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• ADDENDUM TO THE MEMORANDUM OF AGREEMENT BETWEEN THE STATE OF WASHINGTON AND THE UNITED STATES ENVIRONMENTAL PROTECfION AGENCY REGION 10 FOR FINAL DANGEROUS WASTE PROGRAM AUTHORIZATION

AGREEMENT OF PROCEDURES FOR CORRECfIVE ACfION IMPLEMENTATION ATRCRA REGULATED FACILITIES Pursuant to the provisions found in the Memorandum ofAgreement between the State ofWashington and the United States Environmental Protection Agency Region 

### 10for Final Dangerous Waste Program Authorization, dated November 26, 1985, hereafter "MOA", at Section II, Responsibilities ofParties, Subsection I, Provisions for Modification ofthe MOA, this modification is jointly agreed to by both the State of Washington, hereafter "State", and United States Environmental Protection Agency Region 10, hereafter, "U.S. EPA Region 10",and isincorporated into the November 26, 1985 MOA as an addendum thereto. The addendum is in writing as required, and is effective upon signature ofboth the director 

### ofthe Washington Department ofEcology, and the Regional Administrator for U.S. EPA Region 10. 

## 1. GENERAL This addendum to the November 26, 1985 MOA establishes policies, responsibilities, and procedures pursuant to 40 CFR § 271.8 for operation ofthe State's Dangerous Waste Management Program ("State Program"). The State Program received final authorization on January 31, 1986, under Section 3006 ofthe Resource Conservation and Recovery'Act of 1976, as amended ("RCRA" or the "Act"), Pub. Law 94-59-80, 42 U.S.C§§ 6901 et seq.).
. . This addendum to the MOA has been prepared to support the State's application for

.authorization ofState corrective action requirements and a State corrective action program. This addendum further sets forth the manner in which the State will coordinate with EPA in administering the State corrective action program. The State program is andwill be administered by the State ofWashington Department ofEcology ("Ecology"). This addendumwillremain in effect until the State withdraws from authorization or until such time as State Program authorization iswithdrawn by EPA according to the provisions of40 CFR § 271.22, or reverts to EPA according to the provisions of40 CFR § 271.23, or until such time as the State and U.S. EPA Region 10 modify this addendum in accordance with the terms ofthe MOA, or modify the MOAto supersede this addendum, or terminate the existing MOA and supplant it with another agreement.

### INTRODUcrION; POLICY STATEMENT The State and U.S. EPA Region 10 working in partnership-have 

### developed an innovative and precedent setting program for implementation ofRCRA corrective action requirements at dangerous waste management facilities in Washington. This program is referred to as the alternative authorities initiative. Under the alternative authorities initiative, the State may implement ReRA corrective action requirements using an enforceable orderor decree issued pursuant to the State cleanup authority, the Model Toxies Control Act ("MTCA") and itsimplementing regulations Chapter 173-340 WAC. The State and U.S. EPA Region 10 are committed to successfulimplementation of the alternative authorities initiative and have entered into this agreement, in part, to ensure such success. Each of the parties to this agreement is responsible for ensuring that its obligations under RCRA and underthis agreementare met. The Director and the Regional Administrator agree to maintain a high level ofcooperation and coordination between the State and U.S. EPA Region 10staffto assure successful and effective administration of the State corrective action program. 

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The State has primary authority and responsibility for allaspects ofthe authorized dangerous waste program, including the authorized State corrective action program. U.S. EPA Region lO'sprimary responsibility under this agreement is oversight ofthe authorized State Program. The purpose of U.S. EPA Region lO's oversight is to ensure 

# 0 that progress on environmental objectives is being made and environmental laws are being implemented in a consistent manner. EPAretains responsibility to ensure full and faithful execution of the requirements ofRCRA, including direct implementation of authorized requirements in the event the Stateis unable or unwilling to act. EPA has promulgated regulations which provide for the orderly transferofRCRA provisions from federal to 

### State administration followingState authorization. Stateswith authorization underSection 3006(b) ofRCRA, 42US.C. § 

### 6926(b), have a continuing obligation to maintain a hazardous waste program that isequivalent to the federal RCRAprogram. EPA has a continuing obligation to oversee the administration and enforcementofRCRAin authorized states. The Hazardous and SolidWaste Amendments ("HSWA") to RCRA and the federal program for which a state is not authorized remain the responsibility ofEPA for administration, enforcement and implementation. III. STATEPROGRAM REVIEW U.S. EPA Region 10oversight and review of the State corrective action program shall be in accordance with the existing MOA, its attachments and amendments. EPA agrees to conduct its oversight of the State Program in a mannerconsistent with the principles outlined inthe Region 10Oversight Policy.
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• IV. INFORMATION SHARING AND AVAILABILITY Information exchange and availability relating to the State corrective action program shall be in accordance with the existing MOA. its attachments and amendments. V. IMPLEMENTATION OFTHE CORRECfIVE ACfION PROGRAM 

### A RCRA FacilityAssessments (RFAs) A RCRA facilityassessment is typically the first step in implementation ofcorrective action requirements. The State and EPA agree that the purpose of a RCRA facility assessment is to identify all solid waste management units at a facility and to evaluate those units in terms ofreleases or potential releases of hazardous waste and/or hazardous constituents. The State agrees that all State-conducted RCRA facility assessments shall include a preliminary review ofavailable information ofthe facilityand a visual site inspection to confirm historical information and to inspect for evidence of releases. If releases are observed or suspected, a sampling visit may be conducted to assess contamination. Ecology agrees to perform or provide for a RCRA facility assessment at all facilities seeking or required to have a permit under RCRA. EPA and Ecology agree to negotiate schedules for the State to implement RCRA facilityassessments for facilities subject to RFAs during annual negotiations ofthe grantworkplan
. B. Corrective Action Implementation Pipeline The corrective action implementation pipeline includes the following tasks:



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.. Investigation ofreleases; Characterization ofreleases, potentially contaminated media, and routes of exposure which may effect human health and the environment; Study ofpotential releases; Study ofpotential corrective measures; Planning ofcorrective action measures; Selection ofclean up standards, corrective measures, and enforceable performance standards that ensure the effectiveness of the remedy, after allowing for public participation in the selection process; Implementation ofcorrective measures; Monitoring ofthe long-term effects ofcorrective measures. 

# • The corrective action implementation pipeline may include additional tasks. Ecology has authority underChapter

### 70.105 RCW and/or Chapter

### 70.105D RCW to compel

. owner/operators ofRCRAfacilities to complete all corrective action pipeline tasks

identified above. 3

### Corrective Action Financial Assurance The State and U.S. EPA Region 10 agree that requirements for corrective action financial assurance benefit regulatory agencies byensuring adequate resources are available to complete corrective actions. Ecology may compel owner/operators of facilities subject to corrective action to fulfill their corrective action obligations through implementation of an enforceableorderor decree issued pursuant to the State cleanup authority, the Model Toxics Control Act. Ecology has promulgated regulations at WAC 173-303-646(2) which require financial assurance for corrective action activities at dangerous waste management facilities. Ecologyagrees to require financialassurance for completion ofcorrective action activities inaccordance with WAC 173-303-646(2) and/or WAC 

### 173-340-440(6). D. Public Participation inCorrective Action Remedy Selection 

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The State and U.S. EPA Region 10 agree that adequate provisions for public participation in corrective action remedy selections are an integral part of the corrective action program, that adequate public participation benefits regulatory agencies, and that regulatory agencies have a responsibility to provide for adequate and meaningful public participation opportunities. Federal implementation ofcorrective action provides for public participation in corrective action remedy selections. Ecology. has public participation provisions in the Dangerous Waste Regulations and in the Model Toxies Control Act Regulations. Ecology agrees to provide for public participation, including 

# 0 public participation in selection of corrective action remedies, which, at a minimum, includes the following: o Public Mailout. Ecology agrees that public notice shall be mailed to persons who reside within the potentially affected vicinity of the proposed corrective action remedy. The potentially affected vicinity willinclude all propertyadjoining the facility and any other areas Ecologydetermines to be directly affected bythe proposed corrective action remedy. The public shall be given a minimum of thirty (30) days to provide commenton the proposed corrective action remedy, unless otherauthorized program requirements are applicable.
o Newspaper Notice. Ecology agrees that notice ofthe proposed corrective action remedy

### willbe 

### published in 

### the newspaper of the largest circulation in the city

### or county ofthe proposed actionby display ad, legal notice, or otherappropriate format. Notice ofthe proposed corrective action remedywill 

### concurrently be mailed to any othernews media which Ecology determines to be appropriate. The public 

### willbe 

### allowed a minimum of thirty (30) days to provide comment on the proposed corrective action remedy, unless other authorized program requirements are applicable. 

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# • o Public meeting. Ecology agrees that if, during the public comment period, ten or more persons request a public meeting on the proposed corrective action remedy, Ecology will hold a public meeting for the purpose of receiving public comments.



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• E. Cleanup standards and levels; Remedy selection The State and U.S. EPA Region 10agree that consistent, environmentally protective cleanup standards and levels are essential to the success of a corrective action program. The State and U.S. EPA Region 10agree that consistencybetween environmental agencies in application ofavailable cleanup standards and levels ispreferred. EPA has drafted proposed national cleanup standards, published as proposed rules in the July 27, 1990,Federal Register (55 FR 30798) and referred to as the "draft Suhpart S" rules. The State and U.S. EPA Region 

### 10understand that the State is not being
. authorized for provisions ofthe proposed rule referred to as "draft subpart S". EPA's minimum national standards rely on an acceptable risk range for corrective actions of 

### 10'4 to**1O~** for carcinogenic substances and no observable adverse health effects for non- . carcinogenic substances. Ecology may implement corrective action requirements using an enforceable order or decree issued pursuant to the Model Toxics Control Act. The Model Toxies Control Act Regulations establish minimum State cleanup standards of cumulative carcinogenic risk no greater than 

### 10'5; risks from individual carcinogens at no greater than 1Q"4for residential sites and 

### lO's for industrial sites; and for non-carcinogenic substances with similarhealth effects, a hazard index ofno greater than 

### (1). Ecology will establish site and media specific corrective action cleanup levels and select final corrective action remedies using the MTCA cleanup standards. The State agrees that site specific cleanup levels will, at a minimum, be no less stringent than those required underRCRA. The State and EPAacknowledge that as ofthe effective date of this Addendum, RCRA and the regulations promulgated thereunder require corrective action provisions be included in RCRA permits as necessary to protect human health and the environment, but do not contain provisions for media specific cleanup standards or levels. The State and EPA agree that in the absence offinal media specific cleanup levels underRCRA, State cleanup levels will be evaluated against the proposed media protection standards calculated pursuant to proposed 40 C.F.R. § 264.525(d) (located in draft Subpart S). 

### Inthe event that EPA promulgates final cleanup levels applicable to RCRA, the State shall ensure that the State cleanup levels will, at a minimum, be no less stringentthan those required under RCRA, in accordance with the applicable authorization requirements. The State and U.S. EPA Region 10agree that site and media specific cleanup levels calculated using the MTCA cleanup standards may be more stringent than Federally calculated cleanup'levels. The State and EPA acknowledge that in the case ofFederally overseen corrective actions where achievement ofFederally selected final remedies does not achieve compliance with MTCA cleanup standards, the State mayrequire'additional cleanup under independent State authority. In order to minimize circumstances where sequential and potentially duplicative cleanups may be . 5

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### - .necessary, U.S. EPA Region 10intends to consider the media protection standards 

# 0 established pursuant to the MTCA regulations when selecting corrective action remedies. U.S. EPA Region 10 further intends to provide opportunities for Ecology to participate in the federal peer review panel for final corrective action remedy selections. F. Coordination ofState and Federal Actions The State and U.S. EPA Region 10agree that consistent coordination and communication between regulatory agencies is important to successful implementation of a corrective action program. In order to foster such coordination and communication, U.S. EPA Region 10 and Ecology intend to inforin each other as early as possible of anticipated or pendingcorrective action orders. At a minimum, anticipated Federal and State actions will be coordinated through annual negotiations ofthe grant workplan and periodic sites meetings. G. Applicable, Relevant and Appropriate Requirements (ARARs)
. The Model Toxics Control Act contains provisions for incorporating applicable, relevant and appropriate requirements ("ARARs") from other laws into cleanup decisions. Ecology will use the ARAR process to the extent required byRCW 70.105D.030(2)(d) and WAC 173-340-710. Ecology intends to use the ARAR process under MTCA .constructively, and will not allow application ofMTCA ARARs to unduly delay issuance ofRCRA orders or permits. 

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H.
. Corrective Action Requirements in State Issued Permits The State agrees to specify corrective action requirements and schedules ofcompliance for corrective action into all State issued dangerous waste management permits. Corrective action and schedules ofcompliance for corrective action shall be either incorporated into permits by reference at the time ofpermit issuance, or be incorporated into existing permits as permit conditions using the permit modification process. I. Data management The State and U.S. EPA Region 10agree to track corrective action data in the RCRA Information System, in accordance with the RCRIS Memorandum ofUnderstanding. VI. PROVISIONS FOR ENFORCEMENTAND COMPLIANCE MONITORING The State has primary responsibility for compliance and enforcementwithin the authorized State Program and under state authority and regulatory authority. EPA retains responsibility for ensuring fair and effective enforcement offederal requirements and a credible national deterrence to noncompliance through an effective State/federal enforcement partnership and in an oversight role. 

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• Enforcement and compliance monitoring shall be inaccordance with the MOA and the current applicable State/EPA Umbrella Compliance Assurance Agreement. VII. TRANSITION FROM FEDERALADMINISTRATION TO STATE ADMINISTRATION OF CORRECTIVEACfION Upon the effective date ofauthorization, the State will begin to administer and enforce corrective action requirements within the State of Washington. U.S. EPA Region 10
. actions which fallunderthe federal omnibus authority ofSection 3005(c)(3) ofRCRA, 42 U.S.c. § 

### 6925(c)(3), and/orwhich are federal enforcement.autborities, including actions issuedpursuant to Sections 3008(h), 3013, or 7003 ofRCRA, 42U.S.c. §§ 

### 6928(h), 6934, or 6973,will continue to be administered by U.S. EPA Region 10. In addition, HSWA amendments for.which the State has not been authorized will continue to be administered and enforced by U.S. EPA Region 10. AJI permits issued by U.S. EPA Region 10 prior to final authorization of the State for corrective action willcontinue to be administered by U.S. EPA Region 10 until the issuance, or reissuance after modification, of the State permit. Upon the effective date of the issuance, or reissuance after modification, of the State permit to incorporate authorized State requirements, those EPA-issued permit provisions for which the State is authorized to administerand enforce will expire. HSWA provisions for which the State is not authorized willcontinue in effect under the EPA-issued permit. State and EPAworkload associated with permit transition will be addressed through annual negotiations of the grant workplan. VIII. OTHER FEDERALLAWS THAT MAYAPPLYTO THE ISSUANCE OF PERMITS Authorization of the State does not relieve facilities oftheir responsibility for compliance with otherFederal laws that may apply to the issuance ofpermits (see 40 C.F.R. § 

### 270.3). EPAretains responsibility for administration and/or enforcementofthese Federal laws. EPA and the State agree to coordinate to the greatestdegree possible any permit actions to which the following laws may apply: The Wildand Scenic Rivers Act, 16U.S.c. § 

### 1273, et seq.; the National Historic Preservation Act of 1966, 16U.S.c. § 

### 470, et seq.; the Endangered Species Act of 1966, 16 U.S.C. § 

### 1531, et seq.; (including the consultationprovision ofsection 7); the Coastal Zone ManagementAct, 16U.S.c. § 

### 1451, et seq.; and the Fish and WildlifeCoordination Act, 16U.S.c. § 

### 661, et seq. The State agrees to consult with EPA to identifypotential conflictsregarding Federal requirements and to cooperate withEPA inEPA's fulfillment of

### its obligations, if any, with regard to each permit issued by the State. The State agrees that, at a minimum, U.S. EPARegion 10 will be made. aware ofanticipated State actions through annual negotiations of the grant workplan and periodic sites meetings.



### 7IX. DISPUTE RESOLUTION The State and U.S. EPA Region 10agree to pursue informal, staff- level dispute resolution to the maiimum extent possible.

- In cases where informal, stafflevel dispute resolution is not effective, a straight-forward formal dispute resolution procedure will be used. Whenever EPA or State personnel directly involved in the implementation ofthis agreementjudge that a problem exists or that this agreement is not being followed, the issue should be resolved at the Program Manager and Branch Chieflevels of the State and EPA, respectively. Ifthe State Program Manager and EPA Branch Chiefcannot reach agreement, the issue will be elevated to the Assistant Director and Division Directorlevels of the State and EPA, respectively. Ifthe State Assistant Director and EPA DivisionDirectorcannot reach agreement, the issue willbe elevated to the Directorof the Washington Department of Ecology and the Regional Administrator of U.S. EPA Region 10 for final resolution. When necessary, the U.S. EPA Region 10Assistant Regional Administrator for Washington Operations will be responsible for coordination of the dispute process and for preparing any necessary documentation. X. DISCLAIMER , 

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This agreement and any procedures established to implement this agreement do not 

# 0 constitute rulemaking under5 U.S.c.§ 551 et seq. or RCW 70.105, RCW 70.105B, RCW 70.105D and RCW 90.48, and may not relied upon by anyperson to create a right or benefit, substantive or procedural, enforceable at law or inequity by any person, other than the parties to this agreement, for alleged or actual breach of this agreement. XI. SIGNATURES
U.S. Environmental Protection Agency,

.Region 10

Regional Administrator By:

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8 State ofWashington Department of Ecology Director By:

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Date: 

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