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RESPONSIVENESS SUMMARY AMENDMENTS-TO THE DANGEROUS WASTE REGULATIONS Chapter 173-303 WAC

Washington Department Of Ecology 

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• Introduction and Background Statement The Department ofEcology is authorizedby state statutory law to adopt rules regulating the generation and management ofhazardous waste by Chapters 70.105 and 70.1050 RCW. Ecology is further authorizedunder federal regulations (40 CFR Part 271) by the U.S. Environmental ProtectionAgency (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 RCRAprogram inWashington. Further authority to carry outRCRA amendments is contained in Section (3)(d) ofRCW 70.1050, the Model Toxics Control Act. The purpose ofChapter 70.105 RCW is to provide a "comprehensive state-wide framework for the planning, regulation, control, and management ofhazardous waste which will prevent land, air, andwater pollution and conserve the natural, economic, and energy resources of the state." The,Act also states as its purpose, providing "broadpowers ofregulation to the department of ecology relating to management ofhazardous wastes and releases ofhazardous substances;" Section 70.105.130 RCW authorizes Ecology to establish standards for the safe transport, treatment, storage, and disposal ofdangerous wastes as may be necessary to protecthuman health and the environment and to "adopt rules necessary to implement this section." SummaryofRule Purpose These amendments'are being proposed for two major reasons: A. First, some amendments are requiredby federal regulation (40 CFR Part 271). Ecology is authorizedbyU.S. EPA to carry out the federal RCRA (hazardous waste) program inWashington. In order to remain so authorized, periodic amendments to the state Dangerous Waste Regulations, Chapter 173-303 WAC, are required to keep the state programup 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 identifiedby Ecology staff, regulatedbusinesses, and the public. The changes are intended to: enhance Ecology's ability to enforce the regulations; clarify the intent ofeX1sting language; make certain rules more practical to comply with; or enhance protection ofhumanhealth 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 ofhazardous wastewaters; and 3) an exemption from obtaining a hazardous waste permit for Model Toxic 1

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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 whohad notified the Department that they conduct dangerous waste activities on their sites as well as other interested persons, totaling over 5000 individuals andbusinesses. 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 ofthe 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 inAugust 1990. This included all.persons who attended the workshops, as well as other interested persons. Acomment 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 ofa "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 periodbegan 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 ofNon-significance and Economic ImpactAnalysis ASEPA Determination ofNon-significance and a Small Business Economic Impact Statement were filed on October 16, 1990. The comment period for the SEPA Declaration ofNon-significance ended on December 13, 1990. No SEPA-related comments were received. 2 

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• Summatypescription ofpevelopment ofProposedRule Ecology developed a skeletonversion of the proposedAmendments in the fall of 1989, Afterholdingworkshops 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 interestedpersons (all those attending the workshops or who otherwise expressed interest) in the Summerof 1990. The Draft Rules were filed in October andhearings held in December.of 1990.

ScheduledAdoption Date The Dangerous Waste Regulation AmendmentRule is'scheduled for adoption on March 7, 1991. Ifadopted on schedule, the effective date of the rule would be April 7, 1991.

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3Comments 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 ofwhich 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 tankbottommaybe 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 positionbecause of the alphabetizing of this section. Comment 3: Change the definition ofthe term "director" to include "orhis 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. Anote 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 generatedby business or industrial sources thathave been managed pursuant to the permit by rule provisions ofWAC 173-303- 4 

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802(5) may mix withhousehold or residential sanitary wastes in a sewer systemthat is downstream from the business or industrial source. The mixture wouldbe 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 inwhich an industrial discharge would not be subject to the Dangerous Waste Regulations ifadequately treated prior to discharge. Under both the existing and proposed Dangerous Waste Regulations, ifan 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. Ifafter 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 ofEcology's intent, the preamble note might be modified to read: "(Note: Ifdangerous wastes generatedby business or industrial sources that have beenmanaged pursuant to the permit by rule provisions ofWAC 173-303-802(5) are not dangerous wastes at the point that they are discharged into the sanitary sewage system, they are not subject to ._.; Dangerous Waste Regulation.)"

...:;.:.. Response 4: Agreed. Ecology's intentwas not to expand the scope of the proposed. domestic sewage exclusionwith the wording ofour preamble comment:' It:C:: should be remembered that preamble language is for guidance, and to -' express the intent ofa rule or rule amendment. The language ofa preamble statement shouldnot and cannotbe substituted for the**meaning~­** of the actual regulatory language ofChapter 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 neutralizationhas been conducted in accordance with all the permitby rule provisions ofWAC 173-303-802(5). The commenter's suggested language is better, and for clarity, Ecology is modifying the preamble note to read: "(Note: Ifdangerous wastes generatedby business or industrial sources that have beenmanaged pursuant to the permitby rule provisions ofWAC 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 ofthe Dangerous Waste Regulations.)"

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### ,.Comment 5: The definition of "domestic sewage" [also found at WAC 173-303- 

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. 071(3)(a)] shouldnot be limited to residential sources, because sanitary waste is not limited to such sources. The proposed definitionwould appear to eliminate the exemption, since the words "and any mixture ofdomestic sewage and other wastes" that passes through a sewer system to a POTW for treatment" wouldbe deleted. Response 5: The proposed amendment limiting the definition of "domestic sewage" to residential sources is intentional. The basis for Ecology's rule amendmentwas an October 26, 1989 decision issuedby the U.S. First Circuit Court ofAppeals. In Comite Pro Rescate de la Sa1udv. Puerto Rico Aqueduct and Sewer Authority, et al., the court determined that the term "domestic sewage" in RCRA refers to the point oforigin of untreated sanitary wastes, thatbeinghouseholds and residences. The court found it "

...difficult to believe Congress wouldwish to exempt potentially large amounts ofindustrial waste from the statute's [RCRA] scope simplybecause they mix with some small amount ofbathroom sewage." Thus, Congressional intentwas 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 producedby a toilet at a restaurant, bakery, motel, or industry is not materially different from the wastewaterproducedby the toilet in your own home. The proposed definition opens the way for dangerous waste permitting of sanitary wastes solelybecause it is generated at the work place. This approach contradicts the regulatoryhistory inmost states and represents a strong departure from the intent offederal 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 sanitarywastes are, ofcourse, generated by business or industrial sources, they will nothave the characteristics or criteria ofdangerous wastes andwill notbe captured by the Dangerous Waste Regulations. The change to the definition of "domestic sewage" is necessary to preventbusiness or industrial sanitary wastes that have beenmixedwith dangerous wastes from being excluded. Permitting ofuncontaminated sanitarywastes generated in the workplace will not be necessary. Nochange 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, 6 

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# •• etc.) should not qualify for exemption from Dangerous Waste Regulation requirements? It shouldbe recognized that untreated sanitary waste maywell fail the toxicity tests ofWAC 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 in40 CFR 261.4 of the federal hazardous waste regulations. Ecology regulatory experts, chemists, andhazardous waste specialists have indicated that it is highly unlikely that untreated sanitarywastes from nonresidential sources will fail the toxicity (fish and rat bioassay) tests ofWAC 173-303-101. No change is made.

[It shouldbe 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 neutralizationunit" 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~** andbases wouldbe designated due to toxicity underWAC 173-303-084(5) or - - 101, andhence couldnot qualify for elementary neutralization per the definition. We recommend that the definitionbe revised to include neutralization ofacids andbases that are toxic under state code, but not listed due to toxicity under the Federal RCRA regulations. 

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# • .. The definition of "elementaryneutralizationunit" was intended to be conservative, and to provide for simple neutralization of corrosive wastes, where toxicity ofthe waste was not a factor. However, Ecology believes that the definition is flexible enough to allow for incidental de-toxification ofcorrosive wastes, which are also designated due to toxicity only under WAC 173-303-084(5) or -101, ifthis is accomplished purely by the neutralizationprocess. Treatment ofdangerous wastes designated for reasons of toxicityby the federal rules cannot occur in elementary neutralizationunits. No change is made

.. Comment 9: Wastewater treatment unit. It is ourunderstanding 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 InformationMemoranda) 84-6. Provided that TIM 84-6 remains in effect, we do not have a concernwith these proposed amendments

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7Response 9: [It shouldbe 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 ofTIM84-6 has revealed some concerns with the content of the guidance document, andwe reserve the right to clarify, amend, or revoke it. The concern is that the information is quite dated andwas writtenbefore several significant statutory and regulatory changes, at the federal and state level. Specifically, the 1984 Hazardous and SolidWaste 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 "solidwaste" in 1985. Ecology has revised its regulations to remain consistent with some of the changes ofthe federal program, and this may require amending or revoking earlier guidance documents. The current domestic sewage/industrial wastewater exclusion rule amendments mayalso require alteration ofTIM84-6. Ecology will keep interested and affected members ofthe 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 wouldbe affected. Response 10: Ecology was not able to simplify or rewrite the definition ofwastewater treatment unit and retain its exact regulatory meaning. This type of revision will be attempted again during future "regulatory reformatting" efforts. Nochange is made. Comment 11: The definition of in-ground tank is unnecessary. We propose its elimination. The definition ofon-ground tank is also unnecessary. We propose its elimination._ Response 11: These terms are used inWAC 173-303-640 (7) to delineate which tank systems, that have already leaked, require secondary containmentbefore 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: UndergroundTank. We object to this definitionbecause 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 petroleumproducts**~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 alteredby this proposal

- they merely changed positionbecause of the alphabetizing of this section. Comment13: This comment was found to be a duplicate Comment 14: Water (contaminatedwith 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 providedby WAC 173-303-070(8), a small quantity generator must send their waste to a permitted facility (TSOor permit by rule), legitimate recycling facility, etc. This allowance for the small quantity ,_.. generator has not changedunder the proposed rule. In addition, the costs of**~:** compliance for a small business have been consideredunder the Small Business Economic Impact Statement. No change is made. Comment15: In the definition of "Environment," define "totally enclosed." Comment 15A: The meaning ofterm "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. Comment16: 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 ofcarcinogenic 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 9draft version. Comment17: Define "oil." Response 17: We fail to see a sufficient reason to comply with this comment. "Used oil" is regulated and definedby this chapter. Virgin oil is generally used as a fuel and not disposed ofor discarded. However, oil or other petroleum products maybe dangerous wastes when disposed. Also, used oil that is burned for energy recovery is regulatedby section 515. We are currentlyworking on guidance for management ofoff-specification fuels and a discussion paper regarding the regulation ofused oil. Comment18: Definitions for "Used oil" and "Off specification used oil fuel" do not appear but should. Response 18: The definitions for "used oil" and "off specificationused oil" appear in section 040 in the final rule. WAC 173-303-070 Designation ofDangerous 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 ofdangerous 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 ofuniformwaste 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 proposedhere spells out in detail a common sense approach to making these determinations. Comment20: Is TIM85-1 still in effectwith regard to delisting? That is, wastes which are delistedby EPA are tentatively delistedby Ecology as well. Response 20: For the present, yes. [Note: This issue was not proposed as a part of the rule-amendment package.) 10 

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# •• Comment 21: RegardingWAC 173·303·070 (3)(c), webelieve that to be consistent 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 personmust 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 solidwaste standards. Response 22: will allow SQGs However, it will in permitting



# • 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 RiskWaste Facilities. For more information, please contact Bill Green, Moderate RiskWaste Plan Coordinator, telephone (206) 459- 6322 . VAC 173-303-071 Excluded categories ofwaste 

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# • Comment23: 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 underWAC 173·303·040, Definition ofDomestic Sewage. Comment 24: This section, in conjunctionwith Ecology's notes, states that sanitary wastes and sanitary waste mixtures generated at a business or industrial source mustmeetpermit-by-rule requirements until the wastes are mixed with otherhousehold 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 11wastes. In fact, these sanitary" wastes are expected to be non- " hazardous. The Dangerous Waste Regulations are applicable to "solid 

# 0 . wastes" as defined inWAC 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 streamwill not be exempt from Chapter 173-303 WAC. Nochange is made. Comment 25: Contrary to Ecology's position, webelieve 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 ofwhether 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" wouldbe deleted. This is contrary to the intent described on page 260 of the Washington State Register discussion (preamble parenthetical note). The language, as proposed, couldhave a disproportionate impact on rural businesses not servedby 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, wouldbe eligible for the domestic sewage exclusion. The effects on rural businesses couldbe 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 wouldmost likely fail the bioassay testing specified in WAC 173-303-l0l(3)(c), and the domestic sewage exemptionwhich 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 ofwhether 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 clearlybeyond the scope of the EPA 12 

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• stance on the exemption; 3.) The proposed revisionwould eliminate the language which exempts mixtures ofdomestic 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 mayexist as a matter of state law only. The proposed revisions would regulate wastes which are exempted from RCRA, andhence 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 consistentwith an October 26, 1989 decision issuedby the U.S. First Circuit Court ofAppeals in Comite Pro Rescate de la Saludv. 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 oforigin of untreated sanitary wastes, that beinghouseholds and residences. The Court ofAppeals agreedwith EPA andheld that the domestic sewage exemption did not cover wastes dischargedby industrial sources since domestic sewage refers only to sanitary waste from domestic sources. EPA reiterated this interpretationby memorandum to their RCRA Region I ",'
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### . XSection Chiefs on January 9, 1990. This recent guidance seems to supersede the muchearlierpreamble guidance in the May19, 1980 Federal. Register. While the proposed domestic sewage exclusion applies regardless of whether the sewer systemor 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 ofdomestic sewage and dangerous wastes from being excluded through inappropriate use ofWAC 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 shouldnot 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 permitby rule unit with an NPDES or state waste discharge permit, provided the provisions ofWAC 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 EPAwill, during future authorization processes, determine whether the proposed domestic sewage exclusion revisionmakes Ecology'S state 13programbroader 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. Nochange is made. Comment26: This letter is to protest those changes regarding domestic sewage and waste water exclusions. The Department ofEcology is turning into a departmentwhich is trying to eliminate all manufacturing andbusiness activity in the State ofWashington. The Department ofEcology is the greatest threat to any manufacturingbusiness. The Department of Ecology is an organization dedicated to the establishment of significant, punitive, fines so that it canbe a self-perpetuating bureaucracy. It is our belief that the personnel in the Department ofEcology are not qualified to properly administer any additional rules, exclusions, or modifications to any regulations at the present time. Response 26: Commentnoted. 071 (3)(b) Industrial Wastewater Discharges Comment27: We are concerned about possible confusionwhich maybe causedby the first sentence inWAC l73-303-07l(3){b). It is our understanding that Ecology staff's intent was to allow generators ofdangerous waste to discharge properly pre-treated dangerous waste to POTW's, providing they meet requirements ofpermit-by-rule. We believe the language as proposed does not make this clear since Section402 of the CleanWaterAct pertains primarily to direct discharges, not indirect discharges. We recommend the first sentence ofWAC 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 CleanWaterAct, 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 cannotbe adopted. If it were, Ecology's industrial wastewater exclusion atWAC 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 Section402 ofthe CleanWater Act, as amended. The federal language does not exclude industrial wastewaters while they are being collected, stored, or treatedbefore discharge, nor does it exclude sludges that are generatedby industrial wastewater treatment. Ecology's language cannot exclude indirect discharges subject to regulation under Section 307 ofthe CleanWater Act, because the federal language clearly does not. Ecology will be providing additional guidance in the form ofa Technical 14 

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• InformationMemoranda (TIM) regarding the domestic sewage/industrial wastewater exclusions andpermitby rule which shouldhelp alleviate possible confusion. No change is made. Comment 28: We believe the addition of the permitby rule language to this section is inappropriate. The proposed changes appear to confuse the differences between regulatory exclusions versus imposition ofa lesser degree ofregulatory requirements. From a federal standpoint, the specifiedpoint source discharges are excluded from RCRA regulation. Thus, there are no RCRA imposedrequirements. 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 ofregulation as wastewater treatment units. This is not the same as being excluded from regulation

- only the downstreampoint ofdischarge is excluded from RCRAby the Federal program. Response 28: Comment noted. The statement, "Owner/operators ofcertainwastewater treatment facilities managing dangerous wastes mayqualify for a permitby-rule pursuant to WAC 173-303-802(5)" was added purely as a reference to the permitby rule requirements. While only the end ofpipe, pointsource discharge under NPDES is excluded, the upstream treatment of dangerous wastes mayqualify for permitby 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 shouldbe retained since treatment systems are already regulatedunder Section402 ofthe CleanWater Act (NPDES). This clarification creates redundancy, confusion, andpotential 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 inWAC 173-303-802(5). No change is made. Comment 30: Clarify the woodwaste exemption. Response 30: Ifthe wood waste is dangerous solelybecause it fails the TC test for arsenic, it is exempt. Ifwoodwaste is dangerous for any other reason, it is regulated as dangerous waste
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Comment 31: 071 (3)(g). Ecology has failed to demonstrate howtreated 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 intendedpurpose, like railroad ties, telephone poles, piling, landscape materials, etc., are not regulatedby this Chapter. However, wastes maybe 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 ofbiological 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 ofdisposal ofwastes made up of these same materials in a landfill. Youhave 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. Whenthe materials become wastes, the benefit ofthese materials is lost. The purpose ofregulating these waste materials is to limit the potential for indiscriminate disposal and thereby minimize long termhuman health and ecological impacts. The federal regulations are quite specific in this regard. 40 CFR 261.3 exempts arsenic-treatedwood wastes. Arsenic is the only preservative mentioned in this exemption. Further, the March 29, 1990 Federal Register page states: " EPAhas previously stated that even if itwere determined that certain grounduses oftreated wood did not pose unreasonable risks, woodwastes might still be regulatedunder RCRA subtitle C . . . materials treatedwith pesticides (shouldbe) managed in a controlledmanner under RCRA at the end oftheir useful lives, to ensure that long-term risks are minimized

. . . . EPAhas decided not to expand the existing exemption for arsenic-treatedwood." Ecology is leaving the regulation as proposed, primarilybecause of the clear direction from EPA that only arsenic-treatedwood 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 onWOOl 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 theirWOOl wastes that were stored inTSCA regulated areas. Arecent 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 ofWOOl within a TSCA regulated area. However, it seems best (and least confusing) to delete the new language from the proposal and let generators decide betweenTSCA rules and dangerous waste rules

.. In other words, in the final rules, a generator ofWOOl waste will have two options: 1) manage WOOl wastes as dangerous waste; or 2) manage WOOl as TSCA-regulatedwastes. 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 coverwaste 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, wouldbe excluded if legitimately recycled

-- such as sold commercially as a soil amendment. We will rely on the existing petitionprocess to exempt specific wastes which the generator can demonstrate do not threaten human health and the environment. Comment34: 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 of40 CFR 280.12 canbe used. Petroleum is "crude oil or any fraction thereofthat is liquid at standards conditions oftemperature andpressure." Examples include: motor fuels, jet fuels, distillate fuel oils, residual fuel oils, lubricants, petroleum solvents, andused-oils. [Note: used-oils that are burned for energy recovery or disposed are regulatedunder this Chapter.] However, there is an important distinctionbetween 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 ofwaste material that mayresult from spills or releases from waste management activities and most certainly includes contamination from waste-bearing tanks. Thus, only contaminated media from tanks bearing petroleumproducts and subject to corrective action under RCRA subtitle I are eligible for this deferral. The above explanationhas been added to the Summaryofthe Proposed Final Rule. WAC 173-303-072 (3)(c) Comment35: 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 ofreasons: First, webelieve 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-solidwastes. 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-regulatedwaste streams maynot be exempted through a state-petition. YAC 173-303-084 (5) Use of Spill Table as a Toxicity Reference Comment36: We recommenduse ofthe NIOSH Registry exclusively for toxicity criteria designationbecause ofthe discrepancies in the EPA Spill Table you point out in the SummaryofProposedAmendments. 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 databesides acute toxicity to determine a category, itwouldbe easiest to rely on the NIOSH registry for such data. Therefore we are adding to section084 (5): "IfEPA'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 Comment37: 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 regulatedby this Chapter. Response 38: This has been done in section 090 (8)(c). Comment 39: 0031 shouldbe corrected to "Heptachlor and epoxcide" and D037 shouldbe spelled Pentachlorophenol. Response 39: Done. This is an editorial change. WAC 173-303-103 and 084 Designation limits for Carcinogens Comment40: 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) onlyhas the DW designation, while section 103 (2) includes the potential for either a DW or an EHW designation. Section 084 is a mandatory section ifthe generator knows some or all of· the constituents and concentrations inhis or her waste. Section 103 only applies to those generators that are required to designate their waste through the criteriaby 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 checkwith the appropriate Ecology Regional Office to see whether a DW or

### EHW designation is appropriate for your carcinogenic waste. Ecology maydecide to change one of these sections in the future so that they are consistentwith each other. WAC 173-303-120 Recycled, reclaimed, and recovered wastes Comment41: I support the definition of "active processing" Response 41: Support noted

. 19Comment42: Phase separation canbe 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 suchpassive operations maybe 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, ifwaste recycling operations canbe accomplished within this timeframe, such an operationwill 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 sevenmonths. The department is acknowledging that both of these activities pose equivalent risk. Although the latter maybe a form ofrecycling, we cannot allow such an activity to go unregulated. It is more appropriate to restrict these activities to permitted facilities

-- where appropriate precautions are mandatedby the regulations. Thus, recycling processes that take wastes from off-site and include greater than 24-hour passive operations mustbe conducted at a TSD facility. 

# Cr [Note: On-site recyclers are boundby a lesser standard ofthe 90 day accumulation limit, however, the accumulation standards would apply to such a passive, storage-like unit.]

Comment43: Add language to l20(4)(c)(v) so that Ecology can require recycling facilities to prepare closure plans, a cost estimate for closure, andprovide financial responsibility for tank systems on a case-by-casebasis. Response 43: This maybe 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. Comment44: In l20(4)(c)(iv) delete the words "ifnecessary" because the requirement would be unenforceable as currently written. Response 44:

20 

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• The intent here is to confirm the waste characteristics using data specific to the waste stream. Ecology is not concernedwith the source of the data

-- it canbe the generator or the recycling facility. However, ifsufficient data is not available, then screening-type analysis wouldbe necessary (e.g. "chlor-detect" test, flash point, metals scan, etc.) to obtain it. Comment 45: We support increased regulation ofrecycling facilities in Washington. Loopholes that exempt recycling facilities from RCRA requirements regarding waste handling, employee training, and facility design and operation mustbe eliminated. Recycling facilities can and do**cre~te** precisely the same kinds ofproblems 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 offof the site ofgeneration. 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 ofnormal industrial operational constraints, it is unlikely that materials could consistentlybe recycledwithin 24 hours. Response 47: Recyclers whoattempt to operate an "immediate recycling facility" (i.e. without storingwaste on-site for more than 24 hours) must carefully plan their waste management operation. Shipments arriving on weekends or when equipment is downpresent 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 ofnot specifyingwhat "immediate" means. However, because of the recent problems found at such facilities and the practical problems that the commentormentions, this rule mayhave 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 notbe 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 

### 21secondary 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 operationwouldnotbe subject to the storage requirements. Comment49: 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-regulatednow, and since they pose manyofthe same risks as regular treatment, storage, and disposal facilities, they shouldbe required to meet standards similar to those set for TSDs. At the same time, we are not ready to endorse the specific amendments, which webelieve mayneed to be strengthened to provide an adequate level ofenvironmental 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 ofwastes destined for recycling.) Response 49: Qualified supportnoted. Manifesting dangerous waste to an off-site recycling facility is already requiredby 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 Comment50: We object to the proposed language in this section. Under the proposal, all spills wouldbe reportable spills. Ecology wouldbe inundated with valueless reports of inconsequential spills and leaks. Thepublic and industry wouldbear 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 ofmaking the determinationwhether or not the environment or human health is at risk. Considering: 1) the uncertain qualifications of the emergency coordinator; 2) the inherent difficulties ofmaking such a risk determination; and 3) that occupational safety regulations provide for protection ofhuman health ofworkers at the facility

-- it wouldbe 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. 

### 22 

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After considering several options, itwas decided that the easiestway for the regulated community to report spills or releases was to pick up the phone and call the appropriate regional office ofEcology (or the toll free Department ofEmergencyManagement phone number). Ifthe spill is truly insignificant, then spill staffcan say "thank you very muchfor calling." 'Alternatively, for significant spills, staffcan 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 canbe an important indicator of operational or compliance problems. Ifthese events are not reported, then important opportunities for environmental protection are lost. Oneof the primary goals ofthis Chapter is to assure that sites do not become contaminated. Unless the department is aware of "routine" or accidental spills and discharges, this goal cannotbe fulfilled. Many industrial solvents canmigrate through concrete and other such "barriers." Ecology does not consider a phone call

-- so that wecan 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 ofdangerous waste andhazardous 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 ofa phone call to the regional office, the owner or operator mayelect 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 briefaccount must include: the date and time of the spill, the type and quantity ofwaste spilled, the cause of the spill, and the response actions taken or planned. This mustbe ,'.1 done immediately, just like the phone call. Anowner or operatormust write the account or call the department for less-than-ten-gallon spills. Spills ofequal to or greater than ten gallons inside secondary containment or spills outside ofsecondary containmentmustbe reported to the appropriate regional office ofthe 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 andTSD facility owners and operators do nothave to report spills ofless than one pound, ifthey are immediately contained and cleanedup. Spills with releases to the air must be reported to the local air pollution control authority or the regional office ofEcology. (For example, a spill ofvolatile or semi-volatile chemicals into secondary containment, where there is a release or threat ofreleases to the air

-- i.e. evaporative losses

-- mustbe reported)

. In summary, Ecology does not consider a phone call

-- so thatwecan 

### 23help keep industrial sites clean _. to be too much to require. [See section 360 for responses regarding the emergency coordinator) Comment51: We propose the deletion ofthe word "regional" used in the phrase "notify the appropriate regional office ofthe Department ofEcology." Response 51: The regional offices ofEcology (including the hazardous waste permits section, the Industrial Section and the Handford group) implement the rules and inspecthandlers 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 thenhaveheadquarters staffcall the region. It also will be a cheaper call inmost cases. We have made a, conscientious effort to include a mapof 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 Comment52: Change the requirements for satellite accumulation areas so that instead of 55 gallons being the threshold

. the clock starts when the container is full (ifthe container is less than 55 gallons. Response 52: We will consider this idea in the next round ofamendments to this Chapter. Comment53: 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 Comment54: Change "requestedby the director" to "requestedby the department" everywhere the former appears in this Chapter. Response 54: Since "director" now includes his orher designee, this is unnecessary.

24 

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• WAC 173-303-220 Generator Reporting Comment55: 220 (3) Clarify the use ofpronouns in this paragraph so that it states the generator is in possession ofdangerous waste, not the director. Response 55: Done. "The generator's" has been substituted for "his." WAC 173-303-360 Emergencies Comment56: We believe the original language shouldbe maintained. WISHAhas the legislative mandate, staff, and expertise to regulate potential threats to humanhealth 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. Comment57: 360 (2)(d)(i) The emergency coordinator should not be taskedwith determining whether evacuation of local areas maybe 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) shouldbe 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 coordinatormaybe 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. Comment58: 515 (4)(b) We support this amendment. It will allay concerns about liability for waste turned over to recycling facilities, and as a result, maypromote recycling efforts. Response 58: Support noted. This amendmenthas been removed from the proposed final rule. See comment number 60. Comment59: The rules seem convolutedwith respect to burning used-oil on"site for space heating.

• Response 59: 25A 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 ofwaste 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 ofWAC 173-303. Comment 60A: One must understand that Washington's present environmental rules, notjust for solidwastes, but air, etc., have all but made it impossible to market used-oil fuels inWashington. Therefore, to protect and help the recycling ofused-oil, wepropose that, other than adopting the federal EPA regulations, all other parts ofyour proposal be deleted. Response 60: Because of the uncertain secondary impacts on the used-oil collection market that may result from increased regulation ofused-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 andhuman health threats that are associatedwith'the processing, storage, andburning ofused-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. 

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Comment: WAC 173-303-610 Closure Comment 62: Add the federal "delay ofclosure" 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 ofclosure" rule to this Chapter. This would allow the management ofnonhazardous 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 

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• owner of an oil refinery, to pursue environmentally soundwaste management options. For example, we estimate at our refinery that we dispose of.about 1000 tons ofnonhazardous waste annually at our on-site, permitted landfarm. The provisions ofour 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: Addthe "delay**~f** closure" rule, at least for land treatment facilities. In the case of land treatment units, those that have met the stringent requirements ofRCRA, seem to us to be an excellent vehicle with which to promote betterwaste management ofnonhazardous oily residues. Comment 62C: Add the "delay ofclosure" rule. Adopting the federal language provides an option that mayprove to be the most beneficial in some situations while retaining departmental authority to approve applications to allow receipt ofnonhazardous waste at land treatment units formerly handling hazardous waste. Our refinery disposed of 11,463 tons ofnonhazardous waste at the onsite land treatment facility in 1989. Because ofcapacity 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 ofnonhazardous wastes at a currently permitted, properly maintained, and' extensively monitored facility. Response 62: Ecology has decided to adopt the "delay ofclosure rule." The rule provides the flexibility to delay closure where there will be a positive environmental benefit to managing non-hazardous waste inhazardous waste management units. We will not allow this**pr~ctice** without careful consideration ofthe conditions ofthe 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 mayadd such permit conditions as we deem necessary to protecthuman 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 offunds at sites that pose no health riskbut at which "background' levels have not been obtained. Comment 63A: Removal ofhazardous constituents to background levels is, we believe, excessive. We propose the use ofMTCA action levels instead.

• Response 63: 

### 27!. We will consider this comment during the next round ofamendments. At 

# 0 that time the departments cleanup rules for MTCA sites will be final. \ Also, the federal subpart S (corrective action at subtitle Cfacilities) rule maybe final. We will be in a better position to determine a course of action at that time. WAC 173-303-620 Financial Requirements Comment64: Change the term "disposal miscellaneous units," it is awkward. Response 64: Replace with "miscellaneous units as specified inWAC 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 Comment65: 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 ofvisual inspection and segregation of incompatible materials. Required dimensions vary depending on the class ofmaterials and amount stored. Secondly, to the extent allowable under the fire code, generators shouldbe allowed flexibility to store wastes 

# C)

to maximize efficiency of operations and use ofspace. Dueto differing volumes and classes ofwastes storedby generators, containers maynot need to be placed in rows at all. Agenerator mayuse small containers which are stacked or secured on shelves and thus readily visible. Portable storage containers which are divided into small shallow rooms maybe 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. Ageneral 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 ofpallets as an aisle. Also, 340 (3) should read: Aisle space: The owner or operator mustmaintain aisle space to allow the unobstructedmovement ofpersonnel, fire protection equipment, spill control equipment, and decontamination equipment to any area of the**f~ci1ity** operation in an emergency, unless it canbe 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. A2.5 foot separation is adequate. Comment65E: A minimum aisle space of 30" is the usual width ofa door, is derived from "means ofegress" described for high hazard contents within the 28 

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# • General Safety and Health Standards ofWAC 296-24 and the 1988 NFPA National' Fire Code. and wouldbe a reasonable andjustifiable aisle space requirement for WAC 173·303. We suggest "Athree-foot aisle space separation is required between rows ofcontainers holding dangerous waste(s). Rows ofcontainers 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 maybe 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 ofdrums 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 ofdepartmental 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 • Comment66: Define "statistically significant" Response 66: The statistical significance ofa certain results will be determinedby the statistical methods that one uses. We cannot write one definition for this term. Comment67: I supportthe 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. ..:- "_

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Comment68: 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 canprove 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 ofproof should rest with the facility andnot with the department to show where contamination came from. Ifthe burden rests with the

• department itwill be muchmore difficult to get a release cleaned up. 29Response 68: This language was deleted in the federal rule. We have followed EPA's lead for now. Comment 69: The term "regulatedunit" 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-landbased 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 unit" slightly to read: "a unit on land or water inwhich dangerous waste has beenplaced for disposal purposes. This includes but is not limited to landfills, waste piles. injection wells, land treatment units, salt domes, saltbed formations, underground mines or caves and any area where there has been a release for which cleanup to background has notbeen.achieved." Response 69: The term "dangerous waste management unit" fits and shouldbe used. Comment 70: The term "Engineered Structure" shouldbe 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 ofthis change wehave decided for nownot 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 MTCAprocess. Ecology

. has the ability to impose any conditions necessary to protecthumanhealth and the environment. However, wehave 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 ofdangerous wastes would tend to discourage independent actions. Ecology should,therefore, establish a systemwhereby an independent 30 

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# • cleanup owner or operator could receive a case-by-case permit exemption from' Ecology. Third, ifno case-by-case exemption is adopted, Ecology should establish an expeditedpermitting procedure for MTCA cleanup sites. Comment 72A: We believe that orders or consent agreements will delay or roadblockvoluntary cleanups. Voluntary cleanups shouldbe 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 ofdangerous 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 signedby the department, gives us the assurance that treatment, storage, and disposal ofdangerous wastes will be conducted in a manner protective ofhuman health and the environment. Without such a legally enforceable document andAgency approval, as in the case with voluntary or independent cleanups, wecannot grant such an exemption.

Apermit wouldbe requiredwhere, 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 ofdangerous 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 accompaniedby a large degree ofcommitment from the department to gain a consent agreement or to issue an order. Lastly, EPA approval cannotbe secured at this time. Aformal process, known as state authorizationwill occur subsequent to the adoption of the proposed rules. EPAhas been given drafts ofthe rule and opportunity to comment. Noadverse comments have been received to date regarding the proposedpermit exemption. WAC 173-303-802 (5) Permit by Rule Comment 73: The preamble states that Ecology intends to deny permitby rule status for facilities that only store or dispose (instead of treat) dangerous waste. However, requiring treatment also denies permitby rule status for facilities that do not treat their wastes butwhose waste may already meet pretreatment standards. The preamble states "Inno case will generators or TSD facilities be allowed to discharge untreated orunpermitted dangerous wastes to sewer systems." This policy will eliminate disposal options for wastes that are hazardous by regulation only. Aresearch laboratory may generate wastes that are regulated solelybecause they containvery low levels 

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

# G'
water (99.999+%). The waste maybe generatedwith specific concentrations below that ofLOR (land disposal restriction) approved treatedwastes. Please consider allowing the POTW the flexibility to continue to set standards for acceptance ofwastes, rather than a blanket requirement ofno untreated wastes. Response 73: The intent ofpermit by rule is clearly for treatment ofdangerous wastes. The terms publicly owned treatment works (POTW), totally enclosed treatment facility, elementary neutralizationunit, and wastewater treatment facility all include or imply that treatment takes place. Each ofthe applicable water quality permit types (NPDES, state waste discharge, pretreatment) in the permitby rule provisions ofWAC 173-303-802(4) and (5) are designed for treatment ofwaste rather than storage or disposal. The amendments are intended to prohibit the discharge ofuntreated wastes (that are identifiedby regulation as dangerous) to sewer systems. It shouldbe 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 shouldbe noted that POTW's maychoose to receive untreated dangerous wastes for treatment, provided that the owner/operatormeets the permit by rule requirements ofWAC 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 permitby rule status for their upstreambusiness or industrial dischargers underWAC 173-303- 802(5). Determining compliance with permitby rule remains the responsibility ofEcology, underboth the existing and proposed rule. This authority cannotbe delegated to the local POTW. Nochange is made. Comment 74: This comment was found to be a duplicate Comment 75: The proposed regulation states that "aNPDES permit, state waste discharge permit, pretreatment permit (or written discharge authorization from the local sewerage authority)" must be obtained to utilize permitby rule for elementary neutralization. The essence ofelementary neutralization is to discharge a non-regulated substance. Why should a permitbe necessary for this type ofdischarge? Requiring these permits would appear to eliminate the possibility ofelementary neutralization and the subsequent reduction in hazardous waste generation.

32 

# o



# o

# '.

•

• Response 75: Permit by rule is definedby 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 ifit meets the requirements of the provision." Owner/operators with permits by rule are not required to submit applications for dangerous waste facility permits. ·Permitby rule pursuant to WAC 173-303-802(5) is a provisionwhich allows for the treatment ofdangerous wastes, provided certain requirements are met. Elementary neutralization is a type oftreatment. Ifa person treats or neutralizes dangerous waste in a totally enclosed treatment facility, elementary neutralization, or wastewater treatment unit, the permit by rule requirements mustbe met. One condition ofpermitby rule is that the applicable water quality NPDES, state waste discharge, pretreatment (or written authorization) permit be inplace. While the Dangerous Waste Regulations do not require a permit for the discharge ofa non-regulated substance, a permitby rule is applicable for treatment ofdangerous waste prior to the discharge. No change is made. Comment 76: This section ofthe proposed regulation indicates that an elementary neutralizationunit, totally enclosed treatment facility, or wastewater treatment unitwill have a permitby rule only ifthe owner/operatorhas a National Pollution Discharge Elimination System (NPDES) permit, state wastewater discharge permit, pretreatmentpermit, orwritten authorization from the local authority, for the discharge. This requirement would greatly reduce the availability for permitby rule status. For example, manyelementary neutralizationunits and totally enclosed treatment facilities' have no discharge, andhence wouldnothave any ofthe specifiedpermits. Basedupon the language in the proposedrule, such units couldnot qualify for permitby rule status. We recommend that the regulatory language be revised to indicate that the permit requirement listed inWAC l73-303-802(5)(a)(i) is a prerequisite for permitby 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 ofall known, available, and reasonable methods of prevention, control, and treatment ofpollution ("AKART") pursuant to Chapter 90.48 RCWprior to discharge. At a federal facility, the NPDES permit would be issuedby the EPAunder authority ofthe CleanWaterAct rather than Chapter 90.48 RCW. TheAKART terminology is not used in the federal program, although a similar philosophy exists. Does Ecology consider the "best available technology" process under the CleanWaterAct to be equivalent to the AKART process under Chapter 90.48 RCW? Ifso, consider revising the proposed language to indicate that, at federal facilities, existence ofa valid NPDES permit issuedby the EPA is sufficient to allow a facility to qualify for the wastewater treatment unit permitby rule. Ifnot, provide some guidance as to what additional requirements mustbe met to demonstrate AKART at federal facilities withNPDES 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 permitprogrampursuant to Chapter 173-216 WAC. Therefore, elementary neutralizationunits and totally enclosed treatment facilities with no discharge canpotentially qualify for permitby rule status, provided the other conditions ofWAC 173-303-802(5) are met. While the issue ofChapter 90.48 ROWvs. CleanWaterAct authority at federal facilities is beyond the scope ofthis responsiveness summary, EcologyWater Quality Program and Nuclear andMixedWaste Program staff indicate that Chapter 90.48 RCW is applicable. Staffin these programs will be responsible for determinations about the equivalency or applicability ofAKART and "best available technology". 

# In either case, the requirement to have an NPDES permit is only one of the conditions necessary for permitby rule, under both the existing andproposed rule. No change is made. Comment77: 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 oftreating wastewaters containing listed wastes that are classified as ERW. This requirement prohibits treatment ofwastes which contain any concentration ofU or P listedwastes designated as ERW inWAC 173-303-9903,· since the resulting 

# 0
wastewater will still carry the listedwaste code and

### EHW designation regardless ofconcentration ofthe waste in the treatedwastewater. The monitoring parameters and enforcement responsibility for**discharge~** of specified levels ofchemicals listed as 

### EHW inwastewaters shouldbe incorporated into the NPDES permit or into a POTWpretreatmentpermit. Amendments to the NPDES rules in Section40 CFR Parts l22and403, published July 24, 1990 (FR), address the discharge ofwastewaters from TSD's to POTW's. As such, Chempro recommends that this requirementbe removed from the revised Permit-by Rule section. Response 77: For listedwastes, even ifthe permitby rule requirements are met, the resulting discharge may still carry the waste code and ERW designation regardless of the concentration ofthe hazardous constituent in the treatedwastewater.' This is because ofthe "mixture" and "derived from" rules for listedwastes [see WAC l73-303-070(2)(a), -081(3), and

- 082(3)]. Ecology does not believe that

### Uand Plistedwastes shouldbe treated inpermitby rule facilities. These wastes are by definition, unused or off-spec commercial chemical products or manufacturing chemical intermediates. These wastes shouldbe collected in their concentrated form and sent for proper management to a permittedTSD or recycling facility. These wastes might not be effectively treated, with ultimate discharge underwater quality permits considering the listedwaste issues described above. 34 

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# •

•

• Ecology agrees that the prohibition on the discharge ofEHW is problematic. For example, some wastewater treatment units maybe capable of-treating certain F003 code wastes listed for reasons of ignitability only. Ecology believes that the proposed rules ofWAC 173- 303-802(5)(a)(i)

- (iii) satisfy the requirements ofpermitby rule. In addition, the newNPDES rules in Section40 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 removedWAC 173-303-802(5)(a)(iv) in the final rule. Ecology plans to produce guidance in the form ofa Technical InformationMemoranda (TIM) on the domestic sewage/industrial wastewater exclusions andpermitby rule in the future. This issue maybe considered further in future rule amendments to Chapter 173-303 WAC. Comment 78: Under existing rules, ifthe 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 whoare not "totally enclosed treatment facilities," yet canmeet the same requirements to the POTW's satisfaction. Response 78: The requirements thatpermit by rule facilities meet certain strict definitions found inWAC 173-303-040 is intentional. Permit by rule is an allowance for treatment ofdangerous 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 ofdangerous waste or dangerous waste constituents into the environment during treatment." This, combinedwith the permit by rule requirements ofWAC 173-303-802(5) as proposed, are necessary to protecthumanhealth and the environment. No change is made. Comment 79: OnSeptember 12, 1990 we suggested that you include WAC 173-303- 300, General waste analysis, in the requirements for permitby rule underWAC l73-303-802(5)(a)(iii). Itwas not included in the October 1990 proposed amendments. It is suggested againby this correspondence. Perhaps it could be listed inWAC l73-303-805(b) as a possible requirement "upon request ofthe Department." Response 79: The requirement to designate waste pursuant to WAC 173-303-070 was added to the permitby rule provisions ofWAC l73-303-802(5)(a)(iii) in the proposed amendment. This requirement ensures that an owner/operator confirm the status ofthe waste they plan to treat in a permitby rule facility or unit.

35Adding more rigorous requirements, such as waste analysis, to permitby rule provisions will be considered in future rule amendments. No change is made. WAC 173-303-805 (7) Changes During Interim Status Comment80: What criteriawill the department use to review and approve PartA applications regarding newwaste codes? Response 80: The departmentwants to have some assurance that the facility accepting the newwaste codes will be able to treat, store, or dispose ofthe wastes representedby 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 newwastes in a protective manner. Comment81: Give department more time to review Part A's. Specifically, allow the department to "respond" within 60 days. This maybejust a letter saying that the department needs more information or that weare reviewing the application. Response 81: This provision is designed to allow the department to deny changes to Part Aapplications ifthe TSD facility does nothave the capability to treat newly identifiedwastes. Ifthe facility does not adequately demonstrate in the application that ithas such capability, then the department can deny the applicationwithin 60 days. Ifthe department needs more information, itwill have to let the facility know (and the facility will have to respond) early on in the 60 daywindow. However, wewant to limit the time for review and decision. No change._ WAC 173-303-960 Imminenthazard 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 ofentrywhere imminent and substantial endangerment exists. \.lAC 173-303-9903 Discarded Chemical Products List Comment 83: Change the Asteriskkey to reflect changes in section 103 and 084 regarding carcinogen terminology. Also, replace 

### EP**Toxicity~with** Toxicity 36 

# o



# oI •

# • »,

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, ofKaiser of Spent Potliner K088. letter on March 6, 1989 fromMr. Devereaux Barnes to Aluminum (see Appendix C) clarifying the definition The letter stated that



# • "only the carbonportion 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 ironused to place steel collector bars inpre-baked carbonblocks; 4) thermal insulation composed of insulatingbrick or alumina; 5) the silicon carbide brickwalls and endwalls ofa pot; and 

### 6) frozen aluminum metal pad and electrolytic bath." Please clarify that the State definition ofSpent 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 shouldbe removed. The graph should only show two categories ofwaste, 

### OW and

### EHW. Ifyouwant 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 ofless 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 shouldbe deleted. The graph is' 37redundant to the table inWAC 173·303·102. Ifyou 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 Xaxis. {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 Comment88: Changing the undesignatedportion of the graphs to small quantity generator waste may be unwarranted. We request that

### wDOE review the basis for the current regulation and explainwhat experiences suggest that**cha~ges** are needed. The proposed change is significantbecause it would capture'a,wide variety of small quantity wastes which do notmerit the cost ofbeingtreated 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 ofamendments. General Comments Comment89: 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 ofpublic health and the environment. While wecan support efforts to clarify the state dangerous waste regulations, wewill 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 ofencouraging compliance and waste reduction. I like the way the departmenthas been publicizing success stories. Also, I believe the department shouldhelp small generators more. Perhaps subsidize the collection ofsmall business wastes like used oil and waste solvents. Response.90: Comments noted. Comment91: Used oil shouldnotbe defined as a hazardous waste. Also, we shouldn't concentrate used oil atbig facilities. The natural processes in the environment canbreak downoil on their own.
38 

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# •

•

• , "

..E,. :::":: : '.

### fed~~al'**,'regul~tions** have not yet listedused oil as a hazardous waste, alth0}1g:tt- they; mayin the**,futu,re~** Muchof the usedioLl 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 canbe 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 andwefeel justified in maintaining the

present system ofregulation. 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 neverbeenbuilt. Industries are

### r~l~a~i~g:,massive

### quanti~ti~s 'oftoxic substances into the air and t:he:CleanAir;,Act won't ,touch them ;o.ryears. I don't like the way the department ofecology'S reorganized. I don't think it is as effective as it once was. The cleanup standards under Initiative 97 shouldbe stringent and not take economics into account so much. In spite ofmy criticisms, I think its a great organization and will grow more responsive to public interest in the future. In any case, I'mhappy to see as manypeople as this in one ofthese meetings. This is about the best'turnout that I've seen for one of these meetings on toxic and dangerous waste that has takenplace in the Spokane area. Response 92: Comments noted.

'r c•

39Explanation ofCbanges to the ProposedRule**~" .~.**  . -. .', , ;. 

# o Section 040 Definition ofDirector

'.. ':. < •

''f '_ \ ",**~" .~,**  ..'. This definitionwas 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 thedepartment'can take actfonsrnecessary to iiIiplement actuallyhavfngYo_doeverythfng'him/lietself

.. i.':' '

....-" .:.' '.**.~.**'

.... Section 070 (3)(c) Waste Designation

f '!:

....: The phrase "lists or characteristics" was changed to "lists and charact.er LstLcs.,", ',' ," :. 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, generatiors will have'to go on to designate their wastes through the sections on Lls t.s , mixtures, and characteristics. Previously, generators couldhave stopped after reaching a designation through, say, one oflists and did nothave to proceedwith 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 nowand,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): "IfEPA'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.tLonaLe.for change: " 40 

# o

# • This change was done to eliJiinate the problem'causedby inconsistencies with the EPA Spill Table. See commentnumber 

### 36. Section 120 (4) Recycling FacilityRequirements

..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,fthese.dates have already passed, ,newdates for compliance'appear in'the'final rule.



# •

• Section 145 Spills and Discharges

... ,:.' -. In accordance with our aim to have almost all spills and releases ofdangerous waste andhazardous substances reported to the department by telephone, we have changed the structure of this section. The terms ",environment" and "affectinghuman health and the environment" have been deleted. Thus, spills and releases to the ground, groundwateI';, ·surface·water, asphalt pavement, and concrete, etc." .including spills of.to secondary conta.inment systems' (ifthey ,meet or exceed If> gaLlons) ,**.~ust** be reported to the-depa rtmerrt
. ! .. .

. . The only exception to:,the"reporting requfreraent; is for small spills to secondary containment areas tha·t·meetthe,requirements ofthe Chapter. These spills maybe**report~d** to the department or an accountofthe**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 ofwhich system to use. Thus. for example, a spill ofless than ten gallons that occurs in a tank system's secondary containment area [ifthe secondary. containment meets the applicable requirements ofWAC 

### 173-303] need notbe reported, .Lfan.account; is-written in accordance with subsection (2)(d). Of course, container storage or accumulation areas wouldhave to meet the requirements ofWAC 

### 173-303-630 (7) or 

### 173-303-400, whichever applies. Rationale for change: After considering several options, it was decided that the easiestway for the regulated community to report spills or releases was to pickup the phone and call the appropriate regional office ofEcology (or'the toll free Department ofEmergencyManagementphone number). If the spill is truly insignificant, then spill staffcan say "thankyouvery much for calling." Alternatively, spill staffcan and do advise callers on a course ofaction for containing and cleaning up spills and releases. Further, the frequency and circumstances surrounding spills at facilities canbe an important indicator ofoperational or compliance problems

.. Ifthese events are not reported,then important. opportunities for environmental protection are lost.> One of the primary goals ofthis Chapter is to assure thatsites do'not become contaminated. Unless the department is aware of "routine" or 

### 41

"

### accidental spills anddischarges, this goal**ca~ot** 

### be fulfilled. Many'

## ~~:~~i:;:~"**so;ven~s** can

## mi$r~te,~~rough eoncrete

## ~~~~**o~her'** such:::,'.'

## ~~;. 

# 0

The affect ofchanges in this section is to clarifY.that'alFspills"and releases ofdangerous waste andhazardous substances are reportable. However, wedo not consider'a phone call - - "so -that'**w~** 

### ':can'keep industrial sites clean

- - to be'too,muchto',require**:T;~)"** -,,'

..,":",, .,', .**.~.**-"

### . For releases from tank systems, generators andTSD facility owners and operators do nothave to report spills',of'less than'one'pounci, ifthey

., are.immediately contain,ed and cleanedup.' ',\ '" ,,, '

.. :).**~.:** .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 

### ofhisfher waste within 10 days. The federal rules containno
Rationale for change:

. .;..l . " . . 

### This is a problemwhich risks loss ofstate authorizationunder 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) ofthe October 16, 1990 Drafthas been deleted from the .f

### LnaI rule. Rationale for change: Because ofthe uncertain secondary impacts on the used-oil collection market 

### that mayresult'from increasedregulation,**of~'used-o~f':,storage** 

### f!iciUties, Ecologyis withdrawing)"its proposal in the final'rules. We will,continue to researchthe',economic andenvironmental aspects ofthis situation. However, we suspect that there maybelinacc::eptable: ,environmental andhumanhealth threats that are associated'withthe

processing, storage, andburning'ofused-oil fuels. Specifically, we**s~spect** 

### that used-oil that is contaminatedwithmetals and/or ' chlor,inatedorganicso1ventsis being'burned inmarbie diesel'engines andused-oil fired space heaters. We will reconsideramendments that strengthen testing, recordkeeping, and other operational'requirements in the near future. Section 610 Closure We have added the "delay ofclosure" rule to the final proposed amendments. This change was made so that the departmentwouldhave the flexibility to allowhazardous waste units to delay closure and accept non-hazardous waste under certain conditions andwith prior approval ofthe department. This is a change that EPAhas 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 adoptLng.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 ofp'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** 0forth in',the J'loile·**(?n~** perhaps other conditions set forth

in a TSOpermit), 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,it**may be prudent to

"**~: ::,~llow** **manag~m.e,~t** ..pfnon-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 ofconcerns 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,:numerous..-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, sLnce,section 630 also applies to generators, some special cLrcumstances.imay.exist 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