WSR 00-19-090

PROPOSED RULES

DEPARTMENT OF AGRICULTURE


[ Filed September 20, 2000, 10:20 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 99-11-059.

Title of Rule: Revision of chapter 16-201 WAC, rules relating to secondary and operational area containment for bulk fertilizer storage facilities.

Purpose: To revise chapter 16-201 WAC to address issues and concerns raised since implementation of the original rule in 1994.

Statutory Authority for Adoption: RCW 15.54.800.

Statute Being Implemented: Chapter 15.54 RCW.

Summary: The proposed revisions are the result of recommendations received from an advisory committee established by the department in December 1999. The committee was comprised of the following persons: Scott McKinnie, Farwest Agrichemical Association; Ken Cowdrey, Wilbur-Ellis Company; Fred Morscheck, The McGregor Company; John Massey, Western Farm Service; Ernie Fontana, Unocal Agricultural Products; Gaylin Davies, Cenex Harvest States; Don Page, Simplot Soilbuilders; Peter Collard, C.F. Industries, Inc.; Ron Hawkins, UAP Northwest; Dennis Anderson, Nexus Ag Chemical, Inc.; Elliot Zimmerman, Washington State Department of Ecology; and Gretchen Bork, Washington Association of Wheat Growers.

The task of the committee was to thoroughly review the current rules, discuss any concerns or issues and make recommendations to the department regarding any necessary revisions to the rule. The committee held its final meeting on August 2, 2000. The following proposals are a result of the recommendations of the committee, department personnel input and input by the Washington State Department of Health (DOH):

WAC 16-201-010 Definitions, "Approved air gap" is a new definition added because of changes to WAC 16-201-220. This definition is virtually identical to the definition found in WAC 246-290-490 and regulated by the Department of Health. The only difference is the removal of the word "potable" in order that the definition apply to all water sources.

"Approved reduced pressure principle backflow prevention assembly (RPBA)" is a new definition added because of changes to WAC 16-201-220. This definition was supplied to the department by the Department of Health.

"Certified engineer" is a new definition added because the term occurs in the rule and currently is not defined.

"Not technically feasible" is a new definition added because the term occurs in the rule and currently is not defined.

"Operational area" is an existing definition that has been revised to be consistent with other definitions (Permanent storage facility).

"Permanent storage facility" is an existing definition that has been revised to clarify the intent of the original rule. In addition, "Temporary field storage" has been removed from this definition and defined on its own.

"Rinsate" is an existing definition that has been revised to include recovered sedimentation, washwater, contaminated precipitation, or other contaminated debris. This is in keeping with the intent of the original rule.

"Secondary containment" is an existing definition that has been revised to be consistent with other definitions (Permanent storage facility).

"Storage container" is an existing definition that has been revised to:

(1) Ensure that "intent" is addressed in determining if a container is a "storage container."

(2) Reduce the number of days a mobile container can be exempt from the definition (from 30 to 15 days).

(3) Clarifies that the definition of a storage container does not include underground storage tanks or surface impoundments. This is consistent with the intent of the original rule.

"Substantially similar protection" is a new definition added because the term is found in the rule and currently is not defined.

"Temporary field storage" is a term that originally was addressed within the definition of "permanent storage facility." It was moved for purposes of clarification.

WAC 16-201-020, 16-201-040, 16-201-050, 16-201-070, 16-201-080, 16-201-200, 16-201-240, 16-201-250 and 16-201-260, the changes to these sections are housekeeping changes only. The revisions make the sections compatible with defined terms.

WAC 16-201-028, this section has been revised to combine pertinent sections of the current rule regarding secondary containment walls and floors. It also adds language developed by the committee to address how walls and floors shall be constructed. This language is in keeping with the intent of keeping the rule performance-based.

WAC 16-201-029 (new section), this section was created to address earthen walls only. The language is the same as existing language found in WAC 16-201-028 and 16-201-030.

WAC 16-201-030, this section has been revised to contain only those sections of the current rule regarding secondary containment lining. There is no actual change to the language.

WAC 16-201-031 (new section), this section was created to address only secondary containment floors and lining. It contains the pertinent sections of the current WAC 16-201-030.

WAC 16-201-060, this section has been revised to allow comingling of materials within secondary containment (a position the committee agreed upon) as long as it does not create a hazard to humans or the environment.

WAC 16-201-110, this section has been revised to clarify that original intent of the rule that liquid fertilizer may not be stored underground or in surface impoundments. It also adds fertilizer spills or rinsates as other material that may not be stored underground or in surface impoundments. The committee could not arrive at a consensus regarding the issue of spill and/or rinsates being stored in surface impoundments. It is the department's opinion that to comply with the intent of the rule to protect the environment, spills and/or rinsates should be stored in storage containers located within secondary containment.

WAC 16-201-120, this section was revised with additional requirements regarding the posting and reintroduction to service of abandoned storage containers. This language was added at the requests of the committee.

WAC 16-201-130, this section was revised to clarify when storage containers shall be secured. There was much discussion among committee members regarding the need for this section given the language found in WAC 16-201-100. There was also discussion regarding the potential for department misuse of its enforcement discretion in this area. The department determined that the language is necessary and that the language in WAC 16-201-100 would not substitute for it.

WAC 16-201-170, this section was revised to add the date the temporary field storage was put in place. This was added in an effort to assist department staff in more easily determining if temporary field storage is in compliance with the 21-day location restriction.

WAC 16-201-180, this section was revised to add language requiring any owner of temporary field storage to supply the department with the identifying number and location. The requirement to have an identifying number already exists in current WAC 16-201-170 and the requirement to supply the department with the location of temporary field storage already exists in current WAC 16-201-010(10). Subsection (5) was added at the request of the committee who agreed with the department that there was no reason for such requests to go through an advisory group review.

WAC 16-201-190, this section was revised to use language similar to that found in the proposed WAC 16-201-028 and to make housekeeping changes to make the section compatible with defined terms.

WAC 16-201-220, this section was revised after receiving comment from the Department of Health (DOH). The language is consistent with language in chapter 246-290 WAC. It continues to meet the intent of protecting source water from contamination. Proposed definitions for "approved air gap" and "approved RBPA" are found in the definition section WAC 16-201-010.

WAC 16-201-230, this section was revised to address spills and rinsates only. It clarifies when rinsate must be removed from an operational area sump and makes it clear, where it is not currently clear, that all recovered spill and rinsates in excess of five hundred gallons must be contained in a storage container located within secondary containment. It also adds the requirement that the storage container be labeled to identify the content. Again, this was the subject of much discussion by the committee and no consensus was reached. The department feels that in keeping with the intent to protect the environment, placing the storage container within secondary containment is a reasonable and prudent thing to do.

WAC 16-201-270, this section was revised to eliminate all the compliance dates that have already passed. In addition, in an attempt to mitigate the impact of WAC 16-201-110 and 16-201-230(4) on small businesses, the compliance date for these sections has been set December 31, 2001.

WAC 16-201-280, the section was revised to allow the department some discretion regarding the necessity of requesting an advisory group to review a permit request prior to making a decision. It also allows the advisory group or the permit requester to ask that the advisory group review the request prior to a final decision by the department.

Reasons Supporting Proposal: The proposal is the result of numerous meetings with an advisory committee comprised of representatives of small and large bulk fertilizer facilities, agricultural producers, nonagricultural fertilizer users, [and the] Washington State Department of Ecology. The revisions address a number of issues that have arisen since implementation of the rule in 1994.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Ted Maxwell, Olympia, (360) 902-2026.

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: Chapter 16-201 WAC addresses primary and secondary containment requirements for bulk fertilizer. The primary purpose of the rule is to protect the environment (particularly groundwater) from contamination in the case of an accidental discharge of fertilizer from a bulk fertilizer storage facility. The rule, which went into effect in 1994, went through a routine review by a committee appointed by the director. The committee made a number of recommendations regarding needed revisions to the rule. In addition, the department received comments from the Washington Department of Health regarding the section of the rule pertaining to backflow prevention. See Summary above.

Proposal Changes the Following Existing Rules: See Summary above.

A small business economic impact statement has been prepared under chapter 19.85 RCW.

Small Business Economic Impact Statement

Reviser's note: The material contained in this filing exceeded the page-count limitations of WAC 1-21-040 for appearance in this issue of the Register. It will appear in the 00-20 issue of the Register.

A copy of the statement may be obtained by writing to Laurie Mauerman, Washington State Department of Agriculture, P.O. Box 42560, Olympia, WA 98504-2560, phone (360) 902-2012, fax (360) 902-2093.

Section 201, chapter 403, Laws of 1995, does not apply to this rule adoption. WSDA is not a listed agency in section 201.

Hearing Location: DIS Interactive Technologies locations: (1) 710 Sleater-Kinney Road S.E., Suite Q, Lacey, WA 98503; (2) North 1101 Argonne, Suite 109, Spokane, WA 99201; and (3) Yesterday's Village, 15 West Yakima Avenue, Suite 220, Yakima, WA 98902; on November 7, 2000, at 6:30 p.m.

Assistance for Persons with Disabilities: Contact Laurie Mauerman by October 30, 2000, TDD (360) 902-1996.

Submit Written Comments to: Laurie Maurman, Washington State Department of Agriculture, P.O. Box 42560, Olympia, WA 98504-2560, fax (360) 902-2093, by November 8, 2000.

Date of Intended Adoption: November 17, 2000.

September 20, 2000

Bob Arrington

Assistant Director

Reviser's note: The material contained in this filing exceeded the page-count limitations of WAC 1-21-040 for appearance in this issue of the Register. It will appear in the 00-20 issue of the Register.

Washington State Code Reviser's Office