inappropriate interpretation of the EPA stance on the statutory

[RCRA) exemption in that:

1.) The EPA clearly intends that the domestic sewage exemption applies

to all sanitary sewage, regardless of whether the sewage comes

from a residential source;

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2.) The proposed revisions would constrain the domestic sewage

exemption in a manner that is clearly beyond the scope of the EPA

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stance on the exemption;

3.) The proposed revision would eliminate the language which exempts

mixtures of domestic sewage and other wastes, an exemption which

EPA clearly allows provided that the mixture passes through a

sewer system to a POTW.

We note that state programs which are broader in scope than the federal

Resource Conservation and Recovery Act (RCRA) program are not authorized under

RCRA, but may exist as a matter of state law only. The proposed revisions

would regulate wastes which are exempted from RCRA, and hence would not be

part of the federally-authorized state RCRA program.

Response 25:

Ecology believes EPA's current interpretation of the scope of the

domestic sewage exclusion is consistent with an October 26, 1989

decision issued by the U.S. First Circuit Court of Appeals in Comite Pro

Rescate de la Salud v. Puerto Rico Aqueduct and Sewer Authority. et al ..

The EPA filed an amicus curiae brief in support of the interpretation

that the term "domestic sewage" in RCRA refers to the point of origin of

untreated sanitary wastes, that being households and residences. The

Court of Appeals agreed with EPA and held that the domestic sewage

exemption did not cover wastes discharged by industrial sources since

domestic sewage refers only to sanitary waste from domestic sources.

EPA reiterated this interpretation by memorandum to their RCRA Region I ", ' .

. X Section Chiefs on January 9, 1990. This recent guidance seems to

supersede the much earlier preamble guidance in the May 19, 1980 Federal.

Register.

While the proposed domestic sewage exclusion applies regardless of

whether the sewer system or the treatment works to which it connects is ..

publicly or privately owned, it is limited to untreated sanitary wastes.

Ecology's intent is to prevent mixtures of domestic sewage and dangerous

wastes from being excluded through inappropriate use of WAC 173-303-

071(3) (a) .

Rural business impacts were not singled out in the Small Business

Economic Impact Statement, as there is no requirement to do so. In any

case, the rule amendment should not have a disproportionate impact on

rural businesses not served by a community sewer system. These

businesses would still have the opportunity to undertake treatment in a

permit by rule unit with an NPDES or state waste discharge permit,

provided the provisions of WAC 173-303·802(5) are met.

As indicated in previous responses, Ecology has no information to

suggest that sanitary wastewaters will designate as dangerous wastes

under WAC l73-303-l0l(3)(c).

The EPA will, during future authorization processes, determine whether

the proposed domestic sewage exclusion revision makes Ecology'S state

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program broader in scope than the federal Resource Conservation and

Recovery Act (RCRA) program. However, this change is made under the

authority of the Hazardous Waste Management Act, RCW 70.105, and may

exist as a matter of state law and regulation.

No change is made.

Comment 26: This letter is to protest those changes regarding domestic sewage

and waste water exclusions. The Department of Ecology is turning into a

department which is trying to eliminate all manufacturing and business

activity in the State of Washington. The Department of Ecology is the

greatest threat to any manufacturing business. The Department of Ecology is

an organization dedicated to the establishment of significant, punitive, fines

so that it can be a self-perpetuating bureaucracy. It is our belief that the

personnel in the Department of Ecology are not qualified to properly

administer any additional rules, exclusions, or modifications to any

regulations at the present time.

Response 26:

Comment noted.

071 (3)(b) Industrial Wastewater Discharges

Comment 27: We are concerned about possible confusion which may be caused by

the first sentence in WAC l73-303-07l(3){b). It is our understanding that

Ecology staff's intent was to allow generators of dangerous waste to discharge

properly pre-treated dangerous waste to POTW's, providing they meet

requirements of permit-by-rule. We believe the language as proposed does not

make this clear since Section 402 of the Clean Water Act pertains primarily to

direct discharges, not indirect discharges. We recommend the first sentence

of WAC l73-303-07l(3)(b) be amended as follows: "Industrial wastewater

discharges that are point-source discharges subject to regulation under

Section 402 of the Clean Water Act, or industrial wastewater discharges that

are indirect discharges subject to regulation under Section 307 of the Clean

Water Act ... "

Response 27:

The recommended clarifying language cannot be adopted. If it were,

Ecology's industrial wastewater exclusion at WAC l73-303-07l(3)(b) would

be less stringent than the federal exclusion at 40 CFR 26l.4(a)(2). The

federal language is specific and only includes the actual point source

discharge subject to regulation under Section 402 of the Clean Water

Act, as amended. The federal language does not exclude industrial

wastewaters while they are being collected, stored, or treated before

discharge, nor does it exclude sludges that are generated by industrial

wastewater treatment. Ecology's language cannot exclude indirect

discharges subject to regulation under Section 307 of the Clean Water

Act, because the federal language clearly does not.

Ecology will be providing additional guidance in the form of a Technical

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Information Memoranda (TIM) regarding the domestic sewage/industrial

wastewater exclusions and permit by rule which should help alleviate

possible confusion. No change is made.

Comment 28: We believe the addition of the permit by rule language to this

section is inappropriate. The proposed changes appear to confuse the

differences between regulatory exclusions versus imposition of a lesser degree

of regulatory requirements. From a federal standpoint, the specified point

source discharges are excluded from RCRA regulation. Thus, there are no RCRA

imposed requirements. The upstream storage, collection, and treatment,

however, is not excluded from Federal RCRA regulation, and therefore cannot be

excluded in the state program as this would represent less stringent

requirements than Federal RCRA regulations. Upstream storage, collection, and

treatment could qualify for a lesser degree of regulation as wastewater

treatment units. This is not the same as being excluded from regulation -

only the downstream point of discharge is excluded from RCRA by the Federal

program.

Response 28:

Comment noted. The statement, "Owner/operators of certain wastewater

treatment facilities managing dangerous wastes may qualify for a permitby-rule pursuant to WAC 173-303-802(5)" was added purely as a reference

to the permit by rule requirements. While only the end of pipe, pointsource discharge under NPDES is excluded, the upstream treatment of

dangerous wastes may qualify for permit by rule. No additional

requirements under the exclusion at WAC 173-303-07l(3)(b) have been

proposed.

No change is made.

Comment 29: We believe the original language should be retained since

treatment systems are already regulated under Section 402 of the Clean Water

Act (NPDES). This clarification creates redundancy, confusion, and potential

requirements for additional permitting.

Response 29:

See response 28 above. The added language does not create any new

requirements or require any additional permitting. It is added as a

cross-reference to permit by rule requirements in WAC 173-303-802(5).

No change is made.

Comment 30: Clarify the wood waste exemption.

Response 30:

If the wood waste is dangerous solely because it fails the TC test for

arsenic, it is exempt. If wood waste is dangerous for any other reason,

it is regulated as dangerous waste .

15
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Comment 31: 071 (3)(g). Ecology has failed to demonstrate how treated wood

products that are in intimate contact with the environment (e.g. railroad

ties, telephone poles, piling, landscape materials, etc.) suddenly become

dangerous waste when they were not so (in many cases for decades) in their

intended use. We believe that the original definition is appropriate until

specific federal regulations dictate otherwise.

Response 31:

Materials that are being used for their intended purpose, like railroad

ties, telephone poles, piling, landscape materials, etc., are not

regulated by this Chapter. However, wastes may be regulated under this

Chapter if they are a hazard to human health or the environment.

These materials are undoubtedly dangerous to certain organisms as they

are treated with biocides. That is their purpose, to preserve the wood

from the actions of biological organisms.

Your assertion seems to us to be correct: that the risk to human health

and the environment of these materials in their normal use is similar to

the risk of disposal of wastes made up of these same materials in a

landfill. You have not convinced us that these materials are not risky,

only that they are as dangerous as wastes as they were when they were

used as products. However, when they are products, they are serving a

purpose. When the materials become wastes, the benefit of these

materials is lost. The purpose of regulating these waste materials is to

limit the potential for indiscriminate disposal and thereby minimize

long term human health and ecological impacts.

The federal regulations are quite specific in this regard. 40 CFR 261.3

exempts arsenic-treated wood wastes. Arsenic is the only preservative

mentioned in this exemption. Further, the March 29, 1990 Federal

Register page states: " EPA has previously stated that even if it were

determined that certain ground uses of treated wood did not pose

unreasonable risks, wood wastes might still be regulated under RCRA

subtitle C . . . materials treated with pesticides (should be) managed

in a controlled manner under RCRA at the end of their useful lives, to

ensure that long-term risks are minimized . . . . EPA has decided not

to expand the existing exemption for arsenic-treated wood."

Ecology is leaving the regulation as proposed, primarily because of the

clear direction from EPA that only arsenic-treated wood is exempt at the

federal level.

Comment 32: regarding 071 (3)(k)(iii)(A). We are opposed to this change since

it conflicts with federal requirements for TSCA-regulated PCB rules which

allow storage of PCB wastes for up to' one year.

Comment 32A: 071 (3)(k)(iii)(A), PCB Waste Accumulation. We believe the 90

day storage limit on WOOl wastes which are disposed of in accordance with TSCA

rules is unnecessary.

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•• Response 32:

We sought, in the draft rules, to relieve generators from preparing a

closure plan for their WOOl wastes that were stored in TSCA regulated

areas. A recent change in 40 CFR 761.65 requires that all PCB wastes in

TSCA storage-for-disposal areas must comply with closure plans and

financial assurance for closure. We were attempting to give generators

a third option for managing WOOl waste, namely, to set up a separate

area for 90-day accumulation of WOOl within a TSCA regulated area.

However, it seems best (and least confusing) to delete the new language

from the proposal and let generators decide between TSCA rules and

dangerous waste rules ..

In other words, in the final rules, a generator of WOOl waste will have

two options: 1) manage WOOl wastes as dangerous waste; or 2) manage WOOl

as TSCA-regulated wastes. The latter will mean (since the federal TSCA

rule changes) including such wastes in the closure plans and financial

assurance requirements that apply at TSCA PCB storage-for-disposal

areas.

Comment 33: 07l(3)(v) Alkaline Solids. We propose a new exclusion for

alkaline waste solids that serve a beneficial use as a substitute for

agricultural lime. Other states allow this use without the cumbersome and

time consuming variance process in the Washington regulations. The exclusion

would cover waste solids that are corrosive and toxic only.

• Response 33:

Ecology has decided not to adopt such an exclusion. Alkaline waste

solids, like other secondary materials, would be excluded if

legitimately recycled -- such as sold commercially as a soil amendment.

We will rely on the existing petition process to exempt specific wastes

which the generator can demonstrate do not threaten human health and the

environment.

Comment 34: WAC 173-303-071 (3)(t). Clarify the term "petroleum contaminated

media."

Response 34:

Media is any air, water, groundwater, land, or soils.

•

For the word "petroleum~" the broad definition of 40 CFR 280.12 can be

used. Petroleum is "crude oil or any fraction thereof that is liquid at

standards conditions of temperature and pressure." Examples include:

motor fuels, jet fuels, distillate fuel oils, residual fuel oils,

lubricants, petroleum solvents, and used-oils. [Note: used-oils that

are burned for energy recovery or disposed are regulated under this

Chapter. ]

However, there is an important distinction between contaminated media

17
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regulated underUST (RCRA subtitle I) and the Dangerous Waste 0' '

Regulations (RCRA subtitle C). The distinction is that the former

results from spills or releases from specific product-bearing tanks.

The latter is a broader category of waste material that may result from

spills or releases from waste management activities and most certainly

includes contamination from waste-bearing tanks. Thus, only

contaminated media from tanks bearing petroleum products and subject to

corrective action under RCRA subtitle I are eligible for this deferral.

The above explanation has been added to the Summary of the Proposed

Final Rule.

WAC 173-303-072 (3)(c)

Comment 35: We support the changes to 072(3)(c).

Comment 35A: We support the proposed change to 072 (3)(c). We support this

change for a number of reasons: First, we believe the exemption process should

be available for all wastes that a generator can demonstrate pose no threat to

public health and the environment. Second, it will help facilitate use and

recycling of solid and semi-solid wastes. Third, because it will make the

state regulations consistent with federal law.

Response 35:

Support noted. The option to petition for an exemption is open to all

state-only wastes (previous to this change, state-only solid corrosive

wastes could not be exempted through a petition) on a case-by-case

basis. Federally-regulated waste streams may not be exempted through a

state-petition.

YAC 173-303-084 (5) Use of Spill Table as a Toxicity Reference

Comment 36: We recommend use of the NIOSH Registry exclusively for toxicity

criteria designation because of the discrepancies in the EPA Spill Table you

point out in the Summary of Proposed Amendments.

Response 36:

We agree. It is difficult to obtain the background information

necessary to determine the reason for a certain category used in EPA's

Spill Table. Since EPA's Spill Table uses other data besides acute

toxicity to determine a category, it would be easiest to rely on the

NIOSH registry for such data.

Therefore we are adding to section 084 (5): "If EPA's Spill Table and

the NIOSH Registry do not agree on the same category, then the category

arrived at through the NIOSH registry will take precedence."

YAC 173-303-090 (8) Toxicity Characteristic

Comment 37: I support the EHW levels for the TCLP constituents.

18

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Response 37:

Support noted. The EHW levels have been retained in the final rule.

Comment 38: Clarify that constituent levels at or above regulatory thresholds

(OW and EHW) are regulated by this Chapter.

Response 38:

This has been done in section 090 (8)(c).

Comment 39: 0031 should be corrected to "Heptachlor and epoxcide" and D037

should be spelled Pentachlorophenol.

Response 39:

Done. This is an editorial change.

WAC 173-303-103 and 084 Designation limits for Carcinogens

Comment 40: Section 103 (2) contains DW designation only, while in section 084

(7) both DW and EHW designations are present. Please revise these sections to

be consistent or specify precisely when one section is to be used in

preference to the other.

Response 40:

Actually i~s the reverse. 084 (7) only has the DW designation, while

section 103 (2) includes the potential for either a DW or an EHW

designation.

Section 084 is a mandatory section if the generator knows some or all of·

the constituents and concentrations in his or her waste. Section 103

only applies to those generators that are required to designate their

waste through the criteria by the department or to generators who

possess special knowledge indicating that their waste may also exhibit

that criteria.

Ecology has decided to leave these sections alone for now. For the time

being, please check with the appropriate Ecology Regional Office to see

whether a DW or EHW designation is appropriate for your carcinogenic

waste. Ecology may decide to change one of these sections in the future

so that they are consistent with each other.

WAC 173-303-120 Recycled, reclaimed, and recovered wastes

Comment 41: I support the definition of "active processing"

Response 41:

Support noted .

19
Comment 42: Phase separation can be a legitimate recycling process. Host

chemical engineering textbooks address phase separation and settling as a

legitimate unit operation.

Comment 42A: We take exception to the exclusion of "phase separation" as a

legitimate recycling process. We recommend that all new language in this

section (120) be deleted.

Response 42:

Phase separation, settling, and other such passive operations may be

used to recycle wastes at "immediate" recycling facilities only if

wastes are introduced into active process units within 24 hours of

arrival at the facility. Thus, if waste recycling operations can be

accomplished within this timeframe, such an operation will satisfy this

requirement.

However, passive operations pose the same hazards as storage. Compare

two activities: storing dangerous waste in a tank for seven months and

allowing a dangerous waste to phase separate in a tank for seven months.

The department is acknowledging that both of these activities pose

equivalent risk. Although the latter may be a form of recycling, we

cannot allow such an activity to go unregulated. It is more appropriate

to restrict these activities to permitted facilities -- where

appropriate precautions are mandated by the regulations. Thus,

recycling processes that take wastes from off-site and include greater

than 24-hour passive operations must be conducted at a TSD facility. Cr

[Note: On-site recyclers are bound by a lesser standard of the 90 day

accumulation limit, however, the accumulation standards would apply to

such a passive, storage-like unit.]

Comment 43: Add language to l20(4)(c)(v) so that Ecology can require recycling

facilities to prepare closure plans, a cost estimate for closure, and provide

financial responsibility for tank systems on a case-by-case basis.

Response 43:

This may be a workable way to regulate TSD-like recyclers or recycling

activities at TSDs. However, it is probably inappropriate at small,

single waste stream recyclers unless the owners or operators are

careless. Ecology already has authority to regulate recycling processes

that pose a threat to human health or the environment. [See WAC 173-

303-120 (4).]

Ecology is not willing at this time to adopt such a proposal.

Comment 44: In l20(4)(c)(iv) delete the words "if necessary" because the

requirement would be unenforceable as currently written.

Response 44:

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The intent here is to confirm the waste characteristics using data

specific to the waste stream. Ecology is not concerned with the source

of the data -- it can be the generator or the recycling facility.

However, if sufficient data is not available, then screening-type

analysis would be necessary (e.g. "chlor-detect" test, flash point,

metals scan, etc.) to obtain it.

Comment 45: We support increased regulation of recycling facilities in

Washington. Loopholes that exempt recycling facilities from RCRA requirements

regarding waste handling, employee training, and facility design and operation

must be eliminated. Recycling facilities can and do cre~te precisely the same

kinds of problems as treatment, storage and disposal facilities.

Response 45:

Support noted.

Comment 46: We believe the proposed regulation to be vague and impractical.

There is no definition of "off-site."

Response 46:

Off-site means off of the site of generation. Therefore, waste that is

moved from one EPA/state identification number to another would

constitute off-site. This is clear from the definition of "generator"

in section 040 .

Comment 47: Because of normal industrial operational constraints, it is

unlikely that materials could consistently be recycled within 24 hours.

Response 47:

Recyclers who attempt to operate an "immediate recycling facility" (i.e.

without storing waste on-site for more than 24 hours) must carefully

plan their waste management operation. Shipments arriving on weekends

or when equipment is down present problems for such facility owners or

operators. Ecology has decided to leave this 24 hour option in the

regulations for now. This approach seems more reasonable than EPA's

approach of not specifying what "immediate" means. However, because of

the recent problems found at such facilities and the practical problems

that the commentor mentions, this rule may have to be altered in the

future.

Comment 48: Will immediate recyclers be subject to storage provisions 630 (2)

through (10) and 640 (4) even though they "do not store?"

Response 48:

Recycling process tanks will not be required to have secondary

containment. Storage tanks or tanks holding dangerous wastes from offsite before the wastes are delivered to "active process units" will be

required to meet the storage requirements of this Chapter, including

21
secondary containment.

Tanks holding dangerous waste residues from recycling operations are

subject to generator requirements which include secondary containment

for tanks and containers. Tanks or containers holding products from a

recycling operation would not be subject to the storage requirements.

Comment 49: We are pleased to see that Ecology is proposing to increase the

regulation of facilities that recycle dangerous wastes. We believe that these

facilities are under-regulated now, and since they pose many of the same risks

as regular treatment, storage, and disposal facilities, they should be

required to meet standards similar to those set for TSDs. At the same time,

we are not ready to endorse the specific amendments, which we believe may need

to be strengthened to provide an adequate level of environmental protection.

(For example, why should recyclers be exempt from the manifest system? This

is a relatively easy and straightforward requirement to meet, and one that

would allow far better tracking of wastes destined for recycling.)

Response 49:

Qualified support noted. Manifesting dangerous waste to an off-site

recycling facility is already required by the dangerous waste

regulations [See WAC 173-303-120 (4)(c)(ii)]. Adoption of the proposal

would not effect this requirement. On-site dangerous waste recycling

activity is reported to the department annually.

WAC 173-303-145 Spills and Discharges

Comment 50: We object to the proposed language in this section. Under the

proposal, all spills would be reportable spills. Ecology would be inundated

with valueless reports of inconsequential spills and leaks. The public and

industry would bear great costs for trivial benefits. We propose instead:

"The word 'environment' includes any air, land, water, or groundwater external

to the responsible party's property."

Comment 50A: The spill and discharge notification requirements in these

regulations, unlike CERCLA, currently apply to releases confined to a

facility. Section 360 gives the facility emergency coordinator the

responsibility of making the determination whether or not the environment or

human health is at risk. Considering: 1) the uncertain qualifications of the

emergency coordinator; 2) the inherent difficulties of making such a risk

determination; and 3) that occupational safety regulations provide for

protection of human health of workers at the facility -- it would be

preferable to parallel CERCLA in these regulations and make them only

applicable to off-site releases.

Response 50:

The fact that a spill or release occurs on priv~te property is

inconsequential to its effect. We believe that notification is

necessary whether the spill or release occurs inside the facility

boundary or outside of it.

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After considering several options, it was decided that the easiest way

for the regulated community to report spills or releases was to pick up

the phone and call the appropriate regional office of Ecology (or the

toll free Department of Emergency Management phone number). If the

spill is truly insignificant, then spill staff can say "thank you very

much for calling." 'Alternatively, for significant spills, staff can and

do advise callers on a course of action for containing and cleaning up

spills and releases. Further, the frequency and circumstances

surrounding spills at facilities can be an important indicator of

operational or compliance problems. If these events are not reported,

then important opportunities for environmental protection are lost.

One of the primary goals of this Chapter is to assure that sites do not

become contaminated. Unless the department is aware of "routine" or

accidental spills and discharges, this goal cannot be fulfilled. Many

industrial solvents can migrate through concrete and other such

"barriers." Ecology does not consider a phone call -- so that we can

keep industrial sites clean -- to be too much to require.

The effect of the changes in this section is to clarify that all spills

and releases of dangerous waste and hazardous substances are reportable.

The only exception is a spill or discharge of less than ten gallons to

secondary containment meeting the applicable requirements of this

Chapter. In this case, instead of a phone call to the regional office,

the owner or operator may elect to write an account of the spill to

their operating record (for a TSD) or inspection log or spill log (for a

generator). Information in this brief account must include: the date

and time of the spill, the type and quantity of waste spilled, the cause

of the spill, and the response actions taken or planned. This must be ,'.1

done immediately, just like the phone call. An owner or operator must

write the account or call the department for less-than-ten-gallon

spills.

Spills of equal to or greater than ten gallons inside secondary

containment or spills outside of secondary containment must be reported

to the appropriate regional office of the department immediately.

Spills within the facility boundary are subject to this requirement.

Spills to shop floors or paved areas or secondary containment structures

that do not meet the definitions in 630 (7) and 640 (4) are also subject

to this requirement.

At present, for releases from tank systems, generators and TSD facility

owners and operators do not have to report spills of less than one

pound, if they are immediately contained and cleaned up.

Spills with releases to the air must be reported to the local air

pollution control authority or the regional office of Ecology.

(For example, a spill of volatile or semi-volatile chemicals into

secondary containment, where there is a release or threat of releases to

the air -- i.e. evaporative losses -- must be reported) .

In summary, Ecology does not consider a phone call -- so that we can

23
help keep industrial sites clean _. to be too much to require.

[See section 360 for responses regarding the emergency coordinator)

Comment 51: We propose the deletion of the word "regional" used in the phrase

"notify the appropriate regional office of the Department of Ecology."

Response 51:

The regional offices of Ecology (including the hazardous waste permits

section, the Industrial Section and the Handford group) implement the

rules and inspect handlers for compliance. Further, the spill response

groups at Ecology are in the regional offices. It is much more

efficient to make one phone call to the regional office than to call the

headquarters office and then have headquarters staff call the region.

It also will be a cheaper call in most cases. We have made a,

conscientious effort to include a map of the regions and regional office

phone numbers in our recent guidance and educational materials. We

therefore decline to delete the phrase "regional office" from the

proposal.

WAC 173-303-200 Accumulating Dangerous Waste On-site

Comment 52: Change the requirements for satellite accumulation areas so that

instead of 55 gallons being the threshold . the clock starts when the

container is full (if the container is less than 55 gallons.

Response 52:

We will consider this idea in the next round of amendments to this

Chapter.

Comment 53: What generator accumulation requirements apply at satellite

accumulation areas?

Response 53:

Ecology is planning to issue guidance on this issue this year (1991).

This was not addressed in the proposed rules.

WAC 173-303-210 (6) Generator Recordkeeping

Comment 54: Change "requested by the director" to "requested by the

department" everywhere the former appears in this Chapter.

Response 54:

Since "director" now includes his or her designee, this is unnecessary.

24

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WAC 173-303-220 Generator Reporting

Comment 55: 220 (3) Clarify the use of pronouns in this paragraph so that it

states the generator is in possession of dangerous waste, not the director.

Response 55:

Done. "The generator's" has been substituted for "his."

WAC 173-303-360 Emergencies

Comment 56: We believe the original language should be maintained. WISHA has

the legislative mandate, staff, and expertise to regulate potential threats to

human health on the plant site. To also give Ecology this charge creates

redundancy and confusion.

Response 56:

Specific authority for waste-related threats to human health is found in

70.105.130 (2) RCW.

Comment 57: 360 (2)(d)(i) The emergency coordinator should not be tasked with

determining whether evacuation of local areas may be advisable. He/She should

contact first responders and provide the information they need to make that

determination .

Comment 57A: The text and structuring of 360 (2)(d)(i) and (ii) should be

clarified, indicating that the emergency coordinator should not make

determinations with respect to human health and the environment and evacuation

of the public.

Response 57:

The emergency coordinator may be the only person ~ith the information

and time to take actions that could prevent threats to human health and

the environment. This section stands as proposed in the final rule.

WAC 173-303-515 Special Requirements for Used-oil Burned for Energy recovery.

Comment 58: 515 (4)(b) We support this amendment. It will allay concerns

about liability for waste turned over to recycling facilities, and as a

result, may promote recycling efforts.

Response 58:

Support noted. This amendment has been removed from the proposed final

rule. See comment number 60.

Comment 59: The rules seem convoluted with respect to burning used-oil on" site

for space heating.

• Response 59:

25
A TIM on used oil management is planned for this calendar year. Also

see Ecology's discussion paper on "Used Oil Burned in Space Heaters"

September 1990.

Comment 60: The new provisions will not allow legitimate used oil marketers

(those that store) to compete with those that only transport used oil directly

to blenders. In order for equity to be maintained, please add the following

language: 515 ( ) (vii) "Transporters of waste oil who market waste oil must

demonstrate compliance with all applicable provisions of (vii) above."

Ecology may also want to add language that requires the collector/marketer to

assure the gener~tor that the former has met the requirements of WAC 173-303.

Comment 60A: One must understand that Washington's present environmental

rules, not just for solid wastes, but air, etc., have all but made it

impossible to market used-oil fuels in Washington. Therefore, to protect and

help the recycling of used-oil, we propose that, other than adopting the

federal EPA regulations, all other parts of your proposal be deleted.

Response 60:

Because of the uncertain secondary impacts on the used-oil collection

market that may result from increased regulation of used-oil storage

facilities, Ecology is withdrawing its proposal in the final rules. We

will continue to research the economic and environmental aspects of this

situation. However, we suspect that there may be unacceptable

environmental and human health threats that are associated with 'the

processing, storage, and burning of used-oil fuels .. Specifically, we

suspect that used-oil that is contaminated with metals and/or

chlorinated organic solvents is being burned in marine diesel engines

and used-oil fired space heaters. We will reconsider amendments that

strengthen testing, recordkeeping, and other operational requirements in

the near future.

Comment 61: Clarify". . unless otherwise required to do so . . ." Don't

leave this decision ~p to individuals regional offices or inspectors, rather,

provide guidance (such as a TIM) which specifically defines what is required

of all persons managing used oil.

Response 61:

This provision has been deleted in the final rule.

o

Comment: WAC 173-303-610 Closure

Comment 62: Add the federal "delay of closure" rule to this Chapter. The

department may then allow closure to be delayed so that non-hazardous waste

(solid waste) is received at a surface impoundment, landfill, etc.

Comment 62A: Add the federal "delay of closure" rule to this Chapter. This

would allow the management of nonhazardous wastes in a hazardous waste unit

(e.g. a land treatment unit or surface impoundment) after the final receipt of

hazardous waste at that unit. Adoption of this provision would allow us, the

26 o
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owner of an oil refinery, to pursue environmentally sound waste management

options. For example, we estimate at our refinery that we dispose of .about

1000 tons of nonhazardous waste annually at our on-site, permitted landfarm.

The provisions of our permit provide for this activity. Alternative disposal

would require shipment of this waste to an approved incinerator, thousands of

miles away at a cost of about $2500/ton. This would result in an expenditure

of $2,500,000 per year from our refinery alone.

Comment 62B: Add the "delay ~f closure" rule, at least for land treatment

facilities. In the case of land treatment units, those that have met the

stringent requirements of RCRA, seem to us to be an excellent vehicle with

which to promote better waste management of nonhazardous oily residues.

Comment 62C: Add the "delay of closure" rule. Adopting the federal language

provides an option that may prove to be the most beneficial in some situations

while retaining departmental authority to approve applications to allow

receipt of nonhazardous waste at land treatment units formerly handling

hazardous waste.

Our refinery disposed of 11,463 tons of nonhazardous waste at the onsite land

treatment facility in 1989. Because of capacity limitations in the

nonhazardous landfarm, about half of the yearly total went to the hazardous

waste landfarm. Alternative disposal would cost about $20,000,000 per year.

From a strictly environmental viewpoint, the hazards of transporting that much

material to an incinerator across the country are probably much greater than .

any potential problem that could arise from the continued disposal of nonhazardous wastes at a currently permitted, properly maintained, and'

extensively monitored facility.

Response 62:

Ecology has decided to adopt the "delay of closure rule." The rule

provides the flexibility to delay closure where there will be a positive

environmental benefit to managing non-hazardous waste in hazardous waste

management units. We will not allow this pr~ctice without careful

consideration of the conditions of the hazardous waste management unit

in question. Ecology will still retain approval authority over requests

to delay closure at hazardous waste management units for the purpose of

accepting non-hazardous wastes. Further, when approving a delay of

closure at permitted facilities, we may add such permit conditions as we

deem necessary to protect human health and the environment.

Comment 63: 610 (2)(b)(i). It is unrealistic and unreasonable to use

background levels as cleanup thresholds. Monies are better spent at sites

that pose a health risk rather than encouraging expenditures of funds at sites

that pose no health risk but at which "background' levels have not been

obtained.

Comment 63A: Removal of hazardous constituents to background levels is, we

believe, excessive. We propose the use of MTCA action levels instead.

• Response 63:

27
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We will consider this comment during the next round of amendments. At 0

that time the departments cleanup rules for MTCA sites will be final. \

Also, the federal subpart S (corrective action at subtitle C facilities)

rule may be final. We will be in a better position to determine a

course of action at that time.

WAC 173-303-620 Financial Requirements

Comment 64: Change the term "disposal miscellaneous units," it is awkward.

Response 64:

Replace with "miscellaneous units as specified in WAC 173-303-680 (4)"

which describes miscellaneous units that are used for disposal or that

cannot be clean closed.

WAC 173-303-630 (5)(c) Aisle Space

Comment 65: I support the three-foot aisle space requirement in loading and

unloading areas as well as in portable container storage units.

Comment 65A: We are opposed to stipulating aisle dimensions, for several

reasons. First the Uniform Fire Code already specifies aisle sizes, maximum

stacking. and required separation for purposes of visual inspection and

segregation of incompatible materials. Required dimensions vary depending on

the class of materials and amount stored. Secondly, to the extent allowable

under the fire code, generators should be allowed flexibility to store wastes C) to maximize efficiency of operations and use of space. Due to differing

volumes and classes of wastes stored by generators, containers may not need to

be placed in rows at all. A generator may use small containers which are

stacked or secured on shelves and thus readily visible. Portable storage

containers which are divided into small shallow rooms may be used, which do

not require aisles. Additionally, loading areas which are used for brief

periods (e.g. a day at a time) would not necessarily require aisles.

A general requirement for storing containers in a manner facilitating

inspection is preferable to a mandated aisle size.

Comment 65B: Define "row" so that two containers per row is acceptable.

Comment 65C: Define "aisle". Allow for the use of pallets as an aisle. Also,

340 (3) should read: Aisle space: The owner or operator must maintain aisle

space to allow the unobstructed movement of personnel, fire protection

equipment, spill control equipment, and decontamination equipment to any area

of the f~ci1ity operation in an emergency, unless it can be demonstrated to

the department that aisle space is not needed for any of these purposes."

Comment 65D: The specified three-foot separation is unnecessarily restrictive.

A 2.5 foot separation is adequate.

Comment 65E: A minimum aisle space of 30" is the usual width of a door, is

derived from "means of egress" described for high hazard contents within the

28 o
• General Safety and Health Standards of WAC 296-24 and the 1988 NFPA National'

Fire Code. and would be a reasonable and justifiable aisle space requirement

for WAC 173·303. We suggest "A three-foot aisle space separation is required

between rows of containers holding dangerous waste(s). Rows of containers

shall be no more than two drums wide."

Response 65:

Stacking or securing small containers on shelves can be a perfectly

acceptable method of storing waste, if, as the commentor suggests. the

label and the condition of the container is readily visible. If.

however. containers are arranged in rows (a row may be two drums wide --

or drums may be arranged two-by-two on a pallet) there must be at least

a thirty-inch separation between rows. Portable storage containers may

be used if the containers' labels and condition are visible at all

times. Loading and unloading areas not exempt from this requirement.

Add "A row of drums must be no more than two drums wide." Ecology has

decided to adopt a thirty-inch aisle space separation. This is done

primarily for the safety of departmental inspectors and to allow access

to personnel and equipment to dangerous waste storage and accumulation

areas. Of course, if the Fire Code rules require a larger aisle space

for certain wastes. then the Fire Code requirements must also be met.

WAC 173-303-645 Releases from Solid Vaste Management Units

• Comment 66: Define "statistically significant"

Response 66:

The statistical significance of a certain results will be determined by

the statistical methods that one uses. We cannot write one definition

for this term.

Comment 67: I support the term "detected in" which appears in the October 16.

1990 draft. It is superior to the term "entered, II which appeared .in an

earlier draft.

Response 67:

Support noted.

.. :- "_..

Comment 68: Do not delete the statement "Any waste or waste constituent

migrating beyond the waste management area . . . is assumed to originate from

a regulated unit unless the owner or operator can prove to the satisfaction of

the department that such waste or waste constituent originated form another

source" in section 645 (l)(a). (Ed. note: It is deleted in the 10/16/90 draft

rule) .

The burden of proof should rest with the facility and not with the department

to show where contamination came from. If the burden rests with the

• department it will be much more difficult to get a release cleaned up.

29
Response 68:

This language was deleted in the federal rule. We have followed EPA's

lead for now.

Comment 69: The term "regulated unit" is confusing. In the regulations

"regulated unit" means a land disposal unit. However, in practice, "regulated

unit means any dangerous waste management unit (including non-land based units

such as tank system or container storage areas). Replace the term "regulated

unit with "land disposal unit" in this Section. Also, change the definition

of "land disposal un i t " slightly to read:

"a unit on land or water in which dangerous waste has been placed for

disposal purposes. This includes but is not limited to landfills, waste

piles. injection wells, land treatment units, salt domes, salt bed

formations, underground mines or caves and any area where there has been

a release for which cleanup to background has not been.achieved."

Response 69:

The term "dangerous waste management unit" fits and should be used.

Comment 70: The term "Engineered Structure" should be defined. We suggest that

a permitted landfill be considered to be an engineered structure.

Response 70:

This term does not appear in the federal rules. Not knowing the

implications of this change we have decided for now not to adopt it.

WAC 173-303-800 (7) Permit Exemption

Comment 71: Add the phrase "meets the substantive requirements of this

Chapter" to the exemption so that consent decrees and orders are sure to have

such requirements contained in them.

Response 71:

Its in the Model Toxics Control Act RCW 70.1050.

Comment 72: We endorse Ecology's intention to facilitate Model Toxic Control

Act (MTCA) cleanups by exempting them from otherwise applicable dangerous

waste TSO facility permit requirements. Through the MTCA process. Ecology .

has the ability to impose any conditions necessary to protect human health and

the environment. However, we have the following concerns regarding the

proposal: First, it is important that Ecology secure and document EPA's

written concurrence with the permit exemption in the responsiveness summary

prepared for this rule-making. Second, Ecology should reconsider its apparent

decision not to provide a permit exemption for independent actions. Requiring

compliance with full TSO permit standards and procedures for onsite treatment

and or storage of dangerous wastes would tend to discourage independent

actions. Ecology should,therefore, establish a system whereby an independent

30

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• cleanup owner or operator could receive a case-by-case permit exemption from'

Ecology. Third, if no case-by-case exemption is adopted, Ecology should

establish an expedited permitting procedure for MTCA cleanup sites.

Comment 72A: We believe that orders or consent agreements will delay or

roadblock voluntary cleanups. Voluntary cleanups should be categorically

exempt from the permit process.

Response 72:

Ecology believes it necessary for the agency to maintain legal control

over the treatment, storage, and disposal of dangerous waste in

Washington. The our responsibility under 70.105 RCW. However, we are

convinced that the MTCA site cleanup process, when done through a

consent agreement or order signed by the department, gives us the

assurance that treatment, storage, and disposal of dangerous wastes will

be conducted in a manner protective of human health and the environment.

Without such a legally enforceable document and Agency approval, as in

the case with voluntary or independent cleanups, we cannot grant such an

exemption.

A permit would be required where, say, a dangerous waste incinerator

were brought on to a cleanup site to treat wastes and contaminated •

soils.

Remember, a permit would only be required

storage, or disposal of dangerous wastes.

contaminated soils and shipping them to a

facility would not require a permit .

for on-site treatment,

Actions such as digging up

permitted dangerous waste

•

We do not have the human resources necessary to set up a separate

permitting system for MTCA cleanups. We anticipate that high priority

cleanups will be accompanied by a large degree of commitment from the

department to gain a consent agreement or to issue an order.

Lastly, EPA approval cannot be secured at this time. A formal process,

known as state authorization will occur subsequent to the adoption of

the proposed rules. EPA has been given drafts of the rule and

opportunity to comment. No adverse comments have been received to date

regarding the proposed permit exemption.

WAC 173-303-802 (5) Permit by Rule

Comment 73: The preamble states that Ecology intends to deny permit by rule

status for facilities that only store or dispose (instead of treat) dangerous

waste. However, requiring treatment also denies permit by rule status for

facilities that do not treat their wastes but whose waste may already meet

pretreatment standards. The preamble states "In no case will generators or

TSD facilities be allowed to discharge untreated or unpermitted dangerous

wastes to sewer systems." This policy will eliminate disposal options for

wastes that are hazardous by regulation only. A research laboratory may

generate wastes that are regulated solely because they contain very low levels

31
of listed wastes that are extremely expensive to treat because they are mostly G'

water (99.999+%). The waste may be generated with specific concentrations

below that of LOR (land disposal restriction) approved treated wastes. Please

consider allowing the POTW the flexibility to continue to set standards for

acceptance of wastes, rather than a blanket requirement of no untreated

wastes.

Response 73:

The intent of permit by rule is clearly for treatment of dangerous

wastes. The terms publicly owned treatment works (POTW) , totally

enclosed treatment facility, elementary neutralization unit, and

wastewater treatment facility all include or imply that treatment takes

place. Each of the applicable water quality permit types (NPDES, state

waste discharge, pretreatment) in the permit by rule provisions of WAC

173-303-802(4) and (5) are designed for treatment of waste rather than

storage or disposal.

The amendments are intended to prohibit the discharge of untreated

wastes (that are identified by regulation as dangerous) to sewer

systems. It should be noted that federal LOR treatment levels do not

necessarily correspond to a safe or low-risk level for hazardous

constituents discharged to a sewer system. Rather, the LOR program

establishes regulatory levels for hazardous wastes destined for "land

disposal" facilities (defined as landfills, land treatment facilities,

waste piles, surface impoundments, etc.) as defined under RCRA Subtitle

C.

Finally, it should be noted that POTW's may choose to receive untreated

dangerous wastes for treatment, provided that the owner/operator meets

the permit by rule requirements of WAC 173-303-802(4). Owner/operators

of facilities with permits by rule are not required to submit an

application for a dangerous waste facility permit. However, the POTW

does not have the authority to grant or determine permit by rule status

for their upstream business or industrial dischargers under WAC 173-303-

802(5). Determining compliance with permit by rule remains the

responsibility of Ecology, under both the existing and proposed rule.

This authority cannot be delegated to the local POTW.

No change is made.

Comment 74: This comment was found to be a duplicate

Comment 75: The proposed regulation states that "a NPDES permit, state waste

discharge permit, pretreatment permit (or written discharge authorization from

the local sewerage authority)" must be obtained to utilize permit by rule for

elementary neutralization. The essence of elementary neutralization is to

discharge a non-regulated substance. Why should a permit be necessary for

this type of discharge? Requiring these permits would appear to eliminate the

possibility of elementary neutralization and the subsequent reduction in

hazardous waste generation.

32

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•

•

Response 75:

Permit by rule is defined by WAC 173·303·040(63) as "a provision of this

chapter stating that a facility or activity is deemed to have a

dangerous waste permit if it meets the requirements of the provision."

Owner/operators with permits by rule are not required to submit

applications for dangerous waste facility permits. ·Permit by rule

pursuant to WAC 173-303-802(5) is a provision which allows for the

treatment of dangerous wastes, provided certain requirements are met.

Elementary neutralization is a type of treatment. If a person treats or

neutralizes dangerous waste in a totally enclosed treatment facility,

elementary neutralization, or wastewater treatment unit, the permit by

rule requirements must be met.

One condition of permit by rule is that the applicable water quality

NPDES, state waste discharge, pretreatment (or written authorization)

permit be in place. While the Dangerous Waste Regulations do not

require a permit for the discharge of a non-regulated substance, a

permit by rule is applicable for treatment of dangerous waste prior to

the discharge.

No change is made.

Comment 76: This section of the proposed regulation indicates that an

elementary neutralization unit, totally enclosed treatment facility, or

wastewater treatment unit will have a permit by rule only if the

owner/operator has a National Pollution Discharge Elimination System (NPDES)

permit, state wastewater discharge permit, pretreatment permit, or written

authorization from the local authority, for the discharge. This requirement

would greatly reduce the availability for permit by rule status. For example,

many elementary neutralization units and totally enclosed treatment facilities'

have no discharge, and hence would not have any of the specified permits.

Based upon the language in the proposed rule, such units could not qualify for

permit by rule status. We recommend that the regulatory language be revised

to indicate that the permit requirement listed in WAC l73-303-802(5)(a)(i) is

a prerequisite for permit by rule status only when the treatment ·unit involved

has a discharge subject to such permit requirements.

The proposed language indicates that the pertinent permit (water quality) must

provide for the use of all known, available, and reasonable methods of

prevention, control, and treatment of pollution ("AKART") pursuant to Chapter

90.48 RCW prior to discharge. At a federal facility, the NPDES permit would

be issued by the EPA under authority of the Clean Water Act rather than

Chapter 90.48 RCW. The AKART terminology is not used in the federal program,

although a similar philosophy exists. Does Ecology consider the "best

available technology" process under the Clean Water Act to be equivalent to

the AKART process under Chapter 90.48 RCW? If so, consider revising the

proposed language to indicate that, at federal facilities, existence of a

valid NPDES permit issued by the EPA is sufficient to allow a facility to

qualify for the wastewater treatment unit permit by rule. If not, provide

some guidance as to what additional requirements must be met to demonstrate

AKART at federal facilities with NPDES permits.

33
, .

Response 76:

Comments noted. Discussions with Ecology's Water Quality program staff,

confirm that units which do not result in a discharge may be subject to

permitting under the state waste discharge permit program pursuant to

Chapter 173-216 WAC. Therefore, elementary neutralization units and

totally enclosed treatment facilities with no discharge can potentially

qualify for permit by rule status, provided the other conditions of WAC

173-303-802(5) are met.

While the issue of Chapter 90.48 ROW vs. Clean Water Act authority at

federal facilities is beyond the scope of this responsiveness summary,

Ecology Water Quality Program and Nuclear and Mixed Waste Program staff

indicate that Chapter 90.48 RCW is applicable. Staff in these programs

will be responsible for determinations about the equivalency or

applicability of AKART and "best available technology". In either case,

the requirement to have an NPDES permit is only one of the conditions

necessary for permit by rule, under both the existing and proposed rule.

No change is made.

Comment 77: The proposed requirement that the discharge from a wastewater

treatment unit must not contain ERW's [WAC l73-303-802(5)(a)(iv)], poses

difficulties for treatment facilities which are capable of treating

wastewaters containing listed wastes that are classified as ERW. This

requirement prohibits treatment of wastes which contain any concentration of U

or P listed wastes designated as ERW in WAC 173-303-9903,· since the resulting 0

wastewater will still carry the listed waste code and EHW designation

regardless of concentration of the waste in the treated wastewater. The

monitoring parameters and enforcement responsibility for discharge~ of

specified levels of chemicals listed as EHW in wastewaters should be

incorporated into the NPDES permit or into a POTW pretreatment permit.

Amendments to the NPDES rules in Section 40 CFR Parts l22and 403, published

July 24, 1990 (FR), address the discharge of wastewaters from TSD's to POTW's.

As such, Chempro recommends that this requirement be removed from the revised

Permit-by Rule section.

Response 77:

For listed wastes, even if the permit by rule requirements are met, the

resulting discharge may still carry the waste code and ERW designation

regardless of the concentration of the hazardous constituent in the

treated wastewater.' This is because of the "mixture" and "derived from"

rules for listed wastes [see WAC l73-303-070(2)(a), -081(3), and -

082(3)]. Ecology does not believe that U and P listed wastes should be

treated in permit by rule facilities. These wastes are by definition,

unused or off-spec commercial chemical products or manufacturing

chemical intermediates. These wastes should be collected in their

concentrated form and sent for proper management to a permitted TSD or

recycling facility. These wastes might not be effectively treated,

with ultimate discharge under water quality permits considering the

listed waste issues described above.

34 o
•

•

•

Ecology agrees that the prohibition on the discharge of EHW is

problematic. For example, some wastewater treatment units may be

capable of -treating certain F003 code wastes listed for reasons of

ignitability only. Ecology believes that the proposed rules of WAC 173-

303-802(5)(a)(i) - (iii) satisfy the requirements of permit by rule. In

addition, the new NPDES rules in Section 40 CFR Parts 122 and 403,

published-July 24, 1990 (FR) will, in part, address the discharge of

hazardous waste constituents from TSD facilities.

EC9logy therefore has removed WAC 173-303-802(5)(a)(iv) in the final

rule. Ecology plans to produce guidance in the form of a Technical

Information Memoranda (TIM) on the domestic sewage/industrial wastewater

exclusions and permit by rule in the future. This issue may be

considered further in future rule amendments to Chapter 173-303 WAC.

Comment 78: Under existing rules, if the POTW is willing to accept dangerous

wastes for treatment and the waste meets pretreatment standards, then it can

also flow through the domestic sewer system. To remove the existing language

would discriminate against those businesses who are not "totally enclosed

treatment facilities," yet can meet the same requirements to the POTW's

satisfaction.

Response 78:

The requirements that permit by rule facilities meet certain strict

definitions found in WAC 173-303-040 is intentional. Permit by rule is

an allowance for treatment of dangerous waste without the need to obtain

a dangerous waste facility permit, provided that the requirements of

another authority (NPDES, state waste discharge, pretreatment) cover the

activity. The definition for totally enclosed treatment facility,

"prevents the release of dangerous waste or dangerous waste constituents

into the environment during treatment." This, combined with the permit

by rule requirements of WAC 173-303-802(5) as proposed, are necessary to

protect human health and the environment.

No change is made.

Comment 79: On September 12, 1990 we suggested that you include WAC 173-303-

300, General waste analysis, in the requirements for permit by rule under WAC

l73-303-802(5)(a)(iii). It was not included in the October 1990 proposed

amendments. It is suggested again by this correspondence. Perhaps it could

be listed in WAC l73-303-805(b) as a possible requirement "upon request of the

Department."

Response 79:

The requirement to designate waste pursuant to WAC 173-303-070 was added

to the permit by rule provisions of WAC l73-303-802(5)(a)(iii) in the

proposed amendment. This requirement ensures that an owner/operator

confirm the status of the waste they plan to treat in a permit by rule

facility or unit.

35
Adding more rigorous requirements, such as waste analysis, to permit by

rule provisions will be considered in future rule amendments.

No change is made.

WAC 173-303-805 (7) Changes During Interim Status

Comment 80: What criteria will the department use to review and approve Part A

applications regarding new waste codes?

Response 80:

The department wants to have some assurance that the facility accepting

the new waste codes will be able to treat, store, or dispose of the

wastes represented by the new waste codes safely. Therefore, the

department expects the facility's application or accompanying

documentation to demonstrate that the facility has the equipment,

capacity, and capabilities to manage the new wastes in a protective

manner.

Comment 81: Give department more time to review Part A's. Specifically, allow

the department to "respond" within 60 days. This may be just a letter saying

that the department needs more information or that we are reviewing the

application.

Response 81:

This provision is designed to allow the department to deny changes to

Part A applications if the TSD facility does not have the capability to

treat newly identified wastes. If the facility does not adequately

demonstrate in the application that it has such capability, then the

department can deny the application within 60 days. If the department

needs more information, it will have to let the facility know (and the

facility will have to respond) early on in the 60 day window. However,

we want to limit the time for review and decision. No change._

WAC 173-303-960 Imminent hazard

Comment 82: The language on access must be consistent with the statute (70.105

RC\.l) .

-Response 82:

The language in \.lAC 173-303-960 in no way alters the basic "right of

entry" provision given in Chapter 70.105.130 (2)(d) RC\.l. This is an

additional right of entry where imminent and substantial endangerment

exists.

\.lAC 173-303-9903 Discarded Chemical Products List

Comment 83: Change the Asterisk key to reflect changes in section 103 and 084

regarding carcinogen terminology. Also, replace EP Toxicity~with Toxicity

36

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•

»,

Charactert.stic;" 0'

. . . :!"

Response 83:

Done.

Comment 84: Change the X, A, B, C, 0, categories to reflect 40 CFR 302.4.

Response 84:

We need to further investigate this comment before making a change.

WAC 173-303-9904 Dangerous Waste Sources List

Comment 85: EPA issued a

Mr. J. V. Day, of Kaiser

of Spent Potliner K088.

letter on March 6, 1989 from Mr. Devereaux Barnes to

Aluminum (see Appendix C) clarifying the definition

The letter stated that

•

"only the carbon portion of the material contained inside the

electrolytic reduction cell constitutes the 'potliner.' The K088

listing does not include other materials contained in the 'pot' such as:

1) the cell's steel shell; 2) steel collector bars; 3) cast iron used to

place steel collector bars in pre-baked carbon blocks; 4) thermal

insulation composed of insulating brick or alumina; 5) the silicon

carbide brick walls and end walls of a pot; and 6) frozen aluminum metal

pad and electrolytic bath."

Please clarify that the State definition of Spent Potliner, K088, is

consistent with the above referenced EPA letter.

Response 85:

We concur.

WAC 173~303-9906 Toxics Mixtures Graph

Comment 86: The graph is misleading as shown. Since the graph is a waste

designation tool the line at 220 pounds should be removed. The graph should

only show two categories of waste, OW and EHW. If you want to remind people

of the QELs and the Small Quantity Generator exclusion, you can do so in a

footnote. {Let's try to keep waste designation and generator status _sepa~ate.

Let's clarify that specific waste streams of less than 220 pounds at large

quantity generators are regulated.}

Response ,86:

This issue is scheduled to be addressed during the next round of

amendments.

WAC 173-303-9907 Persistent Waste Graph

• Comment 87: This graph is misleading and should be deleted. The graph is'

37
redundant to the table in WAC 173·303·102. If you wish to keep the graph for

the purposes of illustration, remove the horizontal line at 220 pourtds'and 0

extend the vertical line at 1.0' to, the X axis. {Let's try to keep waste

designation and generator status separate. Let's clarify that' 'specific waste

streams, of less than 220 pounds at large quantity ge,nerators)'r-e regulated.}

Response 87: '

This issue is scheduled to be addressed durLng the next; round' of

amendments.

WAC 173-303-9906 and 9907 Waste Mixtures Graphs

Comment 88: Changing the undesignated portion of the graphs to small quantity

generator waste may be unwarranted. We request that wDOE review the basis for

the current regulation and explain what experiences suggest that cha~ges are

needed. The proposed change is significant because it would capture 'a,wide

variety of small quantity wastes which do not merit the cost of being treated

as a dangerous waste.

Response 88:

The department plans to issue guidance on this issue. Also, this issue

is scheduled to be addressed during the next round of amendments.

General Comments

Comment 89: We are convinced that the existing regulations are a bare minimum ()

---/ that must be maintained, and that in some areas the existing regulations need

to be substantially strengthened to ensure protection of public health and the

environment. While we can support efforts to clarify the state dangerous

waste regulations, we will not support any changes that weaken existing

requirements.

Response 89:

Qualified support noted.

Comment 90: I think the department should do more in'the way of encouraging

compliance and waste reduction. I like the way the department has been

publicizing success stories. Also, I believe the department should help small

generators more. Perhaps subsidize the collection of small business wastes

like used oil and waste solvents.

Response.90:

Comments noted.

Comment 91: Used oil should not be defined as a hazardous waste. Also, we

shouldn't concentrate used oil at big facilities. The natural processes in

the environment can break down oil on their own.

38 o
•

•

•

, "

.. E,. :::"::

: '. fed~~al' ,'regul~tions have not yet listed used oil as a hazardous waste,

alth0}1g:tt- they; may in the ,futu,re~ Much of the used io Ll stream exhibits a

characteristic like ignitability or contains toxic constituents such as

lead or cadmium and'therefore is designated as a dangerous waste.

However, even so, it can be burned for energy recovery at a fairly low

, cost "~t;ld,, w,~th,,;a, minimalr~gulatory burden. Used oil can and does cause

'problems'in the' environment and we feel justified in maintaining the

present system of regulation.

Comment 92: We need to find more locai management facilities for dangerous

wastes in the Spokane area. The waste disposal project that the state

L~gislature plan~ed,f.or,.at Hanfordh.as never been built.

Industries are r~l~a~i~g:,massive quanti~ti~s 'of toxic substances into the air

and t:he:Clean Air;, Act won't ,touch them ;o.r years.

I don't like the way the department of ecology'S reorganized. I don't think

it is as effective as it once was.

The cleanup standards under Initiative 97 should be stringent and not take

economics into account so much.

In spite of my criticisms, I think its a great organization and will grow more

responsive to public interest in the future. In any case, I'm happy to see as

many people as this in one of these meetings. This is about the best 'turnout

that I've seen for one of these meetings on toxic and dangerous waste that has

taken place in the Spokane area.

Response 92:

Comments noted.

'rc •

39
Explanation of Cbanges to the Proposed Rule

~" .~. . -. .', , ;. o

Section 040 Definition of Director '.. ':. < •

''f '_ .~, ..'. \ ", ~"

This definition was amended to clarify the meaning of the ,term and to include

";~. f ::: "or his designee." _

Rationale for change: :- .-

This change was made

that the Director of

this Chapter without

to be consistent with the definition in 70.105 RCW and so

the department 'can take ac t fonsrnecessary to iiIiplement

actually havfng Yo _do everythfng 'him/lietself.. i.':' ' ... .-" .:.' '. .~. '....

Section 070 (3)(c) Waste Designation f '!: ....:

The phrase "lists or characteristics" was changed to "lists and

charac t.e r Lst Lcs., ", ',' ," :.

Rationale for change:

This change was made to make the designation rules consistent '~lth ' ,

federal hazardous waste land 'disposal restrlction~. 'Federal regulations

require that generators use allapplicable'waste codes, and abide hy all

applicable treatment standards for those codes. . . .,

Under the amended' rule, gene r atiors will have 'to go on to designate their

wastes through the sections on Lls t.s , mixtures, and characteristics.

Previously, generators could have stopped after reaching a designation

through, say, one of lists and did not have to proceed with the other

two sections.

o

The entire land disposal restrictions rules'will be added to this'

Chapter in the future. The change,above win reduce confusion'bet"';'~en

now and ,the future amendment.

071 (3)(k)(iii)(A), PCB Waste Accumulation.

In response to public comment, the change made in the proposed rule is

deleted.'

Rationale ,for change:

This was done to reduce confusion. See comment number 32.

084 (5) ',Waste mixtures designation

We ;are adding to section 084 (5): "If EPA's Spill Table and'ih~ NI~SH Registry

do not agree on the same category, then the category arrived ~t"through the

NIOSH registry will take precedence."

Ra.t LonaLe .for change: "

40 o
• This change was done to eliJiinate the problem' caused by inconsistencies

with the EPA Spill Table. See comment number 36.

Section 120 (4) Recycling Facility Requirements ..j .

"Compliaric~'-dates for 'tank"systems at dangerous waste recycling .facilities have

been added to the final proposed rule.

Rationale for change:

,-0'. •• J

.;'", .

:~'i~cet~e.s·e: :.ta.~s need to.meetsecondary containment and certification

·standar.ds.~nd-s.Ince .many o,f these.dates have already passed, ,new dates

for compliance' appear in 'the 'final rule.

•

•

Section 145 Spills and Discharges

... ,:.' -.

In accordance with our aim to have almost all spills and releases of dangerous

waste and hazardous substances reported to the department by telephone, we

have changed the structure of this section. The terms ",environment" and

"affecting human health and the environment" have been deleted. Thus, spills

and releases to the ground, ground wateI';, ·surface ·water, asphalt pavement , and

concrete, etc." .including spills of .to secondary conta.inment systems' (if they

,meet or exceed If> gaLlons) , .~ust be reported to the -depa r tmerrt .

! .. . . .

The only exception to :,the"reporting requfreraent; is for small spills to

secondary containment areas tha·t·meetthe ,requirements of the Chapter. These

spills may be report~d to the department or an account of the spil~imust be

written into the oper~ting record (for aTSD facility), or the inspection log

or a separate spill log (for a generator). Generators have a choice of which

system to use. Thus. for example, a spill of less than ten gallons that

occurs in a tank system's secondary containment area [if the secondary.

containment meets the applicable requirements of WAC 173-303] need not be

r epor t ed, .Lf an. account; is- written in accordance with subsection (2) (d). Of

course, container storage or accumulation areas would have to meet the

requirements of WAC 173-303-630 (7) or 173-303-400, whichever applies.

Rationale for change:

After considering several options, it was decided that the easiest way

for the regulated community to report spills or releases was to pick up

the phone and call the appropriate regional office of Ecology (or'the

toll free Department of Emergency Management phone number). If the

spill is truly insignificant, then spill staff can say "thank you very

much for calling." Alternatively, spill staff can and do advise callers

on a course of action for containing and cleaning up spills and

releases. Further, the frequency and circumstances surrounding spills

at facilities can be an important indicator of operational or compliance

problems.. If these events are not reported,then important.

opportunities for environmental protection are lost.>

One of the primary goals of this Chapter is to assure that sites do 'not

become contaminated. Unless the department is aware of "routine" or

41

"
accidental spills and discharges, this goal ca~ot be fulfilled. Many'

~~:~~i:;:~" so;ven~s can mi$r~te,~~rough eoncrete ~~~~ o~her' such:::,'.' ~~;. 0

The affect of changes in this section is to clarifY. that 'alF spills"and

releases of dangerous waste and hazardous substances are reportable.

However, we do not consider' a phone call - - "so -that' w~ ':can 'keep

industrial sites clean - - to be 'too ,much to ',require :T;~)" -,,' ..,":",, .,', . .~. -" .

For releases from tank systems, generators and TSD facility owners and

operators do not have to report spills', of' less than 'one 'pounci, if they

., are .immediately contain,ed and cleaned up.' ',\ '" ,,, ' .. :). ~.: .r: :~ ~.: ., i

Section 200 (l)(e) Accumulating-,Dangerous' Waste OIl-sid':" " . .. ;.~~ .'.

.:» L .

WAC 173-303-200

262.34) in that

he/she gets rid

such exemption.

(l)(e) is less stringent tharithe federal rules (40 CFR

it allows a generator to evade theaccWihiiation standards if

of hisfher waste within 10 days. The federal rules contain no

Rationale for change: . . ;..l . " . .

This is a problem which risks loss of state authorization under RCRA.

Therefore, Ecolo:gy: has' deleted this 'p,aragraph' in the f·inal rule. oS. r:j. .' .• '~~ .

515 Burning Used oil for energy recovery

The amendments to section 515 (4)(b)(vii) of the October 16, 1990 Draft has

been deleted from the .fLnaI rule.

Rationale for change:

Because of the uncertain secondary impacts on the used-oil collection

market that may result' from increased regulation, of~'used-o~f':,storage

f!iciUties, Ecology is withdrawing)"its proposal in the final' rules. We

will, continue to research the', economic and environmental aspects of this

situation. However, we suspect that there may belinacc::eptable:

,environmental and human health threats that are associated'withthe

processing, storage, andburning'of used-oil fuels. Specifically, we

s~spect that used-oil that is contaminated with metals and/or '

chlor,inatedorganicso1ventsis being' burned in marbie diesel' engines

and used-oil fired space heaters. We will reconsider amendments that

strengthen testing, recordkeeping, and other operational 'requirements in

the near future.

Section 610 Closure

We have added the "delay of closure" rule to the final proposed amendments.

This change was made so that the department would have the flexibility to

allow hazardous waste units to delay closure and accept non-hazardous waste

under certain conditions and with prior approval of the department. This is a

change that EPA has made in the federal rules. However, since it is a less

42

o

o
• "~jtring~~;~;~b1~ni~':!,E~~1~g;: p~d l,the, op,ti~~:~f adopt Lng.or not.adopting this

change. Ecology has decided to adopt the delay of closure rule;

.)..~a~~onale . +or ~~a,nge: ", ," . ' .. ' . . ! '3 . ...

.. ,', w~: propose~'~~t"tO"~dOP~" thi~ '~hange in the d~~f~' rule .

because of p'ubl,ic commerrt, and: the·desire for flexibility

department we are adding this rule to the proposed final

.However ,

within the

regulation.

-.: ·::.~::-··.·rhe·r.emay;~·b'~ .'~·itu~.t~on~"whe~~ "~e '~~'uld ;llow, under the strict,

. conditions ~set 0 forth in ',the J'loile· (?n~ perhaps other conditions set forth

in a TSO permit), and with prior approval from the department, nonhazardous waste,to be treClted~r.~i!?;posed of. a,t hazardous waste . . ":.

management units. For example, if the available alternative management

:;.methods were -no;ta,s e~virC?nmen~~lly·protective,itmay be prudent to

" ~: ::,~llow manag~m.e,~t..pf non-hazardous ,wa.s~e in this way.'

o.. Or'This chan:~ :~rima.'rily ~ff~cts section 610, ~~~ there are conforming

changes that occur in other sections as well.

Section 630 (5)(c) Container Management Standards

• - • : z:

•

•

We' proposed a minim~ aisl~ .space requirement of· thre.e: feet in the pr.oposed

rule. this has been changed 'to 30 inches in the final proposed rule.

Rationale for change:

. . N' .' ." I.'.

We are changing this minimum requirement to' 30 inches in the' proposed

final rule primarily because of concerns that in some cases, especially

at generator facilities where less than a few dozen drums are being

accumulated for 90 days or less, 30 inches may be adequate aisle space.

".,:... .." ...

;;1 .. o~e fully exp~~t:·..how,eye-~, that. a. three fo~t aisle space will, be :required

-;', . at..TSP facilitie~ where,: nume rous.. -dzums occupy the. storage area':' We see

~ha~.~ ~':,thr~e: fOO~i aisle space is optimum for most storage areas, and

expect. that the three-foot· requirement will be written into permits for

.most.if.not all TSOs. However, s Lnce, section 630 also applies to

generators, some special cLrcumstances.imay .exi s t such that- 30 inches

wouid be a m~rer,.appropr~a.t.e, distance 'between rows of 'drums 'containing

.dangerous waste" Thus, the ru1e,which:is 'intended to be a minimum

, (Lndaed , t;h~ ..Uniform Fire. Code requires more than a three foot',

!'~= iepa~~tionii~-some cases), says 30 inches.~ -

.. ':':":,:

43