Current through Register Vol. 24-06, March 15, 2024
(1) General
petitions.
(a) Any person may petition the
department to modify or revoke any provision in this chapter. This subsection
sets forth general requirements which apply to all such petitions. The
remaining subsections of this section describe additional requirements for
specific types of petitions.
(b)
Each petition must be submitted to the department by certified mail and must
include:
(i) The petitioner's name and
address;
(ii) A statement of the
petitioner's interest in the proposed action;
(iii) A description of the proposed action,
including (where appropriate) suggested regulatory language; and
(iv) A statement of the need and
justification for the proposed action, including any supporting tests, studies,
or other information.
(c)
The department will make a tentative decision to grant or deny the petition and
give public notice of the tentative decision in writing. The notice will be
distributed to interested persons on a mailing list developed specifically for
petitions and persons expressing interest in amendments to this chapter. The
public comment period will be a minimum of twenty-one days.
(d) Upon the written request of any
interested person, the director may, at his discretion, hold a conference to
consider oral comments on the action proposed in the petition. A person
requesting a conference must state the issues to be raised and explain why
written comments would not suffice to communicate the person's views. The
director may in any case decide on his own motion to hold a
conference.
(e) After evaluating
all public comments the department will make a final decision in accordance
with RCW 34.05.-330 or 34.05.240. The department will either deny the petition
in writing (stating its reasons for denial), or grant the petition and, when
appropriate, initiate rule-making proceedings in accordance with
RCW
34.05.330.
(2) Petitions for equivalent testing or
analytical methods.
(a) Any person seeking to
add a testing or analytical method to WAC
173-303-110
may petition for a regulatory amendment under this section. To be successful,
the person must demonstrate to the satisfaction of the department that the
proposed method is equal to or superior to the corresponding method prescribed
in WAC
173-303-110,
in terms of its sensitivity, accuracy, and precision (i.e.,
reproducibil-ity).
(b) Each
petition must include, in addition to the information required by subsection
(1) of this section:
(i) A full description
of the proposed method, including all procedural steps and equipment used in
the method;
(ii) A description of
the types of wastes or waste matrices for which the proposed method may be
used;
(iii) Comparative results
obtained from using the proposed method with those obtained from using the
relevant or corresponding methods prescribed in WAC
173-303-110;
(iv) An assessment of any factors which may
interfere with, or limit the use of, the proposed method; and
(v) A description of the quality control
procedures necessary to ensure the sensitivity, accuracy and precision of the
proposed method.
(c)
After receiving a petition for an equivalent testing or analytical method, the
department may request any additional information on the proposed method which
it may reasonably require to evaluate the proposal.
(d) If the department amends the regulations
to permit use of a new testing method, the method will be incorporated at WAC
173-303-110(3)
and in a document which will be available from the
department.
(3) Petitions
for exempting dangerous wastes from a particular generator. Note that a
generator must also petition the U.S. EPA to exempt their waste if it is a
federally listed waste.
(a) Any generator
seeking to exempt his dangerous waste may petition the department for exemption
from the requirements of WAC
173-303-070
through
173-303-100.
(b) To be successful, the generator must make
the demonstrations required in WAC
173-303-072(3)
and, where applicable, (4).
(c)
Each petition must include, in addition to the information required by
subsection (1) of this section:
(i) The name
and address of the laboratory facility performing the sampling or tests of the
waste;
(ii) The names and
qualifications of the persons sampling and testing the waste;
(iii) The dates of sampling and
testing;
(iv) The location of the
generating facility;
(v) A
description of the manufacturing processes or other operations and feed
materials producing the waste and an assessment of whether such processes,
operations, or feed materials can or might produce a waste that is not covered
by the demonstration;
(vi) A
description of the waste and an estimate of the average and maximum monthly and
annual quantities of waste covered by the demonstration;
(vii) Pertinent data on and discussion of the
factors delineated in WAC
173-303-072(3)
and, where applicable, (4);
(viii)
A description of the methodologies and equipment used to obtain the
representative samples;
(ix) A
description of the sample handling and preparation techniques, including
techniques used for extraction, containerization and preservation of the
samples;
(x) A description of the
tests performed (including results);
(xi) The names and model numbers of the
instruments used in performing the tests and the date of the last calibration
for instruments which must be calibrated according to manufacturer's
instructions; and
(xii) The
following statement signed by the generator of the waste or his authorized
representative:
I certify under penalty of law that I have personally examined
and am familiar with the information submitted in this demonstration and all
attached documents, and that, based on my inquiry of those individuals
immediately responsible for obtaining the information, I believe that the
submitted information is true, accurate, and complete. I am aware that there
are significant penalties for submitting false information, including the
possibility of fine and imprisonment.
(d) After receiving a petition for a
dangerous waste exemption, the department may request any additional
information which it may reasonably require to evaluate the petition.
(e) An exemption will only apply to the waste
generated by the particular generator covered by the demonstration and will not
apply to waste from any other generator.
(f) The department may exempt only part of
the waste for which the demonstration is submitted where there is reason to
believe that variability of the waste justifies a partial exemption.
(g) The department may (but will not be
required to) grant a temporary exemption before making a final decision under
subsection (1) of this section, whenever it finds that there is a substantial
likelihood that an exemption will be finally granted.
(h) Any waste for which an exemption is
sought will remain designated and be subject to the applicable requirements of
this chapter until the generator of the waste is notified by the department
that his waste is exempt.
(4) Petition for exclusion.
(a) Any generators seeking exclusion of a
class of similar or identical wastes under WAC
173-303-071,
excluded categories of waste, may petition the department for exclusion. To be
successful, the generator(s) must make the demonstrations required in WAC
173-303-072(6)
for all those wastes generated in the state which might be excluded pursuant to
granting a petition submitted under this subsection. No class of wastes will be
excluded if any of the wastes are regulated as hazardous waste under 40 C.F.R.
Part 261.
(b) Each petition for
exclusion must include the information required by subsections (1) and (3)(c)
of this section and any other information required by the department.
(c) After receiving a petition for exclusion,
the department may request any additional information it deems necessary to
evaluate the petition.
(5) Petition for designation change. The
provisions of (a)(i) of this subsection do not apply to any dangerous waste
which is also designated as a hazardous waste under 40 C.F.R. Part 261, Subpart
D.
(a) A generator may petition the department
to change the designation of his waste as follows:
(i) A waste which is designated only for
toxicity pursuant to WAC
173-303-100
but which is toxic solely because it is highly acidic or basic (i.e., due to
high or low pH) may be subject only to the requirements for corrosive dangerous
wastes, provided that the generator can demonstrate this fact to the
department's satisfaction through information provided under (b) of this
subsection; and
(ii) A waste which
is designated EHW may be redesignated DW, provided that the generator can
demonstrate that such redesignation is appropriate through information provided
under (b) of this subsection.
(b) A petition under this subsection must
include:
(i) The information required by
subsections (1) and (3) (c) of this section; and
(ii) Such other information as required by
the department.
(c) A
designation change under this subsection will become effective only after the
department has approved the change and notified the generator of such
approval.
(6) Petitions
to allow land disposal of a waste restricted under WAC
173-303-140.
(a) Any person seeking a land disposal
restriction exemption allowed under WAC
173-303-140(6)
must submit a petition to the department. The petition must include the
following general information:
(i) The
petitioner's name and address;
(ii)
A statement of the petitioner's interest in the proposed action;
(iii) A description of the proposed
action;
(iv) A statement of the
need and justification for the proposed action;
(v) An identification of the specific waste
and the specific land disposal unit for which the exemption is
desired;
(vi) A waste analysis to
describe fully the chemical and physical characteristics of the subject waste.
All waste and environmental sampling, test, and analysis data must be accurate
and reproducible to the extent that state-of-the-art techniques allow;
and
(vii) A quality assurance and
quality control plan that addresses all sampling and testing aspects of the
information provided in the petition.
(b) In addition to the general information
requirements in subsection (a) of this section, the following specific
information must be provided in the petition for individual case-by-case
exemptions.
(i) Petition for land disposal
exemption for treatment residuals. Petitions for exemption of treatment
residuals, as allowed under WAC
173-303-140(6)(a),
must:
(A) Provide the type of waste
management or treatment method applied to the waste and the rationale for
selecting this method as the best achievable management method; and
(B) Document that the land disposal of the
treatment residual would not pose a greater risk to public health and the
environment than land disposal of the original wastes, including an analysis of
the treatment residuals to fully describe their chemical and physical
characteristics; and
(C) Provide
the management alternatives for the treatment residuals and the factors which,
if an exemption is not granted, would prevent the utilization of the best
achievable management method for the original dangerous waste.
(ii) Petition for economic
hardship exemption. Petitions for exemption on the basis of economic hardship,
as allowed under WAC
173-303-140(6)(b),
must:
(A) Supply the current management costs
and the projected management costs to comply with the requirements of WAC
173-303-140;
and
(B) Provide the source of
information utilized in determining the economic estimates; and
(C) Provide a discussion of how the projected
compliance costs would impose an unreasonable economic
burden.
(iii) Petition
for leachable inorganic waste exemption. Petitions for exemption of leachable
inorganic wastes, as allowed under WAC
173-303-140(6)(c),
must:
(A) Provide information demonstrating
that the stabilization of the dangerous waste is less protective of public
health and the environment than landfilling; or
(B) Provide a list of stabilization
facilities that could accept the dangerous waste and information demonstrating
that they do not have available capacity to stabilize the waste; or
(C) Provide information describing the types
of stabilization utilized which did not reduce the solubility and mobility of
the dangerous waste constituents and describe any other stabilization methods
that have been considered but not utilized.
(iv) Petition for organic/carbonaceous waste
exemption. Petitions for exemption of organic/carbonaceous wastes, as allowed
under WAC
173-303-140(6)(c),
must:
(A) Provide information demonstrating
that recycling, treatment and incineration facilities are unavailable for the
waste, including a map marked both with the point of waste generation and the
point(s) of the nearest treatment, recycling and incineration facility(s) that
could manage the dangerous waste; or
(B) Provide information demonstrating that
the alternative management methods for organic/carbonaceous waste are less
protective of public health and the environment than stabilization and
landfilling; or
(C) Provide
information demonstrating that:
(I) Recycling
and treatment facilities are unavailable for the waste, including a map marked
both with the point of waste generation and the point(s) of the nearest
treatment, recycling and incineration facility(s) that could manage the
dangerous waste; and
(II) The
organic/carbonaceous waste has a heat content less than 3,000 BTU/LB or a
moisture content greater than sixty-five
percent.
(c) Each petition must include the following
statement signed by the petitioner or an authorized representative:
I certify under penalty of law that I have personally examined
and am familiar with the information submitted in this petition and all
attached documents, and that, based on my inquiry of those individuals
immediately responsible for obtaining the information, I believe the submitted
information is true, accurate, and complete. I am aware that there are
significant penalties for submitting false information, including the
possibility of fine and imprisonment.
(d) Each petition must be submitted to:
Department of Ecology
HWTR Program
Attn Land Disposal Exemption
P.O. Box 47600 Olympia,
WA 98504-7600
(e) After receiving a petition, the
department may request any additional information that reasonably may be
required to evaluate the petition and accompanying demonstration, such as a
comprehensive characterization of the disposal unit site including an analysis
of background air, soil, and water quality. Simulation models must be
calibrated for the specific waste and site conditions, and verified for
accuracy by comparison with actual measurements.
(f)
(i) The
department will make a tentative decision to grant or deny the petition and
give public notice of the tentative decision in writing. The notice will be
distributed to interested persons on a mailing list developed specifically for
petitions and persons expressing interest in amendments to this chapter. The
public comment period will be a minimum of twenty-one days.
(ii) Upon the written request of any
interested person, the department may, at its discretion, hold a conference to
consider oral comments on the action proposed in the petition. A person
requesting a conference must state the issues to be raised and explain why
written comments would not suffice to communicate the person's views. The
department may in any case decide on its own motion to hold a
conference.
(iii) After evaluating
all public comments the department will make a final decision in accordance
with
RCW
34.05.240 or
34.05.330.
The department will either deny the petition in writing (stating its reasons
for denial), or grant the petition.
(g) Prior to the department's decision, the
applicant is required to comply with all restrictions on land disposal under
WAC
173-303-140.
The department should respond to a petition within ninety days.
(h) If an exemption is granted, the
department may include specific conditions as deemed necessary by the
department to protect public health and the environment.
(i) If granted, the exemption will apply to
land disposal of the specific restricted waste at the individual disposal unit
described in the petition and accompanying demonstration. The exemption will
not apply to any other restricted waste at that disposal unit, nor will it
apply to that specific restricted waste at any other disposal unit.
(j) If an exemption is granted, the
department may withdraw the exemption on the following bases:
(i) If there is a threat to public health and
the environment; or
(ii) If there
is migration of dangerous waste constituents from the land disposal unit or
site for as long as the waste remains dangerous; or
(iii) If the department finds reason to
believe that the information submitted in a petition is inaccurate or has been
falsified such that the petition should have been denied.
(k) The term of an exemption granted under
this subsection will be established by the department at the time of
issuance.
(l) Any exemption granted
by the department does not relieve the petitioner of his responsibilities in
the management of dangerous waste under chapter 173-303 WAC.
(m) The department may (but will not be
required to) grant a temporary exemption before making a final decision,
whenever it finds that there is a substantial likelihood that an exemption will
be finally granted. Temporary exemptions will not be subject to the procedures
of (f) of this subsection. Temporary exemptions will not be a cause of delaying
final decision making on the petition request.
(7) Petitions to amend WAC
173-303-573
to include additional dangerous wastes.
(a)
Any person seeking to add a dangerous waste or a category of dangerous waste to
the universal waste regulations of WAC
173-303-573
may petition for a regulatory amendment under this section and WAC
173-303-573(39)
and (40).
(b) To be successful, the petitioner must
demonstrate to the satisfaction of the department that regulation under the
universal waste regulations of WAC
173-303-573:
Is appropriate for the waste or category of waste; will improve management
practices for the waste or category of waste; and will improve implementation
of the dangerous waste program. The petition must include the information
required by subsection (1) of this section. The petition should also address as
many of the factors listed in WAC
173-303-573(40)
as are appropriate for the waste or category of waste addressed in the
petition.
(c) The department will
grant or deny a petition using the factors listed in WAC
173-303-573(40).
The decision will be based on the weight of evidence showing that regulation
under WAC
173-303-573
is appropriate for the waste or category of waste, will improve management
practices for the waste or category of waste, and will improve implementation
of the dangerous waste program.
(d)
The department may request additional information needed to evaluate the merits
of the petition.
Statutory Authority:
Chapters
70.105 and
70.105D RCW. 09-14-105 (Order
07-12), § 173-303-910, filed 6/30/09, effective 7/31/09. Statutory
Authority:
Chapters
70.105,
70.105D, and
15.54 RCW and
RCW
70.105.007. 04-24-065 (Order 03-10), §
173-303-910, filed 11/30/04, effective 1/1/05. Statutory Authority:
Chapters
70.105 and
70.105D RCW. 98-03-018 (Order
97-03), § 173-303-910, filed 1/12/98, effective 2/12/98; 95-22-008 (Order
94-30), § 173-303-910, filed 10/19/95, effective 11/19/95; 94-01-060
(Order 92-33), § 173-303-910, filed 12/8/93, effective 1/8/94. Statutory
Authority:
Chapter
70.105 RCW. 88-02-057
(Order DE 83-36), § 173-303-910, filed 1/5/88, effective 2/5/88; 86-12-057
(Order DE-85-10), § 173-303-910, filed 6/3/86; 84-14-031 (Order DE 84-22),
§ 173-303-910, filed 6/27/84. Statutory Authority:
Chapter
70.105 RCW and
RCW
70.95.260. 82-05-023 (Order DE 81-33), §
173-303-910, filed 2/10/82.