Current through Register Vol. 24-06, March 15, 2024
(1)
Purpose. This section establishes siting criteria which serve as
an initial screen in the consideration of sites for dangerous waste management
facilities. The purpose of the siting criteria is to immediately disqualify
proposed dangerous waste facility sites in locations considered unsuitable or
inappropriate for the management of dangerous wastes. Under
RCW
70.105.200(1)(d), siting
criteria cannot prevent existing dangerous waste management facilities from
operating at or below their present level of activity.
A proposed site which is not disqualified under these criteria
will be further studied to determine if it qualifies under site specific rules.
Compliance with the siting criteria does not imply that a given project at a
given location poses an acceptable level of risk, nor does it commit the
department to the issuance of a dangerous waste permit. Projects that
demonstrate compliance with the siting criteria will be subjected to
comprehensive environmental and technical review pursuant to applicable laws
and regulations before the department makes a final decision on a dangerous
waste permit.
The department may deny a permit or require protective measures
such as engineering enhancements or increased setback distances from resources
in order to ensure protection of human health and the environment.
(2)
Applicability.
(a) Except as otherwise specifically
provided, this section applies to:
(i)
Owners/operators of proposed facilities; and
(ii) Owners or operators of existing
land-based facilities at which an expansion of the land based unit is
proposed;
(iii) Owners or operators
of existing incinerators at which an expansion is proposed; and
(iv) Owners or operators proposing a
significant expansion of other existing dangerous waste management facilities
not subject to (a)(i), (ii) and (iii) of this subsection, unless the
owner/operator can demonstrate to the satisfaction of the department that the
proposed expansion will provide a net increase in protection to human health
and the environment beyond that which is currently provided at the facility.
However, demonstrations under this subsection (iv) must not result in treatment
or storage facilities expanding into land-based or incineration facilities if
siting criteria cannot be satisfied.
(b) This section does not apply to:
(i) Owners/operators of facilities or
portions of facilities who are applying for research, development and
demonstration permits, pursuant to section 3005(g) of the Resource Conservation
and Recovery Act, codified in 40 C.F.R. Part 270.65 or WAC
173-303-809;
(ii) Owners/operators of facilities operating
under an emergency permit pursuant to WAC
173-303-804;
(iii) Persons at facilities conducting
on-site cleanup of sites under the Comprehensive Environmental Response
Compensation and Liability Act, Sections 3004(u), 3004(v), and 3008(h) of the
Resource Conservation and Recovery Act,
chapter
70.105 RCW, or
chapter
70.105D RCW, provided
the cleanup activities are being conducted under a consent decree, agreed
order, or enforcement order, or is being conducted by the department or United
States Environmental Protection Agency;
(iv) Persons managing solid wastes who become
subject to dangerous waste regulations through amendments to this chapter after
the effective date of this section. This provision applies only to those
activities operated in accordance with local, state, and federal requirements
and which were being conducted prior to becoming subject to dangerous waste
regulations, chapter 173-303 WAC or expansions, if it can be demonstrated to
the satisfaction of the department that the proposed expansion of such
activities will provide a net increase in protection to human health and the
environment beyond that which is currently provided at the facility;
or
(v) Owners/operators of
facilities who seek to obtain a dangerous waste permit for waste storage and
satisfy all of the following:
(A) The facility
recycles dangerous waste in a process that is exempt from dangerous waste
permitting.
(B) Waste storage is
used strictly to support the exempt recycling.
(C) Waste storage is in tanks, containers, or
a containment building.
(D) Waste
storage is indoors.
(3)
Definitions. Any terms used
in this section that are not defined below have the meanings provided in WAC
173-303-040. For the purposes of
this section, the following terms have the described meanings:
(a) "Aquifer of beneficial use" means an
aquifer that contains sufficient quality and quantity of water to allow it to
be withdrawn for beneficial uses which include, but are not limited to, uses
for domestic, stock watering, industrial, commercial, agricultural, irrigation,
mining, fish and wildlife maintenance and enhancement, or recreational
purposes.
(b) "Displacement" means
the relative movement of any two sides of a fault measured in any
direction.
(c) "Domestic water use"
means any water used for human consumption, other domestic activities or
livestock watering for which the department has issued a permit of water right
for surface water diversions pursuant to
chapter
90.03 RCW, or for a well
pursuant to
chapter
90.44 RCW, or for which
the department has received a well water report pursuant to
RCW
18.104.050, or for any other valid water
right claimed in accordance with chapter 90.14 RCW. This does not apply to
wells abandoned in compliance with chapter 173-160 WAC.
(d) "Existing facility" means a facility
which has qualified for interim status under WAC
173-303-805 or for which the
department has issued a final facility permit under WAC
173-303-806.
(e) "Expansion" means the enlargement of the
land surface area of an existing facility from that described in an interim
status permit application or final facility permit, the addition of a new
dangerous waste management process, or an increase in overall design capacity
of existing dangerous waste management processes at a facility. However, a
process or equipment change within the existing handling code (not to include
"other") as defined under WAC
173-303-380(2)(d)
will not be considered a new dangerous waste
management process.
(f) "Fault"
means a fracture along which rocks or soils on one side have been displaced
with respect to those on the other side.
(g) "Holocene" means the most recent epoch of
the Quaternary period, extending from the end of the Pleistocene to the
present.
(h) "Land-based facility"
means a dangerous waste management facility which falls under the definition of
land disposal as defined in Section 3004(k) of the Resource Conservation and
Recovery Act. These facilities use the land as an integral part of their waste
management method and include, but are not limited to, landfills, surface
impoundments, waste piles, and land treatment facilities. For the purposes of
this section, this would not include waste piles in which the dangerous wastes
are stored inside or under a structure that provides protection from
precipitation and when runoff, leachate, or other types of waste dispersal are
not generated under any conditions.
(i) "Nonland based facility" means a facility
which does not use the land as an integral part of its waste management method
and is not subject to the requirements of WAC
173-303-806(4)(a)(xxi).
These facilities include, but are not limited to, tanks, containers, and
incinerators.
(j) "Perennial
surface water body" means a surface water body which is normally continuous
with natural flows throughout the year or an annually recurring body of water
including lakes, rivers, ponds, streams, reservoirs, inland waters, and
saltwaters. This does not include roadside ditches or storm drains. However,
this definition does apply to irrigation or domestic water supply channels
existing, or planned and approved by a governmental agency, at the time an
owner/operator submits a notice of intent.
(k) "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.
(l) "Prime farmland"
means the land which has the best combination of physical and chemical
characteristics for producing food, feed, forage, fiber or oilseed crops, and
is also available for these uses. It has the soil quality, growing season, and
moisture supply needed to economically produce sustained high yields of crops
when treated and managed, including water management, according to acceptable
farming methods. In general, prime farmland has an adequate and dependable
water supply from precipitation or irrigation, a favorable temperature and
growing season, acceptable acidity or alkalinity, acceptable salt and sodium
content, and few or no rocks. It is permeable to water and air. Prime farmland
is not excessively erodible or saturated with water for a long period of time,
and it either does not flood frequently or is protected from flooding. Prime
farmland will be determined by those general and specific criteria as defined
in the National Soils Handbook, Soil Conservation Service, United States
Department of Agriculture, Washington, D.C. and 7 C.F.R. 2.62. Areas of prime
farmland are identified in the most recent county soil survey maps prepared by
the National Cooperative Soil Survey.
(m) "Proposed facility" means a facility
which has not qualified for interim status under WAC
173-303-805 or for which the
department has not issued a final facility permit under WAC
173-303-806.
(n) "Public gathering places" means a place
such as a public or private health care or child care facility; an educational
institution; a church; a government institution not associated with dangerous
waste management; or a retail shopping center.
(o) "Residence" means any dwelling including,
but not limited to, private homes, rental homes, boarding houses, apartments,
motels, or hotels.
(p) "Significant
expansion" means an expansion of an existing facility, operating under interim
status or a final status permit, that is considered a class three modification
as designated by 40 C.F.R. Parts 270.41 and 270.42. Examples include, but are
not limited to, a modification or addition of container units resulting in
greater than a twenty-five percent increase in the facility's container storage
capacity, storage of different wastes in containers that require additional or
different management practices from those authorized under interim status or by
a final status permit, and a modification or addition of tank units resulting
in greater than twenty-five percent increase in the facility's capacity. In
addition, for the purposes of this section, a significant expansion is a single
or cumulative increase of greater than twenty-five percent 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, whichever is more recent.
(q) "Slope and soil instability" means areas
for which there is credible evidence of, or the potential for, landslides,
slumps, avalanches, earth or mud flows, or other unsuitable slope
conditions.
(r) "Subsidence" means
areas for which there is credible evidence of, or potential for, sinking of the
land surface. Areas of subsurface mines, caves, cavernous materials, or where
there has been significant removal of fluids may provide credible evidence of
subsidence.
(s) "Wetland" means
land transitional between terrestrial and aquatic systems where the water table
is usually at or near the surface or the land is covered by shallow water. For
purposes of this classification a wetland must have one or more of the
following three attributes: (i) At least periodically, the land supports
predominantly hydrophytes; (ii) the substrate is predominantly undrained hydric
soil; and (iii) the substrate is nonsoil and is saturated with water or covered
by shallow water at some time during the growing season of each year. The
Joint Federal Methodology for Identifying and Delineating
Wetlands must be used for defining the upland boundary of
wetlands.
(4)
Implementation.
(a) Submittal of
information to demonstrate compliance. Documentation that a proposed facility
or expansion site meets the siting criteria must be submitted to the department
in the notice of intent.
(b)
Consultation by department. The department will consult with the lead local
government as defined in WAC
173-303-902(4)(h)
and consider those local land use, building,
fire, air quality, and transportation standards to the extent they add to and
do not conflict with the requirements of this section. Such consultation and
consideration will be made prior to the department's rendering of a tentative
decision under subsection (4)(c) of this section.
(c) Response by department. Within sixty days
of receipt of a demonstration of compliance, the department will undertake one
of the following actions:
(i) Return the
demonstration of compliance as incomplete with written comments identifying the
need for additional information. The owner or operator may resubmit the
demonstration of compliance with complete information; or
(ii) Render a written tentative decision to
approve or deny the demonstration of compliance.
(d) Public notice and hearing process. The
department in making a tentative decision to approve or deny a demonstration of
compliance with this section will take the following actions:
(i) For land-based facilities and
incinerators:
(A) The department will publish
a notice of its tentative decision in a daily or weekly newspaper of general
circulation in the potentially affected area, and will give notice by other
reasonable methods to persons potentially affected.
(B) The department will hold a public hearing
at a location convenient to the public in the potentially affected area. Notice
of the date, time, purpose, and place of the hearing will be provided in the
publication of notice.
(C) The
department will accept comments on its tentative decision for a minimum of
forty-five days.
(D) After
evaluating all public comments the department will make a final decision in
accordance with
chapter
34.05 RCW. The department
will either approve or deny the owner/operator's demonstration of
compliance.
(ii) For
nonland-based facilities, excluding incinerators:
(A) The department will publish a notice of
its tentative decision in a daily or weekly newspaper of general circulation in
the potentially affected area, and will give notice by other reasonable methods
to persons potentially affected.
(B) Upon the written request of any
interested person, the department may hold a public hearing to consider public
comments on the owner or operator's demonstration of compliance. A person
requesting the hearing must state the issues to be raised and explain why
written comments would not suffice. In any case, if ten or more persons request
a public hearing on the subject of the department's tentative decision, the
department will hold a public hearing for the purpose of receiving
comments.
(C) The department will
accept comments on its tentative decision for a minimum of forty-five
days.
(D) After evaluating all
public comments the department will make a final decision in accordance with
chapter
34.05 RCW. The department
will either approve or deny the owner or operator's demonstration of
compliance.
(6)
Criteria for elements of the
natural environment. The following siting criteria establish locations
from which facilities are excluded and establish minimum setback distances from
identified resources. Unless otherwise stated, setback distances are measured
horizontally from the dangerous waste management unit boundary to the
identified resource.
These criteria will be used as an initial screening tool in the
selection of sites which may be considered by the department for the purpose of
managing dangerous waste. A more comprehensive evaluation of locational factors
will occur during the department's review of a permit application. The
department may deny a permit or impose additional setback distances or other
permit requirements if necessary to protect human health and the
environment.
(a) Earth. The intent of
this subsection is to reduce the potential for the release of dangerous waste
into the environment because of structural damage to facilities subject to the
hazards identified below. The owner/operator must provide supportive geologic,
geotechnical, and soils information.
(i)
Seismic risk. All dangerous waste management facilities must be located such
that the dangerous waste management unit boundary is located at least five
hundred feet from a fault which has had displacement in Holocene
times.
(ii) Subsidence. No
dangerous waste management facility may be located such that the dangerous
waste management unit is within an area of subsidence.
(iii) Slope or soil instability. No dangerous
waste management facility may be located such that the dangerous waste
management unit is within an area of slope or soil instability, nor in the
areas affected by unstable slope or soil conditions.
(b) Air. The intent of this subsection is to
reduce the potential for further degradation of air quality in areas currently
experiencing air quality impacts.
(i)
Incineration facilities may not be located in a Class I area designated in
accordance with Section 162 or 164 of the Federal Clean Air Act (under WAC
173-300-030(13)
).
(ii) Incineration facilities may
not be located in a nonattainment area designated by the department unless
compensating emission offset can be achieved.
(iii) Proposed incineration facilities must
comply with WAC
173-303-806(4)(a)(xxii)
during the permitting process.
(c) Water. The intent of this
subsection is to reduce the potential for contaminating waters of the state in
the event of a release of dangerous wastes.
(i) Surface water.
(A) Flood, seiche, and tsunami protection.
(I) No dangerous waste management facility or
dangerous waste management unit may be located within the one hundred-year
flood plain as indicated in the most current Federal Emergency Management
Agency maps.
(II) The
owner/operator of a nonland-based facility must identify whether the facility
is intended to be located within the five hundred-year flood plain, as
indicated in the most current Federal Emergency Management Agency maps.
Nonland-based facilities will require special design features so as to prevent
flooding of the dangerous waste management unit in the event of a five
hundred-year flood.
(III)
Land-based facilities may not be located within the five hundred-year flood
plain as indicated in the most current Federal Emergency Management Agency
maps.
(IV) Dangerous waste
management facilities may not be located in areas subject to seiches, or
coastal flooding including tsunamis or storm surges as indicated in the most
current maps of the National Flood Insurance Program of the Federal Emergency
Management Agency.
(B)
Perennial surface water bodies.
(I)
Nonland-based facilities must be located such that the dangerous waste
management unit boundary is at least five hundred feet from a perennial surface
water body.
(II) Land-based
facilities must be located such that the dangerous waste management unit
boundary is at least one-quarter mile from a perennial surface water
body.
(C) Surface water
supply.
(I) No dangerous waste management
facility may be located in a watershed identified in the report submitted to,
and approved by, the department of health under the authority of WAC
246-290-135(5),
Watershed control.
(II)
Nonland-based facilities must be located such that the dangerous waste
management unit boundary is at least five hundred feet from the nearest surface
water intake for domestic water.
(III) Land-based facilities must be located
such that the dangerous waste management unit boundary is at least one-quarter
mile from the nearest surface water intake for domestic water.
(ii) Groundwater. To
the extent feasible, proponents of land-based facilities should seek sites with
natural site characteristics which are capable of providing protection of
groundwater resources. Natural features such as low permeability soils and
substrata, relatively simple geologic formations, and high rates of
evapotranspiration in relation to the seasonal occurrence of precipitation are
preferable for the locations of land-based facilities. Proposed land-based
facilities must comply with the contingent groundwater protection program, WAC
173-303-806(4)(a)(xxi),
during the permitting process.
(A) Depth to
groundwater.
(I) Nonland-based facilities may
not be located in areas where there is less than ten feet vertical separation
between the lowest point of the dangerous waste management unit and the
seasonal high water level of the uppermost aquifer of beneficial use.
(II) Land-based facilities may not be located
in areas where there is less than fifty feet vertical separation between the
lowest point of the dangerous waste management unit and the seasonal highwater
level of the uppermost aquifer of beneficial use.
(B) Sole source aquifer. No land-based
facilities may be located over an area designated as a sole source aquifer
under section 1424(e) of the Federal Safe Drinking Water Act ( P.L. 93-523
).
(C) Groundwater management
areas. Owners/operators of facilities must identify whether the proposed
facility location is within a groundwater management area, as proposed or
certified pursuant to
RCW
90.44.130. In order to maintain consistency
with the purpose and substantive requirements of certified groundwater
management area plans, the department may require additional protective
measures or reject inconsistent projects.
(D) Groundwater intakes.
(I) Nonland-based facilities must be located
such that the dangerous waste management unit boundary is at least five hundred
feet from the nearest groundwater intake for domestic water.
(II) Land-based facilities must be located
such that the dangerous waste management unit boundary is at least one-quarter
mile from the nearest groundwater intake for domestic water.
(E) Special protection areas.
Land-based facilities must not be located within groundwater special protection
areas designated by ecology under the authority of
chapter
90.48 RCW.
(d) Plants and animals:
Intent. To reduce the potential for dangerous waste contaminating plant and
animal habitat in the event of a release of dangerous wastes.
(i) Nonland-based facilities must be located
such that the dangerous waste management unit boundary is at least five hundred
feet from the following areas:
(A)
Wetlands;
(B) Designated critical
habitat, for federally listed threatened or endangered species, as defined by
the Endangered Species Act of 1973 ( P.L. 93-205 );
(C) Habitat designated by the Washington
department of wildlife as habitat essential to the maintenance or recovery of
any state listed threatened or endangered wildlife species;
(D) Natural areas which are acquired or
voluntarily registered or dedicated by the owner under chapter 79.70 RCW,
Natural area preserves; and
(E)
State or federally designated wildlife refuge, preserve, or bald eagle
protection area.
(ii)
Land-based facilities must be located such that the dangerous waste management
unit boundary is at least one-quarter mile from those areas specified in item
(i) above.
(e)
Precipitation. The intent of this subsection is to reduce the potential for
contaminating waters and soils of the state in the event of a release of
dangerous wastes.
Land-based facilities must not be located in areas having a
mean annual precipitation level of greater than one hundred inches. The mean
annual precipitation map in the U.S. Geological Survey Water-Resources
Investigations Report 84-4279 must be used to determine whether a land-based
facility is proposed to be located in such an area.
(7)
Criteria for elements of
the built environment. The following siting criteria establish locations
from which facilities are excluded or which require separation from identified
land uses. Unless otherwise stated, setback distances are measured horizontally
from the dangerous waste management unit boundary to the identified land use.
These criteria must be used as an initial screening tool in the
selection of sites which may be considered by the department for the purpose of
managing dangerous waste. A more comprehensive evaluation of locational factors
will occur during the department's review of a permit application. The
department may deny a permit or impose additional setback distances or other
permit requirements if necessary to protect human health and the
environment.
(a) Adjacent land use.
(i) Nonland-based facilities must be located
such that the dangerous waste management unit boundary is at least two hundred
feet from the nearest point of the facility property line.
(ii) Land-based facilities must be located
such that the dangerous waste management unit boundary is at least five hundred
feet from the nearest point of the facility property line.
(b) Special land uses.
(i) Wild and scenic rivers. Dangerous waste
management facilities must not be located within the viewshed of users on wild
and scenic rivers designated by the state or federal government.
(ii) Nonland-based facilities must be located
such that the dangerous waste management unit boundary is at least five hundred
feet from the following:
(A) State or
federally designated park, recreation area, or national monument;
(B) Wilderness area as defined by the
Wilderness Act of 1964 ( P.L. 88-577 ); and
(C) Land identified as prime farmland at the
time a notice of intent is submitted to the department.
(iii) Land-based facilities must be located
such that the dangerous waste management unit boundary is at least one-quarter
mile from those land uses specified in item (ii) above.
(c) Residences and public gathering places.
(i) Nonland-based facilities with the
exception of incineration facilities must be located such that the dangerous
waste management unit boundary is at least five hundred feet from residences or
public gathering places.
(ii)
Incineration and land-based facilities must be located such that the dangerous
waste management unit boundary is at least one-quarter mile from residences or
public gathering places.
(d) Land use compatibility. Owners/operators
of nonpreempted facilities must conform with local land use zoning designation
requirements, as approved by the department under
chapter
70.105 RCW.
(e) Archaeological sites and historic sites.
No dangerous waste management facility must be located in an archaeological
site or historic site designated by the state or federal government.
Statutory Authority:
Chapters
70.105 and
70.105D RCW. 09-14-105 (Order
07-12), § 173-303-282, filed 6/30/09, effective 7/31/09; 98-03-018 (Order
97-03), § 173-303-282, filed 1/12/98, effective 2/12/98; 95-22-008 (Order
94-30), § 173-303-282, filed 10/19/95, effective 11/19/95; 94-01-060
(Order 92-33), § 173-303-282, filed 12/8/93, effective 1/8/94. Statutory
Authority:
RCW
43.21A.080 and
70.105.210, et seq. 90-20-016,
§ 173-303-282, filed 9/21/90, effective
10/22/90.