PROPOSED RULES
Original Notice.
Preproposal statement of inquiry was filed as WSR 04-04-101.
Title of Rule and Other Identifying Information: Dangerous Waste Regulations, chapter 173-303 WAC, the dangerous waste regulations set forth the requirements for determining if solid wastes are dangerous wastes, establish a system for tracking dangerous waste from initial generation to treatment or disposal, and establish requirements for facilities so that all dangerous wastes are managed safely and responsibly in Washington state.
Hearing Location(s): Video conference hearings will be held simultaneously at the University of Washington, Tacoma, Administrative Building, Room BHS107, 1900 Commerce Street, Tacoma, WA 98402-3100, 1st floor room, above the street-level businesses (Starbucks), link to site location information http://www.tacoma.washington.edu/media/video/; at the Spokane Community College, 1810 North Greene Street, Spokane, WA 99207-5399, Room - Instructional Media Lab; at the University of Washington, Seattle, Magnuson Health Sciences Center, Computing and Communications, UWTV, T-Wing Room 239, 2nd floor, near the Health Sciences Center Library, N.E. Pacific Street near 15th Avenue, Seattle, WA 98195-7150, campus map http://www.washington.edu/home/maps/southcentral.html; and at Yakima Valley Community College, 16th Street and Nob Hill Boulevard, Yakima, Washington 98907, on August 10, 2004, at 1 to 4 p.m.
Date of Intended Adoption: November 30, 2004.
Submit Written Comments to: Patricia Hervieux, P.O. Box 47600, Olympia, WA 98504-7600, e-mail pher461@ecy.wa.gov, fax (360) 407-6715, by September 10, 2004.
Assistance for Persons with Disabilities: Contact Marnie Black by August 2, 2004, TTY (800) 833-8973 or (360) 407-6759.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The proposed amendments will bring the state regulations current with federal requirements, and will update other requirements including implementing the hazardous waste facilities initiative on recycling and used oil facilities.
Reasons Supporting Proposal: Proposed amendments related to federal rules: Ecology is proposing to adopt several federal hazardous waste rules into the state dangerous waste regulations. Many are proposed with language identical to the federal rule. Others are proposed with differences between the state and federal version. The rule titles and Federal Register references of the federal hazardous waste rules proposed for adoption are listed below. The text of the summary paragraphs that appeared in the Federal Register was included in ecology's public draft that was available for review earlier this year. However, due to space constraints, only the titles and dates of the federal rules appear below. More detailed information appears on ecology's website with the text of the proposed rule or may be obtained from the department.
Federal hazardous waste rules proposed for adoption essentially unchanged from the federal version include the following: 1) Imports and Exports of Hazardous Waste: Implementation of OECD Council Decision C(92)39 Concerning the Control of Transfrontier Movements of Wastes Destined for Recovery Operations 61 F.R. 16290-16316; 2) Hazardous Waste Management System; Carbamate Production, Identification and Listing of Hazardous Waste; Land Disposal Restrictions 62 F.R. 32974-32980; 3) Second Emergency Revision of the Land Disposal Restrictions (LDR) Treatment Standards for Listed Hazardous Wastes From Carbamate Production 62 F.R. 45568-45573; 4) NESHAPS: Final Standards for Hazardous Air Pollutants for Hazardous Waste Combustors; Final Rule 64 F.R. 52828-53077; 64 F.R. 63209-63213; 5) Land Disposal Restrictions Phase IV: Final Rule Promulgating Treatment Standards for Metal Wastes and Mineral Processing Wastes; Mineral Processing Secondary Materials and Bevill Exclusion Issues; Treatment Standards for Hazardous Soils, and Exclusion of Recycled Wood Preserving Wastewaters 64 F.R. 56469-56472; 6) 180-Day Accumulation Time Under RCRA for Waste Water Treatment Sludges From the Metal Finishing Industry 65 F.R. 12378-12398; 7) Organobromines Production Wastes; Petroleum Refining Wastes; Identification and Listing of Hazardous Waste; Land Disposal Restrictions 64 F.R. 36365-36367; 8) Change of Official EPA Mailing Address; Additional Technical Amendments and Corrections 66 F.R. 34374-34376; 9) Hazardous Waste Management System; Identification and Listing of Hazardous Waste: Inorganic Chemical Manufacturing Wastes; Land Disposal Restrictions for Newly Identified Wastes; and CERCLA Hazardous Substance Designation and Reportable Quantities 66 F.R. 58258-58300; 67 F.R. 17119-17120; 10) NESHAP: Interim Standards for Hazardous Air Pollutants for Hazardous Waste Combustors (Interim Standards Rule) 67 F.R. 6792-6818; 11) Zinc Fertilizers Made From Recycled Hazardous Secondary Materials 67 F.R. 48393-48415; 12) Land Disposal Restrictions: National Treatment Variance To Designate New Treatment Subcategories for Radioactively Contaminated Cadmium-, Mercury-, and Silver-Containing Batteries 67 F.R. 62618-62624; and 13) NESHAP: Standards for Hazardous Air Pollutants for Hazardous Waste Combustors-Corrections 67 F.R. 77687-77692.
The following federal regulations that are proposed for adoption either contain differences from the federal version or have extra explanatory information: 14) Hazardous Waste Combustors; Revised Standards; Final Rule-Part 1: RCRA Comparable Fuel Exclusion; Permit Modifications for Hazardous Waste Combustion Units; Notification of Intent To Comply; Waste Minimization and Pollution Prevention Criteria for Compliance Extensions 63 F.R. 33782-33829; 15) NESHAPS: Final Standards for Hazardous Air Pollutants for Hazardous Waste Combustors; Technical Corrections 65 F.R. 42292-42302; 66 F.R. 24270-24272; 66 F.R. 35087-35107; 16) Hazardous Waste Identification Rule (HWIR): Revisions to the Mixture and Derived-From Rules 66 F.R. 27266-27297; 17) Amendments to the Corrective Action Management Unit Rule 67 F.R. 2962-3029; 18) NESHAP: Standards for Hazardous Air Pollutants for Hazardous Waste Combustors; Final Rule 67 F.R. 6968-6996; 19) Universal Waste for Mercury-Containing Equipment proposed by EPA on June 12, 2002 Hazardous Waste Management System; Modification of the Hazardous Waste Program; Cathode Ray Tubes and Mercury-Containing Equipment 67 F.R. 40508-40528; 20) Waste Minimization. HSWA Codification Rule, 50 F.R. 28702-28755, July 15, 1985 and Biennial Report Correction, 51 F.R. 28556, August 8, 1986; and 21) National Environmental Performance Track Program 69 F.R. 21737-21754, April 22, 2004.
Other proposed amendments not related to federal rules: Ecology is proposing other amendments not related to the federal rules listed above. Several editorial and technical corrections and clarifications are being made including citation corrections, form name changes, changing SIC codes to NAICS codes, updating references to solid waste rules by changing chapter citations from chapter 173-304 WAC to chapter 173-350 WAC, correcting citations throughout the rule, changing references from the Uniform Fire Code to the International Fire Code, and other minor technical corrections. Several of the more significant changes are described below. More detailed explanations are available from ecology.
Changes are also being made to update the publication Chemical Testing Methods for Designating Dangerous Waste. The draft changes are available for review in a separate document on ecology's website with the other rule information. The only related changes in the rules themselves are revision dates changes where references to the test methods appear.
WAC 173-303-045: July 1, 2003, is the new date for incorporation by reference of any federal requirements since it is the version of the federal rules that includes all newer rules that ecology is proposing for adoption with the exception of the performance track rule.
WAC 173-303-060: "Notification Form 2" is being changed to "Dangerous Waste Site Identification Form" here and at WAC 173-303-210(2) and 173-303-240 (6)(a).
WAC 173-303-070(8): This addition clarifies application of the used oil management standards to small quantity generator used oil. This intent was made clear in the Federal Register Notice in 1992. This addition provides consistency between the federal and the state rules.
WAC 173-303-110(3) Chemical Testing Methods Update: Citations to chemical testing methods are being updated to reflect revisions to state-only persistence criteria for halogenated organic compounds in Chapter 3, Section C of Ecology publication #97-407 'Chemical Testing Methods for Designating Dangerous Waste.'
WAC 173-303-190 (5)(b): The marking requirement in the June 2000 rule was inadvertently noted as applying to packages containing one hundred ten gallons. This change will include the intermediate bulk containers of greater than one hundred ten gallons but less than a thousand gallons and will also include cylinders within this range that are commonly used for antifreeze.
WAC 173-303-200 (2)(a)(ii): WAC 173-303-200 (2)(a) is being amended to clarify that contingency planning and general facility inspections are required for satellite accumulation.
WAC 173-303-300 (2)(a) and (b) and new definition in WAC 173-303-040 for "Knowledge:" Ecology is proposing to amend the regulations to clarify requirements for confirming and documenting information from a generator on a waste profile for a waste stream. Ecology believes the proposed amendment is consistent with general requirements in the existing rules to ensure sufficient information for waste designation (WAC 173-303-070) and proper management of the waste (WAC 173-303-300(2)).
WAC 173-303-400 (3)(c)(ix): A change is being proposed to require owners or operators of interim status facilities to submit a closure plan for partial closure of a tank, container storage, or incinerator unit at least forty-five days prior to the date they expect to begin closure of such a unit.
WAC 173-303-505(1): The proposed amendment provides ecology the discretion to accept a waste-derived fertilizer registration renewal without requiring new TCLP and HOC test data. This discretion is limited to renewals of waste-derived fertilizers that have provided this information to ecology at least twice before. The rule change requires the registrant to provide documentation that the source materials in the product have not changed.
WAC 173-303-515(13): This amendment to the used oil management standards adds a section that gives the agency the ability to require used oil generators to test their waste on a case-by-case basis to identify if the oil is on or off specification oil or to rebut the presumption that the oil is actually dangerous waste. This regulation will simplify testing requirements and be a benefit to used oil generators by allowing ecology to request the less expensive analytical tests for on-specification determinations rather than the more expensive tests for designation.
WAC 173-303-610 (3)(c)(i): This change requires owners or operators of final status facilities to notify ecology of a partial closure of a tank, container storage, or incinerator unit at least forty-five days prior to the date of which they expect to begin closure of such a unit.
WAC 173-303-640 (7)(d): These changes bring this subsection into alignment with the other sections in dangerous waste regulations that require reporting for spills.
WAC 173-303-802(5) and 173-303-040 Designated facility: This rule change will allow facilities that operate wastewater treatment units under permit by rule (PBR) to receive hazardous wastewaters that have been generated from off site. The scope of this rule change will be limited to the receipt of wastewaters from off site that are from a similar industry and have similar dangerous constituents to those in the wastewaters that are normally generated and treated by the host wastewater treatment unit. This change will not open up opportunities for businesses to operate under permit by rule and receive wastewater from unrelated off-site sources. The potential receiving facility must have a wastewater treatment unit that was designed to treat wastewaters that are generated on-site before it would be eligible to receive similar wastewaters from off-site generated by their associated businesses.
WAC 173-303-910 (1)(c) and (6)(f)(i) Petitions: The current forty-five day minimum public comment period in WAC 173-303-910 (1)(c) is being shortened for consistency with related requirements in the Administrative Procedure Act.
WAC 173-303-9904 W001 Listing: The state waste code for PCB is being changed from W001 to WPCB to prevent confusion since EPA now uses "W001" as a form code for the Hazardous Waste Report Instructions and Forms.
Hazardous waste facilities initiative: The proposed rules to implement this initiative will revise and strengthen current standards for the protection of human health and the environment for hazardous waste and used oil management facilities. They will also provide assurance that owners and operators of waste management facilities plan and pay for the eventual closure of their operations. This is done by extending requirements for developing plans for closing facilities, estimating the costs for closure, obtaining pollution liability coverage, and assuring that funds will be available to pay for closure for hazardous waste recycling facilities and used oil processors/rerefiners. Changes are also proposed to rules that apply to hazardous waste treatment, storage and disposal (TSD) facilities. These changes will reduce the range of financial options that facilities may select from, prohibit the use of subsidiary insurance companies (captive insurance), and require that financial institutions maintain a good rating by national rating agencies (Standard & Poor's, Moody's, A.M. Best).
Revisions are proposed to WAC 173-303-040, 173-303-120, 173-303-515, 173-303-610, 173-303-620, and 173-303-960: These revisions will not apply to on-site recycling or on-site used oil processing, collection of used oil or household hazardous wastes by cities and counties, or collection of farm pesticides by Washington Department of Agriculture. Origin of this proposal. Three facilities in Washington, including a recycler, a used oil processor, and a combination TSD/recycler/used oil processor failed and were abandoned during the period from 1999 through 2001. The department began assessing inadequacies and gaps in hazardous waste requirements that allow facility owners and operators to avoid accountability for the financial costs of removing and disposing of wastes; decontaminating equipment, tanks and buildings; and addressing threats to human health or the environment.
In 2002, ecology published a report to the legislature that outlined problems and inadequacies with the current system for regulating, permitting, maintaining public information, and funding ecology's oversight responsibilities for TSDs, recyclers and used oil processors (see http://www.ecy.wa.gov/biblio/0204028.html). Representatives from the waste management industry, large and small businesses, public interest and environmental organizations, and government (local, state and federal) were consulted during the process of identifying these problems and proposing solutions.
The proposed rules are intended to specifically address some of the problems that were identified. These rules will assure that owners and operators of hazardous waste recycling or used oil processing/rerefining facilities cannot close, abandon, or otherwise avoid paying for waste removal, disposal and decontamination of equipment and structures. Under current rules these facilities may shut down and leave the costs of controlling environmental threats, removing wastes and conducting sites cleanup to property owners, former customers, or taxpayers. For recycling facilities and used oil processors/rerefiners, these costs may often range from tens of thousands to several hundred thousand dollars. In some cases in Washington, the total cleanup costs have been several million dollars. Several examples are provided in the department's report to the legislature.
In the fall of 2003, two major options were presented to stakeholders for revising closure and financial responsibility requirements for TSD facilities, recyclers and used oil processors. Major features of these options included: Option 1. Revise selected requirements of financial mechanisms for TSDs. Extend traditional closure and financial responsibility requirements to recyclers and used oil processors/rerefiners. Option 2. Revise selected requirements of financial mechanisms for TSDs. Require recyclers and used oil processors/rerefiners to prepare and submit closure plans. Establish a maximum closure amount of $50,000 for recyclers and used oil processors/rerefiners with a provision that the amount may be lower if justified by a detailed closure cost estimate; and delete the requirement for pollution liability coverage.
Based upon comments received during an informal comment period and during comments from the public on our published intent to adopt rule (CR-101), Option 1, above, was chosen for proposal. The department considered the comments and determined that Option 1 provided the greatest level of confidence that the costs of closure would be accounted for and that the preparation of a site-specific cost estimate is scaled to the volume, types and risks associated with the wastes being managed. The primary disadvantages of selecting Option 1 are that it will result in higher direct costs for facility owners/operators for complying with closure and financial requirements, and to the department for administrative costs. Option 1 is also expected to indirectly result in higher costs to waste generators as facility owners/operators pass on their costs to customers.
Statutory Authority for Adoption: Chapter 70.105, 70.105D, and 15.54 RCW.
Statute Being Implemented: Chapter 70.105 RCW.
Rule is necessary because of federal law, 40 C.F.R. Parts 260 through 279.
Name of Proponent: Department of Ecology, governmental.
Name of Agency Personnel Responsible for Drafting: Patricia Hervieux, Lacey, Washington, (360) 407-6756; Implementation and Enforcement: Darin Rice, Lacey, Washington, (360) 407-6702.
A small business economic impact statement has been prepared under chapter 19.85 RCW.
The proposed revisions include adding mercury-containing devices to the universal waste rule, updating export requirements, adopting air emission permit rules, and amendments to corrective action rules. Changes to state-only requirements are primarily technical in nature; however, changes to implement the hazardous waste facilities initiative to extend financial requirements to recyclers and used oil processors and rerefiners will have some impacts on those who must comply.
As required under RCW 19.85.030, ecology is developing
and issuing this small business economic impact statement
(SBEIS) as part of this rule adoption process. Ecology will
use the information developed in the SBEIS as required by law
to ensure that the proposed rule is consistent with
legislative policy. The objective of this SBEIS is to
identify and evaluate the various requirements and costs that
the proposed rule might impose on business. In particular,
the SBEIS examines whether the costs on business that might be
imposed by the proposed rule impose a disproportionate impact
on the state's small businesses. This is consistent with the
legislative purpose of the Regulatory Fairness Act (chapter 19.85 RCW) and is set out in RCW 19.85.011: "The legislature
finds that administrative rules adopted by state agencies can
have a disproportionate impact on the state's small businesses
because of the size of those businesses. This
disproportionate impact reduces competition, innovation,
employment and new employment opportunities, and threatens the
very existence of some small businesses."
For purposes of an SBEIS, "business," "small business," and "industry" are defined by RCW 19.85.020. "Small business" means any business entity, including a sole proprietorship, corporation, partnership, or other legal entity, that is owned and operated independently from all other businesses, that has the purpose of making a profit, and that has fifty or fewer employees. "Industry" means all of the businesses in this state in any one four-digit standard industrial classification as published by the United States Department of Commerce.
The proposed dangerous waste rule developed by ecology as part of this rule-making process will be evaluated in the following sections of this document. Specifically, the following sections contain the information required by the Regulatory Fairness Act (chapter 19.85 RCW).
2. ANALYSIS OF COMPLIANCE COSTS FOR WASHINGTON BUSINESSES: The proposed rule includes revisions to the existing rule sections and new sections. In some sections, no changes were made. In other sections, the changes will have little or no impacts on those required to comply.
Generally, the dangerous wastes are divided into two categories, one is federally regulated dangerous waste, and the other is state-only regulated dangerous waste. Federally regulated dangerous waste may be subject to both federal and state requirements; on the other hand, state regulated dangerous waste may also be subject to both federal and state requirements, or only to state requirements. In order to discuss the cost impacts of the proposed rule revisions, it is necessary to consider the baseline from which the changes in requirements are measured. The baseline describes the circumstance without the proposed rule revision. Because the generators must comply with federal requirement and existing state requirement whichever is more stringent, the baseline can be chosen as the more stringent one of the two requirements, and the costs analyzed are the additional costs of the proposed rule revision relative to the baseline.
In the proposed revision, some changes originated from federal requirements, others clarify existing rule with no real change, some only add new examples, and some are editorial changes. All of these make no real change from the baseline, and will not have cost impacts on those who comply with the rule, so they are excluded from this SBEIS. This analysis only analyzes changes from the baseline that will result in additional costs. These changes can be summarized as changes of requirements for treatment, storage, and disposal (TSD) facilities, changes of requirements for generators, and changes of requirements for fertilizer registrants or manufacturers. Other areas of changes are for mercury, used oil, permit by rule, and financial assurance.
To investigate the economic impacts of these changes, RCW 19.85.040(3) states: To obtain information for purposes of this section, an agency may survey a representative sample of affected businesses... As such, ecology conducted a survey to determine the costs of compliance or saving of those who are required to comply if the proposed rule revisions are adopted. The survey was intended for different groups that will be affected by different requirements, and the following analyses are based on this survey. Although the survey identified both cost changes and cost saving changes, this analysis is only concerned about the cost aspects.
As in the survey, this analysis divides the proposed rule revision into seven different groups to analyze. It first introduces the proposed revisions that will impact each group, then analyzes the possible impacts to various businesses, and finally gives the cost per employee ratio to see if the proposed revision will have disproportional impacts on small businesses. The cost per employee ratio is directly calculated from the dangerous waste survey data. All data are annual data.
2.1 Transportation Storage and Disposal Site (TSD)
Partial Closures - WAC 173-303-400 (3)(c)(ix) and 173-400-610 (3)(c), this change would require a TSD facility to notify ecology when they begin to close an individual unit (tank, container, or incinerator unit) rather than waiting to notify ecology when the TSD begins closure for the entire facility. The change applies to both interim status and final status facilities.
Documenting "knowledge" - WAC 173-303-040 Definition of knowledge and WAC 173-303-300, under the existing rule, an owner or operator of a TSD is required to obtain a detailed chemical, physical, and/or biological analysis of a dangerous waste before they treat, store or dispose of it. The amendment:
• Clarifies that the analysis MUST (rather than may) include either existing published or documented data or analytical data from similar waste, or a combination of both.
• Clarifies what would constitute "knowledge" from a generator to complete the waste profile.
• States that the TSD has to confirm the reliability of the information through either a site visit, or through ensuring the analysis is based on appropriate and representative sampling or testing, or through a comparison of their process to a similar process.
From the dangerous waste survey, the additional costs for business to comply with the above rule revisions are negligible, and the impacts are proportionally distributed between big and small businesses.
2.2 Generator
Using knowledge for designating waste - WAC 173-303-040 (knowledge) and WAC 173-303-300, under the existing rule, a generator may use "knowledge" to designate their waste, and they must be able to demonstrate that the knowledge they used is sufficient. TSDs are currently required to obtain a detailed chemical, physical, and/or biological analysis of a dangerous waste before they treat, store or dispose of it. A proposed rule for TSDs would require them to have copies of existing published or documented data or analytical data from similar waste, or a combination of both when the generator has used knowledge to designate their waste. Knowledge is being defined as "there is sufficient information about both the waste constituents and the process generating a waste to reliably substitute for direct testing of the waste. Such information must include the chemical, physical, and/or biological characteristics of the waste. (For example, if all chemical constituents used in an industrial process generating a waste are known and the formation of the waste byproducts from that industrial process are understood, that information may be sufficient without direct laboratory analysis to describe the waste for safe management under this chapter.)".
Marking packages of dangerous waste - WAC 173-303-190 (5)(b): This change removes a gap in the existing labeling requirements. A generator would be required to mark all packages of dangerous waste in preparation for transport. The marking requirement is being changed from packages of one hundred ten gallons or less to one thousand gallons or less. This means that packages between one hundred ten and one thousand gallons would now have to be marked.
The cost per employee can be calculated from the survey. For big business it is $3.92 per employee, while for small business it is $5.89 per employee. So there will be disproportional impacts on small business.
2.3 Fertilizer - WAC 173-303-071 (3)(oo) and (pp), and 173-303-505(1): Ecology is providing three new fertilizer cost savings.
• If a fertilizer has already been registered in Washington two or more times, additional testing and fertilizer manufacturing description information would not be required unless the contents or process change.
• If a generator locates a fertilizer manufacturer who can use zinc from a recycled hazardous secondary material, then the zinc waste would be excluded for the generator.
• Fertilizers using the zinc are excluded as long as they meet certain contaminant limits.
Ecology believes these proposed rule revisions will benefit those required to comply, so there is no disproportional cost impact on small business.
2.4 Mercury (Universal Waste Rule) WAC 173-303-040, 173-303-077, 173-303-400 (2)(c), 173-303-573, 173-303-600(3), and 173-303-800 (7)(c): Mercury-containing equipment would move to streamlined universal waste management rather than being subject to all the requirements of the dangerous waste rules.
• The mercury waste would not have to be counted toward waste generation totals or manifested offsite. It could be accumulated on-site for up to one year. While the waste must still go to a TSD or recycler:
• Some generators may be able to shift from being a large to a medium, or a medium to small quantity generator.
• Some generators may be able to have reduced transportation costs under universal waste handling.
Generally, the proposed rule revision will result in cost saving for both big and small business.
2.5 Used Oil - WAC 173-303-515(13): Ecology would be able to require anyone to test their used oil to determine if it is on-specification, if it contains a listed hazardous waste, or if it cannot be managed as used oil. Under this new authority, ecology inspectors would be able to ask for a reduced set of tests. For example, the used oil could be tested using a chlorine compounds test rather than designation testing. From the survey, the possible cost for big business is $0.31 per employee, and for small business, it is $0.48 per employee. It suggests that this proposed rule revision will have disproportional impacts on small business.
2.6 Permit-by-Rule/Wastewater Treatment Unit - WAC 173-303-040 Knowledge and 173-303-802(5): In order to reduce costs for companies who own permit-by-rule wastewater treatment units (WAC 173-303-802(5)), ecology will allow these facilities to receive (federally regulated) hazardous wastewaters that have been generated offsite. They can already accept state-only waste from off-site. This change reflects an interpretation by USEPA that allows wastewater treatment units to be considered designated facilities as identified by a generator's uniform hazardous waste manifest. This would also benefit companies who could send their wastewaters to a related facility's wastewater treatment unit.
This change will be limited to wastewaters from off-site that are from a similar industry and have similar dangerous constituents to those in the wastewaters that are normally generated and treated by the host wastewater treatment unit. In others words, the host could only accept wastewaters that will be covered by permit requirements and will be effectively treated by the wastewater treatment facility. Businesses wanting to take advantage of this change should plan to do so when their wastewater discharge permit is up for renewal. What this change will not do is open up opportunities for businesses to operate under permit by rule and receive wastewater from unrelated off-site sources. The potential receiving facility must have a wastewater treatment unit that is designed to treat wastewaters that are generated on-site before it is eligible to receive similar wastewaters from off-site generated by their associated businesses.
Industries or businesses that would benefit from this change include the aerospace and petroleum refinery industries as well as some government facilities. The dangerous waste survey shows us that there are almost negligible impacts on small business, while there would be cost saving impacts to big business. So it would not impose disproportional impacts on small business.
2.7 Financial Responsibility requirements WAC 173-303-120 (3) and (4), 173-303-515(9), 173-303-610, and 173-303-620: In order to assure that owners and operators of hazardous waste recycling or used oil processing/rerefining facilities responsible for waste removal, disposal and decontamination of equipment and structures, ecology intends to apply closure and financial assurance requirements for treatment, storage, and disposal units to equipment and structures that are used to reclaim, reuse or recycle hazardous wastes or process used oil. The increased financial responsibility requirements will:
• Require that off-site recyclers and used oil recyclers meet closure and the financial responsibility requirements.
• Preclude companies from using performance bonds.
• Require companies using a financial test to have $20 millions in assets.
This financial responsibility requirement will impose disproportional impacts on small business. For small business, it is $3657 per employee; while for big business, it is $89 per employee.
3. ACTIONS TAKEN TO REDUCE THE IMPACT OF THE RULE ON SMALL BUSINESS: The analysis above shows that not all dangerous waste related industries will be impacted by the proposed rule revision. For those that are impacted, some have proportional impacts between big and small business, and some will be cost saving. From the cost per employee ratio derived from the survey, this analysis shows that only small business in the TSD (financial assurance), generators, and used oil categories will have disproportional cost impacts.
RCW 19.85.030(2) requires: Based upon the extent of disproportionate impact on small business identified in the statement prepared under RCW 19.85.040, the agency shall, where legal and feasible in meeting the stated objectives of the statutes upon which the rule is based, reduce the costs imposed by the rule on small businesses. To comply with this requirement, the proposed rule revision provides some cost saving measures to mitigate the impacts to small business. Methods to reduce the cost on small businesses may include the following (a) through (f), which are summarized as follows:
(a) Reducing, modifying, or eliminating substantive regulatory requirements: The mercury and fertilizer components of the rule amendments will reduce substantive requirements. Substantive requirements for post-closure plans (WAC 173-303-610(8)) and financial responsibility (WAC 173-303-620(6)) were not applied to recyclers and used oil processors.
(b) Simplifying, reducing, or eliminating record-keeping and reporting requirements: The mercury and fertilizer components of the rule amendments will indirectly reduce record keeping and reporting.
(c) Reducing the frequency of inspections: This is not feasible. EPA authorizes ecology to administer major portions of the federal program and ecology has agreed to specific levels of inspections.
(d) Delaying compliance timetables: Closure funding can be phased in over a three year period following ecology approval of closure plans. Companies will have seventy-two rather than twenty-four hours to temporarily hold wastes into recycling so that they will not be considered "stored" and subject to hazardous waste permitting.
(e) Reducing or modifying fine schedules for noncompliance: Ecology will consider the economic impact of hazard waste fines on small businesses as a mitigating factor in its compliance assurance policy (HWTR Policy 3-1, revised January 2004). The basic process of establishing penalties involves: 1) Determining that a penalty is the appropriate response; 2) Classifying the violations that become the basis of a penalty as major, moderate or minor; 3) Establishing the penalty amount for each violation; 4) Applying mitigating factors (these include degree of threat to human health or the environment, history of compliance, and small business incentives).
(f) Any other mitigation techniques: The permit by rule amendments will create cost savings for some companies and new earnings for others. Ecology will provide guidelines, model closure plans, and on-site assistance on closure plans, closure cost estimating, and coordination on pollution liability coverage and financial assurance for closure.
4. INVOLVEMENT OF SMALL BUSINESS IN THE DEVELOPMENT OF THE PROPOSED RULE: In the rule making process, all businesses, including the small ones, are invited to give comment on the proposed rule. Ecology also sent a draft version of the rule language out for public review and comment, and advertised via Shoptalk- a publication that goes out to more than 20,000 people, many are small businesses. Ecology also has an electronic listserve that sent out notices inviting review and comment. All these measures ensure that small businesses are fully involved in developing the proposed rule revision. Used oil facilities and recyclers were involved very early on in development of the changes that will impact them through the outreach conducted on the Hazardous Waste Facilities Initiative.
5. THE NAIC CODE OF COMPLIANCE INDUSTRY: NAIC codes of industries likely required to comply with the proposed rule revision are listed below.
| 1121 | 2362 | 3119 | 3254 | 3315 | 3341 | 3391 | 4245 | 4461 | 4841 | 4881 | 5161 | 5323 | 6223 | 8129 |
| 1123 | 2371 | 3121 | 3255 | 3321 | 3342 | 3399 | 4246 | 4471 | 4842 | 4882 | 5171 | 5324 | 6231 | 8131 |
| 1131 | 2372 | 3132 | 3256 | 3323 | 3343 | 4231 | 4247 | 4481 | 4851 | 4883 | 5173 | 5413 | 6232 | 8132 |
| 1132 | 2373 | 3133 | 3259 | 3324 | 3344 | 4232 | 4249 | 4483 | 4852 | 4884 | 5182 | 5611 | 6241 | 8134 |
| 1133 | 2379 | 3211 | 3261 | 3325 | 3345 | 4233 | 4411 | 4511 | 4853 | 4885 | 5239 | 5612 | 6243 | 8141 |
| 1151 | 2381 | 3212 | 3262 | 3327 | 3361 | 4234 | 4412 | 4521 | 4854 | 4911 | 5242 | 5615 | 7113 | 9211 |
| 1153 | 2382 | 3219 | 3273 | 3328 | 3363 | 4235 | 4413 | 4529 | 4855 | 4921 | 5251 | 5617 | 7121 | 9251 |
| 2123 | 2383 | 3221 | 3274 | 3329 | 3364 | 4236 | 4422 | 4532 | 4862 | 4922 | 5311 | 5619 | 7131 | 9261 |
| 2131 | 3113 | 3222 | 3279 | 3331 | 3365 | 4237 | 4431 | 4533 | 4869 | 4931 | 5312 | 5629 | 8111 | 9281 |
| 2211 | 3114 | 3241 | 3312 | 3332 | 3366 | 4238 | 4441 | 4539 | 4871 | 5111 | 5313 | 6111 | 8112 | |
| 2212 | 3115 | 3251 | 3314 | 3334 | 3372 | 4242 | 4442 | 4821 | 4872 | 5112 | 5321 | 6221 | 8122 | |
| 2213 | 3116 | 3253 | 3315 | 3339 | 3379 | 4244 | 4451 | 4832 | 4879 | 5121 | 5322 | 6222 | 8123 |
A copy of the statement may be obtained by contacting Patricia Hervieux, P.O. Box 47600, Olympia, WA 98504-7600, phone (360) 407-6756, fax (360) 407-6715, e-mail pher461@ecy.wa.gov.
A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Patricia Hervieux, P.O. Box 47600, Olympia, WA 98504-7600, phone (360) 407-6756, fax (360) 407-6715, e-mail pher461@ecy.wa.gov.
June 25, 2004
Polly Zehm
Assistant Director
OTS-7177.4
AMENDATORY SECTION(Amending Order 99-01, filed 5/10/00,
effective 6/10/00)
WAC 173-303-010
Purpose.
This regulation implements
chapter 70.105 RCW, the Hazardous Waste Management Act of 1976
as amended, and implements, in part, chapters 70.105A,
70.105D, and 15.54 RCW, and Subtitle C of Public Law 94-580,
the Resource Conservation and Recovery Act, which the
legislature has empowered the department to implement. The
purposes of this regulation are to:
(1) Designate those solid wastes which are dangerous or extremely hazardous to the public health and environment;
| Note: | The terms public health and human health are used in this chapter interchangeably. |
(3) Provide the form and rules necessary to establish a system for manifesting, tracking, reporting, monitoring, recordkeeping, sampling, and labeling dangerous and extremely hazardous wastes;
(4) Establish the siting, design, operation, closure, post-closure, financial, and monitoring requirements for dangerous and extremely hazardous waste transfer, treatment, storage, and disposal facilities;
(5) Establish design, operation, and monitoring requirements for managing the state's extremely hazardous waste disposal facility;
(6) Establish and administer a program for permitting dangerous and extremely hazardous waste management facilities; and
(7) Encourage recycling, reuse, reclamation, and recovery to the maximum extent possible.
[Statutory Authority: Chapters 70.105, 70.105D, 15.54 RCW and RCW 70.105.007. 00-11-040 (Order 99-01), § 173-303-010, filed 5/10/00, effective 6/10/00. Statutory Authority: Chapter 70.105 RCW. 86-12-057 (Order DE-85-10), § 173-303-010, filed 6/3/86; 84-09-088 (Order DE 83-36), § 173-303-010, filed 4/18/84. Statutory Authority: Chapter 70.105 RCW and RCW 70.95.260. 82-05-023 (Order DE 81-33), § 173-303-010, filed 2/10/82. Formerly WAC 173-302-010.]
(((1))) ASTM - American Society for Testing Materials
(((2))) APHA - American Public Health Association
(((3))) CDC - Center for Disease Control
(((4))) CFR - Code of Federal Regulations
(((5))) DOT - Department of Transportation
(((6))) °C - degrees Celsius
(((7))) DW - dangerous waste
(((8))) DWS - drinking water standards of the Safe
Drinking Water Act
(((9))) EHW - extremely hazardous waste
(((10))) EP - extraction procedure
(((11))) EPA - Environmental Protection Agency
(((12))) °F - degrees Fahrenheit
(((13))) g - gram
(((14))) IARC - International Agency for Research on
Cancer
IFC - International Fire Code
(((15))) kg - kilogram (one thousand grams)
(((16))) L - liter
(((17))) lb - pound
(((18))) LC50 - median lethal concentration
(((19))) LD50 - median lethal dose
(((20))) M - molar (gram molecular weights per liter of
solution)
(((21))) mg - milligram (one thousandth of a gram)
(((22))) NFPA - National Fire Protection Association
(((23))) NIOSH - National Institute for Occupational
Safety and Health
(((24))) pH - negative logarithm of the hydrogen ion
concentration
(((25))) POTW - publicly owned treatment works
(((26))) ppm - parts per million (weight/weight)
(((27))) RCRA - Resource Conservation and Recovery Act
(((28))) RCW - Revised Code of Washington
(((29))) TSD facility - treatment, storage, or disposal
facility
(((30))) UBC - Uniform Building Code
(((31))) UFC - Uniform Fire Code
(((32))) USCG - United States Coast Guard
(((33))) USGS - United States Geological Survey
(((34))) WAC - Washington Administrative Code
(((35))) % - percent
(((36))) # - number
[Statutory Authority: Chapters 70.105 and 70.105D RCW. 95-22-008 (Order 94-30), § 173-303-030, filed 10/19/95, effective 11/19/95. Statutory Authority: Chapter 70.105 RCW. 84-09-088 (Order DE 83-36), § 173-303-030, filed 4/18/84. Statutory Authority: Chapter 70.105 RCW and RCW 70.95.260. 82-05-023 (Order DE 81-33), § 173-303-030, filed 2/10/82. Formerly WAC 173-302-030.]
"Aboveground tank" means a device meeting the definition of "tank" in this section and that is situated in such a way that the entire surface area of the tank is completely above the plane of the adjacent surrounding surface and the entire surface area of the tank (including the tank bottom) is able to be visually inspected.
"Active life" of a facility means the period from the initial receipt of dangerous waste at the facility until the department receives certification of final closure.
"Active portion" means that portion of a facility which is not a closed portion, and where dangerous waste recycling, reuse, reclamation, transfer, treatment, storage or disposal operations are being or have been conducted after:
The effective date of the waste's designation by 40 CFR Part 261; and
March 10, 1982, for wastes designated only by this chapter and not designated by 40 CFR Part 261. (See also "closed portion" and "inactive portion.")
"Active range" means a military range that is currently in service and is being regularly used for range activities.
"Acute hazardous waste" means dangerous waste sources (listed in WAC 173-303-9904) F020, F021, F022, F023, F026, or F027, and discarded chemical products (listed in WAC 173-303-9903) that are identified with a dangerous waste number beginning with a "P", including those wastes mixed with source, special nuclear, or by-product material subject to the Atomic Energy Act of 1954. The abbreviation "AHW" will be used in this chapter to refer to those dangerous and mixed wastes which are acute hazardous wastes. Note - the terms acute and acutely are used interchangeably.
"Ancillary equipment" means any device including, but not limited to, such devices as piping, fittings, flanges, valves, and pumps, that is used to distribute, meter, or control the flow of dangerous waste from its point of generation to a storage or treatment tank(s), between dangerous waste storage and treatment tanks to a point of disposal on-site, or to a point of shipment for disposal off-site.
"Aquifer" means a geologic formation, group of formations, or part of a formation capable of yielding a significant amount of ground water to wells or springs.
"Batch" means any waste which is generated less frequently than once a month.
"Battery" means a device consisting of one or more electrically connected electrochemical cells which is designed to receive, store, and deliver electric energy. An electrochemical cell is a system consisting of an anode, cathode, and an electrolyte, plus such connections (electrical and mechanical) as may be needed to allow the cell to deliver or receive electrical energy. The term battery also includes an intact, unbroken battery from which the electrolyte has been removed.
"Berm" means the shoulder of a dike.
"Boiler" means an enclosed device using controlled flame combustion and having the following characteristics:
The unit must have physical provisions for recovering and exporting thermal energy in the form of steam, heated fluids, or heated gases; and
The unit's combustion chamber and primary energy recovery section(s) must be of integral design. To be of integral design, the combustion chamber and the primary energy recovery section(s) (such as waterwalls and superheaters) must be physically formed into one manufactured or assembled unit. A unit in which the combustion chamber and the primary energy recovery section(s) are joined only by ducts or connections carrying flue gas is not integrally designed; however, secondary energy recovery equipment (such as economizers or air preheaters) need not be physically formed into the same unit as the combustion chamber and the primary energy recovery section. The following units are not precluded from being boilers solely because they are not of integral design: Process heaters (units that transfer energy directly to a process stream), and fluidized bed combustion units; and
While in operation, the unit must maintain a thermal energy recovery efficiency of at least sixty percent, calculated in terms of the recovered energy compared with the thermal value of the fuel; and
The unit must export and utilize at least seventy-five percent of the recovered energy, calculated on an annual basis. In this calculation, no credit will be given for recovered heat used internally in the same unit. (Examples of internal use are the preheating of fuel or combustion air, and the driving of induced or forced draft fans or feedwater pumps); or
The unit is one which the department has determined, on a case-by-case basis, to be a boiler, after considering the standards in WAC 173-303-017(6).
"By-product" means a material that is not one of the primary products of a production process and is not solely or separately produced by the production process. Examples are process residues such as slags or distillation column bottoms. The term does not include a co-product that is produced for the general public's use and is ordinarily used in the form it is produced by the process.
"Carbon regeneration unit" means any enclosed thermal treatment device used to regenerate spent activated carbon.
"Carcinogenic" means a material known to contain a substance which has sufficient or limited evidence as a human or animal carcinogen as listed in both IARC and either IRIS or HEAST.
"Chemical agents and chemical munitions" are defined as in 50 U.S.C. section 1521 (j)(1).
"Cleanup-only facility" means a site, including any contiguous property owned or under the control of the owner or operator of the site, where the owner or operator is or will be treating, storing, or disposing of remediation waste, including dangerous remediation waste, and is not, has not and will not be treating, storing or disposing of dangerous waste that is not remediation waste. A cleanup-only facility is not a "facility" for purposes of corrective action under WAC 173-303-646.
"Closed portion" means that portion of a facility which an owner or operator has closed, in accordance with the approved facility closure plan and all applicable closure requirements.
"Closure" means the requirements placed upon all TSD facilities to ensure that all such facilities are closed in an acceptable manner (see also "post-closure").
"Commercial chemical product or manufacturing chemical intermediate" refers to a chemical substance which is manufactured or formulated for commercial or manufacturing use which consists of the commercially pure grade of the chemical, any technical grades of the chemical that are produced or marketed, and all formulations in which the chemical is the sole active ingredient.
"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 includes, but is not limited to, limes, gypsum, and manipulated animal manures and vegetable compost. The commercial fertilizer must be registered with the state or local agency regulating the fertilizer in the locale in which the fertilizer is being sold or applied.
"Compliance procedure" means any proceedings instituted pursuant to the Hazardous Waste Management Act as amended in 1980 and 1983, and chapter 70.105A RCW, or regulations issued under authority of state law, which seeks to require compliance, or which is in the nature of an enforcement action or an action to cure a violation. A compliance procedure includes a notice of intention to terminate a permit pursuant to WAC 173-303-830(5), or an application in the state superior court for appropriate relief under the Hazardous Waste Management Act. A compliance procedure is considered to be pending from the time a notice of violation or of intent to terminate a permit is issued or judicial proceedings are begun, until the department notifies the owner or operator in writing that the violation has been corrected or that the procedure has been withdrawn or discontinued.
"Component" means either the tank or ancillary equipment of a tank system.
"Constituent" or "dangerous waste constituent" means a chemically distinct component of a dangerous waste stream or mixture.
"Container" means any portable device in which a material is stored, transported, treated, disposed of, or otherwise handled.
"Containment building" means a hazardous waste management unit that is used to store or treat hazardous waste under the provisions of WAC 173-303-695.
"Contingency plan" means a document setting out an organized, planned, and coordinated course of action to be followed in case of a fire, explosion, or release of dangerous waste or dangerous waste constituents which could threaten human health or environment.
"Contract" means the written agreement signed by the department and the state operator.
(("Corrective action management unit" means an area that
is used to treat, store or dispose only remediation wastes for
implementing corrective action under WAC 173-303-646 or other
clean up activities.))
"Corrosion expert" means a person who, by reason of his knowledge of the physical sciences and the principles of engineering and mathematics, acquired by a professional education and related practical experience, is qualified to engage in the practice of corrosion control on buried or submerged metal piping systems and metal tanks. Such a person must be certified as being qualified by the National Association of Corrosion Engineers (NACE) or be a registered professional engineer who has certification or licensing that includes education and experience in corrosion control on buried or submerged metal piping systems and metal tanks.
"Dangerous waste constituents" means those constituents listed in WAC 173-303-9905 and any other constituents that have caused a waste to be a dangerous waste under this chapter.
"Dangerous waste management unit" is a contiguous area of land on or in which dangerous waste is placed, or the largest area in which there is a significant likelihood of mixing dangerous waste constituents in the same area. Examples of dangerous waste management units include a surface impoundment, a waste pile, a land treatment area, a landfill cell, an incinerator, a tank and its associated piping and underlying containment system and a container storage area. A container alone does not constitute a unit; the unit includes containers and the land or pad upon which they are placed.
"Dangerous wastes" means those solid wastes designated in WAC 173-303-070 through 173-303-100 as dangerous, or extremely hazardous or mixed waste. As used in this chapter, the words "dangerous waste" will refer to the full universe of wastes regulated by this chapter. The abbreviation "DW" will refer only to that part of the regulated universe which is not extremely hazardous waste. (See also "extremely hazardous waste," "hazardous waste," and "mixed waste" definitions.)
"Debris" means solid material exceeding a 60 mm particle size that is intended for disposal and that is: A manufactured object; or plant or animal matter; or natural geologic material. However, the following materials are not debris: Any material for which a specific treatment standard is provided in 40 CFR Part 268 Subpart D (incorporated by reference in WAC 173-303-140 (2)(a)); process residuals such as smelter slag and residues from the treatment of waste, wastewater, sludges, or air emission residues; and intact containers of hazardous waste that are not ruptured and that retain at least seventy-five percent of their original volume. A mixture of debris that has not been treated to the standards provided by 40 CFR 268.45 and other material is subject to regulation as debris if the mixture is comprised primarily of debris, by volume, based on visual inspection.
"Department" means the department of ecology.
"Dermal LD50" means the single dosage in milligrams per kilogram (mg/kg) body weight which, when dermally (skin) applied for 24 hours, within 14 days kills half of a group of ten rabbits each weighing between 2.0 and 3.0 kilograms.
"Designated facility" means a dangerous waste treatment,
storage, or disposal facility that has received a permit (or
interim status) in accordance with the requirements of this
chapter, has received a permit (or interim status) from
another state authorized in accordance with 40 CFR Part 271,
has received a permit (or interim status) from EPA in
accordance with 40 CFR Part 270, has a permit by rule under
WAC 173-303-802(5), or is regulated under WAC 173-303-120
(4)(c) or 173-303-525 when the dangerous waste is to be
recycled, and that has been designated on the manifest
pursuant to WAC 173-303-180(1). If a waste is destined to a
facility in an authorized state that has not yet obtained
authorization to regulate that particular waste as dangerous,
then the designated facility must be a facility allowed by the
receiving state to accept such waste. The following are
designated facilities only for receipt of state-only waste;
they cannot receive federal hazardous waste from off-site:
Facilities ((with permit-by-rule under WAC 173-303-802 (5)(a)
and facilities)) operating under WAC 173-303-500 (2)(c).
"Designation" is the process of determining whether a waste is regulated under the dangerous waste lists, WAC 173-303-080 through 173-303-082; or characteristics, WAC 173-303-090; or criteria, WAC 173-303-100. The procedures for designating wastes are in WAC 173-303-070. A waste that has been designated as a dangerous waste may be either DW or EHW.
"Destination facility" means a facility that treats, disposes of, or recycles a particular category of universal waste, except those management activities described in WAC 173-303-573 (9)(a), (b) and (c) and 173-303-573 (20)(a), (b) and (c). A facility at which a particular category of universal waste is only accumulated, is not a destination facility for purposes of managing that category of universal waste.
"Dike" means an embankment or ridge of natural or man-made materials used to prevent the movement of liquids, sludges, solids, or other substances.
"Dioxins and furans (D/F)" means tetra, penta, hexa, hepta, and octa-chlorinated dibenzo dioxins and furans.
"Director" means the director of the department of ecology or his designee.
"Discharge" or "dangerous waste discharge" means the accidental or intentional release of hazardous substances, dangerous waste or dangerous waste constituents such that the substance, waste or a waste constituent may enter or be emitted into the environment.
"Disposal" means the discharging, discarding, or abandoning of dangerous wastes or the treatment, decontamination, or recycling of such wastes once they have been discarded or abandoned. This includes the discharge of any dangerous wastes into or on any land, air, or water.
"Domestic sewage" means untreated sanitary wastes that pass through a sewer system to a publicly owned treatment works (POTW) for treatment.
"Draft permit" means a document prepared under WAC 173-303-840 indicating the department's tentative decision to issue or deny, modify, revoke and reissue, or terminate a permit. A notice of intent to terminate or deny a permit are types of draft permits. A denial of a request for modification, revocation and reissuance, or termination as discussed in WAC 173-303-830 is not a draft permit.
"Drip pad" is an engineered structure consisting of a curbed, free-draining base, constructed of nonearthen materials and designed to convey preservative kick-back or drippage from treated wood, precipitation, and surface water run-on to an associated collection system at wood preserving plants.
"Elementary neutralization unit" means a device which:
Is used for neutralizing wastes which are dangerous wastes only because they exhibit the corrosivity characteristics defined in WAC 173-303-090 or are listed in WAC 173-303-081, or in 173-303-082 only for this reason; and
Meets the definition of tank, tank system, container, transport vehicle, or vessel.
"Enforceable document" means an order, consent decree, plan or other document that meets the requirements of 40 CFR 271.16(e) and is issued by the director to apply alternative requirements for closure, post-closure, ground water monitoring, corrective action or financial assurance under WAC 173-303-610 (1)(d), 173-303-645 (1)(e), or 173-303-620 (8)(d) or, as incorporated by reference at WAC 173-303-400, 40 CFR 265.90(f), 265.110(d), or 265.140(d). Enforceable documents include, but are not limited to, closure plans and post-closure plans, permits issued under chapter 70.105 RCW, orders issued under chapter 70.105 RCW and orders and consent decrees issued under chapter 70.105D RCW.
"Environment" means any air, land, water, or ground water.
"EPA/state identification number" or "EPA/state ID#" means the number assigned by EPA or by the department of ecology to each generator, transporter, and TSD facility.
"Existing tank system" or "existing component" means a tank system or component that is used for the storage or treatment of dangerous waste and that is in operation, or for which installation has commenced on or prior to February 3, 1989. Installation will be considered to have commenced if the owner or operator has obtained all federal, state, and local approvals or permits necessary to begin physical construction of the site or installation of the tank system and if either:
A continuous on-site physical construction or installation program has begun; or
The owner or operator has entered into contractual obligations, which cannot be canceled or modified without substantial loss, for physical construction of the site or installation of the tank system to be completed within a reasonable time.
"Excluded scrap metal" is processed scrap metal, unprocessed home scrap metal, and unprocessed prompt scrap metal.
"Existing TSD facility" means a facility which was in operation or for which construction commenced on or before November 19, 1980, for wastes designated by 40 CFR Part 261, or August 9, 1982, for wastes designated only by this chapter and not designated by 40 CFR Part 261. A facility has commenced construction if the owner or operator has obtained permits and approvals necessary under federal, state, and local statutes, regulations, and ordinances and either:
A continuous on-site, physical construction program has begun; or
The owner or operator has entered into contractual obligation, which cannot be cancelled or modified without substantial loss, for physical construction of the facility to be completed within a reasonable time.
"Explosives or munitions emergency" means a situation involving the suspected or detected presence of unexploded ordnance (UXO), damaged or deteriorated explosives or munitions, an improvised explosive device (IED), other potentially explosive material or device, or other potentially harmful military chemical munitions or device, that creates an actual or potential imminent threat to human health, including safety, or the environment, including property, as determined by an explosives or munitions emergency response specialist. Such situations may require immediate and expeditious action by an explosives or munitions emergency response specialist to control, mitigate, or eliminate the threat.
"Explosives or munitions emergency response" means all immediate response activities by an explosives and munitions emergency response specialist to control, mitigate, or eliminate the actual or potential threat encountered during an explosives or munitions emergency. An explosives or munitions emergency response may include in-place render-safe procedures, treatment or destruction of the explosives or munitions and/or transporting those items to another location to be rendered safe, treated, or destroyed. Any reasonable delay in the completion of an explosives or munitions emergency response caused by a necessary, unforeseen, or uncontrollable circumstance will not terminate the explosives or munitions emergency. Explosives and munitions emergency responses can occur on either public or private lands and are not limited to responses at RCRA facilities.
"Explosives or munitions emergency response specialist" means an individual trained in chemical or conventional munitions or explosives handling, transportation, render-safe procedures, or destruction techniques. Explosives or munitions emergency response specialists include Department of Defense (DOD) emergency explosive ordnance disposal (EOD), technical escort unit (TEU), and DOD-certified civilian or contractor personnel; and other federal, state, or local government, or civilian personnel similarly trained in explosives or munitions emergency responses.
"Extremely hazardous waste" means those dangerous and mixed wastes designated in WAC 173-303-100 as extremely hazardous. The abbreviation "EHW" will be used in this chapter to refer to those dangerous and mixed wastes which are extremely hazardous. (See also "dangerous waste" and "hazardous waste" definitions.)
"Facility" means:
• All contiguous land, and structures, other appurtenances, and improvements on the land used for recycling, reusing, reclaiming, transferring, storing, treating, or disposing of dangerous waste. A facility may consist of several treatment, storage, or disposal operational units (for example, one or more landfills, surface impoundments, or combination of them). Unless otherwise specified in this chapter, the terms "facility," "treatment, storage, disposal facility," "TSD facility," "dangerous waste facility" or "waste management facility" are used interchangeably.
• For purposes of implementing corrective action under
WAC ((173-303-646 (2) or (3))) 173-303-64620 or 173-303-64630,
"facility" also means all contiguous property under the
control of an owner or operator seeking a permit under chapter 70.105 RCW or chapter 173-303 WAC and includes the definition
of facility at RCW 70.105D.020(4).
"Facility mailing list" means the mailing list for a facility maintained by the department in accordance with WAC 173-303-840 (3)(e)(I)(D).
"Final closure" means the closure of all dangerous waste management units at the facility in accordance with all applicable closure requirements so that dangerous waste management activities under WAC 173-303-400 and 173-303-600 through 173-303-670 are no longer conducted at the facility. Areas only subject to generator standards WAC 173-303-170 through 173-303-230 need not be included in final closure.
"Fish LC50" means the concentration that will kill fifty percent of the exposed fish in a specified time period. For book designation, LC50 data must be derived from an exposure period greater than or equal to twenty-four hours. A hierarchy of species LC50 data should be used that includes (in decreasing order of preference) salmonids, fathead minnows (Pimephales promelas), and other fish species. For the ninety-six-hour static acute fish toxicity test, described in WAC 173-303-110 (3)(b)(i), coho salmon (Oncorhynchus kisutch), rainbow trout (Oncorhynchus mykiss), or brook trout (Salvelinus fontinalis) must be used.
"Food chain crops" means tobacco, crops grown for human consumption, and crops grown to feed animals whose products are consumed by humans.
"Freeboard" means the vertical distance between the top of a tank or surface impoundment dike, and the surface of the waste contained therein.
"Fugitive emissions" means the emission of contaminants from sources other than the control system exit point. Material handling, storage piles, doors, windows and vents are typical sources of fugitive emissions.
"Generator" means any person, by site, whose act or process produces dangerous waste or whose act first causes a dangerous waste to become subject to regulation.
"Genetic properties" means those properties which cause or significantly contribute to mutagenic, teratogenic, or carcinogenic effects in man or wildlife.
"Ground water" means water which fills voids below the land surface and in the earth's crust.
"Halogenated organic compounds" (HOC) means any organic compounds which, as part of their composition, include one or more atoms of fluorine, chlorine, bromine, or iodine which is/are bonded directly to a carbon atom. This definition does not apply to the federal land disposal restrictions of 40 CFR Part 268 which are incorporated by reference at WAC 173-303-140 (2)(a). Note: Additional information on HOCs may be found in Chemical Testing Methods for Designating Dangerous Waste, Ecology Publication #97-407, revised December 2004.
"Hazardous debris" means debris that contains a hazardous waste listed in WAC 173-303-9903 or 173-303-9904, or that exhibits a characteristic of hazardous waste identified in WAC 173-303-090.
"Hazardous substances" means any liquid, solid, gas, or sludge, including any material, substance, product, commodity, or waste, regardless of quantity, that exhibits any of the physical, chemical or biological properties described in WAC 173-303-090 or 173-303-100.
"Hazardous wastes" means those solid wastes designated by 40 CFR Part 261, and regulated as hazardous and/or mixed waste by the United States EPA. This term will never be abbreviated in this chapter to avoid confusion with the abbreviations "DW" and "EHW." (See also "dangerous waste" and "extremely hazardous waste" definitions.)
"Home scrap metal" is scrap metal as generated by steel mills, foundries, and refineries such as turnings, cuttings, punchings, and borings.
"Ignitable waste" means a dangerous waste that exhibits the characteristic of ignitability described in WAC 173-303-090(5).
"Inactive portion" means that portion of a facility which has not recycled, treated, stored, or disposed dangerous waste after:
The effective date of the waste's designation, for wastes designated under 40 CFR Part 261; and
March 10, 1982, for wastes designated only by this chapter and not designated by 40 CFR Part 261.
"Inactive range" means a military range that is not currently being used, but that is still under military control and considered by the military to be a potential range area, and that has not been put to a new use that is incompatible with range activities.
"Incinerator" means any enclosed device that:
Uses controlled flame combustion and neither meets the criteria for classification as a boiler, sludge dryer, or carbon regeneration unit, nor is listed as an industrial furnace; or
Meets the definition of infrared incinerator or plasma arc incinerator.
"Incompatible waste" means a dangerous waste which is unsuitable for placement in a particular device or facility because it may corrode or decay the containment materials, or is unsuitable for mixing with another waste or material because the mixture might produce heat or pressure, fire or explosion, violent reaction, toxic dusts, fumes, mists, or gases, or flammable fumes or gases.
"Independent qualified registered professional engineer" means a person who is licensed by the state of Washington, or a state which has reciprocity with the state of Washington as defined in RCW 18.43.100, and who is not an employee of the owner or operator of the facility for which construction or modification certification is required. A qualified professional engineer is an engineer with expertise in the specific area for which a certification is given.
"Industrial-furnace" means any of the following enclosed devices that are integral components of manufacturing processes and that use thermal treatment to accomplish recovery of materials or energy: Cement kilns; lime kilns; aggregate kilns; phosphate kilns; blast furnaces; smelting, melting, and refining furnaces (including pyrometallurgical devices such as cupolas, reverberator furnaces, sintering machines, roasters and foundry furnaces); titanium dioxide chloride process oxidation reactors; coke ovens; methane reforming furnaces; combustion devices used in the recovery of sulfur values from spent sulfuric acid; pulping liquor recovery furnaces; combustion devices used in the recovery of sulfur values from spent sulfuric acid; and halogen acid furnaces (HAFs) for the production of acid from halogenated dangerous waste generated by chemical production facilities where the furnace is located on the site of a chemical production facility, the acid product has a halogen acid content of at least 3%, the acid product is used in a manufacturing process, and, except for dangerous waste burned as fuel, dangerous waste fed to the furnace has a minimum halogen content of 20% as-generated. The department may decide to add devices to this list on the basis of one or more of the following factors:
The device is designed and used primarily to accomplish recovery of material products;
The device burns or reduces secondary materials as ingredients in an industrial process to make a material product;
The device burns or reduces secondary materials as effective substitutes for raw materials in processes using raw materials as principal feedstocks;
The device burns or reduces raw materials to make a material product;
The device is in common industrial use to produce a material product; and
Other factors, as appropriate.
"Infrared incinerator" means any enclosed device that uses electric powered resistance heaters as a source of radiant heat followed by an afterburner using controlled flame combustion and which is not listed as an industrial furnace.
"Inground tank" means a device meeting the definition of "tank" in this section whereby a portion of the tank wall is situated to any degree within the ground, thereby preventing visual inspection of that external surface area of the tank that is in the ground.
"Inner liner" means a continuous layer of material placed inside a tank or container which protects the construction materials of the tank or container from the waste or reagents used to treat the waste.
"Installation inspector" means a person who, by reason of his knowledge of the physical sciences and the principles of engineering, acquired by a professional education and related practical experience, is qualified to supervise the installation of tank systems.
"Interim status permit" means a temporary permit given to TSD facilities which qualify under WAC 173-303-805.
"Knowledge" means there is sufficient information about
both the waste constituents and the process generating a waste
to reliably substitute for direct testing of the waste. Such
information must include the chemical, physical, and/or
biological characteristics of the waste. (For example, if all
chemical constituents used in an industrial process generating
a waste are known and the formation of the waste by-products
from that industrial process are understood, that information
may be sufficient without direct laboratory analysis to
describe the waste for safe management under this chapter.)
| Note: | Knowledge as defined here is for the purpose of complying with WAC 173-303-070 (3)(c) and 173-303-300(2). |
"Land disposal" means placement in or on the land, except in a corrective action management unit or staging pile, and includes, but is not limited to, placement in a landfill, surface impoundment, waste pile, injection well, land treatment facility, salt dome formation, salt bed formation, underground mine or cave, or placement in a concrete vault, or bunker intended for disposal purposes.
"Landfill" means a disposal facility, or part of a facility, where dangerous waste is placed in or on land and which is not a pile, a land treatment facility, a surface impoundment, or an underground injection well, a salt dome formation, a salt bed formation, an underground mine, a cave, or a corrective action management unit.
"Land treatment" means the practice of applying dangerous waste onto or incorporating dangerous waste into the soil surface so that it will degrade or decompose. If the waste will remain after the facility is closed, this practice is disposal.
"Large quantity handler of universal waste" means a universal waste handler (as defined in this section) who accumulates 11,000 pounds or more total of universal waste (batteries, thermostats, mercury-containing equipment, and lamps calculated collectively) and/or who accumulates more than 2,200 pounds of lamps at any time. This designation as a large quantity handler of universal waste is retained through the end of the calendar year in which 11,000 pounds or more total of universal waste and/or 2,200 pounds of lamps is accumulated.
"Leachable inorganic waste" means solid dangerous waste (i.e., passes paint filter test) that is not an organic/carbonaceous waste and exhibits the toxicity characteristic (dangerous waste numbers D004 to D011, only) under WAC 173-303-090(8).
"Leachate" means any liquid, including any components suspended in the liquid, that has percolated through or drained from dangerous waste.
"Leak-detection system" means a system capable of detecting the failure of either the primary or secondary containment structure or the presence of a release of dangerous waste or accumulated liquid in the secondary containment structure. Such a system must employ operational controls (e.g., daily visual inspections for releases into the secondary containment system of aboveground tanks) or consist of an interstitial monitoring device designed to detect continuously and automatically the failure of the primary or secondary containment structure or the presence of a release of dangerous waste into the secondary containment structure.
"Legal defense costs" means any expenses that an insurer incurs in defending against claims of third parties brought under the terms and conditions of an insurance policy.
"Liner" means a continuous layer of man-made or natural materials which restrict the escape of dangerous waste, dangerous waste constituents, or leachate through the sides, bottom, or berms of a surface impoundment, waste pile, or landfill.
"Major facility" means a facility or activity classified by the department as major.
"Manifest" means the shipping document, prepared in accordance with the requirements of WAC 173-303-180, which is used to identify the quantity, composition, origin, routing, and destination of a dangerous waste while it is being transported to a point of transfer, disposal, treatment, or storage.
"Manufacturing process unit" means a unit which is an integral and inseparable portion of a manufacturing operation, processing a raw material into a manufacturing intermediate or finished product, reclaiming spent materials or reconditioning components.
"Marine terminal operator" means a person engaged in the business of furnishing wharfage, dock, pier, warehouse, covered and/or open storage spaces, cranes, forklifts, bulk loading and/or unloading structures and landings in connection with a highway or rail carrier and a water carrier. A marine terminal operator includes, but is not limited to, terminals owned by states and their political subdivisions; railroads who perform port terminal services not covered by their line haul rates; common carriers who perform port terminal services; and warehousemen and stevedores who operate port terminal facilities.
"Mercury-containing equipment" means a device or part of a device (excluding batteries, thermostats, and lamps) that contains elemental mercury necessary for its operation. Examples of mercury-containing equipment include thermometers, manometers, and electrical switches.
"Micronutrient fertilizer" means a produced or imported commercial fertilizer that contains commercially valuable concentrations of micronutrients but does not contain commercially valuable concentrations of nitrogen, phosphoric acid, available phosphorous, potash, calcium, magnesium, or sulfur. Micronutrients are boron, chlorine, cobalt, copper, iron, manganese, molybdenum, sodium, and zinc.
"Military" means the Department of Defense (DOD), the Armed Services, Coast Guard, National Guard, Department of Energy (DOE), or other parties under contract or acting as an agent for the foregoing, who handle military munitions.
"Military munitions" means all ammunition products and components produced or used by or for the U.S. Department of Defense or the U.S. Armed Services for national defense and security, including military munitions under the control of the Department of Defense, the U.S. Coast Guard, the U.S. Department of Energy (DOE), and National Guard personnel. The term military munitions includes: Confined gaseous, liquid, and solid propellants, explosives, pyrotechnics, chemical and riot control agents, smokes, and incendiaries used by DOD components, including bulk explosives and chemical warfare agents, chemical munitions, rockets, guided and ballistic missiles, bombs, warheads, mortar rounds, artillery ammunition, small arms ammunition, grenades, mines, torpedoes, depth charges, cluster munitions and dispensers, demolition charges, and devices and components thereof. Military munitions do not include wholly inert items, improvised explosive devices, and nuclear weapons, nuclear devices, and nuclear components thereof. However, the term does include nonnuclear components of nuclear devices, managed under DOE's nuclear weapons program after all required sanitization operations under the Atomic Energy Act of 1954, as amended, have been completed.
"Military range" means designated land and water areas set aside, managed, and used to conduct research on, develop, test, and evaluate military munitions and explosives, other ordnance, or weapon systems, or to train military personnel in their use and handling. Ranges include firing lines and positions, maneuver areas, firing lanes, test pads, detonation pads, impact areas, and buffer zones with restricted access and exclusionary areas.
"Miscellaneous unit" means a dangerous waste management unit where dangerous waste is treated, stored, or disposed of and that is not a container, tank, surface impoundment, pile, land treatment unit, landfill, incinerator, boiler, industrial furnace, underground injection well with appropriate technical standards under 40 CFR Part 146, containment building, corrective action management unit, temporary unit, staging pile, or unit eligible for a research, development, and demonstration permit under WAC 173-303-809.
"Mixed waste" means a dangerous, extremely hazardous, or acutely hazardous waste that contains both a nonradioactive hazardous component and, as defined by 10 CFR 20.1003, source, special nuclear, or by-product material subject to the Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.).
"New tank system" or "new tank component" means a tank system or component that will be used for the storage or treatment of dangerous waste and for which installation has commenced after February 3, 1989; except, however, for purposes of WAC 173-303-640 (4)(g)(ii) and 40 CFR 265.193 (g)(2) as adopted by reference in WAC 173-303-400(3), a new tank system is one for which construction commences after February 3, 1989. (See also "existing tank system.")
"New TSD facility" means a facility which began operation or for which construction commenced after November 19, 1980, for wastes designated by 40 CFR Part 261, or August 9, 1982, for wastes designated only by this chapter and not designated by 40 CFR Part 261.
"NIOSH registry" means the registry of toxic effects of chemical substances which is published by the National Institute for Occupational Safety and Health.
"Nonsudden accident" or "nonsudden accidental occurrence" means an unforeseen and unexpected occurrence which takes place over time and involves continuous or repeated exposure.
"Occurrence" means an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage which the owner or operator neither expected nor intended to occur.
"Off-specification used oil fuel" means used oil fuel that exceeds any specification level described in Table 1 in WAC 173-303-515.
"Onground tank" means a device meeting the definition of "tank" in this section and that is situated in such a way that the bottom of the tank is on the same level as the adjacent surrounding surface so that the external tank bottom cannot be visually inspected.
"On-site" means the same or geographically contiguous property which may be divided by public or private right of way, provided that the entrance and exit between the properties is at a cross-roads intersection, and access is by crossing as opposed to going along the right of way. Noncontiguous properties owned by the same person but connected by a right of way which they control and to which the public does not have access, are also considered on-site property.
"Operator" means the person responsible for the overall operation of a facility. (See also "state operator.")
"Oral LD50" means the single dosage in milligrams per kilogram (mg/kg) body weight, when orally administered, which, within 14 days, kills half a group of ten or more white rats each weighing between 200 and 300 grams.
"Organic/carbonaceous waste" means a dangerous waste that contains combined concentrations of greater than ten percent organic/carbonaceous constituents in the waste; organic/carbonaceous constituents are those substances that contain carbon-hydrogen, carbon-halogen, or carbon-carbon chemical bonding.
"Partial closure" means the closure of a dangerous waste
management unit in accordance with the applicable closure
requirements of WAC 173-303-400 and 173-303-600 through
((173-303-670)) 173-303-695 at a facility that contains other
active dangerous waste management units. For example, partial
closure may include the closure of a tank (including its
associated piping and underlying containment systems),
landfill cell, surface impoundment, waste pile, or other
dangerous waste management unit, while other units of the same
facility continue to operate.
"Permit" means an authorization which allows a person to perform dangerous waste transfer, storage, treatment, or disposal operations, and which typically will include specific conditions for such facility operations. Permits must be issued by one of the following:
The department, pursuant to this chapter;
United States EPA, pursuant to 40 CFR Part 270; or
Another state authorized by EPA, pursuant to 40 CFR Part 271.
"Permit-by-rule" means a provision of this chapter stating that a facility or activity is deemed to have a dangerous waste permit if it meets the requirements of the provision.
"Persistence" means the quality of a material that retains more than half of its initial activity after one year (365 days) in either a dark anaerobic or dark aerobic environment at ambient conditions. Persistent compounds are either halogenated organic compounds (HOC) or polycyclic aromatic hydrocarbons (PAH) as defined in this section.
"Person" means any person, firm, association, county, public or municipal or private corporation, agency, or other entity whatsoever.
"Pesticide" means but is not limited to: Any substance or mixture of substances intended to prevent, destroy, control, repel, or mitigate any insect, rodent, nematode, mollusk, fungus, weed, and any other form of plant or animal life, or virus (except