Memorandum

of Agreement

Between the

State of Washington

and the

US EPA Region 10

Signed and Dated: State of Washington 7-19-99

EPA 9-24-99
Memorandum of Agreement Between

The State ofWashington

And

The United States Environmental P.rotection Agency Region 10

Table of Contents

I. General 1

II. Policy Statement 2

III. Implementation of the Dangerous Waste Program on' the Puyallup .4

Reservation non-trust Lands

A. Responsibilities 4

B. Implementation Strategy for Lead Regulatory Agency Changes .4

IV. State Program Review 6

A. General 6

B. Identification of Priority Activities 6

State 8

RCRIS · 9

Site Visits 10

EPA 7

Emergency Situations 10

Confidentiality 10

Information Sharing ................................•.......................................................7

A. General 7

B.

C.

D.

E.

F.

G.

V.

VI. Permit Issuance 11

A. EPA Permitting 11.

B. EPA Oversight of State Permits 11

C. State Permitting ! ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••13

D. Joint Permitting Process 14

VII. Permit Administration 14

A. EPA 14

B. State 14
MOA Table ofContents (continued)

VIII. Corrective Action Program Implementation 15

A. General Corrective Action Policy 15

B. Coordination with EPA and Transition from Federal 15

Administration to State Administration of Corrective Action

C. RCRA Facility Assessments (RFAs) 16

D. Corrective Action Implementation Process 16

E. Corrective Action Financial Assurance 17

F. Public Participation in Corrective Action Remedy Selection 17

G. Cleanup Standards and Levels, and Remedy Selection 17

H. Coordination of State and Federal Actions 18

I. Applicable, Relevant and Appropriate Requirements (ARARs) ..19

J. Corrective Action Requirements in State Issued Permits 19

IX. Other Federal Laws That May Apply to Issuance of Permits 19 r

X. Compliance Monitoring and Enforcement 19

A. EPA 20

B. State 21

XI. Availability ofInformation 22

A. General 22

B. Requests for Information · 22

C. Confidentiality ofBusiness Information 23

D. Oversight ........................................................................•..23

XII. Dispute Resolutions 24

XIII. Provisions for Modification ofthe MOA 24

XIV. Disclaimer 24

Appendix A Federal Register November 4, 1994, 59 FR 55322
MEMORANDUM OF AGREEMENT BETWEEN

THESTATE OFWASHINGTON

AND

THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION 10

I. GENERAL

This Memorandum of Agreement (hereinafter "Agreement") establishes policies, responsibilities,

and procedures pursuant to 40 CFR 271.8 for the State of Washington Hazardous Waste Program

(hereinafter "State Program") authorized under Section 3006 of the Resource Conservation and

Recovery Act (hereinafter "RCRA" or "the Act") of 1976 (42 USC 6901 et seq.), as amended

(Public laws 94-580, 96-482, 98-616), and the United States Environmental Protection Agency

(hereinafter "EPA") Regional Office for Region 10. This Agreement further sets forth the manner

in which the State and EPA will coordinate in the State's administration and enforcement of the

State program and, pending State authorization, EPA's administration of the provisions of the

Hazardous and Solid Waste Amendments of 1984 (HSWA). For purposes of this Agreement,

references to RCRA include HSWA.

This Agreement is entered into by the Director of the Washington Department of Ecology

(hereinafter "Director" or "the State") and the Regional Administrator, EPA Region 10 (hereinafter

"Regional Administrator" or "EPA"). This Agreement does not establish privity between EPA and

the State and does not restrict EPA's independent enforcement authority. No waiver of sovereign

immunity is implied or assumed by this Agreement.

The authorized Program in this Agreement includes State implementation of the dangerous waste

program on non-trust lands within the 1873 Survey Area of the Puyallup Reservation as defined in

the settlement agreement between the Puyallup Tribe, Federal, State, and local governments dated

August 27, 1988 (Settlement Agreement). The Settlement Agreement was ratified by Congress and

incorporated in Federal law on June 21, 1989, as the Puyallup Tribe of Indians Settlement Act of

1989,25 U.S.C. Sections 1773, et. seq. (Settlement Act), and where not provided therein as

otherwise provided by Federal law. The authorized program does not extend to Indians or Indian

activities within the 1873 survey area. EPA retains primary responsibility for implementing RCRA

on the trust lands, and over Indians and Indian activities on the non-trust lands within the 1873

Survey Area. The authorized program does not extend to any other Indian lands or activities within

the State.

Nothing in this Agreement shall be construed to restrict in any way EPA's authority to fulfill its

oversight and enforcement responsibilities under RCRA. Nothing in this Agreement shall be

construed to contravene any provision of 40 CFR Part 271.

The parties will review the Agreement jointly at least once a year (and other times as appropriate)

during preparation of the annual State grant work program, in connection with grant funding under

Section 3011 of RCRA.

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This Agreement will be signed by the State and the Regional Administrator and will become

effective at the time the State's authorization takes effect, which will be the date set out in the

Federal Register notice of the Regional Administrator's decision to grant authorization to the State.

This Agreement will supersede the Agreements dated January 31,1986; July 25,1988; October 17,

1994; and June 23, 1998.

II. POLICY STATEMENT

Each of the parties to this Agreement is responsible for ensuring that its obligations under RCRA

are met. Upon granting of final authorization by EPA, the State assumes primary responsibility for

implementing the authorized provisions of the RCRA hazardous waste program within its

geographic boundaries, including those Puyallup non-trust lands within the 1873 Survey Area,

pursuant to the Settlement Agreement and Settlement Act (see Section III for more details). The

authorized program does not extend to any other Indian lands or activities within the State. EPA

retains primary responsibility for implementing RCRA on Indian lands, other than the non-trust

lands within the 1873 Survey Area, trust lands and over Indians and Indian activities within the

State borders. .

The State will implement its program using Ecology's letter to the governor dated December 10,

1997 whereby Ecology deemed that House Bill 1010 conflicted with the authorized program, and

thereby deemed those portions of House Bill 1010 inoperable. EPA retains its responsibility to

ensure full and faithful execution of the requirements of RCRA, including direct implementation of

HSWA in the event the State is not authorized to act. The State and the Regional Administrator

agree to maintain a high level of cooperation and coordination between their respective staffs in a

partnership to assure successful and effective administration of the State program.

Section 3006(g) of RCRA provides that hazardous waste requirements and prohibitions

promulgated pursuant to HSWA are applicable in authorized States at the same time that they are

applicable in unauthorized States. While EPA retains responsibility for the direct implementation

of those provisions of HSWA which the State is not authorized to implement, it is the intention of

EPA and the State to coordinate the implementation of such provisions to the greatest degree

possible.

With regard to the Corrective Action portion of Washington's authorized program, the State and

EPA have developed an innovative and precedent setting program for implementation of RCRA

corrective action requirements at dangerous waste management facilities in Washington. (See

Section vm for Corrective Action Program Implementation details).

EPA will oversee implementation of the authorized State program in order to: ensure full execution of the

requirements of RCRA; promote national consistency in implementation of the hazardous waste

program; allow EPA to report to the President and Congress on the achievements of the hazardous waste

program; and, encourage States and EPA to agree on desirable technical support and targets for joint

efforts to prevent and mitigate environmental problems associated with the improper management of

hazardous wastes. Oversight will be accomplished by EPA through written reporting requirements (midyear and end-of-year reports), permit overview, compliance and enforcement overview, and annual

review of the State's programs. To the extent feasible, EPA and Ecology will use Regional Sites

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Meetings as a means of informal communication for ongoing oversight of grant commitments. EPA will

keep the State informed of the content and meaning of Federal statutes, regulations, guidelines, standards,

policy decisions, directives, and any other factors that affect the State program. EPA will also provide

general technical guidance to the State as agreed to in the annual work program. EPA will share with the

State any national reports developed by EPA from the data submitted through State reporting

requirements. EPA will provide the State with information (within its control) prior to public information

releases, where such releases of information could impact the State's program or projects.

EPA agrees to conduct its oversight of the Washington State Program in a manner consistent with

the EPA Region 10 Oversight Policy and any subsequent StatelEPA agreed to oversight guiding

principles and criteria. Nothing in this MOA, or in any attachments hereto or other documents or

agreements referenced in this MOA shall be construed to restrict EPA's authority to fulfill its

oversight obligations nor to contravene the requirements of 40 CFR Part 271. In addition, the

following principles will apply:

Focus on Overall Performance- EPA will be concerned with the overall performance and

environmental results achieved by Washington's Program. The oversight process will focus on

individual procedures or actions only as indicators of overall program performance, or where

actions involve significant national issues.

Respect State Technical Judgments- EPA will respect the judgments of State technical staff,

unless statutory requirements call for direct EPA involvement in project decisions or the

technical issue has significant policy implications.

Use Specific Performance Criteria- EPA will specify the criteria, after consultation with the

State, that will be used to assess State program performance and include these annually in the

Performance Partnership Agreement or negotiated work plans as appropriate. Useful oversight

can occur only if the State and EPA understand in advance about specific standards of

performance to be met and how success in meeting them should be measured.

Emphasis on Strong, Informal EPA/State Relationships- EPA Region 10 has a unique ability,

because of its Operations Offices, to rely on informal working relationships as an oversight

mechanism. The use of formal written reports will be kept to the minimum necessary for the

timely assessment and resolution of environmental problems and progress. Washington will also

be encouraged to participate in the oversight of its own program through joint audits and to

evaluate EPA's performance in providing assistance and meeting commitments.

EPA will Retain Responsibility- EPA is responsible under statute for ensuring the consistent

application and enforcement of national standards. If direct EPA action is necessary to ensure

that environmental laws are carried out, such action will be taken, with appropriate consultation

with the State.

HB 1010- Ecology will adhere to the interpretation of Washington HE 1010 contained in

Ecology's letter to Washington's governor dated December 10, 1997, whereby Ecology deemed

HBlOlO to have conflicts with the authorized RCRA program, and deemed those portions of

HB1010 to be inoperable.

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I

I

I

III. IMPLEMENTATION OF THE DANGEROUS WASTE PROGRAM ON THE

PUYALLUP RESERVATION NON·TRUST LANDS

A. Responsibilities

The State has primary authority for implementing its authorized program on the non-trust lands

within the 1873 Survey Area of the Puyallup Reservation as defined by the Settlement Agreement,

the Settlement Act, and where not provided therein as otherwise provided by Federal law. The

authorized program does not extend to Indians or Indian activities within the 1873 Survey Area.

EPA retains primary responsibility for implementing RCRA on the trust lands, and over Indians and

Indian activities on the non-trust lands within the 1873 Survey Area. The authorized program does

not extend to any other Indian lands or activities within the State.

EPA agrees to initiate an appropriate mechanism to prevent anyauthority gaps when a person, as

defined in WAC 173-303-040 or 40 CPR '260.10, who manages hazardous waste is affected by a

change from State to Federal jurisdiction. The State and EPA agree to communicate all such

jurisdictional changes to the Puyallup Tribe. EPA Region 10 will adhere to its EPA Indian Policy

dated March 14, 1994, and its commitment to working with Federally recognized tribes ona

government-to-government basis to enhance environmental protection.

B. Implementation Strategy for Lead Regulatory Agency Changes

The following is the agreed upon strategy for how the EPA and Ecology will share information and

communicate all jurisdictional changes within the 1873 Survey Area of the Puyallup Reservation.

A person who manages hazardous waste is required to notify the regulatory lead agency of a change

pursuant to notice requirements for treatment, storage, and disposal (TSD) facilities at WAC 173-

303-805(7), WAC 173-303-810(14), or 40 CPR 270.30(1)(3); or through generator notification

requirements pursuant to WAC 173-303-060(2),40 CPR 270.1(b) or 270.70(a)(1).

Communication between EPA, Ecology, and the Puyallup Tribe will be maintained when a person

who manages hazardous waste gives notice regarding land acquisition, changes of operator/owner,

and/or affected activities that result in a change of the lead regulatory agency.

1. Implementation Strategy Protocol

The following information and procedures will be used when a person who manages

hazardous waste gives notice of a change that results in a change of the lead regulatory

agency:

a. Within 15 working days from when the lead regulatory agency receives notice of

a change, the notice will be shared with appropriate staff of EPA, Ecology, and the

Puyallup Tribe.

b. Based on the notification of change, the new lead regulatory agency will prepare a

letter to the "notifier" identifying themselves as the new lead regulatory agency. This

letter will be copied to the former lead regulatory agency and the Puyallup Tribe.

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c. The new lead regulatory agency will be responsible for updating the RCRIS

database with corresponding data entry change requirements.

2. Permit Conditions

Advance notification by the facility of any planned transfer in ownership interest or

operational control at a permitted facility will assist EPA and Ecology. If, as a result of the

transfer, the jurisdiction for the permit's lead regulatory agency changes, the new lead

regulatory agency will determine, in accordance with applicable permitting requirements,

whether to modify the existing permit or revoke and reissue the permit, or if there is cause,

terminate the permit. The permit will identify the new lead regulatory agency. EPA will

consider consistency with State law in decisions made at facilities and for generators for

which EPA has jurisdictional authority.

The EPA and Ecology agree that all RCRA permits within the 1873 Survey Area of the

Puyallup Reservation boundary, except for those on trust lands within the Survey Area, will

include the following permit conditions:

"In accordance with reporting requirements in WAC 173-303-81O(14)(c) and 40 CFR

270.30(1)(3), the Permittee will provide notice to the Director and the Regional

Administrator prior to transfer of ownership interest or operational control of this permit to

any person. The Director or the Regional Administrator may require modification, or

revocation and reissuance of the permit, or incorporate other requirements as may be

necessary in accordance with procedures in WAC 173-303-830 and 40 CFR Part 270

Subpart D." and,

"EPA will become the regulatory authority if the facility's notice results in a State to Federal

jurisdictional change. Ecology will become the regulatory authority if the facility's notice

results in a Federal to State jurisdictional change."

3. Cleanup Implications for Contamination Crossing Jurisdictional Boundaries

On occasion, offsite contamination raises concerns for regulatory agencies. Therefore,

whenever contamination from one parcel crosses boundaries of regulatory jurisdiction and

affects another parcel, notification will be made to EPA,Ecology, and the Puyallup Tribe.

EPA and Ecology agree to provide each other with pertinent information to determine the

best strategy for such affected parcels. In some instances, dual jurisdiction may exist. Both

agencies intend to provide consistent environmental protection. The agencies will use

protective cleanup approaches and levels as referenced in Federal or State law or guidance.

Discussions between agency staff will be the starting point for all such decisions including

active communication with the Puyallup Tribe.

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IV. STATE PROGRAM REVIEW

A. General

The Regional Administrator will assess the State administration and enforcement of the hazardous

waste program on a continuing basis for equivalence and consistency with RCRA, this Agreement,

and all applicable Federal requirements and policies, and for adequacy of enforcement. This

assessment will be accomplished by EPA review of information submitted by the State in

accordance with this Agreement and the State grant work program, permit overview, compliance

and enforcement overview, and annual review of State program activities. The Regional

Administrator may also consider, as part of this regular assessment, written comments about the

State's program administration and enforcement that are received from regulated persons, the

public, and Federal, State and local agencies. Copies of any such comments received by the

Regional Administrator will be provided to the State.

To ensure effective program review, the State agrees to allow EPA access to all files and other

information requested by the Regional Administrator Of his or her designee and deemed necessary

by EPA for reviewing State program administration and enforcement.

Review of Department of Ecology files may be scheduled at quarterly intervals. Program review

meetings between the State and the Regional Administrator or their assignees will be scheduled at

reasonable intervals not less than annually to review specific operating procedures and schedules, to

resolve problems and to discuss mutual program concerns.

These meetings will be scheduled at least fifteen days in advance unless agreed to differently. EPA

will prepare a tentative agenda for the meetings and will give Ecology a chance to review and add

agenda items.

B. Identification of Priority Activities

The State and EPA agree to develop, on an annual basis as a part of the State grant work program,

criteria for addressing EPA-priority activities, including activities regarding handlers of hazardous

waste. These criteria will be based on guidance issued by EPA in the annual Agency Operating

Year Guidance and other guidance documents as may be appropriate, and will serve to identify

those activities which should receive the highest priority during the grant period. Examples of

activities which will be considered high priority will include, but not be limited to, facilities to be

inspected, facilities requiring corrective action work, facilities to be permitted, and enforcement

against facilities with known or suspected ground-water contamination.

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V. INFORMATION SHARING

A. General

As the respective information needs of the State and EPA evolve, changes to this section of the

Agreement may be appropriate. During the annual review of this Agreement the State and the

Regional Administrator will carefully examine the following information sharing provisions for

needed revision.

B. EPA

1. EPA will generally keep the State informed of the content and meaning of Federal statutes,

regulations,guidelines, standards, policy decisions, directives, and any other factors that affect the

State program. EPA will also provide to the State general technical guidance and training

applicable to new regulations on an as-needed basis. EPA will share with the State any national

reports developed by EPA from the data submitted through State reporting requirements. EPA

will provide the State with information (within its control) prior to public information releases,

where such releases of information could impact the State's program or projects.

2. The State and EPA have agreed to a joint permitting process (see Section VI. D.) of this

Agreement). Under this process the State and EPA have established policies and procedures

by which each will pursue their respective and/or joint responsibilities under HSWA.

The State and EPA agree to the sharing of information as specified in this MOA and the

annual State grant work program. When requested by the State, information including, but not

limited to, the following will be provided:

a. Part A and Part B permit applications, whether received prior to the effective date of

this Agreement or subsequent to the effective date of this Agreement and whether first

received by the State or EPA;

b. Such other information necessary to support the foregoing information;

c. Copies of draft permits, proposed permit modifications, public notices;

d. Copies of final permits and permit modifications;

e. Notices of permit denials;

f. Emergency permits;

g. Closure plans, clean. closure determinations, Notices of Deficiency (NOD), and closure

equivalency 'determinations;

h. Visual site inspection (VSI) and RCRA facility assessment (RFA) draft and final

reports and remedy selection documents; and

1. Notice of violation (NOV), notices to CERCLA off-site facilities, orders, independent

reports and actions including enforcements, and citizen concerns.

3. EPA agrees to provide to the State copies of any reports and data, including enforcement

sensitive information (see Sections C.S., C.6., and G.3. below), resulting from compliance

inspections within sixty days of completion of the inspections.

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4. EPA agrees to refer requests for assistance with obtaining an EPNState ID number to

Ecology. EPA will forward any original ECY 030-5 forms received to Ecology within 10

working days. EPA will also contact any new notifier completing an EPA Form 8700-12 to

let them know the correct form to complete and give the name of the State contact person

within 10 working days.

5. EPA will make available to the State other relevant information as requested which the State

needs to implement its approved program. Information provided to the State will be subject

to the terms of 40 CFR Part 2.

C. State

1. The State agrees to inform the Regional Administrator in advance of any proposed program

changes that would affect the State's ability to implement the authorized program. Program

changes of concern include modification of the State's legal authorities (i.e., statutes,

regulations and judicial or legislative actions affecting those authorities), modifications of

Memoranda of Agreement or Understanding with other agencies, and modifications of

resource levels (i.e., available or budgeted personnel and funds). The State recognizes that

program revisions must be made in accordance with the provisions of 40 CFR 271.21, and

that until approved by EPA, revisions are not authorized as RCRA Subtitle C requirements.

2. Annually, through development of the State grant work program, EPA and the State will

agree on the type and frequency of reports the State will make in order for EPA to maintain

oversight of the implementation of the State's authorized program. Such reporting will

include, but not be limited to, the following:

a. Compliance monitoring and enforcement information (see subsection on RCRIS

below);

b. Information indicating the status of the State's permitting, closure, post-closure, groundwater monitoring and corrective action activities (see subsection on RCRIS below);

c. Various reports designed to accurately describe the status of the State's authorized

program including biennial reports summarizing the quantities and types of hazardous

. waste generated, transported, treated, stored and disposed in the State; and

d. Additional reports as negotiated in the annual State work plan, and updated facility

status information as necessary.

3. The State agrees to require new generators, transporters, and hazardous waste management

facilities to obtain identification numbers consistent with the Dunn and Bradstreet Data

Universal Numbering (DUN) system for businesses and General Service Administration Real

Property Number, or equivalent, for governmental agencies. Pursuant to Section 3010 and

according to agreements between EPA and Washington State, the State is responsible for

receiving, processing, and verifying information on notification forms (Washington State

Form 2) and for assigning EPA identification numbers. The State will receive and review all

new and revised notifications of dangerous waste activities and provide this information to

the Regional Administrator within (20) working days of receipt. .

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4. The State agrees to provide EPA with a copy of any decisions regarding requests made by

hazardous waste handlers to change their classifications (e.g., requests to be deleted as

generators but to retain facility status) and copies of facility requests to make on-site changes

prior to permit issuance (e.g., requests to handle additional wastes not identified on the

facility's original notification and RCRA Part A Permit Application.)

5. The State agrees to provide EPA with copies of reports on data resulting from any compliance

inspection and subsequent enforcement actions, when EPA requests such copies. The State

agrees to provide EPA with copies of enforcement actions upon request within 60 days of

issuance and in accordance to the StatelEPA Compliance Assurance Agreement.

6. As a law enforcement agency the State agrees to treat enforcement sensitive information

received and so marked by EPA in accordance with the State's Public Disclosure Act, chapter

42.17 RCW, which provides for exceptions of information for public disclosure.

7. The State agrees to provide any pertinent information requested by the Regional

Administrator or his or her designee within a mutually agreed upon time frame, as necessary

for EPA to carry out its oversight responsibilities. Unless otherwise agreed upon, the above

information will be sent to: Director, Office of Waste and Chemicals Management, EPA

Region 10, 1200 6th Avenue, Seattle, WA 98101-1128.

8. The State agrees to provide EPA with a copy of each State decision regarding variances and

waivers at the time such requests are granted. Any request for a variance or waiver

concerning a RCRA regulated waste will be sent to the Region 10 EPA office in Seattle for

written comment before issuance. The department will respond in writing to any comments

or concerns raised in the EPA review. All written responses will be provided to EPA before a

variance or waiver in issued.

D. RCRIS

RCRIS is a national database developed by EPA to provide an automated information management

system for the storage, tracking, and analysis of data relating to State and Federal hazardous waste

program activities. The system is designed to provide information needed to support Ecology and

Region 10 in implementing the Resource Conservation and Recovery Act (RCRA), as well as

information .needed by Region 10 and EPA Headquarters for their oversight functions.

EPA Region 10 and the Department of Ecology will follow the terms of the RCRIS Memorandum

of Understanding (MOD). The purpose of the MOU is to define the terms and responsibilities for

the management "Of required data using the RCRIS system. Nothing in the RCRIS MOU will be

interpreted to contravene the requirements of 40 CPR Part 271.

E. Site Visits

EPA is responsible for maintaining reliable national data on hazardous waste management. This

data is used to report to the President and Congress on the achievements of the hazardous waste

9
program and to support EPA's regulatory development efforts. Whenever EPA determines that it

needs to obtain certain information, EPA will first seek to gain this information from the State. The

State of Washington agrees to supply the Regional Administrator with this information, if readily

available and as resources allow. If the State is unable to provide the information or if it is

necessary to supplement the State information, EPA may conduct a special surveyor perform

information collection site visits after notifying the State. EPA will share with the State any

national reports developed by EPA as a result of such information collection.

F. Emergency Situations

Upon receipt of any information that the handling, storage, treatment, transportation, or disposal of

hazardous waste is endangering human health or the environment, the party in receipt of such

information will immediately notify by telephone the other party(ies) to this Agreement of the

existence of such situation. The appropriate contact person for Ecology will be the HWTR Program

Manager; his EPA equivalent will be the appropriate contact person for Region 10.

G. Confidentiality

1. Any information obtained or used in the administration of the State program will be available

to EPA upon request without restriction. If the information has been submitted to the State

under a claim of confidentiality, the State must submit that claim to EPA when providing

information. Any information obtained from the State and subject to a claim of

confidentiality will be treated in accordance with the regulations in 40 CPR Part 2.

. 2. EPA agrees to furnish to the State information in its files which is not submitted under a

claim of confidentiality and which the State needs to implement its program. Subject to the

conditions in 40 CPR Part 2, EPA will furnish the State information submitted to EPA under

a claim of confidentiality which the State needs to implement its program. All information

EPA agrees to transfer to the State will be transferred in accordance with the requirements of

40 CPR Part 2. EPA will notify affected facilities when such information is sent to the State.

The State will handle such information consistent with its authorized program and with the

terms of this MOA.

3. Except for criminal referrals and court specified materials, EPA agrees to provide

enforcement sensitive information to the State. Enforcement sensitive information may

include information, written or otherwise, that concerns potential or pending enforcement

action. When a formal enforcement action is taken, any document publicly filed and

correspondence with the respondent, except for such documents and correspondence as would

be entitled to privilege from discovery, is no longer considered enforcement sensitive. EPA

will clearly indicate in writing which documents or other types of information provided to the

State are enforcement sensitive at the time they are provided. EPA will also notify the State

in writing when any document is no longer considered enforcement sensitive. For any

document considered by EPA to be enforcement sensitive, EPA will exercise its discretion on

whether to release that document.

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VI. PERMIT ISSUANCE

A. EPA Permitting

Upon authorization of the State program, EPA will suspend issuance of Federal permits for

hazardous waste treatment, storage, and disposal facilities for which the State is receiving

authorization. IfEPA promulgates standards for additional regulations mandated by HSWA that

are not covered by the State's authorized program, EPA will issue and enforce RCRA permits in the

State for these new regulations until the State receives final authorization for equivalent and

consistent State standards. If EPA promulgates new standards requiring a permit modification, then

EPA may, pursuant to 40 CFR 270.42(b)(6)(vii), extend the time period for final approval or denial

of a modification request until such time that the State receives authorization for the new standards.

At the time the State program is approved in the new areas, EPA will suspend issuance of Federal

permits in the State. At the time the State program is approved in the new areas, EPA and the State

will develop a strategy resulting in the transfer of permits and permitting documents for those

affected facilities. This strategy will include a timeline for transferring those permits and permitting

documents to the State program and any pending permit applications, completed permits, or

pertinent file information in conformance with the conditions of this Agreement.

The State and EPA have agreed to a joint permitting process (see Section VI.D. of this Agreement)

for the joint processing and enforcement of permits for those provisions of RCRA for which the

State does not have authorization. As the State receives authorization for additional provisions of

RCRA, EPA will suspend issuance of Federal permits in the State for those provisions.

B. EPA Oversight of State Permits

EPA's oversight function will focus primarily on those facilities identified by the State and EPA in

the approved annual State Grant Work Plan and the State's Program Description. The State and

EPA will usually reach concurrence on permit conditions prior to issuance of the draft permit or

approval of proposed permit modifications. EPA may comment in writing on any draft permit or

proposed permit modification, within forty-five days of its receipt, whether or not EPA commented

on the permit application. EPA agrees that it is desirable to have a communication point of contact

in working through the draft permit.

For all RCRA permit actions written and issued on TSD facilities by the State of Washington, there

will be three opportunities for EPA review:

1) The first opportunity for review will be of the draft application submitted by the TSD facility

prior to completeness determination by the State. EPA will review the draft application to aid

in determining if all appropriate technical information has been provided. The purpose of this

review is to avoid a situation where a permit is drafted and then cannot be issued due to a lack

of information or inadequate information in an application. EPA's review comments will

include the following: 1) ajustification, based on guidance or regulation, why additional or

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different information is necessary, and 2) a specific description of what changes need to be

made in order to determine the application complete. These comments must be submitted in

writing to the State in accordance with the application review schedule established by the

State.

2) The second opportunity for review will be of the initial draft of the permit prior to the public

notice process. This is an informal review, the primary purpose of which is to identify any

issues concerning the intent of RCRA that should be resolved prior to the permit going to

public comment. EPA will include in their comments the following: 1) a statement of the

reasons for the comment (including the section of RCRA and the State regulations that

support the comment); 2) the action that should be taken by the State in order to address the

comments (including the conditions which the permit would include if it were issued by

EPA). EPA will respond during this review period in accordance with the review schedule

set by the State.

3) The third opportunity for review is the formal review of the draft permit during the public

comment period. During this review EPA may comment in writing on any draft permit or

proposed permit modification, whether or not EPA commented on the permit application.

Where EPA indicates in a comment that issuance, modification, reissuance, termination or denial of

the permit would be inconsistent with the approved State program, EPA will include in the

comment:

1. A statement of the reasons for the comment (including the section of the State law or

regulations that supports the comment), and

2. The actions that should be taken by the State in order to address the comment (including the

conditions that the permit would include if EPA issued it).

EPA will send a copy of its written comments to the permit applicant only in those cases where

EPA and the State cannot reach agreement, pursuant to 40 CPR 271.19(b). EPA will withdraw such

comments when satisfied that the State has met or refuted its concerns and will also provide the

permit applicant with a copy of such withdrawal.

The Regional Administrator and the Director will agree to meet at the request of the State in

circumstances where comments by EPA on a draft or proposed permit are not sufficiently resolved

by staff to allow issuance of the permit. If the State believes that the terms imposed by EPA staff

comments are not justified because of specific conditions or circumstances, the request for meeting

may be initiated by the Director. The Regional Administrator will respond to such request with

recommended meeting date(s) or will concur with the Director's suggested date within ten (10)

working days of receiving the Director's request. The Regional Administrator and the Director will

make maximum effort to meet within twenty (20) days of the Regional Administrator receiving the

Director's request. An agenda and briefing paper covering the issues needing resolution will be

prepared by EPA and the State and both will be provided to the Regional Administrator and

Director at least five (5) working days before the scheduled meeting.

12
Upon request by the State and within EPA's resources and expertise constraints, EPA may provide

technical assistance for permit actions. This assistance could be in the form of using Region 10

staff, or EPA contractor(s), as agreed to in the approved annual State grant workplan.

Under Section 3008(a)(3) of RCRA, EPA may terminate. a State-issued permit in accordance with

the procedures of 40 CPR Part 124, Subpart E, or bring an enforcement action in accordance with

the procedures of 40 CPR Part 22 in the case of a violation of a State program requirement. In

exercising these authorities, EPA will observe the conditions established in 40 CPR 271. 19(e) and

any other applicable authorities.

C. State Permitting

The State is responsible for expeditiously drafting, circulating for public review and comment,

issuing, modifying, reissuing and terminating RCRA permits for those hazardous waste treatment,

storage and disposal facilities subject to the authorized provisions of the State's program and will do

so in a manner consistent with RCRA as amended by HSWA, this Agreement, all applicable

Federal requirements, and the State's Program Description. The State agrees to issue, modify and

reissue all permits subject to the authorized portions of the State's program in accordance with

Chapter 34.05 RCW (Washington Administrative Procedures Act), Chapter 70.105 RCW

(Hazardous Waste Management Act), and Chapter 70.105D RCW (Model Toxics Control Act), and

to include as permit conditions all applicable provisions of Chapter 173-303 WAC (Washington

Dangerous Waste Regulations). This agreement also applies to permits issued after final

authorization but for which the processing may have begun before final authorization.

The State agrees to consider all comments EPA makes on permit applications and draft permits. The

State agrees it is desirable to have a communication point of contact in working through the draft

permit. The State will satisfy or refute EPA's concerns on a particular permit application, proposed

permit modification, or draft permit in writing before issuing the permit or making the modification.

D. Joint Permitting Process

Pursuant to Section 3006(g)(I), and in accordance with RCRA, as amended, EPA has the authority

to issue or deny permits or those portions of permits to facilities in Washington State for the

requirements and prohibitions in or stemming from RCRA, until the State's program is amended to

reflect those requirements and prohibitions and authorization is received for the portion or portions

of the program.

EPA and Washington State hereby establish this joint permitting process for the Issuance of RCRA

permits in Washington State. This joint permitting process is established in accordance with

Section 3006 of RCRA. The administrative details of the joint permitting process will be

incorporated into the annual State grant work plan. The duties and responsibilities of EPA .and the

State for joint permitting, including worksharing agreements, will also be specified in the annual

State grant work plan.

13
The details of the joint permitting process, as contained in the State grant work plan, will be reviewed and

revised as often as necessary, but no less often than annually to assure its continued appropriateness.

Upon authorization of the State for any of the provisions of RCRA, the specifics of the Joint Permitting

Agreement as set in the annual State grant work plan will be amended to reflect the authorization.

Amendment of this Memorandum of Agreement or the execution of a separate Memorandum of

Agreement may be required for authorization of any of the provisions of HSWA.

VII. PERMIT ADMINISTRATION

A. EPA

EPA will administer the RCRA permits or portions of permits it has issued to facilities in the State

until they expire or are terminated. EPA will be responsible for enforcing the terms and conditions

of the Federal permits while they remain in force.

When the State either incorporates the terms and conditions ofthe Federal permits in State RCRA

permits or issues State RCRA permits to those facilities, EPA will terminate those permits pursuant

to 40 CPR Part 270 and rely on the State to enforce those terms and conditions subject to the terms

as agreed to in the StatelEPA Compliance Assurance Agreement, July 1997.

B. State

The State agrees to review all hazardous waste permits which were issued under State law prior to

the effective date of this Agreement in accordance with 40 CPR 271. 13(d); and to modify, or revoke

and reissue, such permits as necessary to require compliance with the amended State Program. The

State will notify EPA of any permits not equivalent to Federal permit requirements, including any

permits that have been issued but are pending administrative or judicial appeal. Except for these

non-equivalent permits, once EPA has determined that the State has fulfilled the requirements of 40

CPR 271.13(d), EPA will terminate the applicable Federal permit, or Federal portion of the permit,

pursuant to the procedures in 40 CPR 124.5(d), notify the State that the permit is terminated, and no

longer administer those permits or portions of permits for which the State is authorized.

Where the State permit is not equivalent to Federal permit requirements, the State may modify, or

revoke and reissue, its permit as necessary to require compliance with its authorized program in a

manner consistent with RCRA as amended by HSWA. If the State does not modify, or revoke and

reissue, a permit equivalent to the Federal permit, EPA will administer and enforce its permit until it

expires or is terminated.

Upon the effective date of an equivalent State permit, EPA will terminate the Federal permit

pursuant to 40 CPR 271.8(b)(6) and 124.5 (d). EPA will notify the permittee by certified mail of its

intent to terminate the Federal permit, and give the permittee 30 days in which to agree or object to

termination of the permit.

The State agrees to resolve all State permit appeals in a manner consistent with its authorized

RCRA program.

14
VIII. CORRECTIVE ACTION PROGRAM IMPLEMENTATION

A. General Corrective Action Policy

As indicated in the Policy Section (Section II) of this MOA, the State and EPA have developed an

innovative and precedent setting program for implementation of RCRA corrective action

requirements at dangerous waste management facilities in Washington. Washington may

-irnplernentRCRA corrective action requirements using an enforceable order or decree issued

pursuant to the State cleanup authority, the Model Toxics Control Act (MTCA) and its

implementing regulations in Chapter 173-340 WAC (for specific details, see Federal Register

November 4, 1994,59 FR 55322, which is attached as Appendix A to this MOA).

B. Coordination with EPA and Transition from Federal Administration to State

Administration of Correction Action

This section sets forth the manner in which the State will coordinate with EPA in administering the

State corrective action program. The State program is and will be administered by Ecology. The

State and EPA agree that consistent coordination and communication is important to successful

implementation of a corrective action program. In order to foster such coordination and

communication, EPA and Ecology intend to inform each other as early as possible of anticipated or

pending corrective action orders. At a minimum, anticipated Federal and State actions will be

coordinated through annual negotiations of the State grant workplan and periodic sites meetings.

On November 4, 1994, the State began to administer and enforce RCRA corrective action

requirements within the State of Washington. EPA actions which fall under the Federal omnibus

authority of Section 3005(c)(3) of RCRA, 42 U.S.c. § 6925(c)(3), and/or 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, continue to be administered by EPA. In addition,

HSWA amendments for which the State has not been authorized continue to be administered and

enforced by EPA.

C. RCRA Facility Assessments (RFAs)

A RCRA facility assessment is typically the first step in implementation of corrective action

requirements. The State and EPA agree that the purpose of a RCRA facility assessment is to identify all

solid waste management units at a facility and to evaluate those units in terms of releases or potential

releases of hazardous waste and/or hazardous constituents. The State agrees that all State-conducted

RCRA facility assessments will include a preliminary review of available information of the facility and a

visual site inspection to confirm historical information and to inspect for evidence of releases. Ifreleases

are observed or suspected, a sampling visit may be conducted to assess contamination.

Ecology agrees to perform or provide for a RCRA facility assessment at all facilities seeking or required

to have a permit under RCRA. EPA and Ecology agree to negotiate schedules for the State to implement

RCRA facility assessments for facilities subject to RFAs during annual negotiations of the grant

workplan.

15
D. Corrective Action Implementation Process

The corrective action implementation process includes the following tasks:

• Investigation of releases;

• Characterization of releases, potentially contaminated media, and routes of exposure which

may affect human health and the environment;

• Study of potential releases;

• Study of potential corrective measures;

• Planning of corrective action measures;

• Selection of clean up standards, corrective measures, and enforceable performance standards

that ensure the effectiveness of the remedy, after allowing for public participation in the

selection process;

• Implementation of corrective measures;

• Monitoring of the long-term effects of corrective measures.

The corrective action implementation process may include additional tasks. Ecology has authority

under Chapter 70.105 RCW and/or Chapter 70.105D RCW to compel owner/operators of RCRA

facilities to complete all corrective action process tasks identified above.

E. Corrective Action Financial Assurance

The State and EPA agree that requirements for corrective action financial assurance benefit

regulatory agencies by ensuring that adequate resources are available to complete corrective actions.

EPA and the State agree to implement these requirements in order to compel owner/operators of

facilities subject to corrective action to fulfill their corrective action obligations. Ecology has

promulgated regulations at WAC 173-303-646(2) that require financial assurance for corrective

action activities at dangerous waste management facilities. Ecology agrees to require financial

assurance for completion of corrective action activities in accordance with WAC 173-303-646(2)

and/or WAC 173-340-440(6) to fulfill the requirements of WAC 173-303-646.

F. Public Participation in Corrective Action Remedy Selection

The State and EPA Region 10 agree that adequate provisions for public participation in corrective

action·remedy selections are an integral part of the corrective action program, that regulatory

agencies have a responsibility to provide for adequate and meaningful public participation

opportunities. Federal implementation of corrective action provides for public participation in

corrective action remedy selections. Ecology has public participation provisions in the Dangerous

Waste Regulations and in the Model Toxics Control Act Regulations. Ecology agrees to provide

for public participation, including public participation in selection of corrective action remedies,

which, at a minimum, includes the following:

• Public Mail Out. Ecology agrees that public notice will be mailed to persons who reside

within the potentially affected vicinity of the proposed corrective action remedy. The public

will be given a minimum of thirty (30) days to provide comment on the proposed corrective

action remedy, unless other authorized program requirements are applicable.

16
• Newspaper Notice. Ecology agrees that notice of the proposed corrective action remedy will

be published in the newspaper of the largest circulation in the city or county of the proposed

action by display ad, legal notice, or other appropriate format, Notice of the proposed

corrective action remedy will concurrently be mailed to any other news media that Ecology

determines to be appropriate. The public will be allowed a minimum of thirty (30) days to

provide comment on the proposed corrective action remedy, unless other authorized

program requirements are applicable.

• Public meeting. Ecology agrees that if, during the public comment period, ten or more

persons request a public meeting on the proposed corrective action remedy, Ecology will

hold a public meeting for the purpose of receiving public comments.

G. Cleanup Standards and Levels, and Remedy Selection

The State and EPA agree that consistent, environmentally protective cleanup standards and levels are

essential to the success of a corrective action program. The State and EPA agree that consistency between

environmental agencies in application of available cleanup standards and levels is preferred.

EPA and Ecology agree that the Model Toxics Control Act Regulations establish minimum State

cleanup standards of cumulative carcinogenic risk no greater than 10-5

; risks from individual

carcinogens at no greater than 10-6 for residential sites and 10-5 for industrial sites; and for

non-carcinogenic substances with similar health effects, a hazard index of no greater than (1) may

be used to fulfill the requirements of WAC 173-303-646(3).

Ecology will establish site and media specific corrective action cleanup levels and select final

corrective action remedies using the MTCA cleanup standards. The State agrees that site specific

cleanup levels will, at a minimum, be no less stringent than those required under RCRA. The State

and EPA acknowledge that as of the effective date of this MOA, RCRA and the regulations

promulgated thereunder require corrective action provisions be included in RCRA permits as

necessary to protect human health and the environment, but do not contain provisions for media

specific cleanup standards or levels. The State and EPA agree that in the absence of final media

specific cleanup levels under RCRA, State cleanup levels will be evaluated against the proposed

media protection standards calculated pursuant to proposed 40 C.F.R. § 264.525(d) (located in draft

Subpart S). In the event that EPA promulgates final cleanup levels applicable to RCRA, the State

will ensure that the State cleanup levels will, at a minimum, be no less stringent than those required

under RCRA, in accordance with the applicable authorization requirements.

The State and EPA agree that site and media specific cleanup levels calculated using the MTCA

cleanup standards may be more stringent than Federally calculated cleanup levels. In the case of

Federally overseen corrective actions where achievement of Federally selected final remedies does

not achieve compliance with MTCA cleanup standards, the State may require additional cleanup

under independent State authority. In order to minimize circumstances where sequential and

potentially duplicative cleanups may be necessary, EPA intends to consider the media protection

standards established pursuant to the MTCA regulations when selecting corrective action remedies.

EPA further intends to provide opportunities for Ecology to participate in the Federal peer review

panel for final corrective action remedy selections.

17
H. Coordination of State and Federal Actions

The State and EPA agree that consistent coordination and communication between regulatory

agencies is important to successful implementation of a corrective action program. In order to

foster such coordination and communication, EPA and Ecology intend to inform each other as early

as possible of anticipated or pending corrective action orders. At a minimum, anticipated Federal

and State actions will be coordinated through the annual negotiations of the annual State grant

workplan and periodic sites meetings.

I. Applicable, Relevant and Appropriate Requirements (ARARs)

The Model Toxics Control Act, pursuant to WAC 173-303-646(3), contains provisions for

incorporating applicable, relevant and appropriate requirements ("ARARs") from other laws into

cleanup decisions. Ecology' will use the ARAR process to the extent required by RCW

70.105D.030(2)(d) and WAC 173-340-710 to fulfill the requirements of WAC 173-303-646(3).

Ecology intends to use the ARAR process under MTCA constructively, and will not allow

application of MTCA ARARs to unduly delay issuance of RCRA orders or permits.

J. Corrective Action Requirements in State Issued Permits

The State agrees to specify corrective action requirements and schedules of compliance for

corrective action into all State issued dangerous waste management permits. Corrective action and

schedules of compliance for corrective action will be either incorporated into permits by reference

at the time of permit issuance, orbe incorporated into existing permits as permit conditions using

the permit modification process.

All permits issued by EPA prior to final authorization of the State for corrective action will continue

to be administered by EPA until the issuance, or reissuance after modification, of the State permit.

Upon the effective date of the issuance, or reissuance after modification, of the State permit to .

incorporate authorized State requirements, those EPA-issued permit provisions for which the State

is authorized to administer and enforce will expire. HSWA provisions for which the State is not

authorized will continue in effect under the EPA-issued permit.

IX. OTHER FEDERAL LAWS THAT MAY APPLY TO ISSUANCE OF PERMITS

EPA retains responsibility for administration and/or enforcement of other Federal laws that may

apply to the issuance of permits (see 40 C.F.R. § 270.3). EPA and the State agree to coordinate to

the greatest degree possible any permit actions to which the following laws may apply: The Wild

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

U.S.c. § 470, et seq.; the Endangered Species Act of 1966, 16 U.S.c. § 1531, et seq.; (including the

consultation provision of Section 7); the Coastal Zone Management Act, 16 U.S.c. § 1451, et seq.;

and the Fish and Wildlife Coordination Act, 16 U.S.c. § 661, et seq. The State agrees that, at a

minimum, EPA will be made aware of anticipated State actions through annual negotiations of the

grant workplan and periodic sites meetings.

18
x. COMPLIANCE MONITORING AND ENFORCEMENT

The State of Washington has primary responsibility for compliance and enforcement actions within

the approved State program and under State statutory and regulatory authority. EPA retains

responsibility for ensuring fair and effective enforcement of Federal requirements and a credible

national deterrence to noncompliance through an effective StatelFederal partnership and an

oversight role. The State and EPA agree that the following elements are helpful for an effective

enforcement and compliance monitoring program under final authorization: 1) clear oversight

criteria specified in advance for program performance evaluation: 2) clear criteria for direct Federal

enforcement specified in advance with written procedures for advance consultation and notification;

and, 3) adequate State reporting to ensure effective oversight.

A. EPA

Nothing in this Agreement will restrict EPA's right to inspect any hazardous waste generator,

transporter or facility or bring enforcement action against any person believed to be in violation of

the State or Federal hazardous waste program or believed to have a release of hazardous waste or

constituent. .Before conducting an inspection of a generator, transporter or facility, the Regional

Administrator will normally give the State at least ten (10) days notice of the intent to inspect,

unless EPA has reason to believe that the situation may pose significant harm to human health

and/or to the environment, and as agreed to in the StatelEPA Compliance Assurance Agreement.

Should EPA choose to conduct independent oversight inspections, EPA will give an Ecology

representative a minimum of ten (10) working days written notice of its intent to do so and will give

the Department of Ecology an opportunity to attend. The frequency of EPA oversight and training

inspections will be specified in the annual State grant work program. EPA will negotiate on an

annual basis with the State the number or percentage of the State's compliance inspections on which

EPA will accompany the State. '

If EPA has a concern about a particular facility or compliance situation, 'they will request that the

Department perform an inspection, and fifteen (15) working days prior notice will be the standard

business practice. This notice may be oral initially, but will be provided to Ecology in writing at

least ten (10) working days in advance of the date that EPA would conduct an inspection. Ifthe

State performs a compliance inspection and submits to EPA a report and data relevant thereto

within that time, no EPA inspection will be made, unless the Regional Administrator has reason to

believe that there is an imminent hazard to human health and the environment or deems the State

report and data to be inadequate. In case of an imminent hazard to human health and the

environment, the Regional Administrator may shorten or waive the notice period.

For purposes of oversight compliance inspections and enforcement, EPA will maintain a policy of

"no surprises" to ensure the productive use of limited State and Federal resources and an effective

"partnership" in achieving compliance. This principle should be applied to all aspects of the

compliance and enforcement program; covering inspections, enforcement activities, press releases,

and public information, and management data summaries upon which State and national

. performance are assessed. In order to guarantee that there is ample advance notification, EPA

agrees to confer with the State to establish agreement in writing and reach a clear, consistent

understanding on the following matters: a) Advance notification of intended inspections and

19
enforcement actions; b) Specific identification of who will be notified; c) How the notification will

be done; d) When the notification will occur; and, e) Define the process for StatelFederal

consultation and dispute resolution on enforcement actions and policy and regulatory interpretation.

The written agreement established on the above matters is the "StatelEPA Compliance Assurance

Agreement", and it is hereby incorporated by reference into this Memorandum of Agreement. The

intent of the compliance assurance agreement is to provide a basis for implementing an effective

StatelFederal enforcement relationship. The compliance assurance agreement identifies oversight

criteria, standards for assessing compliance and enforcement performance standards, protocols for

notification, consultation, overfiling on RCRA enforcement matters, and State reporting. This

compliance assurance agreement also delineates the relationship of the State compliance assurance

policy to the compliance strategy and the compliance assurance agreement itself. The objective of

the compliance assurance agreement is to maintain a stable, predictable, and coordinated

compliance and enforcement presence and the objective must be consistent with the requirements of

40 CPR Part 271.

EPA also agrees to infonn the State in writing in a timely manner of any national or regional policy

changes or program direction changes and will generally allow the State a minimum of ninety (90)

days to implement those changes.

EPA may take enforcement action against any person determined to be in violation of RCRA in

accordance with Section 3008(a)(2). EPA will take enforcement action upon determining that the

State has not taken timely and appropriate enforcement action or upon request by the State. Prior to

issuing a compliance order under Section 3008(a) EPA will give notice to the State. EPA also

retains its rights to issue orders and bring actions under Sections 3008(h), 3013 and 7003 of RCRA

and any other applicable Federal statute.

After notice to the State, EPA may take action under Section 3008 of RCRA against a holder of a

State-issued permit on the grounds that the permittee is not complying with a condition of that

permit. In addition, EPA may take action under Section 3008 of RCRA against a holder of a Stateissued permit on the grounds that the permittee is not complying with a condition that the Regional

Administrator, in commenting on that permit application or draft permit, stated was necessary to

implement approved State program requirements, whether or not that condition was included in the

final permit.

B. State

As a part of the Regulatory Reform Act of 1995, the Washington State Legislature adopted ESHB

1010, codified at Chapter 43.05 of the Revised Code of Washington (RCW). Portions of Chapter

43:05 RCW limited Ecology's authority to issue penalties incertain circumstances. See RCW

43.05.050 through .070. These limitations threatened the validity of Washington's Dangerous

Waste Program because Ecology's authorization is dependent upon its program being at least as

stringent as the Federal RCRA program. To ensure that Washington's Dangerous Waste Program is

as stringent as the Federal RCRA program, Ecology determined pursuant to RCW 43.05.901 that

.the limitations of Ecology's authority to issue penalties in RCW 43.05.050 through .070 would not

apply to the portions of the State Dangerous Waste Program that implement Federal RCRA

20
requirements. Notice was sent to the Governor and the Legislature as required by RCW 43.05.901

on December 10, 1997. Accordingly, Ecology has resolved any issues raised by Chapter 43.05

RCW concerning this authorization request by agreeing to abide by Ecology's interpretation of

Washington's ESHB 1010 contained in Ecology's letter to Washington's governor, dated December

10, 1997.

The State agrees to carry out a timely and effective program for monitoring compliance by

generators, transporters, and facilities with applicable program requirements (see 40 CPR 271.15).

As part of this program, the State will conduct inspections to assess compliance with generator and

transporter standards (including manifest requirements), facility standards, permit requirements

(including late or deficient Part B applications), compliance schedules, and all other program

requirements. Compliance monitoring activities and priorities will be specified in the StatelEPA

Compliance Assurance Agreement and the annual State grant workplan and will be consistent with

all applicable Federal requirements and with the State's Program Description.

The State agrees to take timely and appropriate enforcement action as defined in: the StatelEPA

Compliance Assurance Agreement; the HWTR Compliance Assurance Policy (Policy 3.1, effective

date: June 19, 1997) and its related attachments; and/or, as definedin the annual State grant

workplan. The State will maintain procedures for receiving and ensuring proper consideration or

information about violations submitted by the public.

In civil enforcement proceedings, the Department agrees not to oppose intervention allowed under

Civil Rule for Superior Court 24, on the grounds that the applicant's interest is adequately

represented by the State.

The State agrees to retain all records for at least three years unless there is an enforcement action

pending. The State agrees to provide all records to EPA upon request. If there is an enforcement

action pending, all records will be retained until such action is resolved.

XI. AVAILABILITY OF INFORMATION (Section 3006(0)

A. General

Section 3006(f) of RCRA requires that an authorized state provide for the public availability of

information obtained by the state regarding facilities and sites for treatment, storage and disposal of

hazardous waste; and that such information is available to the public in substantially the same

manner, and to the same degree, as would be the case if the Administrator were carrying out the

provisions of this subtitle in the state.

B. Requests for Information

1. Pursuant to the Federal Freedom of Information Act (FOIA), 5 U.S.C. 552(a)(2), the State

agrees to make certain materials routinely available without a formal FOIA request.

Examples of these materials are final opinions or orders in case adjudication, State

regulations, statements of Agency policy, and administrative staff manuals affecting the

21
public. In addition, records prepared for routine public distribution will also be made

available. Examples of such records are press releases, copies of speeches, pamphlets, and

educational materials.

2. The State Agency agrees to make reasonable efforts to assist a requestor in identifying

records being sought, and to help the requestor formulate his or her request.

3. If a request for information is denied, the State agrees to provide the requestor the basis for

the denial and to notify the requestor of State judicial (or, if they exist, administrative)

procedures, including statutes of limitation.

4. The State agrees to make the fullest possible disclosure of records to the public, subject to any

of the exemptions under the Federal FOIA recognized by the State.

5. A reduction or waiver of fees will be considered in connection with each request from a

representative of the press or other communicatiori medium, or from a public interest group.

The State agrees to reduce or waive the fee if it determines that a reduction or waiver of the

fee is in the public interest because furnishing the information can be considered as primarily

benefiting the general public..

C. Confidentiality of Business Information

If a claim of confidentiality is asserted and cannot be resolved in the time period provided for an

agency response to a request, the State agrees to notify the requestor of the confidentiality claim

within the maximum 20-day time limit provided for an agency response. In addition, the requestor

will be told that the request was denied in order to resolve the business confidentiality claim.

Ecology agrees that notices of denial of public disclosure will include discussion of applicable

judicial appeal procedures. State law does not establish a statute of limitations on appeals, so

notices of denial will not discuss statutes of limitations. Ecology agrees to maintain a log or file of

such denials of requests for information.

D. Oversight

1. The State agrees to keep a log of denials of requests for information (or a file containing

copies of denial letters sent to requestors) which will be made available to EPA during the

State review.

2. The State agrees to keep EPA fully informed of any proposed modifications to its basic

statutory or regulatory authority, its forms, procedures, or priorities, as applied to Section

3006(f).

22
XII. DISPUTE RESOLUTIONS

The following dispute resolution applies to the entire MOA and supersedes the Corrective Action

addendum, dated October 17,1994. These revisions reflect the current EPA Region 10 organization

structure. No resolution of any dispute is allowed to conflict or contravene with the requirements of

40 CPR Part 271.

The State and U.S. EPA Region 10 agree to pursue informal, staff-level dispute resolution to the

maximum extent possible. In cases where informal, staff level dispute resolution is not effective, a

straightforward formal dispute resolution procedure will be used. Whenever EPA or State personnel

directly involved in the implementation of this agreement judge that a problem exists or that this

agreement is not being followed, the'issue should be resolved at the State Program Manager and the EPA

Office Director level. If the State Program Manager and the EPA Office Director cannot reach

agreement, the issue will be elevated to the Director of the Washington Department of Ecology and the

Regional Administrator of the U.S. EPA Region 10 for final resolution.

When necessary, the U.S. EPA Region 10 Office Director for the Washington Operations Office

will be responsible for coordination of the dispute process and for preparing any necessary

documentation.

XIII. PROVISIONS FOR MODIFICATION OF THE MOA

This agreement may be modified upon the initiative of either party to ensure consistency with State or

Federal program modifications or for any other purpose mutually agreed upon. As final authorization is

achieved for the 1984 amendments to the Hazardous and Solid Waste Act (HSWA) and future

amendments to RCRA, these will be incorporated into this Memorandum of Agreement, along with any

necessary changes to State statutes, regulations, the State program description, and Attorney General's

statement. Until the State is authorized for the 1984 HSWA and any future amendments, EPA will retain

responsibility and authority for the amendments. Any revisions or modifications must be in writing and

must be signed by both the Director and the Regional Administrator.

XIV. DISCLAIMER

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

rulemaking under 5 U.S.c. Sections 551 et. seq. or under chapters 70.105, 70.105B, 70.105D and

90.48 RCW, and may not be relied upon by any person to create a right or benefit, substantive or

procedural, enforceable at law or in equity by any person.

~.e~~

f/2q3£

U.S. Environmental Protection Agency

Region 10

Regional Administrator

Date: __---L.+-'E:...+T-L-L... _

State of Washington

Department of Ecology

Director

23
55322 .. Federal Register I Vol. 59, No. 213 I Friday, November 4, 1994 I Rules and Regulations

i

l.

authorized under the federal RCRA

, statute. RC\,\, 70.105.130 designates

Ecology as the agency taskedwith

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

tbe Dangerous Waste Regulations.

Statutory authority for MTCA is also

found in RCW Chapter 70.105D. ROV

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 grunts 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 ill tht!

context of a state "superfund-Iike"

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 RCR.-\. corrective

action requirements. In order to fulfill

the RCR.\ Section 3004 (u) andtv)

requirement that all RCR.'\ permits must

include corrective action permit

conditions, state corrective action orders

will he incorporated into RCRA permits

issued pursuant to the authorized State

program permitting regulations. '

Washington's corrective action

program would allow corrective action

to be speci fied through the term's 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 incorporatethe order; or 3)

simultaneously issue the order and the

permit with the order incorporated into

the permit. Under the Washington

program, a Stateorder 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.

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. '

40 CFR Part 271

Washington: Final Authorization of

State Hazardous Waste Management

Program Revisions

AGENCY: Environmental Protection

Agency. .

ACTION: Immediate final rule.

[FRL~S9-5]

SUPPLEMENTARY INFORMATION:

J ENVIRONMENTAL PROTECTION

AGENCY

B. State of Washington

The State of Washington initially

received final authorization on january

31, 1986. The State ofWashington . •

received authorization for revisions to

its program on November 23, 1987 (52 '

FR35556. 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((>)(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 quali fy 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 areprovided for information

onl)'.

C. Washington's Corrective Action

Program

The State of Washington's authorized

RCRA program is set forth in Chapter

173-303 of the Washington

A. Background Administrative Code (WACl. entitled

Slates with final authorization under "Dangerous Waste Rcgulatious". The

section 300G(b) of the Resource Dangerous Waste Regulations include

Conservation and Recovery Act, as both authorized and non-authorized

amended ("RCR.A."), 42 U.S.c. 6929(b), requirements. Washington has amended

have a cantin uing obligation to maintain the Dangerous Waste Regulations to

.a hazardous waste program that is include corrective action requirements;

equivalent to, consistent with, and no however, Washington may also rely on

less stringent than the Federal. its existing state "superfund-like" '

hazardous waste program. In addition. cleanup authority. Model Toxics

as an interim measure, the Hazardous Control Act (MTCA), 'and its

and Solid Waste Amendments of 1984 implementing regulations in Chapter

to RCRA (Public Law 98-i>16, November 173-340 entitled "Model Toxies Control

8,1984, hereinafter "HSWA") allows Act Cleanup Regulation", to implement

States to revise their programs to • - corrective action requirements and to '

become substantially equivalent instead compel corrective actions.

of equivalent to RCRA requirements The statutory authority for the

promulgated under HSWA authority. Dangerous Waste Regulations is found

States exercising' the latter option in the Revised Code of Washington, .: '

•

receive "interim authorization" for the' '(RCW). Chapters 70.105 and 70.1050.

HSWA requirements under section ,RCW 70.105D,030(1)(d) is the statutory

. 3006(g) of RCRA. 42 U.S~C.6926(g). and provision which allows the State of

, later apply for final authorization for the Washington Department of Ecology

HSWA requirements. (Ecology) to carry out all state programs

l'

SUMMARY: The State ~f 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 Stateof

Washington's hazardous was·i.~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 bv EPA in accordance with the

........ Hazardous and Solid Waste

, • Amendments of 1984.

EFFECTIVE DATE: Final authorization for

the State of Washington shall be .

effective November 4,1994. '

FOR FURTHER INFORMATION CONTACT:

Patricia Springer, U.S. EPA, MIS: HW107,1200 Sixth Avenue, Seattle,

Washington 98101, Phone (206) 553:'" ,

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D. Comparison ofWashington'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 seelcing 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 (VVAC) in Chapter

173·303, but these orders will rely in

part on the State of Washington's Model

Toxics Control Act (MTC.'\) 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)j 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 theorders 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 tequirements which

are, in part, broader in scope than the

Federal corrective action requirements

in ReRA Section3004(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,

448, 121):

Federal requirement Slate authority

RCRA Corrective Action Program

Corrective Action (SO FR 28702, 7/15/85): .' _

Applicability: SWMU, 40 CFR §264.90(a) . , . SWMU. 40 CFA§ 2t54.1 01(a) ._._._ _ _..: _ _ . Specified in permit, 40 CFR §264.101(b) _ __ z: .

.Permits by rule: UIC permits issued atter 11//8184. 40 CFA §270.60(b)(3) ._ .. NPDES permits issued atter 11/8184, 40 CFA §270.60(c)(3) .: _ __ .

Permit Application [52FR 23447 (6122187)); [52 FR 33936 (919187)); [52 FA 45788 (1211/87)):

Contents of Part B 40 CFA§ 270.14(c) _ __ _ _ _ ..

40 CFR'§270.14(c)(7) : _._ _.;; _: _ _ . 40 CFR§ 270.14(c)(8)(v) __ , ., ; _ . 40 CFR. §270.14(d) _ __ __._ : _._.__.__._.. ...:..._ __ _.

Corrective action beyond tI1e facility boundary [52 FA 45788 (1211187)):

40 CFR §264.100(e) _ _ __ _ .._ _.: _ _.__._._ _ _ __ _ _ _ _ . 40 CFR §264.1 01(e) ._ : _ _._ :. __.._ _.._ __ _ __

Corrective Action Management Units.(CAMU) (58 FA 8658 (2116193)): . Definitions:' ." . '.

Facility to inclUde' an contiguous Pfoperty, 40 CFA §260.10 ..:..._;'- _ : _ _._ _ _ ..

CAMU. 40 CFR §§ 260.10, 264.101, 270.2 _._ _ _ __..'-_.

landfill and miscellaneous unit to include CAMU, 40 CFR §260.10 _ _ _ _.

Aemediation wastes to iocIude all so6d aod hazardous waste and aD meda and debris. 40 CFR

~~*Lr~itY::4O CFA§268.2(C). _ ......._.~__.~..:..:.-_~._..... "'••__.:..~_ ... _._ ......_~.....:...

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

WAC 173·303-Q46.

WAC 173-303-Q46(2)(c). WAC 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 173-30~06(4)(a)(xx)(H)(iii).

WAC 173-303-806(4)(a)(xxiiQ.

WAC 173-303-645(11 )(e).

WAC 173-303-646(2)(b),.

WAC 173-303-040.

WAC 173-303-040.

WAC. 173-303-040.

WAC 17'3-303-040.

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55324 Federal Register I Vol. 59, No. 213 I Friday, November 4, .1994 I Rules and Regulations

WAC 173-3~6(2) & (4)(a)';

WAC 173-303-646(6). ..'

WAC 173-30~6(5)(a).

WAC 173-30~6(5)(e)..

WAC 173-30~6(5)(1).

WAC 173-303-646(5)(g); WAC

173-303-830.

WAC 173-30~OO(2)(a).

WAC H3-303-646(2)(a) &..lc::1;,.

Federal requirement

InterimStatus s&andards apply in lieu 01 40 CFR 264 standards; 40 CFR § 264.3 .. , .

. Conective action lot' SWMU wiD be specified in permit, including schedules of compliance, 40 CFR

,§264.101.. ";

Designation Requirements lor CAMU:

Designated lor implementing remedies, 40 CFR § 264.552 _ -' .

Designation 01 regulated unit as CAMU, 40 CFR § 264.552 .

Designation willlacilitate ifTlllementation, 40 CFR § 264.552 : ; .

010 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

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Requirements lor Temporary Units(TU) [58 FR 8658 (2116193)):

. Slandards may be-replaced by alternative r-equirements, 40 CFR §264.553 WAC 173-303-646(7)(a) & (b).

Factors lor establishing standards, 40 CFA §264.553(c) ;......................................................... WAC 173-30~6(7)(c).

Length 01 time TU may operate, 40 CFR § 264.553(e) ~.................. WAC 173-30~6(7)(d) & (e).

Incorporation of TU in permit, 40 CFR §264.553 ,................................................. WAC 173-303-646(7)(1);' 'WAC

17·3-303-s30

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

Enforcement authorities, 40 CFR § 271.16 ,...- .. .

Permit1ing requirements: 40 CFR §§ 270.30, 270.32, 271.14' and

271;16. .

RCAA Corrective Action Using Existing State Cleanup Authority:

Corrective action at SWMUsfor all releases, 40 CFR § 264.1 01 .....

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 pari of

the federally authorized RCRA program.

As such, RCW 70.105.240(2) wiII 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.

RCW 70.105.130(1), (2)(a-b), (2)(c)(iHii) and (2)(e); ACW

. 70.1050.030(1 )(a,b,d,l); WAC 173-30~00(3)(a)(i), -646(2)(a-b),

-802(~). .

RCW 70.105.080,.085, .095(1-~), .097,.120; RCW 70.1050.030(2)(c),

.050(1).(4),(5)(a).

RCW 70.105.130(2)(a), (b),' and (c)(ii-iii); RCW 70.1050.030(1 )(a);

WAC. 173-303--646(2){a~), -646(3)(a~), -<l00(3)(a)(i),

-806(4)(a)(xxi)(A) & (8). .

RCW 70.105.130(2}(a); RCW 70.1050.030(1)(a-b), (2)(c); WAC 173-

303--646(2)(c) & (3)(c),-802(3) & (4). .

RCW 70.105.130(2)(c)(iii); RCW 70.1050.030(1)(a) & (b); WAC 173:-

303--646(2)(b) & (3)(a). .

RCW 70.105.101(11); RCW70.1050.020(3); WAC 173-303-040.

RCW 70.105.130(2)(bl, (c)(ii-iii) & (e); RCW 70.1050.030(1)(a), (b), &

(I); WAC 173-303-Q46(2)(a) & (b)." .' . . ..

RCW·70.105.130(1) & (2)(c)(iii); RCW 70.1050.030(1)(d); WAC 173- 303-Q46(2)(a~). . .

RCW 70.105.130(2)(a); RCW 70.1050.030(2}(a); WAC 173-303-830.

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 aliow

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

Financial responsibility lor' completing corrective action, 40 CFR

§§264.101 and 271.14. .

Public participation, 40 CFR §§ 270.42 and 271.16(d) .

Permitting requirements, schedules of compliance and assurances 01 financial responsibility,40 CFR §§270.33 and 271.14.

Corrective action beyond the facility boundary, 40 CFR § 264.101 ..

Definition 01 facility, 40 CFR §§ 260.10 and 264.101 ; .

Implement and complete corrective action, 40 CFR § 264.101 . . . . . .

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

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Federal Reiister"i Voi. 59:' No. 213 I Friday, November 4, 1994 I Rules and Regulations ,55325 .... , ..

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prior to 1986" as suggested by the

commenter. Rather, the authorization .....

will allow theState 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 inc1~es the .

hazardous component orradioactive

mixed waste) at solid waste

management units at facilities seeking

pennits 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 Slate 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 r

require corrective actions where EPA ,

deems such actions to be necessary to

protect human health and ths :

· 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 RCR,A "omnibus"

authority as part of today's .

authorization. As such, State regulations

which allow the State tei 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(hj,

3013, and 7003 of RCRA, 42 U.S.C.

692B(h), 6934, and 69i3, 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 actiori 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

Washington's regulatory definition of

S\VMU against' its discussion in the

'proposed corrective action.rule, [the ...

cornmenter] requests that the State of

Washington through its authorized

program will not be allowed to assert

jurisdiction over mixed waste activities

prior 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 30i98 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 RCR'\ 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 'spromulgated definition'

of a "solid waste management unit" in

its Dangerous Waste Regulations (see

WAC 173-303-646(2)(a)) both define a

S\VMU 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.

Th4S, 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 actioniot 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

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 or constituent 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 correct!ve

action at such units does not mean that

SWMUs are "regulated" under the

RCRA "base program" and therefore

subjected to RCRA pennitting ,

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 prograrn'tis 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'satithorization of the State of

Washington for RCRA corrective action

will allow the Department 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

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Federal Register I Vol. 59, No. 21,3 I Friday, November 4, 1994 '" Rules and Regulations

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55326

it will have to exercise such authority modification will be under the State's

very often, given the protectiveness authorized corrective action program.

embodied in the State's MTCA statute The RCRA public participation

and the manner in which the State has requirements would govern the public

implemented the MTCA program.. participation process at that time.

A commenter questioned that once a However, public comment at that time

State-issued order is incorporated by will be limited to whether the

reference into the facility's RCRA incorporated MTCA terms, schedules

permit, can tharorder be amended and conditions appropriately fulfill

....ojthout a corresponding modification of corrective action requirements of the

the RCRA permit, . authorized State RCRA program. Public

In response, at the time the State comment on the MTCA terms,-

order is incorporated by reference into schedules and conditions will not affect

a RCRA permit, the order becomes the ability of the state to enforce the

subject to all permitting requirements, MTCA order under MTCA authority,

including public participation independent of the authorized RCRA

requirements required for permit corrective action program. At the time

modifications. This includes any State- the MTCA order is incorporated into a

issued orders designating a corrective RCRA permit. and at any time thereafter

action management unit (CAMU) or' for the life of the RCRA permit, Ecology

temporary unit (TIJ). Therefore, if at will ensure that the public participation

some time after incorporation by procedures under RCRAand MTCA are

reference into a RCRA permit, it is coordinated to eliminate duplication of .

determined that the incorporated order effort and fulfill RCRA requirements.

must be changed, such a change will A commenter questioned how

require a permit modification as well. authorization of the State program

The class of permit modification would be affected by EPA's

required, along with the extent of public promulgation of a final federal rule

participation required by such a regarding corrective action. The

modification, will be determined using commenter also questioned whether

the Stale regulations.' EPA intended to use the proposed

. A cornrnenter requested clarification subpart S corrective action rules to

of the public participation process tobe measure the Slate's "consistency" with

used by the State under the authorized the federal corrective action program;

corrective action program. Specifically, and what EPA intended when EPA

the commenter pointed out that MTCA stated in its Notice of Proposed'

orders have their own public Rulemaking that EPA's proposed

participation process. The commenter definition of a·SWMU "will be the

queried whether there would be a controlling interpretation against which

second public participation process at Washington's regulatory definition of a

the time such order would be solid waste management unit will be

incorporated into a RCRA permit: The measured until EPA codifies a statutory

commenter also queried to what extent or regulatory definition." .

the public would be able to comment on In response, should EPA finalize a

the previously issued order at the time . federal rule regarding corrective action

of permit issuance or modification; and at some point after the State has

to what extent the existing State received corrective action authorization,

regulations governing public the State will be required to submit an

participation would operate in lieu of application for a revision of the State

the federal regulations codified at 40 corrective action program, in

CFR 124.11 through 124.17. accordance with 40 CFR 271.21(e)(1)

In response, the commenter is referred and 271.25. Until EPA promulgates a

to the Program Description contained in final federal corrective action rule, EPA

this application for authorization, intends to use its proposed subpart S

wherein Washington's Department of rules (55 FR 30798, July 27,1990) as the

Ecology explains how public measure of consistency in order to

participation goals and requirements determine whether the State's

will be met. In brief, the State will authorized corrective action program is

follow only the existing MTCA public' at least as stringent as the federal

.participation requirements (which a:e corrective action program would be

extensive) when a MTCA order is issued under the proposed Subpart S rule.

. prior to permit issuance. Since that is . Since the-proposed subpart S rule has

not a RCRA permit action, there are no not yet been finalized, EPA cannot

RCRA perm it public participation authorize nor enforce the provisions of

requirements which apply. At the time Subpart S. However, EPA is currently

the order is incorporated into a R<;RA using the provisions contained in the

permit through permit modification, or _ proposed Subpart S rule as guidance

if the order is issued concurrently with when conducting federal corrective

the RCRA permit; the permit issuance or actions.

Two commenters raised concerns

regarding the State of Washington's

siting criteria for new hazardous waste

facilities. In response, the proposed .

approval and authorization 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 Industrial 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 ofFederal 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), and/or

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 ReRA 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. All permits issued by U .5. EPA

Region 10 prior to final authorization of

the State for· corrective action will
I Federal Register / Vol. 59. No. 213 / Friday. November 4. 1994 / Rules and Regulations 55327·

I

I'

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 .

authorized to administer and enforce

....'ill expire. HSWA provisions for which

the State is not authorized will continue

in effect under the EPA-issued permit.

Hi 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

300a. 3013 and 7003 of RCRA. 42 U.S.c.

esas, 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. . '.

Certification 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 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 2oo2(a). 3006 and

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

amended. 42 V.S.c. 6912[a), 6926. 6974(b).

Dated: October 17, 1994.

Chuck Clarke.

Regional Administrotor.

IFR Doc. 94-27170 Filed 11-2-94: 8:45 amI

BILLING CODE r.s~
Corrections

Thissection of the FEDERP.-L REGISTER

contains editorial corrections of previously

published Presidential. Rule, Proposed Rule,

and Notice documents. These corrections are

prepared by the OffICe of the Federal

Register. Agency prepared corrections are

issued as signed documents and appear in the appropriate document categories

elsewhere in the issue.

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 70

[Docket No. PY-92-0031

RIN 0581-AA61

Voluntary Poultry Grade Standards

Correction

In proposed rule document 94-25760

beginning on page 52469, in the issue of

Tuesdav, October 18,1'994, make the

following corrections:

§ 70.221 [Corrected]

1'.On page 52474, in the second

column. in § 70.221, in paragraph (g)(3),

in the table. under the heading entitled

"Maximum aggregate area permitted"

insert a line to separate the heading

from the subheading entitled "Breast.

legs, and parts".

2.0n the same page, in the same

column. in § 70.221, in paragraph (g)(3),

in the same table, under the subheading

entitled "Breast, legs, and parts", in the

first line, "13/4 in." should read "314 in.".

3.0n the same page. in the third

column. in § 70.221, in paragraph (g)(4).

in the table, under the subheading

entitled "Elsewhere", in the first line.

'''1 % in." should read "P/4 in ....

§ 70.230 [Corrected]

4.0n the same page, in the second

column, in § 70.230, in paragraph (e)(2).

in the table. the heading "Maximum

aggregate" should read "Maximum

aggregate area permitted".

5.0n the same page, in the same

column, in § 70.230, in paragraph (e)(2).

in the table, under the heading

"Maximum aggregate area permitted",

in the second line, "1 incn" should read

':1 inch".

BILUNG CODE 1~1-il

DEPARTMENT OF HEALTH AND

HUMAN SERVICES

Food and Drug Administration

21 CFR Parts 101,170. and 310

[Docket Nos. 91P~186 and 93P~306]

Iron-Containing Supplements and

Drugs; Label Warning Statements and

unit-nose Packaging Requirements

Correction

In proposed rule document 94-24476

beginning on page 51030 in the issue of

Thursday, October 6,1994, make the

following corrections: '

1. On page 51033, in footnote 6 at the

end of the table. "No" should read

"Not".

2. On page 51043, in Table 9, in the

first column, in the first entrv, remove

"1" preceding "Overdose".'

§310.518 [Corrected]

3. On page 51058, in the second

column, in § 310.518,in the

introductory text, lines two and three

should read "in solid oral dosage form

. (e.g., tablets or capsules) shall meet the

following". '

4. On the same page, in the third

column, in the same section, in

paragraph (a). lines six and seven' ,

should read "unit of the product, e.g.•

tablet or capsule....

B1LUNG CODE 1~1-il

DEPARTMENT OF THE INTERIOR

Office of Hearings and Appeals

43 CFR Part 4

RIN 1094-AA42

Department Hearings and Appeals '

Procedures; Special Rules Applicable

to Surface Coal Mining Hearings and

Appeals

Correction

In rule document 94-26553 beginning

on page 54356 in the issue of Friday.

October 28.1994, make the following

corrections:

1. On page 54356. in the second

column. in the SUMMARY, in the first

line. "The" should read "This".

2. On the same page, in 'the third

column. in the SUPPLEMENTARY

INFORMATION. in the first paragraph. in

56573-56999

Federal Register

Vol. 59. No. 218

Monday. November 14. 1994

the last line. "43 eFR 3.1307(a)" should

read "43 eFR 4.1307(a)".

3. On page 54359, in the 1st column.

in the 44th line, "!BlA" should read

"!BLA". ,

4. On the same page. in the same

column, in the last paragraph, in the

ninth line. "or" should read "of'.

5. On the same page, in the second

column, in the second full paragraph, in

the tenth line. "on" should read "in",

6. On the same page. in the 3rd

column, in the 31st line, insert

"773.24(c)," after "§ §".

7. On page 54360, in the second

column, in the first full paragraph. in

the fourth line, insert "1253" after "30

U.S.c. ...

8. On the same page. in thesame

column, in the last paragraph, in the

17th line; "ownerships" should read

"ownership". '

9. On the same page, in the third

column, in the seventh line, "persons"

should read "person".

10. On the same page, in the same

column. in the heading at the bottom of

the page. in the first line. "Appeals"

should read "Appeal"; and in the last

paragraph. in the first line, "criticized"

should read "criticize"..

11. On page 54361. in the third

column. in the fourth full paragraph. in

the fifth line, "alternatives" should read

"alternative". '

§ 4.1373 [Corrected]

12. On page 54362, in the third

column, in § 4.1373(a). in the fourth

line, "§ 4.1372(a)" should read

"§ 4.1372(b)".

BILLING CODe isos-oi-o

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 271

[FRL-5099-5]

Washington: Final Authorization of

State Hazardous Waste Management

Program Revisions

Correction

In rule document 94-27170 beginning

on page 55322 in the issue of Friday. '

November 4,1994, make the following

correction:

On page 55322, in the first column.

the ACTION line should read "Final

rule". '

BILUHG CODE rsos-cr-o
CONCURRENCES

INITIALS ;

.NAME

DATE

Ecology/EPA Memorandum of Agreement -- signed by Tom Fitzsimmons

on July 19, 1999 received by EPA on July 27, 1999.
CONCURRENt\1fA

INITIALS \ II .NAME _.

M Rllee"ll

DATE t{,~1-\~

Memorandum of Agreement -- signed by Tom Fitzsimmons on July 19, 1999.
I.· ,

• I

II. -,

I' . ill.'

. IV.

•

•

J •••• J

v. - -(or

....;

VI.

Memorandum

of Agreement

Between the

State of Washington

and the

US EPA Region 10

Signed and Dated: State of Washington 7-19-99

VII. EPA 9-24-99

) ./
~-~.. =--:L_ .---.- --~---, ..,_._-.---

Public'Participation in Corrective Action Remedy Selection ..•.•••.17

_' .Cleanup Standards and Levels, and Remedy Selection ••••.•.•..••.••.•17

Coordination of State and Federal Actions;;.•~;••;.;.;•••••• ..•.••:••.••• .••18

Applicable,.Relevant and Appropriate Requirements (ARARs) .•19

Corrective Action Requirements in- State Issued Permits•••.••.•••••••19

·C.-

D.

E.... -

F.

G.

H.

I.

J.

.VIll. Corrective Action Program Implementation_ 15 '. • • t ... .. '~;,. ,1 • -:.. S:"i ...;~ .i A. General Corrective'Action'Policy.•:•••: 15

B. Coordination with EPA and Transition from Federal .•••.•.•....•••....15

Administration to State Administration of Corrective Action

.ReRA Facility-Assessments'(RFAs)...•i:..~;;..;;~; ..:.~ ~~~ ..~.::~~ 16

Corrective Action Implementation Process 16

.Correetive Action Financial Assurance-.•.•••••••.••.•:.:•.:~~~ 17

IX. Other Federal Laws That May Apply to Issuance ofPermits•• .•.•..•..••••.••19 . ! -

X. .Complianee Monitoring and Enforcement.,.....•:~.~.~ .•.~t :•.•:~.~.:. •••: ••19

A.

B•.

EPA....•..••..•.•.•.•••••••.•••...••...•••••••••.•••.•••.•.••.•••..•••••••.•.••.••.••••.•.••.•....•.•.•.•20

.State..•....••.•_ ;..:~~·:~

.,-;--.

..;•..•

~. -

'

.

;..21 o . I i.-

Requests-for Information .••••••••.•••.•••.••.•.•.•.••.••..;..•.•..•~.~.•.•.• ••.•....••·•••.22

Confidentiality ofBusinessInformation ·••.••..•.:·•.••...•..•.•23 . . - . '.. (" ..;; .~, Overs19bt ••••••••••••.•••• •.;.:•••••.••.•. •..••.~~~;••..••.•...••.•..23

XI. Availability. ofInformation z;•••••••• ••••••••••••••••••••••22

A. General.••••••••••••••.••••.••.••••••••••••••••••..••..•.•.•••••••..•.~~;;; ..••..••.~: ..~:.:•.•..•..•.•.•22

B.

C.

D.

XII. Dispute Resolutions••••••.••.••.......•••.•••..•••••••..•.•.•.•·...•.•..•..•.•.•••.••.•....•.•...•.•.• .••••24

XIII. .Provisions for Modification' ofthe MOA .: z: ;..~~.; ..::;..:~~...•....~~ 24

XIV. .. ~'1 .. ."" -. "'.! ; Jo •

Disclaimer••:.~ :~:: •.:•.:..~:••..•••_..••:~: : :.A•••.............. :.~•••z.: ~.: .. ':.24

Appendix A Federal Register November 4, 1994, 59 FR 55322

..'.

()
. ';.0'" '

• ,.' ... J, •

. ... .. ";".' ..,,::, .. , -

MEMoRANnm{'OF'AGREEMENTBETWEEN ,';<:' •. :-, . I)'>"';~

,THE'STATEOFWASIiINGTON ".", .':; .~. "': :';,,:.j,}:

. • ._ ,".f -_:·'t·· f .' ,f"'." -~.,~p. ...~~.,

". C ; .. _" -AND ~" t.t J~"';' _ .... _" ' '""\,,,,> f'•• ';.')1

THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY ,'J ., ••••.. ,

REGION 10

·t.f' iI •• :1"': ". ~.) .

. ,".. . I. GENERAL .. -to. '.: -'. . {-.

•

•

This Merrior~dum of Agreement '(hereinafter "Agreement") establishes policies, responsibilities,

and procedures pursuant to 40 CFR 271.8 forthe State of Washington Hazardous Waste Program

(hereinafter "State Program") authorized under Section 3006 of the Resource Conservation and

Recovery Act.(hereinafter "RCRA" or "the Act") of 1976 (42 USC 6901 et seq.), as amended'

(Public laws 94-580, 96-482, 98-616), and the United States Environmental Protection Agency

(hereinafter' "EPA") Regional Office for Region '10. This Agreement further sets forth the manner

in which the State and EPA will coordinate in the State's administration and enforcement of the

State program and, pending State authorization, EPA's administration of the provisions of the

Hazardous 'and Solid Waste Amendments of J984 (HSWA). For purposes of this Agreement,

references to RCRAinclude HS~~..." "..,' . '. '. , ,1: ",1';

, TIns 'Agi-;~~~~t i's enteredi~to'by"theDirect~r of th~ Washington Department of Ecology . "

(hereinafter "Director't.or "the State") and the RegionalAdministrator.Ef'A RegionIO (hereinafter

"Regional Administrat~r" or ''EPA''). This Agreement do~'s'not establish privitybetweenEl'A'and

the State and does not restrict EPA's independent enforcement authority. No waiver of sovereign

immunity is implied or assumed by this Agreement. ... -\ . .

The authorized Program in this Agreement includes State implementation of the'dangerous waste

...,program on'non-trust lands within the 1873 Survey Area of the Puyallup Reservation as defined in

the settlement agreement between the Puyallup Tribe, Federal, State, and local governments dated

.August 27, 1988 (Settlement Agreement). The Settlement Agreement was ratified by Congress and

incorporated in Federal law on June 21, 1989, as the Puyallup Tribe of Indians Settlement Act of

1989, 25 U.S.C. Sections 1773, et. seq. (Settlement Act), and where not provided therein as .

otherwise provided by Federal law. The authorized program does not extend to Indians or Indian

activities within the 1873 survey area. EPA retains primary responsibilityfor implementing RCRA

on the trust lands, and overIndians and Indian activities on the non-trust lands within the 187:3 '

Survey Area. The authorized program does not' extend to any other Indian lands or activities'within

the State.

Nothing in this Agreement shall be construed to restrict in any way EPA's authority to fulfill its

oversightand enforcement responsibilities under RCRA. Nothing in this Agreementshall be

construed t~ c?ntrav~ne any provision of 40 CFR Part 271. ','

The parties'will review the Agreement jointly at least once a year (and other time; as appropriate)

during preparation of the annual State grant work program, in connection with grant funding under

Section 3011 of RCRA.

1
This Agreement will be signed by the State and the Regional Administrator and will become

effective at the time the State's authorization takes effect,. which will be the date set out in the 0

Federal Register notice of the Regional A'dri]imstrator's, decision: to'grant"authorization to the State. .' . ,. .' .... .,:. ' .

ThisAgreement will supersede the Agreements dated January 31, 1986; July 25, 1988; October 17,

1994; and June ~3, 199K;. ~'~'; '·:L. L" .-.,~,~~>:~'"Iii ,'; .-,;". ,", ....J'~.,., .: -:~:. /

rr, POLICY STATEMENT

Each of the parties to this Agreement is responsible for ensuring that its obligations under RCRA

are met. Upon granting of final authorization by EPA, the State assumes primary responsibility for

implementing the authorized provisions of the RCRA hazardous waste program within its

geographic boundaries, including those Puyallup non-trust lands within the 1873 Survey Area,

pursuant to the Settlement Agreement-and Settlement Act (see Section ill for more details). The

authorized program does not extend to any other Indian lands or activities within the State. EPA

retains primary responsibility for implementing RCRA on Indian lands, other than the non-trust

lands withinthelS'B Survey Area, trust lands and over Indians and Indian activities within the'

State borders. .'. . .

, The State will implement its program using Ecology's letter to the governor dated December 10,

1997 whereby Ecology deemed that House Bill 1010 conflictecfwith the authorized program, and

thereby deemed those portions of House Bill 1010 inoperable. EPA retains its responsibility to

ensure full and faithful execution of the requirements of RCRA, including direct implementation of

HSWA 'in the event the State is not authorizedto act: .The State and the Regional Administrator C

'agree to maintaina high level o'tcooperatiriri'and coordinatiOIl'between their respective staffs in a

partnership to assure successful and effective'~d.ministrationof the State program. ' .' - . - ..'.; {~. . '.: . ~'. ;.

Section 3006(g) of RCRA provides that hazardous'~asterequirements and prohibitIons'

promulgated pursuant to HSW1\ are applicable in authorized States at the same time that they are

.....applicable in unauthorized States. While EPA retains responsibility for the direct implementation

of those provisions of HSWA which the State is:not authorized to implement, it is the intention of

EPA and the State to coordinate the implementation of such provisions to the greatest degree

possible. " .. ' .

With regard to the Corrective Action portion of Washington's authorized program, the State and

~1} have developed aninnovativeand precedent setting program for implementation of RCRA

corrective action requirement,s at dangerous, waste management facilities in Washington.f'See .

Section, VITIfor Corrective Action Program Implementation details). '-

EPA will oversee implementation of the authorized State program in order to: ensure full execution of the

requirements of RCRA; promote national consistency in implementation of the hazardous waste

program; allow EPA to report to the President and Congress on the achievements of the hazardous waste

program; and, encourage States and EPA to agree on desirable technical support and targets forjoint

efforts to prevent and mitigate environmental problems associated with the improper management of

hazardous wastes. Oversight will be accomplished by EPA through written reporting requirements (midyear and end-of-year reports), permit overview, compliance 'and enforcement overview, and annual ()

review of the State's programs. To the extent feasible, EPA and Ecology will use Regional Sites ,J

2
• ~t ..... /~ f ;._.-..... ," ..i " ,- . ' •..•.•"'"'t"~-, .,,:... "1'-. ,1:; .... :{".' ....-.' ~"'J.l.' ,·.~r 1"":1"

Meetirigsas a means'of informal communication'for ongoing oversightof ~tcorilriiitinentS. EPA Will . .-r-.1 ;. .-f'" ~'lf 'l·\.·1·~ " ... '.f ,M .... '.1 ' .. -ll .i....

keep the State informed of the content and"meaning of Federal'statutes, regrilations, guidelines,'standards,

policy decisions, directives, and any other factors that affect the State program. I;PA will also provide

general technical guidance to the State as agreedto in the annual work program. EPA will share with the

state any national reports developed by EPA from the data submitted through State·reportrrig·-e,'f.~'5~ ....

requirements, EPAwill.provide the State with inform~tio!l(~~~~ its control) priorto public information ". ' , t· " .. ' .' .... ..1.., -~. .',' . " . . .. .. I •• .,'

releases, where such releases pf it,ilormation couldimpactthe-State'Spro~ crprojects." _:'-: -. • '-J • • #. • • ..... .' I";' _ .-~ ; • ,/.... .1 • ;.1 '. ...~ .'; .. I.

·~ft. :;, ; • ,~i.. .~ ~I:·. ~.' - .. -,- "' \, . ," (. . "r' ..•• to:. .~. ';'. "''10.0 - < , •

EPA agrees to conduct its oversight of the Washington State Programinamanner consistent with

"the EPA,R~gic0I110 OversightPolicy and anysubsequentState/Ef'A ~greea:.to_6versightguiding'

-princfplesa:n4 critepa. Nothing in ~s MOA, orin any attachments here~~" o~ otherdocuments <?r

agreements referenced in this MOA shallbe construed to restrict EPA's-authbrity to fulfill its

oversight obligations nor to contravene the requirements of 40 CFR Part 271. In addition, the

following p~nciples will apply:

. J : '.'.. ~. .:• . (-

Focus on Overall Performance- EPA will be concerned with the overall performance and

environmental results achieved by Washington's Program. The' oversight process will focus on

individual procedures or actions only as indicators ofoverall program performance, or where

aetion~' involve significant national issues. . _ .' , . .'" : -.'.

•

_....

Respect State Technical JUdgments- EPA will respect the judgments of State technical staff,

unless statutory requirements call for direct EPA involvement in project decisions or the '

technical issue has significant policy implic~tions. . -'" :-: '. - --"~! , . :; L -'" 4,

.. .. ... . _.".: .:.:: . i,. ~'.','~. ..... 'J i)

Use Specific Performance Criteria- EPA will specify the criteria" after consultation with the

State, that will be used to assess State program performance and i"nclude these annually in the

Performance Partnership Agreement or negotiated-work plans as appropriate. Useful oversight

can occur only'if the State and EPA understand in advance about specific'standards'of - .

performance to be met and how ~~ccess in meeting them should be measured.._., _.~ :

Emphasis on Strong, Informal EPNState Relationships- EPA Region 10 has a unique ability,

because of.its Operations Offices, to rely on informal working relationships as an oversight

mechanism. The use of formal written reports will, be keptto the' minimum necessary for the

timely assessment and resolution of environmental' problems and progress. Washington will also

be encouraged to participate in the oversight of its;own programthrough joint.audits and to

evaluate EPA's performance in providing assistance and meeting commitments. .

" , . • ".i -, ,'-

•

EPA will Retain Responsibility- EPA is responsible under statute for ensuring the consistent

application and enforcement of national standards. If direct EPA action is necessary to ensure

that environmental laws are carried out, such action will be_ taken, with appropriate consultation

.with the State. ~. -. ..

HBlOlO- Ecology will adhere to the interpretation of Washington HBlOlO contained in

Ecology's letter to Washington's governor dated December 10, 1997,whereby Ecology deemed

HB1010 to have conflicts with the authorized RCRAprogram, and deemed those portions of

HBlOlO to be inoperable. : .:

3
;,m·,-EJ~1;t;»~~~~Ar~o~ ;--O~;·f.JH;F;~ )~ANGE~9l.!.S·i··W~~ ...~Rq~~!,,!. ON., THE

~,·:.:...;hJ,~YY~,L~J9f~~~V~JJ.()N.~Q~-'Q{U~T~~S", :..... ", - ,"~':, ,~~:;: :1("'.:

~;or-"!J'~\_~ . '1,-) -:.~.••:.....-8 ~f~~-r-r:.~..-fr(: ~Ji~~ ~t!l _~ril ... :~; i; ···:,~"'~C~.' ,,-;' .:~~ i':\' "; . '/;':...("':i..: r i. :.... ~l .' I":,'~'..-•.

.. '! ·'.i'·} "'j·I..gL~, i,,,-,.; ~<..:;. .. t:i-:·.~~.r: 'N ·~l;; .. :.,. ):.~j ."~: c~~t1:.. .. ',f~ _. ~'.-";'4p': ~!; .•

A~ Respo~!b.~~es;.;:;:L;:.:.; j'-; ; ,; '"1':', ..' .•:' . . ...,-, .., L'., _ ':: ",.,. ,J. -(" 'c;:- .; "";.i

l ..)f.H· ...·;~,.tfn"'":;ii~ur; ,I] ,c·;~.\_l~rr.~r...j ••. .l. '".=;t· ! .:C:a."N<!: -u '~._"--, 'o..,.! ':.t.' ",; ."'.r,;~ " ..•....•....

The State has primary authority for .Imple]Ilentiqg its authorized p~ogram on the non-trust lands .

within the 1873 Survey'Areaof the PUyallup Reservation'as defined bytheSettlement Agreement,

the Settlement Act, and where not provided therein as otherwise provided by Federal law. The

authorized Piogf~'d~es'noi ;~xterid t~"rndians:b~ fudian activities within' the' 1873 Survey Ar~a.:

EPA retaiiliprimary responsibilityfor implementing RCRA on the tnist lands, and overIndians and

Indian activities onthe non-trust landswithin the 1873 Survey Area. The authorizedprogram does

not extend to any other Indian lands or activities Within the State. ,.. .' - : .' ..... ,~ .., " , , . . -, - : .

EPA agrees to initiate an appropriate mechanism to prevent anyauthority gapswhen a person, as

defined in WAC .1-73-303-040 or 40 CPR '260.10, who manages hazardous waste is affected by a

changefrom State tq Fe~~ral'junsdiction. The State and' EPA' agree to communicate all such

jurisdictional changes to the Puyallup Tribe. EPA Region 10 will adhere to its EPA Indian Policy

dated March 14, 1994; and its commitment to working with.Federally recognized tribes on a

government-to-govemment basis to enhance environmental protection.

o

", , .~ ....:

~,.' 7:' J["f'.: .,,;..i .... ~,.>,:~~ -. ro. "~ •. _ .• I :'h, ". •

B. Implementation Strategy 'for Lead Regulatory Agency Changes : .... '." ..

The following is the agreed upon strategy for how the EPA and Ecology will share information and

communicate all Jurisdictional' changes within the 1873 Survey Area of the Puyallup Reservation.

A. person whomanages hazardous waste' is required to 'notify the regulatory lead agency of a change

pursuant to notice.requirements fortreatment; storage, and disposal (TSD) facilities at WAC173-

303-805(7), WAC 173-303-810(14), or 40 CPR 270.30(1)(3); or through generatornotification

.....requirements pursuant to WAC 173-303-060(2),40 CPR 270.1(b) or 270.70(a)(I).

Communication between EPA, Ecology, and the Puyallup Tribe will be maintained when a person

who manages hazardous waste gives notice regarding land acquisition, changes of operator/owner,

and/oraffected activities that r~sult in a change of the lead regulatory agency. - ) ,.

o

1. Implementation Strategy Protocol -0 iT" -",-, ""p' 11 "",":'~..

.'

The following information and procedures will be used when a person who manages

hazardous' waste gives notice of a change that results in a change of the lead regulatory

agency: -. . .

. a. Within 15 working days from when the lead regulatory agency receives notice of

a change, the notice will be shared with appropriate staff of EPA, Ecology, and the

Puyallup Tribe.

..b. Based on the notification of change, the new lead regulatory agency will prepare a

, letter to the "notifier" identifying themselves as the new lead regulatory agency..'This ()

letter will be copied to the former lead regulatory agency and the Puyallup Tribe. ~/

___ 3. _
• . °T"--1· . ~-:._ .' ',-{r" ..- r~.

c. The new lead regulatory agency will be responsible for-updating the RCRIS

database with corresponding data entry change requirements.

.to:.- :~. .oJ' ',

, . " .... ;. -':f '

•

•

.~

":Advance':>~6tifi~~tion by' the "fadlity;o(any"planned transfer in own6iship interestor ; -,

'bpera~onal control at a permitted facility will assist'EPJ:t. andEcology.: If, as a result ofthe

, transfer, the jurisdiction for the permit's lead regulatory' agency changes, the'new lead :

, re'gul~~ory ~'gency'"will detemline':Tti accordaiice,\.vitll applicable permitting requirements,

whether'to modify' the existing permit' or revoke and'reissue the permit, Of if there' is cause,

terminatethe permit. 'The permit will identify the newlead-regulatory agency. EPA will

consider consistency with State lawin decisions made at facilities and for generators for

which EPA has jurisdictional authority; .: ':. J"'

The EPA and Ecology agree that all RCRA permits within the 1873 Survey Area of the

Puyallup Reservation boundary, except for those on trust lands within the Survey Area, will

include the following permit conditions:' ' '

, "In accordance with reporting requirements in WAC 173-303-81O(14)(c) and 40 CFR

" 270:30(1)(3), the Permitteewill provide' notice to the Director and the Regional ' ,

Administrator prior to transfer of ownership interest or-operational control of this permit to

any person. The Director or the Regional Administrator may require' modification, Of

revocation and reissuance of the permit, orincorporate other requirements as may be ,

necessary in accordance with procedures in WAC 173-303-830 and 40 CFR Part 270

Subpart D." and ...,.,'" ' '~,',:, ", , .. . .~ : : ",;" . j ,-: t • "j-:...•,.: .".. "", .z·

"EPA will become the regulatory authority if the facility's notice results in a State to Federal

jurisdictional change. Ecology will become the regulatory authority if the facility's notice

results in a Federal to State jurisdictional change."

3. CleanupImpllcatlonsfor Contamination Crossing Jurisdictional Boundaries ""';: )-

On occasion, offsite contamination raises concerns for regulatory agencies. Therefore,

, whenever contamination from one parcel crosses boundaries of regulatory jurisdiction, and

affects another parcel, notification will be made to EPA,Ecology, and the Puyallup Tribe.

EPA and Ecology agree to provide each other with pertinent information to determine the

, best strategy for such.affected parcels. In some instances, dual jurisdiction may exist. Both

agencies intend to provide consistent environmental protection. The agencies will use

protective cleanup approaches and levels'as referenced in Federal or State law or guidance.

Discussions between agency staff will be the starting point for all such decisions including

active communication with the Puyallup Tribe. '

5
o

A. General

.~ .•~_:e, ..... "'i4"~-; ~-1 .""

The Regional Administrator will assess the State administration and enfofcementbf the hazardous

'waste Rrog;-~ (;m a.continuing basis ~o~ eq~val~nfe.and consis~~ncY'~f~'~~&'\l,~s [\greement,

.and all applicable Federal requirements. and policies, and.for adequacy of.enforcement, This ~.. •. , . - ~. . , .... '"- - • • . . J ....J . , . '..:: .~. , -'. . . '. ~. ~.( I

assessment will be accomplished by EPAreview of information submitted by the State in - ! .... • ,l. - -.'.. ." ._ ' .; .... • ..( 1 .. ' u' j l..J • .a ••"t ,~, -.~ 1"': ....

accordance with this Agreement and the State grant work program, permit overview,.compliance • . . .' .~.. ." '~ .• - - . -' ..... J .••• '. • • • t" .'

andenforcemerit overview, and annual review of State program activities.c.The Regional

Administrator may also consider, as part of this regular assessment, written comments about the

State's program administration and enforcement that are received fromregulated persons', the

public, arid Federal, State and local agencies: Copies of any such comments received by the

Regional Administrator will be provided to the State. . ' . '

• : • .' _ •• L .~. • • •• • ". s. ., . .'. ..•• .~.. .. ' - .. '. •- (

To ensure effective program review, the State agrees to allow EPA access to all files and other • " . _ 1... .J ,-

information requested by the Regional Administrator or his or her designee and deemed necessary

by EPA for reviewing State program administration and enforcement. --

.,... .-' .•!'; . _ . :.' i . i 1: .- . J '::., .", .": .,

Review of Department .of Ecology files may be scheduled atquarterly intervals. Program review

meetings between tne State ~d the Regional Adiniiiistiaior or.their'assignees will be scheduled at

.reasonable.intervalsnct iess than -~ually to review specificoperating 'pr6~edure~-~'p-'~£hedules,to

resolve problems ~d to discuss mutual program cop.ce~s~,.; , ._.;'::,;~ -~ .::' .....; I .:.::'-' 0 ...... it:-·· J· :· : , .• ~.- ".'.; .:.;::, .~I·'- '. 11.',,:..., ....1-' ...; .~:.:.. 'i ::

These meetings will be scheduled at least fifteen days in advance unless agreed to differently. EPA

will prepare a tentative agenda for the meetings and will give Ecology a chance to review and add

agenda items., .'' . ; .

B. Identification of Priority Activities

The State and EPA agree to develop, on an annual basis as.a part of theState grant work.program,

criteria for addressing EPA-priority activities, including activities regarding handlers of hazardous

waste. These criteria will be based on guidance issued by EPA in the annual Agency Operating

Year Guidance and other guidance documents' as may be appropriate, and-will serve to identify

those activities which should receive-the highest priority during the grant period. Examples of

activities which will be considered high priority will include, but not be limited to, facilities to be

inspected, facilities requiring corrective action work, facilities to be permitted, and enforcement

against facilities with known or suspected groun.d-water contamination.

(j

--- --~----~- --- ------ ---- --__ J:? _
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1'. :~ /:,\"3 1:~'- -=-:

.~ . .-:~ -. .; j .... ~';' • i. .... ~. I - I

r . ".

•

..'-'L;t": !~.-ii.', .i. '~:~~:~;I

As the respective information needs of the State and EPA evolve, changes to this section of the

Agreement may be appropriate: During the annual review'of this Agreement.the' State and.the '.:

Regional Administratorwill carefully examine the following information sharing provisions for

needed revision. "" :

B; EPA

L . '-'EPAwiU generally keep,the State informed of the content and meaning of Federal statutes,

regulations, guidelines, standards, policy decisions, directives, and any other factors that affect the

State program. EPA will also provide to the State general technical guidance and training

applicableto new regulations onanas-neededbasis, EPAwill share-with the State any national

. reports developed by EPA from the data submitted through State reporting requirements. EPA

will provide the State with information (within its control) prior to public information releases,

where such releases ofinformation could impact the .State's program or projects. :","7' J J - ..... ..' "~} ,..-! I\i.~ -f

2. , The State and EPA have agreed to a joint permitting process (see Section VI. D.) of this

. : Agreement). Under this process' the'State and EPA have established policies and procedures

.' by which each 'will pursue theirrespective and/or joint responsibilities under HSWA. . . .~.' .,... . .: . . . ~J!~ ~'" .. i , '~ .....~: ..:. -, .:' .. _.

•

,~

3.

The State and EPA agree to the sharing of information as specified in this MOA andthe

.annual State grant work program. When requested by the State, information including, but not

limited to, the following will be provided:

a. Part A and Part B permit applications, whether received prior to the effective date of

this Agreement qr subsequent to the effective date of this Agreement and whether first .. - I .-.

received by the State or EPA; ,

- b." Such other information necessary to support the foregoing information;'

c. ) Copies of draft permits, proposed permit modifications, public notices; .

d. .:Copies of final permits and permit modifications;' ~' :. .:.. '. ,

, e. Notices of permit denials; "

f. Emergency permits; . . c. ••

g. Closure plans, clean.closure determinations, Notices of Deficiency (NOD), and closure

equivalency 'determinations; , , , .' .

. h.. .Visual site inspection CVSn andRCRA facility assessment (RFA) draft and final

reports and remedy selection documents; and

i. . Notice of violation (NOV), notices to CERCLA off-site facilities, orders, independent

reports and actions including enforcements, and citizen concerns.

EPA agrees to provide to the State copies of any reports, and data, including 'enforcement

sensitive information (see Sections C.S., C.6., and G.3. below), resulting from compliance

inspections within sixty days of completion of the inspections.

7
-,

4. EPA agrees to refer requests for assistance with obtaining an ,EPALStateill numger; to.. t ;' 1~. ... " _ J\ .~ .. "" -",'t/ .~t1 ....

Ecology. EPA will forward any original ECY 030-5 forms received to Ecology within 10

working days. EPA will also contact any new notifier completing an ~A Form 8700-12 to

let them know the correct form .to complete and give the name of the State contact person :

within 10 working days. .: -..... ' '." '.

o . . ... q :,.;<. .: v ":!" . .:::.; '~: .... ,>~: "~L ..:; ~-.:[-: ..... -t::,:~-~, ~"i·V ~,.. ",J:;- ~:~..;.-_

5..~, EPA will make-available to the State othen relevant information as requested which the State

needs to implement its approved program•.-Information provided to theStatewill be.subject

to the terms of 40 CFR Part 2. . , >, .', . '. "

C. State

1. The State agrees to inform the-Regional Administrator in advance of any proposed program

. changes that would affect the State's ability to implement the authorized program. Program

changes of concern include·modification of the State's.legal authorities (i.e., statutes,

regulations and judicial or legislative actionsaffecting.those authorities), modifications of

Memoranda of Agreement or Understanding with other agencies, and modifications of

resource levels (i.e., available or budgeted personnel and funds). The State recognizes that

program revisions must be made in-accordance with rhe provisions of 40 ~FR 27~.21, and

that until approved by EPA, revisions are not authorized as RCRA Subtitle C requirements.

1 ,J "'. ~_ '. £.: .:~ -:: ":-'1.(; !~' :r:~t-i I; ',I .. 11.::- r.. :~ ....; ".

2. Annually, through development of.the State grant work program, EPA and the State will -

agree on the type and frequency' of reports' the State' will make in order for EPA.to maintain 0

oversight of the implementation oith~ St~te's'authoiiz'edprogram.··Su~hreporti~gwill .

include, but not be limited to, the.f~~owi?g:l .' ., -,: _ -i

a. Compliance monitoring and enforcement inforination (see subsection on RCRIS

below); .' 'i' ': '{I.;

..., b. Information indicating' the status of the State's permitting, closure, post-closure, groundwater monitoring and corrective action activities (see subsection on RCRIS below);

c. Various reports designed.to accurately describe the status of th~ State's authorized

program including biennial reports. summarizing the quantities andtypes of-hazardous

waste generated, transported, treated, stored'and disposed in the State; and • • • -. •••••• - .' • _' o..J. H

d. Additional reports as negotiated in the annual State work plan, and updated facility

status information as necessary.' . ',' I .:'... -

. :'.. '"

3. The State agrees to require new generators, transporters.and hazardous waste management

facilities to obtain identification.riumbers consistent with the Dunn and Bradstreet Data

Universal Numbering (DUN) system for businesses and General Service Administration Real

Property Number, or equivalent, for governmental agencies. Pursuant to Section 3010 and

according to agreements between EPA and Washington State, the State is responsible for

receiving, processing, and verifying information on notification forms (Washington State

Form 2) and for assigning EPA identification numbers. The State will receive and review all

new and revised notifications of dangerous waste activities and provide this information to

the Regional Administrator within (20) working days of receipt.

~--~ ~-----. ~. ----- - ~----~. _._---- ~-- - -~.8~~~-_~~ _

o
• .: ~r'~" '":••.•. ..... <40; :/l., l '-: _:'.--; ",- ,·,"1' '0 ... : ::to "._.' ~; _. . _, ..... ,', <: _,. _., " . ',_ •.

A. '-',. The State agreesto provide EPA with acopy of any decisions regardirig requests made by'

f:·. :;-;tiilzar"dous' wastehandlers to change their Classifications (e.g., requests to'be deleted as: ':. . r " J'~'I' ,,;j":""\-':~ t T

'!.~ • ~'J' • f~ "~""(t" . . • -. ", . ') ..,. -;•• _ • ,-.")j-.•••v, ~n. '-'i J

-, generators butto retain facility status) and copies of facility'requests' to-make ofi-sitechanges (;- I. <0 :r tl ':'" r- . - • -- ,'f ..".".~. • ••.• .'.. '-0 -... . ..••••

.. I?!i<?~)() ·pe:.mit issuance (e.g., requests to handle additional wastes not identified on the!' .

.,t~f~~}~t's~~~il~1~~4'~c~&0~ ~d ~~~-.r~'; A ~~~t~ppli;~~ti~~..)~:~.~l;: .. ;~'.:~, :j~ _~-:;t;:r'~'~'~~':;~ ·..,.:...·i····\; ..... ...; .... J"';' ..... •• ; :'-.~ .;,. .... -. • .~~~ "".... • • ...,..,;"-,.

5. The State agrees to provide EPA with copies of reports on data resulting from'any compliance

inspection and subsequent enforcement actions, when EPA requests such copies. The State

agrees to provide EPA with copies of enforcement actions upon request within 60 days of.

'issuance and in accordance to the StatelEPA Compliance Assurance Agreement.' "": ..,

6: ,- • • • j. .. •

As a law enforcement agencythe State agrees to'treat enforcement sensitive information

received and so.marked !:?y EPA in accordance with the State's Public Disclosure' Act.chapter

42.1.7RCW, which provides for exceptions of information for public disclosure. . , ' .

•

• t' ::.~

7. The State agrees to provide any pertinent information requested by the Regional .X·'

Administrator or his or her designee within a mutually agreed upon time frame, as necessary

for EPA to carry out its oversight responsibilities. Unless otherwise agreed upon, the above . (j...... ;f;. •

information will be sent to: Director, Office of Waste and Chemicals Management, EPA

': I Region 10,1~90:6~,Avenue, Seattle, WA 9~1~)l-.1128. -: . .. ,..',',

- ..: i.' 'J.-..•• : • .;' :_ : ... • ..•. •. •. t t • ;; /1 '.. , . . ;'~ Ii. .: ~~....

8.. .The State agrees. to provide EPA with a copy of each State decisionregarding.variances and

waivers ~t the time such requests are granted. Any request for a variance or ,Yf.~ver

concerning a RCRA regulated waste will be sent to the Region 10 EPA 9~f~~e in .S~attle for

written comment before issuance. The department will respond in writing to any comments

. orconcems raised in the EPA review. All written responses will be provided to EPA before a

variance or. waiver in issued. ".' '. _ t • .. ii .... :.

•

.....D.-RCRIS' ~'

, .. .', " . .. . RCRIS is a national database developed by EPA to provide an automated information management

system for the storage, tracking, and analysis of data relating to State and Federal hazardous waste

program activities: The system is designed to provide information needed to support Ecology and

Region 10 in implementing.the'Resource Conservation. and Recovery Act (RCRA)~ as well as

information needed byRegion 10 and EPA Headquarters for their oversight functions...

.-, :. .• -"I. '. t1 11": :!"."

EPA Region 10 and the' Department of Ecology will follow theterms of the RCRIS Memorandum

of Understanding (MOD). The purpose of the MOU is to define the terms and responsibilities for

the management 'of required data using the RCRIS system. Nothing in the RCRIS MOU will be

interpreted to contravene the requirements of 40 CPR Part 271.

E. Site Visits

EPA is responsible for maintaining reliable national data on hazardous waste management. This

data is used to report to the President and Congress on the achievements of the hazardous waste

9
program and to supportEPA's regulatory, development efforts, Whenever EPA determines that it • , .• #.1.).1. J, .JL·.-, .l J· ·1"-~l '.Ii:\. 7_ .' }b ~'J r".; :.J II.· r i,~t.r't._· q···;i~ · ~",' -'J' • •

needs;.tq~o~t~n_~~~1?-.;i?PJ?iIl~ti(W~ RP..;\\Y~}~~~t.!~~~k.!q. g~~this }%~~a~p~frons .th,e State. The 0

State of.Washington agreestosupply the,Regional Administrator withthis information, ifreadily .1 1 \. ~_ •• ..;._ •... I ....• ,. I • •., •• ' •• 1 J.;,.~ .• .r~ .,j, : •• t',' e.:.~+ . -.•

available and as.resources allow. Ifthe.State is unableto provide iheinformation or If it is ..•.. j .. '. it . -. j,l.-·I:·.~"1·"", .f'L";;.5-J -~! t;;,'.c. I~" ", {; ~j. 0,' "t I'i ." ...•.

necessary to supplement. the State Information, J;P~Jna)"cpnduct.~ spec~at~tirvey or perform .. .. •• .. ""i .'\.1~... -.1.: __ •• . • .1-,;- • I ·-:,.1 ...... ' - ....,;,•.• ~. ' ••• ;. 'f,'

information collection SIte VISIts'after notifying the State. EPA WIll share WIth the State any

,.. n~49~al reports developed.by EPA as result ofsuchjnformationcollection.. .._ .... . ..''-11 " .........- .... '!~. ::1.. ' .• ..o_J • : ........... .1 !L. oC;.-,.i _,'oJ' !~'.l. • '.·,h.. _ ••. " ..'.)4 .... ,

:i

U.pon receiptof any information that the handling, storage, treatment,transportation, or disposal of

hazardous wasteis endangering human health or the environment; theparty in receipt of such

.information will immediately notify by telephone the 'other partyties) tothis Agreement of the

existence ofsuch situation" The appropriate contact person for Ecology will be the HWTR Program

Manager; his EPA equivalent will be the appropriate contact person for Region 10. . .:... ~. " . i ." " .' '. ,"' . ..,.,~ •. ' r ~. . I - _ _ \.! •

G.: Confldentiallty" •... ,.·w· • .t • .... . .

.. . -' .

i;

1.

... : ,

t:

, -2.

.-.J

Any information obtained or used in theadministration ofthe-State program will be available

to EPA upon request without restriction: Ifthe information has been submitted to the State ". unae~ £C1airii of confidentiality, the:State must submit that claim to EPA when providing

information. Any mformation obtained from the Slate andsubjectto a claim of

, "confidentiality will be·-treated in 'aecordance with the regulations in 40 CFR Part 2. . ;.~~. ..:-.; ,', :1 ,"i ·-t ••.rr:" ,-t -: :.; .: .. ~. l' .' "~ .~.)-;.~ ...'. .' .' :

. EPA agrees to-furnish to the State information in its files which is notsubmitted under a

claim of confidentiality and which the State needs to implement its program. Subject to the

conditions in 40 CFR Part 2, EPA will furnish the State information submitted to EPA under

. a claim of confidentiality which the State needs to implement its program. All information

EPA agrees to transfer to the State will be transferred in accordance with the requirements of

40 CFR Part 2. EPA will notify affected facilities when such information is sent to the State.

The State will handle'such information consistent with its authorized program and with the

'terms ofthis MOA.- i; -:. '.' . ',. - ,'it, '.. •. ..

o

_,~, " -", :.:.' .... ,,:J I '.. ,'~. '::.r" .. -': ....

3. . Except for criminal:referrals and court specified materials, EPA agrees to provide

enforcement sensitive information to·the State. Enforcementsensitive information may "';

include information, written or otherwise, that concerns potential or pending enforcement

action. When~a formal enforcement-action is.taken, any document publicly filed and

correspondence with the respondent, except for such documents and correspondence as would

be entitled to privilege from discovery, is no longer considered enforcement sensitive. EPA

will clearly indicate in writing which documents or other types of information provided to the

State are enforcement sensitive at the time they are provided. EPA will also notify the State

in writing when any document is no longer considered enforcement sensitive. For any

document considered by EPA to be enforcement sensitive, EPA will exercise its discretion on

whether to release that document.

-- ---------- ---~--10_._

()
--.- -- --.•• -_.__.•--.~-----~._---_._-~ ---.,-,----.•- •••-"_" ._ •••••_.; .=.>_o.-:- __~,_._._•• . ._.,. '.

• vt PERMIT ISSUANCE " , 3f~ --:- ..;fJ: _'~<':"r::: .:,~ i:_.:. ·r(1rT,~ ~){t ·':;H~rl;:;. 'f..' 1;1 ::':'.u ..t.: '1~ 'ib:~ -i

••~/e.' -, tt~_:'-:l' ;q.G ~d; ··;i· t .' .·)r~~~::·:;_... :" ;" ji!':;i' ~n.~ :,;! ·t~li!'-i .:

•

A. EPA Permitting

.r·~: ' ~:. '..~' : .' r: ;" .. .•"':.:'~ .. :.- ;: t :." ',H~ ii·· I.} --~~- ~l-_..t ~:;::y;. "'-'1"7;-:::~:': :,jFh..... "_:' ~'C

Upon .authorization of the State program, EPA.will suspend issuance ofFed(mypermit~for • ..... •• • j - .'~.. ~.I: I. L W .....' J-t - . ..",. - '::'0 --' • t... . ....,. I, 1 j-l"{ ;

hazardous waste treatment, storage, and.disposalfacilities.for Which the State is receiving

authorization. IfEPA'promulgates,·:s-tand.ards for ~dditio~ai'regulation~~m~dated'by HSWA that .. ,', ·.·t .\l ..... ~.. '.J,. .....-' c .J1· .•.• _ " ..- ;.,i_"'_.

are not covered by the Slate's authorized program, EPAwill issue and enforce RCRA permits in the • .' - .' • '.. '.#' .' _ • .•• ' • . _,' • J-: ::.. : f f, •

State for, these new regulations until the,State re~ei ~e.s final ~u~orization for equivalent and .

consistent State standards. If EPA promulgates new standards requiring apermit modification, then

EPA may, pursuant to 40 CFR 270.42(b)(6)(vii), extend the time period for final approval or denial

of a modification request until such time that the State receives authorization for the new standards.

At the time the State program is approved in the new areas, BfA.will suspend issuance of Federal

permits in the State, At the time the State program is'approved in the new areas, 'EPA arid the State

will develop a strategy resulting in the transfer of permits and permitting documents for those

affected facilities. This strategy will include a timeline for transferring' those permits and permitting

. documents to the State program and any pending permit applications, completed permits.or

pertinent file information in conformance with the conditions of this Agreement. '. • - " •• - • 1, . i - .. , .. 4 '" .... • _

The State and EPA have agreed to a joint permitting process (see Section VI.D. of this Agreement)

for the joint processing and enforcement of permits for those provisions of RCRA for. which the

State does not have authorization. As the State receives authorization for additional provisions of

RCRA, EPA will suspend issuance of Federal permits in the State for those provisions. • • ' ~~' - ..' • _, i . i-. . ',' . ' . : . _.: - . ;

EPA's oversight function will focus' primarily on those facilities identified by the' State.and EPA in

the approved annual State Grant Work Plan 'and the' State's' Program Description. The State and

EPA will usually reach concurrence on permit conditions prior to issuance of the draft permit orapproval of proposed permit modifications. EPA may comment in writing on any draft permit or

proposed permit modification; within forty-five days of its receipt, whether or not EPA commented

on the permit application. EPA agrees that it is desirable to have a communication point of contact

in workingthroughthe draft permit.' '"" k' ;

..... B. EPA Oversight of State Permits •. i .

.-

'; i,

-, , J _ ••

For all RCRA permit actions written and issued on TSD facilities by the State of Washington, there

will be three opportunities for EPA review:

•

1) The first opportunity for review will be of the draft application submitted.by the TSD facility

prior to completeness determination by-the State. EPA will review the draft application to aid

in determining if all appropriate technical information has been provided. The purpose of this

review is to avoid a situation where a permit is drafted and then cannot be issued due to a lack

of information or inadequate information in an: application. EPA's review comments will

include the following: 1) a justification, based on guidance or regulation, why additional or

11
....... ..~._._ ... ~~ -~--_.:::. .:.~ ...:...- - -_--:__:..._-:....~.~ ....:......;:..;--~---,~._-_._.~~---

different information is necessary, and 2) a specific description qf:~~~~..Hq~g~~P~t?~ ~o "~~

made in order to determine the application complete. These comments must be submitted in 0

writing to the State in accordance with the application review schedule established by the . &~. .

2) ,fhe second opportunity for review will be of the initial draft of the permit prior to the public

notice 'process. This is aii\nfo"rmat revfeW~'fthe primary'piirpose ~fwhich is toidentify'ariy

issues concernirig'the intent of ReM that should be resolved prior to the-permit going to' 1 :

'public comment:'EPA wilt include in their comments thefollowing: i) a" statement of the '

'; :reasonsfor thecomment (including the section of RCRA and the:State regulations 'that' ',',

support the comment); 2) the action that should be taken by the State in orderto address the,

:comments (including the conditions which the permitwould include Ifitwere'issued by

.. , EPA). A will' respond during this review period in' accordance with-the review schedule , ': set by the State. ' .:

- .. -

3) The third opportunity for review is the formalreview of the draft permit during the public

'comment period. During this review EPA may comment in writing on any draft permit or

proposed permit modification,whetheror not EPA commented on thepermit application. , , ,

..:~~:. --' , /

A statement of the reasons for the comment (including the section ofthe Statelaw or

'regulationsthat supports the comment), and " " " • , ,( ,,', . I, " • ' , '.; "

The actions that should be taken by the State in order to address the comment (including the

conditions that the permit would include if EPA issued it).

1. '

2.

Where "EPAindicates in a comment that issuance,"modification; reissuance, termination or denial of

the permit would be"inconsistent withthe approved State program, EPA willinclude in the

comment:

!f'M~ ' .:~.J :.7 ;:. .f. :: '..

.... EPA will send a copy of its written comments to the permit applicant 'only in thos~ cases ~here ,EPA and the,State cannot reach agreement,pursuant to 40 CFR 271. 19(b). ,EPA will withdraw such

comments when satisfied that theState has met or refuted its concerns and will also provide the

permit applicant with a copy of such withdrawal.

The RegionalAdministrator'an~ t~~';;;ire~t~r ~ill agree to meet at the reque~t' of the.State in

'circumstances where comments by EPA on a draft or proposed, permit are not sufficientlyresolved

by staff to allow issuance of the permit. If the State believes that the terms.imposed.by EPA staff

comments are not justified because of specific conditions or circumstances, the request for meeting

may be initiated by the Director. The Regional Administrator will respond to such request with

recommended meeting date(s) or will concur with the Director's suggested date within ten (10)

working days of receiving the Director's request. The Regional Administrator and the Director will

make maximum effort to meet within twenty (20) days of the Regional Administrator receiving the

Director's request. An agenda and briefing paper covering the issues needing resolution will be

, prepared by EPA and the State and both will be provided to the Regional Administrator and

Director at.least five (5) working days before the scheduled meeting. ' '

() ---- .-.. 12
. ......:._-- .-- "-' -"'."_".. - _.:...... --~..:_.:-_--- .:.._.-:._----.....:.._-''-~_._-~.

•

•

. ," •• ',', ...,.;. '. • ..... • - '. • ...... .-.. ,'. ~.... ..-. -'.• -' ~._~.: .....' "'. r··- .: . -,t {t •• .

Upon request by the State and within EPA's resources and expertise constraints, EPA mayprovide

technical assistance for permit actions:" This'Msistailce:'could be in the form ofusing Region 10' 'i

staff, or EPA contractor(s), as agreedto in the approvedannual State grant workplan, ' l!~ :-;')".. ; . ·._::·-l~,: _ l ':.- .j;-'. I: ;'"": -:J :-." _....>: . ,.: . .: .;: ~~.. t:l'i-·•..' 'i;:':.~ :-B .:k 1"

. . . - ,

, . -,'" " "- . "t',,·,·· , ",..', •. " '

Under Section 3008(a)(3) of RCRA, EPA may terminate a State-issued' permit in accordance with ",.. .- •.', • _ -.'. • .;,-co, --:...: .' • ,'" .,._

the proceduresof 40 CfR Part 124, Subpart E~ orbringanenforcemerit action in ,accordance with

the procedures of 40 CPR Part 22 inthe case of a violationof"aState program requirement." In c ,

exercising these authorities, EPA will observe the conditions established in 40 CFR 271.19(e) and

any other applicable authorities.

c; State Permitting

. ,

The State is responsible for expeditiously drafting, circulating for public review and comment,

issuing, modifying, reissuing and terminating RCRA permits for those hazardous waste treatment,

storage and disposal facilities subject to the authorized provisions of the State's program and will do

so in a manner consistent with RCRA as amended by HSWA: this Agreement, all applicable

Federal requirements, and the State's Program.Description. The State agrees to issue, modify and

reissue all permits subject to the authorized, portions of the State's'program in accordance with .

Chapter ~4.05 RCW (Washington Administrative Procedures Act), ,Chapter 70.105 RCW,,'

(Hazardous Waste Management Act), 'and Chapter 70.1051,) RCW (Model Toxics Control Act), and

to include as permit conditions'all applicable'provisions'of Chapter 173-303 WAC (Washington

Dangerous Waste Regulations). This agreement also applies to permits issued after final

authorization but.for which the processing may have begun before final authorization.

The State agrees to consider all comments EPA makes on permit applications and draft permits. The

State agrees it is desirable to have a communication point ofcontact in working through the draft

permit. The State will satisfy or refute EPA's concerns 'on a particularpermit 'application, proposed

, permit modification, or draft permit in writing before issuing the permit or making the modification. ~. • • I. •

,I ',- ,

D. Joint Permitting Process

," :. -. :'

•

Pursuant to Section 3006(g)(1), and in accordance with RCRA, as amended, EPA has the authority

to issue or deny permits or those portions of permits to facilities in Washington State for the

requirements and prohibitions in or stemming from RCRA, until-the State's program is amended to

reflect those requirements and prohibitions and authorization is received for the portion or portions

of the program. ' ';' '~,.,

EPA and Washington State hereby establish this joint permitting process for the issuance of RCRA

permits in Washington State. This joint permitting process is established in accordance with

Section 3006 of RCRA. The administrative details of the joint permitting process will be

incorporated into the annual State grant work plan. The duties and responsibilities of EPA and the

State for joint permitting, including worksharing agreements, will also be specified in the annual

State grant work plan.

13
_4 .::....._.__ • __• .•_._...~-: . .•.•

iJ'he ~tai!~oft!I~joj.pt.~ttingprocessas contained in the.S~U?gr:ant.'t'o~kpl~!:~ill ~~e\y~ and

revised ~,p~~ as..necessary.but no lessoftenthan annually to ~~~ its,.co~tinu~ ~p~?P.I1,at~~~~~....:

·~f::·~~~:·~..=. ~('t.~t'i .~ It: . ,. '.". ~--!~ <;.. <>: : _,~ I ~. :"",L r . ; •• " ;~: •. :~.

Upon authorization ofthe State for any 'Of the provisions of RCRA, the specifics of the Joint Permitting

}~~I.Jle.Il.t.as,set In the annual State ~~_'Y0~k pl3? wl11.~ ~ended to ~flect ~~,~uthoriz~on. '.:.

Amendment ofthis Memorandum.of Agreement or the execution of a separate Memorandum of, , - ..... •• ., •. , .. :..t • - ~. _ .... .~ • • ... ..\. '.' t ••l: • .,.. . \... ,'" '_ J' . - -1>

Agreement ~y. be required.forauthorization' of any of the provisionsofHSWA. ,~::, ". ': . , .......... ....... ri' -.~ ........; ••' .1'·!'4' '~,J. __ •.~~ +.' _I' t ,.of:.,_ ~:.;•. _~ _

. ! t' "", ..... {;.•' '"': .•. ,

o

VII. PERMIT ADMINISTRATION

A. EPA

EPAwiH administer the' RCRA'permits or portions of permits it has issued to facilities in the State

until they expire or areterminated. EPA will be responsible for enforcing the terms and conditions

ofthe ~ed~ral- permits while they remainin force.

When the State either'incorporates the terms and conditions ofthe Federal permitsin State RCRA

permits Of issues State RC~A permits to those facilities, EPA willterminate those permits pursuant

to 40 CFRPaIt'270 andrely on the State to enforce those terms and conditions subject to the terms

as agreed tointhe StatelEPA~ComplianceAssurance Agreement, July 1997.' - . '. .~ .. -. '_..:. _.., •r• • _ -.. ..... • . c;..,·. r.. ,. .~ r

B. State .';. ... :-' . . ..'/i. _ • ..... ." ~'. .' ~t o

The State agrees to review all hazardous waste permits which were issued under State law prior to

the effecti;ve date ofthis Agreement in accordance with ~O CFR 271.13(d);.and to modify, or revoke

and reissue" such permits as necessary to require compliance with the amended State Program. The

State will notify EPA otany permits not equivalent to Federal permit requirements, including any

....permits that have been issued but are pending administrative or judicial appeal. Except for these

non-equivalent permits, once EPA has determined that the State has fulfilled the requirements of 40

CFR 271.13(d), EPA will terminate the applicable Federal permit, or Federal portion of the permit,

pursuant to the procedures in 40 CFR 124.5(d), notify the State that thepermit is terminated, and no

longer. administer those. permits or portions of permits for which the State.is authorized, ,; .. ,

-~. . • & • ..0 +~ +._,

Where the State permit is not equivalent to Federal permit requirements,the State may' modify, or

revoke and reissue, its permit as necessary to require compliance with its authorized: program in a

manner consistent with RCRA as amended by HSWA. If the State does not modify, or revoke and

reissue, a permit equivalent to the Federal permit, EPA will administer and enforce its permit until it

expires or is terminated.

.. '.;... \ . J: <. :"

Upon the effective date of an equivalent State permit, EPA will terminate the Federal permit

pursuant to 40 CFR 271.8(b)(6) and 124.5 (d). EPA will notify the permittee by certified mail of its

intentto terminate the Federal permit, and give the permittee 30 days in which to agree or object to

termination of the permit. '

The State agrees to resolve all State permit appeals in a manner consistent with its authorized 0

RCRA program.

-14,
-~ -- . -- -~'. "'-~ - .----_ ..... _- '-'-'- --~_ .._- _. -.. ,

• VIII. CORRECTIVE' ACTION PROGRAMIMPLEl\1ENTATION

A. General, Corrective Action Policy

." ; '-:'" ,

_ ..

t

•

·_·\:t!,. ~,"!"~;..:.:""!~~.. I~;' :·J.:rt;1:! L,:~:'~ "lD~r~ .~.:.;g~~·1!· [;44' . ) ·l.l:J:~ i.'C:l"~"'q . .; . "''-'.- "t-·':... :','

As indicated in the Policy Section (Section Ilj.ofthis M9A, the State. and ~A havedeveloped an

innovative and precedent setting program for implementation of RCRA corrective action .,

requirements at dangerous waste management facilities jn.Washington. Washington may

-implement RCRA corrective action requirements using ~-;enforceableorderor decreeissued

pursuant to the State cleanup-authority, the Model Toxics Coritrol.Act (MTCA) and its" ': .. ~. ... )..... • • ! .,. ., .,.~ J.. U' ' ".. .. . _. '.

implementing regulations, in Chapter 173-340 WAC (for specific details, "see Federal Register

November 4, 1994, 59 FR 55322, which is attached as' Appendix A to this MOA).

B. Coordination with EPA andTransition from Federal Administration to State

Administration of Correction Action

This section sets forth themanner in which the-State will coordinate with EPA in adniinistering the

State corrective action program..The State program is and will be administered by·Ecology. The

State and EPA agree that consistent coordination and communication is important to successful

implementation of a corrective action program. In order to foster such coordination and

communication, EPA and Ecology intend to inform each other as early as possible of anticipated or

pending corrective action orders. At a minimum, anticipated Federal and State actions will be

coordinated through' annual negotiations of theState grant- workplan 'and periodic sites meetings. ; . .rj, "..:..~ :r

On November ~'''1994, the State began to administer and 'enforce RCRA corrective action'

requirements withiri the:State of Washington. EPA actions which fall under the Federal omnibus

authority of Secti'on'3005(c)(3}of RCRA, 42 U.S.C. § 6925(c)(3), and/or which are Federal

enforcementauthorities, including actions issued pursuant to Sections 3008(h), 3013, or 7003 of

.... RCRA, 42'U.S.C. §§ 6928(h), 6934, or 6973, continue to be administered by EPA. In addition,

HSWA amendments for which the 'State has not been authorized continue to be administered and

enforced by EPA.

C. RCRA Facility Assessments (RFAs)

•

.... ·.... f , \

A RCRA facility~s~ssment is typically the firststep in implementation ofcorrectiveaction' .~. ,

requirements. The State and EPA agree that the purpose of a RCRA facility assessment is to identify all

solid waste management units at a,facility and to evaluate those units in terms ofreleases or potential .

releases of hazardous waste and/or hazardous constituents. The State agrees that all State-conducted

RCRA facility.assessments will include a preliminary review of available, information of the facility and a

visual site inspection to confmn historical information and to inspect for evidence ofreleases. Ifreleases

are observed or suspected, a sampling visit may be con~ucted to assess contamination.

Ecology agrees to perform or provide for a RCRA facility assessment at all facilities seeking or required

to have a permit under RCRA. EPA and Ecology agree to negotiate schedules for the State to implement

RCRA facility assessments for facilities subject to RFAs during annual negotiations of the grant

workplan.

15
o

s ", ;....

•

•

•

The corrective action implementation process includes the following tasks: (

• Investigation ofreleases; Z'.:1'.· fO·~:)· • ·,.,:'··/1:'!.... ·')H··;: .r,

• Characterization ofreleases, potentially contaminated media, and routes of exposure which

"" . - mayaffect human health and the ert\rfronment; .o.', ••·", .;Gi; ...? '. ',,"< "'il ; .~":> •.. ,.J'1: -:

• ' StUdY'orpotentii!lrei~~es;':~;;' ;r:~f·r~fC"::f~ ;r';:-:~ .:!':;' 1,'-' :',·::?Jf):3b=....._·! .:'i'r;;:L~vl' :::,.

• Study of potential corrective measuresi " -.".; - ..C": :;,.:. 1•. '.'! ."U:1"')l': 'J ""'.'; ~i:.',;::'·

• ':'Planii"ingofcorrectlveactioAme3:sures:: i>.. ~·:L'. 't·;,.··.:' :1,:;;:,,: ;C/ "':.!',"

#.', • '. ; • .::. '":0- '.: .' _-, ' . ,_,", • ,. -~, -, ..... ~~.' .' •. ::J f. ._ .

. ,Selection of clean upstandards, correctivemeasiIres, and enforceableperformance standards

. that ensure' the 'effectiveness of the remedy, after allowing for public participation in the ~, selection process; . .". ....,. . a.. r :

Implementation of corrective measures;

Monitoring of the long-term effects of corrective measures.

" .. . "

The corrective action implementation process may include additional tasks. Ecology has authority

under Chapter 70.105 RCW and/or Chapter 70.105D RCW to-compel owner/operators of RCRA

facilities to complete all corrective action process tasks.identified.above.

[ ...... '! '."

. .~ '.. ..

E. .. ' Corrective Action Financial Assurance i J.:::.;( '. .":'.' _, "

.' -; .... ~. # ~: • .".\i~j·.. :.:~: oJ·-.' !'':."' ). " ...f·~./· .... • "..... •

The State and EPA agree that requirementsfor corrective.action financial assurance benefit .. 0

regulatory agencies by ensuring that adequate resources are available to complete corrective actions, '

EPA and the State agree to implement these requirements in order to compel owner/operators of

facilities subject to corrective action to fulfill their corrective 'action obligations., Ecology has

promulgated regulations atWAC 173-303-646(2) that require financial assurance for corrective ,

action.activities at dangerous waste management facilities. Ecology agrees,to require financial

assurance for completion of corrective action activities in accordance with WAC 113-30.3-646(2)

'and/or WAC 173-340-440(6) to fulfill the requirements of.WAC 173-:303-646. .

F. Public Participation in Corrective Action Remedy Selection - . • , t . -.' .....,,;' ~..'" .' ; r Y f' ,:

The State and EPA Region 10 agree that adequate provisions for public participation in corrective

action remedy selections are an integralpart of the corrective action program, that regulatory

agencies have aresponsibility to provide for adequate and meaningful public participation

opportunities. 'Federal implementation of correctiveaction provides for public participation in

corrective action remedy selections. Ecology has public participation provisions in the Dangerous

Waste Regulations and in the" Model Toxics Control Act Regulations. Ecology agrees to provide

for public participation, including'public participation in selection of corrective action remedies,

which, at a minimum, includes the following: ." ;;".

• Public Mail Out. Ecology agrees that public notice will be mailed.to persons who reside

within the potentially affected vicinity of the proposed corrective action remedy. The public

will be given a minimum of thirty (30) days to provide comment on the proposed corrective

action remedy, unless other authorized program requirements are applicable.

16 -

()
, " ... " __ ....' __--::_-0..__.•._':'__.•.;:_". _ ... _= '.,...:':_~__._.

•

•

•

i ·'\C-1•• ~··! '.~' :'. .~ .. ~\M'" ,.it, ". '1,,, ,.......', ••• _-:'~.-'Jr.l .,... tJ.

• Newspaper Notice, Ecology agrees thatnotice of the proposed corrective action remedy WIll

,be published.in, the newspaper of the largest circulation in the .city or county of the proposed

" ,action?y ,dis~!~f~~;)egai'.~o~ce~'o!?Itherap~~?i?datefo~~~'. ·~otic'~'bf-.~~!.~!~~b};~~,:~·,

,.. :,' .,correc~ve a~tI()nre~edr~!~~.co~~urre~~ly ~e m~led...t9~~y ~t~er ~~.'1'S-?~~R4-~ t!l-~rFfB1?gy

"" det~~~e~.to~~ ,app~opnate. The pu!?lIc, will be:alI91w~~.a ~~mu~,ofjthirty~~?~f~Y.ft~ ._provide.commenton the proposed corrective action remedy, unless otherauthofized.,". , 1)~ ••. ,) •. J.,~' .•.• ...104' a , r •••.••• , ,,,"... ;f'.~:;:'-"I;·.J.'·!;·--:,\~-L·

program requirements are applicable. ' -,., ,, ,- : ~:: '..<' - ~~ . .'"., ~~}.: l'1.

• Public meeting. Ecology agrees that if, during the public comment period, ten or more

persons request public meeting on theproposed co~ective actio~ remedy~ Ecology will

hold a public meeting for the' purpose:of receiving public comments. '..'

• J .~

G. CleanapStandards and Levels, and Remedy Selection t .. .1 .

The State andEPA agree that consistent, environmentally protective cleanup standards and levels are "

essential to the'success of a corrective action program. The State and EPA agree that consistency between

environmental agencies in application of available cleanup standards and levels is preferred.

EPA and Ecology agree that the Model Toxics Control Act Regulations establish minimum State

cleanup standards of cumulative carcinogenic risk no greater than l(},s; risks from individual

carcinogens at no greater than 10-6 for residential sites and 10-5 for industrial sites; and for

non-cardnogellic'substarices"~lthsimilar'heaItit effects, a hazard 'index'of nogreaterthan'(I) may

be used to fulfill the requirements bfWAC 173-303-646(3). ' , , , ::;,~, ,";, ';-" " ·_L·~:.· '1.<_: • .;~" : __:., . ,t ;., } ; ,', ;.·r-".·~ _,.·;l~.·,··.·

Ecology 'will' est~blish site and ~edia specific 'corrective action cleanup levels and select final '.

corrective action remedies using the MTCA cleanup standards. The'State agrees that 'site specific

cleanup levels will, at a minimum, be no less stringent than those required under RCRA. The State

and.EPA, acknowledge that as of the effective date of this MOA, RCRA' and the regulations '

.... promulgated thereunder require corrective action provisions be included in'RCRA perinits as'

necessary. to protect human health arid the environment, but do not contain provisions for media,

specific cleanup standards or levels.. .The State and EPA agree that in the absence of final media

specific cleanup levels under RCRA, State cleanup levels will be evaluated against the proposed

media protection standards calculated pursuant to proposed" 40C.F.R. § 264.525(d) (located in draft

Subpart S). In the event that EPA promulgates final cleanup levels applicable to RCRA, the State

will ensure-that the State cleanup levels will, at a minimum, be noless stringent than those required

under RCRA, in accordance with the applicable authorization requirements.

The State and EPA agree that site and media specific cleanup levels calculated using the MTCA ,

cleanup standards may be more stringent than Federally calculated cleanup levels. In,the case of

Federally overseen corrective actions where achievement of Federally selected final remedies does

not achieve compliance with MrCA cleanup standards, the State may require additional cleanup

under independent State authority. In order to minimize circumstances,where sequential and

potentially duplicative cleanups may be necessary, EPA intends to consider the media protection

standards established pursuant to the MTCA regulations when selecting corrective action remedies.

EPA further intends to provide opportunities for Ecology to participate in the Federal peer review

,panel for final corrective action remedy selections.

17
_ •.. , L •••• ,_~ __• •• _ ••_ ." _.'OJ. •

I H•. " .Coordination of State andFederal AC;tions. .. .. ; :,.. .. -r .lr -c' ,', "

•. ~... ~.. J ... , ~..... .io'~ ·01... _..... j.~.~. -'f' '.: , .• 1.;;.•• J r~·~· . --- ~J';;'J- .,.'! ,.J'.. '.'::".,' :'" . 0 .TIid. Staib m:id EPA agree that 'c'o~'si~tetit~c96icifIi~tion'ai{d6omk8ni'cati~: betWeen'reghlatory

agencies is important to succ'essfunnipl~iDentation 'ora correctiveaction prbgr.ilii. Iii order to

, fostersuch coordination and coinmuniditi~~~iEPAmdEcologyintend'to inform each other as early .- • - " .. ' . '- ,-'" . '\1 ., .~. ..-. '-;'.')-;" p. ; ._. '\.-:•••

as possible of anticipated or pendingcorrectiveaction orders. At aminimum, anticipated Federal

and state actions will be coordinated through theannualnegciiatioris bfthe'annualState'grant

workplan and periodic sites meetings: . . '" '... ;. :' .. " ,."',;t.!

..: .' .

I. '\.- -.. .'.:. ~: l ;.: j • . ..~., -". .J •. ,I. ;:..":1, I

Applicable, Relevant and Appropriate Requirements (ARARs) '" '.. .. . :.

r.. :

The Model Toxics Control Act, pursuant to WAC 173-303-646(3), contains provisions for

incorporating applicable, relevant and appropriaterequirements ("ARARs") from other laws into

cleanup decisions. Ecology will use the ARAR process tothe extent required by RCW

70.105D.030(2)(d} and WAC 173-340-710 to fulfill, the requirements of WAC 173-303-646(3).

Ecology intends to use the ARAR process under MTCA constructively, and will not allow

application of MTCA ARARs to unduly delay issuance of RCRA orders or permits. "

. . 1 ;') •. _

, J. ,Corrective Actlen.Requirements in State Issued Permits. .... . • ........ :; _ .. ' ••. '. ',: •.1.' .....,. • .'.' I

:" . '. ~; . ". . ~. 1) f . .-: ."'. : 1'· :,. .-' " . '. . ... " :. - ;' '...., '

The Stateagrees tospecify COrrective acti6n'~eqwre¢erits andschedules.of compliancefor .. " •••_ ., ,: J '>·.;'·:r ..' ..,. , . • • .

corrective action into all State issued dangerouswaste management permits. Corrective action and

schedules of compliance for corrective action will'be'either incorporated into permits' by reference (J

at the time of permit.issuance, orbe incorporated into existing permits as permit conditions using

the permit modification process, ' .. ' _.;. '. .: '. "', . • .~ '. • , , • _. • l , •

All permits issuedby EPA prior to fi~al authorization of the State for correctiv~ action will continue

to be.administered by EPA until the issuance, or reissuance after modification, of the State permit.

"Upon the effective date of the issuance, or reissuance after modification, of the State permit to .

incorporate authorized State requirements, those EPA-issued permit provisions for' which the State

'is authorized to administer and enforce will expire. HSWA provisions for which the State is not

authorized will continue in effect under the EPA-issued permit. . .

. .'. :'" . ..-' " '..,.. ~:-.. -. t ...,_

IX. OTHER FEDERAL LAWS·THAT MAYAPPLY TO' ISSUANCE OF PERMITS ;'. •• : . " ... ,ii :'--

EPA retains responsibility for administration and/or enforcement of other Federal laws that may

apply to the issuance of permits (see 40C.ER. § 270.3). EPA and the State agree to coordinate to

the greatest degree possible any permit actions to which the following laws may apply: The Wild

and Scenic Rivers Act, 16 U.S.C. § 1273, et seq.; 'the National Historic Preservation Act of 1966, 16

U.S.C. § 470, et seq.; the Endangered Species Act of 1966, 16 U.S.C.. § 1531, et seq.; (including the

consultation provision of Section 7); the Coastal Zone Management Act, 16 U.S.c. § 1451, et seq.;

and the Fish and Wildlife Coordination Act, 16 U.S.C. § 661, et.seq. The State agrees that, at a

. minimum, EPA will be made aware of anticipated State actions through annual negotiations ofthe

grant workplan and periodic sites meetings. 0

18
'. --~ ':,,-... '-'~ ..- -~ ... - .. . '-::'~:.

• 'i! X~'(;i:'C()MPLIANcEMONITORING AND ENFORCEMENT :JfF: .(. ;:w, .r : ;WVT ~,,~~ ; ~~;D;' ,~ .. ('. Op{ •• ~~••: \~,: :~i' . : ~~ ,~~,.,:<: "-$ ., Or) '~"".{ -"~ ·!>:::.'"\;:~f Jd! ", l/ '.. ~'''' ._:~ .b: ~t.,l

.thd State 'of Washington has"primary,responsibility for compliance and enforcement actions within

theapprovedState program and under State statutory and regulatory authority. EPA retains_. . r. - ..,...' . . . . ' 'I".,. • . ........ . ...." " ~1. .' • io' ,.,. • _ • .'t-. - -J

responsibility for 'ensuring fair and effective enforcementof Federal requirements and acredible ''I:'', -1- •••.., '.,. '._ .' ."." ",_',,' _ :).~ ."....,... ~" .. ' ',' - , '.;l .

national deterrence to noncompliance through an' effectiveState/Federal partnership and' art""··· ., . .. ...., ..,.. "1 ,.... . -, . i _.. .... ... • ..... --.. •• .<ot •• - .•.,... ("' ,-' •., ,__ • _._",

oversight role. The State and EPA agree that the following elements are helpful for' an effective .

enforcement and compliance monitoring program.under final authorization: 1)0 ciear'oversi8ht"-· '

criteria sp'~dfiled in advance for ~rogr~perfoimance evaluation:..2) ere'ar criteria for directFederal

.enforcement'specified'in advance 'with written'procedures for advance consultation and notification; , . " " .' ,. .- -.. '. '.

and, 3) adequate State reporting to ensure effective oversight. .' --, -, ','''.'' . . . . .,.' ..' ~.. . .;:.- .. . J\; '1 • • •

Ao EPA

. ~.y ", -' -

, :

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•

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Nothing in this Agreement will restrict EPA's right to inspect any hazardous waste generator,

transporter or facility or bring enforcement action against any person. believed to be.in violation of

the State or Federal hazardous waste program. or believed to have a release of hazardous waste or

constituent. Before conducting an inspection of a generator, transporter or facility, the Regional

Administrator will normally give the State at least ten (10) days notice of the intent to inspect,

unless EPA.·hasreason to believe that the situation maypose.significantharm to human health

andlorto' the environment, and as agreed to in the StatelEPA Compliance Assurance Agreement..

: Should EPA choose to conduct independent oversight inspections, EPA. will give an Ecology ;

. representative aminimum Often (10) working-days written.notice of its intent to do so' arid will give

-'the Department of Ecology an opportunity to attend. The frequency of EPA oversight and training

inspections will be specified in the annual State grant work program. 'EPA will negotiate on an

annual basis with the State the number or percentage of the State's compliance inspections on which

EPA will accompanythe State. .. '..; '.,. .' ',:..' ,. J.. .

...., If'EPA has' 'concern about a particular facility or compliance situation, they will request that the

.Department peiform an inspection, and fifteen (15) working days prior notice will be the standard

business practice: This notice may be oral initially, butwill be provided to Ecology in writing at

least ten (10) workingdays in advance ofthe date that EPA would, conduct an inspection. .Jf the

'State performs a compliance inspection and submits to EPA a report and data relevant. thereto

within that time, no EPA inspection will be made, unless the Regional Administrator has reason to

believe that there is an imminent hazard to human health and the environment or deems the State

report and data to be inadequate. In case of an imminent hazard to human health and the .,.

environment. the Regional Administrator may shorten or waive the notice period. . - . . ,'. . • ....... 1 . . ~;.:-

For purposes of oversight compliance inspections and' enforcement, EPA willmaintain a policy of

"no sUl1?rises" to ensure the.productive use of li~te~ St~t~ and Federal resources and an effective

"partnership" in achieving compliance. This principle should be applied to allaspectsof the ,'.

compliance and enforcement program; covering inspections.enforcement activities.press releases,

and public information, and management data summaries uponwhich State andnational '.

performance are'assessed. In order to guarantee that there is ample advance notification, EPA e >

. agrees to confer with the State to establish agreement' in writing and:reach a clear, consistent "

understanding on the following matters: a) Advance notification of intended' inspections and

19
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enforcement actions; b)Specificidentification of who, will be notifiedt.,c) How the notification will

be done; d) When the notificatio;wiii~c~ur;'and, 'e)'Oefine'ibe piocess'foiStatelFederiI ' • 0 nL<!.onsult~49!1.~~tc!i~pu~~. ~s21~9-.9-!1..~~ ~pfo~e~~!1~ .~ct}9~~ ~4,policy ¥Id:~~gW~fory i?terpr7~~tion.

:t; ..·~r.'.i1.i:..'l~ ,.- ,.t',)1.~;L=&::; r-':}J.e:Li-!3'1 h!L:~ '··~OJi.~:~;;,. ;t.3~,-=~ "".':'l,.:--' .. !~ 'T-:: ' ..:'~"'.:~ ~~:; . ""'{i"' .t'~~

The wntten. agreement..established on,the above matters. is the "StatelEPA Compliance Assurance • '.• l.-V J '.. .1 •• ' • -. I, I· 1 t I" I • U ~1; •• j I....... " • " • • . '.s. ~. " . - Agreement", an~ntii~ereby'incQffiorated.byreference into thisMemorandum ofAgreement.. The ..... '~4!1' ~', ••.•. I, ·~,;.r.)l..: "';;' .1.: j ' '. _. . _ .• ,., '., 1"1 ~t·) • • : ' ",, . . .•. ' .. :~.~

intent q~ the _co;mplim:tc~ assurance agreement is t~ providea basis for implementing aneffective .

StateiF~d.~nit enforcenieni.relation·ship,:)'he cO~p'ii;mce' assurance _agie'eni~nt identifies oyersigh; 1~-1"-"-~ l,.. -. "".'-#".'~ l' ~1... ••.. , ,,·t " .,.

:'.criteria, standards for assessing compliancearideiiforcemerit performance standards, protocols'for

~:'notification, 'consuiiation',~oveifiling: oli'RCRJ\"em6icement matters, and State reporting. This' _ • ,'•• ';'._ l-l' ,1-;1 ,oJ, . -, . 1_;"'· ....,. if' .... ):." ,4' _ '.' _ 4 ", - j- • ' •• ' , 1, ". .

compliance assurance agreement alsodelineates the' relationship of the State compliance assurance

policy to the compliance strategy and 'the compliance assurance agreement itself. The objective of

the compliance assurance agreement is to maintain a stable, predictable, and coordinated

compliance and enforcement presence and the objective must be consistent with the requirements of

40 CPR Part 271. • ,.-\J..} "t', .. ! l \ :s...

EPA also-agrees toinform the State in writing in a timely manner of any national or regional policy

changes or program direction changes and will generally allow the State a·minimum of ninety (90)

days to implement those changes. "'"' ,...

.: ;" f ;~~~:: .. '; i I ; ...,._ ' .. (:1 :.-_'._ t -. _ .• \ r ". _~ '.. .. .... "',.;' " ..

EPA maytake.enforcement action against any person determined tobe in violati~n of RCRA i~ .

accordancewith Section.3008(a)(2). EPAwill take enforcement action upon determining that the

State has.not.takentimelyand appropriate enforcement action or:uponrequest ~y the State. Pri'or to

- ··issuinga compliance order under Section.3008(a) EPA-will give notice to the State. EPA also, " n ..retains its rights to issue-orders. and bring actions under Sections 3008(h), 3013 and 7003 of RCRA .,.

and any other applicable Federal statute, ,. i." "" ' -

l ''::i.;'~ __ .' .. _;~:, . -; ,. ~:-. ". . '" :,_. ..' /:1 ' .

After notice to the State, EPA may take action'under Section 3008 of RCRA. against a holder of a

State-issued permit on the grounds that the permittee is not complying with acondition of that .

..., permit. In addition, EPA may take action under.Section 3008 of RCRA against a holder of a Stateissued permit on the. grounds that the permittee is riot complying with a condition that the Regional

Administrator, in commenting onthat permit application or draft permit, stated was necessary to

implement approved State program requirements, whether or,not that condition was included in the

final permit.v: . . L ... :.";l",":,;,;' --;.-;,. ,,;"

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B. State: .. \

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As a part of theRegulatory Reform Act of i995,the Washington State Legislature adopted ESHB

1010, codified at Chapter 43.05 of the Revised Code of Washington (RCW). Portions of Chapter

43:05 RCW limited Ecology's authority to issue penaltiesincertain circumstances. See RCW

43.05.050 through .070. These limitations threatened the validity of Washington's Dangerous'

Waste' Program because ECology's authorization'is dependent upon its program being at least as

stringent as the Federal RCRA program. To ensure that Washington's Dangerous Waste Program is

as stringent as theFederal RCRA program, Ecology determined pursuant to RCW·43.05:901 that

'the limitations of Ecology's authority to issue penalties in RCW 43.05.050 through .070 would not /)

apply to the portions of the State Dangerous Waste Program that implement Federal RCRA '" ('-...

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requirements. No'ii~;(r ~~\'sent to 'the Govern~rand'the Legi'slitufe asrequired by RCW 43.05.901

on December 10, 1997: Acccrdingly.Bcologyhas resolvedanyissuesraised by Chapter·43.05

RCW concerning this authorization request by agreeing to abide by Ecology's interpretation of

Washington's ESHB 1010 contained in Ecology's letter to Washington's governor, dated-December

10,1997. 'r .; ~. ;" ;"'-~' " ,-, .' ::~ .. ~,,' ":'" ~:;. -, ''';·.··-·l~: .. •..~,".: .. '" '.;~'~ -

The State' agrees to carry out a timely.'and effective program for monitoring compliance by

generators, transporters, and facilities with applicable program'requirements (see 40.CFR 271.15).

As part of this program, the State will conduct inspections to assess compliance With generator and

transporter standards (including manifest requirements), facility standards, permit requirements

(including late or deficient Part B applications); compliance schedules;' and all other program

requirements. Compliancemonitoring'activities and priorities will be specified in the StatelEPA

ComplianceAssurance Agreement and the annual State grant workplan and will be consistent with

all applicable Federal requirements and with the State's Program Description. . - - ..'. . .- ....-. ".

The State agrees to take timely andapp~opriate enforcement action as defined in: the StatelEPA

Compliance AssuranceAgreement; the HWTR Compliance Assurance Policy (policy 3.1, effective

date: June 19, 1997) and its related attachments; and/or, as definedin the annual State grant

workplan. The State will maintain procedures for receiving and ensuring proper consideration or

information about violations submitted by the public.. '.

In civil enforcement proceedings, the Department agrees not to oppose interventionallowed under

Civil Rule for Superior Court 24, on the grounds that the,applicant's interest is adequately

represented by the State...; r,; , , " , .,. .1:." ., '" . ..

i,

The State agrees to retain all records for at least three years unless there is an enforcement action

pending. The State agrees to provide all records to EPA upon request. If there is an enforcement

action pending, all records will be retained until such action is resolved.

XI. AVAILABILITY OF INFORMATION (Section 3006(1))

A. General , . .. ".::"

OJ.. :. . .

Section 3006(f)"of RCRA requires that an authorized state provide for the public availability of

information obtained by the state regarding facilities and sites for treatment, storage and disposal of

hazardous waste; and that such information is available to the public in substantially the same

manner, and to the same degree, as would be the case if the Administrator were carrying out the

provisions of this subtitle in the state. .

B. Requests for Information

•

1. Pursuant to the Federal Freedom of Information Act (FOIA), 5 U.S.C. 552(a)(2), the State

agrees to make certain materials routinely available without a formal FOIA request.

Examples of these materials are final opinions or orders in case adjudication, State

regulations, statements of Agency policy, and administrative staff manuals affecting the

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,.: public. In addition, records prepared f09·outinepublic_~stri~~t.i9P.~~ll...'ll.~o be;~~,~~jl.;,j:' . (\)

::.available. Examples of such records are press releases, copies ofspeeches, pamphlets, and " •• __ ..'" _ _..... • .~ •.1 • 'C_. ..' ~.~.J. 10 ......

. . educational ma~~rials. !" .•'; '.,' • '~;:; _,:" .~ ,:;:'~L "',' .;,-; ,,:;s'·· ;:,.:.:;~:.~ ';;j .r}"i:'~::/~·' '.;i

,.1 .". ".- ~'- _.". -. "'I " ' •• ~' • ' .• I·... ?, ~. ..... .;':'" . . . or ., .... . .._ I"~

2.'" The State Agency agrees to make reasonable 'efforts to assist a: requestor in identifying> ..

records being sought, and to help the requestor formulate his or her request. :.-!.,' i-,

3. If a request for information is denied, the State' agrees to provide the requestor the' basis for

the denial and to notify the requestor of State judicial (or, if they exist,.administrative).; ~-:.

: procedures, including statutes of limitation.: I ';J ; :i .._ ' I') . :,'

4." --"Th~ Sta~e,~~~es:~~.~ake the full~st ~~~sibl~ ;ilis;l~~·~~· ~Fre~ords to the ~~blic, subjectto any

ofthe exemptions under the Federal FO~ recognized by the Sta~e.· .. ,.'

5. A reduction or waiver of fees will'be considered in connection with each request from a

representative of the press or other communication medium, or from a public interest group.

.The State agrees to reduce or waive the fee if it determines that a reduction or waiver of the

fee is inihe public interest because furnishing the information can be ~onsidered'as primarily

benefiting the general public." '. . .. " .'. .. _ I

C. Confidentiality of Business Information'; z

If a'claim of confidentiality is asserted and cannot be resolved in the time period provided for an

agency response to a request, the State agrees to notify the requestor-of the' confidentiality. claim

within the maximum 20-day time limit provided for an agency response. In.addition, the requestor

will be told that the request was denied in order to resolve the business confidentiality claim.

Ecology agrees that notices of denial of public disclosure will include. discussion of applicable

judicial appeal procedures. State law does not establish a statute of limitations on appeals, so

notices of denial will not discuss statutes of limitations. Ecology agrees to maintain a log or file of

juch denials of requests for information.

D. Oversight

1. The State agrees to keep a log of denials of requests for information (or a file containing

copies of denial letters sent to requestors) which will be made available to EPA during the

State review." .' -. . .. ",

2. The Stat~_agrees' to keep EPA fully informed of any proposed modificatio~s to its basic

statutory or regulatory authority, its forms, procedures, or priorities, 'as applied to Section

3006(f). '

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• XII. DISPUTE RESOLUTIONS

The following dispute resolution applies to the entire MOA and supersedes th~ Corrective Action

addendum, dated·October 17, 1994. These revisions reflect the current EPARegion 10 organization

structure. No resolution of any dispute is allowed to conflict or contravene with the requirements of

40 CFR Part 271. .

The State and U.S. EPA Region 10 agree to pursue informal,staff-level dispute resolution to the

maximum extent possible. In cases where informal, staff level dispute resolution is not effective, a

straightforward formal dispute resolution procedure will be used. Whenever EPA or State personnel

directlyinvolvedin the implementationof this agreementjudge that a problem exists or that this

agreementis not being followed, the issue should be resolved at the State Program Manager and the EPA

OfficeDirector level. Ifthe State Program Manager and the EPA Office Director cannot reach .

agreement, the issue will be elevated to the Director of the Washington Department ofEcology and the

RegionalAdministratorof the U.S. EPA Region 10 for final resolution.

When necessary, the U.S. EPA Region 10 Office Director for the Washington Operations Office

will be responsible for coordination of the dispute process and for preparing any necessary

documentation.

•

XIII. PROVISIONS FOR MODIFICATION OF THE MOA

This agreementmay be modified upon the initiative of either party to ensure consistency with State or

Federalprogram modificationsor for any other purpose mutually agreed upon. As final authorizationis

achievedfor the 1984amendments to the Hazardous and Solid Waste Act (HSWA) and future

amendments to RCRA, these will be incorporated into this Memorandum of Agreement, along with any

necessarychanges to State statutes, regulations, the State program description, and Attorney General's

statement. Until the State is authorized for the 1984 HSWA and any future amendments, EPA will retain

.....responsibility and authorityfor the amendments. Any revisions or modifications must be in writing and

must be signed by both the Director and the Regional Administrator.

XIV. DISCLAIMER

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

rulemaking under 5 U.S.c. Sections 551 et. seq. or under chapters 70.105, 70.105B, 70.105D and

90.48 RCW, and may not be relied upon by any person to create a right or benefit, substantive or

procedural, enforceable at law or in equity by any person.

~~~.iZ..

Date: ----.L....,......O:::="',....,.. 7'/2q2f ...........~------

U.S. Environmental Protection Agency

Region 10

.Regional Administrator

State of Washington

Department of Ecology

Director

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,J.:' ~5322 Feder~l Reglster) Vol. 59, No. 213 I Friday" November 4, '1994': i Ruies and R~gu'rations

40 CFR, p,art271

.NVIR()~'MENTAL PROTECTioN " '

7AGENCY ',", :" :. • I . ,"

Revisions to State hazardous waste authorized under the federal RCRA

, programs are necessary when Federal or ,statute. RCW 70.105.130 designates

" Stat~ statutory or regula.t0ry authority is ,Ecology as the agency tasked,with~' '.

modified or when certain other changes implementing the authorized RCRA

" , occ:u~. Most commo~ly, State program "program and provides Ecology with the'

[FRL-Q099-5] .: '; " revI~rons are ~ece~sltatedby changes to, _ authority to establish a.permit system .'

, ' . EPA s regulations I':40 CFR p~rts 124: for owners or operators of facilities .

Washington: Final A'uthorizatton of : 260-266.268 and 2, O. 'which treat, 'store:or dispose of ."."

S~te Hazardous Waste Management B. State of Washington' dangerous waste. RCW 70.105.020

Pr09ram Revisions, ' h E 1 d d The State of Washington initially aut orizes co ogy to revise ~n mo i fy

AGENCY: 'En\'ironmental Protection received final authorization on January the Dangerous Waste R.egulal1ons. '

Agency.. 31,1986. The State ofWashington ' Statutory authority for MTCA is also

ACTION: Immediate final rule. received authorization for revisions to found in RCW Chapter 70.1050. RCW

its program on November 23, 1987 (52 ' 70.1050.030(2) authorizes Ecology to

SUMMARy:.The State MWashington has FR35556. 9/22/87) .and on October .16, adopt rules to set cleanup standards for

applied for final authorization of 1990 (55 FR 33695. 8/17/90). On remedial actions taken under MTCA

revisions to its hazardous waste . January 12. 1994, the State of ' authority. RCW 70.1050.050(1)

program u.nder the Resource ! Washington submitted a program explicitly grunts Ecology the authority

Conservation and Recovery Act (RCRA). revision application for additional to issue orders under MTCA to direct

The Environ~entalProtectionAgency program approvals. On March 30,1994, potentially liable parties to conduct

(EPA) has reviewed the State of EPA published a proposal to approve remedial action.

Washington's application and has the State of Washington's application " . ' ,

reached a decision that.the S.~ite'of for program revision in accordance with \yashln?ton. may compel corrective

Washington's.hazardous'waste program 40 CFR 271.21(\>)(4)., action by Issuingorders pursuant to

revision satisfies all of the ,requirements EPA has reviewed the State of M-r:c:--: to ow~ers and op~rators of

necessary to qualify for final ': Washington's application. and has made facdl~les seeking or required to have a

authorization. Thus, EPA is granting a final decision that Washington's 'permitlO manage dangerous waste.

final authorization to the S.tate of hazardous waste. program revision ... Such orders are referred. to as "state

Washington to operate its expanded , satisfies all of the requirements corrective action orders". State

J

program: SUbiectlo the authority necessary to qualify for final corrective action orders will be

retained by EPA in accordance with the authorization, Consequently, EPA is somewhat hybrid, presenting RCRJ\

, Hazardous and Solid Waste, ,:: granting final authorization for the corrective action requirements ill thl~

, Amendments of1984..' additional program modifications to context of a state "superfund-like"

, EFFECTIVE DATE: Final authorization for Washington's hazardous waste program. cleanup. EPA emphasizes that

the State of Washington, shall be ' Attachments 1.2,5,6.8-17 and corrective action requirements arc not

, effective November 4,1994. . App~nd!ces 1-4 of t~e State'~ , " being deferred to a state superfund-Iike

FOR FURTHER INFORMATION CONTACT: application are provided for information authority; rather, the state authority will

Patricia Springer, U.S. EPA; MIS: HW- only. , be used ,to compel RCRA.corrective

107,1200 Sixth Avenue, Seattle,. C. Washington's Corrective Action action requirements. In order \0 fulfill

Washington 98101, Phone (206) 553- , Prosrarn the RCRA Section 3004 Iu] andlv)

2858. T~e State of Washington's authorized ~cquirement th~t all R~R.A,. per';1its mU5\

SUPPLEMENTARY INFORMATION: RCRA program is set forth in Chapter II1r.1u~~ corrective actlol~ perm!l

173-303 of the Washinaton conditions. state corrective action orders

A. Background Administrative Code (VVAC), entitled wil\ be incorporated into ReRA permits

States with final authorization under "Dangerous Waste Regulations". The issued pursua~t ~o the auth.orizHd Sinh!

section 300G(b) of the Resource -Dangerous Waste Regulations include program perrruttmg regulations."

Conservation and Recovery Act, as both authorized and non-authorized Washingtoll'scorrective action

amended ("RCRA"),A2 U.S.c. 6929(bl, requirements. Washington has amended program would allow corrective action

have a continuing obligation to maintain' the Dangerous Waste Regulations to, to be specified through the term's of a

.a hazardous waste program that !S include corrective action requirements; State-issued order which is incorporated

equivalent to, consistent with, and no ~o\\'e~e~, Washl~~ton may als.o ~ly on by reference into operating or postless stringent than the Federal. ' itsexisung stat~, superfund-l~ke ' closure permits issued to facilities. The

hazardous waste program, Inaddition. cleanup authority, Model TOX1CS State could: 1) issue the order, in

as on interim measure, the Hazardous ~ontrol Ac~ (MTCA), '?nd i~s advance ofthe permit: 2) modify the

and Solid Waste Amendments of 1984 Implementl~greg,~latlOns 10 ~apter permit to incorporate the order; or al

to RCRA (Public Law 98-616. November 173-340 entitled M?d~! TO~lcs Control simultaneously issue the order and the

8,1984', hereinafter "HSWA:') allows Act Cleanup Regulation .to Implement it ith th der i irat d i t

S . h ' . t • ,,' d perrm Wl e or er mcorpcra e III 0

tates to revise t err programs 0 - corrective action requirements an to, th it U d th W hi t

become substantially equivalent instead . compel corrective actions. epermu, n ~r e as I"g on

e Of equivalent toRCRA requirements The statutory authority for the prog~am, a State order would be .

promulgote~ ~nder HSWA au,?ority. ~angerous.WasteRegulation~ is found. considered 1.0 be part of the authoflz:d

, States exercising the latter option 10 the Revised Code of Washmgton .::" ~CRA progrn~ only wh.e~ the order IS

•

receive "interim authorization'! for the '(RCW), Chapters 70.105 and 70.105p. mcorporated IDtO an eXlstl~g. RCRA

HSWA requirements under section ,RCW 70.105D.030(l)(d) is the statutory' permit, or when the order 1S ISSUed

, 3006(gj of RCRA, 42 U.S.G. 6926(g), and provision which allows the State of simultaneously with and incorporated

, later apply for final authorization for the Washington Department of Ecology by reference into a new RCRA permit.

HSWA requirements. (Ecology) to carry out allstate programs l '

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Federal Register l Vol. 59, No. 213 I Friday, November' 4, 1994 I Rules and Regulations' 55323 ....

•

D. Comparison ofWashington's. . • proposed Subpart S ~orrective action' incorporated into a R'CRA permit. Terms

Corrective Af~~on,P"?gr~J~th.i :.~·~.•.:..~le~ publishedin the Federal Register of theorders which go beyond' the scope .: -..a.

FederalProgram . -_-' __ .. _:..-c .. - 'on]uly27.1990(55FR30798)."contains "of the authorized Dangerous Waste "~"~':_-""""'---

Ordinarily;'=States' a~ait promulgation" EPA's.most c:urrent Interpretation of ~ey regulations wi11.be considered.broader 0

of Federal regulations prior to' ~;, ~enns In .section 3004(u) o.fRCR:A: This in scope. ana thus not Federally . -,.~ . '._ -,

submitting their applications;,However,.: ..~~.and wIll~be the~ontrol~mg enforceable. federal enforceability does < "

. there is no impediment under the RCRA ,Interp.re.tatiO,n,agamst which ..:' 'not affect the ability of the State to .- -'

statutory provisions which. would bar a .. ~a.shmgton.s.regulatory de~mtion of impose requirements pursuant to their"

State from seeking authorization of a .sohd waste m~nagement.unit shall be legitimate State statutory authorities or

program in advance of Federally .' . -, , measured untllEP~,codifiesa statutory to enforce those requirements in .-

promulgated regulations provided the, :or regulatory definition. : '.' lawfully-issuedorders or pe.~ts•.

State bases its program on existing, ," . The .statutory language o.fsection Some portions of Washington's

Federal statutory Iangirage. An existing ~OO~(~~ ofRCR;A also app.h:~ to revised program are broader in scope

Federal counterpart is the.critical nexus .' fa~~h,tie~ seeking a permit. Such than tBe Federal program. and thus are

in the authorization program, . '_.; facilities ll~clud~ ~h.ose ha~ardous waste not Federally enforceable. Due to .

Washington's corrective action . man~gement fac.lhties ~hlch are Washington's statutory mandate to

program goes slightly beyond the EPA· requiredto obtain pennIts to operate address all releases of hazardous

.promulgated.regulations"(see 40 CFR . and t? those subje~ to post.clos.ure substances, Washington has developed

264.100. and 264'.101) which implement permits. EPA has mterpreted this corrective action tequirements which

the statutory provisions of sections'· language to mean that corrective action are, in part, broader in scope than the .

3004(U) and (v) of RCRA, 42 U.S.c.' must be-specified in operating or post- Federal corrective action requirements

6924(U) and (v), in-which facilities closure permits-issued to such facilities. in RCRA Section'3004(u), in that

seeking a permit are required to State corrective action orders will be dangerous waste management facilities

undertake corrective action for all issued to facilities subject to the '. in Washington will be required to

releases of hazardous waste or. -Washington State Dangerous Waste conduct corrective action as necessary

constituents from any solid waste Regulations, codified in the Washington to protect human health and the

management unit (SWMV) and to Administrative Code (WAC) in Chapter environment for all releases of

undertake such corrective actions. 173·303, but these orders will rely in dangerous waste and dangerous

beyond the property boundary where. part on the $tateofWashington's Model constituents at or from the facility.

necessary. Washington's program will ..." Toxies·Control Act (MTCA) statutory regardless. of the sourc.e of the release,

instead utilize its existing Superfund- .' and regulatory provisions and will.

like cleanup order auth,ority (the Model. -require current owners and opera~ors of Some portions of Washington's

. Taxies Control Act) through the State's SWMUs to conduct corrective action at revised program are more stringent than

authorized RCRA program by linking those units in accordance with the the Federal program. The requirement to (

the cleanup order authority with the Dangerous Waste Regulations.. implement corrective action for releases· 0

State's authorized RCRA program ... . EPA is not delegating RCRA section which have migrated beyond the facility

permitting requirements to fulfill the 3008(h) authority (42 V.S.c. 6928(h)) as boundary is more stringent than the

mandates of sections 3004(u) and (v) of part of this authorization. No Federal Federal requirement, in that it is not .

RCRA. 42 U.S:C. 6924(U) and (v). . enforcement authorities are delegated limited by the "best efforts'tlanguage in

. The statutory language of Section. when EPA authorizes state programs the Federal requirement. . .

3004(u)ofRCRA applies. to' corrective under section 3006 of RCRA. To clarify, Washington will be

action at solid waste management units, Any orders issued to a facility under· authorized for the following provisions

Although no statutory or regulatory. MTCA will not be considered to be part as part of this authorization (see State

defiilition of "solid waste management . of the EPA·authorized corrective action Authorization Checklists 17L, 38, 44A.

unit" has been promulgated, EPA's program unless and .until they are 44B, 121):

! .

Federal requirement

RCRA Corrective Action Program

.Corrective Action (SO FA 28702. 7/15/85): .' . . _ Applicability: SWMU, 40 CFA §264.90(a) : _ _ ~._ .._ _ __ . SWMU. 40 CFR. § 264.191 (a) ._._. _.•:..__ _ . Specified in perTTlit. 40 CFA §264.101(b) _ __.._ ; _ _ . .Permits by rule: UIC permits issued aner 11/18184,40CFA §270.60(b)(3) ._ _ .._ . NPOES permits issued atter 11/8184, 40 CFA § 270.60(c)(3) __._ _.. ..

Permit Application (52'FA 23447 (6122/87)); [52 FA33936 (919187»); [52 FA 45788 (1211187)):

Contents of Part B 40 CFA §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 lacility boundaty [52 FA 45788 (1211/87)): . 40 CFR §264.100(e) ---- ._ _.: ~_•.._' . ..•._ __..__..,__ _ __. 40 CFR§264.101(C) _._..•-__ _._:_ _ _._ ~._.__.._ _..__ __ _ __.._

Corrective Action ManagementUnits,(CAMU) (58 FA 8658 (2116193)): . Definitions:' .' :.. .:' .' . . . '.'. _

FaciUty to Include'ancontigoous property, 40 CFR § 260.10 ._.~:.._._.••.•:..._ _.__•••:-.••_••_ ..

CAMU, 40 CFA§§ 260.1 O. 264.101;270.2 _ _. .._._.._._ _ _ __._. ._ _ _.

LandfiD and miscellaneous unit to include CAMU, 40 CFR § 260.10 __ _ .._.._ .._ _.._.

A.~tion wastes 10 include all solid and· ha2aIdous waste and all meaa and debris. 40 CfA

~260.1o; '.::.... ,... . . . . . , facility. CFA §268.2(c) __ . . . . ._ _._. .. ".<..-.:... . -. .

Stale auttlority

WAC 173-303-045(1)(a)(li).

WAC 173·303-646. _ WAC 173-303-046(2)(c).

wAC 173-303-a02(3). . WAC 17J.: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)(H)(iii).

WAC 173-303-806(4)(a)(xxfii).

WAC 173-303-645(11)(e).

WAC 1~6(2)(b) ..

WAC 173-303-040.

WAC 173-3Q3.Q40.

WAC..173-303-040.

WAC 173-3Q3.{)4().

WAC~.

. ,

:0
... .: :',::, :.,'".,:~, _,_~':'t...... _.,. --'----- ._,'-- ',.:.~.:,.:,-" .,:'~. ........... -_...

I

} ..' ~;,I.;. ~~'...:- .... J.... _ _'.1:'''; - .>.', '. ~" .. ' :' ..;! .'

. 55324' _.Feder~ .Register I-Vol.o59; No. 'Zl'31':Friday;-November 4, .1994' I~ Rules and' Regulations

.... ..J. ,.~:.::,:,,:: Federal requirement :d}:L .,'~.: :..,. ~-i .Stateauthority<

Interim StatuS siandaidS ~'in lieu of 40 CFR264 standards; 40 CFR §264.3' .~:."..:........~':·L.._:.~~:..· :WAC 173-30~00(2)(a)~" ..

. ' Corrective action lor S~MU :MD ~; specified jn permit, including schedules of compliance, 4() CfR' WAC 173-303-646(2)(a) & (cl

. De~~~'~~r~~~f~~~MU:':" "!::;";~.~" .::.';:"~.,:.:.~~:;~,:,,:,::~; .,~ ;"~' . '~"', ;~:-:~-,..', :~.~... '. '< :.~., '.'

Designated forImplementing remedies, 40 CFR 9264.552 _.__.__ : .: _._.:__.WAC 173-303-646(2) & (4)(8):

Designation of regulated unitas CAMU, 4() CFR § 264.552 ...:__:.:•.~~..:.._..:.._:_ _._ _..;.._ _.•.._ ..:WAC 173-~6(6) .. : '

Oesignation will facilitate irrgementation, 40 CFR §264.552 , .:..: : ; ..;.~~ : ;.._•._ _.. WAC173-303-646(5)(a)•. 010 provides-sufficient information; 40 CFR §264-.552 ~~.2.:.. _ :._ .:._ _ .._.:..:_ .WAC173.-303-646(5)(e)..

.. Rationale doclImented and made available to public, 40·CFR'§264.552 : _ _.:_.._ WAC 173-303-646(5)(1) .

PermitmodifICation requirements must be folloWed to incorporate CAMU into permit, 40 CFR §264.552 WAC .173-303-646(5)(9);' WAC :, ., .j • . 173-303-830.

'RequiiemElnts for Temporary Units (TU)(58 FA 8658 (2116193»): ,::-! - ' . .Standards may beofeplaced,by alternative requirements, 40 CFR §264.553 , :. :WAC 173-30~46(7)ia) &. (b).

'Factors lor establishing standalds, 40 CFR §264.553(c) .._._ __ ,.._ __ , WAC 173-303-646(7)(c).

length 01 lime TU rnay operate, 40 CFR § 264.553(e) _ __ : _.......... WAC173-303-646(7)(d) & (e). .Incorporation of TU in permit, 40 CFR §264.S53 : _ _ WAC' 173-303-646(7)(1);' 'WAC . 173-303-830 ... .

Rationale documented and made available to the public, 40 CFR § 264.553 : : :.. WAC 173-303-.646{7}(g)..';

In order to approve the Slate of Washington. to. use orders issuedund~r MTCA to compel RCRA co~tive 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 -requirernents. 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 forlnforma-

. tion only..As stated above, orders issued' by the state are not part of the RCM authorized program until such order

is incorporated into.a ~CRA permit.

Federal requirement State authoRty

Enforcement authorities, 40 CFR§ 271.16 , : :

Permitting requirements: 40 CFR §§270.30, 270.32, 27l.14' and

. 271:16. .

Permitting ~equirements; schedules of compuance and assurances of financial responsibility, 40 CFR §§ 270.33 and 271.14.. .

Corrective action beyond the facifrty boun?ary, 40 CFR § 264,101 .,

Definition of lacifity,' 40 CFR §§ 260.1 O· and 264~ 1of _:. . Implement and complete corr~tive action, 40 CFR § 264.101 ..

Financial re~ponsibility' for' completing corrective action, 40 CFR

§§264.101 and 271.14. .

Pubfic participation, 40 CFR.§§270.42 and 271.16(d) .

...;

RCRA

Corrective

Correctiveactio~atAction

SWMUs

Using Existing

for all releases, 40

State Cleanup~FRAuthority:

§264.101 .....: RCW 70.105.130(1), (2)(a-4J),

.,

(2)(c)(iHii) and (2)(e); RCW

. 70.1050.030(1)(a,b,d,f); WAC 173-303-400(3)(a)(i), -646(2)(a-4J),

-802(3-4). . " . . . RCW70:105.080..085, .095(1-3), .097, ..120; RCW·.70.1050.030(2)(c),

.050(1),(4),(5)(a). .'.

RCW 70.105.130(2)(a), (b),' and (c)(ii-iii); RCW 70.1050.030(1)(a);

WAC. 17~46(2Ha~), -646(3)(a~), ..-400(3)(a)(i),

-806(4)(a)(xxi)(A) & (8). .

RCW 70.105.130(2}(a); RCW 70.1050.030(1)(a-b); (2)(c);W~~ 173-

303--646(2)(c) & (3}(c), -802(3) &(4).. . .'. RCW 70.105.130(2)(c)(iii); RCW 70.1050.030(1)(a) & (b);.WAC 173-

303-646(2)(b) & (3)(a). . . .

RCW70.105.101 (1 t); RCW 70.1050.020(3); WAC 173-303-040.

RCW70.105.130(2)(b), (c)(ii-iii) & (e); !;lCW 70.105D.030(1)(a), (b), &

(I); WAC 173-303-646(2)(a) & (b).' .' ." ...

RCW·70:105.130(1) & (2)(c)(iii); RCW 70.1050.030(1)(d); WAC 173-

303-646(2)(a-c). . . . .

RCW70.105.130(2)(a); RCW 70.1050.030(2)(a): WAC 173-303-830.

r.,

"

"t

l

,'. '.

;.

I

;

r

F

i

I.'.

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 nwnber 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 commentsreceivedand EPA's

responses to those comments.

One comrnenterwas 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 (HWMAj 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 pari of

the federally authorized RCRA program.

As such, RCW 70.105.240(2) wiIl not be

part of the federally-authorized state'

RCRAcorrective 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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Fede;al Register'i Vol. 59';' No. 213 I Friday, No\'ember 4. 1994 I Rul~s and Regulations ..55325 .'~
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it will have to ,exercise such authority , mOdific~tion'will be under 'the State's, z: -Two~~irie~t~~"~is8dconcems very often, given the protectiveness authorized corrective action proiram. :':regardihg the State of W8Shingto~ 's , '

embodied in the State's MI'CAstatute The R~public participation ., siting criteria for. new hazardous'waste

and the manner in which the State has requirements would govern the publlc.i-«, facilities, In-response; the proposed .

implemented the MTCA program., ' participation process at that time.approvdl and authorization of ,~:,.'

A cornmenter questioned that-once a However, public comment at that time ,',Washington's hazardous waste.program ,

State-issued order is incorporated by will be limited to whether the revision is for a cOrreetiveaction

reference into t.I:le fadlity's.HCRA incorporated MTCA terms, schedules ,program. Since the corrective action'

permit; can tha~orderbe amended arid conditions appropriately fulfill ' , program underRCRA is intended to

without a corresponding modification of corrective action requirements of the address clean up of releases of:',:

, the RCRA pennit~' :' authorized State RCRA program. Public hazardous waste at existing hazardous

In response, at the time the State comment on the MTCA terms. - waste facilities, the commenters'

order is.incorporated by reference into schedules and conditions will !lot affect concerns regarding siting of new,:

a RCRA permit, the crderbecomes the ability of the state to enforce the facilltlesara outside, the scope or this

subject to all permitting requirements, MTCA order under MTCA authority, ' current authorization action. The State's

including public participation independent of the authorized RCRA siting criteria are State regulations

requirements required; for permit corrective action program. At the time which have no federal counterpart, and

modiflcations. This includes any State- the MTCA order is incorporated into a as such are not part of the federal RCRA

issued orders designating a corrective RCRA permit. and at any time thereafter . program. ' . ,

action management unit (CAMU) or for the life of the RCRA permit, Ecology A. commenter raised concerns

temporary unit (111). Therefore, if at will ensure that the public participation regarding Hanford, specifically with

some time after incorporation by procedures under RCRA and MTCA are respect to the burial of decommissioned

reference into a ReRA permit. it is coordinated to eliminate duplication of reactor cores. and regarding incinerator

determined that the incorporated order effort and fulfill RCRA requirements. 'standards; In response, EPA today is

must be changed. such a change will A commenter questioned how approving and 'authorizing the state for

require a permit modilication as well. authorization of the Slate program a RCRA corrective action program.

The class of permit 'modification, would beaffected by EPA's EPA's authorization today does not

required. along with the extent of public promulgation of a final federal rule directly address cleanup decisions at

participation required by such a regarding corrective action. The Hanford. the disposal of

modification. will bedetermined using commenter also questioned whether decommissioned reactor cores, nor

the State regulations.' EPA intended to use the proposed EPA's incinerator standards found in

- A commenter requested clarification subpart S corrective action rules to the Boiler and Industrial Furnace

of the public participation process tobe measure the State's "consistency" with Regulations (40 crR part 266).

used by the Slate under the authorized the federal corrective action program; Therefore, these concerns are

corrective action program. Specifically, and what EPA intended when EPA considered to be outside the scope of

the commenter pointed out that MTCA stated in its Notice of Proposed today's authorization action, and would

orders have their own public Rulemaking that EPA's proposed be addressed by the State RCRA base

participation process. The commenter definition of a-SWMU "will be the program. '

queried whether there would be a controlling interpretation against which Therefore. it is EPA's determination

second public participation process at Washington's regulatory definition of a that there are no changes required to

the time such order would be solid waste management unit will be this authorization action as a result of

incorporated into a RCRA permit: The measured until EPA codifies a statutory the comments received.

commenter also queried to what extent or regulatory definition." ., G. Status ofFederal Permits

the public would be able to comment on In response, should EPA finalize a

the previously issued order at the time -federal rule regarding corrective action Upon the effective date of

of permit issuance or modification; and at some point after the State has authorization, the State of Washington

to what extent the existing State received corrective action authorization, will begin to administer and enforce

regulations governing public the State will be required to submit an· corrective action requirements. EPA

participation would operate in lieu of application for a revision of the State actions which fall under the federal

the federal regulations codified at 40 corrective action program. in omnibus authority of section 3005(c)(3)

CFR 124.11 through 124.17.' accordance with' 40 CFR 271.21(e)(1) ofRCRA, 42 U.S.c. 6925(c)(3), and/or

In response, the commenter is referred and 271.25. Until EPA promulgates a which are federal enforcement

to the Program Description contained in final federal corrective action rule, EPA authorities, including actions issued

this application for authorization, intends to use its proposed subpart S pursuant to sections 3008(h), 3013. or

wherein Washington's Department of rules (55 FR 30798, July 27, 1990) as the 7003 of RCRA. 42 U.S.c. 6928(h), 6934

Ecology explains how public measure of consistency in order to' or 6973, will continue to be

participation goals and requirements determine whether the State's administered by EPA:. In addition,

will bemet. In brief, the State will authorized corrective action program is HSWA amendments for which the State

follow only the existing MTCA public - at least as stringent as the federal has not been authorized will continue to

.participation requirements (which corrective action program would be be administered and enforced by EPA.

extensive) when a MTCAorder is issued- under the proposed Subpart S rule. Due to recent legal developments in

, prior to permit issuance. Since that is '. Si'rice the-proposed subpart S rule has the national RCRA hazardous waste

not a RCRA permit action, there are no not yet been finalized, EPA cannot program, the discussion that appeared

RCRA permit public participation authorize nor enforce the provisions of .In the proposed rule (March 30, 1994,

requirements which apply. At the time Subpart S. However, EPA is currently -,59 FR 14827) concerning permits with

the order is incorporated into a ,R<;RA using the provisions contained in the automatic transfer provisions has been

permit throughpermit modification, or. proposed Subpart S rule as guidance . revised. All permits issued by U.S. EPA

ifthe order is issued concurrently with when conducting federal corrective Region 10 prior to final authorization of

the RCRA permit; the permit issuance or actions. the State for corrective action will

·.,t

't-

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55326

t. ' •.-',- ,.-~ .. ""'••'.

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Federal Register''r.Vol. 59', N~. -213 I: Frjday:~ove~bei 4,.1994 ,: Ru'ies ~~~~,Regu)atiO;~ r:
- .'- .: .. -..,..' ,,-", ~.:. .; ~:-: .• ..._, ~.~- -,-~--~..'

Federal R'~~~;-'I' Vol. 59. N~. 21-3 I Friday. November 4. 1994 I Rules and Regulations 55327

..........

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I'

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.:;,..

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i:"

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,

I •• . ..

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I

continue to be administered by U.S.

. EPA Region 10 until the Issuance, or . reissuance after modification•.of the "

- - State RCRA permit. Upon the e.fTectivedate of the issuance. or reissuance after

modification. of the State Rc;RA permit

, to incorporate authorized.State .

- requirements. those EPA-Issued permit'

provisions for which the State is

--, authorized to administer and enforce

will expire, HSWA provisions for.which

the State is not authorized will continue

"ineffect 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

....,

programappHcation;subject to the, '," Was~ington'sprogram. thereby ~"., '. '

limita~ions of the HSW The!~~t~,of~...:.,.eli~rnati~gduplicative requirements for ~Washmgton also haspnmary ,. - """ ' 'handlers of hazardous waste in the' ....

" enforCement respons~bilities.: although· .State, It does not impose any new

" EPA retains the right to conduct . ;burdens on small entities.'This rule 0

inspections under section 3007 of .,. therefore. does not require a re8ulat~ry RCRA. 42 U.S~C 6927. and to take .' flexibility analysis;' " .,' ... " enforcement actions under: sections '._ ._.r>-".:.4. ' .-.?" - '.'":;

3008.3013 and 7003 of RCRA~ 42 U.S.c. ,LlSt o(S~bJects in 40 CFR'Part 272,

6928.6934.and'6973: :.:.' ,'Admirii~adve'p-;a~ic~~d"'" , Compliance With Executive.Order procedure, Confidential business ."

12866 t : ol,· . ' infonnation.Hazardous materials

The Officeofivlanageme~tand Budget":,'transportation. Hazardous was~e. Indian

has' exempted this rule from the lands':lntergove~mentalrelations, .

requirements of section 6 of Executive . '. Pena.ltles. Reportmg and ~ordkeepmg Order 12866.:' . requirements; Water pollution <:ontrol, ~-Vater supply. Certification Under the Regulatory ...,.,. . ' F1 lbTtyAt' Authonty: This nonce IS Issued under the

" eXI I I c. authority of Sections 2002(a). 3006 and

Pursuant to the provisions of 4 U.S.C. 7004(b) or the Solid WasteDisposal Act.as

605(b), I hereby certify that this amended. 42 U.S.c. 6912(a). 6926. 6974(b).

authori~t~on will not have a si~nificant Dated:October 17. 1994.

economic Impact on a substantial

number of small entities. This Chuck Clarke.

authorization effectively suspends the Regional Administrator.

applicability of certain Federal (FR Doc..94-27170 Filed 11-2-94: 8:45 ami

regulations in favor of the State of BllUHG COCE

r

()

.- ()
. '...(._. .

56573-56999

I'

.;

Corrections

This section of the FEDERAL REGISTER

contains editorial corrections of previously

published Presidential, Rule, ProposedRule,

and Notice documents, These correCtions are

prepared by the OffICe ofthe Federal

Register. Agency prepared corrections are

isSued as signed docul)'lents and appear in the appropriate document categories

elsewhere in the issue.

DEPARTMENTOF AGRICULTURE

AgriCUltural Marketing Service .-

7 CFR Part 70

[Docket No. PY·92-003]

RIN 0581·AA61

Voluntary Poultry Grade Standards

Correction

In proposed rule document 94-25760

beginning on page 52469, in the issue of

Tuesday, October 18,1'994, make the

following corrections:

§ 70.221 [C<lrrected]

LOn page 52474, in the second

column, in § 70.221, in paragraph (g)(3),

in the table. under the heading entitled

"Maximum aggregate area pennitted"

insert a line to separate the heading

from the subheading entitled "Breast.

legs, and parts".

2.On the same page, in the same

column, in § 70.221, in paragraph (g)(3).

in the same table, under the subheading

entitled "Breast, legs, and parts", in the

first line, "PI. in." should read "3/. in.".

3.0n the same' page, in the third

column. in § 70.221, in paragraph (g)(4).

in the table, under the subheading

entitled "Elsewhere". in the first line.

'''13/. in." should read "PI. in.".

§ 70.230 [C<lrrected]

4.0n the same page. in the second

column, in § 70.230. in paragraph (e)(2).

in the table, the beading "Maximwn

aggregate" should read "Maximwn

aggregate area pennitted",

5.0n the same page, in the same

column, in § 70.230. in paragraph (e)(2).

in the table. under the heading

"Maximum aggregate area permitted",

in the second line. "1 Incn" should read

'~1 inch".

81LUNG CODE '506-C'~

DEPARTMENTOF HEALTH AND

HUMAN SERVICES

Food and Drug Administration

21 CFR Parts 101,170, and 310

[Docket Nos. 91 POO186 and 93P-<l306]

Iron·Containlng Supplements and

Drugs; Label Warning Statements and

Unlt·Dose Packaging Requirements

Correction

In proposed rule document 94-24476

beginning on page 51030 in the issue of

Thursday, October 6. 1994, make the

following corrections: .

I, On page 51033. in footnote 6 at the

end of the table, "No" should read . "Not",

2. On page 51043, in Table 9. in the

first column, in the first entry. remove

"1" preceding "Overdose".

§ 310.518 (C<lrrected]

3. On page 51058. in the second

column. in § 310.518.in the

introductory text. lines two and three

should read "in solid oral dosage fonn

. (e.g.. tablets or capsules) shall meet the

following", '.,

.4. On the same page. in the third

column, in the same section. in

paragraph (a). lines six and seven' .

should read "unit of the product. e.g..

tablet or capsule.".

8lLUNG CODE 150$04'~

DEPARTMENT OF THE INTERIOR

Office of Hearings and Appeals

43 CFR Part 4

RIN 1094-AA42

Department Hearings and Appeals .

Procedures; Spedal Rules Applicable

to Surface Coal Mining Hearings and

Appeals

Correction

In rule document 94·26553 beginning

on page 54356 in the issue of Friday. .

October 28.1994. make the following

corrections:

1. On page 54356. in the second

column. in the SUMMARY. in the first

line. "The" should read "This".

2. On the same page, inthe third

column, in the SUPPLEMENTARY

INFORMATION. in the first paragraph. in

Federal Register

Vol. 59, No. 218

Mondav, November 14, 1994 .,'

the last line. "43 CFR3.1307(a)" should

read "~3 CFR 4.1307(a)".

3. On page 54359, in the 1st column.

in the 44th line. "ISlA" should read

"IBLA", .

4. On the same page, in the same

column, in the last paragraph. in the

ninth line, "or" should read "or'.

5. On the same page. in the second

column, in the second full paragraph. in

the tenth line. "on" should read "in",

6. On the same page; in the 3rd

column, in the 31st line. insert

"773.24(cl," after"§ §". . 7. On page 54360, in the second

column. in the first full paragraph, in

the fourth line, insert "1253" after "30

U.S.c. ...

8. On the same page, in the. same

column, in the last paragraph, in the

1ith line; "ownerships" should read

"ownership". . 9. On the sarne page, in the third

column. in the seventh line. "persons"

should read "person".

10. On the sarne page. in the same

column, in the heading at the bottom of

the page, in the first line. "Appeals"

should read "Appeal"; and in the last

paragraph. in the first line. "criticized"

should read "criticize".. 11. On page 54361. in the third

column. in the fourth full paragraph. in

the fifth line. "alternatives" should read'

"alternative".

§ 4.1373 [C<lrrected]

12. On page 54362. in the third

column. in § 4.1373(a). in the fourth

line, "§ 4.1372(a)" should read

"§ 4.1372(b)".

81LUNG CODe '50$041~

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 271

(FRL-5099-5]

Washington: Final Authorization of

State Hazardous Waste Management

Program Revisions

Correction

In rule' document 94·27170 beginning

on page 55322 in the issue of Friday, .

November 4. 1994, make the following

correction:

On page 55322. in the first column.

the ACTION line should read "Final

rule ...· .

81LUNG CODe ,~,~
" .-. - .:..-- ~-~-:..-

r

I

•

CONCURRENC F.

INITIALS \ , I .NAME '-' '-. M Ru.,.,,,,,,

DATE 'i,z,1, .... ~~

~emorq~dum·of Agreement -- signed by Tom Fitzsimmons on July 19. 1999 •

•

....;

..;

•
•

CONCURRENCES

INITIALS

.NAME

DATE

. I

•

•

Ecology/EPA Memorandum of Agreement -- signed by Tom Fitzsimmons

on July 19, 1999 received by EPA o~ July 27, 1999 •