WSR 07-21-110



[ Order 07-12 -- Filed October 19, 2007, 4:23 p.m. ]

     Subject of Possible Rule Making: Dangerous waste regulations, chapter 173-303 WAC, will be amended to incorporate several federal hazardous waste regulations, including updates to manifest requirements, merging universal waste rules for mercury-containing devices and mercury thermostats, and incorporating some of EPA's burden reduction initiative rules. Some state-only requirements will be updated; these consist mainly of technical and editorial corrections and clarifications. Testing methods for state wastes will be updated. Changes are being considered to some permit preapplication requirements.

     Statutes Authorizing the Agency to Adopt Rules on this Subject: Chapters 70.105 and 70.105D RCW, the Hazardous Waste Management Act and Hazardous Waste Cleanup-Model Toxics Control Act.

     Reasons Why Rules on this Subject may be Needed and What They Might Accomplish: The main purpose of this rule process is to update the dangerous waste regulations by incorporating recent federal hazardous waste requirements into the state's regulations. Ecology is authorized by EPA to implement the federal hazardous waste program in Washington. By staying current with the federal program, the regulated community has primarily one environmental agency to work with. The second purpose is to update state requirements to make improvements, corrections, and clarifications.

     Other Federal and State Agencies that Regulate this Subject and the Process Coordinating the Rule with These Agencies: The federal Environmental Protection Agency (EPA) implements hazardous waste regulations in Washington until ecology adopts those regulations and begins implementing them. A formal EPA authorization process follows ecology's rule adoption. EPA is aware of which federal regulations ecology intends to adopt during this rule process. Ecology will provide drafts and the formal proposal to EPA for their review and will communicate and coordinate with EPA throughout the process.

     Process for Developing New Rule: The main purpose of this rule making is to update existing hazardous waste requirements with newer federal rules. Since many of these are already in effect and were developed as part of federal rule making, the process will consist primarily of making draft and proposed rule language available for review and comment. Input will be sought during the draft rule phase where ecology may differ from EPA on some optional federal rules. Ecology is seeking comment at this time on possible changes to permit preapplication requirements.

     Ecology is asking for comment on whether or not the following permit preapplication requirements should be amended as described below:

     1. Clarify what a 25% facility expansion means,

     2. Delete obsolete language,

     3. Exempt recycling facilities from siting criteria if they meet several important limitations, and

     4. Exempt certain facilities from citizen proponent negotiations.

     1. Clarify what a 25% facility expansion means. A facility that proposes a 25% facility expansion in a permit renewal or modification triggers siting criteria because 25% is considered a significant expansion. There are two areas that need clarification.

     First is to clarify that a 25% facility expansion means storage design capacity.

     The current regulation refers to process design capacity. Process design capacity can be interpreted either of two ways - storage design capacity or volume of waste processed through the facility over a period of time. Clarifying an expansion as storage design capacity is consistent with current guidance and the way the state implements the current regulations. Storage design capacity is a numeric limit in permits that is clearly documented and enforceable, making it a more reliable measure as the basis for a facility expansion. Permits do not have specific limits on how much waste can be processed through a facility's operation. Instead, permits specify the maximum amount of waste that can be onsite at any given time (storage design capacity), aspects of process design, and management practices to properly process waste.

     Second is to provide clear and reasonable criteria for triggering siting criteria after the initial significant expansion.

     The change would clarify that a significant expansion is a single or cumulative increase of greater than 25% of the storage design capacity as described in the facility's original Part A permit application or of the storage capacity approved for the previous significant expansion.

     2. Delete obsolete language that exempted two recycling facilities from siting criteria when ecology adopted the original regulation. At the time the original siting criteria were written, two recycling facilities were not able to meet the siting criteria. They were exempted from siting criteria and allowed to apply for permits. This language that exempted the facilities is no longer relevant, although it demonstrates that, historically, there have been existing recycling facilities that needed to apply for permits, but could not do so because they did not meet the siting criteria.

     3. Exempt recycling facilities needing storage from siting criteria and citizen/proponent negotiations if they meet important limitations. Ecology is considering adding rule language to exempt existing and new recycling facilities from siting criteria and the citizen/proponent negotiation (CPN) process when they seek a storage permit if they meet the following important limitations:

The recycling process itself is exempt from dangerous waste permitting;
Waste storage is used strictly to support the exempt recycling;
Waste storage is in tanks, containers, or a containment building;
Waste storage is indoors; and
The facility meets local zoning requirements.
     Over the years, ecology has seen recycling facilities struggle to comply with time restrictions for holding recyclable waste. During the last rule amendment process, the holding time was increased to seventy-two hours, which was sufficient for some facilities. Others, particularly those whose recycling businesses are expanding rapidly or are becoming large-scale operations, need more time. However, these facilities usually cannot apply for dangerous waste storage permits under the existing regulations because they cannot satisfy the siting criteria. This change would allow facilities to apply for a permit.

     Waste storage would be restricted to tanks, containers, or containment buildings, which generators can currently use without a permit and are generally considered to be the safest and most straightforward types of storage. Recycling operations usually have a specific waste stream needing to be stored (for example, lamps, refrigerants, photo fixer solutions, precious metals, or spent solvents). This allows for focused design and permitting requirements needed to reduce threats. Perhaps the most important requirement is indoor storage. This reduces storm-water contact and concerns with direct releases to soil and groundwater. The siting criteria are designed as an initial screen to protect contact between wastes and the natural and built environment. Having permitted activities within the confines of a building reduces many of the threats addressed by the siting criteria.

     This change would facilitate recycling operations to manage wastes, supporting Washington's waste management hierarchy and beyond waste plan. The change would provide needed options for ecology and existing recycling facilities that can not pass siting criteria at their location, even though they meet local zoning requirements. Waste storage at these facilities would be under controls of a dangerous waste permit.

     4. Exempt certain existing facilities applying for a significant expansion from citizen/proponent negotiations (CPN). This change would exempt existing "designated zone facilities" that are applying for a significant expansion from CPN. The following are key regulatory definitions:

     "Designated zone facilities" means any facility that requires an interim or final status permit, located in a land-use zone designated for handling hazardous substances and hazardous waste, and is not a preempted facility as defined in this section.

     "Preempted facility" means any facility that includes as a significant part of its activities any of the following operations:

     (i) Landfill,

     (ii) Incineration,

     (iii) Land treatment,

     (iv) Surface impoundment to be closed as a landfill, or

     (v) Waste pile to be closed as a landfill.

     This change would not affect requirements for new "designated zone facilities," any incinerators or land-based operation such as landfills and surface impoundments, or any facility whose location is not consistent with local zoning requirements. The scope of the CPN process fits those types of facilities. The change would only affect existing designated zone facilities.

     CPN does provide an opportunity for local communities to negotiate conditions with a facility owner that are above and beyond regulatory requirements. However, the full CPN process has only been used once. With or without CPN, the community and public have the opportunity to comment on conditions of the permit through the normal permitting process.

     CPN is subject to several requirements. For "designated zone facilities," the full process happens only if all of the following conditions are met:

The community is interested and committed to the CPN process;
The lead local government is willing to conduct the CPN process;
Ecology has funding available to support the process with a grant (up to $50,000 initial funding, with the possibility for an additional $50,000 renewal); and
The facility is willing to participate (including matching ecology's grant funding).
     Exempting existing "designated zone facilities" that are applying for a significant expansion from the CPN process would simplify the regulations by eliminating a process that has confusing conditions and by reducing the administrative burden to local government.

     Interested parties can participate in the decision to adopt the new rule and formulation of the proposed rule before publication. To submit comments on amending permit preapplication requirements or for more detailed information about the rule-making content and process contact Patricia (Chipper) Hervieux at or, you may call (360) 407-6756, write Attn: HWTR, P.O. Box 47600, Olympia, WA 98504-7600, or fax (360) 407-6715. To receive draft and proposed rules, hearing announcements, and opportunities for public involvement you may sign up for the DW Regulations listserv at

October 18, 2007

K. Seiler

for Darin Rice, Program Manager

Hazardous Waste and Toxic Reduction

© Washington State Code Reviser's Office