# • AGREEMENT ON CLEANUP PROCEDURES FOR RCRA REGULATED FACILITIES (To be incorporated into the state/EPAMOA)


### 1. INTRODUCTION: SCOPE OF THE AGREEMENT
Avariety of state and federal agencies have been actively engaged in environmental protection programs for manyyears. Initially, the programs were "media oriented"; that is, they were designed to achieve and/or maintain certainprescribed levels of air and water quality and to control methods of land disposal of solidwastes. More recently, these media-oriented programs were augmentedby both federal and state laws specifically designed to address pollutants that, by their nature, are particularly dangerous, hazardous, or toxic. These hazardous waste laws create a comprehensive system for regulating current practice (i.e., those actively generating storing, transporting, and disposing ofhazardous waste) and also past practLce-(i.e., those who improperly disposed of such wastes) requiring·cleanup, closure, or corrective action. In addition to being comprehensive, the federal and state hazardous waste laws are also complex. This agreement addresses one such area ofcomplexity: the cleanup ofhazardous waste contaminationwhere both the federal Resource Conservation and Recovery Act (RCBA) and state Hazardous Waste Cleanup Act (HWCA), also referred to as RCW 70.105B are applicable. In these situations, the goal ofboth agencies is to maximize the**us~** of available resources and achieve the most effective and timely cleanup consistent with the intent and substantitive requirements ofboth RCBA and HWCA. This agreement does not attempt to redefine either federal or state authorities or their applicability. Rather it recognizes the applicability ofRCBA requirements to regulated units and, with that recognition, identifies those circumstances inwhich alternative authorities could·be used by the state on those regulated units. In addition, the agreement establishes the procedure by which the two agencies will administer the agreement. This agreement is designed to meet the mutual goal. Properly implemented, it will create a situation inwhich the state canuse all of its available authorities and resources in a selective waythat augments RCBAwhile preserving the principles and intent ofthe RCBA substantive requirements for sites cleanedup under other authorities. II. APPLICABILITY OFUSE: RCBAVS RCW 70.105B (or Alternative) Ecology and EPAhave established categories to delineate the appropriate instances for using RCBA (including RCW 70.105) or RCW 70.105B (or alternative) to address contaminated sites. Set forth below are criteria describing certain facilities and explaining which statutory framework that will be applied in addressing contamination at such facilities.Agreement October 19, 1988 Page 2 Whenutilizing RCW 70.1058 (or alternative) in those cases where RCRA alao 

# 0 applies, Ecology will ensure the substantive requirements ofRCRA, as discussed in Section III, are met during the remediation of the site. As long as Ecology ensures RCRA substantive requirements are met at applicable sites, EPA will not deem it necessary or desirable to take independent action. In the event that Ecology and EPA disagree on what constitutes compliance with substantive**requirements~** EPAwill not take independent action before following the procedures outlined in this document. Active TSDs Ecology will use RCRA as the statute ofchoice as a cleanup mechanism for facilities that are included in this category. RCW 70.1058 (or alternative) will be institutedwhen the owner/operator is financially unable to pay costs for adequate cleanup/monitoring, or when EPA and Ecology agree to utilize RCW 70.1058 in place ofcorrective authority action underRCRA. These facilities include:
o All facilities whohave submitted an interim status permit and have yet to have their interim status terminatedunder the authority ofRCRA. This includes those facilities which have undergone closure, buthave yet to have their interim status terminated. This category does not include protective filers.

o All facilities thathave been issued a final status permit andhaveyet to be released oftheir responsibility under closure orpost-closure care.
o All facilities that failed to submit a PartA**appli~ation** but operateda regulated unit(s)* subject to the permitting requirements. EPA and Ecology will holdmeetings (frequency andpersonnel to attend to be determined in the memorandum ofagreement (MOA» to discuss potential sites that failed to submit a Part Abut are operating a regulated unit. Nosite meeting this criteriawill be listed as a TSD without the concurrence ofboth Ecology and EPA. In the event an agreement cannot be reached, the dispute resolution procedure outlined in Section IV will be followed. Generator/Non-Notifiers

- Systematic Discharges to the Environment All generators/non-notifiers with systematic discharges ofregulated quantities ofhazardous product/waste to the environment, not addressed as an active TSD, will be subjected to substantive RCRA closure requirements as discussed in Section III. 

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* REGULATED UNIT

- any newor existing surface impoundment, landfill, land treatment area, waste pile, or other spatially or operationally discrete unit which was deliberately utilized for treatment, storage, or disposal of hazardous waste.Agreement October 19; 1988 Page 3 This category includes: All generators/non-notifiers whosystematically discharge regulated quantities ofproduct/waste into the environment. Systematic consists ofthe discharge ofproduct/waste in a regular continuous fashion through poor operational control ofa facility process. It does not include sudden releases ofproduct/waste due to containment failure or accidents (see Generators

- SuddenAccidental). Although these facilities are subject to RCRAISO standards, Ecology will utilize RCW 70.1058 (or alternative) as the authority ofchoice for all remedial actions and will include all substantive RCRA requirements as discussed in Section III in the remedial actions. EPA and Ecologywill hold meetings (frequency and personnel to attend to be determined in the MOA) to discuss potential sites of systematic discharges and the progress ofthese remedial actions taken to date. In determining appropriate issues for interagency concern, considerationwill be given to type ofwastes, processes involved, compliance history, environmental and public health threatposedby the discharge, and available resources ofeach agency. No systematic discharge site will be listed as a ISOwithout the concurrence ofboth EPA and Ecology. In the event an agreement cannotbe reached, the dispute resolution procedures outlined in SectionIVwill be followed. Generators/Non-Notifiers

- Sudden/Accidental Releases This includes all facilities thathave sudden, accidental releases of process orwaste streams to the environment. All generators/non-notifiers whohave sudden accidental release ofproduct or waste will be first subject to the immediate cleanup authority provided in 173-303-145 WAC. Failure by the generator to completely remediate a site will trigger RCW70.1058 (or alternative). Generators/Non-Notifiers Who Violate GeneratorRequirements All facilities that are generator/non-notifiers whohave violated storage time, off-site permit, or treatment requirements are potentially subject to RCRApermitting/closure requirements. Ecology and EPA will discuss these facilities at the meetings referred to above. In determining appropriate issues for interagency concern, EPA and Ecology will consider the type of wastes involved, processes, compliancehistory, degree ofvariation from regulations, environmental andpublic health threat posedby the violations, and impacts on the agencies. EPA and Ecology agree not to place such a generator/non-notifier on the ISO listwithout concurrenceby the other agency. At all times; RCRA enforcement is the first choice to correct the waste managementviolations.Agreement October 19, 1988 Page 4 III. SUBSTANTIVE RCBA REQUIREMENIS
For those contaminated sites where bothRCRA and RCW 70.105B (or alternative) are applicable, but the Department utilizes RCW 70.1058 (or alternative), the Departmentwill enforce the substantive requirements ofRCRA in cleanup consent decrees or enforcement orders. In the event an agreement is reached or imminentbetween Ecology and a PLP to proceedwith the cleanup while not addressing substantive RCRA requirements, the Department mayenter into the consent decree while advising the PLPof theirRCRA"liabilities. In such event, Ecology will also notify the owner/operator and EPA of such agreement and that the RCRA standards will be enforced through separate actionby either EPA or Ecology. While not a comprehensive list, the following four items constitute the major RCRA requirements to be included in Ecology cleanup consent decrees on contaminated sites also subject to RCRA. GroundwaterMonitoring Groundwater monitoring" systems are requiredby RCRA for land disposal units. Their purpose is to detect releases, investigate problems, andbe used as tools to evaluate corrective actions. In addition, groundwater monitoring systems ensure closure standards are met. TheDepartment agrees to require installation ofGWmonitoring systems to detect and describe the extent of contamination in the remedial investigationphase ofa project. Post-cleanup groundwater monitoring will be requiredbasedon the results of feasibility study and related documents. Financial Assurance RCRA requires that facility owner/operators provide assurance they have the financial capability to complete closure offacilities. Ecology, under ROW 70.1058 (or alternative) also has certainauthorities andprovisions, not included inRCRA,

.thatmight make the strict application"ofRCRA financial assurance requirements counterproductive. Ecology agrees to adopt the following financial assurance procedures inpriority order; 1. Attempt to secure financial assurance consistentwith RCRA Subpart H. 2. Iffinancial assurance cannotbe securedEcology will proceed if, based on a financial capability assessment, the PLPhas the capability to complete the cleanup. 3. EPAwill evaluate the adequacy ofa signedConsent Decree as the functional equivalent to a method described in SubpartH. Cleanup Levels 

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Ifa site is cleanedup to background levels usingnon-RCRA authorities, EPA will consider the site to be clean closed equivalent to RCRA closure requirements, and post closure monitoringwillnotbe required. 

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If the site is not cleaned to background using any authority available, closure as a land disposal facility and post closure monitoring equivalent to RCRA will be necessary. This requires installing a monitoring system. containment and a post closure monitoring schedule. The ground water monitoring systemwill conform to the standards discussed in the GroundWater Monitoring Sectionof this agreement. Ecology will set site specific standards for the containment systemand the post closure monitoring schedule. Justification for these standards will be established.
Closure/Post Closure Plans TheRCRA closure plan requirement at sites where Ecology has chosen to use authorities other than RCRA for cleanup will be met. This will be done by preparation ofa feasibility study and/or a site cleanup plan even though timing for this process maynotbe equivalent to the timing requirements of RCRA. At facilities requiring post closure monitoring, EPA and Ecology agree that the 30year requirement under RCRA will be used as a target. Ecology can elect to use a shorter on longermonitoring period as long as justification for this decision is provided. IV. DISPUTE RESOLUTION
Astraight-forwarddispute resolution procedure will be used. Whenever EPA and/or Ecology personnel directly involved in the implementationofthis agreementjudge that a problemexists or that the agreement is not being followed, the issue shouldbe resolved (after any appropriate informal consultation) at the ProgramManager-Branch Chief levels ofEcology and EPA, respectively. The second level will be the Assistant Director-Division Director level. The third and final level will be the Director-Regional Administrator. Onrare occasions, site specific issues will be elevated to the second level, however, disputes raised to this· ievel or above should normally concern overall programperformance issues. TheAssistant Regional Administrator for Washington Operations will be responsible for coordination the dispute·process and preparing any necessary documentation. Resolved disputes will be written up and distributed to both Ecology and EPA staff. Three basic principles apply.· First, issues shouldbe addressed rather than

.ignored. Second, escalation and formality should occur only after informal,

working-level efforts prove insufficient. Third, the dispute resolution coordinator shouldbe informed ofall resolutions so that the agreement can be kept current and to provide operational guidance to all parties. The specifics of the process will be outlined in the M.O.A.

### Agreellent October 19, 1988 Page 6

V. 

### Disclaimer
This agreement andprocedures established to implement it (1) constitute solely guidance for the employees of the respective agencies and do not constitute ru1emakingunder 5 U.S.C.& 551 et seq, (RCW 10.105, RCW 10.1058 and RCW 90.48); (2) do not create any right, benefit, or privilege enforceable at lawor inequityby any person; and (3) ifthe respective agencies act inconsistently with this agreement that creates no right of action in any person for allegedbreach ofthis agreement.
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FOR THE WASHINGTON STATE DEPARTMENT OF ECOLOGY: 

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.**~I** Christine O. Director
TE49V10 Date