PROPOSED RULES
Original Notice.
Preproposal statement of inquiry was filed as WSR 01-17-118.
Title of Rule: Secondary and operational area containment for bulk pesticides, WAC 16-229-010 through 16-229-480.
Purpose: The current 2,500 gallon tank size restriction results in a substantial increase in the number of times the product (soil fumigant) is transferred, increasing the risk of accidental spills. Changing the rule to allow larger temporary field storage tanks of (10,000 gallons) will reduce the number of required deliveries and, consequently, the number of road miles in which accidental spills of the soil fumigants may occur. Fewer deliveries will also reduce the number of times the product is transferred which will substantially reduce the potential for accidental spills.
Statutory Authority for Adoption: RCW 15.58.040 and 17.21.030 and chapter 34.05 RCW.
Statute Being Implemented: RCW 15.58.020, 15.58.040 (2)(e) and 17.21.030 (1)(a).
Summary: The current rule limits the size of pesticide temporary field storage containers to 2,500 gallons. This limitation has become a concern of applicators and growers who are using soil fumigants. Soil fumigants are often used at rates of fifteen to twenty-five gallons per acre and higher. A large percentage of soil fumigant users grow upwards of 400 acres of crops often on the same farm. Given the rate per acre and the number of acres to be treated, the current tank size is inadequate causing the temporary field storage tanks to be filled several times and increasing the chances of accidental spills. Increasing the size of temporary field storage containers will also allow more efficient deliveries by the tanker trucks that deliver the product because the capacity of full tanker truckloads is usually 4,800 to 5,000 gallons. Changing the current rule to allow larger temporary field storage tanks of up to 10,000 gallons will increase product storage and delivery safety for the following reasons:
(1) Spills are most likely to occur during the transfer of product from trucks into temporary field storage tanks. It is less hazardous to have an operator empty a 5,000 gallon tank truck into a field storage tank that can hold at least that capacity rather than into a tank that can hold only a portion of that capacity thus requiring iterations of the transfer process to fill the containers.
(2) Larger tank capacity will reduce the number of delivery road miles of soil fumigants and lessen the risk associated with driving. Without this increase in tank size field storage dealers will be forced to make multiple trips to and from the tanks, increasing exposure of trucks and drivers to delivery accidents.
Reasons Supporting Proposal: There are already numerous 10,000 gallon temporary field storage tanks being used to store soil fumigants resulting in noncompliance with a rule that, from a storage standpoint, is technologically outdated. Growers, applicators, and transporters of soil fumigants will all be positively impacted by the proposed rules.
Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Cliff Weed, Natural Resources Building, 1111 Washington Street, Department of Agriculture, 2nd Floor, Olympia, WA 98504-2589, (360) 902-2036.
Name of Proponent: Washington State Department of Agriculture, governmental.
Rule is not necessitated by federal law, federal or state court decision.
Explanation of Rule, its Purpose, and Anticipated Effects: The proposed language amends two sections of the current rule. First, the definition of temporary field storage in WAC 16-229-010(22) Temporary field storage, is amended. The proposal language will increase the allowable size of temporary field storage tanks used for storing soil fumigants from the current size of 2,500 to a maximum of 10,000 gallons. The current rule requirement that temporary storage tanks can't remain in one location for more than fourteen consecutive days is not changed but new language is added requiring that temporary fumigant tanks must be chemically compatible with the material being stored.
Also, WAC 16-229-200 Primary containment of bulk liquid pesticides -- Temporary field storage, is amended to require that bulk pesticide storage containers which contain soil fumigants used for temporary field storage must have attached in a weatherproof enclosure, a recorded log of the date and time of each inspection.
Changing the current rule to allow larger temporary field storage tanks of up to 10,000 gallons will increase product storage and delivery safety for the following reasons:
(1) Spills are most likely to occur during the transfer of product from trucks into temporary field storage tanks. It is less hazardous to have an operator empty a 5,000 gallon tank truck into a field storage tank that can hold at least that capacity rather than into a tank that can hold only a portion of that capacity thus requiring iterations of the transfer process to fill the containers.
(2) Larger tank capacity will reduce the number of delivery road miles of soil fumigants. Without this increase in tank size, field storage dealers will be forced to make multiple trips to and from the tanks, increasing exposure of trucks and drivers to delivery accidents.
There are already numerous 10,000 gallon temporary field storage tanks being used to store soil fumigants resulting in noncompliance with a rule that, from a storage standpoint, is technologically outdated. Growers, applicators, and transporters of soil fumigants will all be positively impacted by the proposed rules.
Requiring a record log to be attached to the container will give field inspectors a better idea of when the container was inspected. This record log will also provide the owner of the tank a history of the tank and the overall condition of the tank, thereby preventing the likelihood of tank failure.
Proposal Changes the Following Existing Rules: See above for a description of changes.
No small business economic impact statement has been prepared under chapter 19.85 RCW. RCW 19.85.030 (1)(a) requires that an agency prepare a small business economic impact statement (SBEIS) for proposed rules that impose a more than minor cost on businesses in an industry. The department concludes that the proposed rule amendments will not impose a more than minor cost on the regulated industry for the following reasons:
• The proposed amendments do not require that larger temporary storage tanks be used; rather they give the flexibility to do so if needed by updating the current rule to reflect storage capacity trends in the industry.
• The proposed amendment requiring that tanks must be compatible with the material being stored in them already appears in other sections of the current rule, therefore, this added language does not impose any additional cost on the regulated community. The proposed amendment simply makes the amended sections compatible with the rest of the rule.
• The fourteen day requirement is also a part of the current rule and, therefore, does not impose any additional costs on the regulated industry. Again, the proposed amendment simply makes the amended sections compatible with the rest of the rule.
• Finally, the department concludes that the proposed new requirement to keep, in a weatherproof enclosure, a recorded log of the date and time of each inspection does not impose a more than minor cost on the regulated industry. Current rule requires that temporary field storage containers must be checked on a daily basis for leakage and soundness when in use. Since site visits must already occur, the department does not believe that simply keeping an on-site record of that visit in a weatherproof enclosure constitutes more than a minor cost. The department believes that such a record helps verify required daily inspections and, therefore, helps insure safe use of temporary storage tanks.
For the above reasons, the department does not believe that the proposed amendments impose more than a minor cost on business and a small business economic [impact] statement is not required.
RCW 34.05.328 does not apply to this rule adoption. The Washington State Department of Agriculture is not a listed agency in RCW 34.05 [34.05.328] (5)(a)(i).
Hearing Location: Three DIS locations simultaneously via teleconference: 710 Sleater Kinney Road S.E., Suite Q, Lacey, WA 98504; 8551 West Gage Boulevard, Suite H, Kennewick, WA 99336; and 1101 North Argonne, Suite 109, Spokane, WA 99201; on March 25, 2003, at 6:00 p.m.
Assistance for Persons with Disabilities: Contact Laurie Mauerman by March 10, 2003, TDD (360) 902-1996.
Submit Written Comments to: Cliff Weed, Washington State Department of Agriculture, P.O. Box 42560, Olympia, WA 98504-2560, fax (360) 902-2093, by March 26, 2003, 5:00 p.m.
Date of Intended Adoption: April 8, 2003.
February 18, 2003
Bob Arrington
Assistant Director
OTS-5849.2
AMENDATORY SECTION(Amending WSR 00-23-074, filed 11/17/00,
effective 12/18/00)
WAC 16-229-010
Definitions.
The definitions set forth
in this section shall apply throughout this chapter unless the
context otherwise requires:
(1) "Approved air gap" means a physical separation between the free-flowing end of a water supply pipeline and the overflow rim of an open or nonpressurized receiving vessel. To be an approved air gap, the separation must be at least:
(a) Twice the diameter of the supply piping measured vertically from the overflow rim of the receiving vessel, and in no case be less than one inch, when unaffected by vertical surfaces (sidewalls); or
(b) Threes time the diameter of the supply piping, if the horizontal distance between the supply pipe and a vertical surface (sidewall) is less than or equal to three times the diameter of the supply pipe, or if the horizontal distance between the supply pipe and intersecting vertical surfaces (sidewalls) is less than or equal to four times the diameter of the supply pipe and in no case less than one and one-half inches.
(2) "Approved reduced pressure principle backflow prevention assembly (RPBA)" means an RPBA of a make, model and size that is approved by the Washington State Department of Health.
(3) "Appurtenances" means all valves, pumps, fittings, pipes, hoses, metering devices, and mechanical devices which are connected to a storage container, or which are used to transfer a material into or out of such container.
(4) "Bulk pesticide" means any registered pesticide which is transported or held in an individual container in undivided quantities of greater than fifty-five U.S. gallons liquid measure or one hundred pounds net dry weight.
(5) "Certified engineer" means a licensed professional engineer, registered in the state of Washington in the discipline in which he/she is practicing.
(6) "Department" means the Washington state department of agriculture.
(7) "Discharge" means a spill, leak, or release, accidental or otherwise, from a storage container, container or appurtenance. It does not include a fully contained transfer of pesticide which is made pursuant to sale, storage, distribution or use.
(8) "Dry pesticide" means pesticide which is in solid form prior to any application or mixing for application, and includes formulations such as dusts, wettable powders, dry flowable powders, granules, and water dispersible granules.
(9) "Liquid pesticide" means pesticide in liquid form, and includes solutions, emulsions, suspensions, slurries, and pesticide rinsates.
(10) "Mini-bulk pesticide" means an amount of liquid pesticide greater than fifty-five gallons but not exceeding five hundred gallons which is held in a single container designed for ready handling and transport, which has been filled by the original pesticide manufacturer or repackager, and to which no substance has been added by any person.
(11) "Not technically feasible" means compliance is not physically or technically possible or feasible, and/or compliance cannot be achieved without compromising operational safety, and/or significantly compromising operational access. Monetary cost of compliance alone shall not be sufficient for the department to determine that compliance is not technically feasible.
(12) "Operational area" means an area or areas where pesticides are transferred, loaded, unloaded, mixed, repackaged, refilled or where pesticides are cleaned, or rinsed from containers or application, handling, storage or transportation equipment.
(13) "Operational area containment" means any structure or system designed and constructed to intercept and contain discharges, including storage container or equipment wash water, rinsates, and rainwater from the operational area(s).
(14) "Permanent mixing/loading site" means a site (location) at which more than three hundred gallons of liquid pesticide (formulated product) or three thousand pounds of dry pesticide or at which a total of fifteen hundred pounds of pesticides as active ingredients are being mixed, repackaged or transferred from one container to another within a calendar year: Provided, That wood preservative application systems already regulated by 40 CFR, Parts 264.570-575 and Parts 265.440-445 shall be exempt.
(15) "Permanent storage facility" means a location at which liquid bulk pesticide in a single container or aggregate quantities in excess of five hundred U.S. gallons or dry bulk pesticide in undivided quantities in excess of two thousand pounds is held in storage: Provided, That mini-bulk pesticide containers are exempt from this chapter.
(16) "Pesticide" means, but is not limited to:
(a) Any substance or mixture of substances intended to prevent, destroy, control, repel, or mitigate any insect, rodent, snail, slug, fungus, weed, and any other form of plant or animal life or virus, except virus on or in a living person or other animal which is normally considered to be a pest or which the director may declare to be a pest;
(b) Any substance or mixture of substances intended to be used as a plant regulator, defoliant or desiccant; and
(c) Any spray adjuvant.
(d) For the purpose of establishing permanent mixing/loading site threshold values petroleum oils are exempt from this chapter.
(17) "Primary containment" means the storage of liquid or dry bulk pesticide in storage containers at a permanent storage facility.
(18) "Rinsate" means the liquid generated from the rinsing of any equipment or container that has come in direct contact with any pesticide, including: recovered sedimentation, washwater, contaminated precipitation, or other contaminated debris.
(19) "Secondary containment" means a device or structure designed, constructed, and maintained to hold or confine a discharge of a liquid pesticide from a permanent storage facility.
(20) "Storage container" means a container, including a rail car, nurse tank or other mobile container, that is used or intended for the storage of bulk liquid or dry pesticide. It does not include a mobile container at a storage facility for less than fifteen days if this storage is incidental to the loading or unloading of a storage container at the bulk pesticide storage facility. Storage container does not include underground storage containers or surface impoundments such as lined ponds or pits.
(21) "Substantially similar protection" means alternative containment and management practices that prevent or control releases to the environment to the same or similar degree as the protections afforded by full compliance with this chapter.
(22) "Temporary field storage" means a storage container with the capacity to store two thousand five hundred gallons or less of bulk liquid pesticide that remains in the same location for no more than fourteen consecutive days in any six-month period. Provided, That temporary field storage containers used to store soil fumigants shall be allowed a maximum capacity of ten thousand five hundred gallons or less. Containers must be chemically compatible with the material, which is being stored. Such containers can remain in the same location for no more than fourteen consecutive days in any six-month period. Liquid bulk pesticide application tanks directly attached to an apparatus for the purpose of chemigation are exempt from this chapter.
(23) "Washwater" means the liquid generated from the rinsing of the exterior of any equipment, containers or secondary containment or operational areas which have or may have come in direct contact with any pesticide.
[Statutory Authority: Chapters 15.58 and 17.21 RCW. 00-23-074, § 16-229-010, filed 11/17/00, effective 12/18/00. Statutory Authority: RCW 15.54.800 and 15.58.040. 93-22-093 (Order 5018), § 16-229-010, filed 11/2/93, effective 3/1/94.]
(2) All bulk pesticide storage containers and appurtenances used for field storage shall be inspected for leakage and soundness daily when in use.
(3) All bulk pesticide storage containers used for temporary field storage shall have attached, in a weatherproof enclosure, a recorded log of the date and time of each inspection.
(4) Valves on storage containers shall be closed and locked or otherwise secured when left unattended.
(((4))) (5) The physical location and identifying number
of all temporary field storage shall be provided to the
department upon request.
(((5))) (6) The department may issue a permit to extend
the time temporary field storage may be in one place during
any six-month period due to weather related conditions upon
written request. No advisory group review, pursuant to WAC 16-229-310(2) is required for this type of permit.
[Statutory Authority: Chapters 15.58 and 17.21 RCW. 00-23-074, § 16-229-200, filed 11/17/00, effective 12/18/00. Statutory Authority: RCW 15.54.800 and 15.58.040. 93-22-093 (Order 5018), § 16-229-200, filed 11/2/93, effective 3/1/94.]