55322 Federal Register / Vol. 59, No. 213 / Friday November 4, 1994 / Rules and Regulations

ENVIRONMENTAL PROTECTION
AGENCY

40 CFR Part 271

[FRL-5099--5]
Washington: Final Authorizationof State Hazardous Waste Management Program Revisions
AGENCY* Environmental Protection Agency. ACTION: Immediate final rule.

SUMMARY- The State of Washington has applied for final authorization of revisions to its hazardous waste program under the Resource Conservation and Recovery Act (RCRA). The Environmental Protection Agency (EPA) has reviewed the State of Washington's application and has reached a decision that the State of Washington s hazardous waste program revision satisfies all ofthe requirements necessary to qualify for final authorization. Thus, EPA isgranting final authorization to the State of Washington to operate itsexpanded program, subject to the authority retained by EPA in accordance with the Hazardous and Solid Waste Amendments of 1984. EFFECTIVE DATE: Final autborization for the State of Washington shall be effective November 4, 1994.
FOR FURTHER INFORMATION CONTACT* Patricia Springer, U.S. EPA, M/S: HW107 1200 Sixth Avenue, Seattle, Washington 98101, Phone (206) 553- 2858.

SUPPLEMENTARY INFORMATION:
A. Background

States with final authorization under section 3006(b) of the Resource Conservation and Recovery Act, as amended ("RCRA"), 42 U.S.C. 6929(b), have a continuing obligation to maintain

a hazardous waste program that is equivalent to, consistent with, and no less stringent than the Federal hazardous waste program. In addition,

as an interim measure, the Hazardous and Solid Waste Amendments of 1984 to RCRA (Public Law 98-616, November 8, 1984, hereinafter "HSWA") allows States to revise their programs to become substantially equivalent instead ofequivalent to RCRA requirements promulgated under HSWA authority. States exercising the latter option receive "interim authorization" for the HSWA requirements under section 3006(g) ofRCRA, 42 U.S.C. 6926(g), and later apply for final authorization for the HSWA requirements. Revisions to State hazardous waste programs are necessary when Federal or State statutory orregulatory authority is modified or when certain other changes

occur. Most commonly State program revisions are necessitated by changes to EPA s regulations in40 CFR parts 124, 260-266, 268 and 270.
B.State ofWashington

The State ofWashington initially received final authorization on January 31, 1986.The State ofWashington received authorization forrevisions to its program onNovember 23, 1987 (52 FR 35556, 9/22/87) and on October 16, 1990 (55 FR 33695, 8/17/90). On January 12, 1994, the State of Washington submitted aprogram revision application for additional program approvals. On March 30, 1994, EPA published a proposal to approve the State ofWashington s application forprogram revision in accordance with 40 CFR 271.21(b)(4).

EPA has reviewed the State of Washington sapplication, and has made

a final decision that Washington s hazardous waste program revision satisfies all ofthe requirements necessary to qualify for final authorization. Consequently EPA is granting.final authorization for the additional program modifications to Washington's hazardous waste program. Attachments 1, 2, 5, 6, 8-17 and Appendices 1-4 ofthe State's application are provided for information only.
C.Washington's Corrective Action Program

The State ofWashington sauthorized RCRA program is set forth in Chapter 173-303 ofthe Washington Administrative Code (WAC), entitled "Dangerous Waste Regulations" The Dangerous Waste Regulations include both authorized and non-authorized" requirements. Washington has amended the Dangerous Waste Regulations to include corrective action requirements; however, Washington may also rely on its existing state "superfund-like" cleanup authority Model Toxics Control Act (MTCA), and its implementing regulations in Chapter 173-340 entitled "Model Toxics Control Act Cleanup Regulation toimplement corrective action requirements and to compel corrective actions.

The statutory authority for the Dangerous Waste Regulations is found in the Revised Code ofWashington (RCW), Chapters 70.105 and 70.105D. RCW 70.105D.030(1)(d) is the statutory provision which allows the State of Washington Department ofEcology (Ecology)to carry out all state programs authorized under the federal RCRA
statute. RCW 70.105.130 designates Ecology asthe agency tasked with implementing the authorized RCRA program and provides Ecology with the authority to establish a permit system for owners or operators offacilities whichtreat, store, or dispose of dangerous waste. RCW 70.105.020 authorizes Ecology torevise and modify the Dangerous Waste Regulations. Statutory authority for MTCA is also found in RCW Chapter 70.105D. RCW 70.105D.030(2) authorizes Ecology to adopt rules to set cleanup standards for remedial actions taken under MTCA authority RCW 70.105D.050(1) explicitly grants Ecology the authority to issue orders under MTCA to direct potentially liable parties to conduct remedial action.

Washington -maycompel corrective action by issuing orders pursuant to MTCA to owners and operators of facilities seeking or required to have a permit to manage dangerous waste. Such orders are referred to as "state corrective action orders State corrective action orders will be somewhat hybrid, presenting RCRA corrective action requirements in the context of astate "superfund-like cleanup. EPA emphasizes that corrective action requirements are not being deferred to a state superfund-like authority*rather, the state authority will be used to compel RCRA corrective action requirements. In order to fulfill the RCRA Section 3004 (u) and(v) requirement that all RCRA permits must include corrective.action permit conditions, state corrective action orders will be incorporated into RCRA permits issued pursuant to the authorized State program permitting regulations.

Washington s corrective action program would allow corrective action tobe specified through theterms of a State-issued order which is incorporated by reference into operating or postclosure permits issued to facilities. The State could: 1)issue the order in advance ofthe permit; 2)modify the permit to incorporate the order; or 3) simultaneously issue the order and the permit with the order incorporated into the permit. Under the Washington program, a State order would be considered to be part of the authorized RCRA program only when the order is incorporated into an existing RCRA permit, or when the order is issued simultaneously with and incorporated by reference into a new RCRA permit.

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D. Comparison of Washington's Corrective Action Program to the FederalProgram

Ordinarily, States-await promulgation ofFederal regulations prior to submitting their applications. However, there is no impedimentunder the RCRA statutory provisions which would bar a State from seeking authorization ofa program in advance ofFederally promulgated regulations provided the State bases its program on existing Federal statutory language. An existing Federal counterpart is the critical nexus inthe authorization program.

Washington's corrective action program goes slightlybeyond the EPApromulgated regulations (see 40 CFR 264.100 and 264.101) which implement the statutory provisions of sections 3004(u) and [v) ofRCRA, 42 U.S.C. 6924(u) and (v), in which facilities seeking apermit are required to undertake corrective action for all releases ofhazardous waste or constituents from any solid waste management unit (SWMU) and to undertake such corrective actions beyond the property boundary where necessary. Washington's program will instead utilize its existing Superfundlike cleanup order authority (theModel Toxics Control Act) through the State's authorized RCRA program by linking the cleanup order authority with the State's authorized RCRA program permitting requirements to fulfill the mandates ofsections 3004(u) and (v) of RCRA, 42 U.S.C. 6924(u) and (v).

The-statutory language ofSection 3004(u) ofRCRA applies to corrective action at solid waste management units. Although no statutory or regulatory definition of "solid waste management unit" has been promulgated, EPA's proposed Subpart Scorrective action rule, published in theFederal Register

onJuly 27 1990 (55 FR 30798), contains EPA's most current interpretation ofkey terms in section 3004(u) ofRCRA. This is and willbe the controlling interpretation against which Washington's regulatory definition of solid waste management unit shallbe measured until EPA codifies a statutory

orregulatory definition.

The statutory language ofsection 3004(u) ofRCRA also-applies to "facilities seeking a permit." Such facilities include thosehazardous waste management facilities which are required to obtain permits to operate and to those subject topost-closure permits. EPA has interpreted this language to mean that corrective action mustbe specified in operating or postclosure permits issued to such facilities.

State corrective action orderswillbe issued to facilities subject to the Washington State Dangerous Waste Regulations, codified inthe Washington Administrative Code (WA) in Chapter 173-303, butthese orders willrely in part onthe State ofWashington's Model Toxics Control Act (MTCA) statutory and regulatory provisions andwill require current owners and operators of SWMUs to conduct corrective action at those units in accordance with the Dangerous Waste Regulations.

EPA is notdelegating RCRA section 3008(h) authority [42 U.S.C. 6928(h)] as part ofthisauthorization. No Federal enforcement authorities are delegated when EPA authorizes state programs under section 3006 ofRCRA.

Any orders issued to a facility under MTCA will notbe considered to be part oftheEPA-authorized corrective action .programunless anduntil they are incorporated into a RCRA permit. Terms ofthe orders which go beyond the scope ofthe authorized Dangerous Waste regulations will be considered broader in scope, and thus notFederally enforceable. Federal enforceability does
not affect the ability ofthe State to impose requirements pursuant to their legitimate State statutory authorities or to enforce thoserequirements in lawfully-issued orders or permits.

Some portions ofWashington s revised program are broader in scope than the Federal program, and thus are not Federally enforceable. Due to Washington's statutory mandate to address all releases ofhazardous substances, Washington has developed corrective action requirements which
are, in part, broader in scope than the Federal corrective action requirements in RCRA Section 3004(u), in that dangerous waste management facilities in Washington will be required to conduct corrective action as necessary to protect human health and the environment for all releases of dangerous waste and dangerous constituents at orfrom the facility, regardless ofthe source ofthe release.

Some portions ofWashington s revised program are more stringent than the Federal program. The requirement to implement corrective action for releases which have migrated beyond the facility boundary is more stringent than the Federal requirement, in that it is not limited by the "best efforts" language in theFederal requirement.

To clarify Washington will be authorized for the following provisions

aspart ofthis authorization (see State Authorization Checklists 17L, 38, 44A, 44B, 121):

Federal requirement

RCRA Corrective Action Program Corrective Action (50 FR 28702, 7/15/85): Applicability: SWMU, 40 CFR §264.90(a)

................................................................................................... SWMU. 40 CFR §264.101(a)

.................................................................................................................... Specified in perm it,40 CFR §264.101 (b)

....................................................................................... . Permits by rule: UIC permits issued after 11//8/84, 40 CFR §270.60(b)(3)

............................................... NPDES permits issued after 11/8/84, 40 CFR §270.60(c)(3)

.................................................................... Permit Application (52 FR 23447 (6/22/87)1; 152 FR 33936 (9/9/87)]; [52 FR 45788 (12/1/87)]: Contents of.Part B 40 CFR §270.14(c)

..................................................................................................... 40 CFR §270.14(c)(7)

.......................................................................................................................... 40 CFR §270.14(c)(8)(v)

........................................................................................................................ 40 CFR §270.14(d)

............................................................................................................................... Corrective action beyond the facility boundary 152 FR 45788 (12/1/87)]: 40 CFR §264.100(e)

................................................................................................................................. 40 CFR §264.101 (c)

................................................................................................................................ Corrective Action Management Units (CAMU) [58-FR 6658 (2/16193)]: Definitions: Facility to include all contiguous property, 40 CFR §260.10

..................................................................... CAMU, 40 CFR §§260.10, 264.101, 270.2

.......................................................................................... Landfill and miscellaneous unit to includeCAMU, 40 CFR §260.10

............................. Remediation wastes to include all solid and hazardous waste and all media and debris, 40 CFR

§260.10. Land disposal facility, 40 CFR §2682(c)

.......................................................................................... State authority
4-

WAC 173-303-645(1)(a)(ii).

WAC 173-303-646. WAC 173-303-646(2)(c). WAG 173-303-802(3). WAC 173-303-802(4)(c)(viii).

WAC 173-303-806(4)(a)(xx). WAC 173-303-806(4)(a)(xx)(G). WAC 173-303-806(4)(a)(xx)(-)(iii). WAC. 173-303-806(4)(a)(xxii).

WAC 173-303-645(1 1)(e). WAC 1 73-303-646(2)(b).

WAC 173-303-040. WAC 173-303-040. WAC 173-303-040. WAC 173-303-040.

WAC 173-303-040.

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Federal requirement

Intenm Status standards apply: In. lieu of40 CFR 264 standards, 40 CFR § 264.3

................................... Corrective action for SWMU will be specified inpermit, including schedules of compliance, 40 CFR

§264.101. Designation Requirements forCAMU: Designated for implementing remedies, 40 CFR §264.552

....................................................................... Designation of regulated unit as CAMU, 40 CFR §264.552

...................................................................... Designation will facilitate implementation, 40 CFR §264.552

.................................................................... 0/0 provides sufficient information, 40 CFR §264.552

.............................................................................. Rationale documented and made available to public, 40 CFR §264.552

.................................................. Permit modification requirements must be followed to incorporate CAMU intopermit, 40 CFR §264.552

Requirements for Temporary Units (TU) [58 FR 8658 (2/16/93)]: Standards may be replaced by alternative requirements, 40 CFR §264.553

............................................ Factors for establishing standards, 40 CFR §264.553(c)

........................................................................... Length of time TU may operate,40 CFR §264.553(e)

............................................................................... Incorporation of TU inpermit, 40 CFR §264.553

.......................................................................................
Rationale documented and made available to the public, 40 CFR §264.553

............................................ State authority

WAC 173-303-400(2)(a). WAC 173-303-646(2)(a) &(c).

WAC 173-303-646(2)'& (4)(a). WAC 173-303-646(6). WAC 173-303-646(5)(a). WAC 173-303-646(5)(e). WAC 173-303-646(5)(9. WAC 173-303-646(5)(g); WAC

173-303-830..

WAC 173-303-646(7)(a) &(b). WAC 173-303-646(7)(c). WAC 173-303-646(7)(d) &(e). WAC 173-303-646(7)(f; WAC

173-303-830 WAC 173-303-646(7)(g).

In order to approve the State of Washington to use orders issued under MTCA to compel RCRA corrective action, it was necessary to identify the essential elements of a RCRA corrective action program and to determine that the State had the necessary authorities to meet these substantive RCRA requirements. The following table identifies those substantive RCRA corrective action requirements and demonstrates that the corresponding State authorities exist which allow the State to meet these requirements. Whereas certain of the state authorities listed are already authorized or are being authorized in today's action, this table only serves to demonstrate that orders issued under MTCA can compel corrective.action which would meet all substantive RCRA corrective action requirements and is provided here for information only. As stated above, orders issued by the state are not part of the RCRA authorized program until such order is incorporated into a RCRA permit.

-
Federal requirement State authority

RCRA Corrective Action Using Existing State Cleanup Authority: Corrective action at SWMUs for all releases, 40 CFR §264.101

..... ROW 70.105.130(1), (2)(a-b), (2)(c)(ii-iii) and (2)(e); RCW 70.105D.030(1)(a,b,d,f); WAC 173-303-400(3)(a)(i), -646(2)(a-b), -802(3-4). Enforcement authorities, 40 CFR §271.16

....................................... ROW 70.105.080,.085, .095(1-2), .097 120; ROW 70.105D.030(2)(c), .050(1),(4),(5)(a). Permitting requirements: 40 CFR §§270.30, 270.32, 271.14 and ROW 70.105.130(2)(a), (b), and (c)(ii-iii); ROW 70.105D.030(1)(a);

271.16. WAC 173-303-646(2)(a-c), -646(3)(a-c), -400(3)(a)(i),. -806(4)(a)(xxi)(A) &(B). Permitting requirements, schedules of compliance and assurances ROW 70.105.130(2)(a); ROW 70.105D.030(1)(a-b), (2)(c); WAC 173-

of financial responsibility, 40.CFR §§270.33 and 271.14. 303-646(2)(c) &(3)(c), -802(3) &(4). Corrective action beyond the facilityboundary, 40 CFR §264.101 ROW 70.105.130(2)(c)(iii); ROW 70.105D.030(1)(a) &(b); WAC 173- 303-646(2)(b) &(3)(a). Definition offacility, 40 CFR §§260.10 and 264.101

........................ ROW 70.105.101(11); ROW 70.105D.020(8); WAC 173-303-040. Implement and complete corrective action, 40 CFR §264.101

........ ROW 70.105.130(2)(b), (c)(ii-iii) &(e); RCW 70.105D.030(1)(a), (b), & (f); WAC 173-303-646(2)(a) &(b). Financial responsibility for completing corrective action, 40 CFR ROW 70.105.130(1) &(2)(c)(iii); ROW 70.105D.030(1)(d); WAC 173-

§§264.101 and 271.14. 303-646(2)(a-c). Public participation, 40 CFR §§270.42 and 271.16(d)

..................... ROW70.105.130(2)(a); ROW 70.105D.030(2)(a); WAC 173-303-830.

E. Indian Lands

Washington is not seeking authorization to operate on Indian lands.

F Public Hearing andComments

Although EPA received three requests for a public hearing, EPA didnot find that the bases for the requests warranted

a public hearing, since the issues raised

were outside the scope ofthis authorization action.

EPA received a number ofcomments during the public comment period. A detailed Response to Comments has been prepared and is available upon request. The following is a summary of the comments received and EPA's responses to those comments.

One commenter was concerned about the interaction between regulation of radioactive materials under theAtomic Energy Act (AEA) and ofhazardous
wastes under RCRA, specifically that EPA's authorization ofthe State of Washington for RCRA corrective action under the State's Hazardous Waste Management Act (HWMA) would allow the Washington Department ofEcology
to "preempt" the State Department of Health's regulatory authority (delegated by the Nuclear Regulatory Commission)

over the operation oftheirfacility. The commenter was also concerned about certain conflicting stateregulatory and statutory provisions regarding the regulatory authority ofthe Department ofHealth.

In response, the State ofWashington has not asked that the statutory provision cited by the commenter [RCW 70.105.240(2)] be authorized aspart of the federally authorized RCRA program. As such, RCW 70.105.240(2j will not be part ofthe federally-authorized state RCRA corrective action program which will operate in lieu ofthe federal RCRA corrective action program. This will remain a "state-only" provision and EPA will notenforce it.

The State ofWashington is today being authorized to implement its corrective action program in lieu ofthe

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federal RCRA corrective action program. TheRCRA corrective action program seeks to address releases ofhazardous waste andconstituents from solidwaste management units ata facility. "Regulated units" are units such as landfills, waste piles, surface impoundments, and land treatment units used totreat, store, or dispose of RCRA-regulated hazardous wastes and

are subject to fullregulation under subtitle CofRCRA. See40 CFR 264.90. "Solid waste management units," or "SWMUs," are any discernable units at which "solid wastes".may have been placed at any time. See55FR 30798, 30874, July 27 1990 (proposedRCRA Subpart SRule). IfEPA determines that the presence ofsolid or hazardous waste at either a regulated unit ora solid waste management unit has led to a release ora threatened release ofa hazardous waste orconstituent from such units,EPA canrequire the owner
oroperator ofa unit to address such releases by taking necessary "corrective action" at the unit.

EPA s ability torequire corrective action at such units does notmean that SWMUs are "regulated" underthe RCRA "base program" and therefore subjected to RCRA permitting requirements. The RCRA "base program" consists, in-part, ofthose provisions ofRCRAthat govern the generation, transport, treatment, storage and disposal ofhazardous wastes.The RCRA "base program" isconsidered to be those provisions ofthe RCRA program before the passage ofthe Hazardous and Solid Waste Amendments ("HSWA") of 1984 to RCRA. HSWA introduced the corrective action requirements into the RCRA
statute. Incontrast and in general, only .,regulated units" and generator accumulation areas are subject to the operational requirements ofthe RCRA "base program." These operational requirements are separate and apart from any corrective action requirements that might be imposed by the State of Washington under the authorized state corrective actionprogram.

Therefore, the commenter's concern that EPA's authorization ofthe State of Washington for RCRA correctiveaction will allow theDepaertmntofEcology to "preempt" the Department ofHealth's regulatory authority over theoperation ofthe commenter's facility is unfounded. Ifthe State ofWashington wanted toregulate the daily operations ofthe facility's radioactive waste management activitiesunder RCRA, it would have to do so under the state's dangerous waste "base" RCRAprogram.

One commenter stated that "Given that EPA has stated that it will interpret Washington s regulatory definition of SWMJ against its discussion in the proposed corrective action rule, [the commenterl requests that the State of Washington through its authorized program will notbe allowed to assert jurisdiction over mixed waste activities pnortoJuly 3, 1986, as well. The commenter cites the State of Washington's recent definition of"solid
wastemanagement unit" which was added to the State's Dangerous Waste regulations, which "means any discernable location ata facility, as defined forthe purposes ofcorrective action, where solid wastes have been placedatanytime. "(emphasis added). The commenter further states that "the preamble to EPA scorrective action rule did not attemptto retroactively apply-EPA's jurisdiction

over mixed waste prior to July 3, 1986."

Inresponse, EPA has consistently interpreted the radioactive mixed waste tobe a solid waste under RCRA for the purposes ofRCRA corrective action (see 55 FR 30798 at 30860, July 27 1990 and 51FR 24504 Footnote #1,July 3, 1986). Therefore, it is clear that EPAconsiders radioactive mixed waste tobe a solid waste under RCRA forpurposes of RCRA corrective action. Corrective actions under RCRA which address releases from solid waste management units arenot limited toreleases of hazardous waste or constituents after any certain date. EPA's proposed definition ofa "solid waste management unit" InEPA's proposed Subpart S rule (see55 FR at 30808-30809) and the State ofWashington's promulgated definition ofa "solid waste management unit" in its Dangerous WasteRegulations (see WAC 173-303-646(2)(a)) both define a SWMU to include in part (state regulatory language differences are in brackets):

Any discernable unit [location atafacility]

at which solidwastes havebeen placed atanytime, irrespective ofwhether theunit

was intended for themanagement ofsolid or hazardous [dangerous] waste.

Thus, EPA s determination that the hazardous component ofradioactive mixed waste was regulatedand subject topermitting requirements ofSubtitle C ofRCRA in 1986 does notaffect EPA's ability (or a state's ability when that
state has been authorized forcorrective action under RCRA) to require correctiveactionforthe hazardous component ofradioactive solid waste at SWMUs where such waste was disposed ofbefore 1986.

EPA, inits authorization ofthe State ofWashington forRCRA corrective action, is not authorizing the State to "'regulate mixed waste disposed of prior to 1986" as suggested by the
commenter. Rather, the authorization will allow-the State to assert corrective action (cleanup ofpast releases) jurisdiction; which is not RCRA operational (day-to-day waste handling and management) jurisdiction, over solid waste (which includes the hazardous component ofradioactive mixed waste) at solid waste management units at facilities seeking permitsunder RCRA. The State of Washington received final authorization forRCRA operational jurisdiction over radioactive mixed waste on November 23, 1987

A commenter pointed out thatEPA

was notauthorizing the State of Washington at this time for the "omnibus" authority ofsection 3005(c)(3) ofRCRA,yet the State corrective action program and regulations indicate that the State will
assert authority over releases of hazardous waste and constituents from "non-SWMU" units and areas. The
commenter then asks whether EPA will
assert its omnibus authority along with the State authority over corrective action for non-SWMU releases, and if
so, how will EPA conduct such action.

In response, EPA cannot disregard its statutory obligations under RCRA to require corrective actions where EPA deems such actions to be necessary to protect human health and the environment. However, EPA also does
not intend to require duplicative efforts under two separate statutory or regulatory schemes at any given facility. EPA is not authorizing the state of Washington for RCRA omnibus" authority as part of today's authorization. As such, State regulations which allow the State to require corrective action for releases from nonSWMUs are "broader in scope" than the corrective action program for which the State is currently seeking authorization and, as such, are not federally enforceable.

In addition, EPA s statutory obligations under sections 3008(h), 3013, and 7003 ofRCRA, 42 U.S.C. 6928(h), 6934, and 6973, to ensure protection ofhuman health and the environment, empower EPA to ensure that all releases ofhazardous waste are addressed. These statutory authorities

-areindependent from EPA s oversight of the authorized state corrective action program. Should EPA decide that assertion ofEPA statutory authority is necessary, such action will be coordinated with any ongoing State action to ensure that duplicative actions

are not taken unless necessary to protect human health orthe,environment. However, EPA does not anticipate that

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it will have toexercise such authority very often, giventhe protectiveness embodied in the State'sMTCA statute and themanner in which theState has implemented theMTCA program.

A commenter questioned that once a State-issued order is incorporated by reference into the facility's RCRA permit, canthat orderbe amended withouta corresponding modification of theRCRA permit.

In response, at the time the State order is incorporated byreference into

aRCRA permit, the order becomes subject to all permitting requirements, including public participation requirements required for permit modifications. Thisincludes any Stateissued orders designating a corrective action management unit (CAMU) or temporary unit (TU). Therefore, ifat

some time after incorporation by reference into aRCRA permit, itis determined that the incorporated order mustbe changed, such achange will require a permit modification as well. The class ofpermit modification required, along with the extent ofpublic participation required by such a modification, willbe determined using the State regulations.

A commenter requested clarifiation ofthe publicparticipation process tobe usedby the State under the authorized correctiveaction program. Specifically, the commenter pointed outthat MTCA orders have their own public participation process. The commenter queried whether there would be a second public participation process at thetime such order would be incorporated into a RCRA permit.The
commenter alsoqueried towhat extent the public..vouldbe able to comment on the previously issued orderat thetime ofpermit issuance ormodification; and to what extent the existing State regulations governing public participation would operate in lieu of the federal regulations codified at 40 CFR 124.11 through 124.17

In response, the commenter isreferred to theProgram Description contained in this application for authorization, wherein Washington's Department of Ecology explains how public participation goals and requirements will bemet. Inbrief,the State will follow only the existingMTCA public participationrequirements (which are extensive) when a MTCA order isissued prior topermit issuance. Sincethat is
nota RCRA permit action, there are no RCRA permit public participation requirements which apply. Atthetime the order is incorporated into a-RCRA permit through permit modification, or ifthe orderis issued concurrently with the RCRA permit, the permit issuance or modification will be under the State's authorized corrective action program. The RCRA public participation requirements would govern the public participation process atthat time. However, public comment atthat time willbe limited to whether the incorporated MTCA terms, schedules and conditions appropriately fulfill corrective action requirements ofthe authorized State RCRA program. Public
comment on the MTCA terms, schedules and conditions willnot affect the ability ofthe stateto enforce the MTCA orderunder MTCA authority, independent ofthe authorized RCRA corrective action program. At the time the MTCA order is incorporated intoa RCRA permit, and at any time thereafter for the life ofthe RCRA permit, Ecology will ensure thatthe public participation procedures under RCRA and MTCA are coordinated to eliminate duplication of effort and fulfill RCRA requirements.

A commenter questioned how authorization ofthe State program wouldbe affected by EPA's promulgation ofa final federal rule regarding corrective action. The
commenter alsoquestioned whether EPA intendedto use the proposed subpart S corrective action rules to

measure the State's "consistency" with the federal corrective action program; and whatEPA intended when EPA stated in its Notice ofProposed Rulemaking that EPA's proposed definition ofa SWMU "will be the controlling interpretation against wich Washington's regulatory definition ofa solid waste management unit will be measured untilEPA codifies a statutory

orregulatory definition."

In response, should EPA finalize a federal rule regarding corrective action
at some point after the State has received corrective action authorization, the State will be required to submit an application fora revision ofthe State corrective action program, in accordance with 40 CFR 271.21(e)(1) and 271.25. Until EPA promulgates a final federal corrective action rule, EPA intends touse its proposed subpart S rules (55FR 30798, July 27 1990) as the

measure ofconsistency inorder todetermine whether the State's authorized corrective action program is
at least as stringent as the federal corrective action program would be under the proposed Subpart S rule. Since the proposed subpart S rule has
notyet been finalized. EPA cannot authorize nor enforce the provisions of Subpart S.-However, EPA is currently using the provisions contained in the proposed Subpart Srule as gudance when conducting federal corrective actions. Twocommenters raised concerns regarding the State ofWashington's siting criteria fornew hazardous waste facilities. Inresponse, the proposed approval and authorzation of Washington's hazardous waste program revision is fora corrective action program. Since thecorrective action program under RCRA isintended to address clean up ofreleases of hazardous waste atexisting hazardous
waste facilities, the commenters'

concerns regarding sitingofnew facilities areoutside the scope ofthis current authorization action. The State's siting criteria are State regulations which haveno federal counterpart, and

as such are not part ofthefederal RCRA program.

A commenter raised concerns regarding Hanford, specifically with respect totheburial ofdecommissioned reactorcores, andregarding incinerator standards. In response, EPA today is approving and authorizing the state for

aRCRA corrective action program. EPA's authorization today does not directly address cleanup decisions at Hanford, the disposal of decommissioned reactor cores, nor -EPA'sincinerator standards found in theBoiler and Industnal Furnace Regulations (40 CFR part 266). Therefore, these concerns are considered tobe outside the scope of today's authorization action, andwould be addressed bytheState RCRAbase program.

Therefore, itis EPA's determination that there are no changes required to thisauthorization action as aresult of the comments received.
G. StatusofFederal Permits

Upon the effective date of authorization, the State ofWashington willbegin to administer andenforce corrective action requirements. EPA actionswhich fall under thefederal omnibus authority of section 3005(c)(3) ofRCRA, 42U.S.C. 6925(c)(3), andlor whichare federal enforcement authorities, including actions issued pursuant tosections 3008(h), 3013, or 7003 ofRCRA, 42 U.S.C. 6928(h), 6934

or 6973, will continue tobe administered byEPA. In addition, HSWA amendments for which the State has notbeen authorized will continue to be administered and enforced by EPA.

Due torecent legal developments in the national RCRA hazardous waste program, the discussion that appeared in the proposed rule (March30, 1994, 59FR 14827) concerning permits with automatic transfer provisions hasbeen revised. Allpermits issued by U.S. EPA Region 10priorto final authorization of theState forcorrective action will

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continue tobe administered byU.S. 'EPA Region 10 until the issuance, or reissuance aftermodification, ofthe State RCRA permit. Upon the effective date ofthe issuance, orreissuance after modification, ofthe State RCRA permit
to incorporate authorized State requirements, those EPA-issued permit provisions for which the State is authonzod to administer and enforce will expire. HSWA provisions forwhich the State is not authorized will continue ineffect undertheEPA-issued permit.

H. Decision

I conclude that the State of Washington s application forprogram revision meets all ofthe statutory and regulatory requirements established by RCRA. Accordingly the State of Washington is granted final authorization to operate its hazardous waste program as revised. The State of Washington now has responsibility for permitting treatment, storage, and disposal facilities within itsborders and carrying outother aspectsofthe RCRA program described in its revised program application, subjectto the limitations ofthe HSWA. The State of Washington alsohas primary enforcement responsibilities, although EPA retains the right to conduct inspections under section 3007 of RCRA, 42 U.S.C. 6927 and to take enforcement actions under sections 3008, 3013 and 7003 ofRCRA, 42 U.S.C. 6928,6934 and 6973. Compliance With Executive Order 12866

The Office ofManagement and Budget has exempted this rule from the requirements ofsection 6 ofExecutive Order 12866.
Cettification Under the Regulatory Flexibility Act

Pursuant to the provisions of 4 U.S.C. 605(b), Ihereby certify that this authorization will not have a significant economic impact on a substantial number of small entities. This authorization effectively suspends the applicability ofcertain Federal regulations in favor ofthe State of Washington's program, thereby eliminating duplicativerequirements for handlers ofhazardous waste in the State. It doesnot impose any new burdens on small entities.This rule, therefore, does notrequire a regulatory flexibility analysis.

List ofSubjects in 40 CFR Part272

Administrative practice and procedure, Confidential business information, Hazardous materials transportation, Hazardous waste, Indian lands, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Waterpollution control, Water supply.

Authority: This notice isissued under the authority ofSections 2002(a), 3006 and 7004(b) ofthe Solid Waste DisposalAct, as amended, 42 U.S.C. 6912(a), 6926,6974(b).

Dated: October 17 1994. Chuck Clarke, RegionalAdministrator. (FR Doc.94-27170 Filed 11-2-94; 8:45 am]

BILUNG CODE 6560-60-P

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