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(c) The public notice may describe more than one permit or permit action.
(d) Public notice of the preparation of a draft permit, including a notice of intent to deny a permit application will allow at least forty-five days for public comment. Public notice of a public hearing will be given at least thirty days before the hearing.
(e) Public notice of activities described in this subsection will be given by the following methods:
(i) By mailing a copy of a notice to the following persons (any person otherwise entitled to receive notice under this paragraph may waive his or her rights to receive notice for any classes and categories of permits):
(A) The applicant;
(B) Any other agency which the department knows has issued or is required to issue a permit for the same activity or facility;
(C) Federal and state agencies with jurisdiction over fish, shellfish, and wildlife resources and over coastal zone management plans, the advisory council on historic preservation, state historic preservation officers, including any affected states (Indian tribes) (for purposes of this paragraph and in the context of the Underground Injection Control Program only, the term state includes Indian tribes treated as states);
(D) Persons on the mailing list developed by:
(I) Including those who request in writing to be on the list;
(II) Soliciting persons for an area list from participants in past permit proceedings in that area; and
(III) Notifying the public of the opportunity to be put on the mailing list through periodic publications in the public press and in appropriate publications of the department;
(E) Any unit of local government having jurisdiction over the area where the facility is proposed to be located, and each state agency having any authority under state law with respect to construction or operation of such facility;
(ii) For major permits, by publication of a notice in a daily or weekly newspaper within the area affected by the facility;
(iii) For all permits, by publication of notice in a daily or weekly major local newspaper of general circulation, and local radio broadcast of the public notice; and
(iv) By any other method reasonably calculated to give notice of the action in question to the persons potentially affected by it, including press releases or any other forum or medium to elicit public participation.
(4) Contents of the public notice.
(a) All public notices issued will contain the following minimum information:
(i) Name and address of the office processing the permit action for which notice is being given;
(ii) Name and address of the permittee or permit applicant and, if different, of the facility or activity regulated by the permit;
(iii) A brief description of the business conducted at the facility or activity described in the permit application or the draft permit;
(iv) Name, address, and telephone number of a person from whom interested persons may obtain further information, including copies of the draft permit, fact sheet or statement of basis, and the application;
(v) A brief description of the comment procedures and the time and place of any hearing that will be held, including a statement of procedures to request a hearing (unless a hearing has already been scheduled) and other procedures by which the public may participate in the final permit decision;
(vi) And any additional information considered necessary or proper.
(b) In addition to the general public notice described in (a) of this subsection, public notice of a hearing under subsection (5) of this section will contain the following information:
(i) Date, time, and place of the hearing;
(ii) Reference to the date of the previous public notice relating to the permit; and
(iii) A brief description of the nature and purpose of the hearing including the applicable rules and procedures.
(c) In addition to the general public notice all persons identified in WAC 173-303-840 (3)(e)(i)(A), (B), and (C) will be mailed a copy of the fact sheet, the permit application (if any), and the draft permit (if any).
(d) Public comments and request for public hearings. During the public comment period any interested person may submit written comments on the draft permit and may request a public hearing, if no hearing has already been scheduled. A request for a public hearing must be in writing and must state the nature of the issues proposed to be raised in the hearing. All comments will be considered in making the final decision and will be answered according to WAC 173-303-840(9).
(5) Public hearings.
(a) The department will hold a public hearing whenever, on the basis of requests, there is a significant degree of public interest in a draft permit or there is written notice of opposition and the director receives a request for a hearing during the forty-five day comment period. The department also may hold a public hearing at its discretion, whenever, for instance, such a hearing might clarify one or more issues involved in the permit decision. Public notice of the hearing will be given as specified in WAC 173-303-840(3). Whenever possible, the department will schedule a public hearing under this subsection at a location convenient to the nearest population center to the proposed facility.
(b) Any person may submit oral or written statements and data concerning the draft permit. Reasonable limits may be set upon the time allowed for oral statements, and the submission of statements in writing may be required. The public comment period under WAC 173-303-840(3) will automatically be extended to the close of any public hearing under this subsection. The hearing officer may also extend the comment period by so stating at the hearing.
(c) A tape recording or written transcript of the hearing will be made available to the public.
(6) Obligation to raise issues and provide information during the public comment period.
(a) All persons, including applicants, who believe any condition of a draft permit is inappropriate, or that the department's tentative decision to deny an application, terminate a permit, or prepare a draft permit is inappropriate, must raise all reasonably ascertainable issues and submit all reasonably available arguments and factual grounds supporting their position, including all supporting material, by the close of the public comment period (including any public hearing) under WAC 173-303-840(3).
(b) All supporting materials will be included in full and may not be incorporated by reference, unless they are already part of the administrative record in the same proceeding, or consist of state or federal statutes and regulations, documents of general applicability, or other generally available reference materials. Commenters must make supporting material not already included in the administrative record available to the department. A comment period longer than forty-five days will often be necessary in complicated proceedings to give commenters a reasonable opportunity to comply with the requirements of this subsection. Commenters may request a longer comment period.
(7) Reopening of the public comment period. If any data, information, or arguments submitted during the public comment period, including information or arguments required under subsection (6) of this section, appear to raise substantial new questions concerning a permit, the department may take one or more of the following actions:
(a) Prepare a new draft permit, appropriately modified;
(b) Prepare a revised statement of basis, a fact sheet or revised fact sheet, and reopen the comment period; or
(c) Reopen or extend the comment period to give interested persons an opportunity to comment on the information or arguments submitted.
Comments filed during the reopened comment period will be limited to the substantial new questions that caused its reopening. The public notice will define the scope of the reopening.
(8) Issuance and effective date of permit.
(a) After the close of the public comment period under WAC 173-303-840(5) on a draft permit, the department will issue a final permit decision (or a decision to deny a permit for the active life of a RCRA dangerous waste facility or unit under WAC 173-303-840). The department will notify the applicant and each person who has submitted written comments or requested notice of the final permit decision. For purposes of this section, a final permit means a final decision to issue, deny, modify, revoke and reissue, or terminate a permit.
(b) A final permit decision will become effective thirty days after the service of notice of the decision, unless:
(i) A later effective date is specified in the decision; or
(ii) No comments requested a change in the draft permit, in which case the permit will become effective immediately upon issuance; or
(iii) Review is requested under chapter 43.21B RCW or an evidentiary hearing is requested under RCW 43.21B.160.
(9) Response to comments. At the time that any final permit is issued, the department will issue a response to comments. This response will specify which provisions, if any, of the draft permit have been changed in the final permit decision and the reason for the change, and briefly describe and respond to all significant comments of the draft permit raised during the public comment period or during any hearing. The response to comments shall be available to the public.
(10) Decision-making procedure for modification, revocation and reissuance, or termination of permits.
(a) Permits may be modified, revoked and reissued, or terminated either at the request of any interested person (including the permittee) or upon the department's initiative. However, permits may only be modified or revoked and reissued for the reasons specified in WAC 173-303-830(3), or terminated for the reasons specified in WAC 173-303-805 or 173-303-830(5). All requests must be in writing and must contain facts or reasons supporting the request.
(b) If the department tentatively decides to modify or revoke and reissue a permit under WAC 173-303-830 (3) or (4)(c), it will prepare the draft permit under WAC 173-303-840(2), incorporating the proposed changes. The department may request additional information and, in the case of a modified permit, may require the submission of an updated permit application. In the case of revoked and reissued permits, the department will require the submission of a new application.
(c) In a permit modification under this subsection, only those conditions to be modified will be reopened when a new draft permit is prepared. All other aspects of the existing permit will remain in effect for the duration of the unmodified permit. When a permit is revoked and reissued under this section, the entire permit is reopened just as if the permit had expired and was being reissued. During any revocation and reissuance proceeding the permittee must comply with all conditions of the existing permit until a new final permit is reissued.
(d) "Class 1 and class 2 modifications" as defined in WAC 173-303-830 (4)(a) and (b) are not subject to the requirements of this subsection.
(e) If the department tentatively decides to terminate an interim status permit under WAC 173-303-805 or a final permit under WAC 173-303-806, it will issue a notice of intent to terminate. A notice of intent to terminate is a type of draft permit which follows the same procedures as any draft permit prepared under WAC 173-303-840(2).
[Statutory Authority: Chapters 70.105, 70.105D, 15.54 RCW and RCW 70.105.007. 00-11-040 (Order 99-01), § 173-303-840, filed 5/10/00, effective 6/10/00. Statutory Authority: Chapters 70.105 and 70.105D RCW. 98-03-018 (Order 97-03), § 173-303-840, filed 1/12/98, effective 2/12/98; 95-22-008 (Order 94-30), § 173-303-840, filed 10/19/95, effective 11/19/95; 94-01-060 (Order 92-33), § 173-303-840, filed 12/8/93, effective 1/8/94. Statutory Authority: Chapter 70.105 RCW. 84-14-031 (Order DE 84-22), § 173-303-840, filed 6/27/84. Statutory Authority: Chapter 70.105 RCW and RCW 70.95.260. 82-05-023 (Order DE 81-33), § 173-303-840, filed 2/10/82.]
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173-303-841
Integration with maximum achievable control technology (MACT) standards.
40 CFR 270.235, Options for incinerators and cement and lightweight aggregate kilns to minimize emissions from startup, shutdown, and malfunction events, is incorporated by reference. The incorporated provision is 40 CFR Part 270 Subpart I, Integration with maximum achievable control technology (MACT) standards.
[Statutory Authority: Chapters 70.105, 70.105D, and 15.54 RCW and RCW 70.105.007. 04-24-065 (Order 03-10), § 173-303-841, filed 11/30/04, effective 1/1/05.]
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173-303-845
Appeal of decision.
Any person who is adversely affected by a decision of the department under chapter 173-303 WAC may appeal the decision to the pollution control hearings board pursuant to chapter 43.21B RCW.
[Statutory Authority: Chapter 70.105 RCW and RCW 70.95.260. 82-05-023 (Order DE 81-33), § 173-303-845, filed 2/10/82.]
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173-303-900
Public involvement and participation.
(1) Intent. Public involvement and participation plays a significant role in the decision making process. The department intends to foster public awareness, information and consultation, and to respond actively to public concerns. The department will inform the public of major issues, proposed projects, and regulatory changes, and will consult interested and affected segments of the public before making important decisions. The overall goal of the department is to provide knowledge to the public about dangerous waste issues that vitally affect the state, to encourage broader understanding of the public role in dangerous wastes and their proper management, and to promote an open dialogue between the public, industry, and government.
(2) Applicable requirements. In fulfilling the intent of public involvement and participation in the decision making process, the department will refer to and, where applicable, follow the requirements and guidance set forth in the following:
(a) Chapter 34.04 RCW, Administrative Procedure Act;
(b) Chapter 34.08 RCW, Washington State Register Act of 1977;
(c) Chapter 42.17 RCW, Public Records Act;
(d) Chapter 197-11 WAC, Guidelines interpreting and implementing the State Environmental Policy Act;
(e) 40 CFR Part 25, Public Participation in Programs Under the Resource Conservation and Recovery Act, the Safe Drinking Water Act, and the Clean Water Act; and
(f) Reserve.
[Statutory Authority: Chapters 70.105 and 70.105D RCW. 98-03-018 (Order 97-03), § 173-303-900, filed 1/12/98, effective 2/12/98; 94-01-060 (Order 92-33), § 173-303-900, filed 12/8/93, effective 1/8/94. Statutory Authority: Chapter 70.105 RCW and RCW 70.95.260. 82-05-023 (Order DE 81-33), § 173-303-900, filed 2/10/82.]
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173-303-902
Citizen/proponent negotiations.
(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 owners/operators of facilities or portions of facilities applying for research, development and demonstration permits, pursuant to section 3005(g) of the Resource Conservation and Recovery Act, codified in 40 CFR Part 270.65. In addition, this section does not apply to mobile facilities for on-site cleanup at treatment, storage, or disposal facilities undergoing closure, facilities operating under an emergency permit pursuant to WAC 173-303-804, or facilities for on-site cleanup of sites under the Comprehensive Environmental Response, Compensation, and Liability Act, or chapters 70.105, 90.48 RCW, and The Model Toxics Control Act.
(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. 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.]
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173-303-905
Response to requests for public records.
RCW 42.17.320 requires that the department, when responding to requests for public records make such responses "promptly." The department often receives requests, submitted pursuant to chapter 42.17 RCW, for public records that exist because of the requirements of or actions mandated by this chapter (such public records are referred to as dangerous waste records). When the department receives requests for such dangerous waste records, then the department will respond promptly, as required by RCW 42.17.320, and in no event will the response occur later than twenty working days after receipt of the public request submitted pursuant to chapter 42.17 RCW.
[Statutory Authority: Chapters 70.105 and 70.105D RCW. 95-22-008 (Order 94-30), § 173-303-905, filed 10/19/95, effective 11/19/95. Statutory Authority: Chapter 70.105 RCW. 88-18-083 (Order 88-29), § 173-303-905, filed 9/6/88.]
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173-303-910
Petitions.
(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., reproducibility).
(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 in a document which will be available from the department.
(3) Petitions for exempting dangerous wastes from a particular generator.
(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 CFR 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 CFR 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 riskto 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 (continued)