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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 by Ecology. 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: Ecology appreciates and acknowledges the comments.

Comment 2: 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 such material is desirable, there is a question as to whether it is allowable,

from the standpoint of maintaining 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 of commercial chemical products is consistent with EPA.

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Comment- 3: One commenter stated that the proposed revision to WAC 173-303-020 was

superfluous, since a solid waste that may designate as a dangerous waste is a dangerous

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waste. Another commenter stated that the proposed revision would significantly expand 0'

the Universe of regulated 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 their waste is dangerous in accordance with the

procedures specified in WAC 173-303-070. If so, the waste must be managed in

compliance with the provisions of Chapter 173-303 WAC. If the 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 way expand the universe of wastes that must be

managed in accordance with Chapter 173-303 WAC. It simply notifies generators, some

of whom may be unfamiliar with the Dangerous Waste Regulations, that this chapter

imposes on them at least one obligation: determining whether or not their solid waste is

dangerous.

Acutely Hazardous Waste

Comment 4: Since Ecology added the terms "source material," ''by-product material," and

"special nuclear 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, 10 CFR 20.3 Ecology does not believe it

necessary to redefine these terms in Chapter 173-303 WAC.

Commerclal Fertilizer

Comment 5: 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 of the definition of commercial 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

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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: .Several commenters stated that Ecology should clarify the use of the term

"limes" in the definition of commercial fertilizer. "Limes" should be clarified to include

wood ash or other byproducts 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 of commercial fertilizer, as proposedin the amendments to the

Dangerous Waste Regulations, is taken directly from the definition of commercial

fertilizer in Chapter 15.54 RCW, Fertilizers, Agricultural Minerals and Urnes .

(Washington Commercial Fertilizer Act) and Chapter 16-200 WAC, Washington State

Department of Agriculture Pesticide Management Division, Rules Relating To Fertilizers,

Minerals and Urnes. This definitionstates that any substance containing recognized

plant nutrients or 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/or which 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 latter portion of this 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 only that

portion of the regulated universe that is neither extremely hazardous waste nor mixed

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 comment is acknowledged.

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. Independent Qualified Registered Professional Engineer .(-650, -660, -840)

Comment 9: According to the preamble, an independent engineer could not include an

engineer responsible for the design of a TSD facility. Does Ecology truly intend 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 of the last statement "(one who did not design the 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 of the facility. This

is not the case. A professional engineer in the employment of the facility owner/operator

could indeed design a construction or modification plan; however, an "independent"

professional engineer, i.e., an engineer not employed by 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 consistent with 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) of interest. This position is consistent with

other types of certification programs which require 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 of performing 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 consistent with EPA's phraseology and usage. Ecology recognizes that the

certification of construction or modifications plans by independent engineers could

increase costs, however, this is required by EPA. The requirement of independent

certification is intended to avoid conflict (or the appearance of conflict) of interest. This

position is consistent with other types of certification 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 of operating procedures must be provided by

the independent registered engineer, along with a copy of the drawings of the installation

or modification. It is not clear if these procedures must be approved by Ecology, or if

Ecology requires copies of revisions.

Response: A c-opy of operating 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" by Ecology 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

words used accurately convey the definition of a manifest.

Mixed Waste

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 of mixed

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 under the Dangerous Waste

Regulations. In order to define which facilities may be impacted by 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 will continue '

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 of those radionuclides on the form and management

requirements for the hazardous waste. Ecology will continue 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 of human 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 of mixed

waste to read "a dangerous waste that contains source, special nuclear, or by-product

material subject to the Atomic Energy Act of 1954." .

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Response: Ecology concurs with the comment. During the regulatory reform project, the 0\ Department of Ecology will be evaluating methods to simplify the regulations. This

suggestion will be 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 of concern 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 of treatment. This will encourage waste

management "close to home" and help Ecology meet its goal for regulatory reform.

Response: .The comment is acknowledged.

Wastewater Treatment 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 of WAC 173-303-640? In the past, these tanks were exempt.

Response: The definition of Wastewater Treatment Unit was amended strictly to help

clarify the original meaning. We noted that there were numerous instances of redundant

or unnecessary language within the definition and that its format could be changed to aid

in clarity. The meaning of the definition has not changed. Any previous interpretations

of the regulations regarding this definition still stand.

.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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Response: Waste streams being generated at the time of adoption of the amendments

willneed to be designated under the new requirements. Wastes generated prior to

adoption of the amendments will not be regulated under these amendments retroactively. ()

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Comment 20: Several commenters expressed support for the proposed rule.

Response: The support is acknowledged.

Comment 21: Several commenters requested clarification of the number of sections a

waste must be checked against to be in compliance with the proposed rule.

Response: ·The proposed rule, specifying the steps required to designate a waste, is

presented in 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 must be 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 required by 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 generator has 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

restricted wastes with existing federal treatment standards. Some wastes, such as those

being recycled on-site, may not be required to have these additional waste designations

applied.

Comment 22: Several commenters expressed concern that the proposed rule requires

designation.by criteria.

Response: The inclusion of dangerous 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 of the regulation. This change in the meaning of criteria is

important to' distinguish, as it is a k~y concept in the proposed rule.

The following is a brief summary of the requirements pursuant to prior editions. In

accordance with dangerous waste mixtures, WAC 173-303-084, a generator was 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 required by 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". Under the proposed criteria section a generator typically needs only to apply

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existing knowledge of waste constituents and concentrations when designating under this

section, including carcinogens (see proposed WAC 173-303-100 (5)(a), (6)(a) & (7)(b)).

A generator may 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 of WAC 173-303-070(3)(b).

Response: This conflict was addressed and presented in a separate section of the 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 designated by testing, knowledge or a

combination of testing and knowledge.

Response: A waste may be designated using a combination of testing and knowledge

under the proposed rule. In the interest of keeping the regulation as brief as possible,

the Department believes 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 of determining whether or not a waste

is a dangerous waste. The proposed rule will be amended such that the words "proper

designation" will be 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

generator to 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. If the criteria section does not require specific knowledge

regarding constituents or concentrations, then existing knowledge is sufficient.

Comment 28: Several commenters expressed concern regarding the potential for lack of

consistency in interpreting whether or not a generator has sufficient knowledge for

designation and requested that the requirement for demonstration be clarified.

Response: In the proposed rule, the process of determining 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 of adding this section to the rule was to allow generators to take full advantage

of any knowledge available while, at the 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 same information

and correct application of the rule: Because of this, Ecology felt that it is unrealistic to

try to include a detailed depiction ofexactly what would be required to demonstrate

sufficient knowledge in the rule that would be applicablein every situation. The

Dangerous Waste Regulations are intended to be "self implemented" 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.

Comment 29: 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 approach would be considered to be the basis for a generator's knowledge of

the waste, as long as the data and other information would be sufficient to determine

whether or not a waste is designated and/or designated properly.

Comment 30: 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 any manner.

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Commen! 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 that the Department may require a

generator to test a waste without justification or written notice under-the proposed rule.

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Response: This section of the Dangerous Waste Regulations has remained essentially

unchanged for over ten years without. significant problems.· Under editions prior to the

proposed amendment, generators may be required to determine whether or not a waste

.. was designated under the dangerous waste criteria. The criteria consisted of toxic,

persistent, carcinogenic and characteristic dangerous wastes. Under the criteria, a

generator must be able to demonstrate knowledge of all pertinent constituents,

concentrations and characteristics. In reality, if a generator did not have sufficient

knowledge of the waste from the materials or the process used, testing would be required

for this determination. The proposed rule is not intended to alter or expand the scope of

this section. The rule was amended in the proposed manner to account for the change

in the meaning of criteria; 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 of knowledge. 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 of knowledge in designation

determinations to be codified.

Comment 33: One commenter expressed concern that the proposed rule eliminates the .

utility of ''book designation" for determining whether or not a waste is designated as a

toxic dangerous 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 of this predicament.

Response: If a 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

new information became known. Waste which had been disposed of prior to the new

information becoming available would not be regulated as dangerous waste.. Any waste

newly generated, or any remaining on-site, would be designated. Unless directed

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otherwise, generators have always had the option of using either bioassay test results or

book designation for determining if a waste is a toxic dangerous waste. The proposed

rule does not significantly change this ·situation. When required by 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 only book designate a waste if all

potential toxic constituent concentrations and toxicities were known. This option was'

rarely chosen by generators, 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 Department believes that the book

designation method is, at best, a calculated approximation of waste toxicity and 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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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 POTW which 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.

Comment 34: The wording of the domestic sewage exclusion, as proposed in the

amendments; would categorically prohibit any discharge, not just discharge of the

material under consideration, to the POTW prior to receiving permission.

Response: The primary purpose of this exclusion is to exempt POTWs from the permitby-rule requirements in cases where 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 amendment to clearly indicate that,

under the dangerous waste regulations, 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

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from an industry or a commercial business, regardless of whether the waste is dangerous 0

or not. .)

Comment35: The domestic sewage exclusion completely ignores the existing regulation

of the discharge of wastes under the General Pretreatment Standards of the Clean Water

Act (CWA). The. CWA regulatory 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 of dangerous 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 of dangerous

wastes could be discharged to POTWs. In reality, most dangerous wastes are not

amenable to treatment in a POTW. In addition, it is unlikely that a POTW would issue

a discharge permit for a large majority of wastes which classify as dangerous wastes.

Ecology has reworded the proposed domestic sewage exclusion in a way that 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 what would 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 of the 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 each business 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. By requiring 'Written discharge authorization"

for each generator discharging dangerous waste to the POTW, a dangerous waste

inspector will 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 currently regulate discharges to

the sewer system. The use of categorical industrial approvals will encourage the disposal

of dangerous wastes into sanitary sewers and provide an opportunity for abuse.

o

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 of wastes (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 of unauthorized wastes to the POTWs that did not already exist under current

regulations. While there will be some added burden to permit such discharges, the

wording of the exclusion has been revised to eliminate applications for wastes which are

not amenable to treatment in a POTW. Ecology believes that the revised wording creates

realistic expectations among generators which will limit the number of applications for

discharge. In addition, for POTWs which have not been delegated the pretreatment

program, there will be no added work load since permits for discharge will not be issued

by the POTW. .

Comment 38: 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 delegated the pretreatment 'permit

program, the issuance of permits for discharge of dangerous wastes will be done by

Ecology's Water 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 POTW will 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 is based 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 which are 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 POTW which they believe is amenable to treatment in the POTW.

Comment 40: There appears to be a significant resource 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 proposed wording 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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Comment 41: There appears to be uncertainty regarding who has the responsibility for

[issuing permits under] this program.

Response: The wording of the 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 Program will issue discharge permits for POTWs which have not been

delegated the pretreatment program.

Comment 42: 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 allows dischargers 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 specify what kinds of

constituents can be discharged, it would seem prudent for POTWs to also specify how

much (in terms of pounds per day) may be discharged. Ecology will not attempt to

develop a list of chemical constituents, and concentrations, which can be appropriately

treated in a POTW, under the revised domestic sewage exclusion. Permit writers will

have the latitude to determine which wastes are (or are not) amenable to treatment in

the POTW, based on knowledge of the waste, and/or information provided by the

generator.

Comment 43: The proposed domestic sewage exclusion will likely place additional

impacts and/or regulatory requirements on the POTW biosolids program.

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Response: The revised domestic sewage exclusion is not intended to allow the discharge

of materials which will adversely affect the quality of sludge produced at POTWs. The

permit writers have full control of the kinds of wastes 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 will be required to provide information which 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 of the biosolids program is based not only on real impacts

but also on perceived impacts as well. While the revised wording of the domestic sewage

exclusion will allow dangerous wastes to be discharged to the POTW, the permit writers

must be cognizant of the 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 permit writers. C)

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• Comment44: We understand that the POTW would also not come under the dangerous

waste regulations [for treating dangerous waste] by following the proposed domestic

sewage exclusion.

Response: POTWs which receive dangerous wastes, via permit, for treatment will not 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 clarify that the exclusion is 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.

Comment 46: Must other wastes 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.

Comment 47: 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.

Comment 48: 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 of dangerous

wastes to the POTW when such waste is amenable to treatment, and when a discharge

permit has been issued for that waste.

•

Comm£nt 49: Developing acceptable discharge lists, or evaluating waste discharge

applications is not a simple task, one for which many POTWs are ill equipped, in terms

of training or resources, to handle. .

Response: Ecology understands 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 .

15
wastes to be discharged to the POTW if such wastes are amenable to treatment, even .0,.)

when such wastes designate 'as dangerous wastes. Ecology believes that permit writers /

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. If the demonstration cannot be made,

then a permit is not issued. METRO and the state have committed to share information

with other rOTWs on specific waste streams as the information becomes available.

POTWs with pretreatment programs will issue permits to dischargers, and will be

required to make a determination regarding the treatability of wastes. POTWs which

have not been delegated the pretreatment program will not be issuing permits, and

therefore should feel no impact from this rule revision.

Comment 50: The commenter does not feel that hazardous waste should be allowed to

be discharged into sanitary sewers because of concern for the quality of effluent, and the

quality of sludge.

Response: It is not the intent of the domestic sewage exclusion to allow wastes to be

discharged to a POTW when 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 in the 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 of the 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 allow burning of "other" treated wood waste in industrial

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, Ecology believed it would be imprudent to

grant these requests. Other comments asked Ecology to clarify whether any generator

requirements applied to the treated wood waste prior to disposal in a landfill. The intent ()

of this 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 other requirements. The language of the exclusion was reworded to

clearly state that generators will not be required to comply with generator 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? If so, 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 generator requirements would not

apply if the waste was disposed in a timely manner. There is no intent to require

generators to comply with the generator requirements except for removing the treated

wood off site to a landfill in a timely manner. Accordingly, Ecology has reworded the

exclusion to indicate that the generators have 180 days to ship wastes off-site. Other

generator requirements pertaining to secondary containment, manifesting, counting, and

reporting are not applicable. Ecology believes that requiring generators to ship wastes

off-site in a timely manner was 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.

Comment 52: 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: In response to the comment, Ecology has amended the language to include

permitted facilities as an option under this exclusion.

Comment 53: Requiring treated wood waste to be disposed of in a landfill meeting the

requirements of WAC 173-304-460 is 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 is reuse 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 toxic materials which pose significantly different risks from wastes managed under

WAC 173-304-461 or -462. For this reason, Ecology believes that disposal of treated

wood waste in landfills operated in conformance with WAC 173-304-461 or -462 is not

sufficiently protective of human health and the environment. While the preferred

17
-- - - --~- - -- -_.~-

management option for treated wood is reuse, Ecology-does not recommend that treated (\,

wood be used in 'gardens. ..J

Comment 54: To encourage the burning of creosote-treated wood for energy recovery,

wood ash·generated from the combustion of creosote 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 of treated wood] in that exclusion

effectively'discourages energy recovery of creosote-treated wood.

Response: Ecology has reviewed a sufficient number of tests on wood.ash resulting from

the burning of untreated 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 of creosote-treated wood primarily because 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 of incomplete combustion including cresols

and polycyclic aromatic hydrocarbons, many of which are carcinogenic at low levels. In

the absence of data 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 wood based on

data, if this ash was corrosive and otherwise not toxic.

Comment 55: 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.

.Comment 56: All treated wood can successfully be incinerated in a proper facility;

therefore, incineration should not be limited to creosote treated wood only.

Response: If the comment refers to "burning for energy recovery" in an industrial furnace

or boiler, Ecology believes that the burning of creosote 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 will be similar to those found at facilities burning

fossil fuels. The burning of other 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 ·of creosote treated wood, will likely

require additional pollution control equipment, and will likely result in the ash being

dangerous waste. Ecology believes that it would not be prudent to exclude a broad

spectrum of treated 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 of these other treated woods in

WAC 173-303-510, Dangerous Wastes Burned for Energy Recovery. (See comment #57)

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Comment 57: The proposed treated wood exclusion should allow alternative disposal

options, such as burning for energy recovery, for all [wood] preservatives, with the

proviso that the 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 other wood

preservatives. The constituents found in creosote are hydrocarbons, similar to those

found in fossil fuels. Other wood 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 present in 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 of burning "other" treated woods in

industrial furnaces and boilers. (See comment #56)

Comment 58: The commenter strongly urges that the proposed rules exempt disposal of

all treated wood by alternate methods, such as burning for energy recovery, when the

utilizing facility is properly permitted to receive and utilize the material.

Comment 59: The commenter recommends that wood treated with other preservatives

have the option to be burned for energy recovery in an industrial furnace or boiler which

is properly permitted to receive and utilize the treated wood.

Comment 60: Alternative disposal options, such as burning of [treated] poles for energy

recovery in permitted facilities, should be allowed.

Response: See response to comments 56 and 57.

Comment 61: The words "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 will delete the words "and operated"

from the treated wood 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 173-304 WAC 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

treated wood. Because of the history of landfill failures, i.e., groundwater contamination,

and because of the hazards posed by wood treating chemicals (they are toxic, persistent,

and carcinogenic), Ecology believes that the increased level of protection provided for in

19
WAC 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 173-304-460 and WAC 173-351.

Response: See response to comment #62.

Comment 64: Ecology should clarify the intent and applicability 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 of creosote 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 of Chapter 173-

304 WAC, Minimum Functional Standards. Ecology believes that it is common

knowledge that wastes which are excluded from Chapter 173-303 WAC 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 already have a provision to allow the

.burning of other treated woods, which designate as dangerous waste, for energy recovery

in WAC 173-303-510, Dangerous Waste Burned for Energy Recovery.

Comment 67: The commenter believes that treated wood can be safely disposed of in

landfills that 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, but would

.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 of treated 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 proper forum for permitting facilities which want to incinerate wastes which classify

as dangerous waste. Facilities which meet the stringent standards set forth in WAC 173- -

303-800 are eligible for a permit. In addition, the Dangerous Waste Regulations have

provisions which allow for the burning of other treated wood for energy recovery in

WAC 173-303-510, Dangerous Waste Burned for Energy Recovery. If the 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 safely incinerate a broad spectrum of dangerous wastes.

Comment 69: The commenter requests that the exclusion language be broadened to

allow treated wood including wood treated with pentachlorophenol be burned for energy

recovery in Spokane's Municipal Solid Waste 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 EPA relies 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 only addresses 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 such treated 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 statement to this effect in the exclusion.

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Comment 72: The commenter stated that this policy [regulating treated wood] certainly C.. ) challenged common sense because products utilized intimately in the human /'

environment for decades could suddenly be a dangerous waste when it became time to

dispose of them.

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 product is discarded. Consider the example of pesticides, Pesticides are

used widely in agriculture, and virtually all of them 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 of Fisheries and the Department of Wildlife

are developing regulations which will prohibit the use of creosote treated wood and penta

treated wood in fresh water lakes in Washington state. Furthermore, use of treated

wood as a product is different from treated wood in a disposal scenario. Product use

does not involve the high concentration of treated 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 0

for energy recovery.

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 by both Ecology and TSCA. Ecology

should explain this policy.

Response: The exclusion was proposed to be deleted because the list of carcinogens to be

regulated (based on the industrial soil cleanup standards) did not include asbestos.

However, with the withdrawal of the proposal and decision to regulate constituents that

appear on both the IRIS/HEAST and IARC lists on which asbestos appears, the

exclusion will not be deleted in the adopted rule. Note that asbestos appears on the

IRISIHEAST list and not on the soil cleanup list because its predominate route of

exposure is through breathing not oral ingestion.

()

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•

Wood Ash Exclusion (-071(3)(v))

General Response: 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 of untreated wood and specifically listed

wood fiber materials. However, based on the comments received, Ecology has further

considered the issue of whether 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 following adoption 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 of untreated wood and wood fiber materials.

Response: The term "primarily" adds vagueness to the exclusion. The intent of the

proposed rule was for only untreated 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 "including but 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 of wood fiber materials allowed under the

proposed exclusion. Replacing the abbreviation "i.e" with the words "including but not

limited to" would be a significant change from the proposed rule to the adopted rule and

23
Ecology will not expand the list (which would constitute a significant change to the 0,'.' proposed rule) without first seeking public comment. The intent of the 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 can be 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 "as is" for soil

conditioning and nutrient value in agriculture, silviculture, and topsoil manufacturing.

Under the current regulatory scenario, local jurisdictional 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 of designation 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 a co-product, use constituting disposal

management requirements (-500 & 505), exclusion by variance (-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

with portland 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 of refuse-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 - ------ --

24

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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 of ash 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 of plywood. The commenter states that the plywood trim consists of dried

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 only data 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 of and/or containing veneer,

glue, paint, resins, and other binders 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 other Toxicity Characteristic 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 of Agriculture) 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. .

Comment 83: One commenter suggested the wood ash exclusion include ash generated

from the burning of wood treated solely with creosote.

Response: For the reasons mentioned above, the key provision to the wood ash exclusion

is the term "...from the combustion of untreated 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-fiber derived residues or sludges that

have never been treated with or exposed to chlorine or chlorine compounds".

25
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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 of 6000F and 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. For instance, 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.

Comment 85: One commenter suggested revisions to the preamble to the proposed

amendments of the Dangerous Waste Regulations. The suggested changes to the

preamble were based on Ecology making changes to the exclusion based 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 of Rule, 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)

Comment 86: 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 solid waste 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, 1980 FR 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 will be reached in the near future and will

be published in the Winter issue of Shoptalk-.

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Request for Comments on Solid Corrosives, .090(6)

Comment 87: Several commenters expressed support for repealing the State-only DOO2

solid corrosive characteristic designation. Reasons given for supporting a repeal include:

1) The solid corrosive designation poses an impediment to reuse and recycling that

outweighs any potential harm that cannot be addressed by regulation as a solid waste; 2)

The costs associated with regulating solid corrosives far exceed the benefits; 3) As a

matter of policy, 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 later be

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' of aMSW landfill; the leachate may have an impact on the

biological system in 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. If the

designation is repealed the waste should either be recycled/beneficially reused or

disposed in a compliant Subtitle'D MSW landfill unit.

Response: A number of comments were received in response to Ecology's request for

comments regarding whether or not the solid corrosive designation should be retained.

Ecology appreciates 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 current rule-making.

Dangerous Waste Criteria: General

Comment 91: Several commenters expressed support for the proposed rule.

27
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Response: The support is acknowledged.

Comment 92: Several commenters expressed the opinion that the Washington state-only

criteria section should either be simplified, overhauled or eliminated altogether.

Response: The Department believes 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

amendment was produced with the intent of clarifying and consolidating existing

requirements without making substantial changes. Although the Department is in the

process of reexamining state-only waste designations, that effort has not been completed.

Part of the intent of amending the existing rule is to make any future substantive changes

more manageable.

WAC 173.303-100(4) Dangerous Waste Criteria: Quantity Exclusion Limit

Comment 93: One commenter found the language in the proposed rule to be confusing

with regard to the quantity exclusion limit (QEL) for EHW toxic dangerous waste. The

commenter suggested that the language be changed to depict the QEL as a variable

dependent upon the slope of the DW/EHW division on the Toxic Dangerous Waste

Criteria Graph, WAC 173-303-9906. .

Response: The manner in which the Quantity Exclusion Limit (QEL) for a waste is

applied requires that QELs are common (e.g., 2.2 pounds) 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

if the 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 other wastes designating under this section the quantity

exclusion limit is 2201bs. (100 kg) per month or batch."

Response: The proposed rule will be amended as suggested.

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.

Comment 96: One commenter supports the removal of the EPA spill table, 40 CFR -

302.4, as a toxicity reference.

Response: The support is acknowledged.

- -------------~----~---

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Comment 97: Two commenters expressed the belief that the toxicity category range of

regulated materials is overly conservative.

ksponse: The toxic categories ranges in the proposed rule are not changed from

previous versions. Designated toxicity ranges may be considered in future revisions.

Comment 98: One commenter expressed the belief that it is inappropriate to use the

NIOSH RTECS as a reference for toxicity values.

~sponse: The Department recognizes that any toxicity reference source presents a

compromise with regard to the degree of peer review, 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 generator believes 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)). Other methods for

determining waste toxicity may be considered in future revisions.

Comment 99: One commenter suggested that the option of using toxicity data references

other than NIOSH RTECS be eliminated from the rule.

Response: Although the NIOSH RTECS toxicity values are to be used whenever a

conflict exists between NIOSH RTECS and other sources, all generators may not have

immediate access to RTECS (NIOSH RTECS are available through public libraries).

The Department believes 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 of determining a waste's

toxicity by 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
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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 of severest 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 of variable monthly or

batch quantities on the designation of a toxic dangerous 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

by both aquatic fish -and rat bioassays, to demonstrate that a waste that has been

designated under the book method is not a toxic dangerous waste, is overly burdensome.

Response: The two bioassay methods are representative of differing manners in which a

waste may impact human health or the environment. .It has 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 extraction based 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 which will persist 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 of the compounds in question tend not to be soluble in .

aqueous solutions. Experience has shown that extraction procedures will not detect even

highly concentrated mixtures for many of these 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 of applicability for

extraction procedures. Extraction procedures are designed only to simulate landfill

conditions. Many wastes are managed in other ways. The Dangerous Waste Regulations

control the management of waste materials being treated, stored, or disposedof in ways

other than landfilling, and managed prior to recycling. o --- -- ---- --~---~----------

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Comment 107: 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 of the proposed rule apply

only to those halogenated hydrocarbons which can be obtained using the testing method

descnbed in WAC 173-303-110, testing methods.

Comment 108: One commenter expressed concern that the proposed rule is not chemical

specific in regulating halogenated hydrocarbons.

Response: As defined in WAC 173-303-040, the requirements of the proposed rule apply

only to those halogenated hydrocarbons which can be obtained using the testing method

descnbed in 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 polycyclic aromatic

hydrocarbons (PAHs).

Response: The proposed rule is intentionally broad 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.

Comment 110: 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 of the universe of HH intended to be regulated since rules

were first adopted in 1978. The proposed rule adopted the May 1993 revision of the

Chemical Testing Methods for Complying with the Dangerous Waste Regulations. New

chemical test methods will be allowed for determining the concentration of HH in a

, sample to reflect improvements in the science of detection 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

problem which was reported with the previous test method.

WAC 173.303.100(7) Dangerous Waste Criteria: Carcinogenicity

GeneralResponse: Ecology received numerous comments on the proposed revision to the

Carcinogenic Dangerous Waste Section. Many issues were identified in the comments

that Ecology believes should be further examined and resolved during the regulatory

reform project (beginning Fall 1993). Therefore, Ecology will not adopt the risk-based

.levels as proposed. In the interim Ecology will regulate carcinogenic substances that

31
appear 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 of those 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 of carcinogens with the IRIS-HEAST (Integrated Risk

Information System-Health Effects Assessment Summary Table) list for several reasons,

one of which was that the IARC list contains 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

developed during 1994 that differentiates between carcinogenic wastes that should be

managed as solid or dangerous waste. Ecology realized that Industrial Soils Cleanup

levels were not developed to differentiate between wastes that should be managed as

solid or dangerous, but believed 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.

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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 only criteria for dangerous waste (i.e., toxicity,

carcinogenicity, persistence) with the aid of an advisory group in order to update the

.state dangerous waste classification scheme. This will 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 will continue to regulate carcinogens at 100 ppm. However,

rather than attempting to regulate the entire IARC list for regulated constituents,

Ecology will prepare 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 - --- ------------ ------- ----- --------

32
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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 of cancer in animals or humans (i.e., EPA "weight of evidence" classification A,

Bl, B2, C), based on the assumption of similarity of human and animal models and the

mandate to protect both 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

sufficient justification to regulate carcinogens that appear on both lists. The new list will

include compounds with sufficient and limited evidence of inducing cancer in animals or

humans (i.e., EPA classifications A, Bl, B2, C and IARC groups 1, 2A, 2b). The

regulatory level of 100 ppm 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 will prepare a list of carcinogens that represent the

overlap between the IRIS-HEAST and !ARC lists so that generators will not have to

refer to other sources to implement the carcinogen rule. The list will not be part of the

rule, but will be made available to the public by Ecology.

Comment 113: The list includes the entry "pah"; what does this mean? If Ecology is

referring to all polynuclear aromatic hydrocarbons, they should state that expressly,

Response: If the 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 -significant and deleterious effect on waste management practices and cleanup

practices in the state.

Response: The regulatory level for individual carcinogenic PAHs and for PCBs will revert

back to the existing regulation, which is 100 ppm. However, pursuant to WAC 173-303-

071 (3)(k)(i), PCBs that designate as criteria wastes and are not captured by the federal

33
hazardous 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

will not be adopted the proposed regulatory levels will revert 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 of the carcinogens should be considered in

establishing regulatory levels.

Response: Wastes that contain more than one carcinogen will be managed as in the 1991

version of WAC 173-'303-103 (2)(b)(iii), that is, if the total concentration summed of any

carcinogen exceeds 1.0% of the 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 persistent waste (regulated at 1% or 10,000 ppm under 173-303-100(6» and a

carcinogenic waste at 100 ppm. 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 of the proposed 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 of the 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 generator is not required to designate for

carcinogenicity unless specifically requested by an Ecology representative or unless the

generator uses- process knowledge of the 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 of carcinogens..

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Comment 119: Some materials such as vinyl chloride and acrylonitrile occur in common

materials in polymerized form. Ecology's proposal appears to regulate these materials as

dangerous waste. In addition some materials that Ecology proposes 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

relatively unreactive; 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

chemical compounds, or 'in alloys) since metalsin most chemical forms may become

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) refer to either rag/kg

(weight/weight) for solids or mgII (weight/volume) for liquids. Ecology was not referring

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 riot the one actually being used in

laboratories. '

Response: In the proposed rule, Ecology cited the version currently found at 40 CFR

Part 260.11. In 1986, EPA did publish a Third Edition of the Test Methods Manual.

EPA reviewed comments and questions on the manual and issued several technical

35
corrections. Although laboratories may have been using it, it was not adopted into the 0

Code of Federal Regulations (CPR). However, on August 31, 1993, EPA incorporated

the Third Edition and its first update into the RCRA regulations. Because it is Ecology's

intention that laboratoriesa~e able to use the most current version available, Ecology is

adopting the Third Edition and the First Update.

General Response: 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 section with federal LOR 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 clarify the intent of the regulations. Since we are adopting the federal LOR rules by

reference Ecology will first look 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 is both

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 of the c.")

federal LOR requirements. Suggestions included establishing state waste codes or

adopting the federal definitionof spent solvents, commonly referred 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-only wastes since they carry a

federal waste code. The department believes that the federal LOR requirements are

reasonable for these wastes, but the newly adopted rules do not require that federal

LDR requirements be met for such wastes. The department will consider these

suggestions during the evaluation of state-only wastes that is currently under way.

Comment128: Two commenters pointed out that under federal LOR requirements,

immobilization technologies could be employed that would allow some inorganic "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 of wastes in

the State of Washington 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, will provide 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 Bill Number 5071 section 4(2) that addresses the land disposal of

radioactive mixed waste.

Response: The department will consider 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 being less 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 department believes 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 of the 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, will be amended to clarify that 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

comment which will be considered at a later time.

Comment 135: (-160(2)(b)) Is Ecology saying that on-site disposal or burial of pesticide

residues is acceptable? What is the procedure if the farmer has old pesticides with outof-date labels? Are these activities consistent with Department of Agriculture 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 of waste should be

directed to Ecology; questions related to label use limitations should be directed to the

Department of Agriculture 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~~ ~~

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reliably emptied to the level required, yet they pose a relatively minor threat to human

health and the environment.

&sponse: It is important to note that small volumes of waste contained in small

containers does not necessarily equate with a low level of threat 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, either by 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 allows TBG to occur in. Specifically, drip pads and

containment buildings need to be added to the discussion contained in 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 seek public comment on revisions to

Technical Information Memorandum) TIM 86-3.

Response: .The draft TIM was sent for public review (external comment) to

approximately 50 interested 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 significant increase 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 staff and 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

39
dangerous 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 of hazardous 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

(if not greater) than that from activities at closely regulated 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.

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Response: Ecology is modifying TBG requirements in part to implement the "Close to

Home" policy included 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 significant increase 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 that WAC 173-303-283(3), Performance Standards, must be met. In addition,

the TBG TIM and Focus sheets were written to provide guidance.

b) There may be minimal increases in emissions of hazardous 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 Permit by Rule for distnbution with

'- the TBG TIM.

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Comment 141: Two commenters expressed uncertainty as to what constitutes a "special

waste".

Response: "Special waste" is defined in WAC i 73-303-040.

Comment 142: TBG will be of limited utility because of the requirement that treatment

occur within the accumulation time frame.

Response: Ecology is limited to the standard accumulation time frames. There is no

greater flexibility under the federal guidance.

Comment 143: Is documentation of the routine inspections expected? If so, 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 is meant 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 existing inspection 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, will generators get

any kind of environmental credit as far as year end reporting for waste volume

reduction? Or will 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 specific reporting instructions. may be found 'on the reporting forms. There will not

be a recycling credit since TBG is treatment. A new code is being 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 of these are to be used, or will the text of both versions be included?

Response: There are 2 separate changes to this section. The rule was c.orrectly proposed.

Comment 146: TBG standards will cause an increased burden for publicly owned

treatment works (POTW's).

Response: TBG should not cause an increased burden for POTWs. TBG and permit by

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).

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Comment 147: -The proposed changes exempt SQGs from. the requirements associated 0

with generator treatment of hazardous waste. The standards (e.g., tank standards) should :

apply to all generators.

Response: The core of the TBG allowance are accumulation requirements. Since SQGs

are exempt from 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

would be placed on SQGs and relatively low risk of those who may be treating small, if

-any, amounts of waste. - -

Comment 148: Strong opposition was expressed against the additional recordkeeping

requirement for generator treatment. It serves no environmental purpose, and will be

costly and time consuming.

Response: The additional recordkeeping requirement is necessary for proper tracking of

waste. In terms of cost and time, the information required will already be necessary for

filling out (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 site where 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.

Comment 150: 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 their waste) 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 amendment which are

consistent with minimum federal (RCRA) requirements. TBG should be performed

according to the guidance in the TBG TIM which provides for protection of the public

health and environment. If a waste is reduced to "zero in quantity and toxicity", it would

not be regulated unless it is a listed waste residual which must be managed as a

hazardous waste per federal regulations.

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Comment 152: (-180(1)(e) and (j)) The commenter would like it clarified that if more

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 of continuation 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 clarify that 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 clarify that this provision applies to federally regulated hazardous waste.

It should be noted however, that a similar requirement for state-only wastes exists at

WAC 173-303-141.

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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 of the term "secured" as it relates

to secured satellite accumulation areas. Ecology has committed to develop guidance to

help clarify what is meant by the term "secured." Also, several commenters expressed

opposition to the use of discretionary authority, as in the posting of "Danger" signs.

Commenters felt that discretionary authority should not be codified into rule. The

discretionary authority was kept in lieu of creating a requirement that applied to all

generators.

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WAC 173-303-200(1)(d)

Comment 154: What will be Ecology's criteria for determining when a "Danger" sign is

required?

Response: Ecology has not developed a full set of criteria for determining when a

"Danger" sign will be required. An obvious scenario where posting a "Danger" sign

makes sense is the case where drums of dangerous waste are stored on a shipping dock,

or behind a building that is accessible to the public. Ecology will provide additional

criteria and/or-examples of qualifying situations in a future focus sheet on this issue.

Comment 155: The commenter strongly opposes the adoption of discretionary authority

to require the posting of ''Danger'' signs at the entrance of each 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 lead to inconsistent

application of the rule. However, Ecology felt that such discretionary authority for this

issue was warranted, and has decided to retain the concept of requiring "Danger" signs

on a case by case basis. In order to promote consistent application of this rule, Ecology

will develop guidance to clarify this aspect of the satellite accumulation rule. Ecology

does not intend to require "Danger" signs indiscriminately. '

WAC 173-303-200(2)(8)

Comment 15~: Several commenters expressed support for the proposed rule.

Response: The comments are acknowledged,

Comment 157: The proposed rule states that a "generator may accumulate as much as

fifty-five gallons of dangerous waste" for each waste stream in a satellite 'accumulation

area. EPA however, has interpreted this to mean fifty-five gallons of total waste per

area, in their policy memorandum.

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 which party 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: If the 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 of the satellite regulations.

The area must be under direct control by "the operator", or secured. Secured is a

performance standard, and in order to allow flexibility 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 of requirements of the Uniform Fire Code. In this

case, the drum would not be under the direct control of the operator. The area for the

satellite area must be "secured", meaning that it may need a lock and 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

operator maintain 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 container is 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 of chlorinated 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

stream is 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

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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 of dangerous

waste or one quart of acutely hazardous waste "per waste 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 of waste per satellite

accumulation area, the same as the federal rule. If two 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 will make 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 consistent with EPA's guidance.

Response: Ecology agrees with this comment. See previous response. I "

Comment 166: When projects "are conducted, waste is typically placed into a container

and the accumulation date marked if the waste cannot be accumulated in a satellite

accumulation area. Once the container is full or the project ends, whichever is sooner,

the container is immediately moved to a less than 9O-day accumulation area.

Response: The commenter may be confusing the definition of a satellite area and less

than 9O-day area. If the 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 "A generator may accumulate ... per waste 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 of generation where waste initially accumulates" is

superfluous.

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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 of the

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 of proposed Subsection 2oo(3)(a) regarding the accumulation start

date may preclude accumulation at the preferred location.

R£sponse: Nothing in the satellite accumulation rule would prohibit a generator from

locating a 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 must be secured if they are not under the direct control of the operator.

Commentl69: Regarding the use of the word "secured" in rule, we would caution'

Ecology that codification of discretionary 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 was warranted, and has decided to retain the concept of "secured." In order to

promote consistent application of this concept, Ecology will develop 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

very infrequent (or one time only) basis, as in the cleanup of a spill. Ecology does not

intend to allow generators to keep less than 55 gallons of cleanup material indefinitely in

a satellite accumulation area.

Commentl7l: Is the use of a satellite accumulation area limited to container

accumulation? If so, 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 will read: "Satellite accumulation area" means a location at or

near any point of generation where hazardous waste is initially 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 facility that has the designated accumulation area or storage area? If

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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 generator with an ID number may use that number to

identify wastes generated in any buildings on that site. If the 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.

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Comment 173: What will be required of generators to meet the security requirement [of

the satellite accumulation rule]? If the waste is in the designated satellite accumulation

area that is either in the work area or near the work area and is always easily observed

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: If the satellite area is near the process and under the operator's control during

working hours and locked at night as your example suggests, then this would meet the

requirements of the 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 prevent unauthorized disposal, and if a facility can show that

unauthoriied disposal can be prevented either by means of a locking drum, or locked /">

room, or other means to prevent authorized disposal, then these measures will meet the \0

intent of the word "secured."

Comment 174: We recommend that Ecology address two points of concern: (1) define

"operator of the 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 of the 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 of satellite 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 of dangerous waste is accumulated. Within 3 days of

this date, the containers must be moved to a 90 day storage area. Generators are not

required to date the drum when it is brought into the satellite accumulation area.

Ecology intends to address these and other relevant questions in a guidance document.

Comment 175: In the definition of satellite 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 of WAC 173-303-

__ 200(1).

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JUsponse: Ecology agrees that adding "90 day" will provide clarification, but does not find

it necessary to add "less than", The corresponding change in the definition of satellite

accumulation area in WAC 173-303-040 will be made.

Comment 176: The federal rules allow fifty-five gallons of total 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 but with justification. The state elected to limit the satellite accumulation

provision to one waste stream per satellite accumulation area because of the problems

encountered in the field, i.e., trying to estimate and sum up the gallons of waste in each

separate container. Each satellite area may have up to 55 gallons of waste; 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 of only one waste stream.

. Comment 177: Two commenters recommended that new section WAC 173-303-

070(3)(c)(ii)(B), Records Supporting Designation by Applying Knowledge, also be

included with this section.

Response: The Department believes that the reference to "(records of) other

determinations made in accordance with WAC 173-303-170(1) for designating dangerous

waste...11 is sufficient. However, section WAC 173-303-070(3)(c) will be amended to

reference WAC 173-303-210.

Comment 178: One commenter, while expressing support for the proposed rule,

recommended that the requirement to include the sampling method be deleted.

Response: A chief purpose to include these requirements into the rule was to ensure that

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

purpose of designation. This information is not only for the function of compliance

monitoring by Ecology inspectors but also to aid generators. Many test results used for

designation are valid over a large period of time, given consistent waste streams. If the

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

felt that because both sampling methods and testing circumstances can have a large

impact -on acquired results, this information must be available for review.

Comment 179: One commenter suggested that these requirements be set forth in

guidance documents instead of being placed into the rule.

49
Response: These recordkeeping requirements are believed to be the minimum possible to 0..

accurately determine if a set of test results sufficiently characterize a waste. Guidance

documents are often not comprehensively distnbuted or kept for reference. The

Department believes, therefore, that it is appropriate for placement into the rule.

Comment 180: The federal requiremerit to report waste reduction efforts is a biennial

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 SARA Title III reporting and annual reports

required under Washington State Pollution Prevention Plans. At most, this requirement

should mirror EPA's biennial requirement with 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 will continue to be implemented in

Washington State by EPA .

Comment181: The amendment should be revised so that it does not apply to generators

of less than 220 pounds of dangerous waste or 2.2 pounds of extremely hazardous waste .

per month or batch.

Response: The proposed amendment will be withdrawn (see previous comment),

however, a "small quantity generator", one who generates less than 220 pound of DW or

2.2 pound of EHW, 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.

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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 will increase both the administrative burden and potential

of non-compliance for generators and TSD facilities. For instance, Required Notices

WAC 173-303-290(1) vastly increased the notification requirements for importation!

exportation of dangerous waste, yet only a vague reference to observed hazardous

conditions involving importation of dangerous waste are provided for justification.

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Response: This amendment was proposed because Ecology has observed hazardous

conditions involving importation of dangerous waste and believes identification, tracking

and management of imported wastes needs to be monitored. The amendment is also

important because people outside of Washington 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 information Ecology is requesting should be readily available

to the importer. We do not believe this requirement significantly increases 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 of imported shipments and quantities. The environmental

benefit to be gained by this amendment will be the increased ability of Ecology to

identify and quantify wastes being imported into 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 allow importers to provide the information in the form that the

importer wishes, such as typed or handwritten. By this method Ecology can avoid the

cost of developing and printing the forms. Importers will have the option of developing

their own form. If Ecology determines that the type and amount of information 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

overly burdensome and untenable for facilities that employ large numbers of workers 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 of recordkeeping. A system such as described

in the comments, consisting of class rosters, would be a sufficient demonstration that

employees did attend classes. The intent of the proposed rule change was to establish a

51.
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clear requirement for employee verification that they attended appropriate training. This

requirement is only needed in a relatively small number of instances. After consideration 0

of the comments, Ecology will adopt WAC 173-303-330(2)(c) to read: "(c) Records

documenting that facility personnel 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 of the rule to include all manifest

discrepancies, not just significant discrepancies. What was the intent behind the

proposed change and why is it necessary? The original intent of this 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 rule change places the burden of correctly 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 can be properly managed at the

facility, but cannot be responsible for checking every entry on every form.

Response: Ecology believes that accurate completion of the manifest is crucial in

retaining the integrity of the 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 of responsibilities.

Ecology will therefore, withdraw this proposed change. Ecology will continue to review

the manifesting system 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 of EPA and state waste codes on the manifest is a significant

discrepancy. Throughout these draft regulations, Ecology has done a good job of

resolving regulatory language which, in the past has led to confusion; however, this

appears to be an instance of conflicting direction being introduced into the regulation. If

compliance with 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 to reflect 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 is required 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 commenter is opposed to any additional generator

reporting requirements of waste reduction activities that are duplicative of SARA Title

III reporting and annual reports required under Washington State Pollution Prevention

Plans. At most, this requirement should mirror EPA's biennial requirement with 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

by EPA 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 2.2 pounds of extremely hazardous waste

per month or batch.

Response: The proposed amendment will be withdrawn (see previous comment and

related comment for WAC 173-303-220(1)(b)), however, a "small quantity generator", one

who generatesless than 220 pound of DW or 2.2 pound of EHW, 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 five rather than three years.

Response: The commenter may be thinking about the generator requirement to retain

documentation related to land disposal restrictions (notices, certifications, waste analysis

date, etc.) for five years. Ecology proposed 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 existing record 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.

, 53
Comment 190: The commenter expressed support for adding language that "removes"

this activity (repackaging of previously containerized waste into new containers, at the

time the waste is first placed into the new containers) from regulation.

Response: The comment is acknowledged.

Comment 191: Two commenters support the change to this section that corresponds to

the definition for commercial fertilizer.

Response: Ecology acknowledges the support.

GeMral Response: Ecology originally proposed amended language to clarify the existing

requirements for management of dangerous waste fuels. Based on comments received

and review of the 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 now because the definitions more

accurately reflect the various activities that occur in order to recycle fuels.

Response: The support is acknowledged.

Comment 193: One commenter requested that Ecology develop a compliance flow chart

for section 510 and publish it as a focus sheet.

Response: One of the 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 flow chart for -510.

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.Comment 194: Are generators who supply waste fuel directly, at no cost, to a burner

considered marketers, distributors or blenders?

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 error has been corrected.

Comment 197: One commenter noted that it appears that certification records (..

510(6)(e)) may need to be kept longer than five 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 department should address the issue of rules for BIFs and cement

kilns as rapidly as possible. We consider the new EPA regulations to be inadequate.

Response: Ecology appreciates your comment. The suggestion will be taken into

consideration during future rule-making.

General Discussion: 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 management facility, Ecology's clean closure performance standards

stipulated closure to ''background''. In the case of closure at facilities operating under

interim status, Ecology adopted the federal clean closure performance standard at 40

CFR § -265.111 by reference. 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 by concentrations of hazardous waste and constituents at the closing

unit falls between 10"' and Ht'. Ecology found implementation of the two clean closure

performance standards difficult in that the department was faced with lengthy and

resource consuming negotiations regarding the meaning of "background" at any given

ss
facility or unit or,at interim status facilities, the appropriate point in EPA's risk range for 0'," clean closure at any given facility or unit. Additionally, in the case of interim status

closures in particular, the acceptable excess risks allowed for clean closure were

potentially"inconsistent with" acceptable levels of risk 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 meet Ecology's clean closure

performance standard and the second to address remaining contamination as prescribed"

byMTCA

Earlier this year, Ecology formed ail internal workgroup to discuss the clean closure

performance standards and to develop guidance on the closure process. In the course of

it's discussions it was determined that the two clean closure performance standards were

inappropriate given the State's policy on 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 of MTCA cleanup

standards. Ecology believes many commenters were uncertain over the degree to which

Ecology intended to incorporate MTCA provisions into the closure process. Our intent

was to reference only MTCA's numeric cleanup levels. Although these cleanup levels '0\

must be calculated according to the MTCA regulations, Ecology does not intend for

MTCA cleanups to take the place of RCRA closure." In order to clarify our intent,

Ecology revised the proposed clean closure performance standard to explicitly limit the

application of the MTCA regulations 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 allow clean closure to MTCA

cleanup levels calculated according to MTCA Method C. Several commenters supported

" their suggestion by noting that EPA has 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 would be consistent with the federal

program.

'Response: Ecology interprets clean closure as the 'point at which conditions at a

dangerous waste management unit no longer warrant regulatory control; phrased another

way, the point at which unrestricted re-developmentof the former unit may occur. The

dangerous waste regulatory system makes 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 MTCA regulations also provide for a distinction

between facilities which have been cleaned up to the, extent that regulatory control is no ()"

longer necessary and facilities which require 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 MTCA residential cleanup

standards are generally allowed to exit the MTCA system. MTCA Method 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 of dangerous constituents which, as a matter of

state policy, have been determined to merit further regulatory-control.

Ecology recognizes that the residential cleanup standards mandated by MTCAare

somewhat more conservative than some federal cleanup standards. Ecology believes that

consistency with state policy and conformance with citizen mandated cleanup

requirements outweigh any discrepancy between 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, such requirements 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 which could meet MTCA residential standards, such

units would be considered clean closed; tier two would include units which could meet

MTCA industrial standards at closure, and would be subject to the long term care and·

monitoring requirements 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 policy considerations discussed in our response to Comment #199,

Ecology carefully evaluated 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 of MTCA'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 of Method 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.

Ecology rejected the deferral scenario because it did not provide for immediate

fulfillment of MTCA's long term care requirements potentially allowing environmentally

threatening conditions to become exacerbated following the time a unit/facility exited

RCRA regulatory control and before it was addressed by the Toxies Cleanup Program.

Ecology believes that facilities/units which had been remediated to Method C cleanup

57
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levels wo~d likely be a very low priority for additional action by the TTCP, 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 situation would be indirect non-conformance with the MTCA regulations

which inextricably link Method C cleanups to long term care. Ecology also considered

the efficiencies of conducting partial cleanups under the HWTR Program, only to

transfer the remainder of the cleanup to the Toxies Cleanup Program. In addition,

Ecology rejected the deferral scenario for equity reasons. Ecology considered it

improper to allow for dangerous waste management units/facilities to clean up only to

the numeric Method C cleanup levels and defer the additional requirements of Method

C cleanup when deferral of Method 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 certification was complete.

In the negotiated order/decree scenario, units/facilities which met MTCA's criteria for

use of Method C would be allowed to clean close at Method C cleanup levels and exit

the RCRA system, however Ecology staff in the HWTRP would be responsible for

ensuring that MTCA's long term care requirements were imposed immediately following

the closure process.

Ecology rejected the negotiated order/decree scenario because it seemed to unnecessarily

duplicate RCRA's existing provisions for issuance and oversight of post-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 permit would still be

necessary. Ecology believes that the post-closure permitting process may provide for

more flexibility than is inherent to the MTCA regulations, and for that reason may be

preferable to negotiated MTCA orders/decrees for imposition of long term care

requirements. Ecology also considered the resource implications of negotiating 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 of Method C would be allowed to certify "conditional" clean-closure, meaning that

the clean closure approval would be conditioned on the facility owner/operators

fulfillment of MTCA's long term care requirements as specified in the Ecology approved

closure plan.

Ecology rejected the closure plan scenario because, the long-term care requirements CJ

associated with MTCA Method C cleanups seemed duplicative of post-closure permitting

requirements. Additionally, the idea of "conditional" clean closure raised more questions

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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? If MTCA's long-term care

requirements were imposed through the closure plan mechanism, Ecology believes it

likely that such conditionally closed units/facilities would have to remain under RCRA

interim or final status until MTCA's long term care requirements had been fulfilled

(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 of EPA indicated that federal authorization of a conditional clean closure

system would be difficult if not impossible. . . .

Ecology believes the three tiered closure system raises important questions regarding the

closure of RCRA units/facilities which are located within industrial areas or which, in

some other way, meet MTCA's criteria for application of Method 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 will require the same degree of post-closure care. Ecology believes that the

RCRA system for post-closure permitting provides a great deal of flexibility in

determining specific post-closure care requirements. We are committed to working with

facility owner/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 of post-closure care.

Comment 201 and 202: Many of the commenters who expressed concern over the

stringency of Ecology'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 MTCA Method 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 MTCA Method C standards,

additional regulatory control in the form of institutional 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 will be 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 concern that the proposed revision would.

preclude closure of RCRA units to background. One commenter wrote 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 RCRA units,

closure to background was more appropriate than closure to health or risk based

59
standards, writlh'ng, thhault'd'ifbback

d

gr

d

ounddlehvds whereCEnotRPCLArotectiveMTofCh'A~a~ he~lth and the 0-

environment, t at s 0 e a resse t roug a or rorum.

Response: Ecology believes that excessive concerns regarding .closure to background

represent, to some degree, a misunderstanding of closure jurisdiction. 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 facility owner/operators can demonstrate is not in

any way connected with waste management at the closing unit, including contamination

.. which preexisted the unit, is not subject to closure (see response to comment #204).

Additionally, the MTCA regulations allow for cleanup levels to account for natural

background conditions pursuant to WAC 173-34Q-700(4)(d), which states, "Natural

background. Cleanup levels shall not exceed concentrations established under methods

A, B, or C except where 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 of natural background when determining closure levels,

as appropriate under MTCA Given the limited jurisdiction of the closure regulations

andMTCA's provisions for consideration of natural background, Ecology believes we can

adequately address background contamination during the closure process. In a more

general sense, Ecology rejects the notion that closure of dangerous waste management

units should be held to cleariup standards less stringent than those imposed at other

facilities. "Ecology also rejects the assertion that cleanup of contamination 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 allow Ecology 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 of surrounding land

areas to the degree possible given the nature of the previous dangerous waste activity." . .

The standards-for removal and decontamination stipulate that such requirements shall

apply to "dangerous wastes, waste residues, or equipment, bases, liners, soils or other

materials containing or contaminated with dangerous wastes or waste residue". Ecology

has historically and will continue 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 the flexibility to exempt contamination which has been

demonstrated to be migrating from off-site from closure requirements. Ecology notes.

that contamination beyond the scope of closure which remains at closed and closing

dangerous waste management units may be subject to further remedial action under

MTCA and/or RCRA corrective action.

Comment 20S: Several commenters expressed concern that the proposed revision would

not allow Ecology adequate flexibility in approving clean closures.

lUsponse: Comment noted. Ecology addressed concerns regarding the flexibility of the

MTCA Cleanup Standards in the responsiveness summary to the MTCA regulations:

"(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 excessive amount of flexibility which hinders, rather than facilitates, site "\

cleanup. We believe the statutory mandate to protect human health and the

environment will continue 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 of standards for RCRA clean closures to be an

important and far reaching policy decision. In determining the levels of constituents

which would constitute acceptable risks, absent further regulatory control under RCRA,

Ecology chose to rely on existing state policy regarding acceptable levels of risk, namely

the MTCA residential 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 of state policy for clean closure, allowing early

agency decision making. Ecology believes early decisions provide for more targeted

allocation of limited resources; 2) Clear record of state policy·for clean closure, allowing

the regulated community a greater degree of certainty when 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 of dangerous wastes are primarily addressed

by regulations promulgated pursuant to the federal Resource Conservation and Recovery

Act (RCRA). Washington has adopted a version .of the 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 way changes or alleviates facility owner'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 commenter that 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, RCRA has 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 larger MTCA cleanup, Ecology believes it is more efficient to

incorporate MTCA's concerns in a RCRA closure plan than to overlay RCRA regulatory

requirements with other cleanup obligations. The MTCA regulations.at WAC 173-340-

710(6)(c) specifically reference 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 that by closing dangerous waste management units to MTCA cleanup

standards calculated using residential exposure assumptions, facility owner/operators will

achieve conditions at the closed unit which will satisfy MTCA 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, cannot automatically be deemed compliance with MTCA. We emphasize that,

to the extent facility owner/operators through compliance with 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 will require duplication of

effort. However, Ecology must individually review each case to ensure that all cleanup

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 overlapping jurisdictions of

MTCA and RCRA at dangerous waste management facilities.

Com1lU!nt 207: One commenter cautioned Ecology against relying too heavily on MTCA's

method A tables. .

Response: Comment noted. Ecology agrees that caution should be 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!nt 208: One commenter asserted that closure of concrete to MTCA soil cleanup

standards would be impractical and unnecessary.

ResPonse: Ecology agrees with the commenter that decontamination of concrete to

MTCA soil cleanup standards may not be necessary in all cases. In lieu of the discussion

of decontamination 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 of closure plans. In order to assist facility

62

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owner/operators in preparing closure plans, Ecology is preparing detailed guidance on

the closure process. The closure guidance will contain discussions of decontamination in

the closure context, including application of newly promulgated federal treatment

standards for hazardous debris to closure decontamination requirements.

Ecology notes that the proposed regulatory language for decontamination of structures

during closure did not specifically reference MTCA cleanup standards, however, in order

to emphasize the site specific nature of decontamination 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 manner which minimizes or eliminates postclosure escape of dangerous waste constituents."

ComIMnt 209: One commenter suggested that, in lieu of reliance on MTCA residential

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 by WAC 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 of MTCA regulations

will lead to "imposition of inconsistent site cleanup standards as MTCA regulations are

modified over time."

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."

ComlMnt 211: One commenter asserted that limiting the clean closure performance

standard to MTCA residential cleanup levels would "impose an unnecessary increment of

remediation at operating facilities for which a corrective action RFAlRFI sequence will

be required prior to facility closure."

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 corrective action, and which meet MTCA's criteria for application of Method C.

Although Ecology intends to impose corrective action requirements through MTCA

orders and consent decrees, MTCA Method C will only be available to corrective action

cleanups to the degree it would be normally available under theMTCA regulations.

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Ec0MTlogyC'Ae~c~dcle~nluPII~velsat mdostdscorrective action'sites will be calculated according 0-

to s resi entia c eanup stan ar .

'As the commenter implied, there may be instances when an owner/operator of a final

status facility decides to close certain waste management units but continues to operate

the facility and other waste management units at the facility. In such a situation, if the

facility owner/operator could not meet MTC'A residential cleanup standards at the closing

unit, the operating permit would be amended to incorporate appropriate post-closure

care requirements. If at a later time, the facility owner/operator and Ecology determined

that post-closure care at the unit could be more appropriately coordinated with facility

wide corrective action, the permit could be modified to reflect any appropriate changes

to the post-closure care requirements. In many cases, permit-track facilities will begin

implementation of corrective action requirements prior to permit issuance. 'At such

facilities, any partial closures could be explicitly coordinated with and addressed in the

context of existing facility-wide corrective action. .'

In the case of closing units at an interim status facility, Ecology believes the same

principles apply. If a facility owner/operator cannot meet MTC'A residential cleanup

levels at a closing interim status unit, post-closure care for the unit will be imposed

eventually either under 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 efficiently coordinated with the post- U~\

closure care requirements at the time of permit issuance. If corrective 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 of detailed

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 of post-closure care requirements, Ecology can

delay the date by which a facility owner/operator must 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 will not be routine, they

could be used in limited circumstances to more effectively coordinate closure and

corrective action activities. For example, under W'AC 173-303-610(4)(b)(i), the

Department could extend the time allowed for closure if it could be demonstrated that,

in order to adequately coordinate closure with site wide corrective action, the closure

activities will take longer than 180 days to complete.

It is Ecology's intent to encourage facility owner/operators to achieve clean closure,

however, we realize that it may not always be appropriate or practical. Ecology believes

one benefit orMTC'A's prescriptive cleanup standards will be early decision making

regarding the application of post-closure care. If post-closure care is determined

necessary, facility owner/operators can begin implementing such requirements

immediately, instead of expending resources in futile attempts to meet the clean closure 0

performance standard. Ecology believes this will result in more efficient targeting of

resources, more timely implementation of closure requirements, and minimization of

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"unnecessary increments" of remediation. We recognize that the current, federally

mandated, RCRA system may not adequately provide for the degree of integration

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 facility adequately address

threats and potentiai threats to human health and the environment without 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.

Commenr 212: Two commenters disagreed with Ecology's preamble assertion that

background was difficult to determine and that reference to MTCA residential cleanup

levels would provide consistency between 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 consistency between 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 risk identification requirement would be met

if the container was 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 if there is a system in

place that performs the risk label function, then it will be adequate. If the DOT system

does not include state-only wastes, then the "system" is not adequate.

WAC 173-303-630(6)

ComFMnl 214: Two commenters stated they do not feel that the addition of an

inspection log will help assure earlier detection of leaking or damaged containers.

Responie: The requirement for container inspections is not new. With this addition,

Ecology is requiring "generators to document their weekly inspections on paper for

validity and assurance to the facility and the Department.

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

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Co265m~6nt 21S

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bDund·ng pudbliC hearinlgs, EcOICOgy verbally indicated that 40 CFR Part 0

.17 woul e a opte as a fina rule. ( ontainers holding ignitable or reactive waste

must be located at .least 15 meters from the facility's property 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 not yet been adopted by the state for Final Status Facilities. Because

this change was not included with the proposed rules, Ecology will not adopt the

standard at this time.

Commen: 216: One commenter recommended revision of the first sentence of WAC 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

overly burdensome task." .

Response: Ecology is uncertain why the commenter is requesting this additional

regulatory amendment. The Hanford Reservation is not located within a local fire.

district. Their fire protection needs are 'met by 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 commenter would have

to determine the equivalency of their fire orders with the Uniform Fire Code (UFC).

Furthermore, WAC 173-303-395(1)(d), requires owner/operators to conduct annual

inspections of areas 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 "Determining what is in a manner equivalent with the

current version of the 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.

Comment 217: The commenter requested clarification on the meaning of the term

"acutely or chronically toxic by inhalation." in WAC 173-303-640(5)(e).

Response: The Department of Ecology is not proposing any amendment to this section of

Chapter 173-303 WAC. Ecology will reply to this question under separate cover.

C)

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Comment 218: Closure by removal standards of WAC 173-303-610(2) should be

referenced instead of 40 CFR 264.111.

Response: This rule was initially promulgated by EPA when federal interim status and

final status closure standards were conformed. It applies to facilities that closed under

Interim Status prior to 1986 when interim status clean-up standards were less stringent

than those for Final Status facilities. The closure by removal 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 permit is required for a facility if federal fined

status clean-up standards cannot be demonstrated, regardless of whether or not a

. certification of closure was received. The decision by Ecology to reference the federal

closure standard was made so that facilities would not be forced to close to a more

stringent standard than what was intended 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

discharge to insure that treatment levels are being achieved, and certain water quality

standards in'the receiving stream are met. Ecology will continue 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 "AKART' (all known, available, and

reasonable methods of prevention, control, and treatment of pollution) in the previous

v~rsion of the rule will be deleted, as proposed.

Comment 220: The regulations should allow elementary neutralization units (END's) and

totally enclosed treatment facilities (TETF's) to have permit by rule status if the treated

waste from these units are subsequently sent to a permitted 1'5D..

67
Response: This "is a point well taken. However, because of time constraints, this 0

suggested change willbe an issue to address in the next round of amendments. As an

alternative, and for the present time, generators already have an option to treat wastes

and ship "residues to a TSDthrough the "treatment by generator" provisions. Ecology has

a recently revised Technical Information Memorandum, TIM No. 86-3 (revised July 1993)

for public distnbution which includes all-the information relevant to "treatment by

generators". Also, a generator provision for TBG was proposed at WAC 173-303-170(3).

Comment 221: We suggest that Ecology modify the regulation [Permit by Rule] to clearly

identify and codify associated PBR requirements, such as annual reporting, waste

anaiysis, and "counting" towards a generator's Quantity Exclusion Limit (QEL).

Response: Ecology agrees that WAC 173-303-802(5), Permit by Rule, could be changed

to make it more understandable by listing all the specific requirements in the rule.

Unfortunately, it is too late in this current round of regulation amendments to address

this issue. Ecology will put this issue on the list of issues to revisit in the next round of

amendments. For the interim, Ecology will consider 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 of characteristic hazardous waste that are originally wastewaters at the

point ofgeneration is not illegal.

Response: While the federal rules have a provision allowing the mixing of characteristic

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 another waste

stream is for the purpose of treatment, 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 stream with 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)

Comment 223: Two cornmenters were opposed to the proposed waste analysis plan

requirements for elementary neutralization units.

Response: The department believes that general waste analysis is a basic requirement

appropriate for all waste 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.

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• ... :.:'.....

Comment 224: The commenter stated that neither .640(7) or (8) contains any contingency

plan requirements.

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.

. ;':.:-;:.:' .>;.".;.:-;.:.::=::: ::::::;:; ;.:.;.:.:.;.:-:.:." -:.".;.-.:..:-:-;.:...::>-.:.:"' - , ,........ " ..-."-:" :.:. - "" :;:: .

.

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

,.:.:-:.:-:-:;:;;.:<::.:-:::.:< ';':::;:;:::;:';':X::::::;::::;)::::::;{}:;:::;::;:;: ; _ : _ :.;.: :.:->..;.:-..:«.;.:.:;:::':;:::::-:':::':;::::::.:::::-::;:::;:;::::.':':-." .". '.:':,:;:;::-::;>;::;=;:;:: :::.;.::::..:.;;:.::. ':'.';;":<.:'.;:'::',:: ..<._.::.-:::-:':-.':-:;". :::-::;:;::.;:..:::::::..;:::-::.•.::::..:-.......... .

•

Comment 225: 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

similar statement 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) will be taken into consideration during future rule-making.

II

· .. ··Il.J!1i!t~~.• •••~~.:~!~!!!~~::.~~.•..RITERL\ .•.6.·..•.·.••.•.:.:.•.:.:.i.:.•.·.••.•.'.'.••.•.•..:.•..•..•..:.'..:•:.:.:..:.'..:,.••.•·.•••.•·.··'·!·:·a~~:::::·:·l.:.!..:!li:! •••·.·...:.•11 • }~{ : ::-: :::::::-:. ::::::::'.::::<:-:::::::.:-::;.:.:: .' , ' :::::::::::::::::::::::.::::::::::::::::::::>: .: ::-::••:::::::::::::- : ..

Comment 226: Two commenters inquired about the basis for changes in waste quantity

boundary between DW and EHW toxic dangerous wastes in the proposed rule.

•

Response: Ecology proposed 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 of EHW designated waste would be 2.2 pounds, 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 graph will be retained.

Comment 227: One commenter expressed support for the proposed rule.

Response: The support is acknowledge; however, see the previous response.

69
Comulme

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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 generator waste" were

removed from the area of the graph below 220 pounds for DW toxic dangerous wastes.

The reason for this change was 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 dangerous wastes. 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 of 220

pounds. For toxic dangerous wastes, a waste designated EHW has a quantity exclusion

limit of 2.2 pounds. To determine if a generator can qualify as a small quantity

generator, the generator, aggregates, or sums; all waste quantities on-site with common

quantity exclusion limits. Under the proposed rule, all designated wastes have a quantity

exclusion limit of either 2.2 pounds or 220 pounds. Toxic dangerous waste designated

DW, wr02, would be aggregated, by quantity, With other wastes 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 of both 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 EHW because of the variable quantity function. As in other

designation sections, a generator first determines a waste's designation and then 0"

determines if the 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 regulated below 1%.

Response: The graph will be amended in the final rule to clarify that the DW range does

not apply to PAH dangerous wastes. .

Comment 230: 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 of the quantity axis is impossible because of the

limitation of using 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.

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JUsponse: In the proposed rule the words "small quantity generator waste" were removed

from the area of the graph below 220 pounds for persistent dangerous wastes. The

reason for this change was to recognize that many generators 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 new language 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. For persistent 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 common quantity exclusion limits.

Under the proposed rule, all designated wastes have a quantity exclusion limit of either

2.2 pounds or 220 pounds. Persistent dangerous waste would be aggregated, by quantity,

with other wastes on-site with 220 pound quantity exclusion limits.

Antifreeze

Comment 232: Ecology has been publishing "regulations" about antifreeze containing

ethylene glycol. These practices should be placed into the regulation or eliminated.

Calling such wastes 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 of antifreeze. This pilot project allows generators who recycle used

antifreeze and follow specified best management practices (such as tracking and record

keeping) to discontinue "counting" used antifreeze toward their monthly hazardous waste

totals. The pilot project will last for 18 months and at that time the project will be

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)

Comment 233: To make it easier for a person unfamiliar with 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

also recommend that the existing WAC 173-303-070(8) be moved to a new section, WAC

173-301-073 so that the Small Quantity Generator requirements will be easier to locate.

Response: Ecology appreciates the suggestion and agrees that a definition and separate

section for small quantity generator provisions would make it easier for a person

71
unfamiliar with the rules. The suggestion will be reviewed and considered during future 0, rule-makings.

Teratogens

Comment 234: Washington state should comply with the intent of our hazardous waste

law and regulate toxic chemicals that are teratogens. According to a recent General

Administration Office report, 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

Comment 235: .It would be a tremendous help to the regulated community if Ecology

would include a flow chart on waste designation. This would clarify when a waste

designation procedure would stop.

Response: Ecology agrees that a waste designation flow chart would be helpful. The

suggestion will be considered in future rule-making.

Chapter 173·304 WAC • Minimum Functional Standards for Solid Waste

Landfills

Comment 236: The commenter feels Ecology has failed to amend the DW Regulations to

take account of the improved protection now required at solid waste facilities, which

significantly reduces environmental hazard. The DW Regulations are designed to

distinguish between those materials that can be disposed of safely at a SW landfill and

those that should be disposed of at a hazardous waste facility with additional

environmental protection. Ecology should amend the DW Regulations, and in particular,

WAC 173-303-100(7), to distinguish those low-risk materials that no longer conceivably

present a significant threat to the environment if disposed of in an improved SW landfill.

Response: Ecology recognizes the improvement in Solid Waste Landfills and

acknowledges the importance of managing 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 of the objectives of the

upcoming regulatory reform project will be to determine when wastes should be managed

as hazardous and when management as solid waste is appropriate.

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Gen:eral Discussion: Corrective action rule amendments were designed to facilitate

Ecology's implementation of a RCRA corrective action program which was consistent

with (1) the philosophy of EPA's existing corrective action program and (2) State cleanup

requirements under the Model Toxics Control Act. Additionally, Ecology developed the

proposed amendments to be adequate to support its 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 of MTCA to compel corrective actions. Some commenters expressed

guarded support of the conceptual frame of the Alternative Authorities Initiative, but had

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 many commenters 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's dangerous waste regulatory program is largely a preventative program,

focused on waste minimization, waste management standards, and compliance monitoring

and designed to minimize or eliminate the need for corrective action at dangerous waste

management. facilities. In designing a state corrective action program, Ecology has

attempted to find a balance between the preventative and remedial aspects of dangerous

waste regulation. ,-

The term "corrective action" refers to federal requirements stemming from the 1984

Hazardous and Solid Waste Amendments (HSWA) to the federal Resource Conservation

and Recovery Act (RCRA). The HSWA amendments significantly increased 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

significant number of hazardous waste management facilities that received RCRA

permits were becoming Superfund cleanup sites due to releases of hazardous 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 of hazardous waste

management facilities, Congress provided EPA a mechanism to address hazardous waste

contamination without depleting the publicly funded Superfund.

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In-)lJ1y, 1985, EPA published th:e first HSWA Codification-fule(50FR 28702), including

regulatory language for corrective action at solid waste management units (40 CFR §

264.101).The July, '1985, Federai 'regulations,.requireowner/cperators of facilities

seeking a perinit for the treatment, storage or disposal 'of hazardous waste to: 1)

Institute corrective action as necessary to protect human health and the environmentfor

all releases- ofhazardous waste' and constituents from any and all solid waste ,

management units at the facility regardless of the time at whichwaste was placed in such

units,and 2)Specify corrective action,-schedules of compliance for such corrective action,

and assurances of financial responsibility for completing corrective action in all final

RCRA permits. "

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

permit for the treatment, storage or disposal of hazardous waste to: Implement

corrective actions beyond the facility property boundary where 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-site measures

to address such releases as determined by EPA on a case-by-case basis, and to provide

assurances of financial responsibility for such corrective action. '

In July, 1990 (55 FR 30798) EPA proposed detailed regulations for corrective action,

known as "draft Subpart S", referring to their draft status and to their anticipated subpart 0

in 40 CFR Part 264. Draft Subpart S has not yet been completely finalized, however

EPA is using portions of the proposed rules as guidance in implementing corrective

action requirements. On February 16, 1993, (58 FR 8658) EPA finalized regulations

governing corrective action management units (CAMUs) and corrective action temporary

units (TUs). '

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 within EPA and confusion in the regulated

community.' hi addition, since many contaminated sites have cleanup responsibilities

under both RCRAand Superfund, facility owner/operators are potentially liable for two

environmental cleanups, a Superfund cleanup and a RCRA corrective action. Ecology

observed a similar potential for "double jeopardy" between RCRA corrective actions and

MTCA cleanups. In considering a state corrective action program, Ecology questioned

the efficiency of establishing a new cleanup program for dangerous waste facilities when

effective cleanup standards and procedures were already in place under the Model Toxies

Control Act. In order to 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

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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 "double jeopardy" 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 of environmental cleanup requirements. This Will be the first EPA

authorization of a 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

effort between 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 of MTCA's cost-recovery provisions;

and 6) Save significant resources usually associated with "start-up" of a new regulatory

program.

It is important to note that corrective action requirements only apply to owner/operators

of facilities which treat, store, or dispose of dangerous waste in a manner which 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. .

Comment 237: One commenter requested clarification of Ecology's intent in proposing

the provision at WAC 173-303-646(3)(c). . .

Response: Ecology's intent is to emphasize that the MTCA ban on administrative review

remains in effect when corrective action requirements imposed pursuant to M'!CA are

incorporated by reference into RCRA permits.

Comment 238: 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 the final rules.

Response: Ecology's intent in' promulgating the phrase, "the Director may designate no

CAMUs at a facility." was to emphasize the discretionary nature of Corrective 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 of implementing corrective actions

required byWAC 173-303-646(2), the Director may 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

Director may 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

75
desilWatinK a CAMU. the Director shall specify requirements 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 of implementing the corrective action requirements of WAC 173-303-646(2).

A CAMU shall only be used for the management of remediation wastes pursuant to

implementinK such corrective action requirements at the facility. ..

Comment 239: Several commenters asserted that the qualifying phrase, "however, when

necessary to protect human health and the environment, the department may require

remediation waste 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) standard which the department believes

necessary to ensure protection of human health and, the environment. These standards

could potentially include 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 of remediation wastes, as defined in

WAC 173-303-040 into or within a CAMU does not constitute land disposal of dangerous

waste."

Comment 240:' Many commenters expressed concern that Ecology was extending

corrective action requirements to all releases 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

significant expansion 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

existing state (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 all releases does not subject the regulated community to any

additional or new requirements. Ecology will apply for federal authorization of a

corrective action program which relies on the Model Toxies Control 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

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using existing 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 of MTCA 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 will be a

hybrid of RCRA 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 authority will be utilized in implementing corrective action

requirements. Corrective action requirements imposed in orders or consent decrees

issued pursuant to MTCA will be incorporated into RCRA operating and post-closure

permits, at the time of permit issuance. The Alternative Authorities Initiative will be

administered and implemented by 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, permitted hazardous waste management facilities were

potentially becoming Superfund cleanup sites. In the Legislative History to RCRA

Section 3004(u), Congress wrote: "Current EPA regulations 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 of EPA

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 all hazardous 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

prospect for 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 all releases of hazardous waste and constituents at facilities regulated

under RCRA.

Ecology similarly believes that facilities seeking or required to have permits to treat,

.store, or dispose dangerous waste, including facilities operating under interim status,

should be required to address releases of dangerous waste and dangerous constituents

prior to or as a condition of permit issuance. To ensure that such facilities do not

become-a potential burden to the State, Ecology firmly believes that such cleanups

should be accomplished in a manner consistent with existing state cleanup law and

regulations (Model Toxics Control Act).

Regarding commenters specific suggestion that Ecology limit corrective action

requirements to releases from solid waste management units, Ecology rejects the premise

77
that dangerous waste management facilities should be allowed to operate with continuing 0

releases to th

t

e ~ntsviroEcnmlent ~~IPltY becauthse ~~;h releasbes cannot be 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 and the

environment and place a cleanup burden on the State at the end of the operating life of

the facility. Ecology believes 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 of their legitimate cleanup

obligations. .

Ecology believes many of the concerns expressed over the extension of corrective action

jurisdiction to cover all releases stem from a perception that any discharge of a

hazardous substance, no matter how minor, will be subject to a fully overseen agency

cleanup or that dangerous waste management facility permits will be "held up" during

such cleanups. One commenter wrote, "Ecology should explain how it intends to make

these programs dovetail in a way that will not 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 of elevated levels of hazardous 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 of information used to make this judgement. However, Ecology

would also consider the areal extent of contamination, the magnitude of any cleanup

standard exceedances, and the site characteristics in making a determination that further

study is needed. The same factors would also be 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 given facility 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 RCRA Facility Assessment (RFA), which is analogous to the MTCA Initial

Investigation/Site Hazard Ranking process. The RFA includes: (1) a desk top review of

available information 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 other information, Ecology

may determine that no further corrective action is required at the facility or will assign

each facility a corrective action priority ranking.

The second stage of the corrective action process is the RCRA Facility Investigation

(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 of contamination 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 specifically address 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 other information, that cleanup is likely to be

necessary. In the third stage of corrective action the facility owner/operator will 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. If Ecology determines remediation is necessary, the

Agency will specify a remedial alternative, cleanup levels, and points of compliance in a

draft Cleanup Action Plan (CAP). The Cleanup Action Plan is analogous to the

Statement of Basis 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 of permitting will be

incorporated into RCRA operating and/or post-closure permits at the time of permit

issuance.

Ecology would further note that application of corrective action jurisdiction 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 of dangerous.

waste and dangerous constituents at facilities seeking or required to have a permit are

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adequately addressed or remediated so that such facilities do not pose an ongoing threat 0

to human health or the environment. \

Com11U!nt 241: Similar to the concern expressed over corrective action for all releases,

many commenters asserted that the proposed definition of dangerous constituent was

overly broad. Most commenters who expressed concern over the scope of the 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, Ecology believes it is important to include in the definition of dangerous

constituent all substances potentially regulated by MTCA

Although Ecology's jurisdiction under the proposed definition of dangerous 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 of concern 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 of dangerous 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 of waste characteristics or where there is the potential for a wide spectrum of

dangerous wastes or constituents tobe released (such as, at a commercial dangerous 0

waste management facility) would facility owner/operators routinely be required to

perform extensive analysis for a broader spectrum of constituents.

Comment 242: One commenter suggested Ecology use an existing term to define the

universe of substances subject to corrective action.

Response: Ecology recognizes that the proposed definition of dangerous constituent and

existing definition of dangerous waste constituent may seem duplicative 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

of those potential inconsistencies that Ecology proposed a definition of dangerous

constituent "for the purposes of corrective action" and placed the proposed definition at

WAC 173-303-646(c) instead of WAC 173-303-040. Ecology regrets that conforming the

regulatory use of the terms dangerous constituent and dangerous waste constituent is "

beyond the scope of this 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 of mixed wastes since those

substances are addressed under the Atomic Energy Act (AEA).

O

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Response: Ecology agrees that radionuclides and the radioactive component of mixed

waste are addressed under the Atomic Energy Act. We also recognize that radionuclides

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are included in the definition of hazardous substances promulgated at WAC 173-340-200,

and by reference in the definition of dangerous constituent proposed at WAC 173-303-

646(c). We understand that these references could cause the appearance of joint

regulation of radionuclides, however, it is Ecology's intent to complement rather than

supersede AEA regulations. For example, the Department of Energy shares radionuclide

data with Ecology in order that Ecology can consider all properties of mixed waste

subject to dangerous waste regulations and can respond properly to spills of mixed

wastes. The department sees no compelling reason to specifically exempt radionuclides

from the definition of dangerous constituent at this time. Ecology will consider cleanup

actions taken under other statutory and regulatory authorities,- including the AEA, when

assessing the necessity for corrective action.

Comment 244: One commenter specifically questioned Ecology's legal authority to

include hazardous substances in the proposed definition of dangerous 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 of the state depend on clean

and pure environmental resources unaffected by hazardous waste contamination."

Comment 245: 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/operator from 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 agency approval/acceptance of independent actions will be 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 caused by our imprecise language. Our

intent was, indeed, to emphasize that agency approval/acceptance of independent MTCA

actions would be required within the corrective action context. Our intent was not to

discourage or preclude in any way independent cleanup actions, which Ecology believes

often provide for timely, appropriate, protective and cost-effective remedial activities.

Ecology emphasizes that MTCA independent actions which have, as one of their 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 of applicable 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 facility owner/operator; 2) The independent corrective action cleanup

81
must explicitly address all current and historic solid waste management units (including

RCRA regulated units) at a facility and must assess those units releases and/or potential

releases. Information on agency identified solid waste management units at a particular

dangerous waste management facility may be obtained by requesting a copy of the

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 Of Information 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 facility boundary.

Ecology will address this issue more completely through development of guidance for

owner/operators of RCRA facilities who wish to include corrective action obligations in

their implementation of an independent MTCA cleanup.

In a more general sense, Ecology wishes to emphasize that completion of an independent

cleanup cannot be assumed to automatically fulfill corrective action requirements. As

discussed in our response to comments #240 and #250, Ecology (and/or EPA) 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 of a 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

Facility Assessment (RFA).

Comment 246: Several commenters objected to corrective action for all releases and the

definition of dangerous 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 of corrective action. One

.commenter wrote, "(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, including both 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

involve promulgation of "new" requirements. Ecology's proposed corrective action

regulations are based on existing regulations 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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Comment 247: Several commenters suggested Ecology defer both adoption of corrective

action requirements for all releases and the proposed definition of dangerous 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 discussed program implementation in our response to comment #240.

While Ecology understands 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 of corrective action

regulations. Regarding a detailed corrective action implementation plan, Ecology is

currently preparing a detailed application for federal authorization of a State corrective

action program based on the proposed regulations. The draft application includes

detailed discussions of potential workload and resource impacts on Ecology's Regional

and Headquarters offices and of corrective action implementation. The completed

authorization application Will be formally submitted to EPA Region 10 for consideration.

EPA Region 10 will make a preliminary authorization determination and make such

determination available for public review and comment through publication in the

Federal Register. After it 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 a burden to small-scale remedial projects.

Response: Comment noted. If an owner/operator believed a CAMU was unnecessary for

his/her remedial project or believed a CAMU would constitute a burden to the remedial

project, he or she is under no obligation to propose or construct a CAMU. Due to the

discretionary nature of corrective action management units, Ecology believes it is unlikely

their requirements will constitute a burden to small-scale remedial projects.

Comment 249: Three commenters asserted that inclusion of petroleum products in the

proposed definition of dangerous constituent was problematic, "causing, for example,

RCRA permits to require cleanup of petroleum hydrocarbons, which are exempt from

RCRA." °

Response: RCRA does not include a blanket exemption for petroleum products; releases

of petroleum and petroleum products at dangerous waste management facilities are

subject to RCRA corrective action. Ecology believes commenters may have been

referring to the RCRA exemption from the requirement to conduct TCLP 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.

Comment 250: One commenter requested clarification of the relationship of corrective

actions imposed pursuant to MTCA to non-corrective action MTCA cleanups and °

asserted that, "the RCRA program should not only use MTCA for enforcement, but

should recognize cleanups achieved under MTCA. Now that Ecology is making no

further action letters available, TSD operators who have performed an independent

cleanup under MTCA and had it approved should not face possible RCRA corrective

action. Conversely, the regulations should specify that when a party has performed a

RCRA closure or corrective action, Ecology will not apply MTCA later. This

coordination is especially important in light of the proposed huge expansion of RCRA

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

83
action authority andMTCA authority virtually coextensive at a TSD site. The two

programs should explicitly be integrated."

Response: The Hazardous Waste and Toxies Reduction Program fully intends to

recognize MTc:A cleanups (independent or agency overseen) which.have, through their

completion,' achieved site conditions which preclude or satisfy corrective action

requirements. Ecology believes that facilities which have undergone such MTCA

cleanups can appropriately be removed from consideration for corrective action based on

information gathered during the agency conducted RCRA Facility 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 other regulatory

programs or authorities.

o

In a more general sense, this comment points to a fundamental difference between

RCRA Corrective action and MTCA cleanup. TheMTCA cleanup process begins

following agency receipt of information 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

typically considered 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 facility be 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 consistency between 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 of cleanup programs; however, it cannot

eliminate the joint jurisdiction present at most dangerous waste management facilities, it

can only reduce and mitigate the areas of potential conflict between such jurisdictions.

Due to 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 automatically be deemed compliance with MTCA, just as compliance

with MTCA cannot automatically be deemed compliance with RCRA corrective action.

To summarize, Ecology emphasizes that if facility owner/operators, through compliance

with any given obligation, achieve site conditions which legitimately preclude or satisfy 0·

similar requirements 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

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individually review each site to ensure that corrective action is not required; in the case

of a corrective action cleanup, Ecology cannot 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

developing internal agreements and guidance to facilitate removing such facilities from

the hazardous sites list, as appropriate, at completion of their corrective action activities;

Comment 251: One commenter urged 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 40 CFR Part 264 subpart S require that CAMUs be

formally designated and approved by EPA 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 specify detailed CAMU design, operating, closure and postclosure requirements. Additionally, EPA or the authorized state must make CAMU

determinations and conditions available for public review and comment prior to CAMU

approval. The detailed agency approval and oversight. required by EPA for designation

of a CAMU precludes its use by facility 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, promulgated by

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 of the regulated

unit boundary for indicator parameters or constituents. Indicator parameters and/or

constituents are chosen based on their ability to indicate the likelihood of a release. If a

release is indicated through detection of an indicator parameter and/or constituent, the

facility owner/operator must test groundwater for constituents listed in 40 CFR Part 264

Appendix IX, and establish a groundwater protection standard for every constituent

detected above background 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 of groundwater contamination. After the groundwater has been.

fully characterized facility owner/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.

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The requirements of WAC 173-303-645 are analogous to federal requirements at 40 CPR c) Part 264 SUbpart F, and prescribe a specific approach to detection, characterization and /

cleanup of contaminated groundwater at regulated units. These requirements are

considered self-implementing, in that facility owner/operators are responsible for

constructing and maintaining a detection monitoring system as a condition of operating a

RCRA regulated unit. Although the requirements are considered self-implementing, as

facility owner/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 of indicator constituents; Ecology will review and

approve compliance monitoring plans). Neither the current nor the proposed regulations

specifically preclude voluntary non-HSWA corrective action. Although it is feasible that

a facility owner/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

allow owner/operators of facilities subject to non-HSWA corrective action to fulfill the

requirements for remediation of releases through an appropriate non-HSWA corrective

action cleanup order, issued, in part, pursuant to MTCA. Ecology's intent in proposing

this amendment was to provide for coordination of HSWA and non-HSWA corrective

actions at any given facility. The amendment allowing Ecology to use MTCA to compel . c-")\ the remedial portions of non-HSWA corrective action in no way alters any facilities'

obligations to comply with existing WAC 173-303-645 requirements. Any non-HSWA

corrective action activities compelled prior to permitting would be incorporated into

facility operating or post-closure permits at the time of permit issuance.

Comment 253: Several commenters requested clarification of the 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 of the requirements is uncertain."

Response: Financial assurance for completion of corrective action activities is required by

EPA within 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/operator is able to

implement any approved interim or conditional remedies. Additionally, it is EPA Region

10's policy to require corrective action financial assurance to demonstrate that a facility

owner/operator has the ability to complete an agency approved RFI and/or CMS work

plan. .

Detailed regulations for Financial Assurance for Corrective Action (FACA) were

proposed by EPA on October 24, 1986. These proposed regulations are being used as

agency guidance pending the finalization of national corrective action regulations. Under

the federal guidelines, corrective action costs are estimated in two parts, (1) a year-by- U"\

year current cost estimate of required corrective actions in undiscounted current dollars,

and (2) the sum of these year-by-year estimates of corrective action costs. FACA cost

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estimates must be adjusted annually to account for inflation using either recalculations in .

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

Deflator for the Gross National Product published by the Department of Commerce.

EPA requires that corrective action costs be estimated using third-party costs rather than

first-party costs (i.e., costs of contractor labor rather than the owner/operator's own

labor). Under EPA's guidance, facility owner/operators may demonstrate financial

assurance through one or more of the following mechanisms from 40 CFR 264 Subpart

Hand 40 CFR 265 Subpart H, as applicable: trust fund, surety bond guaranteeing

performance, letter of credit, financial test, or corporate guarantees.

Ecology intends to implement FACA requirements for facility investigations on a case-bycase basis; financial assurance for completion of remedies will be required in a manner

consistent with the federal guidelines discussed above. In the context of the Alternative

Authorities Initiative, Ecology anticipates that FACA will 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 of operation 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 is preparing additional guidance on financial assurance for corrective action and

will make such guidance available as soon as possible. EPA has published detailed

guidance for estimating closure and post-closure costs. Ecology believes these guidelines

could be extrapolated to address corrective action cost estimating, as appropriate.

Additionally, the following reference materials may be 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 Snow Means Company.

Comment 254: 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 "real property, improvements and appurtenances."

Response: Comment noted. Since one of the primary goals of the Alternative Authorities

Initiative and the proposed amendments is to ensure consistency between RCRA

corrective actions and MTCA cleanups, Ecology sees no reason to limit the 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 of dangerous 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 facilities were inappropriate given that EPA will, retain

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corrective action authority under RCRA Section 3008(h). This commenter suggested

that a more reasonable approach would be for Ecology to "enter into a memorandum of

understanding with EPA Region 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 of corrective action pursuant to 3008(h) authority. As

part of Ecology's application for federal authorization of a corrective action program, we

are negotiating with EPA Region 10 to include 3008(h) notification and comment

provisions in the State/EPA Memorandum of Agreement. It is the stated goal of Ecology

and EPA to work as partners to ensure timely, effective and efficient implementation of

the RCRA program, including provisions for RCRA corrective action, in Washington.

Comment 256: 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 RCRA Facility Assessment or other information) 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 of releases of dangerous waste

and dangerous constituents. Additionally, all operating and post-closure RCRA permits

issued after the effective date of the HSWA amendments must contain provisions for (-)

corrective action (as necessary to protect human health and the environment) and

schedules of compliance for completion of corrective action activities. Facility

owner/operators who wish to conduct an independent cleanup in an attempt to achieve

site conditions which preclude or satisfy corrective action requirements are encouraged to

work closely with the department and to see the response to comment #243, above.

Comment 257: Two commenters suggested Ecology defer adoption of any corrective

action requirements until EPA promulgated 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 RCRA corrective 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 of corrective action requirements and the

Alternative Authorities Initiative. Ecology notes that EPA recently finalized portions of

proposed Subpart S, including the definition of facility for the purposes of corrective

action, a definition of remediation 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 that Ecology would "cannibalize"

existing resources to fund a state corrective action initiative.

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&sponse: Comment noted.. 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.

Comment 259: One commenter suggested Ecology defer adoption of corrective action for

all releases until the upcoming evaluation of the state-only program is complete.

&sponse: Comment noted. Ecology has no plans to examine corrective action

requirements in the context of the state-only program evaluation.

Comment 260: Several commenters expressed support for Ecology's adoption of CAMU

regulations. One commenter wrote, "(We) strongly support inclusion of the corrective

action management unit provisions in the regulation. This action will serve to expedite

corrective actions and encourage utilization of treatment technologies..."

Response: Ecology acknowledges the support.

Comment 261: One commenter supported the use of MTCA for corrective action.

Response: Ecology acknowledges the support.

Comment 262: 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 review their definition of facility for purposes of corrective action which is to

include all property under the control of the permitted facility and that is a slightly

different definition than the definition for facility. 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 of facility 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 of facility for the purpose of corrective action is

different from other definitions of facility in that, for the purpose of implementing

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.

Comment 263: One commenter pointed out inconsistencies in use of language in

Ecology's proposed definition of release and suggested revising the definition to read, in

pertinent part, "...disposing of dangerous waste or dangerous waste constituents as

defined..."

Response: Comment noted. Ecology has made the suggested language change, however,

the suggested use of the phrase dangerous waste constituent is inconsistent with Ecology's

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intent to include in the definition of release all dangerous constituents as defined for the C~\

purposes of corrective action at WAC 173-303-646(2)(c). The revised definition of _/

release at WAC 173-303-040 reads: ''Release means any intentional or unintentional

spilling, leaking, pouring, emitting, emptying, discharging, injecting, pumping, escaping,

leaching-dumping, ordisposing of dangerous waste, or dangerous constituents as defined

at WAC 173-303-646(1)(c), into the environment and includes the abandonment or

discarding of barrels, containers and other receptacles containing dangerous wastes or

dangerous constituents and includes the definition of release at RCW 70.105D.020(10)."

Comment 264: _One commenterexpressed concern that the proposed definition of

releases included "any" intentional or unintentional spilling, leaking, pouring,

emitting...etc. The commenter asserted that the "literal application of this 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 the jurisdiction mandated by the definition of release is, indeed, broad,

application of corrective action jurisdiction is mandated only ''where necessary to protect

human health and the environment". Ecology notes that the state definition of release is

consistent with the federal release definition proposed in draft Subpart S. The reference

to the definition of release at RCW 70.105D.020(10) is included to ensure that corrective

action cleanups are conducted in a manner consistent with MTCA cleanups.

Comment 265: One commenter expressed concern regarding the proposed definition of

Solid Waste Management Unit (SWMU), asserting, "If there were relatively small

quantities of materials 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: Ecology emphasizes that, although corrective action jurisdiction is broad, the

applicability is quite limited. As discussed above, a facility becomes subject to corrective

actions as a condition of its dangerous waste management activities, that is, by conducting

regulated treatment, storage, or disposal of dangerous waste. Even at facilities subject to

corrective action, if a facility owner/operator can demonstrate to Ecology's satisfaction

that conditions at the facility pose 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 commenter used as an example of a potential SWMU,

"(disposal) of used solvents in a dry well...essentially allowing the 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 likely require that such a unit be investigated

completely before making a determination regarding the risks or potential risks posed by

the unit and the, necessity for active remediation or corrective action at the Facility.

Comment 266: One commenter pointed out that, although Ecology requires corrective

action, as necessary to protect human 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 only information on Solid Waste

Management Units.

Response: Comment noted. Ecology has revised the proposed regulations to eliminate

this inconsistency and require facility owner/operators to submit information on known

releases of dangerous 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

of dangerous 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 of the 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)) present in the release, to the extent

available." .

Comment 267: 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 of federal cleanup requirements,

which are complex enough already. If the purpose of revising this legislation is in part to

make it understandable 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

conforming RCRA corrective actions and MTCA cleanups may seem, in the short term,

unnecessarily complex. In order to further address these complexitiea Ecology is

committed to developing general guidance on the corrective action process and specific

guidance on the more complicated aspects of corrective action implementation.

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