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### COMMENTS AND RESPONSES This section of the Responsiveness Summary addresses written and oral comments on the proposed amendments to the Dangerous Waste Regulations (Chapter 173-303 WAC) received byEcology. The comments are summarized or paraphrased in the order of the proposed rule (with the exception of corrective action comments which are grouped together toward the end of the section) and followed by the department's responses.

Comment 1: Several commenters found the preamble to be helpful in explaining the rule in plain language. The preamble explained the reasoning behind the change, the intent of the rule, and provided helpful background information. Ecology is commended for .writing the preamble and is encouraged to continue this practice in future rule-makings. Response: Ecologyappreciates and acknowledges the comments
.

Comment2: The proposed changes to these subsections would exempt commercial chemical products from regulation when applied to the' land or used as fuel when such uses are consistent with ordinary use of the material. Although we concur that exempting suchmaterial is desirable, there is a question as to whether it is allowable, from the standpoint ofmaintaining equivalency with the EPA program, to exclude characteristic wastes in this manner. Response: This was a conforming change based on the consolidation of the state criteria in WAC 173-303-100. There should not be a conflict with the federal program in excluding commercial chemical products that designate by the characteristics. As stated in 40 CFR 261.11, one of the criteria for listing chemicals in the discarded chemical products list is that they exhibit one or more of the four characteristics. The inclusion of -090 and ·100 in WAC 173-303-016(5)(a)(ii)(B) and -016(5)(b)(ii) is meant to exempt commercial chemical products that are not identified in the list. The Department .believes that this intent ofcommercial chemical products is consistent with EPA.

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Comment-3: One commenterstated that the proposed revision to WAC 173-303-020was superfluous, since a solid waste that may designate as a dangerous waste is a dangerous
1 .waste. Another commenter stated that the proposed revision would significantlyexpand 

# 0' the Universeofregulated wastes.

.Response: Ecology's intention in revising -020 was to make it clear that persons who

generate solid waste are subject to certain requirements of the dangerous waste regulations. Specifically, generators of solid waste that is not exempt or excluded from regulation must determine whether theirwaste is dangerous in accordance with the procedures specified in WAC 173-303-070. Ifso, the waste must be managed in compliance with the provisions ofChapter 173-303 WAC. Ifthe solid waste is exempt, excluded, or does not designate as dangerous waste, then it need not-be'managed in accordance with the Dangerous Waste Regulations. In such cases, the regulations "expressly provide" that they apply only to dangerous waste. This clarification does not in any wayexpand the universe of wastes that must be managed in accordance with Chapter 173-303 WAC. It simply notifies generators, some of whom may be unfamiliarwith the Dangerous Waste Regulations, that this chapter imposes on them at least one obligation: determining whether ornot their solid waste is dangerous.



### AcutelyHazardous Waste
Comment4: Since Ecology added the terms "source material," ''by-product material," and "specialnuclear material" to the definition of mixed waste, Ecology should define these terms in Chapter 173-303 WAC. Response: The terms "source material," "by-product material," and "special nuclear material" are defined in federal regulations, 10CFR 20.3 Ecology does not believe it necessary to redefine these terms in Chapter 173-303 WAC. 

### Commerclal Fertilizer
Comment5: Several commenters requested clarification of the sentence, "The commercial fertilizer must be registered with'the state or local agency regulating the fertilizer in the locale the fertilizer is being sold and/or applied." The commenters felt that the wording "and/or" was ambiguous. Does it mean that a fertilizer must be registered in every state that it is used? Response: This portion ofthe definition ofcommercial fertilizer was meant to be all inclusive. A fertilizer must be registered in the locale the fertilizer is being sold, being applied, or being sold and applied. However, since the wording is confusing, the definition has been revised to state, "The commercial fertilizer must be registered with**t--~--------------** 2 

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• the state or local agency regulating the fertilizer in the locale in which the fertilizer is being sold or applied." Comment 6:

.Severalcommenters stated that Ecology should clarify the use ofthe term "limes" in the definition ofcommercial fertilizer. "Limes"should be clarified to include wood ash or otherbyproducts with liming values. Alternatively, the definition of commercial fertilizer could also be expanded by changing the wording to"...including, but not limited to limes, gypsum, and manipulated animal manures and vegetable compost."**Respo~:** The definition ofcommercial fertilizer, as 

### proposedin the amendments to the Dangerous Waste Regulations, is taken directly from the definition ofcommercial fertilizer in Chapter 15.54 RCW, Fertilizers,Agricultural Minerals and Urnes

. (Washington Commercial FertilizerAct) and Chapter 16-200WAC, Washington State Department of Agriculture Pesticide Management Division,Rules Relating To Fertilizers, Minerals and Urnes. This definitionstates that any substance containing recognized plant nutrientsor claimed to have value in promoting plant growth could be considered a commercial fertilizer. It then lists several examples: limes, gypsums, manipulated animal manures, and vegetable compost. Wood ash may not meet the strict definition of "limes", but it would still have value in promoting plant growth. To clarify the definition, the wording has been revised to state, "Commercial fertilizer" means any substance containing one or more recognized plant nutrients and which is used for its plant nutrient content and/orwhich is designated for use or claimed to have value in promoting plant growth, and shall include, but not be limited to, limes; gypsum, and manipulated animal manures and vegetable compost." 

### Dangerous Waste**Com~nt** 1: The latterportion ofthis definition indicates that "DW' refers to all of the regulated universe with the exception of extremely hazardous waste. Does this mean that "OW' refers to both dangerous waste and mixed waste or should "OW' mean onlythat portion of the regulated universe that isneither extremely hazardous waste normixed waste? Note that in later definitions EHW, OW, and mixed waste are distinguished. Response: "OW' refers to that part of the regulated universe which is not extremely hazardous waste. This means that it refers to those wastes that designate as "DW' only, including mixed wastes. 

### Dangerous Waste, Hazardous Waste, Extremely Hazardous Waste, StateOnly Dangerous Waste and Mixed Waste
Commen: 8: The changes in definitions will clarify may issues, including definitions of the terms "hazardous waste," "dangerous waste," "extremely hazardous waste," "state-only dangerous waste," and "mixed waste,". Response: The commentis acknowledged.

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### . Independent Qualified Registered Professional Engineer .(-650, -660, -840) Comment9: According to the preamble, an independent engineer could not include an engineerresponsible for the design of a TSD facility. Does Ecology trulyintend to preclude facility designers from being "independent" for certification purposes? Response: In the preamble statement that appeared in the state register (to explain the proposed amendments) under General Permit Conditions, WAC 173-303-810 (14)(a)(i), the parenthetical part ofthe last statement "(one who did not designthe facility)" is misleading. It-suggests that the construction or modification design of a facility could not be done by a professional engineer employed by the owner/operator ofthe facility. This is not the case. A professional engineerin the employment ofthe facilityowner/operator couldindeed design a construction ormodification plan; however, an "independent" professional engineer, i.e., an engineer not employedby the owner/operator of a facility, must "certify"those components (e.g., closure/post-closure care, tank systems, and liners of landfills and waste piles) associated with facility design plan. This requirement is necessary to be consistentwith EPA rules. The certification or assessment must be signed by a professional engineer not employed by the owner/operator. This is to avoid a conflict (or the appearance of a conflict) ofinterest. This position is consistent with other types ofcertification programs whichrequire assessment and certification to be made by independent parties. 

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Comment 10: Large facilities often have'competent registered engineers on their staff 

# 0 who are capable ofperforming work required under this statute. Requiring professional

.engineers to be independent causes an additional cost burden which is not ethically

merited. Why not strike the word "independent"?

. Response: The phrase "independent qualified registered professional engineer" has been adopted to be consistentwith EPA's phraseology and usage. Ecology recognizes that the certification ofconstruction or modifications plans by independent engineers could increase costs, however, this is required byEPA. The requirement ofindependent certification is intended to avoid conflict (or the appearance of conflict) ofinterest. This position is consistentwith other types ofcertification programs which require assessment and certification to be made by independent parties

.. Comment 11: (WAC 173.303.840) For new or modified treatment facilities (generator owned and operated, or otherwise), a copy ofoperating procedures must be provided by the independent registered engineer, along with a copy of the drawings of the installation or modification. It is not clearifthese procedures must be approved by Ecology, or if Ecology requires copies of revisions. Response: A c-opy ofoperating procedures for a new or modified treatment facility does not need to be provided by an "independent" registered engineer. Independent certification of new or modified plans for facilities is primarily associated with closure and post-closure care, tank systems, and liners for landfills and waste piles. The operating procedures and drawings are "approved" byEcology through the permit process.

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• Manifest
Comment 12: Ecology should replace the word "composition" with ''waste code", and the word "routing" with "destination". Response: There was not a proposed change to this definition and Ecology believes the wordsused accurately convey the definition of a manifest. 

### MixedWaste
Comment 13: The commenter requested clarification of Ecology's regulatory intention by amending acutely hazardous waste, dangerous waste, and extremely hazardous waste to include source, special nuclear, or by-product components of mixed waste, as well as adding a definition of mixed waste. . Response: Ecology amended Chapter 173-303 WAC by adding a definition ofmixed waste to incorporate federal amendments to RCRA under the Federal Facilities Compliance Act. In addition, Ecology promulgated rules in May of 1992 to assess fees to facilities that treat, store or dispose of mixed waste underthe Dangerous Waste Regulations. In order to define which facilities may be impactedby the fee, it was important to provide a definition of mixed waste. Ecology's intention for the regulation of mixed waste has not changed under the proposed amendments. Ecology willcontinue ' to regulate dangerous waste, including the hazardous components of mixed waste, in accordance with the requirements under Chapter 173-303 WAC. Historically, when identifying regulatory requirements for mixed waste, Ecology has requested and reviewed information on the source, special nuclear, and by-product components of mixed waste, to determine the impact ofthose radionuclides on the form and management requirements for the hazardous waste. Ecology willcontinue to request and review that information to adequately regulate hazardous waste in Washington in a manner that is in compliance with the Dangerous Waste Regulations and protective ofhuman health and the environment. Comment 14: The definition of mixed waste should be revised to be consistent'with the recently enacted Federal Facilities Compliance Act, which states that the term "mixed waste" means waste that contains both hazardous waste and source, special nuclear or byproduct material subject to the Atomic Energy Act of 1954 (42 U.S.C.2011 et seq). Response: Ecology concurs with this comment and has made the suggested change to the definition of mixed waste. Comment 15:' To avoid redundancies, Ecology should simplify the definition ofmixed waste to read "a dangerous waste that contains source, special nuclear, or by-product material subject to the Atomic Energy Act of 1954."

.

5Response: Ecology concurs with the comment. During the regulatory reform project, the 

# 0\ Department ofEcology will be evaluating methods to simplify the regulations. This suggestion willbe considered at that time. 

### PAD (-040, -100(3)(b), -100(6)(c)) Comment 16: The definition should be revised to be consistent with Chemical Testing Methods. Definition should read, "

... The PAH ofconcern for designation are only those PAH withmore than·three and less than seven fused benzene rings." Response: .For consistency and accuracy, the change will be made in the final rule. 

### Treatment Comment 17: One commentersupported the revision to "exempt" compaction, repackaging and sorting from the definition oftreatment. This willencourage waste management "close to home" and help Ecology meet its goal for regulatory reform. Response:

.The comment is acknowledged. 

### WastewaterTreatment Unit Comment 18: With the amendment to this definition, if an Industrial Wastewater Pretreatment Facility has some residual sludge, do these tanks have to follow the requirements ofWAC 173-303-640? In the past, these tanks were exempt. Response: The definition ofWastewater Treatment Unitwas amended strictly to help clarifythe original meaning. We noted that there were numerous instances ofredundant or unnecessarylanguage within the definition and that its format could be changed to aid in clarity. The meaning ofthe definition has not changed. Any previous interpretations of the regulations regarding this definition stillstand

.



### .WAC 173-303-070(3) Designation Proeedurese

.General Comment 19: One commenter was concerned over how amendments to this section will affect existing**~waste** streams. 

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i**'----~-** Response: Waste streams being generated at the time ofadoption of the amendments willneed to be designated under the new requirements. Wastes generated prior to adoption ofthe amendments will not be regulated under these amendments retroactively. ()

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• Comment20: Several commenters expressed supportfor the proposed rule. 

### Response: The support is acknowledged. Comment21: Several commenters requested clarification of the number ofsections a waste mustbe checked against to be in compliance with the proposed rule. 

### Response: ·Theproposed rule, specifying the steps required to designate a waste, is presentedin two primary sections, (a) and (b). The first merely lists the steps and specifies the order in which they are to be checked. The second specifies how far through the list a waste mustbe checked. To summarize the requirements, a person only needs to proceed through the sections until the waste is first designated as a dangerous waste unless, (1) that person has been requiredby the Department to test the waste to determine whether or not the waste is designated under a specific section, (2) that person has "special knowledge" that the waste would also be designated under a subsequent section, or, (3) the waste is subject to the federal land disposal restrictions adopted under WAC 173-303-140. "Special knowledge" requires only that if a generatorhas existing knowledge that a waste designates as a dangerous waste under a specific section, then that waste shall also be designated in accordance with that section. The federal land disposal restrictions require that all federal waste designations must be applied to all restrictedwastes with existingfederal treatment standards. Some wastes, such as those being recycled on-site, may not be required to have these additional waste designations applied

. Comment22: Several commenters expressed concern that the proposed rule requires designation.bycriteria. 

### Response: The inclusion ofdangerous waste criteria into the main body of the designation procedure is accompanied with a change in meaning of "criteria". Under the proposed rule, the dangerous waste criteria are a consolidation of the dangerous waste mixtures, WAC 173-303-084, and state-only criteria, WAC 173-303-101 through WAC 173-303-103, in prior editions ofthe regulation. This change in the meaning ofcriteria is important to' distinguish, as it is a**k~y** concept in the proposed rule. The following is a briefsummary of the requirements pursuant to prior editions. In accordance with dangerous waste mixtures, WAC 173-303-084, a generatorwas only required to apply existing knowledge of waste constituents and concentrations when designating a waste, except for carcinogens. Carcinogen designation required a generator to designate a waste under. this section, if the waste contained carcinogens, regardless of whether or not the generator had existing knowledge of the constituents or concentrations. A generator could choose, or be requiredby the Department, to designate a waste against the state-only criteria: toxic,persistent and carcinogenic dangerous wastes. These state-only criteria required that a generator know the applicable constituents and concentrations in a waste. The proposed rule integrates both concepts into a single state-only section called "criteria". Underthe proposed criteria section a generatortypically needs only to apply
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# L existing knowledge ofwaste constituents and concentrations when designating underthis section, including carcinogens (see proposed WAC 173-303-100 (5)(a), (6)(a) & (7)(b)). A generatormay choose or be required by Ecology to determine the applicable constituents and concentrations, but a generator is not automatically required to designate wastes per the criteria

.

.Comment 23: Two comnienters pointed out a typographical error in the proposed rule in WAC 173-303-070(3). Response: Obs.ervation appreciated. The error has been corrected. -". Comment 24: One commenter pointed out a conflict between the requirements under this section and those under the previous.dangerous waste characteristics edition; specifically, that 173-303-090 (5)(b), (6)(b), (7)(b), & (8)(b) language regarding "but is not designated under lists..," conflicts with the requirements ofWAC 173-303-070(3)(b). Response: This conflict was addressed and presented in a separate section ofthe version of the proposed rule amendments that were mailed to the public during the public comment period. In the separate section, all amendments were listed that were . necessary in order to consolidate dangerous waste mixtures and state-only criteria. 

### WAC 173.303-070(3)(c) Designation Procedures: Knowledge Versus Testing Comment 25: One commenter suggested that the proposed rule be amended in a manner to ensure that it is clear that a waste may be designatedby testing, knowledge or a combination oftesting and knowledge. Response: A waste may be designated using a combination oftesting and knowledge under the proposed rule. In the interest ofkeeping the regulation as briefas possible, the Departmentbelieves that the

.language in the proposed rule sufficiently portrays this allowance. Comment 26: One commenter expressed concern that the proposed rule is confusing with regard to using knowledge or special knowledge in regard to "designation" of a waste. Response: As the commenter points out, the word "designate" means that a waste has been determined to be a dangerous waste under the rule. The proposed rule used the term in another connotation, meaning the process ofdetermining whether or not a waste is a dangerous waste. The proposed rule willbe amended such that the words "proper designation" willbe converted to "determining whether or not it designated and/or designated properly" in WAC 173-303-070(3)(c)(ii)(B) and WAC 173-303-070(4)(e). Comment 27: One commenter expressed concern regarding an implied conflict with this section and the allowances under the proposed dangerous waste criteria section for a generatorto apply existing knowledge on constituents and concentrations.

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• Response: A waste that is either designated or not.designated in accordance with the requirements set forth in the proposed dangerous waste criteria section, WAC 173-303- 100, would be considered to be "properly determined" (see previous comment) under that section in the proposed rule. Ifthe criteria section does not require specific knowledge regarding constituents or concentrations, then existing knowledge is sufficient. Comment28: Several commenters expressed concern regarding the potential for lack of consistency ininterpreting whether or not a generatorhas sufficient knowledge for designation and requested that the requirement for demonstration be clarified. Response: In the proposed rule, the process ofdetermining if a solid waste is a dangerous waste is one in which a generator checks the appropriate sections, lists, characteristics and criteria. A generator applies the knowledge available in light of the materials or process generating the waste and, when that knowledge is insufficient to make the required determination, tests the waste using an appropriate method. In previous editions of the regulation, this concept was implied but not specifically stated. The purpose ofadding this section to the rule was to allow generators to take full advantage of any knowledge available while, atthe same time, being able to verify the information. The type and depth of knowledge required to designate a waste varies considerably on a case by case basis. The Department has found that reasonable persons will usually reach the same conclusion, regarding designation of a waste, when given the sameinformation and correct application of the rule: Because of this, Ecology felt that it is unrealistic to try to include a detailed depiction ofexactly whatwould be required to demonstrate sufficient knowledge in the rule that would be applicablein every situation. The Dangerous Waste Regulations are intended to be "selfimplemented" by generators and others performing regulated activities. Unless otherwise specified in the rule, it is not implied or anticipated that a generator must secure Ecology concurrence with designation decisions. Comment29: One commenter expressed concern regarding an implied mandate that only specific test methods be used to designate a'waste. Response: While in some circumstances it is appropriate that waste sampling and testing be performed in strict accordance with the methods described in WAC 173-303-110, in many situations a less rigorous sampling and testing approach is suitable. This less rigorous approachwould be considered to be the basis for a generator's knowledge of the waste, as long as the data and otherinformation would be sufficient to determine whether or not a waste isdesignated and/or designated properly. Comment30: One commenter asserted that the recordkeeping requirement in the proposed rule would be an excessive burden on generators. Response: This proposed rule only clarifies existing requirements. It is not intended to broaden.the scope of the recordkeeping requirements, 'as set forth in WAC 173-303- 210(3), in anymanner.

9Commen! 31: Two commenters proposed that the recordkeeping requirement should be addressed in or referred to section WAC 173-303-210(3) in the rule. Response: The words "in accordance with WAC 173-303-210(3)" will be added to the sentence in WAC 173-303-070(3)(c)(ii)(B). 

### WAC 173-303-070(4) Designation Procedures: Testing Required
Comment 32: Several commenters expressed concern thatthe Department mayrequire a generator to test a waste withoutjustification or written notice under-the proposed rule. I \


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Response: This section of the Dangerous Waste Regulations has remained essentially unchanged for over ten years without. significantproblems.· Under editions prior to the proposed amendment, generators may be required to determine whetherornot a waste

.. was designated under the dangerous waste criteria. The criteria consisted oftoxic,

persistent, carcinogenic and characteristic dangerous wastes. Under the criteria, a generator must be able to demonstrate knowledge ofall pertinent constituents, concentrations and characteristics. In reality, if a generator did not have sufficient knowledge ofthe waste from the materials or the process used, testing would be required for this determination. The proposed rule is not intended to alterorexpand the scope of this section. The rule was amended in the proposed manner to account for the change in the meaning ofcriteria; to acknowledge that this section has in fact, invariably required a generator to test a waste; and to allow for the addition of WAC 173-303- 

# 0 070(3)(c) into the rule. This section does not allow the Department to indiscriminately require generators to perform testing. Section WAC 173-303-070(4)(e) was added into the rule along with WAC 173-303-070(3)(c) to clarify that a generator may use knowledge in making designation determinations and that the Department may require a generator to test a waste when it has determined that there was not sufficient basis for the use ofknowledge. Both policies and/or authorities existed under previous editions of the rule. The proposed rule was developed because of comments received expressing desire for the Department's position regarding the use ofknowledge in designation determinations to be codified. Comment33: One commenter expressed concern that the proposed rule eliminatesthe

. utility of''book designation" for determining whether or not a waste is designated as a toxicdangerous waste. The commenter asserted that the provisions in this section that allow the department to require a generator to test a waste using the Biological Testing Method (bioassay), which could potentially change the manner in which a waste is regulated, is the cause ofthis predicament. Response: Ifa solid waste stream is determined not to be designated as a toxic dangerous waste using book designation method, and is later determined by bioassay to be designated, the designation would not change retroactively, only from the time that the newinformation became known. Waste which had been disposed ofprior to the new information becoming available would not be regulated as dangerous waste
.. Any waste newlygenerated, or any remaining on-site, would be designated. Unless directed

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• otherwise, generators have always had the option of using eitherbioassay test results or book designation for determining ifa waste is a toxicdangerous waste. The proposed rule does not significantly change this ·situation. When requiredby the Department to determine if a waste is designated urider the toxicity criteria, WAC 173-303-101 in previous editions of the rule, a generator could onlybook designate a waste if all potential toxicconstituent concentrations and toxicities were known. This option was' rarely chosen bygenerators, since the knowledge standard is difficult to achieve in practice. In almost every case, bioassay tests were performed to meet this requirement. The proposed rule acknowledges this situation. The Departmentbelieves that the book designation method is, at best, a calculated approximation ofwaste toxicityand does not take into account synergistic effects. Bioassay test results represent actual toxic effects, and therefore, determinations made from bioassay data takes precedence over book designations. While the proposed rule codifies this, it is not a change from Department policy. 

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### ":"'4 :.:.:.:.;.:.:.::_,.......... . _ Domestic Sewage Exclusion (-071(3)(a)) Discussion: The Domestic Sewage Exclusion has been reworded in response to comments received from the public and interested persons. Commenters generally had problems with the lack of defmition of a few key words including wastewaters, rinsewaters, and the term dilute. The revised wording of the' domestic sewage exclusion eliminates the need to define these terms, and instead relies heavily on the definition of characteristic and criteria dangerous waste to determine which wastes can be discharged to the POTW. The intent is to only allow wastes into the POTWwhich are amenable to treatment in the POTW, i.e., will not cause a process upset, will not pass through untreated, and will not adversely affect sludge quality. The revised wording also eliminates the difference between SQGs and LQGs in terms of what can be discharged. Comment34: The wording of the domestic sewage exclusion, as proposed in the amendments;would categoricallyprohibit any discharge, notjust discharge of the material under consideration, to the POTW prior to receiving permission. Response: The primary purpose of this exclusion is to exemptPOTWs from the permitby-rulerequirements in caseswhere dilute "listed" wastes are incidentally present in the influent to the POTWs. A secondary purpose for this exclusion is to allow, through a permitting process, dangerous wastes which are amenable to treatment to be discharged to a POTW. Ecology has reworded the proposed amendmentto clearly indicate that, under the dangerous wasteregulations, only wastes which are dangerous are required to be permitted. Wastes which are dangerous can be discharged to a POTW provided that the waste is amenable to treatment in the POTW, and provided that the discharge has been permitted. Businesses who discharge to a POTW should be aware that local authorities still have the prerogative to require a discharge permit for any waste stream 11 I

Ifrom an industry or a commercial business, regardless ofwhether the waste is dangerous 

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ornot. .) Comment35: The domestic sewage exclusioncompletely ignores the existingregulation ofthe discharge ofwastes underthe General Pretreatment Standards ofthe Clean Water Act (CWA). The.CWAregulatory program makes additional regulation under the dangerous waste program unnecessary, duplicative, and confusing. Ecology should acknowledge the existing CWA program and adopt the federal domestic exclusion. Response: Ecology believes the federal domestic exclusion is too broad, and allows the discharge ofdangerous wastes (to the POTW) which would not be treated/removed in the treatment process. Ecology believes that to adopt a similar broad exclusion would create an unrealistic expectation among generators that abroad spectrum ofdangerous wastes couldbe discharged to POTWs. In reality, most dangerous wastes are not amenable to treatment in a POTW. In addition, it is unlikely that a POTWwould issue a discharge permitfor a large majority of wastes which classify as dangerous wastes. Ecology has reworded the proposed domestic sewage exclusion in a waythat will (a) create realistic expectations for the generators regarding the kinds of wastes which can be discharged into a POTW, and (b) only allow the discharge of wastes which are amenable to treatment in a POTW. This revised wording gives**POTW~** full authority to permit the discharge of wastes which classify as dangerous waste, and which are amenable to treatment in a POTW. Comment 36: The commenter expressed concern that the proposed amendment was unclear as to whatwould constitute a valid discharge permit. Response: Ecology agrees that there was some ambiguity in the preamble discussion regarding what constitutes a valid permit to discharge wastes to a POTW. Ecology has revised the wording ofthe proposed domestic sewage exclusion, and believes that the issue has been clarified as much as is possible in the rule. The term "written discharge authorization" was not intended to mean that eachbusiness have a separately written and customized permit. For purposes of this exclusion, POT\Vs would he able to issue category permits (e.g., for dental offices) which include appropriate discharge limits, or

.through published utility operating rules. Byrequiring 'Written discharge authorization"

for each generator discharging dangerous waste to the POTW, a dangerous waste inspectorwill know with certainty that such discharge has been authorized. The reworded exclusion requires permits only for businesses discharging dangerous wastes to aPOTW. Comment 37: This exclusion will allow SQGs to discharge dangerous wastes to the POTW, creating a burden on municipalities which do not currentlyregulate discharges to the sewer system. The use ofcategorical industrial approvals willencourage the disposal ofdangerous wastes into sanitary sewers and provide an opportunity for abuse. 

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Response: Ecology has revised the wording of the domestic sewage exclusion to allow 

# C) only the discharge of dangerous wastes (to POTWs) which are amenable to treatment in

. .

.the POTW.**_~rtain** categories ofwastes (e.g., hospital disinfectants including

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• .glutaraldehyde, formaldehyde, and ethyl alcohol) are amenable to treatment in a POTW. The allowance of categorical approvals is not seen as providing opportunities for the discharge ofunauthorized wastes to the POTWs that did not already existunder current regulations. While there will be some addedburden to permit such discharges, the wording of the exclusion has been revised to eliminate applications for wastes whichare not amenable to treatment in a POTW. Ecology believes that the revised wording creates realistic expectations among generators which will limit the number ofapplications for discharge. In addition, for POTWs which have notbeen delegated the pretreatment program, there will be no added work load since permits for discharge willnotbe issued by the POTW.

. Comment38: Ecology should adopt the task of developing categorical industry approvals, taking into account specific technologies and processes used to treat domestic sewage. Response: Since a majority of POTWs have not been delegatedthe pretreatment 'permit program, the issuance of permits for discharge ofdangerous wastes willbe done by Ecology'sWater Quality Program. Ecology will rely on historical knowledge of waste streams, and information provided by applicants to develop permits for categorical discharges. This information will be shared with POTWs as it is developed. Applicants who cannot demonstrate that their waste is amenable to treatment in a POTWwill not be issued a permit. Comment 39: The proposed state domestic sewage exclusion appears to differ from the federal domestic sewage exclusion, which is unfortunate. Response: While EPA has a different wording for their domestic sewage exclusion,the federal exclusion is not applicable in states which have been delegated the core RCRA program. Ecology believes that the state domestic exclusion isbased on sounder policy than the federal exclusion in the respect that it limits the kinds of wastes which can be discharged to a POTW. The intent of the state domestic sewage exclusion is to allow only the discharge of wastes whichare amenable to treatment in the POTW process. Under the revised wording, the POTWs have the authority to permit any waste to be discharged to the POTWwhich they believe is amenable to treatmentin the POTW. Comment40: There appears to be a significantresource impact as consequence of the proposed regulation change. Response: Ecology is sensitive about the potential impacts to POTWs (and our own wastewater permit program) resulting from the revised domestic sewage exclusion. Several commenters expressed concern that the proposed revision was too broad, creating unrealistic expectations about discharging dangerous wastes to POTWs. Ecology agrees -that the proposedwording of the domestic sewage exclusion could have produced false expectations among persons wanting to discharge dangerous wastes to a POTW. In response to this, Ecology has revised the wording of the domestic sewage exclusion to clarify that only wastes which are amenable to treatment in a POTW can be discharged into the sanitary sewer.

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Comment41: There appears to be uncertainty regarding who has the responsibility for [issuing permits under] this program. Response: The wording ofthe domestic sewage exclusion has been revised to clearly indicate that, in order to discharge to a POTW, generators must have a state waste discharge permit, or a pretreatment permit (or written authorization) issued by a local sewage utility which has been delegated pretreatment program responsibilities. Ecology's Water Quality Programwill issue discharge permits for POTWs which have not been delegated the pretreatment program. Comment42: There is confusion regarding the allowable control instrument which would enable industrial users to qualify for the domestic sewage exclusion. Response: The proposed domestic sewage exclusion allowsdischargers to obtain a 'Written discharge authorization" from the POTW. The POTWs would be able to issue categorypermits (e.g., for dental offices) which include appropriate discharge limits. This is a detail we felt appropriate for the preamble discussion rather than published in the rule itself. While individual POTWs have the latitude to specifywhat kinds of constituents can be discharged, it would seem prudent for POTWs to also specify how much (in terms ofpounds per day) may be discharged. Ecology will not attempt to develop a list ofchemical constituents, and concentrations, which can be appropriately treated in a POTW, under the revised domestic sewage exclusion. Permitwriters will have the latitude to determine which wastes are (or are not) amenable to treatment in the POTW, based on knowledge ofthe waste, and/or information provided by the generator. Comment43: The proposed domestic sewage exclusion will likelyplace additional impacts and/or regulatory requirements on the POTWbiosolids program. 'C'<, . \



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Response: The revised domestic sewage exclusion is not intended to allow the discharge ofmaterials which will adversely affect the quality of sludge produced at POTWs. The permitwriters have full control ofthe kinds ofwastes which can be discharged to the POTW. Discretion will have to be applied when issuing permits for discharge, much as discretion is applied when issuing discharge permits now, to insure that the quality of sludge remains high. In cases where the permit writer has insufficient information to make a decision about the impacts to sludge quality resulting from the discharge of 8' dangerous waste, the applicant willbe required to provide informationwhich clearly demonstrates that there will be no adverse affects. While there will likely be some impact to POTWs we do not feel that the impacts will be significant. Ecology understands that the success ofthe biosolids program isbased not only on real impacts but also on perceived impacts as well. While the revised wording of the domestic sewage exclusion willallow dangerous wastes to be discharged to the POTW, the permitwriters must be cognizant ofthe real, and perceived, impacts to the sludge prior to issuing a permit. However, this sludge impact evaluation is something which already occurs under present operations, and is not seen as a new responsibility to permitwriters. 

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# • Comment44: We understand that the POTWwould also not come under the dangerous waste regulations [fortreating dangerous waste] by following the proposed domestic sewage exclusion. Response: POTWs which receive dangerous wastes, via permit, for treatment willnot be considered TSDs. Under the revised domestic sewage exclusion, dangerous wastes which are discharged, via permit, to a POTW are excluded from the regulations. When a waste is excluded from regulation, it is considered to be a solid waste not subject to.Chapter 173-303 WAC, unless specified in the exclusion. Comment45: Ecology should clarifythat the exclusionis applicable to facilities that discharge a mixture of domestic sewage and other waste waters directly to surface waters via an NPDES permit. Response: This exclusion is specific for dangerous wastes being discharged to POTWs. Industries who discharge dangerous wastes to privately owned treatment works are already granted such allowance under two provisions in the dangerous waste regulations, WAC 173-303-802 Permit by Rule, and WAC 173-303-071(3)(b), the exclusion for industrial wastewater dischargers. Comment46: Must otherwastes be mixed with domestic sewage to quality for the exemption?

• Response: The intent of the domestic sewage exclusion is not to require discharges to the POTWto be mixed with domestic sewage prior to discharge into the sanitary sewer. Comment47: The terms "rinsewater" and "wastewaters" are problematic. Response: Ecology agrees that the terms "rinsewaters" and 'wastewaters" are problematic because of the difficulty of accurately defining them. In response to this comment, Ecology has revised the concept and wording of the domestic sewage exclusion such that these words are no longer part of the exclusion. Comment48: What is the definition of the term "dilute hazardous waste"? Response: Because of the difficulty of defining the term "dilute hazardous waste", Ecology has reworded the domestic sewage exclusion such that it does not include the concept of "dilute hazardous waste". The revised wording only allows the discharge ofdangerous wastes to the POTWwhen such waste is amenable to treatment, and when a discharge permit has been issued for that waste. 

# • Comm£nt49: Developing acceptable discharge lists, or evaluating waste discharge applications isnot a simple task, one for which many POTWs are ill equipped, in terms of training or resources, to handle.

. Response: Ecologyunderstands that the permitting issue appears to be a very technical and formidable task. However, from a regulatory point of view it makes sense to allow

. 15wastes to be discharged to the POTW if such wastes are amenable to treatment, even .0,. ) when such wastes designate 'asdangerous wastes. Ecology believes that permitwriters / will primarily rely on historical knowledge in making determinations regarding treatability. In cases where there is insufficient historical knowledge to make a determination, the applicant

### will be required to submit information which clearly demonstrates that his, waste is amenable to treatment in the POTW. Ifthe demonstration cannotbe made, then a permit is not issued. METRO and the state have committed to share information with otherrOTWs on specific waste streams as the information becomes available. POTWs with pretreatment programs willissue permits to dischargers, and will be required to make a determination regarding the treatability ofwastes. POTWs which have not been delegated the pretreatment programwillnot be issuing permits, and therefore should feel no impact from this rule revision. Comment50: The commenter does not feel that hazardous waste shouldbe allowed to be discharged into sanitary sewers because of concern for the quality ofeffluent, and the quality of sludge. Response: It is not the intent of the domestic sewage exclusion to allow wastes to be discharged to a POTWwhen such wastes will merely be diluted and pass through the POTW untreated, or will adversely impact the quality of the sludge. Some dangerous wastes are clearly amenable to treatment in a POTW. Wastes including formaldehyde and ethyl alcohol are clearly biodegradable (at moderate concentrations) and will not adversely affect the quality of the effluent or' the quality of the sludge. The great 

# 0 majority of wastes which classify as dangerous wastes under Chapter 173-303 WAC are not amenable to treatment in a POTW and should not be discharged to the POTW. Ecology feels that wastes which can be adequately treated inthe POTW should have 'the option to be discharged to the POTW. POTWs are not required to accept treatable wastes, and may choose to deny a permit for any discharge after considering factors such . as, hydraulic loading, BOD loading, concentrations being discharged, potential to upset the treatment process, impacts to sludge quality, impacts to effluent quality, and other

. factors. Ecology believes that the burden of proof, regarding treatability of the waste, rests with the permit applicant. In cases where the permit writer does not have sufficient information to make a determination regarding the treatability ofthe waste, the permit should be denied. 

### Treated Wood Exclusion (-071(3)(g)(i)&(ii)) Discussion: The Treated Wood,Waste Exclusion has been reworded in'response to comments received from the public and interested persons. Comments from industry' generally urged Ecology to allowburning of "other" treatedwood waste inindustrial furnaces and boilers, and to allow disposal in landfills other than those permitted under WAC 173-3Q4:460 or Chapter 173-351. Since no data was offered to substantiate that these practices were sufficiently protective, Ecologybelieved it would be imprudent to grant these requests. Other comments asked Ecology to clarifywhether any generator requirements applied to the treated wood waste prior to disposal in a landfill. The intent () ofthis exclusion was to require generators to remove the waste to an appropriate landfill

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• within a reasonable time frame, but not to require generators to meet generator requirements such as secondary containment, labeling, manifesting, recordkeeping, reporting, and otherrequirements. The language of the exclusion was reworded to clearly state that generators will not be required to comply withgenerator requirements, but will be required to remove wastes within 180 days. Additional words were added to the exclusion to allow the treated wood waste to be sent to treatment facilities and to recycling facilities. Commentsl: Is the [treated] wood waste considered to be a dangerous waste until it is buried at the landfill? Ifso, do the storage and labeling requirements apply prior to disposal? Does this wood waste need to be manifested when transported to the landfill? Must this waste be included in the generator's annual report? Response: Ecology agrees that there is ambiguity regarding the regulatory status of this waste prior to disposal in a landfill, and has revised the wording of the exclusion to eliminate the ambiguity. The intent of this exclusion is to insure that treated wood waste is disposed of in certain specified landfills, and that generatorrequirements would not apply if the waste was disposed in a timely manner. There is no intent to require generators to comply with the generatorrequirements except for removing the treated wood off site to a landfill in a timelymanner. Accordingly, Ecology has reworded the exclusion to indicate that the generators have 180 days to ship wastes off-site. Other generatorrequirements pertaining to secondary containment, manifesting, counting, and reporting are not applicable. Ecology believes that requiring generators to ship wastes off-site in a timely mannerwas necessary to avoid large accumulations and long term storage of wastes on the generators site, a condition which would thwart the intent of requiring disposal in specified landfills. Comment52: Commenter suggests that the wording of the treated wood waste exclusion : should be revised to allow disposal in a landfill permitted under Chapter 173-303 WAC. Response: Inresponse to the comment, Ecology has amended the language to include permitted facilities as an option under this exclusion. Comment53: Requiring treated wood waste to be disposed of in a landfill meeting the requirements of WAC 173-304-460is more restrictive than necessary, since it appears to disallow disposal in landfills operated in conformance with WAC 173-304-461 or -462. If the preferred management alternative of this state-only waste isreuse in gardens, landscaping, fences, and pilings, we should not be overly concerned about disposal that does not involve burning. Response: Treated wood waste does not qualify, by definition, as demolition debris or as wood waste, and therefore does not qualify for disposal in landfills operated in conformance with WAC 173-304-461 or -462. Even more important, treated wood wastes contain toxicmaterials which pose significantlydifferent risks from wastes managed under WAC 173-304-461 or -462. For this reason, Ecology believes that disposal oftreated wood waste in landfills operated in conformance with WAC 173-304-461 or -462 is not sufficientlyprotective ofhuman health and the environment. While the preferred
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management option for treated wood is reuse, Ecology-does not recommend that treated (\, wood be used in'gardens. 

## ..J Comment54: To encourage the burning ofcreosote-treated wood forenergy recovery, wood ash·generated from the combustion ofcreosote treated wood should also be excluded from the dangerous waste regulations as proposed in WAC 173-303-071(3)(v). Failing to include wood ash [from the burning oftreated wood] in that exclusion effectively'discourages energy recovery ofcreosote-treated wood. Response: Ecology has reviewed a sufficientnumber oftests on wood.ash resulting from the burning ofuntreated wood to be convinced that the ash will only designate for' corrosivity, i.e., the pH is above 12.5. Ecology felt compelled not to include ash from burning ofcreosote-treated wood primarilybecause no data has been offered which demonstrates that such ash only designates for corrosivity. In cases where boilers bum inefficiently, the ash could include products ofincomplete combustion including cresols and polycyclic aromatic hydrocarbons, many of which are carcinogenic at low levels. In the absence ofdata which clearly addresses the potential risks posed by this waste, Ecology believes that it would not be appropriate to exclude this waste. Ecology could consider an exclusion or petition for ash from burning creosote treated woodbased on data, ifthis ash was corrosive and otherwise not toxic. Comment55: The regulation should also add treatment and recycling to the acceptable disposal options.

. Response: Ecology agrees with this comment and has revised the wording of the treated wood exclusion to reflect that treated wood which is either treated or recycled will also be excluded from regulation

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.Comment56: All treated wood can successfully be incinerated in a properfacility;

therefore, incineration should not be limited to creosote treated wood only. Response: Ifthe comment refers to "burning for energy recovery" in an industrial furnace or boiler, Ecology believes that the burningofcreosote treated wood will pose less risk than burning other treated woods. Chemically, creosote resembles fossil fuels and it follows that the emissions and the ash willbe similar to those found at facilitiesburning fossil fuels. The burning ofother treated woods,' e.g. wood treated with pentachlorophenol or arsenic, poses additional risk in the respect that additional hazardous constituents will be present in the emissions and ash. These additional

.constituents, which will not be found in the burning·ofcreosote treatedwood, will likely require additional pollution control equipment, and will likelyresult in the ash being dangerous waste. Ecology believes that it would not be prudent to exclude abroad spectrum oftreated woods for burning in facilities, which in most cases are not equipped to deal with the additional hazardous constituents, and pose unknown risks. The Dangerous Waste Regulations provide for the burning ofthese other treatedwoods in WAC 173-303-510, Dangerous Wastes Burned for Energy Recovery. (See comment #57)

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• Comment57: The proposed treated wood exclusion should allow alternative disposal options, such as burning for energy recovery, for all [wood] preservatives, with the proviso thatthe utilizing facility be properly permitted to receive and utilize the material. Response: Ecology has decided to exclude only creosote treated wood when burned for energy recovery in an industrial furnace primarily because there is a significant difference between the constituents found in creosote and constituents found in otherwood preservatives. The constituents found in creosote are hydrocarbons, similar to those found in fossil fuels. Otherwood treatments contain constituents such as pentachlorophenol, copper chrome arsenate, and copper naphthanate (to list a few) which all have hazardous constituents which, for the most part, are not presentin fossil fuels. The additional risks these chemicals pose warrant the stricter regulation under

- 510. The Dangerous Waste Regulations already contain a provision for allowing

.dangerous wastes to be burned for energy recovery in WAC**173-303-510~** Dangerous Waste Burned for Energy Recovery. Ecology remains open to considering any information which demonstrates the feasibility ofburning "other" treated woods in industrial furnaces and boilers. (See comment #56) Comment58: The commenter strongly urges that the proposed rules exempt disposal of alltreatedwood by alternate methods, such as burning for energy recovery, when the utilizingfacility is properly permitted to receive and utilize the material. Comment59: The commenterrecommends that wood treated with other preservatives have the option to be burned for energy recovery in an industrial furnace or boiler which isproperly permitted to receive and utilize the treated wood. Comment 60: Alternative disposal options, such as burning of [treated] poles for energy recovery inpermittedfacilities, should be allowed. Response: See response to comments 56 and 57. Comment 61: Thewords "and operated" should be dropped from the rule because it is not reasonable nor proper to expect the generator of the waste to make such evaluations. Response: Ecology agrees with this comment and willdelete the words "and operated" from the treatedwood exclusion.

. Comment 62: Is it the intent of the Department to require the treated wood to go to a Subtitle D compliant landfill or would a Chapter 173-304WAC Minimum Functional Standards for Solid Waste Landfilling (MFS) wood waste landfill with a leachate collection system be permissible?

. Response: Ecology believes that the landfilling standards for wood waste landfills, even wood waste landfills with liners, are not sufficiently protective to allow the disposal of treatedwood. Because of the history oflandfill failures, i.e., groundwater contamination, and because ofthe hazards posed bywood treating chemicals (they are toxic, persistent, and carcinogenic), Ecologybelieves that the increased level ofprotection provided for in
19WAC 173-303-460 and Chapter 173-351 WAC are warranted for the safe disposal of treated wood waste. Comment 63: The commenter encourages Ecology to expand the disposal options for treated wood beyond the use of landfills that are permitted and operated,in accordance with WAC 173-304-460and WAC 173-351. Response: See response to comment #62. Comment 64: Ecology should clarify the intent andapplicability of the statement which excludes treated wood waste when burned for energy recovery in industrial furnaces. or boilers which have a valid air pollution control permit. Response: Ecology intends to allow the burning ofcreosote treated wood in facilities which qualify as industrial furnaces or boilers under the definition contained in the Dangerous Waste Regulations, Chapter 173-303 WAC, provided the facility has a valid air permit. Regarding applicability, when a waste is excluded from the dangerous waste regulations, it remains a solid waste subject to all applicable provisions ofChapter 173- 304 WAC, Minimum Functional Standards. Ecology believes that it is common knowledge that wastes which are excluded from Chapter 173-303WAC are still subject to regulation as solid wastes. This applies to all wastes which have been excluded, and to all wastes which do not designate as dangerous waste. Ecology believes it is not necessary to include a statement to this effect for this specific waste.

, Comment 65: The commenter expressed concern that the treated wood waste exclusion

, allows for disposal in a landfill permitted and operated in accordance with Chapter 173-

351 WAC, when in fact, this regulation has not yet been adopted. Response: While Chapter 173-351 WAC had not been adopted at the time of this proposed amendment, Ecology does not believe that it was necessary to make mention of this in the rule. Ecology does not anticipate any problems arising from the fact that there are no landfills currently operating under Chapter 173-351 WAC. Comment 66: The Dangerous Waste Rules should not discourage development of such facilities [facilities which bum other treated woods for energy recovery] in Washington. Response: The Dangerous Waste,Regulations alreadyhave a provision to allow the

.burning ofother treated woods, which designate as dangerous waste, for energy recovery in WAC 173-303-510,Dangerous Waste Burned for Energy Recovery. Comment 67: The commenterbelieves that treated wood can be safely disposed of in landfillsthat do not meet the municipal solid waste landfill standards and that all treated wood can safely be burned in industrial furnaces and boilers. Response: Ecology is not aware of any data which documents that all treated wood can safely be burned for energy recovery in industrial furnaces and boilers, butwould

.consider any information that the commenter can provide which supports this claim.
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• Also, see response to comments 56 and 57. Regarding the disposal oftreated wood in landfills, other than those regulated under WAC 173-304-460 and Chapter 173-351 WAC, see response to comment 62. Commen: 68: The treated wood waste exclusion should include incineration as a disposal option if the incinerator meets all applicable state and local regulations. Response: Ecology believes that the permit process found in Chapter 173-303 WAC is the properforum for permitting facilities which want to incinerate wastes which classify as dangerous waste. Facilities which meet the stringent standards set forth in WAC 173-

- 303-800are eligible for a permit. In addition, the Dangerous Waste Regulations have provisions which allow for the burning ofother treated wood for energy recovery in WAC 173-303-510, Dangerous Waste Burned for Energy Recovery. Ifthe incinerator in Spokane meets the conditions of WAC 173-303-510, then treated wood may be burned at that facility. Ecology does not believe that solid waste incinerators are equivalent to hazardous waste incinerators in their destruction and removal efficiencies, and in their ability to safelyincinerate a broad spectrum ofdangerous wastes. Comment 69: The commenter requests that the exclusion language be broadened to allowtreated wood including wood treated with pentachlorophenol be burned for energy recovery in Spokane's Municipal SolidWaste Incinerator. Response: See response to comment 68. Comment 70: The primary test of designation, the TCLP test, has repeatedly shown that treated wood does not designate as a dangerous waste. Response: The term "primary test of designation" is confusing. While EPArelies heavily on the TCLP test to designate wastes which are not listed, Ecology uses the TCLP test and three additional criteria for designating wastes which are not listed. While creosote treated wood and penta treated wood did not fail the TCLP test, both treated woods were shown to be extremely hazardous wastes under the state dangerous waste criteria. Ecology believes that the TCLP test has some shortcomings, the primary one being that it onlyaddresses 39 constituents. The EPA system for designating wastes also does not capture mixtures which are acutely toxic. The state system of "criteria" is more consistent in regulating wastes, including mixtures, which are toxic, persistent, and carcinogenic. Commen: 71: The treated wood exclusion should include a provision stating that disposal'

,in permitted landfills is subject to local approval since some local requirements are more

stringent than state requirements. 

### Response: The proposed exclusion for treated wood waste will not require local landfills to take suchtreated wood wastes. There are many examples where local landfills have established acceptance standards below the dangerous waste regulatory threshold. Since it is clear that local jurisdictions have the authority to set landfill standards below the dangerous waste regulatory threshold, Ecology believes that it is not necessary to include a statementto this effect in the exclusion.
21Comment 72: The commenter stated that this policy [regulating treated wood] certainly 

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..) challenged common sensebecause products utilized intimately in the human /' environment for decades could suddenly be a dangerous waste when it became time to dispose ofthem. Response: One of the reasons we evaluated, then proposed, the exclusion for treated wood wastes is for the reason stated in the comment. However, it is not accurate to say that if a material (or chemical) can be used as product, it poses no risk to human health or the environment. Commerce is filled with products that are regulated as dangerous wastes when the productis discarded. Consider the example ofpesticides, Pesticides are used widely in agriculture, and virtually all ofthem are regulated as dangerous waste; many are regulated as extremely hazardous waste. Preservatives used in treating wood

.are in fact pesticides and are subject to regulation under FIFRA, the same federal agency which regulates agricultural pesticides. Because of the highly toxic nature of many wood treatments, there is concern for its use in aquatic environments and for the disposal of wastes. Both the Department ofFisheries and the Department of Wildlife are developing regulations which willprohibit the use ofcreosote treated wood and penta treated wood in fresh water lakes in Washington state. Furthermore, use oftreated wood as a productis different from treated wood in a disposal scenario. Productuse does not involve the high concentration oftreated wood that can exist in land disposal. Wastes are concentrated and the risk of toxic effects increases. In order to adequately control these risks, the proposed rule·stipulates that treated wood must be either sent to landfills which meet the standards of WAC 173-304-460 or Chapter 173-351, or burned 

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### Asbestos Exclusion (-071(3)(m»
·Comment 73: With the redefinition of carcinogenicity, the exclusion is no longer necessary for asbestos; however, the exemption should be continued for wastes that contain respiratory carcinogens, e.g., beryllium, provided they are managed consistent with 40 CFR Part 61. Another commenter suggested that the exclusion for respiratory carcinogens in non-friable forms. should be added to 100(7). The deletion of the exclusion means that asbestos will be regulated byboth Ecology and TSCA. Ecology should explain this policy. Response: The exclusion was proposed to be deletedbecause the list ofcarcinogens to be regulated (based on the industrial soil cleanup standards) did not include asbestos. However, with the withdrawal ofthe proposal and decision to regulate constituents that appear on both the IRIS/HEAST and IARC lists on which asbestos appears, the exclusion willnotbe deleted in the adopted rule. Note that asbestos appears on the IRISIHEAST list and not on the soil cleanup listbecause its predominate route of exposure is through breathing not oral ingestion. 

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# • Wood Ash Exclusion (-071(3)(v))
GeneralResponse: Ecology received many comments concerning whether or not sludge from pulp and paper mills should be included as part of this exclusion. As proposed, the wood ash exclusion applies only to the burning ofuntreated wood and specifically listed wood fiber materials. However, based on the comments received, Ecology has further considered the issue ofwhether or not sludge from pulp and paper mills should be proposed to be included as part of the exclusion. Among the issues considered are: 1) The composition of the sludge; 2) The processes that contribute to the sludge; 3) Whether or not the ash that results from burning untreated wood, wood fiber materials, and sludge designates as a dangerous waste any differently than ash from burning untreated wood and wood fiber materials (that is, does it designate other than as a solid corrosive); 4) Current management practice of this waste stream; and 5) Will the exclusion be of any use to the regulated community if it does not include pulp and paper mill sludge. Based on the above considerations, Ecology has decided to propose an amendment to this exclusion immediately followingadoption to include pulp and paper mill sludge.
Comment 74: Several commenters expressed support for the proposed wood ash exclusion. Response: Ecology acknowledges the support.

• Comment 75: One commenter opposed the proposed wood ash exclusion. Response: Ecology acknowledges the opposition; Comment 76: One commenter suggested rewording the proposed wood ash exclusion (section 071(3)(v)) to allow wood ash to include ash residue and emission control dust generated "primarily" from the combustion ofuntreated wood and wood fiber materials. Response: The term "primarily" adds vagueness to the exclusion. The intent of the proposed rule was for onlyuntreated wood/wood fiber material to be burned under this exclusion. To emphasize the intent of the exclusion, the word "primarily" will not be added.
Comment 77: One commenter suggested rewording the proposed wood ash exclusion to expand the examples of wood fiber materials by replacing the abbreviation "l,e," with the words "includingbut not limiting to" and to include "wastewater treatment sludge" as an example. Two commenters suggested adding primary clarifier sludge and/or biosolids as examples of wood fiber materials. 

# • Response: The proposed list ofwood fiber materials was not meant to be a list of examples.. It was, instead, an exhaustive list ofwood fiber materials allowed under the proposed exclusion. Replacing the abbreviation "i.e" with the words "includingbut not limited to" wouldbe a significant change from the proposed rule to the adopted rule and

23Ecology will not expand the list (which would constitute a significant change to the 

# 0,'.' proposed rule) without first seeking public comment. The intent ofthe proposed exclusion was to be a limited exclusion applying only to untreated wood and wood fiber materials. The exclusion was not intended to capture all types of ash that designate only for corrosivity, nor to capture all waste sources that canbe burned to produce an ash. The terms ''wastewater treatment sludge, primary'clarifier sludge, de-inking sludge, and biosolids" could inadvertently include waste streams not intended to be covered by the wood ash exclusion and were not included as wood/wood fiber materials. It should be noted that sludge is a broad term under the Dangerous Waste Rules and includes any solid, semisolid, or liquid waste generated from a municipal, commercial, or , industrial wastewater treatment plant, water supply treatment plant, or air pollution control facility. Depending on the source, wastewater treatment sludge may contain dangerous/toxic constituents. "Biosolids" are defined as municipal sewage sludge that is a primarily organic, semisolid product, resulting from'the wastewater treatment process. Biosolids can be, and currently are, marketed and beneficially used "asis" for soil conditioning and nutrient value in agriculture, silviculture, and topsoil manufacturing. Under the current regulatory scenario, localjurisdictional health departments have 'primacy. Most municipal sewage sludge generated in Washington State meets the

present standards for biosolids. There are other options available if an individual has a ''wood fiber material" not contained in the list in the proposed exclusion, yet remains uncertain of the materials' 

# 0 status with the exclusion: the avenue available to acquire that certainty is through a certification ofdesignation process offered at WAC 173-303-075. Other avenues one may take to demonstrate their "waste" material should have reduced or no dangerous waste requirements include: demonstration as aco-product, use constituting disposal management requirements (-500 & 505), exclusion byvariance (-017(5», waste exemption process (-072(1)(b», waste exclusion process (-017(1)(c», commercial chemical substitute (-017), treatment by generator, and even disposal as a "special waste".

Comment 78: One commenter suggested that 'the wood ash exclusion should be expanded to include other waste streams such as ordinary cement and stabilized waste matrices withportland cement. Comment 79: One commenter suggested that wood ash include ash from sulfite recovery boilers and from hog fuel boilers. Comment 80: One commenter requested clarification on the issue'of whether or not ash from the burning ofrefuse-derived fuel (RDF) would be acceptable to fulfil the intent of the wood ash exclusion.
Response: These waste streams do not fit this exclusion. The wood ash exclusion was not meant to be an all inclusive exclusion to cover all possible dangerous waste streams that ' designate only as solid corrosives. For example, the proposed exemption clearly does not

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• include ash from sulfite recovery boilers because· such ash is not wood derived. In addition, the data used in drafting the wood ash exclusion included only those data related to the generation ofash from a specific source. (There are other management alternatives for these wastes streams, such as under WAC 173-303-510, Special requirements for dangerous wastes burned for energy recovery.) Comment 81: One commenter requested that the wood ash exclusion include ash from the burning ofplywood. The commenter states that the plywood trim consists ofdried veneer and glue and clearly [meets] the definition of [untreated] wood. Response: The exclusion is not intended to capture all types of ash that designate only for corrosivity. The data used in drafting the wood ash exclusion included onlydata related to the generation of ash from a specific source (untreated wood/wood fiber material), and not on all possible hog fuel sources. Wood consisting ofand/or containing veneer, glue, paint, resins, and otherbinders would not fall within the scope of"untreated" within the wood ash exclusion. There are other management alternatives for these wastes . streams, such as under WAC 173-303-510, Special requirements for dangerous wastes burned for energy recovery. Comment 82: One commenter suggested to remove the word "untreated" throughout the proposed wood ash exclusion. Response: In the development of the wood ash exclusion it was demonstrated that ash generated from untreated wood and wood fiber materials is consistently low in metals and exhibit no criteria or characteristics other than, at times, corrosivity as a solid material. Although present, metals and otherToxicityCharacteristic constituents are found to be far below RCRA and DW regulatory levels in wood ash from untreated wood sources. In limiting the exclusion to untreated wood sources, Ecology (and the WA Department ofAgriculture) can assure the public that the designation "signature" of this ash type has shown to be consistent; known with minimal testing; safe to public health and the environment, when properly and legitimately used as a liming agent/fertilizer; and can be managed/disposed of at a permitted solid waste landfill without causing significant adverse effects.

. Comment83: One commenter suggested the wood ash exclusion include ash generated from the burning ofwood treated solely with creosote. Response: For the reasons mentioned above, the key provision to the wood ash exclusion is the term "...from the combustion ofuntreated wood...". Also, the burning and management requirements for creosote treated wood is addressed under a separate exclusion within this same rule package. See response to comment #54. Comment 84: Two commenters had similar suggestions. In general, the following be added to the definition of "fiber material": "...wood-fiberderived residues or sludges that haveneverbeen treated with or exposed to chlorine or chlorine compounds".

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,. .'. Response: The concern of the commenters is that dioxins and furans are generated when 

# 0 chlorine and chlorine compounds are burned at temperatures of6000Fand above. The proposed wood ash exclusion, as stated, is specifically limited to untreated wood and wood fiber materials (both the wood and wood fiber material must be untreated sources prior to burning) and the ash can only designate as a solid corrosive. Forinstance, the ash can not fail a dangerous waste designation for carcinogenicity, persistence, or for any toxicity characteristic (''TCI) constituent. Therefore, under the proposed exclusion, wood and wood fiber materials treated with chlorine or chlorine compounds are currently not included; nor is the ash generated from burning those materials. Comment85: One commenter suggested revisions to the preamble to the proposed amendments ofthe Dangerous Waste Regulations. The suggested changes to the preamble were based on Ecology making changes to the exclusionbased on suggestions by the commenter to expand the exclusion. Response: The"preamble" language was filed with the proposed amendments to the Dangerous Waste Regulations under a standard category for rule proposals called "Explanation ofRule, its Purpose, and Anticipated Effect". When final rules are adopted, the format will be somewhat different. There will be a category to explain changes to the rules from proposal to adoption. The preamble, as filed, was the intent for the proposed amendments. However, any explanation of the rules will be updated to reflect changes that were made to the proposed amendments based on the comments received. Ecology appreciates your suggestions.

11:

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Ignitable Solids, -090(5)
Comment86: Does Ecology intend to write a quantitative standard for characterizing ignitable solids as the federal government has done for liquids? The approved PenskyMartens or Setaflash tests are only for liquids. There is also concern with flammable materials that may enter the solidwaste stream. The commenter suggests adding such a section to the Dangerous Waste Rules that.identifies a quantitative standard and test method for potentially ignitable solids. Response:

.Ecology agrees with this comment. There is confusion about when it is appropriate to require a Pensky-Martens test, and some guidance on this issue is sorely needed and long overdue. The May 19, 1980FR discusses ignitability,but does not clearly state that the Pensky-Martens test is intended only for liquids. Ecology has recently discusses this issue in a regulatory interpretation forum, but has not reached a final decision. A final decision oil this issue willbe reached in the near future and will be published in the Winter issue ofShoptalk-. I**4---~----** 

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• Request for Comments on SolidCorrosives, .090(6)
Comment 87: Several commenters expressed support for repealing the State-only DOO2 solid corrosive characteristicdesignation. Reasons given for supporting a repeal include: 1) The solid corrosive designation poses an impediment to reuse and recyclingthat outweighs any potential harm that cannot be addressed by regulation as a solidwaste; 2) The costs associated with regulating solid corrosives far exceed the benefits; 

### 3) As a matter ofpolicy, Ecology should refrain from adopting or maintaining any requirements beyond the federal requirements without demonstrating a threat from substances not regulated under RCRA; and 4) The ability to market and reuse solid corrosives is impeded because of the stigma associated with "dangerous" waste. Comment 88: Two commenters suggested that if Ecology retains these criteria, waste streams other than wood ash should be considered for exclusion. , Comment 89: Two commenters suggested that if the designation is retained, a state waste code should be assigned

..Using a federal waste code for a state-only waste causes paperwork confusion when waste codes are assigned to a waste stream and must laterbe removed or explained. Comment 90: Two commenters supported retaining the solid corrosive designation for the following reasons: Corrosive leachate may be generated that may have an adverse affect upon the 'liner system'ofaMSW landfill; the leachate may have an impact on the biological systemin MSW landfills; and disposal at MSW landfills would present safety problems such as heat generation, fire hazard, and worker safety problems. These issues should be addressed prior to a decision to repeal the solid corrosive designation. Ifthe designation is repealed the waste should eitherbe recycled/beneficially reused or disposed in a compliant Subtitle'D MSW landfill unit. Response: A number ofcomments were received in response to Ecology's request for comments regarding whether or not the solid corrosive designation should be retained. Ecologyappreciates the fact that many people took time to submit comments. All of the comments will be helpful in evaluating the state-only solid corrosive designation during the upcoming regulatory reform project which will analyze significant "state-only" requirements. No change will be made regarding the solid corrosive designation during the currentrule-making.



### Dangerous Waste Criteria: General
Comment 91: Several commenters expressed support for the proposed rule.



### 27--------------

Response: The supportis acknowledged. Comment 92: Several commenters expressed the opinion that the Washington state-only criteria section should eitherbe simplified, overhauled or eliminated altogether. Response: The Departmentbelieves that the state-only dangerous waste criteria for toxic, persistent and carcinogenic wastes provide important protection to human health and the environment that are not included under the federal rule alone. This proposed rule amendmentwas produced with the 

### intentof clarifying and consolidating existing requirements without making substantial changes. Although the Department is in the process ofreexamining state-onlywaste designations, that effort has not been completed. Part ofthe intent ofamending the existing rule is to make any future substantive changes more manageable. 

### WAC 173.303-100(4) Dangerous Waste Criteria: Quantity Exclusion Limit Comment93: One commenterfound the language in the proposed rule to be confusing withregard to the quantity exclusion limit (QEL) for EHW toxic dangerous waste. The commenter suggested that the language be changed to depict the QEL as avariable dependent upon the slope of the DW/EHW division on the Toxic Dangerous Waste Criteria Graph, WAC 173-303-9906.

. Response: The mannerin which the Quantity Exclusion Limit (QEL) for a waste is applied requires that QELs are common (e.g., 2.2pounds) and not variable. To determine whether or not a generator can be a small quantity generator, all designated wastes with common QELs are aggregated by quantity. This principle could not function ifthe QELs were variable, as no two designated wastes would be likely to have common QELs. Comment 94: One generator suggested that proposed WAC 173-303-100(4)(b) be amended to.read "For all otherwastes designating under this section the quantity exclusion limit is 2201bs. (100 kg) per month or batch." Response: The proposed rule will be amended assuggested. 

### WAC 173·303-100(5) Dangerous Waste Criteria: Toxicity Criteria
Comment 95: One Commenter recommended that section WAC 173-303-100(5)(b)(iv) be deleted since it duplicates the section preceding it. Response:**Co~ment** noted. This may be considered in future revisions. Comment96: One commenter supports the removal of the EPA spill table, 40CFR

- 302.4, as a toxicityreference. Response: The supportis acknowledged.

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• Comment 97: Two commenters expressed the beliefthat the toxicity category range of regulated materials is overly conservative. ksponse: The toxiccategories ranges in the proposed rule are not changed from previous versions. Designated toxicity ranges may be considered in future revisions.
Comment98: One commenter expressed the beliefthat it isinappropriate to use the NIOSH RTECS as a reference for toxicity values.**~sponse:** The Department recognizes that any toxicityreference source presents a compromise withregard to the degree ofpeerreview, availability and comprehensiveness. Reference toxicity values are used in the rule for the purpose of ''book designation" which, in itself, is a compromise between ease of use, cost and " accuracy. If a generatorbelieves that the designation obtained from book designation is not representative of a waste's actual toxicity, then a bioassay may be used to demonstrate this assertion (proposed WAC 173-303-100(5)(d)). Othermethods for determining waste toxicity may be considered in future revisions. Comment99: One commenter suggested that the option of using toxicitydata references other than NIOSH RTECS be eliminated from the rule. Response: Although the NIOSH RTECS toxicity values are to be used whenever a conflict existsbetween NIOSH RTECS and other sources, allgenerators may not have immediate access to RTECS (NIOSH RTECS are available through public libraries). The Departmentbelieves that the additional flexibility given to generators for using other toxicity references is appropriate. Comment 100: One commenter expressed concern that the proposed rule would require a waste to be designated by the highest toxicity category, regardless of the reference source used. (5) Response: The proposed rule does not constitute a change from previous versions in this regard. Other methods for determining waste toxicity may be considered in future revisions. Comment 101: One commenter expressed concern that the proposed rule makes bioassay testing (to determine waste toxicity) mandatory. Response: Unless otherwise required, a generator has the option ofdetermining a waste's toxicityby knowledge, bioassay, or book designation, see WAC 173-303-100(5). Comment 102: One commenter expressed support for the amended language in section WAC 173-303-100(5)(b)(iii)that clarifies the quantity to be used when using the Toxic Dangerous Waste Criteria Graph.

. ksponse: The proposed rule did not change the first sentence as the commenter states. It was in the previous version at WAC 173-303-084(5)(c). The correct quantity to apply 29--**-----~-** - ------- -----

when using the graph is the total monthly or batch quantity of the waste being determined. ---**----~----~** 

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Comment 103: One commenter suggested that the language in WAC 173-303-100(5)(b)(i) be amended from It

... the data ofseverest toxicity

...It to It

... the data indicating severest toxicity ..

### .'1. Response: Suggestion noted. The change has been made to the amended language. Comment 104:

_ One commenter expressed concern that the effect ofvariable monthly or batch quantities on the designation ofa toxicdangerous waste presents an excessive complication for generators. Response: Comment noted. The proposed rule does not constitute a change from previous versions in this regard. Other methods for determining waste toxicity may be considered in future revisions. Comment lOS: Two commenters expressed concern that the requirement to test a waste byboth aquatic fish

- and rat bioassays, to demonstrate that a waste that has been designated under the book method is not a toxicdangerous waste, is overlyburdensome. Response: The twobioassay methods are representative of differing manners in which a waste may impact human health or the environment.

.Ithas been the policy of the 

# 0 Department to require fish and rat bioassays to demonstrate that the waste no longer fails for toxicity. The proposed rule merely codifies this requirement. 

### WAC 173-303-100(6) Dangerous Waste Criteria: Persistence Comment 106: One commenter suggested that the persistence criteria be substituted with an extractionbased test method. Response: The Hazardous Waste Management Act, Chapter 70.105 RCW, set forth the standards for identifying this category of wastes. The attributes described under the Act were wastes whichwillpersist in a hazardous form which presents a significant environmental hazard. There are two primary reasons that an extraction based methodology is not appropriate for this criteria. One reason for a total concentration based criteria is that most ofthe compounds in question tend not to be soluble in . aqueous solutions. Experience has shown that extraction procedures will not detect even highlyconcentrated mixtures for many ofthese compounds. These compounds will, however, persist in the environment and continue to present a hazard. A second argument for a total concentration based criteria is the limitation ofapplicability for extraction procedures. Extraction procedures are designed only to simulate landfill conditions. Many wastes are managed in otherways. The Dangerous Waste Regulations control the management ofwaste materials being treated, stored, or disposedof in ways other than landfilling, and managed prior to recycling. 

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• Comment107: Several commenters expressed concern that the proposed rule would designate plastics containing halogens as persistent dangerous waste. Response: 

### As defined in WAC 173-303-040, the requirements ofthe proposed rule apply only to those halogenated hydrocarbons which can be obtained using the testing method descnbed in WAC 173-303-110, testing methods. Comment108: One commenter expressed concern that the proposed rule is not chemical specificinregulating halogenated hydrocarbons. Response: 

### As defined in WAC 173-303-040, the requirements ofthe proposed rule apply only to those halogenated hydrocarbons which can be obtained using the testing method descnbedin WAC 173-303-110, testing methods. The testing methods were revised in May 1993. The analytical methods and specific target halogenated hydrocarbons are identified in this revision. The proposed rule adopts the May 1993 revision. Comment 109: One commenter suggested listing commonly found polycyclicaromatic hydrocarbons (PAHs). Response: The proposed rule is intentionallybroad in scope with regard to PAHs to include minor functional group substitutions which would be very difficult to list. Specific target compounds can be found under the appropriate test methods in the Chemical Testing Methods for Complying with the Dangerous Waste'Regulation, Revised May 1993. Comment110: One commenter expressed concern that the proposed regulation of halogenated hydrocarbons presented an unnecessary burden to the businesses of Washington. Response: The proposed regulations pertaining to halogenated hydrocarbons (HH) do not represent an expansion ofthe universe ofHH intended to be regulated since rules were firstadopted in 1978. The proposed rule adopted the May 1993 revision ofthe Chemical Testing Methods for Complying with the Dangerous Waste Regulations. New chemical test methods will be allowed for determining the concentration ofHH in a , sample to reflect improvements in the science ofdetection and measurement. The

previous chemical test method was a gravimetric method which included a drying step; the drying step led to inadvertent loss of some volatile HH which tended to bias the results low. The revisions to the chemical test methods are intended to resolve this problemwhich was reported with the previous test method. 

### WAC 173.303.100(7) Dangerous Waste Criteria: Carcinogenicity GeneralResponse: Ecologyreceived numerous comments on the proposed revision to the Carcinogenic Dangerous Waste Section. Many issueswere identified in the comments that Ecology believes should be further examined and resolved during the regulatory reform project (beginning Fall 1993). Therefore, Ecology willnot adopt the risk-based .levels as proposed. In the interim Ecology willregulate carcinogenic substances that 31appear on both the IARC and IRIS/HEAST list at 100 ppm. It is our intent to develop 

# 0 risk based levels for carcinogenic substances during the "state-only project". Ecology sincerely appreciates the time, effort, and thoughtfulness ofthose who commented on this section; all of the comments will be useful during the regulatory reform project. For a more detailed discussion, the individual comments are addressed below.

Comment 111: The responders questioned the appropriateness of using MTCA Industrial Soil Standards for Dangerous waste carcinogenic designation levels. Response: Ecology proposed replacing the IARC (International Agency for Research on Carcinogens) list for regulation ofcarcinogens with the IRIS-HEAST (Integrated Risk Information System-Health Effects Assessment SummaryTable) list for several reasons, one of which was that the IARC listcontains many constituents which were not intended to be regulated by the Dangerous Waste Regulations, for example, bracken fern, silica, and soot. In addition, the IRIS-HEAST list was selected because it is compatible with cleanup legislation. Both MTCA (Model Toxics Control Act) and EPA's CERCLA (Superfund Program) use the IRIS-HEAST data base to establish cleanup levels. Moreover, the IRIS- HEAST database has carcinogenic potency factors so that risk based levels can be established for regulating waste as dangerous. A final consideration was that the IRIS-HEAST list contains constituents that are more commonly encountered in waste.management scenarios than the IARC list. Ecology proposed using the Industrial Soil Cleanup Standards (WAC 173-340-745) as dangerous waste regulatory levels as an interim measure until a system could be developedduring 1994 that differentiates between carcinogenic wastes that should be managed as solid or dangerous waste. Ecology realized that Industrial SoilsCleanup levels were not developed to differentiate betweenwastes that should be managed as solid or dangerous, butbelieved that regulatory levels established using the oral carcinogenic potency factors and exposure constants of the industrial cleanup standards were more appropriate for regulation of carcinogens than the present regulatory level of 100 pm for all listed carcinogens. 

# o

o At this time, Ecology is withdrawing the proposed amendment that specifies using Industrial Cleanup Standards as regulatory levels because of the concern expressed about applying cleanup levels as dangerous waste regulatory levels. In the coming year Ecology plans to examine state onlycriteria for dangerous waste (i.e., toxicity, carcinogenicity, persistence) with the aid ofan advisory group in order toupdate the

.state dangerous waste classification scheme. Thiswill be.accomplished,

.in part, by evaluating dangerous waste versus solid waste management practices in order to more appropriately model the respective risks associated with waste management. In the interim, Ecology willcontinue to regulate carcinogens at 100 ppm. However, rather thanattempting to regulate the entire IARC list for regulated constituents, Ecology willprepare a list of the 104 constituents that appear on both the IRIS-HEAST and the IARC list for regulation. Although the entire IRIS-HEAST Jist is an appropriate list for regulation**_ot~alcinQgen·~,** Ecology will not utilize the complete IRIS-HEAST list

- --- ----------- - ------- ----- -------- 

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• at this time because it captures an additional 41 constituents that are not presently regulated. This would be an expansion of the existing rule that is not appropriate until Ecology arrives at a risk-based levels regulating carcinogenic dangerous waste. Comment 112: The IRIS database has a questionable technical basis. In addition the

. database is constantly changing. How will Ecology handle changes in the database.

Response: All carcinogenic potency factors in IRIS are verified by EPA's Carcinogenic Risk Assessment Verification 

### (CRAVB)work group. In addition, the carcinogen "weight of evidence" classification, supporting data, and documentation are included in IRIS. The HEAST data base, on the other hand, includes carcinogenic potency factors which may be provisional. The IRIS/HEAST list includes compounds with sufficient or limited evidence ofcancer in animals or humans (i.e., EPA "weight of evidence" classification A, Bl, B2, C), based on the assumption of similarity ofhuman and animal models and the mandate to protectboth human health and the environment. In.addition to withdrawing the proposed amendment, Ecology will regulate only human and animal carcinogens appearing on both the IRIS/BEAST and IARC list. Ecology is confident that there is sufficientjustification to regulate carcinogens that appear on both lists. The new list will include compounds with sufficient and limited evidence ofinducing cancer in animals or humans (i.e., EPA classifications A, Bl, B2, C and IARC groups 1, 2A, 2b). The regulatory level of 100ppm is not based directly on bioavailability or mobility. Ecology has not determined a practical way to incorporate these variables into a regulation. In cases where a proponent believes a waste should not.be classified as dangerous, they can petition Ecology pursuant to WAC 173-303-910 to exclude or exempt the waste from all or part of the regulations. Ecology willprepare a list ofcarcinogens that represent the overlap between the IRIS-HEAST and !ARC lists so that generators willnot have to refer to other sources to implement the carcinogen rule. The list willnot be part ofthe rule, but willbe made available to the public by Ecology. Comment 113: The list includes the entry "pah"; what does this mean? IfEcology is referring to all polynuclear aromatic hydrocarbons, they should state that expressly, Response: Ifthe list had been adopted as proposed, the pah entry would have been deleted because specific PAHs were listed for regulation. In addition, one more carcinogenic PAH, indeno (1,2,3-cd)pyrene, was to have been added. There are a total of seven appropriate carcinogenic PAHs: benzo(a)anthracene, benzo(b)flouranthene, benzo(k)flouranthene, benzo(a)pyrene, chrysene, dibenzo(a,h)anthracene, and indeno(1,2,3-cd)pyrene. Comment 114: The proposed regulatory levels for PCBs and PAHs are 17 ppm and 18 ppm, respectively. These are very low levels for regulation. These proposed levels will have a-significantand deleterious effect on waste management practices and cleanup practices inthe state. Response: The regulatory level for individual carcinogenic PAHs and for PCBs willrevert back to the existing regulation, which is 100 ppm. However, pursuant to WAC 173-303- 071 (3)(k)(i), PCBs that designate as criteriawastes and are not captured by the federal 33hazardous waste regulations are excluded from the dangerous waste regulations when managed in accordance with 40 CFR 761.60. Comment 115: On the proposed list, WAC 173-303-9908,TCDD,2,3,7,8 should be .000875 ppm not 87500. Response: Ecology appreciates your pointing out this.error, however, since the proposal willnot be adopted the proposed regulatory levels willrevert back to the existing 100 ppm. . Comment 116: How does Ecology intend to regulate mixtures containing more than one carcinogen, i.e., the cumulative effect ofthe carcinogens should be considered in establishing regulatory levels. Response: Wastes that contain more than one carcinogen willbe managed as in the 1991 version of WAC 173-'303-103 (2)(b)(iii), that is, ifthe total concentration summed of any carcinogen exceeds 1.0% ofthe waste quantity, the waste shall be designated dangerous waste. Comment 117: There is confusion over how to designate a waste which may designate under more than one classification. 

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Response: In the case where a waste designates in several ways, the most stringent 

# 0 characteristic, listing, or state criteria would apply. As an example, benzo(a)pyrene is \ both a persistentwaste (regulated at 1% or 10,000ppm under 173-303-100(6» and a carcinogenic waste at 100ppm. The carcinogenic criteria is more strict and would take precedence in this example. Note, however, that all applicable federal waste codes (i.e., characteristic and listings) are required for evaluating land disposal restriction requirements. Comment 118: Are there acceptable test methods for all oftheproposed carcinogens? Response: Ecology narrowed the list of carcinogens to be regulated so that the rule is not more broad·than can be implemented. Although Ecology, EPA, and American Society for Testing and Materials (WAC 173-303-110) have not developed specific test methods for all ofthe compounds in the proposed table at WAC 173-303-9908, most compounds have test methods. Ecology. may evaluate other test methods on a case-by-case basis. In cases where a generator has special knowledge that a waste contains a particular constituent, no test method is required to designate the waste. Ecology will look at this issue during the regulatory reform project. A generatoris not required to designate for carcinogenicity unless specifically requested by an Ecology representative or unless the generatoruses-process knowledge ofthe waste to determine that carcinogenic constituents are present in the wastes. To date, Ecology has not required a generator to test a waste for the entire list of carcinogens. It is difficult to imagine. a waste generatiori

.process that would produce the entire list ofcarcinogens

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• Comment 119: Some materials such as vinyl chloride and acrylonitrile occurin common materials in polymerized form. Ecology'sproposal appears to regulate these materials as dangerous waste. In addition some materials that Ecologyproposes regulating, such as beryllium,are only carcinogenic when inhaled and would otherwise not be carcinogenic. Response: Although Ecology is regulating several monomeric carcinogens (e.g., vinyl chloride, styrene, acrylonitrile), the corresponding polymers (e.g., polyvinyl chloride, polystyrene, polyacrylonitrile) are not being regulated. These polymers are stable and relativelyunreactive; also, some have separate chemical abstract numbers than their corresponding monomeric form. However, Ecology is regulating carcinogenic metals 

### (e.g., beryllium and arsenic that exist in any chemical form 

### (e.g.,as elemental metals, in chemicalcompounds, or 'in alloys) since

### metalsin most chemical forms maybecome reactive after ingestion and absorption. Moreover, the IRIS-HEAST database has slope factors for oral ingestion and inhalation for both arsenic and beryllium.
Comment 120: Several commenters pointed out that the proposed rule contained two sections for designating carcinogens and that the waste codes (WC01 and WC02) for these two sections were different. ' Response: Ecology appreciates your identifying the inconsistency. WC02 was intended as the,appropriate waste code, since all carcinogens are to be regulated as DW. This inconsistency has been corrected and the appropriate change made at WAC 173-303-104; WCOl has been deleted.
Comment 121: The commenter requested clarification for the units in Table 173-303- 9908. Response: In the proposed table, parts per million (ppm) referto either rag/kg (weight/weight) for solids or mgII (weight/volume) for liquids. Ecology was notreferring to

### III (volume/volume) units with ppm.
Comment 122: Several commenters unconditionally supported the proposal. Response: The support is acknowledged.

Comment 123: Ecology is commended for identifying the correct version of SW 846; however, the version that was cited by Ecology is riotthe one actually being used in laboratories. ' Response: In the proposed rule, Ecology cited the version currently found at 40CFR Part 260.11. In 1986,EPA did publish a Third Edition of the Test Methods Manual. EPA reviewedcomments and questions on the manual and issued several technical
35corrections. Although laboratories may have been using it, it was not adopted into the 

# 0 Code ofFederal Regulations (CPR). However, on August 31, 1993,EPA incorporated the ThirdEdition and its first update into the RCRAregulations. Because it is Ecology's intention that

### laboratoriesa~e able to use the most currentversion available, Ecologyis adopting the Third Edition and the First Update.

GeneralResponse: Ecology is adopting federal land disposal restrictions (LOR) by reference and in response to comments has determined that additional subsections should be deleted to accurately conform the sectionwith federalLOR requirements. Comment 124: One commenter urged Ecology to strive toward consistent application of . federal LOR intent and suggested that Ecology develop guidance on LOR regulation for distribution to the regulated public. Response: Ecology will utilize the federal preamble language associated with federal LOR to clarifythe intent of the regulations. Since we are adopting the federal LOR rules by reference Ecology willfirstlook to EPA to develop guidance on the LOR rules. Comment 125: One commenter pointed out that the LOR requirements are not applicable only to generators and land disposal facilities operators, as was previously stated in the regulations at WAC 173-303-140(2). Response: Comment noted. The language has been amended to correctly identify those to whom the LORs apply, "...any person who owns or operates a treatment, storage or disposal facility ... and to any person who generates or transports hazardous waste". Comment 126: One commenter noted that the language of this subsection is unclear. It appears that federal waste, which is also state waste, need not comply with the federal LOR requirements. Response: All federal wastes must comply with the federal LOR requirements. It is Ecology's intent that all hazardous waste: federal, state-only and waste that isboth federal and state, be subject to subsections (3) through (7) of this section. However, the department does not intend that subsections (3) through (7) supersede the federal LOR requirements. All waste that is subject to the federal LOR requirements must comply with the federal LOR requirements. The language of this subsection will be amended. 

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Comment 127: Several commenters pointed out that some state-only wastes, specifically spent solvents and solid corrosives, carry the federal waste codes (waste codes FOOl

- FOO5 and DOOl, respectively) which causes confusion regarding the applicability ofthe c.") federal LOR requirements. Suggestions included establishing state waste codes or adopting the federal definitionofspent solvents, commonlyreferred to as the "10% rule".
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• . Response: The department recognizes that,. in practice, most generators and facilities will comply with the federal LOR requirements for their state-onlywastes since they carry a federal waste code. The department believes that the federal LOR requirements are reasonable for these wastes, but the newlyadopted rules do not require that federal LDR requirements be met for such wastes. The department will consider these suggestions during the evaluation of state-onlywastes that is currently under way. Comment128: Two commenters pointed out that under federal LOR requirements, immobilization technologies could be employed that would allow someinorganic "metal containing waste" to be land disposed. However, these wastes-may still exceed EHW concentrations, thus their land disposal would be·prohibited under state requirements. The coinmenter urged the department to consider the allowance to dispose ofwastes in the State ofWashington if they are treated in compliance with LOR treatment standards. Response: The commenter raises a good point. The department is in the process of a comprehensive examination of state designation. Issues surrounding the EHW designation are being evaluated. For the time being, the department believes that the case-by-case exemption process, in combination with criteria testing, willprovide wastes that are treated in accordance with the federal LDR requirements an appropriate opportunity to exit the hazardous waste system. Comment 129: One commenter urged the department to codify the allowance granted under substitute Senate BillNumber 5071 section 4(2) that addresses the land disposal of radioactive mixed waste. Response: The department willconsider this suggestion for the next rule amendment. Comment 130: One commenter noted that the state LDR restrictions for Organic/ Carbonaceous waste may be less stringent than the federal LOR requirements for waste that meets the definition of Organic/Carbonaceous. Response: The language of the rule has been amended to preclude the state regulations .from beingless stringent that the federal regulations. Comment 131: One commenter contended that the requirement that organic/ carbonaceous waste must be incinerated is overly restrictive and that this requirement does not allow the use of other destruction technologies such as chemical or biological treatment. Response: The departmentbelieves that the commenter has misinterpreted WAC 173- 303-140(e)(i). The correct interpretation is that incineration is the minimum management method (lowest on the list) that may be employed according to the management priorities list described in WAC 173-303-140(1)(a). Since treatment . technologies are listed as' a higher prioritythan incineration, they may be used instead of

incineration.

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Comment 132: One commenter suggested that WAC 173-303-140(g) and (h) should be deleted since their language is reiterative ofthe proposed WAC 173-303-140(2), Applicability.

. Response: Ecology agrees with the commenter. These two subsections will be deleted. Comment 133: One commenter noted that the provisions which allow treatment to occur in land disposal facilities, case by case exemptions to land disposal prohibitions, and emergency cleanup (WAC 173-303-140(5), (6), and (7)) are less stringent than the federal LOR requirements. Response: Ecology agrees with the commenter. The language in WAC 173-303-140(2), Applicability, willbe amended to clarifythat these provisions are not applicable to federal waste.
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Comment 134: The commenter is concerned with the intent of this regulation to allow Ecology to determine the adequacy of an out-of-state receiving facility for State-only designated dangerous waste. As long as an out-of-state facility meets the requirements of 

# 0 RCRA Subtitle D, all concerns with disposal should be met. Response: Although no .change was proposed to this section, Ecology thanks you for your commentwhich willbe considered at a later time.

Comment 135: (-160(2)(b)) Is Ecology saying that on-site disposal or burial ofpesticide residues is acceptable? What is the procedure ifthe farmer has old pesticides with outof-date labels? Are these activities consistent with Department ofAgriculture and MTCA? Response: On-site disposal of a pesticide rinsate (not

## aproduct) by a farmer is allowed only ·if it is consistent with the labelinstructions. This provision does not apply to old

.pesticides with out-of-date labels. Questions regarding the status ofwaste should be directed to Ecology; questions related to label use limitations should be directed to the Department ofAgriculture at (206) 902-2030. Comment 136: (-160(2)(c)) One commenter suggested that Ecology should add 

### a provision that small containers (well below one-gallon) which meet the intent of the provision, would be considered

### .asemptycontajners because small**~oEt~!~ers_ cann~~** **~~** 38 

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e reliably emptied tothe level required, yet they pose a relativelyminor threat to human health and the environment. &sponse: It isimportant to note that small volumes of waste contained in small containers does 

### notnecessarily equate with a low level ofthreat to human health and the environment. Small containers may contain acutely hazardous waste or extremely hazardous waste. WAC 173-303-160 contains two options for determining when a container is empty, eitherby volume or by weight. Additionally, WAC 173-303-161, Overpacked Containers (labpacks), provides an option for those who manage numerous small containers, which removes many of the labeling requirements otherwise required.



### Treatment by 

### Generators (TBG)
Comment 137: Several commenters commended Ecology on the proposed TBG standards. Response: The comments are acknowledged. Comment 138: The language should be expanded so that, TBG provisions are extended to all of the units that EPA allowsTBG to occur in. Specifically, drip pads and containment buildingsneed to be added to the discussion containedin WAC 173-303- 170(3)(b). Response: Thestate has not yet adopted the federal provisions for drip pads and containments buildings; therefore, they are not allowable accumulation units under the Dangerous Waste Regulations, and may not be used for TBG. Comment 139: Ecology should simultaneously 

### seekpublic comment on revisions to TechnicalInformation Memorandum) TIM 86-3. Response: .The draft TIM was sent for public review (external comment) to approximately 50interested parties

.

. Comment 140: The commenter expressed opposition to the "proposed relaxation" of

regulations governing TBG. Specific reasons included: a) The-proposed revisions could result in a significantincrease in the number of facilities conducting dangerous waste treatment activities. Ecology's task of verifying compliance with**~G** rules will be extremely difficult, given the limited staffand financial resources .available. In the absence of sufficient agency oversight, TBG activities could potentially result in dangerous conditions such as uncontrolled reactions, spills and releases of

39dangerous wastes, and exposure of employees and the general public to hazardous materials. b) Because RCRA air emission standards of 40 CFR 264 Subparts AA and BB would not apply.to facilities conducting TBG activities, such activities may result in increased

.emissions ofhazardous air pollutants.

. c) The proposed regulations do not include a mechanism requiring generators conducting TBG to demonstrate financial assurance for corrective action or closure activities. The.potential for environmental contamination from TBG-activities is as great (ifnot greater) than that from activities at closelyregulated TSD facilities. d) The definition of "tank" and "container" should be clarified. Items such as carbon filter units and filter presses would not seem to qualify as tanks under the proposed TBG guidance under RCRA. The preamble to EPA's Mach 24, 1986 final rule, which limits TBG to accumulation tanks or containers, does not appear to envision the use of such units for TBG since they are not the same vessels used for accumulation of the waste. e) The TBG guidance should provide additional information regarding the relationship between PBR and TBG

. 

# o

Response: Ecology is modifyingTBG requirements in part to implement the "Close to Home" policyincluded in the State Hazardous Waste plan. Ecology hopes this will allow 

# 0

more generators to practice

.environmentally sound treatment on-site. a) Ecology does

. not however, expect a significantincrease in the number of facilities performing TBG. Also, reporting requirements on Forms 2 and 4 will identify such facilities for compliance inspectors. ·To avoid the development of "dangerous conditions" the rule amendment requires thatWAC 173-303-283(3),Performance Standards, must be met. In addition, the TBG TIM and Focus sheets were writtento provide guidance. b) There may be minimal increases in emissions ofhazardous air pollutants; however, facilities are required to meet all federal, state and local air standards. c) The demonstration of financial assurance for corrective action or closure activities is not required for accumulation scenarios and therefore not for TBG. The issue of potential environmental contamination is addressed in response (a) above. d) The definitions for "tank" and "container" may be found at WAC 173-303-040. Further explanation is given in other documents.such as the RCRA Permit Policy Compendium (EPA A530-R-92-018) dated April 1992, and is not appropriate for insertion in the rules. e) The comment pertains to the TIM and not to the rule amendments. However, Ecology plans to develop companion guidance on Permitby Rule for distnbution with '-the TBG TIM.

40 

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• Comment 141: Two commenters expressed uncertainty as to what constitutes a "special waste". Response: "Special waste" is defined in WAC 

### i73-303-040. Comment 142: TBGwill be of limited utilitybecause of the requirement that treatment occur within the accumulation time frame. Response: Ecology is limited to the standard accumulation time frames. There is no greaterflexibilityunder the federal guidance. Comment 143: Is documentation of the routine inspections expected? Ifso, a listing of the expected information should be included. At a minimum the date, time, inspectors name and notation on the condition of the treatment unit should be included. If information gathered during routine inspections ismeant to be kept, a reference to WAC 173-303-210, Record Keeping, is appropriate. Response: Generators accumulating waste on site are required to comply with the inspection requirements of WAC 173-303-630(6) and -640(6) for accumulation containers and tanks, respectively. Documentation of the inspections is required only for tanks, - 640(6). It was determined that the existinginspection requirements for tanks and containers are sufficient. Comment 144: One commenter recommended that Washington State establish an information sharing network for TBG processes and equipment. Also, willgenerators get any kind ofenvironmental credit as far as year end reporting for waste volume reduction? Orwill TBG have its own reporting category as recycled materials do? Response: Recommendation/comment noted. More detailed information concerning counting and reporting is in the TBG TIM (available from Ecology's Regional Offices)

.and specificreporting instructions. may be found 'on the reporting forms. There will not be a recycling credit since TBG is treatment. A new code isbeing considered for use in the revised annual report. Comment 145: One commenter noted that concerning WAC 173-303-170(3), two versions were listed. Which ofthese are to be used, or will the text ofboth versions be included? Response: There are 2 separate changes to this section. The rule was c.orrectlyproposed. Comment 146: TBG standards will cause an increasedburden for publicly owned treatmentworks (POTW's). Response: TBG should not cause an increased burden for POTWs. TBG and permitby rule (PBR) are not related. They are separate and only one or the other is to be used. Generally, to qualify for TBG, there will not be a wastewater discharge to the POTW. When there is a wastewater discharge to a POTW it is probably PBR (see WAC 173-

. 303-802).
41---_.------
-- - - -----------

Comment 147:

-The proposed changes exempt SQGs from. the requirements associated 

# 0 with generator treatment ofhazardous waste. The standards (e.g., tank standards) should : apply to all generators. Response: The core ofthe TBG allowance are accumulation requirements. Since SQGs are exemptfrom accumulation standards, it was decided that the TBG standards not apply either. Jurisdiction over SQGs occurs at the local government level. In addition, more stringent standards wer-e not written for SQGs due to the regulatory burden that wouldbe placed on SQGs and relatively low risk ofthose who may be treating small, if -any, amounts ofwaste.

- -

Comment 148: Strong oppositionwas expressed against the additional recordkeeping requirement for generator treatment. It serves no environmental purpose, and willbe costlyand time consuming. Response: The additional recordkeeping requirement is necessary forproper tracking of waste. In terms of cost and time, the information required willalready be necessary for fillingout (he annual report form. Comment 149: Recommendation to change WAC 173-303-170(3)(c)(ii)(C) to "Excessive noise where it would cause nuisance to the general public" since not allowing any noise on a plant sitewhere noise from manufacturing is common would be unreasonable and impractical.

- Response: Ecology interprets the proposed language as meaning excessive noise "that affects adjacent properties". Also, see WAC 173-303-283(3)(e), Performance Standards. Comment150: Is Ecology serious about implementing the State Hazardous Waste Plan "close to home" policy? Response: Ecology is serious about encouraging the "close to home" policy (whereby waste is managed close to where it is generated where feasible). The TBG rule amendment is intended to do just that. Comment 151: How freely is the generator able to "do something" (treat theirwaste) to decrease the quantity and toxicity of wastes which are produced? Does Ecology wish to exert any control over toxic waste generated once it is reduced to zero in quantity and toxicity? Response: The generator must follow the standards in the rule amendmentwhich are consistentwith minimum federal (RCRA) requirements. TBG should be performed according to the guidance in the TBG TIM which provides for protection ofthe public health and environment. Ifa waste is reduced to "zero in quantity and toxicity", it would notbe regulated unless itis a listed waste residual which must be managed as a hazardous waste perfederal regulations.

42 

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• Comment 152: (-180(1)(e) and (j)) The commenterwould like it clarified that ifmore than one continuation sheet is used, items 0 and Q should be provided on the first continuation sheet. only. &sponse: Generally, Ecology would expect this information to appear only on the first continuation sheet. The important issue, with respect to the use ofcontinuation sheets, is that the tracking of waste is not interrupted and can be verified and traced through the manifest and continuation sheets

.. Comment 153: (-180(3)(j) The language shouldbe revised to clarifythat this provision to ensure return of the manifest applies only to federally-regulated waste. Response: This section was amended as part of the federal rules that Ecology adopted for equivalence with the federal hazardous waste program and in that context it was intended to apply to RCRA regulated hazardous wastes. In the adopted rules, language will be added to clarifythat this provision applies to federally regulated hazardous waste. It should be noted however, that a similarrequirement for state-only wastes exists at WAC 173-303-141.

. ;.:-.-.;.:: 

### Satellite Accumulation Area Discussion: The proposed revisions to the Satellite Accumulation Area, WAC 173-303- 200(2)(a), have been changed in response to comments form the public and interested persons. Commenters generally had problems with understanding that the proposed rules limit each satellite accumulation area to one waste stream. Also, commenters generally had problems with the term "disposal" as it appears in the phrase "to prevent improper disposal of wastes into the.satellite containers." The rule was changed to reflect this. Several commenters requested clarification ofthe term "secured" as it relates to secured satellite accumulation areas. Ecology has committed to develop guidance to help clarify what ismeant by the term "secured." Also, several commenters expressed opposition to the use ofdiscretionary authority, as in the posting of "Danger" signs. Commenters felt that discretionary authority should not be codified into rule. The discretionary authoritywas kept in lieu ofcreating a requirement that applied to all generators
.

43

### WAC 173-303-200(1)(d) Comment 154: Whatwill be Ecology's criteria for determining when a "Danger" sign is required? Response: Ecology has not developed a full set ofcriteria for determining when a "Danger" sign will be required. An obvious scenario where posting a "Danger" sign makes sense is the case where drums ofdangerous waste are stored on a shipping dock, or behind a building that is accessible to the public. Ecology willprovide additional criteria and/or-examples ofqualifying situations in a future focus sheet on this issue. Comment 155: The commenter strongly opposes the adoption ofdiscretionary authority to require the posting of ''Danger'' signs at the entrance ofeach accumulation area. If Ecology believes that this discretionary authority is nonetheless necessary for other types of facilities, its discretionary authority should be limited in the regulations to facilities for which access is open to the public. Response: Ecology agrees that discretionary authority could leadto inconsistent application of the rule. However, Ecology felt that such discretionary authority for this issue was warranted, and has decided to retain the concept ofrequiring "Danger" signs on a case by case basis. In order to promote consistent application ofthis rule, Ecology willdevelop guidance to clarify this aspect ofthe satellite accumulation rule. Ecology does not intend to require "Danger" signs indiscriminately. ' 

### WAC 173-303-200(2)(8) Comment**15~:** Several commenters expressed supportfor the proposed rule. Response: The comments are acknowledged, Comment 157: The proposed rule states that a "generatormay accumulate as much as fifty-five gallons ofdangerous waste" for each waste stream in a satellite'accumulation area. EPA however, has interpreted this to mean fifty-five gallons oftotal waste per area, in their policymemorandum. Response: There is nothing in regulation or guidance which specifies the minimum distance that must separate two satellite accumulation areas. While each satellite area can have only one waste stream, nothing'precludes a generator from having a second satellite area for a separate process immediately adjacent to the first satellite accumulation area. Comment 158:-Please provide additional clarification on whichparty must provide control of the [satellite accumulation] area if it is not under the direct control of the operator of the process generating the waste.

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• Response: Ifthe operator can assure that a second party, not involved in the generation of the waste, can secure the satellite area "to prevent improper additions of wastes into the satellite containers" then they would be meeting the intent ofthe satellite regulations. The area must beunder direct control by "the operator", or secured. Secured is a performance standard, and in order to allowflexibility the rule does not specify how the requirement may be met. For example, the drum may need to be kept outside of the room generating the waste because ofrequirements of the Uniform Fire Code. In this case, the drum would not be under the directcontrol of the operator. The area for the satellite area must be "secured",meaning that it may need a lockand key. Comment 159: For satellite areas which must be somewhat removed from the process generating the waste (i.e., outside, or in a central building location), must the generating operatormaintain the secured area or can it be maintained by a second party not involved in the generation of the waste? Response: A second party, not involved in the generation of a waste, is allowed to secure and maintain a satellite area which is somewhat removed from the process area which generated the waste. See response to comment #158. Comment 160: The addition of wastes to a satellite containeris not usually called "disposal", and is confusing. We suggest the wording be changed to ... to prevent improper additions of wastes to a satellite container. Response: Ecology believes that the use of the term "disposal" is accurate given the context of its use. The language was intended to communicate that the commingling of incompatible wastes is not allowed, nor is the "disposal" of smaller waste streams under the waste code of a larger waste stream. For example, some generators "dispose" of small amounts ofchlorinated solvents in their used oil. However, Ecology understands that the term "disposal" may be confusing and has elected to use the wording suggested by the commenter. The rule will be changed to use the word "additions" rather than "disposal". Comment 161: In the second sentence of WAC 173-303-200(2)(a), we suggest substituting the word "placement" for "disposal." Response: Ecology agrees to use a word other than "disposal" and has opted to use "additions". See previous response. Comment 162: The wording of the proposed satellite accumulation rule is unclear regarding how many waste streams may be accumulated in a given satellite area and

. what total volume is allowed in a given satellite area in the event more than one waste streamis accumulated per satellite area. Response: The regulation allows only one waste stream per satellite area. However, the rules do not prohibit a second satellite area immediately adjacent to the first. For example, three drums sitting adjacent to each other could constitute three separate satellite accumulation areas. Furthermore, a generator may accumulate one waste stream 

### 45--------- --------

in as many containers as he chooses, provided the accumulated total does not exceed 55 0-- gallons in that satellite accumulation area. Comment 163: In allowing generators to accumulate as much as 55 gallons ofdangerous waste or one quart ofacutely hazardous waste "perwaste stream" in satellite accumulation areas, the state will be less stringent than the corresponding federal rule. Responset: Ecology has carefully considered the federal rules to be certain that our rule is not less stringent. The proposed rule will allow up to 55 gallons ofwaste per satellite accumulation area, the same as the federal rule. Iftwo waste streams are generated from one process, the generator may provide a separate satellite accumulation area for each waste stream. The satellite accumulation areas may be located adjacent to each other. See previous response. Comment 164: We encourage Ecology to be consistent with federal rules on satellite accumulation by using the federal 3 day requirement [for moving wastes out of the satellite accumulation area] instead of the proposed 72 hour requirement. Response: Ecology agrees with this comment and willmake the corresponding change in the rules. Comment 165: "Seventy-two hours" should be changed to "three working days" to account for holidays. This would be consistentwithEPA's guidance. Response: Ecology agrees with this comment. See previous response. I "

Comment 166: When projects "are conducted, waste is typicallyplaced into a container and the accumulation date marked if the waste cannotbe accumulated in a satellite accumulation area. Once the container is full or the project ends, whichever is sooner, the containeris immediately moved to a less than 9O-day accumulation area. Response: The commenter maybe confusing the definition of a satellite area and less than 9O-day area. Ifthe waste can be placed in an area that is not defined nor managed as a satellite area, then the area must be identified as a less than 9D-day accumulation area and "meet the requirements outlined in WAC 173-303-200. The dates must appear on the containers in a less than 9O-day area immediately upon generating waste. The satellite areas are the only accumulation areas that do not require a date until 55 gallons of a waste is generated/accumulated.

- Comment 167: The first sentence in WAC 173-303-200(2)(a) is cumbersome and should be changed to "Agenerator may accumulate

... perwaste stream in containers in a satellite accumulation area." The [satellite accumulation] area is defined in Section 040 so the language "at or near the point ofgeneration where waste initially accumulates" is superfluous.

46 

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• Response: While it is true that "satellite accumulation area" is defined in WAC 173-303- 040, Ecology sometimes elects to include some definitional words in other parts ofthe rule to facilitate the reading and understanding of the rule, Commentl68: A good place for a satellite container may be in a 9O-day storage area; however, the language ofproposed Subsection 2oo(3)(a) regarding the accumulation start date maypreclude accumulation at the preferred location. R£sponse: Nothing in the satellite accumulation rule would prohibit a generator from locatinga satellite accumulation area within a 90 day accumulation area. An area within a 90 day accumulation area may be designated as a satellite accumulation area. Such areas mustbe secured if they are not under the direct control of the operator. Commentl69: Regarding the use ofthe word "secured" in rule, we would caution' Ecology that codification ofdiscretionary authority may lead to inconsistent application and accountability. Response: Ecology agrees that discretionary authority could lead to inconsistent application of the .rule. However, Ecology felt that such discretionary authority for this issue waswarranted, and has decided to retain the conceptof"secured." In order to promote consistent application of this concept, Ecology willdevelop guidance to clarify this aspect of the satellite accumulation rule. Commentl70: The use of the phrase "during routine operations" could be a source of confusion to generators in applying this new definition. Response: The term "during routine operations" in intended to limit the provisions of satellite accumulation areas to wastes which are generated on a relatively continuous basis. Wastes which are generated on

### a one time basis, as with unplanned spills, cannot be held for extended periods of time in satellite accumulation areas. The term "during routine operations" is intended to discriminate against wastes which are generated on a veryinfrequent (or one time only) basis, asin the cleanup of a spill. Ecology does not intend to allowgenerators to keep less than 55 gallons ofcleanup material indefinitely in a satellite accumulation area. Commentl7l: Is the use of a satellite accumulation area limited to container accumulation? Ifso, add a statement to clarify. Response: Satellite accumulation is limited to accumulation in containers. Ecology will make the appropriate changes to the definition of satellite accumulation in Section 040. The revised definition willread: "Satellite accumulation area" means a location at or near any point ofgenerationwhere hazardous waste isinitially accumulated in containers prior to consolidation at a designated 90 day accumulation area or storage area. The area ... into the satellite containers. Commentl72: Can satellite accumulation areas be located "off-site" or must they be located at the same facilitythat has the designated accumulation area or storage area? If 47**----~~----**

not, add a statement that satellite accumulation areas must be on the same facility as the 0, designated accumulation or storage area. Response: No, a satellite accumulation area cannot be located "off-site". Since generator In numbers are issued by site, a generatorwith an ID number may use that number to identify wastes generated in any buildings on that site. Ifthe generator makes a waste at a site not covered by his ID number, then the waste must be managed using the ID number from the second site. Since this issue is fundamental to the "one In number for each site" concept, Ecology felt it was not necessary to add clarifying

.language to the definition of satellite accumulation area. \. Comment 173: Whatwill be required ofgenerators to meet the securityrequirement [of the satellite accumulation rule]? Ifthe waste is in the designated satellite accumulation area that is eitherin the work area or near the work area and is always easilyobserved from the work area, and the satellite accumulation is inside a locked facility when the business is closed, will this meet the security requirements of this provision? Response: Ifthe satellite area isnear the process and under the operator's control during workinghours and locked at night as your example suggests, then this would meet the requirements ofthe satellite regulations. The performance standard, "secured" should be used if the satellite area can not be kept under the operator's control and near the process. The intent is to preventunauthorized disposal, and if a facility can show that unauthoriied disposal canbe prevented eitherby means of a locking drum, or locked 

### /"> room, or other means to prevent authorized disposal, then these measures willmeet the 

# \0 intent of the word "secured." Comment 174: We recommend that Ecology address two points ofconcern: (1) define "operatorofthe process generating waste"; and (2) state whether a date has to be on the containers prior to the accumulation date. Response: (1) In the most general terms, the "operator ofthe process generating waste" means. any person at the production level who is charged with operating, or coordinating the operation of, a manufacturing process, or any other process which generates a waste. The term "operator" may include several individuals in cases where the facility works two or three shifts, and there are two or three operators.. It is Ecology's intent to produce a guidance paper on the issue ofsatellite accumulation, to further explain this and other questions on this subject. (2) For containers in a satellite accumulation area, containers must be dated as soon as 55 gallons ofdangerous waste is accumulated. Within 3 days of thisdate, the containers must be moved to a 90 day storage area. Generators are not required to date the drum when it is broughtinto the satellite accumulation area. Ecologyintends to address these and other relevant questions in a guidance document. Comment 175: In the definition ofsatellite accumulation area, it would be helpful to insert ''less than 90 day" in the first sentence after "designated" and before "accumulation area." This would clarify that secure satellite accumulation areas are not considered designated accumulation areas, which must meet the requirements ofWAC 173-303-

__200(1).
48 

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• JUsponse: Ecology agrees that adding "90 day" willprovide clarification, but does not find it necessary to add "less than", The corresponding change in the definition ofsatellite accumulation area in WAC 173-303-040 willbe made. Comment176: The federal rules allow fifty-fivegallons oftotal hazardous wastes to be accumulated in a satellite accumulation area while the proposed state rules allow only one waste stream per satellite accumulation area. Response: Ecology understands that, on this issue, the state rules are different from the federal rules butwithjustification. The state elected to limit the satellite accumulation provision to one waste stream per satellite accumulation area because ofthe problems encountered in the field, i.e., trying to estimate and sum up the gallons ofwaste in each separate container. Each satellite area may have up to 55 gallons ofwaste; the rule does not limit how close satellite areas may be to one another. It is permissible for a generator to have several adjacent satellite accumulation areas, provided each one only accumulates up to 55 gallons ofonly one waste stream
.

. Comment177: Two commenters recommended that new section WAC 173-303-

070(3)(c)(ii)(B), Records Supporting Designation by Applying Knowledge, also be includedwith this section. Response: The Departmentbelieves that the reference to "(records of) other determinations made in accordance with WAC 173-303-170(1) for designating dangerous waste
...11is sufficient. However, section WAC 173-303-070(3)(c) willbe amended to reference WAC 173-303-210. Comment178: One commenter, while expressing support for the proposed rule, recommended that the requirement to include the sampling method be deleted. Response: A chiefpurpose to include these requirements into the rule was to ensure that

.generators keep all pertinent records regarding sampling and testing performed for the

purpose ofdesignation. This information is not only for the function ofcompliance monitoring by Ecology inspectors but also to aid generators. Many test results used for designation are valid over a large period oftime, given consistentwaste streams. Ifthe

. details oftesting are not recorded, recollection is usually inadequate. The Department

felt thatbecause both sampling methods and testing circumstances can have a large impact-onacquired results, this information must be available for review. Comment179: One commenter suggested that these requirements be set forth in guidance documents instead ofbeing placed into the rule

.

49Response: These recordkeeping requirements are believed to be the minimum possible to 

# 0.. accurately determine ifa set of test results sufficientlycharacterize 

### awaste. Guidance documents are often not comprehensively distnbuted or kept for reference. The Departmentbelieves, therefore, that it is appropriate for placementintothe rule.

Comment 180: The federal requiremerit to report waste reduction efforts is abiennial report requirement and Ecology should not impose it as annual requirement. Another commenter opposed the addition of any generator reporting requirements of waste reduction activities that are duplicative of SARATitle III reporting and annualreports required under Washington State Pollution Prevention Plans. At most, this requirement should mirror EPA's biennial requirementwith no additional data or information required. Response: Ecology does not want to impose any additional data reporting requirements at this time and has decided to withdraw the proposed amendment. This federal requirement will not be adopted at this time and willcontinue to be implemented in Washington State byEPA

. Comment181: The amendment should be revised so that it does not apply to generators of less than 220 pounds ofdangerous waste or 2.2pounds ofextremelyhazardous waste . per month or batch. Response: The proposed amendmentwill be withdrawn (see previous comment), however, a "small quantity generator", one who generates less than 220pound of DW or 2.2pound ofEHW, who is in compliance with WAC 173-303-070(8) is not subject to this requirement. It is not necessary to specificallystate throughout the rules. that every : requirement does not apply to small quantity generators
.


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Comment182: In several instances the requirements for reporting, notification and record keeping have been expanded'and "added value" has not been demonstrated

.. These proposed amendments willincrease both the administrative burden and potential ofnon-compliance for generators and TSD facilities. Forinstance, Required Notices WAC 173-303-290(1) vastlyincreased the notification requirements for importation! exportation ofdangerous waste, yet only a vague reference to observed hazardous conditions involvingimportation ofdangerous waste are provided for justification.

50 

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• Response: This amendmentwas proposed because Ecology has observed hazardous conditions involvingimportation ofdangerous waste and believes identification, tracking and management ofimported wastes needs to be monitored. The amendment is also important because people outside ofWashington State may not be familiar with these rules. We have determined that the current regulations do not provide enough information to adequately track and identify dangerous waste coming into the United States. The additional information required in this amendment will help Ecology identify out-of-country facilities that are exporting to Washington and provide a specific contact name for the importer. It will help to identify the types of waste being imported, and how the waste is to be managed once it enters Washington; Dangerous waste codes need to be provided so that Ecology can determine that imported wastes have been correctly characterized once they enter Washington and that the receiving TSD facility can accept the wastes. The informationEcology isrequesting should be readily available to the importer. We do not believe this requirement significantlyincreases costs, the complexity of complying with the Dangerous Waste Regulations, or the potential for noncompliance for generators and TSD facilities. Keep in mind that Ecology is asking only for estimates of frequency ofimported shipments and quantities. The environmental benefit to be gained by this amendmentwillbe the increased ability of Ecology to identify and quantify wastes being importedinto Washington. Comment 183: Ecology should consider creating a form for the notification requirements (such as Form 2,Form 4, etc.), These could be addressed as part of the Annual Report and Notification Form Revision Project currently underway. This would make updates to the form in the future easier (i.e., not through the rule making process). 

### Response: Ecology believes this suggestion has merit, however, we believe it would be less costly to taxpayers to allowimporters to provide the information in the form that the importerwishes, such as typed or handwritten. By this method Ecology can avoid the cost of developing and printing the forms. Importers will have the option ofdeveloping their own form. IfEcologydetermines that the type and amount ofinformation to be collected from importers will change significantly, we may look into developing a form.
-, However, at this time, Ecology does not foresee amending this section on a regular basis.

.Comment 184: Several commenterssuggested that Ecology's proposed rule change was

overlyburdensome and untenable for facilities that employ large numbers ofworkers that strive to keep centralized training records, especially when those records are computerized. 

### Response: It was not the intent of Ecology's proposed regulation amendment requiring signed training records to add a new layer ofrecordkeeping. A system such as described in the comments, consisting of class rosters, would be a sufficient demonstration that employees did attend classes. The intent ofthe proposed rule change was to establish a 51.**---~----**

clearrequirement for employee verification that they attended appropriate training. This requirement is only needed in a relatively small number ofinstances. After consideration 

# 0 ofthe comments, Ecology willadopt WAC 173-303-330(2)(c) to read: "(c) Records documenting that facilitypersonnel have received and completed the training required by this section, The Department may require. on a case-by-case basis, that training records include employee initials or siKDature to verify that trainini was received."

.

Commetu 185: The revised language changes the scope ofthe rule to include all manifest discrepancies, notjust significant discrepancies. What was the intent behind the proposed change and whyis it necessary? The original intent ofthis rule was to alert the department if waste. was missing in transport, if the load was tampered with (by adding non manifested materials), or if the waste looked significantly different when it arrived at the receiving facility. The rulechange places the burden ofcorrectly completing the manifest, down to typographical errors in filling in the generator ID numbers, with the receiving facility. The responsibility for correctly completing a manifest rests with the generator and should remain the generator's responsibility. The receiving facility should ensure that the shipment matches the description and canbe properly managed at the facility,but cannotbe responsible for checking every entry on every form. Response: Ecologybelieves that accurate completion ofthe manifest is crucial in retaining the integrity ofthe hazardous waste "cradle to grave" tracking system. However, upon further review of this proposed amendment, it appears that the amendment may place requirements upon the receiving hazardous waste treatment, storage and disposal (TSD) facility that are beyond the TSD's scope ofresponsibilities. Ecology willtherefore, withdraw this proposed change. Ecology will continue to review the manifestingsystem to determine any weak points and develop solutions to any problems identified.

. Comment 186: The proposed changes made to WAC 173-303-370(4)(a) appears to be in conflict with the direction for designating wastes given in WAC 173-303-070. In both the preamble and WAC 173-303-370(3)(b), Ecology states that the intent is for a generator to check a waste only until it is designated. However, WAC 173-303-370(4)(a) states that an incomplete listing ofEPA and state waste codes on the manifest is a significant discrepancy. Throughout these draft regulations, Ecology has done a goodjob of resolving regulatory language which, in the past has led to confusion; however, this appears to be an instance ofconflicting direction being introduced into the regulation. If compliancewith the land disposal restrictions requires that a waste be evaluated through all designated steps, then the preamble and the language in WAC 173-303-070 should be changed toreflect this. Response: Ecology is withdrawing the proposed amendment regarding manifest**di~c~e_p~~~i_~s.** _See response to comment #185. In response to the second part of the
52 

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• comment, designation isrequired for federally regulated wastes that must meet the requirements of the federal land disposal restrictions. See response to comment #21.

Comment 187: (-390(2)(g) The commenteris opposed to any additional generator reporting requirements of waste reduction activities that are duplicative ofSARATitle III reporting and annual reports required underWashington State Pollution Prevention Plans. At most, this requirement should mirrorEPA's biennial requirementwith no additional data or information required. Response: Ecology has decided to withdraw the proposed amendment. This requirement will not be adopted at this time and will continue to be implemented in Washington State byEPA See related comment (#180) for WAC 173-303-220(1)(b). Comment 188: The amendment should be revised so that it does not apply to generators of less than 220 pounds of dangerous waste or 2.2pounds ofextremelyhazardous waste per month or batch. Response: The proposed amendment willbe withdrawn (see previous comment and related comment for WAC 173-303-220(1)(b)), however, a "smallquantity generator", one who generatesless than 220pound ofDW or 2.2pound ofEHW, who is in compliance with WAC 173-303-070(8) is not subject to this requirement. It is not necessary to . specifically state throughout the rules that every requirement does not' apply to small quantity generators. Comment 189: (-390(4)) One commenter suggested that the record-keeping requirement should probably be fiverather than three years. Response: The commentermay be thinking about the generator requirement to retain documentation related to land disposal restrictions (notices, certifications, waste analysis date, etc.) for five years. Ecologyproposed 3 years for retention time for unmanifested waste reports, annual reports, and additional reports required in this section to be consistent with many of the existingrecord retention requirements. This should not be confused with the operating record for the facility, WAC 173-303-380, which must be maintained until closure of the facility.

, 53Comment 190: The commenter expressed supportfor adding language that "removes" this activity(repackaging of previously containerized waste intonew containers, at the time the waste is first placed into the new containers) from regulation. Response: The commentis acknowledged.

Comment 191: Two commenters support the change to this section that corresponds to the definition for commercial fertilizer. Response: Ecology acknowledges the support.

GeMralResponse: Ecology originallyproposed amended language to clarify the existing requirements for management ofdangerous waste fuels. Based on comments received and review ofthe proposed language, the Department has made further changes to the proposed language to correct inconsistencies and accurately reflect the requirements

. regarding the management of dangerous waste fuels. Comment 192: Two commenters expressed support for the proposed changes noting that the requirements of this section are more clear nowbecause the definitions more accurately reflect the various activities that occur in orderto recycle fuels. Response: The supportis acknowledged. Comment 193: One commenterrequested that Ecology develop a compliance flow chart for section 510 and publish it as a focus sheet. Response: One ofthe reasons this section was amended was to make the requirements of the section easier to understand and follow. Ecology appreciates the suggestion, but has no plans at this time to prepare a flowchartfor -510. 

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• .Comment 194: Are generators who supply waste fuel directly, at no cost, to a burner considered marketers, distributors orblenders? Response: They are marketers. Money does not have to be exchanged in order to meet the definition of a marketer, Comment 195: One commenter found the language of WAC 173-303-510(4)(b)(ii) to be inconsistent with language used to describe the same requirement in other subsections. Response: Comment noted; the language has been changed to-be consistent with the other subsections. Comment 196: One commenter noted a typographical error in WAC 173-303-510(6)(e). Response: Observation appreciated. The errorhas been corrected. Comment 197: One commenternoted that it appears that certification records (

.. 510(6)(e)) may need to be kept longer thanfive years. Response: The one-time certification notice is sent or received prior to the first shipment of dangerous waste fuels between two persons. It remains in effect as long as shipments between the two persons are occurring and must be kept as part of the operating record during that time period. The "five year" record retention clock commences at the termination of shipments between the two persons. Comment 198: The departmentshould address the issue of rules for BIFs and cement kilns as rapidly as possible. We consider the newEPAregulationsto be inadequate. Response: Ecology appreciates your comment. The suggestion will be taken into consideration during future rule-making.

GeneralDiscussion: Prior to these rule amendments, Ecology operated under two clean closure performance standards. In the case of closure at a final status permitted dangerous waste managementfacility, Ecology's clean closure performance standards stipulated closure to ''background''. In the case ofclosure at facilities operating under interim status, Ecologyadopted the federal clean closure performance standard at 40 CFR §-265.111 byreference. The federal clean closure performance standard is typically interpreted to allow for clean closure certifications on a case by case basis when the excess risk caused byconcentrations ofhazardous waste and constituents at the closing unit fallsbetween 10"' and Ht'. Ecology found implementation of the two clean closure performance standards difficult in that the department was faced with lengthy 

### and resource consumingnegotiations regarding the meaning of "background" at any given


## ssfacility or unit or,at interim status facilities, the appropriate point in EPA's riskrange for 

# 0'," clean closure at any given facility or unit. Additionally, in the case ofinterim status closures in particular, the acceptable excess risks allowed for clean closure were potentially"inconsistentwith"acceptable levelsofrisk allowed under the Model Toxies Control Act. This inconsistency potentially subjected owner/operators of interim status facilities to two cleanups at any given unit, the first to meetEcology's clean closure performance standard and the second to address remaining contamination as prescribed" byMTCA Earlierthis year, Ecologyformed ail internalworkgroup to discuss the clean closure performance standards and to develop guidance on theclosure process. In the course of it's discussions it was determined that the two clean closure performance standards were inappropriate giventhe State's 

### policyon acceptable levels of risk, as articulated by the Model Toxies Control Act Regulations. The workgroup recommended revising the clean closure performance standard to be consistent with the 

### MTcA cleanup standards and conforming the interim and final status closure performance standards. Ecology received many comments on the proposed revisions. Most commenters generally supported Ecology's proposal to use risk-based analysis as the basis for clean closure, but expressed reservations regarding the stringency and inflexibility ofMTCA cleanup standards. Ecology believes many commenters were uncertain over the degree to which Ecologyintended to incorporate MTCAprovisions into the closure process. Ourintent was to reference onlyMTCA's numeric cleanup levels. Although these cleanup levels 

# '0\ must be calculated according to the MTCAregulations, Ecology does not intend for MTCA cleanups to take the place ofRCRA closure." In orderto clarify ourintent, Ecology revised the proposed clean closure performance standard to explicitly limit the application of the MTCAregulations to the closure process. Comment 199: Many commenters expressed concern that Ecology had limited the proposed clean closure performance standard to MTCA cleanup levels calculated using residential exposure assumptions. Most commenters who expressed this concern suggested that Ecology expand the proposed revision to allowclean closure to MTCA cleanup levels calculated accordingto MTCAMethod C. Several commenters supported " their suggestion by noting that EPAhas approved, on a site specific basis, clean closure

to a risk level of 

### 10-5 and since Method C cleanup levels are based, in part, on a 

### 10-5 risk levels, clean closure to Method C standards wouldbe consistentwith the federal program. 'Response: Ecology interprets clean closure as the 'point at which conditions at a

dangerous waste management unit no longerwarrant regulatory control; phrased another way, the point at which unrestricted re-developmentofthe former unit may occur. The dangerous waste regulatory systemmakes a distinction between units which are closed to acceptable levels of risk (clean closure) and units which merit further control and monitoring (post-closure care). The MTCAregulations also provide for a distinction between facilities which have been cleaned up to the, extent that regulatory control is no ()" longer necessary and facilities whichrequire further regulatory control.

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•• MTCA cleanup levels calculated using residential exposure assumptions (primarily MTCA method B) constitute state policy on acceptable levels of risk, absent further regulatory control. Facilities (or units) remediated to meet MTCAresidential cleanup standards are generally allowed to exit the MTCA system. MTCAMethod C cleanup levels (including industrial soil cleanup levels calculated pursuant to WAC 173-340-745) are defined by MTCA as "conditional"cleanup levels and are inextricably linked to further control under the MTCA regulations (e.g., see WAC 173-340-420 and WAC 173- 340-440). Ecology believes it would constitute a fundamental policy error to predicate some RCRA "clean" closures on levels ofdangerous constituents which, as a matter of state policy, have been determined to merit further regulatory-control. Ecology recognizes that the residential cleanup standards mandatedbyMTCAare somewhatmore conservative than some federal cleanup standards. Ecology believes that consistency with state policy and conformance with citizen mandated cleanup requirements outweigh any discrepancybetween the state and federal program in this regard. Ecology notes that it is always within a state's purview to promulgate regulations that are more stringent than analogous federal requirements, and, in the case of authorized state regulations, suchrequirements operate in lieu of the federai program,

-such that federally overseen actions must conform with the authorized state regulations.

Comment 200: In conjunction with concerns regarding the stringency of Ecology's proposed clean closure performance standard, many commenters suggested Ecology consider a three-tiered closure system. Under the most commonly suggested three tiered system, tier one would include units whichcould meet MTCAresidential standards, such units would be considered clean closed; tier two would include units whichcould meet MTCA industrial standards at closure, and would be subject to the long term care and· monitoringrequirements of MTCA but. not to post closure permitting; tier three would include units which close with waste in place and/or could not meet MTCA industrial standards, such units would be subject to post closure permitting. Response: Despite the policyconsiderations discussed in ourresponse to Comment #199, Ecology carefullyevaluated the suggested three tiered closure system. Ecology's most serious reservations centered around issues of how and when the institutional controls, periodic assessmerits, and compliance monitoring required by the MTCA regulations would be imposed. Ecology considered three mechanisms for imposition ofMTCA's long term care requirements, as follows: (1) Ecology considered deferring MTCA's long term care requirements to the Toxies Cleanup Program (TCP). In the deferral scenario, units/facilities which met MTCA's criteria for use ofMethod C would be allowed to clean close at Method C cleanup levels and would exit the RCRA system only to be "picked up" by the TCP at some later date. Ecologyrejected the deferral scenario because it did not provide for immediate fulfillment ofMTCA's long term care requirements potentially allowingenvironmentally threatening conditions to become exacerbated followingthe time a unit/facility exited RCRA regulatory control and before it was addressed by the Toxies Cleanup Program. Ecology believes that facilities/unitswhich had been remediated to Method C cleanup 57--**~~ ----~---** 

levels**wo~d** likely be a very low priority for additional action by the TT CP, pORtentially 

# 0 resulting m a long period of time between the Hazardous Waste and oxies eduction Program (HWrRP) certifying clean closure and the TCP addressing remaining MTCA concerns. This situationwould be indirect non-conformance with the MTCA regulations which inextricably link Method C cleanups to long term care. Ecology also considered the efficiencies ofconducting partial cleanups under the HWTR Program, only to transfer the remainder ofthe cleanup to the Toxies Cleanup Program. In addition, Ecologyrejected the deferral scenario for equity reasons. Ecology considered it improperto allow for dangerous waste management units/facilities to clean up only to the numeric Method C cleanup levels and defer the additional requirements ofMethod C cleanup when deferral ofMethod C long term care requirements would not be an option at standard MTCA cleanups.

. (2)

.Ecology considered imposing MTCA's long term care requirements in orders or consent decrees negotiated pursuant to MTCA after closure certificationwas complete. In the negotiated order/decree scenario, units/facilities whichmet MTCA's criteria for use ofMethod C would be allowed to clean close at Method C cleanup levels and exit the RCRA system, however Ecology staffin the HWTRP would be responsible for ensuring that MTCA's longterm care requirements were imposed immediately following the closure process. Ecologyrejected the negotiated order/decree scenario because it seemed to unnecessarily duplicate RCRA's existing provisions for issuance and oversight ofpost-closure permits. 

# 0--\ MTCA's long term care requirements include: financial assurance, institutional controls, monitoring to ensure the effectiveness of the cleanup action, and periodic site review. MTCA's long term care requirements are, substantively, the requirements for postclosure permits. Ecology could see no benefit to allowing clean closure at a given risk level if, due to "state-only" requirements, a substantive post-closure permitwould still be necessary. Ecology believes that the post-closure permitting process mayprovide for more flexibility than is inherent to the MTCAregulations, and for that reason maybe preferable to negotiated MTCA orders/decrees for imposition oflong term care requirements. Ecology also considered the resource implications ofnegotiating a separate action to impose long term care requirements in addition to reviewing, approving and subjecting to public review and comment, a detailed closure plan and clean closure certification. (3) Ecology considered drafting regulatory revisions to allow for imposition of MTCA's long term care requirements during the. closure plan review and approval process. Under the closure plan scenario, units/facilities which met MTCA's criteria for use ofMethod C would be allowed to certify "conditional" clean-closure, meaning that the clean closure approval would be conditioned on the facilityowner/operators fulfillment ofMTCA's long term care requirements as specified in the Ecology approved closure plan. Ecologyrejected the closure plan scenario because, the long-term care requirements 

# CJ associated with MTCAMethod C cleanups seemed duplicative ofpost-closure permitting requirements. Additionally, the idea of "conditional" clean closure raised more questions 58

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• than it answered, for instance, to what degree could Ecology allow for conditionally clean closed units/facilities to exit the RCRA regulatory system? IfMTCA's long-term care requirements were imposed through the closure plan mechanism, Ecology believes it likelythat such conditionally closed units/facilities would have to remain under RCRA interim or final status until MTCA's long term care requirements had beenfulfilled (potentially many years). Finally, although EPA regulations allow states to promulgate requirements more stringent than the federal analogues, there are no federal provisions for "conditional" clean closures. In preliminary conversations with EPA Region 10, representatives ofEPAindicated that federal authorization of a conditional clean closure system would be difficult ifnot impossible.

. . . Ecology believes the three tiered closure system raises important questions regarding the closure ofRCRAunits/facilities which are located within industrial areas or which, in some otherway, meet MTCA's criteria for application ofMethod C cleanup standards. Under the revised clean closure performance standard, units/facilities which cannot meet MTCA residential standards for all dangerous wastes managed at the unit will be subject to post-closure permitting under RCRA. However,Ecology recognizes that not all facilities willrequire the same degree ofpost-closure care. Ecology believes that the RCRA system for post-closure permitting provides a great deal offlexibility in determining specific post-closure care requirements. We are committed to working with facilityowner/operators to identify the need for post-closure care early in the closure process and ensure that post-closure care requirements are commensurate with the risks and circumstances at specific facilities/units. In addition, we are working with EPA to develop other mechanisms for imposition ofpost-closure care. Comment 201 and202: Many of the commenters who expressed concern over the stringency ofEcology's proposed clean closure performance standard and/or suggested a three tiered closure system specifically cited RCRA's requirement for financial assurance in support of allowing clean closure to MTCAMethod C standards. Response: Comment noted. The RCRA requirements for closure and post-closure financial assurance are intended to ensure that dangerous waste management units and facilities do not become a cleanup burden to the State. Ecology sees no reason to waive such requirements when, as in the case of closure to MTCAMethod C standards, additional regulatory control in the form ofinstitutional controls, monitoring and periodic site review are known to be required. The MTCA regulations provide independently for financial assurance pursuant to 

### WAC 173':340-440(6). In the responsiveness summary to the Model Toxies Control Act Ecology wrote, "Ecology has revised the (MTCA) rule to incorporate the expectation that financial assurances willbe required where the cleanup action involves on-site containment, isolation or disposal of'hazardous substances at levels which exceed Method A or Method B cleanup levels, as applicable." Comment 203: Many commenters expressed 

### concernthat the proposed revision would. preclude closure ofRCRA units to background. One commenterwrote that excluding closure to background would cause a RCRA facility to "exist as an expensive island amidst other contaminated sites." Two commenters asserted that, for RCRAunits, closure to background was more appropriate than closure to health or risk based 59standards,writlh'ng, thhault'd'ifbback d

gr dounddlehvds

## whereCEnotRPCLArotectiveMTofCh'A~a~**he~lth** and the 

# 0- environment, t at s 0 e a resse t roug a or rorum. Response: Ecologybelieves that excessiveconcerns regarding.closure to background represent, to some degree, a misunderstanding ofclosurejurisdiction. The regulations for closure stipulate that facility owner/operators must remove or decontaminate all dangerous waste and dangerous waste breakdown products which were managed-in or at the dosing unit. Contamination which facilityowner/operators can demonstrate is not in any way connected with waste management at the closing unit, including contamination

.. whichpreexisted the unit, is not subject to closure (see response to comment #204). Additionally, the MTCAregulations allow for cleanup levels to account for natural background conditions pursuant to WAC 173-34Q-700(4)(d), which states, "Natural background. Cleanuplevels shall not exceed concentrations established under methods A, B, or C exceptwhere the natural background concentration is greater than the cleanup level'established under those methods. In such situations, the cleanup level shall be established at a concentrations equal to the natural background concentration."

.Ecology will allow consideration ofnatural background when determining closure levels,

as appropriate under MTCA Given the limitedjurisdiction ofthe closure regulations andMTCA's provisions for consideration ofnatural background, Ecology believes we can adequately address background contamination during the closure process. In a more general sense, Ecology rejects the notion that closure ofdangerous waste management units shouldbe held to cleariup standards less stringent than those imposed at other facilities. "Ecology also rejects the assertion that cleanup ofcontamination emanating 

# 0 from a dangerous waste management unit should be exempted from the closure process only to become subject to cleanup under another State authority. Establishing consistency between RCRA and MTCA cleanup levels is a primary goal in revising the clean closure performance standard. Comment 204: Several commenters expressed concern that the proposed revision would not allowEcology to account for contamination originating off-site when approving clean closures. Response: The regulations articulating the closure performance standard at WAC 173- 303-610(2)(a) specify that owner/operators must close a facility in a manner that, "(i) Minimizes the need for further maintenance; (ii) controls, minimizes or eliminates to the extent necessary to"protect human health and the environment, post closure escape of dangerous waste, dangerous constituents, leachate, contaminated run-off, or dangerous waste decomposition products to the ground, surface water, ground water or to the atmosphere, and (iii) returns the land to the appearance and use ofsurrounding land areas to the degree possible given the nature of the previous dangerous waste activity."

. 

### . The standards-forremoval and decontamination stipulate that such requirements shall apply to "dangerous wastes, waste residues, or equipment, bases, liners, soils or other materials containing or contaminatedwith dangerous wastes orwaste residue". Ecology has historically andwillcontinue to interpret this language as allowing that, if a facility 

# 0.) owner/operator can demonstrate to Ecology's satisfaction that some degree of contamination at or beneath a closing dangerous \Vaste management unit did not 60

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• emanate from the unit, and was not caused by waste management activities at the unit, such contamination is beyond the scope of closure. Considering Ecology's interpretation of closure applicability, we believe that agency staff reviewing and approving closures and closure plans will have theflexibility to exempt contaminationwhich has been demonstrated to be migrating from off-site from closure requirements. Ecology notes. that contamination beyond the scope of closure whichremains at closed and closing dangerouswaste management units may be subject to further remedial action under MTCA and/or RCRA corrective action. Comment20S: Several commenters expressed concern that the proposed revision would not allow Ecologyadequate flexibility in approving clean closures. 

### lUsponse: Comment noted. Ecologyaddressed concerns regarding the flexibility ofthe MTCA Cleanup Standards in the responsiveness summary to the MTCAregulations: "(Ecology) recognizes that the flexibility in the (MTCA) regulations is somewhat less than that in the federal program. However...we are concerned that the present system provides an excessiveamount offlexibility which hinders, rather than facilitates, site "\ cleanup. We believe the statutory mandate to protect human health and the environment willcontinue to be frustrated if we continue to handle each site as a completely unique situation. Consequently, Ecology has attempted to establish a regulatory framework which constrains flexibility, but does not eliminate it." (p.26) Ecology considers establishment ofstandards for RCRA clean closures to be an important and far reaching policy decision. In determining the levels ofconstituents which wouldconstitute acceptable risks,absent further regulatory control under RCRA, Ecology chose to rely on existingstate policy regarding acceptable levels of risk, namely the MTCAresidential cleanup standards. In choosing to reference MTCA's residential cleanup standards as the performance standard for RCRA closures, Ecology recognized that it was making, to some degree, a trade between flexibility and predictability. The benefits of relying on clearly defined MTCA residential standards for RCRA clean closures includes: 1) Clear articulation ofstate policy for clean closure, allowing early agency decision making. Ecology believes early decisions provide for moretargeted allocation of limited resources; 2) Clear record ofstate policy·for clean closure, allowing the regulated community a greater degree ofcertaintywhen undertaking closure activities, absent agency oversight, and when preparing closure plans; and 3)·Consistency between state cleanup policies. Comment 206: Two commenters asserted that units which undergo MTCA cleanups should not be required to also undergo RCRA closure. 

### Response: Treatment, storage, and disposal ofdangerous wastes are primarily addressed byregulations promulgated pursuant to the federal Resource Conservation and Recovery Act (RCRA). Washington has adopted a version .ofthe federal requirements in the State Dangerous Waste Reguletions.Chapter 173-303.WAC. While Ecology believes that the benefits of reliance on MTCA residential cleanup standards for RCRA clean closure performance standards are many, we emphasize that the reference to MTCA only entails

.adoption of the numeric cleanup levels; it in no waychanges or alleviates facilityowner's
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and operator's existing obligations to fully comply with all applicable RCRA regulations, 

# 0 including regulations governing RCRA closures. Ecology agrees with the commenterthat subjecting RCRA regulated units to both RCRA's stringent closure requirements and MTCA's cleanup procedures would be an inefficient use of scant resources, however, RCRAhas no provisions to allow for closure of units under an alternative (e.g., MTCA) authority. In the case of closure of a RCRA regulated unit within a largerMTCA cleanup, Ecology believes it is more efficient to incorporateMTCA's concerns in a RCRA closure plan than to overlay RCRA regulatory requirements with other cleanup obligations. The MTCAregulations.at WAC 173-340- 710(6)(c) specificallyreference closure requirements as follows: ''when the department determines that the closure requirements in chapter 173-303 WAC are applicable requirements, the more stringent closure requirement under that law shall also apply to cleanup actions conducted under this chapter." . Ecology believes thatby closingdangerous waste management units to MTCA cleanup

standards calculated using residential exposure assumptions, facilityowner/operators will achieve conditions at the closed unit which will satisfyMTCA cleanup requirements. Conforming dangerous waste and MTCA cleanup standards was one of the department's primary goals in revising the clean closure performance standards. However, compliance with the RCRA closure requirements, even to the extent they reference MTCA cleanup standards, cannotautomatically be deemed compliance with MTCA. We emphasize that, to the extent facilityowner/operators through compliancewith any given obligation 

# 0\1 achieve site conditions which legitimately preclude or satisfy similar requirements under another obligation, there is no reason to believe Ecology willrequire duplication of effort. However, Ecology must individually review each case to ensure that allcleanup requirements have been met before formally determining that MTCA cleanup is not (or is no longer) necessary. We are committed to developing guidance and pursuing internal agreements to address this subject and to further reduce the overlappingjurisdictions of MTCA and RCRA at dangerous waste managementfacilities.
Com1lU!nt207: One commenter cautioned Ecology against relying too heavily on MTCA's method A tables.

. 

### Response: Comment noted. Ecology agrees that caution shouldbe exercised to determine the most appropriate MTCA methodology when establishing clean closure levels. Method A tables will be utilized when applicable under the MTCA regulation.
Com1lU!nt208: One commenter asserted that closure ofconcrete to MTCA soilcleanup standards would be impractical and unnecessary. 

### ResPonse: Ecology agrees with the commenter that decontamination ofconcrete to MTCA soil cleanup standards may notbe necessary in all cases. In lieu of the discussion ofdecontamination in the proposed preamble to WAC 173-303-610(2)(b)(ii), Ecology offers the following: Ecology recognizes that decontamination must often consider a . myriad of site specific details and is often most appropriately addressed on a case by case\

basis during agency review and approval ofclosure plans. In orderto assist facility 62 

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• owner/operators in preparing closure plans, Ecology is preparing detailedguidance on the closure process. The closure guidance will contain discussions ofdecontamination in the closure context, including application of newlypromulgated federal treatment standards for hazardous debris to closure decontamination requirements. Ecologynotes that the proposed regulatory language for decontamination ofstructures during closure did not specificallyreference MTCA cleanup standards, however, in order to emphasize the site specific nature ofdecontamination considerations, Ecology has revised the proposed closure regulations at WAC 173-303-646(2)(b)(ii) to read: "For all structures, equipment, bases, liners, etc., clean closure standards shall be set by the department on a case by case basis in accordance with the closure performance standard of WAC 173-303-610(2)(a)(ii) and ina mannerwhich minimizes or eliminates postclosure escape ofdangerous waste constituents." ComIMnt 209: One commenter suggested that, in lieu ofreliance on MTCAresidential cleanup standards, Ecology allow for development of "facility specific options matrix to select the most appropriate closure program for a given site or facility." Response: Ecology considers the facility/unit specific closure plan required byWAC 173- 303-610(3)the appropriate mechanism to ensure that a given unit or facility is closed : properly. As discussed in our response to comments numbered 199 and 200,Ecology believes a consistent performance standard should apply to all clean closures. ComlMnt 210: One commenter asserted that limiting the clean closure performance standard to cleanup levels calculated pursuant to a dated edition ofMTCAregulations will lead to "imposition ofinconsistent site cleanup standards as MTCA regulations are modified overtime." Response: Ecology agrees that such inconsistencies would be possible and has revised the regulations accordingly. Revised WAC 173-303-610(2)(b)(i) in pertinent part reads: "according to the Model Toxics Control Act Regulations, Chapter 173-340 WAC, as now or hereafter amended." ComlMnt211: One commenter asserted thatlimiting the clean closure performance standard to MTCAresidential cleanup levels would "impose an unnecessary increment of remediation at operating facilities for which a corrective action RFAlRFI sequence will be required prior to facilityclosure." Response: Ecology agrees that there is a need to closely coordinate closure and corrective action activities at many dangerous waste management facilities. Ecology notes this is only a concern at facilities which cannot meet MTCA residential standards through removal and decontamination at the time of closure, which are undergoing or will undergo correctiveaction, and which meet MTCA's criteria for application ofMethod C. Although Ecology intends to impose corrective action requirements through MTCA orders and consent decrees, MTCAMethod C will onlybe available to corrective action cleanups to the degree it would be normally available under theMTCA regulations.

63-- --------- -----**Ec0MTlogyC'Ae~c~dcle~nluPII~vels**at mdostdscorrective action'sites will be calculated according 0- to s resi entia ceanup stan ar . 'As the commenter implied, there may be instances when an owner/operator of a final status facility decides to close certainwaste management units but continues to operate the facility and otherwaste management units at the facility. In such a situation, if the facilityowner/operator could not meet MTC'Aresidential cleanup standards at the closing unit, the operating permitwouldbe amended to incorporate appropriate post-closure care requirements. Ifat a later time, the facilityowner/operator andEcology determined that post-closure care at the unit could be more appropriately coordinatedwith facility wide corrective action, the permit could be modified to reflect any appropriate changes to the post-closure care requirements. In many cases, permit-trackfacilities willbegin implementation ofcorrective action requirements priorto permit issuance. 'At such facilities, anypartial closures could be explicitlycoordinated with and addressed in the context of existingfacility-wide corrective action. .' In the case of closing units at an interim status facility, Ecology believes the same principles apply. Ifa facilityowner/operator cannot meet MTC'Aresidential cleanup levels at a closinginterim status unit, post-closure care for the unit will be imposed eventually eitherunder a permit or (pending EP'A rule-making) under an administrative order. In the case of a post-closure permit, the permit would also contain provisions for facility-wide corrective action as necessary to protect human health and the environment and such corrective action requirements could be efficientlycoordinatedwith the post-**U~\** closure care requirements at the time ofpermit issuance. Ifcorrective action requirements were not imposed at the same time as the post-closure care requirements (e.g., the permit contained corrective action trigger language instead ofdetailed corrective action requirements) then the permit could be modified to coordinate postclosure care requirements with corrective action concerns as necessary. 'As an alternative to immediate imposition ofpost-closure care requirements, Ecology can delaythe date by which a facilityowner/operatormust certify.clean closure at a closing unit. (See W'AC 173-303-610(3)(c), W'AC 173-303-610(4), and W'AC 173-303-400(3)(a). While Ecology wishes to emphasize that such delays in closure willnotbe routine, they couldbe used in limited circumstances to more effectivelycoordinate closure and corrective action activities. For example, underW'AC 173-303-610(4)(b)(i), the Department could extend the time allowed for closure if it could be demonstrated that, in orderto adequately coordinate closure with site wide corrective action, the closure activities will take longer than 180days to complete. It is Ecology's intent to encourage facilityowner/operators to achieve clean closure, however, we realize that it may not alwaysbe appropriate or practical. Ecology believes one benefit orMTC'A's prescriptive cleanup standards will be early decision making regarding the application ofpost-closure care. Ifpost-closure care is determined necessary, facilityowner/operators can begin implementing such requirements immediately, instead ofexpending resources in futile attempts to meet the clean closure 

# 0 performance standard. Ecology believes this willresult in more efficient targeting of resources, more timelyimplementation ofclosure requirements, and minimization of
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• "unnecessary increments" ofremediation. We recognize that the current, federally mandated, RCRA system may not adequately provide for the degree ofintegration between closure and corrective action requirements which many regulators and members of the regulated community believe necessary. We are committed to using the existing flexibility in the RCRA system to ensure that actions at each facilityadequately address threats and potentiai threats to human health and the environmentwithout needlessly expending scant public and private resources. We are also committed to working with EPA to more completely address the issues of closure and corrective action coordination through federal rule-making.
Commenr212: Two commenters disagreed with Ecology's preamble assertion that background was difficult to determine and that reference to MTCAresidential cleanup levels would provide consistencybetween dangerous waste closures and MTCA cleanups. Response: Comment noted. As discussed in our response to comments numbered 199, 200, and 211, Ecology believes that referencing MTCA residential cleanup levels will provide for consistencybetween dangerous waste closures and MTCA cleanups while also allowing closures of dangerous waste management units to be addressed in the context of facility wide corrective actions as appropriate

.



### WAC 173-303-630(3) Commen: 213: Ecology should state that the riskidentification requirementwould be met ifthe containerwas labelled "Dangerous" because there are no US DOT classifications for state only waste. (There was no amendment to this section.) Response: Risk labeling does not.require a company to use US DOT's hazard classifications for state-only wastes. The regulations state that ifthere is a system in place that performs the risk label function, then it will be adequate. Ifthe DOT system does not include state-only wastes, then the 

### "system" is not adequate. 

### WAC 173-303-630(6)
ComFMnl214: Two commenters stated they do not feel that the addition of an inspection log will help assure earlier detection ofleaking or damaged containers. Responie: The requirement for containerinspections is not new. With this addition, Ecology is requiring "generators to document theirweeklyinspections on paperfor validity and assurance to the facility and the Department

. 

### WAC 173-303-630(8)(a) and (b)

65**Co265m~6nt** 21S d: bDund· ng pudbliC hearinlgs, EcOICO gyverbally indicated that 40 CFR Part 

# 0 .17 woul e a opte as a fina rule. ( ontainers holding ignitable or reactive waste mustbe located at
.least 15 meters from the facility'sproperty line.) The existing Uniform Fire Code and NFPA do not need to be replaced with the 50 foot set back. Also, Ecology did not propose the rules in the State Register thereby allowing for public comment. Response: Although this requirement is already a state requirement for Interim Status Facilities, it has notyet been adopted by the state for Final Status Facilities. Because this change was not included with the proposed rules, Ecology willnot adopt the standard at this time. Commen: 216: One commenterrecommended revision ofthe first sentence ofWAC 173- 303-630(8)(b), Understanding equivalency with the Uniform Fire Code (UFC) to read:

II••• in a manner equivalent with the UFC or the version adopted by the local fire district." The commenter made this recommendation because they are subject to National Fire Protection Association requirements imposed by Orders for fire protection. The commenter considers determining and meeting the current UFC, "a very difficult and overlyburdensome task."

. Response: Ecology is uncertain why the commenteris requesting this additional regulatory amendment. The Hanford Reservation is not located within a local fire. district. Their fire protection needs are 'metby a private fire brigade under the 

# 0\ commenter's control, not subject to the uniform fire code or versions adopted by the local fire district. With or without the proposed amendment, the commenterwould have to determine the equivalency oftheir fire orders with the Uniform Fire Code (UFC). Furthermore, WAC 173-303-395(1)(d), requires owner/operators to conduct annual inspections ofareas storing ignitable or reactive waste in the presence of a professional person familiar with the UFCor in the presence of a local, state, or federal fire marshall. The commenter's contention that "Determiningwhat is in a manner equivalentwith the currentversion ofthe UFC is a very difficult and overly burdensome task," seems unfounded because each year they will conduct these inspections with someone familiar with the UFC.

Comment217: The commenter requested clarification on the meaning of the term "acutely orchronically toxic by inhalation." in WAC 173-303-640(5)(e). Response: The Department ofEcology is not proposing any amendment to this section of Chapter 173-303 WAC. Ecology willreply to this question under separate cover. 

# C)

66

# •

•

• Comment218: Closure byremoval standards of WAC 173-303-610(2) should be referenced instead of40 CFR 264.111. Response: This rule was initiallypromulgatedbyEPAwhen federal interim status and final status closure standards were conformed. It applies to facilities that closed under Interim Status prior to 1986when interim status clean-up standards were less stringent than those for Final Status facilities. The closure byremoval and equivalency determination rules allow owners and operators of TSDs to demonstrate that the facility . was closed to meet the federal final status clean-up standards, and thus does not require

a post-closure permit. A post-closure permitis required for a facility iffederal fined status clean-up standards cannot be demonstrated, regardless ofwhether or not a . certificationofclosure was received. The decision by Ecology to reference the federal

closure standardwas made so that facilities would not be forced to close to a more stringent standard than what wasintended by this federally promulgated rule.



### WAC 173-303-S02(S)(a)(i)
Comment 219: Two commenters support deleting the requirements that an NPDES permit include effluent limits for the hazardous constituents, which would be difficult, if not impossible, to comply with if broadly interpreted. Response: The purpose of the permit is to establish limits for specific pollutants in a dischargetoinsure that treatment levels are being achieved, and certain water quality standards in'the receiving stream are met. Ecology willcontinue to write permits that include limits for hazardous constituents which could adversely impact the receiving waters. However,it is not intended that these permits should include limits for every constituent. The wording of this rule will be changed to "and the permit or authorization covers the waste stream and constituents being discharged". Permits will only include . limits for constituents which are present at levels which could either exceed established

treatment or effluent standards, or violate water quality standards. The reference to "effluent limits for hazardous constituent" and "AKAR

### T' (all known, available, and reasonable methods of prevention, control, and treatment ofpollution) in the previous**v~rsion** of the rule will be deleted, as proposed. Comment 220: The regulations should allowelementary neutralization units (END's) and totally enclosed treatment facilities (TETF's) to have permitby rule status ifthe treated waste fromthese units are subsequently sent to a permitted 1'5D

.. 67Response: This"is a pointwelltaken. However, because oftime constraints, this 

# 0 suggested change willbe an issue to address in the next round ofamendments. 

### As an alternative, and forthe present time, generators already have an option to treatwastes and ship "residues to a TSDthrough the "treatmentby generator" provisions. Ecology has a recently revisedTechnical Information Memorandum, TIM No. 86-3 (revised July 1993) for public distnbution which includes all-the information relevantto "treatmentby generators". Also, a generator provision for TBG was proposed at WAC 173-303-170(3). Comment221: We suggest thatEcology modify the regulation [Permitby Rule] to clearly identify and codifyassociated PBR requirements, such as annual reporting, waste anaiysis, and "counting" towards a generator's Quantity Exclusion Limit (QEL). Response: Ecology agrees thatWAC 173-303-802(5),Permitby Rule, couldbe changed to make it more understandable by listing all the specific requirements in the rule. Unfortunately, it is too late in this current round ofregulation amendments to address this issue. Ecology willput this issue on the list of issues to revisit in the next round of amendments. Forthe interim, Ecology willconsider developing a Focus Sheet on this issue. Comment 222: The federal regulations acknowledge that dilution and neutralization constitute an appropriate treatment method. Section 802(5)(a)(i) should clearly reflect that the dilution ofcharacteristic hazardous waste that are originally wastewaters at the point ofgeneration is not illegal. Response: While the federal rules have a provision allowingthe mixing ofcharacteristic wastes with solid wastes until the waste no longer exhibits the characteristic (except for land ban wastes), Ecology believes that diluting wastes to avoid regulation is not appropriate. However, if the intent of mixing a characteristic waste with anotherwaste streamis for the purpose oftreatment, then any dilution which results as a consequence of such mixing is not considered dilution to avoid regulation. For example, if a low ) volume acid waste (pH = 1) is mixed with a high volume waste streamwith pH = 8.0, and the resulting mixture has a pH of 7.0, then such mixing is interpreted to be treatment, not mixing to avoid regulation. " 

### WAC 173-303-S02(S)(a)(iii) Comment223: Two cornmenters were opposed to the proposedwaste analysis plan requirements for elementaryneutralization units. Response: The departmentbelieves that general waste analysis is a basic requirement appropriate for allwaste management activity. The waste analysis plan is tailored to the waste and the-management method. Only the information necessary to manage the waste is required. 

# C)

68

# • ...:.:'

.....

Comment224: The commenter stated that neither.640(7) or (8) contains any contingency planrequirements. Response: The proposed amendment changes the required section in WAC 173-303-640 from subsection (8) to (7). WAC 173-303-640(7) identifies the.proper emergency response that is needed for leaks or spills from tanks as well as -650(5) for surface impoundments and -660(6) for waste piles. The three sections refer to emergency responses that should be included as part of the contingency plan if a facility has a permitted dangerous waste tank, surface impoundment or waste pile.

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# • Comment225: Support for the "note" that clarifies that the only portions of a TSD facility requiring certification are. those required by WAC 173-303. Recommend adding a similarstatement to WAC 173-303-806(4)(a). Response: The support is acknowledged. The recommendation to add this note to WAC 173-303-806(4)(a) willbe taken into consideration during future rule-making.

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Comment226: Two commenters inquired about the basis for changes in waste quantity boundary between DW and EHW toxic dangerous wastes in the proposed rule.



# • Response: Ecologyproposed to revise the graph, which would have resulted in a change to the diagonal line separating DW and EHW toxic dangerous wastes such that the lowest quantity ofEHW designated waste would be 2.2pounds, or 1 kilogram, to be consistent with other designation sections. However, upon further review and consideration, Ecology has decided not to make the proposed change that would have resulted ina change to the slope of the waste quantity boundary. The last line of WAC 173-30l-100(5)(b)(iii) has, therefore, been deleted. However, the proposed labeling changes to the graphwillbe retained. Comment227: One commenter expressed support for the proposed rule. Response: The supportis acknowledge; however, see the previous response. 69Comulme d 228:h**TW0gulco~menfters rellqueste~**  clarification regarding how the proposed rule O. wo attect t e re anon 0 sma quantity generators.

. . Response: In the proposed rule, the words "small quantity generatorwaste" were removed from the area of the graph below 220 pounds for DW toxic dangerous wastes. The reason for this changewas to recognize that many generators with toxic dangerous waste may generate other dangerous wastes in quantities that place them in a regulated generator status. This change in the. graph coincides with new language in proposed WAC 173-303-100(4) that sets quantity exclusion limits for toxic dangerouswastes. These. amendments are intended to clarify how waste quantity effects generator status. For toxic dangerous wastes, a waste designated DW has a.quantity exclusion limit of220 pounds. For toxic dangerous wastes, a waste designated EHW has a quantity exclusion limit of2.2 pounds. To determine if a generator can qualify as a small quantity generator, the generator, aggregates, or sums; all waste quantities on-sitewith common quantity exclusion limits. Under the proposed rule, all designated wastes have a quantity exclusion limit ofeither 2.2 pounds or 220 pounds. Toxic dangerous waste designated DW, wr02, would be aggregated, by quantity, With otherwastes on-site with 220 pound quantity exclusion limits. Toxic dangerous wastes designated EHW are a special case under the proposed rule. EHW designation is a function ofboth the degree of toxicity and the quantity of waste. Although the quantity exclusion limit for EHW toxic dangerous waste is set at 2.2 pounds, it may require substantially more than 2.2 pounds of a waste to be designated EHWbecause ofthe variable quantity function. As in other designation sections, a generator first determines a waste's designation and then 

# 0"
determines ifthe total aggregated quantity is above the quantity exclusion limit.

Comment 229: One commenter pointed out that the proposed persistent dangerous waste graph does not communicate that PAHs are not regulatedbelow 1%. Response: The graph willbe amended in the final rule to clarifythat the DW range does not apply to PAH dangerous wastes. . Comment230: One commenter requested clarification of how waste quantities which fall below the X-axis of the graph are regulated under the proposed rule. Response: A continuation to zero ofthe quantity axis is impossible because ofthe limitation ofusing a log-log scale for this graph. Waste quantities that fall below the Xaxis on the graph are regulated the same as those

-above the axis. Comment 231: Two commenters requested clarification regarding how the proposed rule would effect the regulation of small quantity generators.

70 

# ()

# •

• JUsponse: In the proposed rule the words "smallquantity generatorwaste" were removed from the area of the graphbelow 220 pounds for persistent dangerous wastes. The reason for this change was to recognize that manygenerators with persistent dangerous waste may generate other dangerous wastes in quantities that place them in a regulated generator status. This change in the graph coincides with newlanguage in proposed WAC 173-303-100(4) that sets the quantity exclusion limit for persistent dangerous wastes. These amendments are intended to clarify how waste quantity affects generator status. Forpersistent dangerous wastes, the quantity exclusion limit is 220 pounds; To determine if a generator can qualify as a small quantity generator, the generator, aggregates, or sums, all waste quantities on-site with commonquantity exclusion limits. Under the proposed rule, all designated wastes have a quantity exclusion limit ofeither 2.2 pounds or 220 pounds. Persistent dangerous waste would be aggregated, by quantity, withotherwastes on-site with 220pound quantity exclusion limits.



### Antifreeze
Comment232: Ecology has been publishing "regulations" about antifreeze containing ethylene glycol. These practices should be placed into the regulation or eliminated. Callingsuchwastes W002 (in a Focus Sheet) has not been given public notice or review. RespOnse: Ecology has not published regulations which call antifreeze hazardous waste. Antifreeze typically fails toxicity tests and is therefore regulated. Ecology has published information as advice to generators. In March 1993 Ecology began a pilot project to encourage recycling ofantifreeze. This pilot project allows generators who recycle used antifreeze and follow specified best management practices (such as tracking and record keeping) to discontinue "counting"usedantifreeze toward their monthly hazardous waste totals. The pilot projectwill last for 18 months and at that time the project willbe evaluated to determine if a rule amendment should be proposed to conditionally exclude antifreeze if it is recycled. For purposes of the pilot project, the waste code W002 is being used. A Focus Sheet, "Counting"Exemption for Recycled Used Antifreeze (F-SH93-122) is available from Ecology. 

### Small Quantity Generators (suggested new section)
Comment233: To make it easier for a person unfamiliarwith the state's Dangerous Waste Rules, we recommend that a definition be added for small quantity generator, "Small Quantity Generator means a generator as defined by WAC 173-303-073." We alsorecommend that the existing WAC 173-303-070(8)be moved to a new section, WAC 173-301-073 so that the Small Quantity Generatorrequirements will be easier tolocate. Response: Ecology appreciates the suggestion and agrees that a definition and separate section for small quantity generatorprovisions would make it easierfor a person

71unfamiliar with the rules. The suggestion will be reviewed and considered during future 

# 0, rule-makings. 

### Teratogens Comment234: Washington state should comply with the intent ofour hazardous waste law and regulate toxic chemicals that are teratogens. According to a recent General Administration Officereport, most federal laws do not adequately address known teratogens. Response: Ecology appreciates your comment. The suggestion Will be taken into consideration during future rule-making. 

### Waste Designation Flow Chart Comment235: .It would be a tremendous help to the regulated community if Ecology would include a flowchart on waste designation. This would clarify when a waste designation procedure would stop. Response: Ecology agrees that a waste designation flowchart would be helpful. The suggestion will be considered in future rule-making. 

### Chapter 173·304WAC • Minimum Functional Standards for Solid Waste Landfills
Comment236: The commenterfeels Ecology has failed to amend the DW Regulations to take account ofthe improved protection now required at solid waste facilities, which significantlyreduces environmental hazard. The DWRegulations are designed to distinguishbetween those materials that can be disposed of safely at a SW landfill and those that shouldbe disposed of at a hazardous waste facility with additional environmentalprotection. Ecology should amend the DWRegulations, and in particular, WAC 173-303-100(7), to distinguish those low-riskmaterials that no longer conceivably present a significantthreat to the environment ifdisposed of in an improved SW landfill. Response: Ecology recognizes the improvement in SolidWaste Landfills and acknowledges the importance ofmanaging wastes commensurate with their risk. The proposed amendment for 100(7) was based on determining the appropriate level at which to regulate wastes as hazardous. Additionally, one ofthe objectives of the upcoming regulatory reform projectwill be to determine when wastes should be managed as hazardous and when management as solidwaste is appropriate.

72 

# o

(). 

### ,. 

# •

• Gen:eralDiscussion: Corrective action rule amendments were designed to facilitate Ecology'simplementation of a RCRA corrective action programwhich was consistent with (1) the philosophy ofEPA's existing corrective action program and (2) State cleanup requirements under the Model ToxicsControl Act. Additionally, Ecology developed the proposed amendments to be adequate to supportits application for federal authorization of HSWA corrective action. Ecology received many.comments regarding the proposed regulations and the program which they mandate. Commenters expressed almost uniform support of Ecology's adoption of regulations governing Corrective Action Management Units (CAMUs); many commenters urged Ecology to take the CAMU concept even further by allowing CAMUs at voluntary cleanups. One commenter explicitly supported Ecology's proposal to use the cleanup authority ofMTCA to compel corrective actions. Some commenters expressed guarded support of the conceptual frame of the Alternative Authorities Initiative, buthad reservations regarding the scope of corrective actions the Alternative Authorities Initiative would mandate. Other commenters objected to Ecology adopting any corrective action requirements. These comments are addressed below; however, Ecology believes manycommenters did not understand the scope and application of corrective action requirements and the intent of the Alternative Authorities Initiative, so we offer the following general discussion. Washington'sdangerous waste regulatory program is largely a preventative program, focused on waste minimization, waste management standards, and compliance monitoring and designed tominimize or eliminate the need for corrective action at dangerous waste management. facilities. In designing a state corrective action program, Ecology has attempted to find abalance between the preventative and remedial aspects ofdangerous waste regulation. ,- The term "corrective action" refers to federal requirements stemming from the 1984 Hazardous and SolidWaste Amendments (HSWA) to the federal Resource Conservation and Recovery Act (RCRA). The HSWA amendments significantlyincreased the federal requirements on people who generate or manage hazardous waste by promulgating statutory requirements for, among other things, corrective action at hazardous waste management facilities. In the legislative history of HSWA, Congress noted that a significantnumber ofhazardous waste management facilities that received RCRA permits were becoming Superfund cleanup sites due to releases ofhazardous waste and constituents from non-RCRA units. Congress also noted that the stringent waste management requirements passed under core RCRA only addressed wastes generated and managed after the Act and did nothing to address past waste management activity. By imposing corrective action requirements on owners and operators ofhazardous waste management facilities, Congress provided EPA a mechanism to address hazardous waste contamination without depleting the publiclyfundedSuperfund.

73

### In-)lJ1y, 1985,EPApublished 

### th:e first HSWA Codification-fule(50FR 28702),including regulatory language for corrective action at solidwaste management units (40 CFR § 264.101).TheJuly,'1985,Federai 'regulations,.requireowner/cperators of facilities seeking a perinitfor the treatment, storage or disposal'ofhazardous waste to: 1) Institute corrective action as necessary to protecthuman health and the environmentfor allreleases-ofhazardous waste'and constituents from any and all solid waste , management units at

## the facilityregardless of the time at whichwaste wasplaced in such units,and 2)Specify corrective action,-schedules ofcompliance for such corrective action, and assurances of financial responsibility for completing corrective action in all final 

### RCRApermits. " In December, 1987, (52 FR 45788)EPA amended the regulatory requirements for corrective action, adding a requirement for owner/operators of facilities seeking a RCRA permitfor the treatment, storage or disposal ofhazardous waste to: Implement corrective actionsbeyond the facility propertyboundarywhere necessary to protect human health and the environment, unless the owner/operator could demonstrate to EPA's satisfaction that, despite the owner/operator's best efforts, they were unable to obtain the necessary permission to undertake such actions, and to take on-sitemeasures to address such releases as determinedbyEPA on a case-by-case basis, and to provide assurances of financial responsibility for such corrective action. ' In July, 1990 (55 FR 30798) EPAproposed detailed regulations for corrective action, known as "draft Subpart S",referring to their draft status and to their anticipated subpart 

# 0 in 40CFR Part 264. Draft Subpart S has not yetbeen completely finalized, however EPAis using portions ofthe proposed rules as guidance in implementing corrective action requirements. On February 16, 1993, (58 FR 8658) EPA finalized regulations governing corrective action managementunits (CAMUs) and corrective action temporary units (TU

### s). ' Prior to developing a corrective action authorization strategy, Ecology considered EPA's corrective action implementation and observed some duplication of effort between EPA's Superfund and RCRA programs. Ecology believes such duplication of effort is not efficient, and can cause inconsistency withinEPA and confusion in the regulated community.' hi addition, since many contaminated sites have cleanup responsibilities underboth RCRAand Superfund, facilityowner/operators are potentially liable for two environmental cleanups, a Superfund cleanup and a RCRA corrective action. Ecology observed a similar potential for "doublejeopardy" between RCRA corrective actions and MTCA cleanups. In considering a state corrective action program, Ecologyquestioned the efficiencyofestablishing a new cleanup program for dangerous wastefacilities when effective cleanup standards and procedures were already in place underthe Model Toxies Control Act. In orderto address these concerns, Ecology and EPA working in partnership developed the Alternative Authorities Initiative. The Alternative Authorities Initiative

# was established to provide a mechanism for Ecology to use its state "Superfund" authority (MTCA) to compel corrective actions at RCRA facilities. Ecology is applying for authorization of a corrective action program which relies in part on the Model Toxies Control Act (MTCA) regulations to implement 74 

# ()

# •

•

• corrective action requirements. This will enable Ecology to ensure that corrective actions are performed and completed in a manner consistent with existing State cleanup requirements, and will significantly reduce the potential for "doublejeopardy" at dangerous waste management facilities. The Alternative Authorities Initiative represents a truly innovative and cooperative effort between state and federal agencies to untangle the complexities ofenvironmental cleanup requirements. This Will be the first EPA authorization ofa corrective action program relying on an existing state cleanup authority. It is hoped that this program will serve as a national model for corrective action authorization. Using this approach Ecology intends to: 1) Reduce duplication of effortbetween Ecology's Toxies Cleanup and Hazardous Waste Programs; 2) Enhance agency-wide consistency by conforming cleanup requirements and procedures for RCRA

.and non-RCRA facilities; 3) Reduce regulatory confusion; 4) Achieve more timely

agency-overseen cleanups through implementation ofMTCA's cost-recovery provisions; and 6) Save significant resources usually associated with "start-up" ofa new regulatory program. It isimportant to note that corrective action requirements only apply to owner/operators of facilities which treat, store, or dispose of dangerous waste in a mannerwhich requires a permit under the dangerous waste regulations (including facilities subject to federal permit-by-rule). Dangerous waste generators who have operated in compliance with the generator regulations are not subject to corrective action.

. Comment237: One commenter requested clarification ofEcology's intent in proposing the provision at WAC 173-303-646(3)(c).

. . Response: Ecology's intent is to emphasize that the MTCAban on administrative review remains in effect when corrective action requirements imposed pursuant to M'!CA are incorporated by reference into RCRA permits. Comment238: Several commenters asserted that the qualifying phrase, "the Director may choose to designate no CAMUs at a facility" proposed at WAC 173-303-646(4)(a) was unnecessary and suggested Ecology remove the language from thefinal rules. Response: Ecology's intent in'promulgating the phrase, "the Director may designate no CAMUs at a facility." was to emphasize the discretionary nature ofCorrective Action Management Units (CAMUs). Ecology agrees that the phrase is confusing and has deleted it from the final rules. In order to retain emphasis on the discretionary nature of CAMUs, Ecology has inserted the phrase "choose to" in the preceding language. Revised WAC 173-303-646(4)(a) reads: "For the purpose ofimplementing corrective actions required byW AC 173-303-646(2), the Directormay choose to designate an area at a facility as a corrective action management unit. Designation of a CAMU shall be in accordance with the provisions of this subsection and WAC 173-303-646(5) and (6). The Directormay choose to designate one or more.CAMUs at a facility." Ecology has also revised language proposed at WAC 173-303-646(5)(b) to emphasize the discretionary nature of CAMUs. Revised WAC 173-303-646(5)(b) reads: "When

75desilWatinK a CAMU. the Director shall specifyrequirements for the CAMU including the following:" In addition, ·Ecology has revised the proposed definition of a CAMU to be consistent with the federal CAMU definition. The revised state CAMU definition at

### wAc 173-303- 040 reads: "Corrective action management unit" or "CAMU" means an area within a facility that is designated by the Director pursuant to WAC**17~-303-646(4)(5)** and (6) for the purpose ofimplementing the corrective action requirements ofWAC 173-303-646(2). A CAMU shall only be used for the management ofremediation wastes pursuant to implementinK such corrective action requirements at the facility.

.. Comment239: Several commenters asserted that the qualifyingphrase, "however, when necessary to protect humanhealth and the environment, the department may require remediationwaste to meet land disposal standards before placement in a CAMU" was unnecessary and would discourage the flexibility CAMU regulations were intended to provide. 

# o

Response: The intent of the phrase was to emphasize Ecology's ability to specify any corrective action management unit (CAMU) standardwhichthe department believes necessary to ensure protection ofhuman health and, the environment. These standards couldpotentiallyinclude conventional RCRA standards such the land disposal restrictions. Upon reconsideration, Ecology agrees that the language could be construed to discourage creative cleanup solutions and has removed the phrase from the final rule. .

# 0 Revised WAC 173-303-646(4)(b) reads: "Placement ofremediation wastes, as defined in WAC 173-303-040 into or within a CAMU does not constitute land disposal ofdangerous waste." Comment240:' Many commenters expressed concern that Ecology was extending corrective action requirements to allreleases instead of limiting corrective action to releases from solid waste management units (SWMUs). Most commenters who expressed this concern.asserted that requiring corrective action for all releases constituted significantexpansion of the federally mandated corrective action program and suggested Ecology limit corrective action responsibility to releases from SWMUs. Response: Ecology believes that concerns regarding "new"corrective action requirements result from some confusion about the proposal. In order to address these misunderstandings, we will clarify the corrective action proposal in some detail. Ecology views the proposed corrective action program as a beneficial consolidation of existingstate (MTCA) and federal (Corrective Action) cleanup requirements. Ecology wishes to emphasize that, in our view,requiring dangerous waste management facilities to institute corrective action for allreleases does not subject the regulated community to any additional or new requirements. Ecology willapply for federal authorization of a corrective action programwhich relies on the Model ToxiesControl Act Regulations to compel corrective action requirements. Known as the Alternative Authorities Initiative, 

# C')\ the intent is to recognize existing state cleanup regulations and policy and to work within thatframework to address RCRA corrective action requirements. Ecology believes that
76

# •

•

• usingexisting state regulations to compel corrective actions is much more efficient than promulgating new, duplicative cleanup requirements for dangerous waste management facilities. Federal authorization (scheduled for early 1994) will recognize that the stringent and protective cleanup requirements ofMTCA are adequate to fulfill RCRA corrective action requirements, provided RCRA-only concerns (such

## as characterization of individual solid waste management units) are addressed. The resulting orders willbe a hybrid ofRCRA corrective action requirements presented in the context of a MTCAtype cleanup. Ecology emphasizes that the Alternative Authorities Initiative does not involve deferral of corrective action requirements to an alternate state authority. Rather, the alternate state authoritywill be utilized in implementing corrective action requirements. Corrective action requirements imposed in orders or consent decrees issuedpursuant to MTCAwillbe incorporated into RCRA operating and post-closure permits, at the time ofpermit issuance. The Alternative Authorities Initiative willbe administered and implementedby staff in Ecology's Hazardous Waste and Toxies Reduction Program.

. Federal corrective action requirements stem from Congress' finding that; due to RCRA's inability to address some releases, permittedhazardous waste management facilities were potentially becoming Superfund cleanup sites. In the Legislative History to RCRA Section 3004(u), Congress wrote: "Current EPAregulations do not address all releases of hazardous constituents from solid waste management units at facilities receiving permits under (RCRA Section) 3005(e). This could likely result in a situation ofEPA issuing a final permit to a facility which is causing ground water contamination from inactive unit, without the permit addressing that contamination in any way.The Committee believes that.all facilities receiving permits should be required to clean up all releases from all units at the facility, whether or not such units are currently active...Unless allhazardous constituents releases from solid waste management units at permitted facilities are addressed and cleaned up the Committee is deeply concerned that

. . many more sites will be added to the future burdens of the Superfund program with little prospectfor control or cleanup. The responsibility to control such releases lies with the facility owner and operator and should not be shifted to the Superfund program, particularly when a final permit has been requested by the facility." (See, H.R. Rep. No. 198, 98th Cong., 1st Sess. 20, 61,reprinted in 1984 U.S. Code Congo & Admin. News 5576,5579, 5620.) As a result, in part, of the HSWA amendments, EPA now has the ability to address allreleases ofhazardous waste and constituents at facilities regulated underRCRA. Ecologysimilarlybelieves that facilities seeking or required to have permits to treat,

.store, or disposedangerous waste, including facilities operating under interim status, should be required to address releases ofdangerous waste and dangerous constituents prior to or as a condition ofpermit issuance. To ensure that such facilities do not become-a potentialburden to the State, Ecology firmly believes that such cleanups should be accomplished in a manner consistentwith existingstate cleanup law and regulations (Model ToxicsControl Act)

. Regarding commenters specific suggestion that Ecology limitcorrective action requirements to releases from solid waste management units, Ecology rejects the premise
77that dangerous waste management facilities should be allowed to operate with continuing 

# 0
releases to th t e**~ntsviroEcnmlent ~~IPltY**  becauthse**~~;h** releasbes cannotbe**trac~d** tolwaste t . managemen umts. 0 ogy rat s 0 see e umerence etween an ongomg re ease 0 groundwater from a processing unit and an ongoing release from a waste management unit. Both could result in potential adverse impacts to human health andthe environment and place a cleanup burden on the State at the end ofthe operating life of the facility. Ecologybelieves that limiting corrective action requirements to releases which can be traced to waste management units would essentially hold dangerous waste management facilities to cleanup requirements less stringent than the requirements imposed at non-dangerous waste management facilities (including dangerous waste generators) conducting independent or agency overseen MTCA cleanups by allowing dangerous waste management facilities to defer a portion oftheirlegitimate cleanup obligations.

. Ecology believes many of the concerns expressed over the extension ofcorrective action jurisdiction to cover all releases stem from a perception that any discharge of a hazardous substance, no matter how minor, willbe subject to a fully overseen agency cleanup or that dangerous waste management facility permits willbe "held up" during such cleanups. One commenter wrote, "Ecology should explain how it intends to make these programs dovetail in a way that willnot tum every small cleanup into a 'federal case' requiring a permit amendment, public hearings, etc." Ecology recognizes that active remediation may not be necessary at every facility potentially subject to state cleanup requirements; similarly, EPA has recognized that 

# 0 active remediation may not be necessary at every facility subject to RCRA Corrective Action. In the responsiveness' summary to the Model Toxics Control Act, Ecology wrote: 'The process leading from the identification ofelevated levels ofhazardous substances to an actual cleanup involves several steps. At the first step, Ecology may receive a report of a release and must perform an initial investigation. Following the completion of the initial investigation, Ecology must determine whether the release poses a threat or potential threat to human health and the environment. The (MTCA) cleanup standards would be one source ofinformation used to make thisjudgement. However, Ecology would also consider the areal extent ofcontamination, the magnitude of any cleanup standard exceedances, and the site characteristics in making a determination that further study is needed. The same factors would alsobe considered when performing a site hazards assessment. At this**~tage,** additional information would be collected to further define contamination levels, potential populations at risk, potential exposure pathways, etc. As with the initial investigation, an exceedance of the cleanup standards does not automatically trigger a site listing or site cleanup. A determination that a site constitutes a threat or potential threat to human health and the environment is based on a number of factors in addition to the level of contamination." Ecology proposes to rely on an administrative process based closely on the federal corrective action process. The Alternative Authorities administrative process provides the department many opportunities to remove from consideration facilities or units which 

# C ;/' the agency has found do not pose a threat or potential threat to human health and the· --" environment. Like the federal corrective action pipeline, the Alternative Authorities 

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• administrative process was developed to ensure that corrective actions taken are commensurate with the risks posed by a givenfacility or unit. In the administrative process, each stage serves as a screen sending forward to the next step those facilities or units at a facility which Ecology has found to be a threat or potential threat to human health or the environment and eliminating from further consideration units and facilities which we have determined do not pose a threat or potential threat to human health or the environment.

. The Alternative Authorities Initiative administrative process begins with an Agencyconducted RCRAFacility Assessment (RFA), which is analogous to the MTCA Initial Investigation/SiteHazard Ranking process. The RFA includes: (1) a desk top review of availableinformation of the site; (2) a visual site inspection to confirm available information on solid waste management units at the site and to note any visual evidence of releases; and (3) in some cases, a sampling visit, to confirm or disprove suspected releases. Based on information gathered during the RFA or otherinformation, Ecology may determine that no further corrective action isrequired at the facility or will assign each facility a corrective action priority ranking. The second stage of the corrective action process is the RCRA FacilityInvestigation (RFI). The RFI is analogous to the Remedial Investigation (RI) process under MTCA. The purpose of an RFI is to characterize the nature and extent ofcontamination at the facility. Typically, the RFI will be focused on specific concerns identified in the RFA and will be staged to avoid unnecessary analysis. The RFI must specificallyaddress and characterize solid waste management units which have been identified as releasing or potentially releasing dangerous waste or dangerous constituents. The third stage of corrective action begins when Ecology determines, on the basis of information generated during the RFI or otherinformation, that cleanup is likely to be necessary. In the third stage of corrective action the facility owner/operatorwill be required to conduct a Corrective Measures Study (CMS) to identify and assess possible remedial technologies for the facility or units. The CMS is analogous to the Feasibility Study (FS) process under MTCA. IfEcology determines remediation is necessary, the Agency will specify a remedial alternative, cleanup levels, and points ofcompliance in a draft Cleanup Action Plan (CAP). The Cleanup Action Plan is analogous to the Statement ofBasis in the Corrective Action process. The draft Cleanup Action Plan will be made available for public review and comment. Following public review and comment, Ecology will finalize the Cleanup Action Plan. Corrective action requirements which are imposed in advance ofpermitting will be incorporated into RCRA operating and/or post-closure permits at the time ofpermit issuance. Ecology wouldfurther note that application of corrective actionjurisdiction is mandated only "where necessary to protect human health and the environment". Ecology's intent in application of corrective action requirements will be to ensure that releases ofdangerous. waste and dangerous constituents at facilities seeking or required to have a permit are

79adequately addressed or remediated so that such facilities do not pose an ongoing threat 

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to human health or the environment. \ Com11U!nt 241: Similarto the concern expressed over corrective action for all releases, many commenters asserted that the proposed definition ofdangerous constituentwas overlybroad. Most commenters who expressed concern over the scope ofthe proposed definition suggested that Ecology limit dangerous constituents to those defined by 40 CFR Part 261 Appendix 8 and 40 CFR Part 264 Appendix 9. Response: In order to ensure consistency between MTCA cleanups and corrective action cleanups, Ecologybelieves it is important to include in the definition ofdangerous constituent all substances potentially regulated by MTCA Although Ecology'sjurisdiction under the proposed definition ofdangerous constituent is broad, by specifically referencing constituents listed in 40 CFR Part 261 Appendix VIII and 40 CFR Pari 264 Appendix IX, Ecology intends to emphasize those constituents as the substances most likely to be ofconcern at dangerous waste management facilities. Furthermore, given the limited resources typically available for implementing

. environmental cleanup, it is Ecology's intention to focus corrective action investigations on the subset ofdangerous wastes and dangerous constituents which, based on available information, are likely to have been releases at a particular site. Only where very little is known ofwaste characteristics or where there is the potential for a wide spectrum of dangerous wastes or constituents tobe released (such as, at a commercial dangerous 

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waste management facility) would facility owner/operators routinely be required to perform extensive analysis for a broader spectrum ofconstituents. Comment 242: One commenter suggested Ecology use an existing term to define the universe ofsubstances subject to corrective action. Response: Ecology recognizes that the proposed definition of dangerous constituent and existing definition ofdangerous waste constituent may seemduplicative or confusing, however, to ensure that regulatory terminology precisely defines the intended universe of constituents subject to corrective action, we have retained the definition as proposed. Ecology recognizes that there may be inconsistencies in the current rules. It is because ofthose potential inconsistencies that Ecology proposed a definition ofdangerous constituent "for the purposes ofcorrective action" and placed the proposed definition at WAC 173-303-646(c) instead ofWAC 173-303-040. Ecology regrets that conforming the regulatory use ofthe terms dangerous constituent and dangerous waste constituent is" beyond the scope ofthis rule-making, however, we hope to address these inconsistencies during upcoming regulatory reform initiatives. Comment 243: One commenter asserted that the corrective action regulations should not apply to radionuclides or the radioactive components ofmixed wastes since those substances are addressed under the Atomic Energy Act (AEA). 

# O ·""I Response: Ecology agrees that radionuclides and the radioactive component ofmixed waste are addressed under the Atomic Energy Act. We also recognize that radionuclides
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• are included in the definition ofhazardous substances promulgated at WAC 173-340-200, and byreference in the definition of dangerous constituent proposed at WAC 173-303- 646(c). We understand that these references could cause the appearance ofjoint regulation of radionuclides, however, it is Ecology'sintent to complement rather than supersede AEAregulations. For example, the Department ofEnergy shares radionuclide datawith Ecology in orderthat Ecology can consider allproperties of mixed waste subject to dangerous waste regulations and can respond properly to spills of mixed wastes. The department sees no compelling reason to specificallyexempt radionuclides from the definition of dangerous constituent at this time. Ecology willconsider cleanup actionstaken under other statutory and regulatory authorities,- including the AEA, when assessing the necessity for corrective action. Comment244: One commenter specificallyquestioned Ecology's legal authority to include hazardous substances in the proposed definition ofdangerous constituent, asserting that Ecology's legal authority under RCW Chapter 70.105 was limited to hazardous wastes. Response: Ecology relies on both RCW Chapter 70.105 and RCW Chapter 70.1050 for the statutory basis ofthe Dangerous.Waste Regulations. Although the proposed corrective action regulations may seem to rely more heavily on RCW Chapter 70.1050, Ecology notes that they are consistent with the statutory mandate at RCW 70.105.005(1), which states, in part: ''The health and welfare of the people ofthe state depend on clean and pure environmental resources unaffected byhazardous waste contamination." Comment245: Four commenters expressed concern that the preamble and proposed regulatory language seemed to preclude voluntary corrective action. One commenter wrote, "the preamble appears to prohibit an owner/operatorfrom conducting

# aMTCA independent cleanup action in an attempt to achieve site conditions that would preclude or satisfy corrective action. The. draft language contains no specific language about independent actions. We assume the intent of the preamble language is to emphasize that agencyapproval/acceptance ofindependent actions willbe required within the. corrective action context, rather than to prohibit such actions. The draft language should be modified to reflect this emphasis." Response: Ecology apologizes for the confusion causedby our imprecise language. Our intent was, indeed, to emphasize that agency approval/acceptance ofindependentMTCA actions would be required within the corrective action context. Ourintent was not to discourage or preclude in any wayindependent cleanup actions, which Ecology believes often provide for timely, appropriate, protective and cost-effective remedial activities. Ecology emphasizes that MTCAindependent actions which have, as one oftheir goals, satisfaction of corrective action obligations must include certain threshold corrective action requirements. Such requirements may be incorporated into independent cleanups through MTCA's provisions for application ofapplicable and relevant and appropriate requirements (ARARs). Threshold corrective action requirements include: 1) The independent corrective action cleanup must address all contiguous property under the control of the facilityowner/operator; 2) The independent corrective action cleanup
81must explicitlyaddress all current and historic solid waste management units (including RCRAregulated units) at a facility and must assess those units releases and/or potential releases. Information on agencyidentified solidwaste management units at a particular dangerous waste management facility may be obtainedby requesting a copy ofthe RCRA Facility Assessment (RFA) Report for that facility. Such requests should be made to the appropriate Regional Office of the Department or by contacting the Freedom OfInformation Offices at EPA Region 10. Not all dangerous waste management facilities have undergone RFAs; and 3) The independent corrective action cleanup must address releases which have migrated beyond the facilityboundary. Ecology willaddress this issue more completely through development ofguidance for owner/operators ofRCRA facilities who wish to include corrective action obligations in their implementation of an independentMTCA cleanup. In a more general sense, Ecology wishes to emphasize that completion of an independent cleanup cannotbe assumed to automatically fulfillcorrective action requirements. As discussed in ourresponse to comments #240 and #250, Ecology (and/orEPA) must independently assess each dangerous waste management facility in the corrective action context to determine if corrective action is necessary given facility specific conditions. In the case ofa facility which had undergone a complete independent MTCA cleanup such that facility conditions did not'warrant additional corrective action, Ecology could remove the facility from corrective action consideration following the agency conducted RCRA FacilityAssessment (RFA).
Comment246: Several commenters objected to corrective action for allreleases and the definition ofdangerous constituent on the grounds that Ecology had not adequately demonstrated the need for departure from federal corrective action regulations or had not adequately evaluated the potential financial impacts ofcorrective action. One

.commenterwrote, "(we) strongly oppose any new state-only requirements that are not accompanied by detailed analysis of the need for exceeding federal requirements and the costs of.such regulations, includingboth public and.private costs." Response: Ecology's strategy for implementation of corrective action is discussed in some detail in the response to Comment #240. Ecology believes thatthe proposed corrective action program represents a consolidation of existing regulatory obligations and does not involvepromulgation of "new"requirements. Ecology's proposed corrective action regulations are based on existingregulations promulgated pursuant to MTCA. A review has indicated there are no new requirements and that this consolidation of sets of requirements in one rule may reduce costs. This cost reduction could be substantial for sites that under current rules might have been subject to two clean-ups. A small business economic impact statement is not required for rules that lower costs. 

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Comment247: Several commenters suggested Ecology deferboth adoption ofcorrective action requirements for all releases and the proposed definition ofdangerous constituent until it had prepared a detailed implementation plan and made such plan available for. 

# 0 . public review and comment.
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• Response: Ecology discussedprogram implementation in our response to comment #240. While Ecologyunderstands the concern in the regulated community over the scope and application of corrective action authority, we plan to address those concerns through additional outreach and guidance rather than delay adoption ofcorrective action regulations. Regarding a detailed corrective action implementation plan, Ecology is currentlypreparing a detailed application for federal authorization of a State corrective action program based on the proposed regulations. The draft application includes detailed discussions ofpotential workload and resource impacts on Ecology's Regional and Headquarters offices and of corrective action implementation. The completed authorization application Willbe formally submitted to EPA Region 10 for consideration. EPARegion 10 will make a preliminary authorization determination and make such determination available for public review and comment through publication in the Federal Register. Afterit has been completed, a copy of the authorization application will be available for public review. Comment 248: One commenter expressed concern that detailed requirements for

° corrective action management units would be aburden to small-scale remedial projects. Response: Comment noted. Ifan owner/operatorbelieved a CAMU was unnecessary for his/her remedial project or believed a CAMU would constitute a burden to the remedial project, he or she isunder no obligation to propose or construct a CAMU. Due to the discretionarynature of corrective action management units, Ecology believes it is unlikely their requirements willconstitute a burden to small-scale remedial projects. Comment249: Three commenters asserted that inclusion ofpetroleum products in the proposed definition of dangerous constituentwas problematic, "causing, for example, RCRA permits to require cleanup ofpetroleumhydrocarbons, which are exempt from RCRA."

° Response: RCRA does not include a blanket exemption for petroleum products; releases ofpetroleum and petroleumproducts at dangerous waste managementfacilities are subject to RCRA corrective action. Ecology believes commenters may have been referring to the RCRA exemption from the requirement to conductTCLP testing on certain petroleum contaminated soils. However, this exemption applies only to waste generated during clean-up and does not affect actual clean-up obligations. Comment250: One commenter requested clarification of the relationship ofcorrective actions imposed pursuant to MTCA to non-corrective action MTCA cleanups and

° asserted that, "the RCRA program should not only use MTCAfor enforcement, but should recognize cleanups achieved under MTCA. Now that Ecology is making no further actionletters available, TSD operators who have performed an independent cleanupunder MTCA and had it approved should not face possible RCRA corrective action. Conversely, the regulations should specifythat when a party has performed a RCRA closure or corrective action, Ecology will not apply MTCA later. This coordination is especiallyimportantin light of the proposedhuge expansion ofRCRA authority which results from including petroleum as a hazardous constituent and covering all releases, not just those from a SWMU. This definition would make RCRA corrective
83action authority andMTCA authorityvirtually coextensive at a TSD site. The two programs should explicitly be integrated." Response: The Hazardous Waste and ToxiesReduction Program fully intends to recognize MTc:A cleanups (independent or agency overseen) which.have, through their completion,'achieved site conditions whichpreclude or satisfycorrective action requirements. Ecology believes that facilities which have undergone such MTCA cleanups can appropriately be removedfrom consideration for corrective action based on information gathered during the agency conducted RCRAFacility Assessment (RFA). As discussed 

### in more detail in our response to comment#240, Ecology believes the administrative process associated with cortective action offers many opportunities to remove from consideration facilities which the department has determined do not pose a threat or potential threat to human health and the environment. In making these determinations, Ecology will consider cleanups conducted under otherregulatory programs or authorities. 

# o

In a moregeneral sense, this comment points to a fundamental difference between RCRA Corrective action and MTCA cleanup. TheMTCA cleanup process begins following agency receipt ofinformation indicating a threat or potential threat to human health or the environment exists at a given facility. Consideration of a site for MTCA cleanup is not automatic, the agency must decide, based on some information, that a given site merits consideration under MTCA For this reason, cleanup programs are typicallyconsidered reactive regulatory programs. RCRA, however, is typically**C~** considered a preventative, or pro-active, regulatory program. RCRA corrective action ./ regulations require that each dangerous waste management facilitybe considered for corrective action cleanups as a condition of it's dangerous waste management activities. That is, the corrective action process begins automatically at all dangerous waste management facilities to ensure that such facilities will not, at the end of their operating life,become MTCA (or Superfund) cleanup sites. In crafting a state corrective action program, Ecology struggled to retain the important conceptual differences between MTCA cleanups and RCRA corrective actions while ensuring consistencybetween actual cleanup activities. Conforming the scope of cleanups and cleanup standards was one of the department's primary goals in developing the Alternative Authorities Initiative. Conforming cleanup standards and requirements results in more efficient agency administration ofcleanup programs; however, it cannot eliminate thejointjurisdiction present at most dangerous waste management facilities, it can only reduce and mitigate the areas ofpotential conflictbetween such jurisdictions. Dueto the conceptual differences between the MTCA and RCRA programs, compliance with RCRA Corrective Action requirements, even to the extent they rely on MTCA standards, cannot automaticallybe deemed compliance with MTCA,just as compliance withMTCA cannot automaticallybe deemed compliance with RCRA corrective action. To summarize, Ecology emphasizes that if facilityowner/operators, through compliance with any given obligation, achieve site conditions which legitimately preclude or satisfy 

# 0· similarrequirements under another obligation, there is no reason to believe Ecology will require duplication of effort. However, in.the case of a MTCA cleanup, Ecology must 84

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• individuallyreview each site to ensure that corrective action is not required; in the case of a corrective action cleanup, Ecologycannot guarantee that additional cleanup under ) MTCA will never be necessary. In some cases, corrective action cleanups may occur at

facilities which are listed on MTCA's hazardous sites list. Ecology is committed to developinginternal agreements and guidance to facilitate removing such facilities from the hazardous sites list, as appropriate, at completion of their corrective action activities; Comment251: One commenterurged Ecology to make Corrective Action Management Units available to owner/operators conducting voluntary cleanups. Response: Ecology is committed to making the flexible remedial solutions which the CAMU regulations were designed to encourage available as appropriate. However, federal CAMU regulations at 40CFR Part 264 subpart S require that CAMUs be formally designated and approvedbyEPA or an authorized state in the context of an agency overseen, facility-wide cleanup. When designating (or approving) a 

### cAMu, EPA or the authorized state must specifydetailed CAMU design, operating, closure and postclosure requirements. Additionally,EPA or the authorized state must make CAMU determinationsand conditions available for public review and comment prior to CAMU approval. The detailed agencyapproval and oversight.required byEPA for designation of a CAMU precludesits use byfacility owner/operators during an independent (or voluntary) cleanup. Comment252: One commenter asserted that Ecology should, "encourage owner/ operators to fulfill non-HSWA corrective action requirements through implementation of voluntary cleanups conducted under MTCA." Response: Non-HSWA corrective action refers to requirements to conduct corrective action for releases to the uppermost aquifer from RCRA regulated units, promulgatedby Ecology at WAC 173-303-645. As under the federal system, WAC 173-303-645 requires a three phase program for detecting, characterizing, and responding to releases to the uppermost aquifer from regulated units. In the first phase, Detection Monitoring, facility owner/operators must monitor groundwater at the downgradient edge ofthe regulated unit boundary for indicatorparameters or constituents. Indicator parameters and/or constituents are chosen based on their ability to indicate the likelihood of a release. Ifa release is indicated through detection of an indicator parameter and/or constituent, the facility owner/operatormust test groundwater for constituents listed in 40 CFR Part 264 Appendix 

### IX,and establish a groundwater protection standard for every constituent detected abovebackground levels. Confirmation of a release to groundwater triggers WAC 173-303-645 phase 2, Compliance Monitoring. During Compliance Monitoring facility owner/operators are required to perform additional investigations to characterize the nature and extent ofgroundwater contamination. After the groundwater has been. fully characterized facilityowner/operators may enter the third phase of WAC 173-303- 645, Corrective Action (also known as non-HSWA corrective action) and must remove or treat in place all contaminants which are present in concentrations above the groundwater protection standard.

85The requirements of WAC 173-303-645 are analogous to federal requirements at 40 CPR 

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Part 264 SUbpart F, and prescribe a specific approach to detection, characterization and / cleanup ofcontaminated groundwater at regulated units. These requirements are considered self-implementing, in that facilityowner/operators are responsible for constructing and maintaining a detection monitoring system as a condition ofoperating a RCRA regulated unit. Although the requirements are considered self-implementing, as facilityowner/operators begin Compliance Monitoring and Corrective Action, a high degree of agency oversight is typically provided (e.g., facility owner/operators are required to report the detection ofindicator constituents; Ecologywill review and approve compliance monitoring plans). Neither the current nor the proposed regulations specificallypreclude voluntary non-HSWA corrective action. Although it is feasible that a facilityowner/operator might attempt to implement the remedial requirements of WAC 173-303-645 pursuant to a voluntary MTCA cleanup, Ecology considers it unlikely, since the agency will,under the existing regulatory scheme, already be involved in oversight of compliance monitoring requirements. In order to ensure consistency in implementation of HSWA and non-HSWA corrective action requirements, Ecology has proposed amendments at WAC 173-303-645(11), to allowowner/operators of facilities subjectto non-HSWA corrective action to fulfill the requirements for remediation ofreleases through an appropriate non-HSWA corrective action cleanup order, issued, in part, pursuant to MTCA. Ecology's intentin proposing this amendment was to provide for coordination ofHSWA and non-HSWA corrective actions at any given facility. The amendment allowing Ecology to use MTCA to compel

. 

# c-")\ the remedial portions ofnon-HSWA corrective action in no way alters any facilities' obligations to comply with existing WAC 173-303-645requirements. Any non-HSWA corrective action activities compelled prior to permitting would be incorporated into facilityoperating or post-closure permits at the time ofpermit issuance. Comment 253: Several commenters requested clarification ofthe requirements for corrective action financial assurance. One commenter specifically asserted that, "(since) no mechanisms for estimating costs or determining financial responsibility are provided (the) impact ofthe requirements is uncertain." Response: Financial assurance for completion of corrective action activities is required by EPAwithin 120 days of selection of a final remedy. Financial assurance for corrective action (FACA) is also required by EPA to ensure that a facility owner/operatoris able to implement any approved interim or conditional remedies. Additionally, it isEPA Region 10's policy to require corrective action financial assurance to demonstrate that a facility owner/operatorhas the ability to complete an agency approved RFI and/or CMSwork plan.

. Detailed regulations for Financial Assurance for Corrective Action (FACA) were proposedby EPA on October 24, 1986. These proposed regulations are being used as agency guidance pending the finalization ofnational corrective action regulations. Under the federal guidelines, corrective action costs are estimated in two parts, (1) a

### year-by- 

# U"\ year current cost estimate ofrequired corrective actions in undiscounted current dollars, and (2) the sum ofthese year-by-year estimates of corrective action costs. FACA cost 86

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. current dollars or an inflation factor derived from the most recent annual Implicit Price

Deflatorfor the Gross National Product published by the Department ofCommerce. EPA requires that corrective action costs be estimated usingthird-party costs rather than first-party costs (i.e., costs ofcontractorlabor rather than the owner/operator's own labor). Under EPA's guidance, facility owner/operatorsmay demonstrate financial assurance through one or more of the following mechanisms from 40CFR 264Subpart Hand 40CFR 265SubpartH, as applicable: trust fund, surety bond guaranteeing performance, letter of credit, financial test, or corporate guarantees. Ecology intends to implementFACA requirements for facility investigations on a case-bycase basis; financial assurance for completion ofremedies will be required in a manner consistent with the federal guidelines discussed above. In the context of the Alternative Authorities Initiative, Ecologyanticipates that FACAwill be imposed in most cases pursuant to WAC 173-340-440(6) which reads: "Financial assurances. The department l may require the potentially liable person to provide financial assurances, through a trust fund or equivalent financial mechanism approved by the department, sufficient to cover all costs ofoperation and maintenance including compliance monitoring and undertaking appropriate corrective measures. It.is the department's expectation that such assurances' will be required wherever the cleanup action includes containment and in other appropriate circumstances." Additional financial assurance requirements could apply, as appropriate, using MTCA's provisions for incorporation of applicable, relevant and appropriate requirements. Ecology ispreparing additional guidance on financial assurance for corrective action and will make such guidance available as soon as possible. EPAhas published detailed guidance for estimating closure and post-closure costs. Ecology believes these guidelines couldbe extrapolated to address corrective action cost estimating, as appropriate. Additionally, the following reference materials maybe useful in estimating corrective action costs: Means Mechanical Cost Data, Means Construction Cost Data, and Means Site Work Cost Data. Each is published annually by the Robert SnowMeans Company. Comment254: Two commenters suggested that Ecology revise the proposed definition of facility to eliminate reference to "motor vehicles, rolling stock, vessel or aircraft" and limit the revised definition to "realproperty, improvements and appurtenances." Response: Comment noted. Since one of the primary goals of the Alternative Authorities Initiative and the proposed amendments is to ensure consistencybetween RCRA corrective actions and MTCA cleanups, Ecology sees no reason to limitthe MTCA definition as suggested. Ecology reminds commenters that corrective action applicability only extends to facilities which are seeking or required to have a permit to manage dangerous waste and therefore would typically·not include mobile sources unless such sources could be shown to have releases or potential releases ofdangerous waste or constituents at a given dangerous waste management facility. Comment 255: One commenter asserted that Ecology's proposed regulations requiring corrective action at interim status facilitieswere inappropriate giventhat EPAwill,retain
87corrective action authority under RCRA Section 3008(h). This commenter suggested that a more reasonable approach wouldbe forEcology to "enterinto a memorandum of understanding withEPARegion 10 to assure that (Ecology) has adequate opportunity to participate in the 3008(h) order process." Response: Ecology is sensitive to the concerns of the regulated community regarding continued federal implementation ofcorrective action pursuant to 3008(h) authority. As part ofEcology's application for federal authorization of a corrective action program, we are negotiating with EPARegion 10 to include 3008(h) notification and comment provisions in the State/EPA Memorandum ofAgreement. It is the stated goal of Ecology and EPAto work as partners to ensure timely, effective and efficient implementation of the RCRA program, including provisions for RCRA corrective action, in Washington. Comment256: One commenter requested clarification regarding the event or mechanism which'would trigger the obligation to institute corrective action. Response: Corrective action is triggered by an agency determination (based on an agency conducted RCRAFacility Assessment or otherinformation) that circumstances at the facility pose a threat or potential threat to human health and the environment and warrant investigation to determine the presence or extent ofreleases ofdangerous waste and dangerous constituents. Additionally, all operating and post-closure RCRA permits issued afterthe effective date of the HSWA amendments must contain provisions for (-) corrective action (as necessary to protect human health and the environment) and schedules ofcompliance for completion ofcorrective action activities. Facility 

### owner/operators who wish to conduct an independent cleanup in an attempt to achieve site conditions which preclude or satisfycorrective action requirements are encouraged to work closely with the department and to see the response to comment #243, above. Comment257: Two commenters suggested Ecology defer adoption ofany corrective action requirements until EPApromulgated final corrective action regulations pursuant to 40 CFR Part 264 Subpart S. Response: Comment noted. Given the uncertainty surrounding re-promulgation of detailed federal corrective action regulations and the existing "double jeopardy" at dangerous waste management facilities subject to both RCRAcorrective action and MTCA cleanup, Ecology believes it is imprudent to await additional federal regulations before addressing the cleanup situation in Washington. EPA Region 10 has strongly encouraged and supported Ecology's adoption ofcorrective action requirements and the Alternative Authorities Initiative. Ecology notes that EPArecently finalizedportions of proposed Subpart S, including the definition of facility for the purposes of corrective action, a definition ofremediation waste, and provisions for corrective action management units. These new federal corrective action provisions are reflected in Ecology's proposed rule amendments.

.Comment 258: One commenter expressed concern thatEcology would "cannibalize" existingresources to fund a state corrective action initiative.

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..Ecology believes that one of the many advantages to the Alternative Authorities Initiative is the ability of the agency to use the cost-recovery provisions of MTCA to fund corrective action oversight. Comment259: One commenter suggested Ecology defer adoption of corrective action for all releases until the upcoming evaluation of the state-onlyprogramis complete. &sponse: Commentnoted. Ecology has no plans to examine corrective action requirements in the context of the state-only program evaluation. Comment260: Several commenters expressed support for Ecology's adoption ofCAMU regulations. One commenterwrote, "(We) strongly supportinclusion of the corrective action management unit provisions in the regulation. This action will serve to expedite corrective actions and encourage utilization oftreatment technologies..." Response: Ecology acknowledges the support. Comment261: One commenter supported the use ofMTCAfor corrective action. Response: Ecology acknowledges the support. Comment262: One commenter expressed general concern regarding Ecology's proposed definition of facility for the purpose of corrective action, "I also think that the state should reviewtheir definition offacility for purposes of corrective action which is to include allproperty under the control of the permitted facility and that is a slightly different definition than the definition forfacility. I think that's a little bit unclear and perhaps not necessarily fair for facilities who are out trying to buy an entire quarter section just to protect their boundaries." Response: The proposed definition offacility for the purpose of corrective action is equivalent to the existing federal definition of facility for the purpose of corrective action. Ecology has adopted the corrective action definition of facility to ensure that state overseen corrective actions are consistent with federally overseen corrective actions and to support our application for federal authorization of a state corrective action program. Ecology agrees that the definition offacility for the purpose of corrective action is different from other definitions offacility in that, for the purpose ofimplementing corrective action that facility definition includes "all contiguous property". Other definitions of facility are typically construed to be limited to areas of the facility at which

.waste management activities occur.

Comment263: One commenterpointed out inconsistencies in use of language in Ecology'sproposed definition ofrelease and suggested revising the definition to read, in pertinent part, "...disposing ofdangerous waste or dangerous waste constituents as defined..." Response: Commentnoted. Ecology has made the suggested language change, however, the suggested use of the phrase dangerous waste constituent is inconsistent with Ecology's 89intent to include in the definition ofrelease all dangerous constituents as defined for the 

# C**~\** purposes ofcorrective action at WAC 173-303-646(2)(c). The revised definition of _/ release at WAC 173-303-040reads: ''Release means any intentional orunintentional spilling, leaking, pouring, emitting, emptying, discharging, injecting, pumping, escaping, leaching-dumping, ordisposing ofdangerous waste, or dangerous constituents as defined at WAC 173-303-646(1)(c), into the environment and includes the abandonment or discarding ofbarrels, containers and otherreceptacles containing dangerous wastes or dangerous constituents and includes the definition ofrelease at RCW 70.105D.020(10)." Comment264:

_ One commenterexpressed concern that the proposeddefinition of releases included "any"intentional or unintentional spilling, leaking, pouring, emitting...etc. The commenter asserted that the "literal application ofthis phrase is far too stringent." 

### Response: Comment noted. Ecology believes that corrective actions required should be commensurate with the risks to human health and the environment posed by circumstances at any given facility. As discussed in our response to comment #240, although thejurisdiction mandated by the definition ofrelease is, indeed, broad, application of corrective actionjurisdiction ismandated only ''where necessary to protect human health and the environment". Ecology notes that the state definition ofrelease is consistentwith the federal release definition proposed in draft Subpart S. The reference to the definition ofrelease at RCW 70.105D.020(10) is included to ensure thatcorrective action cleanups are conducted in a manner consistent with MTCA cleanups. Comment 265: One commenter expressed concern regarding the proposed definition of SolidWaste Management Unit (SWMU), asserting, "Ifthere were relatively small quantities ofmaterials containing hazardous substances releases in the past and that do not and will not present any clear risk to human health or the environment currently or in the foreseeable future, we believe those releases should not be included in the application of the definition of solid waste management unit or be subject to the requirements of a corrective action. II 

### Response: Ecologyemphasizes that, although corrective actionjurisdiction isbroad, the applicability is quite limited. As discussed above, a facilitybecomes subject to corrective actions as a condition of its dangerous waste management activities, that is, by conducting regulated treatment, storage, or disposal ofdangerous waste. Even at facilities subject to corrective action, if a facilityowner/operator can demonstrate to Ecology's satisfaction that conditions at the facilitypose no threat to human health or the environment, the facility can exit the corrective action process at that stage (see response to comment. #240). Ecology notes that a facility which is not subject to corrective action but has conditions which pose a threat or potential threat to human health or the environment may be subject to cleanup under the State Model Toxics Control Act (MTCA) or other laws

.. Ecology further notes that this commenterused as an example ofa potential SWMU, "(disposal) of used solvents in a dry well...essentially allowingthe spent solvent to be released into the soil." At a facility subject to corrective action, such a dry well would
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• certainly be considered a SWMU. Depending on the regulatory status of the spent solvents disposed and the dates of disposal, the dry well could be considered a dangerous waste management unit and operation of such a unit could cause a facility to become subject to corrective .action. Ecology would likelyrequire that sucha unit be investigated completelybefore making a determination regarding the risks or potential risks posed by the unit and the, necessity for activeremediation or corrective action at the Facility.
Comment 266: One commenterpointed out that, although Ecology requires corrective action, as necessary to protecthuman health and the environment, for all releases of dangerous waste or dangerous constituents, the proposed regulations for information submittal required facility owner/operators to submit onlyinformation on Solid Waste Management Units. Response: Commentnoted. Ecology has revised the proposed regulations to eliminate this inconsistency and require facility owner/operators to submit information on known releases ofdangerous waste or dangerous constituents (as defined for the purposes of corrective action) in addition to the information required for SWMUs. New section WAC 173-303-806(4)(a)(xxiv) reads: "(xxiv) Information requirements for known releases. (A) The following information is required for any and all known releases ofdangerous waste and dangerous constituents'(as defined by WAC 173-303- 646(2)(c)) at the facility. (1) The location of the release on the topographic map required under paragraph (xviii) of this subsection. (2) General dimensions ofthe release and any relevant structural description. For example, if the release is from a storage tank, provide a structural description of the tank. Supply any available drawings. (3) Time frame over which the release occurred. (4) Specification of all dangerous waste or dangerous constituents (as defined by WAC 173-303-646(2)(c))presentin the release, to the extent available."

. Comment267: One commenter asserted that requiring corrective action for all releases would result in a program far more complicated than the federal corrective action program, writing, "please do not codify an exceedance offederal cleanup requirements, which are complex enough already. Ifthe purpose of revising this legislation is in part to make itunderstandable and implementable, adopting preexisting requirements verbatim is by far the preferable course." Response: As discussed in our response to comment #240, Ecology believes that the state. corrective action program proposed under the Alternative Authorities Initiative will result in many efficiencies.. We understand that the administrative procedures involved with conformingRCRA corrective actions and MTCA cleanups may seem, in the short term, unnecessarily complex. In orderto further address these complexitiea Ecology is committed to developing general guidance on the corrective action process and specific guidance on the more complicated aspects ofcorrective action implementation.
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