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 Authorization of

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 of the requirements

necessary to qualify for final

authorization. Thus, EPA is granting

final authorization to the State of

Washington to operate its expanded

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

of equivalent to RCRA requirements

promulgated under HSWA authority.

States exercising the latter option

receive "interim authorization" for the

HSWA requirements under section

3006(g) of RCRA, 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 or regulatory authority is

modified or when certain other changes

occur. Most commonly State program

revisions are necessitated by changes to

EPA s regulations in 40 CFR parts 124,

260-266, 268 and 270.

B. State of Washington

The State of Washington initially

received final authorization on January

31, 1986. The State of Washington

received authorization for revisions to

its program on November 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 a program

revision application for additional

program approvals. On March 30, 1994,

EPA published a proposal to approve

the State of Washington s application

for program revision in accordance with

40 CFR 271.21(b)(4).

EPA has reviewed the State of

Washington s application, and has made

a final decision that Washington s

hazardous waste program revision

satisfies all of the 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 of the State's

application are provided for information

only.

C. Washington's Corrective Action

Program

The State of Washington s authorized

RCRA program is set forth in Chapter

173-303 of the 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 of Washington

(RCW), Chapters 70.105 and 70.105D.

RCW 70.105D.030(1)(d) is the statutory

provision which allows the State of

Washington Department of Ecology

(Ecology) to carry out all state programs

authorized under the federal RCRA

statute. RCW 70.105.130 designates

Ecology as the agency tasked with

implementing the authorized RCRA

program and provides Ecology with the

authority to establish a permit system

for owners or operators of facilities

which treat, store, or dispose of

dangerous waste. RCW 70.105.020

authorizes Ecology to revise 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 -may compel 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 a state "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

to be specified through the terms 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 of the 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

Federal Program

Ordinarily, States-await promulgation

of Federal regulations prior to

submitting their applications. However,

there is no impediment under the RCRA

statutory provisions which would bar a

State from seeking authorization of a

program in advance of Federally

promulgated regulations provided the

State bases its program on existing

Federal statutory language. An existing

Federal counterpart is the critical nexus

in the authorization program.

Washington's corrective action

program goes slightly beyond the EPApromulgated regulations (see 40 CFR

264.100 and 264.101) which implement

the statutory provisions of sections

3004(u) and [v) of RCRA, 42 U.S.C.

6924(u) and (v), in which facilities

seeking a permit are required to

undertake corrective action for all

releases of hazardous 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 (the Model

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 of sections 3004(u) and (v) of

RCRA, 42 U.S.C. 6924(u) and (v).

The- statutory language of Section

3004(u) of RCRA 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 S corrective action

rule, published in the Federal Register

on July 27 1990 (55 FR 30798), contains

EPA's most current interpretation of key

terms in section 3004(u) of RCRA. This

is and will be the controlling

interpretation against which

Washington's regulatory definition of

solid waste management unit shall be

measured until EPA codifies a statutory

or regulatory definition.

The statutory language of section

3004(u) of RCRA also-applies to

"facilities seeking a permit." Such

facilities include those hazardous waste

management facilities which are

required to obtain permits to operate

and to those subject to post-closure

permits. EPA has interpreted this

language to mean that corrective action

must be specified in operating or postclosure permits issued to such facilities.

State corrective action orders will be

issued to facilities subject to the

Washington State Dangerous Waste

Regulations, codified in the Washington

Administrative Code (WA) in Chapter

173-303, but these orders will rely in

part on the State of Washington's Model

Toxics Control Act (MTCA) statutory

and regulatory provisions and will

require current owners and operators of

SWMUs to conduct corrective action at

those units in accordance with the

Dangerous Waste Regulations.

EPA is not delegating RCRA section

3008(h) authority [42 U.S.C. 6928(h)] as

part of this authorization. No Federal

enforcement authorities are delegated

when EPA authorizes state programs

under section 3006 of RCRA.

Any orders issued to a facility under

MTCA will not be considered to be part

of the EPA-authorized corrective action

.program unless and until they are

incorporated into a RCRA permit. Terms

of the orders which go beyond the scope

of the authorized Dangerous Waste

regulations will be considered broader

in scope, and thus not Federally

enforceable. Federal enforceability does

not affect the ability of the State to

impose requirements pursuant to their

legitimate State statutory authorities or

to enforce those requirements in

lawfully-issued orders or permits.

Some portions of Washington 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 of hazardous

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 or from the facility,

regardless of the source of the release.

Some portions of Washington 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

the Federal requirement.

To clarify Washington will be

authorized for the following provisions

as part of this 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: SW MU, 40 CFR §264.90(a) ...................................................................................................

SW MU. 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 perm its 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 include CAMU, 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 of 40 CFR 264 standards, 40 CFR § 264.3 ................................... Corrective action for SWMU will be specified in permit, including schedules of compliance, 40 CFR

§264.101.

Designation Requirements for CAMU:

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 into permit, 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 in permit, 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 facility boundary, 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 of facility, 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) ..................... ROW 70.105.130(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 and Comments

Although EPA received three requests

for a public hearing, EPA did not find

that the bases for the requests warranted

a public hearing, since the issues raised

were outside the scope of this

authorization action.

EPA received a number of comments

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 the Atomic

Energy Act (AEA) and of hazardous

wastes under RCRA, specifically that

EPA's authorization of the State of

Washington for RCRA corrective action

under the State's Hazardous Waste

Management Act (HWMA) would allow

the Washington Department of Ecology

to "preempt" the State Department of

Health's regulatory authority (delegated

by the Nuclear Regulatory Commission)

over the operation of their facility. The

commenter was also concerned about

certain conflicting state regulatory and

statutory provisions regarding the

regulatory authority of the Department

of Health.

In response, the State of Washington

has not asked that the statutory

provision cited by the commenter [RCW

70.105.240(2)] be authorized as part of

the federally authorized RCRA program.

As such, RCW 70.105.240(2j will not be

part of the federally-authorized state

RCRA corrective action program which

will operate in lieu of the federal RCRA

corrective action program. This will

remain a "state-only" provision and

EPA will not enforce it.

The State of Washington is today

being authorized to implement its

corrective action program in lieu of the

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federal RCRA corrective action program.

The RCRA corrective action program

seeks to address releases of hazardous

waste and constituents from solid waste

management units at a facility.

"Regulated units" are units such as

landfills, waste piles, surface

impoundments, and land treatment

units used to treat, store, or dispose of

RCRA-regulated hazardous wastes and

are subject to full regulation under

subtitle C of RCRA. See 40 CFR 264.90.

"Solid waste management units," or

"SWMUs," are any discernable units at

which "solid wastes".may have been

placed at any time. See 55 FR 30798,

30874, July 27 1990 (proposed RCRA

Subpart S Rule). If EPA determines that

the presence of solid or hazardous waste

at either a regulated unit or a solid

waste management unit has led to a

release or a threatened release of a

hazardous waste orconstituent from

such units, EPA can require the owner

or operator of a unit to address such

releases by taking necessary "corrective

action" at the unit.

EPA s ability to require corrective

action at such units does not mean that

SWMUs are "regulated" under the

RCRA "base program" and therefore

subjected to RCRA permitting

requirements. The RCRA "base

program" consists, in-part, of those

provisions of RCRA that govern the

generation, transport, treatment, storage

and disposal of hazardous wastes. The

RCRA "base program" is considered to

be those provisions of the RCRA

program before the passage of the

Hazardous and Solid Waste

Amendments ("HSWA") of 1984 to

RCRA. HSWA introduced the corrective

action requirements into the RCRA

statute. In contrast and in general, only .,regulated units" and generator

accumulation areas are subject to the

operational requirements of the 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 action program. Therefore, the commenter's concern

that EPA's authorization of the State of

Washington for RCRA corrective action

will allow the Depaertmnt of Ecology to "preempt" the Department of Health's

regulatory authority over the operation

of the commenter's facility is

unfounded. If the State of Washington

wanted to regulate the daily operations

of the facility's radioactive waste

management activities under RCRA, it

would have to do so under the state's

dangerous waste "base" RCRA program. 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 not be allowed to assert

jurisdiction over mixed waste activities

pnor to July 3, 1986, as well. The

commenter cites the State of

Washington's recent definition of "solid

waste management unit" which was

added to the State's Dangerous Waste

regulations, which "means any

discernable location at a facility, as

defined for the purposes of corrective

action, where solid wastes have been

placed at any time. "(emphasis

added). The commenter further states

that "the preamble to EPA s corrective

action rule did not attempt to

retroactively apply-EPA's jurisdiction

over mixed waste prior to July 3, 1986."

In response, EPA has consistently

interpreted the radioactive mixed waste

to be a solid waste under RCRA for the

purposes of RCRA corrective action (see

55 FR 30798 at 30860, July 27 1990 and

51 FR 24504 Footnote #1, July 3, 1986).

Therefore, it is clear that EPA considers

radioactive mixed waste to be a solid

waste under RCRA for purposes of

RCRA corrective action. Corrective

actions under RCRA which address

releases from solid waste management

units are not limited to releases of

hazardous waste or constituents after

any certain date. EPA's proposed

definition of a "solid waste management

unit" In EPA's proposed Subpart S rule

(see 55 FR at 30808-30809) and the State

of Washington's promulgated definition

of a "solid waste management unit" in

its Dangerous Waste Regulations (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 at a facility]

at which solid wastes have been placed

at any time, irrespective of whether the unit

was intended for the management of solid or

hazardous [dangerous] waste.

Thus, EPA s determination that the

hazardous component of radioactive

mixed waste was regulated and subject

to permitting requirements of Subtitle C

of RCRA in 1986 does not affect EPA's

ability (or a state's ability when that

state has been authorized for corrective

action under RCRA) to require

corrective action for the hazardous

component of radioactive solid waste at

SWMUs where such waste was disposed

of before 1986.

EPA, in its authorization of the State

of Washington for RCRA 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 of past releases)

jurisdiction; which is not RCRA

operational (day-to-day waste handling

and management) jurisdiction, over

solid waste (which includes the

hazardous component of radioactive

mixed waste) at solid waste

management units at facilities seeking

permits under RCRA. The State of

Washington received final authorization

for RCRA operational jurisdiction over

radioactive mixed waste on November

23, 1987

A commenter pointed out that EPA

was not authorizing the State of

Washington at this time for the

"omnibus" authority of section

3005(c)(3) of RCRA,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 of RCRA, 42 U.S.C.

6928(h), 6934, and 6973, to ensure

protection of human health and the

environment, empower EPA to ensure

that all releases of hazardous waste are

addressed. These statutory authorities

-are independent from EPA s oversight of

the authorized state corrective action

program. Should EPA decide that

assertion of EPA 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 or the, environment.

However, EPA does not anticipate that

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it will have to exercise such authority

very often, given the protectiveness

embodied in the State's MTCA statute

and the manner in which the State has

implemented the MTCA program.

A commenter questioned that once a

State-issued order is incorporated by

reference into the facility's RCRA

permit, can that order be amended

without a corresponding modification of

the RCRA permit.

In response, at the time the State

order is incorporated by reference into

a RCRA permit, the order becomes

subject to all permitting requirements,

including public participation

requirements required for permit

modifications. This includes any Stateissued orders designating a corrective

action management unit (CAMU) or

temporary unit (TU). Therefore, if at

some time after incorporation by

reference into a RCRA permit, it is

determined that the incorporated order

must be changed, such a change will

require a permit modification as well.

The class of permit modification

required, along with the extent of public

participation required by such a

modification, will be determined using

the State regulations. A commenter requested clarifiation

of the public participation process to be

used by the State under the authorized

correctiveaction program. Specifically,

the commenter pointed out that MTCA

orders have their own public

participation process. The commenter

queried whether there would be a

second public participation process at

the time such order would be

incorporated into a RCRA permit. The

commenter also queried to what extent

the public..vould be able to comment on

the previously issued order at the time

of permit issuance or modification; 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 is referred

to the Program Description contained in

this application for authorization,

wherein Washington's Department of

Ecology explains how public

participation goals and requirements

will be met. In brief, the State will

follow only the existing MTCA public

participation requirements (which are

extensive) when a MTCA order is issued

prior to permit issuance. Since that is

not a RCRA permit action, there are no

RCRA permit public participation

requirements which apply. At the time

the order is incorporated into a-RCRA

permit through permit modification, or

if the order is 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 at that time.

However, public comment at that time

will be limited to whether the

incorporated MTCA terms, schedules

and conditions appropriately fulfill

corrective action requirements of the

authorized State RCRA program. Public

comment on the MTCA terms,

schedules and conditions will not affect

the ability of the state to enforce the

MTCA order under MTCA authority,

independent of the authorized RCRA

corrective action program. At the time

the MTCA order is incorporated into a

RCRA permit, and at any time thereafter

for the life of the RCRA permit, Ecology

will ensure that the public participation

procedures under RCRA and MTCA are

coordinated to eliminate duplication of

effort and fulfill RCRA requirements.

A commenter questioned how

authorization of the State program

would be affected by EPA's

promulgation of a final federal rule

regarding corrective action. The

commenter also questioned whether

EPA intended to use the proposed

subpart S corrective action rules to

measure the State's "consistency" with

the federal corrective action program;

and what EPA intended when EPA

stated in its Notice of Proposed

Rulemaking that EPA's proposed

definition of a SWMU "will be the

controlling interpretation against wich

Washington's regulatory definition of a

solid waste management unit will be

measured until EPA codifies a statutory

or regulatory 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 for a revision of the 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 to use its proposed subpart S

rules (55 FR 30798, July 27 1990) as the

measure of consistency in order 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

not yet been finalized. EPA cannot

authorize nor enforce the provisions of

Subpart S.-However, EPA is currently

using the provisions contained in the

proposed Subpart S rule as gudance

when conducting federal corrective

actions.

Two commenters raised concerns

regarding the State of Washington's

siting criteria fornew hazardous waste

facilities. In response, the proposed

approval and authorzation of

Washington's hazardous waste program

revision is for a corrective action

program. Since the corrective action

program under RCRA is intended to

address clean up of releases of

hazardous waste at existing hazardous

waste facilities, the commenters'

concerns regarding siting of new

facilities are outside the scope of this

current authorization action. The State's

siting criteria are State regulations

which have no federal counterpart, and

as such are not part of the federal RCRA

program.

A commenter raised concerns

regarding Hanford, specifically with

respect to the burial of decommissioned

reactor cores, and regarding incinerator

standards. In response, EPA today is

approving and authorizing the state for

a RCRA corrective action program.

EPA's authorization today does not

directly address cleanup decisions at

Hanford, the disposal of

decommissioned reactor cores, nor

-EPA's incinerator standards found in

the Boiler and Industnal Furnace

Regulations (40 CFR part 266).

Therefore, these concerns are

considered to be outside the scope of

today's authorization action, and would

be addressed by the State RCRA base

program.

Therefore, it is EPA's determination

that there are no changes required to

this authorization action as a result of

the comments received.

G. Status of Federal Permits

Upon the effective date of

authorization, the State of Washington

will begin to administer and enforce

corrective action requirements. EPA

actions which fall under the federal

omnibus authority of section 3005(c)(3)

of RCRA, 42 U.S.C. 6925(c)(3), andlor

which are federal enforcement

authorities, including actions issued

pursuant to sections 3008(h), 3013, or

7003 of RCRA, 42 U.S.C. 6928(h), 6934

or 6973, will continue to be

administered by EPA. In addition,

HSWA amendments for which the State

has not been authorized will continue to

be administered and enforced by EPA.

Due to recent legal developments in

the national RCRA hazardous waste

program, the discussion that appeared

in the proposed rule (March 30, 1994,

59 FR 14827) concerning permits with

automatic transfer provisions has been

revised. Allpermits issued by U.S. EPA

Region 10 prior to final authorization of

the State for corrective action will

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continue to be administered by U.S.

'EPA Region 10 until the issuance, or

reissuance after modification, of the

State RCRA permit. Upon the effective

date of the issuance, or reissuance after

modification, of the 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 for which

the State is not authorized will continue

in effect under the EPA-issued permit.

H. Decision

I conclude that the State of

Washington s application for program

revision meets all of the 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 its borders and

carrying out other aspects of the RCRA

program described in its revised

program application, subject to the

limitations of the HSWA. The State of

Washington also has 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 of RCRA, 42 U.S.C.

6928,6934 and 6973.

Compliance With Executive Order

12866

The Office of Management and Budget

has exempted this rule from the

requirements of section 6 of Executive

Order 12866.

Cettification Under the Regulatory

Flexibility Act

Pursuant to the provisions of 4 U.S.C.

605(b), I hereby certify that this

authorization will not have a significant

economic impact on a substantial

number of small entities. This

authorization effectively suspends the

applicability of certain Federal

regulations in favor of the State of

Washington's program, thereby

eliminating duplicative requirements for

handlers of hazardous waste in the

State. It does not impose any new

burdens on small entities. This rule,

therefore, does not require a regulatory

flexibility analysis.

List of Subjects in 40 CFR Part 272

Administrative practice and

procedure, Confidential business

information, Hazardous materials

transportation, Hazardous waste, Indian

lands, Intergovernmental relations,

Penalties, Reporting and recordkeeping

requirements, Water pollution control,

Water supply.

Authority: This notice is issued under the

authority of Sections 2002(a), 3006 and

7004(b) of the Solid Waste Disposal Act, as

amended, 42 U.S.C. 6912(a), 6926,6974(b).

Dated: October 17 1994.

Chuck Clarke,

Regional Administrator.

(FR Doc. 94-27170 Filed 11-2-94; 8:45 am]

BILUNG CODE 6560-60-P

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