• AGREEMENT ON CLEANUP PROCEDURES FOR RCRA

REGULATED FACILITIES

(To be incorporated into the state/EPA MOA)

1. INTRODUCTION: SCOPE OF THE AGREEMENT

A variety of state and federal agencies have been actively engaged in

environmental protection programs for many years. Initially, the programs

were "media oriented"; that is, they were designed to achieve and/or maintain

certain prescribed levels of air and water quality and to control methods of

land disposal of solid wastes. More recently, these media-oriented programs

were augmented by 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 of hazardous 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 of complexity:

the cleanup of hazardous waste contamination where 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 of both agencies is to maximize the us~ of available resources and

achieve the most effective and timely cleanup consistent with the intent and

substantitive requirements of both RCBA and HWCA.

This agreement does not attempt to redefine either federal or state

authorities or their applicability. Rather it recognizes the applicability

of RCBA requirements to regulated units and, with that recognition,

identifies those circumstances in which 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 in which the state can use all of its available

authorities and resources in a selective way that augments RCBAwhile

preserving the principles and intent of the RCBA substantive requirements for

sites cleaned up under other authorities.

II. APPLICABILITY OF USE: RCBA VS RCW 70.105B (or Alternative)

Ecology and EPA have 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

When utilizing RCW 70.1058 (or alternative) in those cases where RCRA alao 0

applies, Ecology will ensure the substantive requirements of RCRA, 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~ EPA will not take independent

action before following the procedures outlined in this document.

Active TSDs

Ecology will use RCRA as the statute of choice as a cleanup mechanism for

facilities that are included in this category. RCW 70.1058 (or alternative)

will be instituted when 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 of corrective authority action under RCRA. These facilities

include:

o All facilities who have submitted an interim status permit and have yet

to have their interim status terminated under the authority of RCRA.

This includes those facilities which have undergone closure, but have

yet to have their interim status terminated. This category does not

include protective filers.

o All facilities that have been issued a final status permit and have yet

to be released of their responsibility under closure or post-closure

care.

o All facilities that failed to submit a Part A appli~ation but operated a

regulated unit(s)* subject to the permitting requirements.

EPA and Ecology will hold meetings (frequency and personnel to attend to

be determined in the memorandum of agreement (MOA» to discuss potential

sites that failed to submit a Part A but are operating a regulated unit.

No site meeting this criteria will be listed as a TSD without the

concurrence of both 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 of regulated

quantities of hazardous product/waste to the environment, not addressed as an

active TSD, will be subjected to substantive RCRA closure requirements as

discussed in Section III.

o

* REGULATED UNIT - any new or 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 who systematically discharge regulated

quantities of product/waste into the environment. Systematic consists

of the discharge of product/waste in a regular continuous fashion

through poor operational control of a facility process. It does not

include sudden releases of product/waste due to containment failure or

accidents (see Generators - Sudden Accidental).

Although these facilities are subject to RCRA ISO standards, Ecology will

utilize RCW 70.1058 (or alternative) as the authority of choice for all

remedial actions and will include all substantive RCRA requirements as

discussed in Section III in the remedial actions.

EPA and Ecology will hold meetings (frequency and personnel to attend to be

determined in the MOA) to discuss potential sites of systematic discharges

and the progress of these remedial actions taken to date.

In determining appropriate issues for interagency concern, consideration will

be given to type of wastes, processes involved, compliance history,

environmental and public health threat posed by the discharge, and available

resources of each agency. No systematic discharge site will be listed as a

ISO without the concurrence of both EPA and Ecology. In the event an

agreement cannot be reached, the dispute resolution procedures outlined in

Section IV will be followed.

Generators/Non-Notifiers - Sudden/Accidental Releases

This includes all facilities that have sudden, accidental releases of

process or waste streams to the environment.

All generators/non-notifiers who have sudden accidental release of product 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 RCW 70.1058 (or alternative).

Generators/Non-Notifiers Who Violate Generator Requirements

All facilities that are generator/non-notifiers who have violated storage

time, off-site permit, or treatment requirements are potentially subject to

RCRA permitting/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, compliance history, degree of variation from

regulations, environmental and public health threat posed by the violations,

and impacts on the agencies. EPA and Ecology agree not to place such a

generator/non-notifier on the ISO list without concurrence by the other

agency. At all times; RCRA enforcement is the first choice to correct the

waste management violations.
Agreement

October 19, 1988

Page 4

III. SUBSTANTIVE RCBA REQUIREMENIS

For those contaminated sites where both RCRA and RCW 70.105B (or alternative)

are applicable, but the Department utilizes RCW 70.1058 (or alternative), the

Department will enforce the substantive requirements of RCRA in cleanup

consent decrees or enforcement orders. In the event an agreement is reached

or imminent between Ecology and a PLP to proceed with the cleanup while not

addressing substantive RCRA requirements, the Department may enter into the

consent decree while advising the PLP of their RCRA"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 action by

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.

Groundwater Monitoring

Groundwater monitoring" systems are required by RCRA for land disposal units.

Their purpose is to detect releases, investigate problems, and be used as

tools to evaluate corrective actions. In addition, ground water monitoring

systems ensure closure standards are met. The Department agrees to require

installation of GW monitoring systems to detect and describe the extent of

contamination in the remedial investigation phase of a project. Post-cleanup

groundwater monitoring will be required based on 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 of facilities. Ecology, under

ROW 70.1058 (or alternative) also has certain authorities and provisions, not

included in RCRA, .that might make the strict application" of RCRA financial

assurance requirements counter productive. Ecology agrees to adopt the

following financial assurance procedures in priority order;

1. Attempt to secure financial assurance consistent with RCRA

Subpart H.

2. If financial assurance cannot be secured Ecology will proceed if,

based on a financial capability assessment, the PLP has the

capability to complete the cleanup.

3. EPA will evaluate the adequacy of a signed Consent Decree as the

functional equivalent to a method described in Subpart H.

Cleanup Levels

o

o

If a site is cleaned up to background levels using non-RCRA authorities, EPA

will consider the site to be clean closed equivalent to RCRA closure

requirements, and post closure monitoring will not be required. <=) ,
Agreement

October 19. 1988

Page 5

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 system will conform to the standards discussed in the Ground Water

Monitoring Section of this agreement. Ecology will set site specific

standards for the containment system and the post closure monitoring

schedule. Justification for these standards will be established.

Closure/Post Closure Plans

The RCRA 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 of a feasibility study and/or a site cleanup plan even though

timing for this process may not be equivalent to the timing requirements of

RCRA. At facilities requiring post closure monitoring, EPA and Ecology agree

that the 30 year requirement under RCRA will be used as a target. Ecology

can elect to use a shorter on longer monitoring period as long as

justification for this decision is provided.

IV. DISPUTE RESOLUTION

A straight-forward dispute resolution procedure will be used. Whenever EPA

and/or Ecology personnel directly involved in the implementation of this

agreement judge that a problem exists or that the agreement is not being

followed, the issue should be resolved (after any appropriate informal

consultation) at the Program Manager-Branch Chief levels of Ecology 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. On rare occasions, site specific issues will be elevated to

the second level, however, disputes raised to this· ievel or above should

normally concern overall program performance issues.

The Assistant 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 should be addressed rather than

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

working-level efforts prove insufficient. Third, the dispute resolution

coordinator should be informed of all 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 and procedures established to implement it (1) constitute

solely guidance for the employees of the respective agencies and do not

constitute ru1emaking under 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 law or in equity by any person; and (3) if the respective

agencies act inconsistently with this agreement that creates no right of

action in any person for alleged breach of this agreement. .

o

o

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Agreement

October 19, 1988

Page 7

; ,- I 7- ~~:. ~~ . Date

FOR THE WASHINGTON STATE DEPARTMENT OF ECOLOGY:

~I

/J I "_ . /1 .

Christine O.

Director

TE49V10

Date