Current through Register Vol. 24-06, March 15, 2024
(1)
Intent and purpose. Successful siting of dangerous waste management facilities
depends on public confidence, which requires affected communities to have
opportunities to meet with owners/operators of proposed dangerous waste
management facilities to resolve concerns about such facilities.
RCW
70.105.260 authorizes the department to
specify a procedure for conflict resolution activities for dangerous waste
management facility proponents, host communities, citizens and citizen groups,
and to expend funds to support such activities. The purpose of this section is
to set forth a procedure for negotiations between affected communities and the
proponent of a facility, and the eligibility criteria for financial
assistance.
(2) Applicability.
(a) This section applies to local governments
and citizens potentially affected by the siting and permitting of a dangerous
waste management facility, owners and operators of proposed facilities, and
owners and operators of facilities for which interim or final status permit
applications have been submitted to the department prior to the effective date
of this section. This section also applies to existing facilities with interim
or final status for which the department receives an application for expansion.
This section only applies to the expanded portion of the existing
facility.
(b) A modified
citizen/proponent negotiations (CPN) process will apply to lead local
governments who are also proponents of the facility.
(c) This section does not apply to:
(i) Owners/operators of facilities or
portions of facilities applying for research, development and demonstration
permits, pursuant to WAC
173-303-809 or section 3005(g) of
the Resource Conservation and Recovery Act, codified in 40 C.F.R. Part
270.65;
(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. 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;
(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; or
(vi) Owners/operators of existing
designated zone facilities as defined in this section seeking a significant
expansion.
(3) Relationship to other legislation and
administrative rules.
(a) The lead local
government receiving a grant under this section, must comply fully with all
applicable federal, state, and local laws, orders, regulations, and
permits.
(b) Nothing in this
section will influence, affect, or modify department programs, regulations, or
enforcement of applicable laws relating to dangerous waste management and
disposal.
(c) All grants under this
section will be subject to all existing accounting and auditing requirements of
state laws and regulations applicable to the issuance of grant funds.
(4) Definitions. As used in this
section:
(a) "Citizen/proponent negotiations
(CPN)" means a communication process, as specified in these regulations and
associated guidelines, between the proponent of a dangerous waste management
facility and potentially affected citizens, to reach an agreement when there
are shared and opposing interests.
(b) "Designated zone facility" 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.
(c) "Environmental impact statement (EIS)"
means an environmental document prepared according to the State Environmental
Policy Act (SEPA), that provides decision makers and the public with an
impartial discussion of probable significant environmental impacts, reasonable
alternatives, and mitigation measures that would avoid impacts, minimize
adverse impacts, or enhance environmental quality.
(d) "Existing facility," as defined by WAC
173-303-281, means a facility for
which an interim or final status permit has been issued by the department
pursuant to WAC
173-303-805 or
173-303-806.
(e) "Expansion," as defined by WAC
173-303-281, means the
enlargement of the land surface area of an existing facility from that
described in an interim status permit, the addition of a new dangerous waste
management process, or an increase in the 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)
"Facilitator" means one who assists at a meeting or group discussion.
(g) "Grant applicant" means the lead local
government requesting a citizen/proponent negotiations grant.
(h) "Lead local government" means the city or
county in which all or a majority of the proposed dangerous waste management
facility would be located, unless the lead local government is a proponent of
the project.
(i) "Local negotiating
committee" means a committee, appointed by the lead local government, whose
membership consists of broad representation from city and county government,
citizen groups, academia, business, industry, Indian tribes, and environmental
groups potentially affected by the siting of a dangerous waste management
facility.
(j) "Mediator" means a
neutral person who is accepted voluntarily by opposing parties in a dispute to
assist in reaching a settlement.
(k) "Notice of intent," as specified in WAC
173-303-281, means the notice
provided by the owner/operator of a facility to the department, local
communities, and the public stating that the siting of a dangerous waste
management facility, or the expansion of an existing facility, is being
considered.
(l) "Neutral convener"
means a nonpartisan person hired by the lead local government to convene and
preside over the official public meeting.
(m) "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.
Local jurisdictions who fail to establish designated land use
zones for handling hazardous substances and hazardous waste within eighteen
months after the enactment of siting criteria in accordance with
RCW
70.105.210 will be subject to preemptive
provisions until such time as zone designations are completed and approved by
the department.
(n)
"Potentially affected area" means the area within a twenty-mile radius of a
proposed dangerous waste management facility or a proposed expansion to an
existing facility or, any area of impact larger or smaller than the twenty-mile
radius as determined by the department.
(o) "Proponent" means any person applying to
the department for a dangerous waste management facility permit or for the
expansion of an existing permit under WAC
173-303-805 or
173-303-806.
(p) "Proposed facility" means a facility that
does not have interim or final status on the effective date of this section,
and for which the owner/operator applies for an interim or final status permit
under WAC
173-303-805 or
173-303-806 after the effective
date of this section.
(q) "SEPA"
means the State Environmental Policy Act,
chapter
43.21C RCW, and SEPA
rules, chapter 197-11 WAC.
(5) Citizen/proponent negotiations
procedures.
(a) Notice of intent. A proponent
for a dangerous waste management facility must apply to the department for a
dangerous waste management facility permit or for the expansion of an existing
permit. In compliance with WAC
173-303-281, the proponent must
submit a notice of intent to the department no less than one hundred fifty days
prior to filing an application for a permit or permit revision.
(b) Notice letter.
(i) Within fourteen days of receipt of the
notice of intent, the department will send, by registered mail, a copy of the
notice of intent, a copy of the CPN regulation, associated guidelines, and a
CPN grant application to the elected officials of the lead local government and
all local governments within the potentially affected area.
(ii) The notice letter will alert all
communities within the potentially affected area that a notice of intent to
file was submitted to the department, the availability of a CPN grant, the
procedures for applying for a CPN grant, and the procedures for conducting the
CPN process.
(iii) Within thirty
days of the effective date of this section, the department will send, by
registered mail, a notice letter to all local governments potentially affected
by facilities for which the department has already received a permit
application. The notice letter will contain a copy of the CPN regulation,
associated guidelines, and a CPN grant application.
(iv) If the lead local government is also a
proponent of the facility, responsibility for CPN will be deferred to a
committee comprised of representatives from all incorporated cities and towns,
and all the counties in the potentially affected area. This committee must
decide, among the government entities represented, who will be the lead local
government for the purposes of applying for and administering the CPN grant and
selecting members to the negotiating committee as set forth in subsection (6)
of this section.
(c)
Selection of the neutral convener. Within sixty days of the notice letter, the
lead local government and the facility proponent must jointly select a neutral
convener, facilitator, or mediator to organize and preside over an official
public meeting, assist in selecting the local negotiating committee, and
mediate citizen/proponent negotiations.
(d) The public meeting. The purpose of the
public meeting will be:
(i) To advise local
citizens within the potentially affected area of the CPN procedures, the State
Environmental Policy Act (SEPA) requirements, and the dangerous waste
management permit process;
(ii) To
allow the proponent to present elements of the proposal;
(iii) To take public testimony on whether to
agree to participate in the CPN process.
(e) Expenditures by the lead local government
for the initial costs of the neutral convener and the official public meeting
will be reimbursed by the department through an interagency agreement with the
lead local government.
(f) Decision
notice. Within forty-five days of the public meeting the lead local government
must decide whether to proceed with the negotiations process. The lead local
government must forward notice of that decision to the department and the
proponent of the facility. Notice to the department of an affirmative decision
may include a completed grant application for financial assistance. If the lead
local government decides to participate in the negotiations process for
preempted facilities, then the proponent will be required to participate.
Citizen/proponent negotiations at designated zone facilities will be voluntary
for both parties.
(g) Appointment
of local negotiating committee. Within thirty days of the decision notice to
proceed with CPN, the lead local government and local governments within the
potentially affected area must appoint members to a local negotiating
committee, as set forth in subsection (6) of this section, and mail notice of
those appointments to the department and to the facility proponent.
(h) Organizational meeting. Within twenty-one
days of the committee appointments, the committee must hold an organizational
meeting to establish the committee goals, set schedules, identify tasks,
discuss funding, and identify issues to research.
(i) Negotiations process. The negotiations
process may occur in two stages.
(i) Stage 1.
Within thirty days of the organizational meeting, the local negotiating
committee, with the assistance of the neutral convener, must initiate
negotiations and public information and education activities. The local
negotiating committee will have one hundred twenty days, or until completion of
the SEPA process, to conduct public information and education activities on
dangerous waste management and dangerous waste management facilities and to
negotiate emerging issues and concerns.
(ii) Stage 2. Upon completion of the SEPA
process, with the assistance of the neutral convener, the local negotiating
committee may continue formal negotiations. If no environmental impact
statement is required as part of the SEPA process, the local negotiating
committee may negotiate for up to one hundred twenty days. If an environmental
impact statement is required as part of the SEPA process, negotiations may take
place until one hundred twenty days after the issuance of the final
environmental impact statement. Upon completion of formal negotiations, all
agreements should be submitted to the department for review for applicability
to the operating permit.
(iii)
Negotiations should focus on the mitigation of impacts identified by persons in
the affected area and those impacts identified during the SEPA process, which
may include but are not limited to:
(A)
Technical aspects of the facility proposal;
(B) Emergency response;
(C) Economic impacts;
(D) Management of the facility;
(E) Site characteristics;
(F) Transportation;
(G) Compliance assurance.
(iv) During each stage of the
negotiations process, the committee must, at a minimum:
(A) Arrange public forums at key points in
the negotiations to solicit input from the local community and provide public
education regarding the issues and elements of the proposed facility or
facility expansion.
(B) Arrange
smaller community gatherings with the whole committee or subgroups of the
committee to supplement the larger meetings and to provide more opportunities
for discussion with community members.
(C) Meet with key community leaders to
solicit information and opinion.
(D) Prepare a draft of the completed local
negotiating committee report and agreements. The draft must be submitted for
review and comment to the proponent and local county, city, and town officials
who made the committee appointments.
(E) Prepare the final local negotiating
committee report and agreements. Final copies must be submitted to the
department and distributed to the proponent and local county, city, and town
officials who made the committee appointments.
(v) Negotiations may be reopened upon
agreement by both parties as long as a draft permit has not been
issued.
(j) Agreements.
Any specific agreement reached between the local negotiating committee and the
proponent, deemed valid and applicable by the department, may be incorporated
in the operating permit issued by the department. Any agreements not applicable
to the operating permit may be implemented by the proponent and local
communities through a contract or other legal means.
(6) Local negotiating committee.
(a) Appointments to the local negotiating
committee must be made as follows:
(i) Four
members must be appointed by the lead local government.
If the lead local government is the county, committee
appointments will be made by the county executive in charter counties or the
board of county commissioners. If the lead local government is an incorporated
town or city, committee appointments will be made by the mayor.
(ii) The mayor of each
incorporated city or town in the potentially affected area, that is not a lead
local government, must appoint one member to the committee.
(iii) The county executive or the board of
county commissioners of each county in the potentially affected area, that is
not a lead local government, must appoint one member to the
committee.
(iv) Each
federally-recognized Indian tribe located in the potentially affected area must
appoint one member to the committee.
(v) If all or the majority of a facility is
located wholly within city limits, the board of county commissioners or county
executive of the potentially affected county must appoint two members to the
citizen negotiating committee. If the facility is located wholly within the
county, these appointments will not be made.
(b) Local negotiating committees must have
broad representation including but not limited to representation from academia,
business and industry, citizen organizations, environmental groups,
agricultural groups, health professionals, emergency response organizations,
and fire districts.
(c) After the
initial committee appointments are made, the neutral convener must assess the
group representation and determine which interest groups are not represented.
The committee, with the aid of the neutral convener, will then select up to
four additional members to serve on the local negotiating committee. These
selections must be made from interest groups not already represented on the
negotiating committee.
(d) Elected
officials will not be members of the local negotiating committee.
(7) Modified CPN procedures.
Modified CPN procedures apply to lead local governments who are also proponents
of a dangerous waste management facility.
(a)
Notice letter. Within fourteen days of the notice of intent or thirty days of
the effective date of this section, the department will notify all local
governments in the potentially affected area of applications for proposed
facilities or expansions of existing facilities and of the opportunity for
formal negotiations under CPN and the availability of a CPN grant.
(b) Decision notice. The local governments
will have forty-five days to form a committee to:
(i) Determine whether they wish to
participate in CPN;
(ii) Determine
who will be the lead local government;
(iii) Select a neutral convener, facilitator,
or mediator;
(iv) Notify the
department and the proponent of those decisions; and
(v) Complete a grant application for
financial assistance if a decision is made to proceed with CPN.
(c) Once the lead local government
is determined, modified CPN procedures must follow CPN procedures set forth in
subsections (5)(d) through (6)(d) of this section.
(8) Grant eligibility and eligible
activities.
(a) Grant applicant eligibility
and eligible activities are the same for CPN and modified CPN.
(b) Grant applicant eligibility. Grants up to
fifty thousand dollars will be awarded to the lead local government and may be
renewed once during the permitting process.
(c) Eligible costs. Eligible costs include
direct costs of the activities of the negotiating process. These costs include:
(i) The local committee's expenses such as
travel, office space or lodging, supplies, postage, report production costs,
and meeting room costs;
(ii)
Neutral convener's, facilitator's, or mediator's fees and expenses;
(iii) Technical assistance for the committee;
and
(iv) Other costs determined
necessary by the department.
(d) Ineligible costs. Grant funds may not be
used by the grant applicant to support legal actions against the department, or
facility owners/operators.
(9) Grant administration and funding.
(a) A grant application package will be sent
to the lead local government with the notice letter. Grant application packages
include grant application deadlines, grant guidelines, and application
forms.
(b) Completed grant
applications will be reviewed by the department. To receive a grant offer,
successful applications must include all required elements as outlined in the
guidelines.
(c) The obligation of
the department to make grant awards and payments is contingent upon the
availability of funds through legislative appropriation and allotment, and such
other conditions not reasonably foreseeable by the department rendering
performance impossible. When the grant crosses over bienniums, the obligation
of the department is contingent upon the appropriation of funds during the next
biennium.
(d) The department will
fund up to fifty percent of the total grant amount or up to fifty thousand
dollars for citizen/proponent negotiations and the proponent of a dangerous
waste management facility must fund up to fifty percent of the total grant
amount or up to fifty thousand dollars.
(e) Disbursement of funds. The department
will be responsible for reimbursement of all eligible CPN costs incurred. The
proponent must enter into a contract with the department for the proponent's
share of the CPN grant. The department will be responsible for all eligible CPN
costs incurred before the decision notice and its share of any eligible CPN
costs incurred after the decision notice, up to fifty thousand dollars. The
proponent will be responsible for its share of all remaining eligible CPN costs
incurred after the decision notice and after an executed grant award is made to
the lead local government, up to fifty thousand dollars.
(f) The department, on at least a biennial
basis, will determine the amount of funding available for citizen/proponent
negotiation grants.
(g) All
grantees will be held responsible for payment of salaries, consultant's fees,
and other overhead costs contracted under a grant awarded to the lead local
government.
(h) To the extent that
the Constitution and laws of the state of Washington permit, the grantee will
indemnify and hold the department harmless from and against, any liability for
any or all injuries to persons or property arising from the negligent act or
omission of the grantee arising out of a grant contract, except for such
damage, claim, or liability resulting from the negligent act or omission of the
department.
(i) All grants under
this chapter will be consistent with the provisions of "Financial Guidelines
for Grant Management" WDOE 80-6, May 1980, Reprinted March 1982, or subsequent
guidelines adopted thereafter.
Statutory Authority:
Chapters
70.105 and
70.105D RCW. 09-14-105 (Order
07-12), § 173-303-902, filed 6/30/09, effective 7/31/09; 95-22-008 (Order
94-30), § 173-303-902, filed 10/19/95, effective 11/19/95. Statutory
Authority:
RCW
70.105.260 and 1989 c 2. 89-21-071 (Order
89-25), § 173-303-902, filed 10/17/89, effective
11/17/89.