·' November 26, 1985

112015/85

State/EPA

Memorandum of Agreement

Outline for Final Authorization

I. General

II. Responsibilities of Parties

A. Policy Statement

B. Provision for Transfer of Information

1. - EPA Program Information Transfer

2. State Program Information Transfer

3. Emergency Situations and Information Transfer

4. Confidentiality

C. Frequency and Content of Reports

• D.

1. Monthly

2. Biennial

3. Other

Conditions for State Program Reviews

1. General

2. Approach

••

E. Permit Issuance

1. EPA Permitting

2. State Permitting

3. EPA Overview of State Permit Actions

F. Provisions for Compliance Monitoring and Enforcement

1. State'

2. EPA

3. Site Visits

4. Enforcement Agreement

G. State .Delisting Action

H. Provisions for Modification of the MOA
,MEMORANDUM OF AGREEMENT

BETWEEN

THE STATE OF WASHINGTON

AND

THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION X FOR FINAL DANGEROUS WASTE PROGRAM AUTHORIZATION

November 26, 1985

I. GENERAL

This Memorandum of Agreement (hereafter "Agreement") establishes

policies, responsibilities, and procedures pursuant to 40 CFR 271. 8

for operation of the State of Washington's Dangerous Waste Management Program (hereafter "State Program") authorized under Section

3006 of the Resource Conservation and Recovery Act (hereafter

"RCRA" or "the Act") of 1976 (Pub. Law 94-580, 42 USC 6901, et seq.)

and the United States Environmental Protection Agency (hereafter

EPA) Regional Office for Region X. This Agreement further sets

forth the manner in which the state will coordinate with EPA in

administering the State Program.

o

This agreement is entered into by the Director of the Washington

State Department of Ecology (hereafter "Director" or "the State"),

the lead agency for the state program (as designated by the state

pursuant to 40 CFR 271.6(b) and the Regional Administrator, EPA, 0

Region X (hereafter "Regional Administrator" or ''EPA'').

Nothing in this Agreement restricts EPA's authority to fulfill its

oversight and enforcement responsibilities under RCRA. Nothing in

this agreement shall be construed to contravene 40 CFR Part 271.

The parties will review this Agreement jointly at least once a year

during preparation of the annual State Grant Work Program (hereafter

"State Work Program"), in conjunction with grant funding under section 3011 of RCRA.

Until the state's program is amended to reflect the federal

requirements in, or stemming from, the Hazardous and Solid Waste

Amendments of 1984 (HSWA) , and such program amendments receive

interim or final authorization, EPA shall have the authority in the

state to carry out the prOVisions required by the HSWA.

This Agreement will remain in effect until the State withdraws from

authorization or until such time as state' program authorization is

withdrawn by EPA, according to the provisions of 40 CFR 271.22 or

reverts to EPA according to the prOVisions of 40 CFR 271.23.

This Agreement will take effect at the time the state's authorization

takes effect, which shall be 14 days after the date of publication

in the Federal Register of EPA's decision to grant authorization to

the state. /">

~j

III-1
II. RESPONSIBILITIES OF PARTIES

•

•

•

A. Policy Statement

Each of the parties to this Agreement is responsible for ensuring

that its obligations under RCRA are met. The Director and the

Regional Administrator agree to maintain a high level of cooperation and coordination between state and EPA staffs in a partnership to assure successful and effective administration of the

state authorized program.

The state has primary authority and responsibility for all

aspects of the hazardous waste program within its boundaries.

EPA I S primary responsibility under this agreement is the

oversight of the fully authorized state program. The purpose

of oversight is to ensure that progress on environmental

objectives is being made and environmental laws are being

implemented in a consistent manner. EPA retains its responsibility to ensure full and faithful execution of the requirements of RCRA including direct implementation in the event the

state is unable to act. Under final authorization, Washington

will have responsibility for coordination of the program with

other authorized states and with EPA in states without authorization. The state expects to have minimum resources for implementing this program and will prioritize activities and accomplish them in order of priority.

EPA a~sumes an oversight role upon granting" final authorization

to the state. EPA agrees to conduct its oversight of the

state program in a manner consistent with the following

principles outlined in the official Region X Oversight

Policy:

Focus on Overall Performance EPA will be concerned with the

overall performance and environmental results achieved by

state programs. 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 states that will be used

to assess state program performance and include these annually

in the SEA or negotiated work· plans as appropriate. The

criteria will address major program outputs and legally

required procedures. Useful oversight can occur only if

states and EPA understand in advance about specific standards

of performance to be met and how success in meeting them

should be measured.

1II-2
Tailor Amount of Oversight. The level and amount of oversight 0

will be geared to the maturity and performance of the state

program. A program which has been completely delegated for

more, than a year and demonstrates consistently strong

performance levels, requires less oversight. Specifically,

there should be less need for real time reviews. Conversely,

poor performance should result in increased oversight by EPA.

A new delegation should include a specified transition

period. In general, the agency's oversight should reflect

changing state needs and program priorities.

Emphasis on Strong, Informal EPA/State Relationships. EPA

Region X 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. The states

will also be encouraged to participate in the oversight of

their own programs 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.

Oversight will be accomplished by EPA through written

reporting requirements, p~rmit overview, compliance and

enforcement 'overview, and joint review with ,the state of its

program. 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. EPA will share with the

state any national reports developed by EPA from the data

submitted through state reporting requirements.

B. Provisions for Transfer of Information

1. EPA Program Information Transfer

EPA agrees to provide copies of state "notification of

dangerous waste'activities" form 2 (ECY 030-5), in lieu of

EPA Form (8700-12) to generators, transporters, and TSD

facilities who request assistance with obtaining an EPA/

State ID number. '

0,

EPA will also prOVide, within ten (10) working days of

receipt, originals of EPA Notification Forms (8700-12) or

State Notification Forms (ECY 030-5), including EPA identi- 0:

fication number, submitted by persons located in the state

III-3,
•••

after the date of this agreement. EPA further agrees to

inform each requestor, by mail, of the new ID number

assigned within thirty (30) days of receipt.

EPA agrees to transfer to the Director or his designee any

remaining originals of Part A and PartB hazardous waste

management facility permit applications, including that

information pertaining to land disposal facilities submitted to EPA under 40 eFR 270.10 by facilities located in

the state before the date of this Agreement,. together with

all pertinent file information (which includes narratives,

plans, maps, etc.) draft permits, public notices, administrative notices, fact sheets, and correspondence. Permit

applications and file information, not already transferred

to the state, will be provided to the Director or his

designee within no more than thirty (30) days of the date

of final authorization.

EPA will also provide, within five (5) working days of

receipt, originals of Part A and PartB permit applications

or revisions submitted directly to EPA after the date of

final authorization.

EPA will keep the department informed of all proposed or

adopted Federal regulations as promulgated in the Federal

Register adopted pursuant to RCRA or required of anoth~r

Federal agency to implement the full scope of the State

approved dangerous waste management program.

EPA will assist the department in obtaining publications of

any environmental impact or assessment statement, technical support document, guidance document, or any other

publication developed by EPA, EPA contractor, or other

Federal agency related to the development or operation of a State approved hazardous waste management program.

EPA agrees to make available to the state copies of any

reports and data resulting from compliance inspections

within sixty (60) days of completion of the inspection.

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. Whena formal enforcement action is taken any

document publicly filed and correspondence with the

respondent is no longer considered enforcement

sensitive. EPA shall 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 shall also notify the state in writing

when any document is no longer considered enforcement

sensitive.

III-4
EPA agrees to provide the state, upon request, any data 0

or 'information necessary for the development and

maintenance of the state's automated data processing

files and compliance monitoring and permit tracking

system.

2. State ,Program Information Transfer

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. EPA and the state

will participate in a joint effort to assign DUN identification numbers to all new generators, transporters,

and TSD facilities who notify the state. The state will

receive and review all new and revised notifications of

dangerous waste activities and send a copy to E~Afor an

identification number assignment. EPA will inform each

requestor, by mail, of the new ID number within thirty

(30) days of receipt. The state will also inform the ,

requestor of the new identification number. Both EPA and

the state'will work as rapidly as possible to provide

identification numbers to new notifiers. The state will

also submit any updates or changes in previously submitted 0

notification and Part A permit application information.

This information will be provided to the Regional Administrator within twenty (20) working days of receipt.

The state agrees to inform the 'Regional Administrator of

any proposed or adopted program changes which would affect

the state'sability to implement the authorized program.

Program changes of concern include modification of the

state's legal authorities (i.e. statutes, regulations, and

judi~ial or legislative actions affecting those authorities),

modifications or memoranda of agreement or understanding

with other agencies, and modifications of resource levels

(i.e., available or budgeted personnel and funds within the

framework of the SEA)". The state recognizes that program

revisions must be made in accordance with the provisions

of 40 eFR 271.21.

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, ch , 42.17 RCW, which provides for exceptions, of

information for public disclosure.

The state will provide compliance monitoring and enforcement information to the Regional Administrator on a routine 0

basis as specified in the state work program and the

reporting section of t~is agreement.

III-5
•

As specified in the State Wurk Program, and the reporting

section of this agreement the state will provide the

Regional Administrator with information· indicating the

status of the state's facility permitting activities.

Where the state program involves the granting of variances

or waivers, less stringent requirements than comparable

federal requirements or variances will not be imposed. The

state agrees to provide EPA with a copy of each state RCRA

variance or waiver at the time it is granted.

Any request for a variance or waiver concerning a RCRA

regulated waste will be sent to the Region X EPA office

in Seattle for written comment before issuance. The

department wiil respond in writing to any consaent.s or

concerns raised in the EPA review. All written responses

shall be provided to EPA before a variance or waiver is

issued.

For the purposes of permit overview the state will provide

EPA with the following information on the treatment, storage,

and disposal facilities as identified and agreed to in the

annual program plan.

•

ITEM DESCRIPTION

Copies of facility permit

applications and closure

plans for review.

Copies of draft permits,

proposed permit modification

fact sheets

Copies of final permit

or permit modifications

Copies of closure plan

approval public notices

and permit determination

public notices

FREQUENCY OF SUBMISSION

Within 15 working days

of receipt

Within 10 working

days of completion

Within 10 working

days of completion

Within 5 working days

of public notice

•

3. Emergency Situations and Information Transfer

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 shall immediately notify by

telephone the other party(ies) to this Agreement of the

III-6
/

existence of such' situation. A list of appropriate

contacts will be maintained and updated as a part of the

annual program plan.

4. Confidentiality

a. Any information obtained or used in the administration

of the state program shall 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 a state and subject to a claim of confidentiality

will be treated in accordance with the regulations in

40 CFR Part 2.

o

C. Frequency and Content of Reports

The state agrees to submit to Region I, EPA the following

documents, reports, and other information:

b. 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 of 40CFR 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 confidential

information EPA agrees to transfer to the state will

be transferred in accordance with the requirements of

40 CFR Part 2. o

1. Monthly (on the 15th of the month for the month preVious)

compliance monitoring and enforcement report and permit

status .reports.

2. Biennial report sumaar i.zi ng the quantities and types of

hazardous waste generated, transported, treated, stored,

and disposed in the state as specified in the RCRA guidance,

by October 1 of each even-numbered year.

3. Additional reports as negotiated in the State Work

Program, and updated facility status information as

necessary.

D. Conditions for State Program Review

1. The Regional Administrator will assess the Director's

administration and enforcement of the state program on a

continuing basis for equivalence and consistency with RCRA,

with this Agreement, and with all applicable Federal requirements. This program evaluation will generally be accomplished by an EPA review of the information submitted by

III-7

o
•••

2.

the Director in accordance with this Agreement and the

State Work Plan, permit overview, compliance and enforcement overview, and 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 coament.s

received by the Regional Administrator will be provided to

the Director.

The following approach to state program review will be

followed .by EPA and the state. All significant concerns

raised during EPA review of the information submitted by

the state in accordance with this agreement and the work

plan will be submitted in writing to the State Hazardous

Waste Program Assistant Director. All EPA concerns

raised as a result of permit overview, compliance and

enforcement overview, and review of state program

activities will be submitted by EPA to the State

Hazardous Waste Program Assistant Director.

The review of state program activities shall be conducted

asa joint review by EPA and the State Hazardous Waste

Program. Joint reviews, including any associated audits

of the state regional office operations, shall be

scheduled with written notice at least thirty (30) days

prior to the 3udit. Reviews shall be no more frequent

than quarterly and shall become less frequent as the state

program matures and good performance is demonstrated consistently. The scheduling should include a jointly agreed

to state/EPA format and content of the review which reflects

goals and commitments outlined in the National Program

Criteria and the annual state program plan commensurate

with grant resources available to the state for meeting

performance criteria.

.

EPA will provide written notice to the state at least

fifteen (15) days prior to conducting any other review of

state files. Under emergency situations the IS-day notice

may be waived, however, prior notice is still required.

To ensure effective program review, the director agrees

to allow EPA access to all RCRA files and other RCRA

information requested by the Regional Administrator and

deemed necessary for evaluating state program administration and enforcement. During the first year of final

.

authorization EPA may conduct RCRA file reviews at

quarterly intervals. In the spirit of EPA's oversight

policy these reviews will generally be reduced to annual

or in some cases semi-annual frequency after adequate

performance levels have been demonstrated.

III-8
Program review meetings between the director and the 0

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 must be scheduled at least

thirty (30) days in advance of the meeting, with a final

agenda prepared by EPA and submitted to the director for

comment at least one week before the meeting date, unless

otherwise agreed upon.

E. Permit Issuance

1. EPA Permitting

Upon approval of the state program (final authorization),

EPA will suspend issuance of federal permits for

hazardous waste treatment, storage, and disposal

facilities in the state.

EPA intends to add permitting standards for processes not

currently covered by the Part 264 standards. For

example, the Part 264 standards do not currently cover

treatment and storage of hazardous substances in certain

types of underground tanks. When EPA does promulgate

standards for additional processes, EPA will process an~ 0

enforce RCRA permits in the state in the new areas until

the state receives final authorization of equivalent and

consistent state standards. Every attempt will be made

to coordinate with the state in processing these

permits. At the time the state program is approved in

the new areas, EPA will suspend issuance of federal

permits for the new requirements in the state. EPA will

also transfer any pending permit applications, completed

permits or pertinent file information to the state within

thirty (30) days of the approval of the state program in

conformance with the conditions of this agreement.

Pursuant to RCRA Section 3006(g)(1) and in accordance with

the HSWA, EPA has the authority to issue or deny permits

(or those portions of permits), to facilities in Washington for the requirements and prohibitions in HSWA, or in

regulations adopted by EPA under the authority of HSWA,

until the state I s program is amended to reflect those

requirements and prohibitions, and authorization is

received for those portions of the program. To the extent

allowed by state authority, regulations and resources,

such permits (or portions of permits), will be jointly

issued by EPA and Ecology.

In accordance with Section 3006(c)(3) of RCRA, Ecology

will participate in the administration of the requirements

which take effect pursuant to HSWA, as state resources

III-9

o
•

•

•

allow. Ecology's activiti~5 to administer HSWA requirements will be established. on a facility-specific basis

through facility management plans and referenced in the

annual work program. Facility management plans, along

with any associated agreements, will be reviewed and

revised as often as necessary.

Completion of permi~ actions in progress and disposition

of EPA issued permits will generally be in accordance

with EPA Program Implementation Guidance (PIG) 82-5. It

is expected that at the time of final authorization only

Condition 5 in PIG 82-5 will apply to Washington. Any

permit actions taken up to the time of final

authorization will be joint actions by the state and

EPA.

2. State Permitting

The state agrees to carry out permitting procedures consistent and equivalent to those at 40 CFR Parts 270 and 124.

Upon final authorization the state will continue timely

permit issuance activity initiated prior to final

authorization, including completion of permit issuance

activity initiated jointly with EPA.

The state is responsible for expeditiously drafting,

circulating for public review and comment, issuing,

modifying, reissuing, and terminating RCRA permits for

all hazardous waste TSD facilities in the state, and

shall do so in a manner consistent with RCRA, this

Memorandum of Agreement, all applicable federal

requirements, and with the state's program description.

Annual commitments for the call in and issuance of

permits will be reflected in the approved annual program

plan.

The state agrees to consider all timely comments EPA

makes on TSD facilities as identified in the approved

State Work Program regarding draft TSD facility permits

and major permit modifications during the required 45-day

public comment period. The state will satisfy or refute

the concern in writing before issuing the permit or

making the modification.

The state agrees to issue, modify, and reissue permits in

accordance with all applicable state permitting

regulations and applicable statutes, and to include as

permit conditions all applicable provisions of WAC

173-303. This agreement also applies to permits Lssued

after final authorization but for which the processing

may have begun before final authorization .

III-tO
The state agrees that any compliance schedules contained G"

in permits will require compliance with the dangerous

waste regulations.

3. EPA Overview of State Permit Actions

EPA's overview funct.Lon for permit actions, including

closure of interim status and final status facilities,

will focus on those facilities identified in the approved

annual program plan. EPA's overview will be in keeping

with the six principles. of EPA's Oversight Policy as

stated in Section II .A. of this agreement. EPA shall

provide, in a timely fashion, clear and tonsistent

guadance to the state in performing their review and

overview function regarding state issued RCRA permits and

permit actions.

For all RCRA permit actions written and issued on TSD

facilities identified for oversight by the State of

Washington, there will be three opportunities for EPA

review.

a.

b.

The Jirst 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 shall include the

following: 1) a justification, based on guidance or

regulation, why additional or 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.

The second 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 areas where the intent of RCRA is

not being met and any significant issues between the

department and EPA related to the facility and the

permit which should. be resolved prior to the permit

going to public comment. The philosophy here is

that EPA and the department should resolve their

differences at this point in the permit process to

present a more consistent and unified approach to

the regulated community. EPA shall 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

III-ll

o

o
•

•••

comment); 2) the action that should be taken by the

state in order to address the coemeat.s (including

the conditions which the permit would include if it

were issued by EPA).

EPA shall respond during this review period in

accordance with the review schedule set by the

state. If for some reason EPA cannot respond in

that time or does not wish to comment on this draft

permit review opportunity, they will so indicate in

writing to the state that they will not be

commenting or they may request an extended review

time in writing.

c. The third review is the formal review of the dzaft.

permit .following public notice. During this review

EPA may comment in writing on any draft permit

action or proposed permit modification, whether or

not EPA commented on the permit application, within

forty-five (45) days of public notice. For all comments including those where EPA indicates that issuance of the permit or the permit action would be

inconsistent with the approved state program, EPA

shall include in the comment; 1) a statement of the

reasons for the comment (including the section of the

state regulations and RCRA that support the comment);

and 2) the actions 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 may provide a copy of its comments to .the applicant where a cODIDent is made that

the draft permit includes conditions inconsistent

. with the approved state program or lacks conditions

necessary to be consistent with the approved program.

When EPA submits any comments to the applicant, such

comments shall also be provided verbatim to the

state at the same time. The state shall providea

written explanation for addressing the formal

comments submitted by EPA during the public review

period. Based on this response, EPA shall withdraw

such comments, in writing, when satisfied that the

state has met or refuted its concerns. This

withdrawal stat~ment shall also include

a statement

of EPA's proposed course of action, including

timing, for any concerns which are not being

withdrawn. A copy of this statement and any

comments made by EPA which have not been resolved

shall be sent to the applicant at the same time it

is submitted to the state. This withdrawal

statement shall be submitted within ten (to) days

prior to the ·scheduled permit issuance date.

1II-12
· The Regional Administrator dud the Director shall 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 shall respond to such request with recommended

meeting date(s) or shall 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 shall be

prepared by EPA and the state and both shall be provided to the

Regional Administrator and Director at least five (5) working

days before the scheduled meeting. .

Under Section 3008(a) (3) of RCRA, EPA may terminate a stateissued permit in accordance with the procedures of Part 124,

Subpart E, or bring an enforcement action in accordance with

the procedures of 40 CFR 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 CFR271.19(e).

Upon a request by the state, EPA will provide technical assist- 0

ance for permit actions within EPA resource and expertise

constraints. This assistance could be in the form of using

the "permit assistance team," Region X staff, or EPA contractor(s).

F. Provisions for Enforcement and Compliance Monitoring

Upon final authorization, the state 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

state/Federal partnership and an oversight role. The state

and EPA agree that the following elements are mandatory for an

effective enforcement and compliance monitoring program under

final authorization; 1) clear oversight criteria specified in

advance for program pe r fo rmance 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.

1. State

The state agrees to carry out a timely and effective pro- 0

gram for monitoring the compliance of generators, transporters, and facilities with applicable program requirements. As part of this program, the state will conduct

III-13
•••

compliance inspections to assess compliance with generator

and transporter standards (including manifest requirements),

facility standards, permit requirements, (including late

or deficient PartB applications), compliance schedules,

and all other program requirements, including violations

detected by state or Federal compliance inspections.A

compliance and enforcement tracking system is operated by

the state to ensure timely and appropriate enforcement

actions, adequa te compliance. follow-up, monitor

compliance rates, assess categories and violations and

report necessary, accurate, and timely compliance and

enforcement information to EPA for the purposes of

oversight and program performance evaluation. Compliance

monitoring and enforcement activities, priorities and

reporting requirements will be specified in the annual

state program plan and shall be consistent with

applicable Federal requirements and with the state's

program description.

Timely and appropriate state enforcement response will be

based on a department approved enforcement policy for

dangerous waste program violations. This policy will be

consistent with state requirements for ensuring that all

major threats to the ·environment and public health are

treated effectively.

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. In

that case all records will be retained until such action

is resolved.

2. EPA

EPA's primary role in enforcement and compliance

monitoring under final authorization shall be that of

oversight as described in Section II.A. and in accordance

with oversight criteria and measures and oversight

procedures and protocols as set forth in this agreement.

Deviations to these procedures will only occur in unusual

circumstances where warranted and not without prior

written explanation to the state. EPA has the right to

inspect any hazardous waste generator, transporter, or

TSD facility or to bring enforcement action in accordance

with Sections 3008(a)(2), 3013, and 7003 of RCRA or any

other applicable federal statute.

III-14
For the purposes ~f oversight of compliance inspections

and enforcement EPA shall 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:

• Advance notification of intended inspections and

enforcement actions;

• Specific identification of who will be notified;

• How the notification will be done;

o

• When the notification will occur;

• Define the process for state/federal consultation

and dispute resolution on enforcement actions and

policy and regulatory interpretation. o

The written agreement to be established on the above

matters is incorporated by reference in this memorandum

of agreement.

EPA also agrees to inform 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.

At a minimum, the following will be adhered to by EPA,

EPA shall a.ttend approximately ten (10) percent of the

state's compliance inspections to evaluate the state's

techniques, follow-up activities, and enforcement actions.

EPA will receive from the state, thirty (30) days prior to

the beginning of each quarter, a list of facilities to be

inspected for the upcoming quarter. By the end of the

first week of that quarter EPA will submit to the state

hazardous waste program director a list of facilities to

receive an oversight inspection that quarter (approximately 10%). Specific inspection dates will be scheduled

with the appropriate inspector at least ten (10) working

days before the inspection is to occur. EPA shall only 0

conduct independent oversight inspections after giving a

minimum of ten (10) working days written notice to a

III-IS
•••

3.

Department of Ecology representative of their intent to do

so and giving the Department of Ecology an opportunity to

attend.' If EPA hasa concern abouta particular facility

or compliance situation, they shall 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 shall be provided

to Ecology in writing at least ten (10) working days in

advance of the'date that EPA would conduct an inspection.

If the state performsa compliance inspection and submits·

a report and data relevant thereto within that time to

EPA, no EPA inspections will be made, unless the 'Regional

Administrator deems the state report and data to be inadequate. The Regional Administrator may shorten or waive

notice periods in emergency situations, but in all cases

will inform the state before going on-site.

The Regional Administrator may take enforcement action

against any person determined to be in violation of the

authorized program in accordance with Section 3008(a)(2)

of RCRA.

After written prior notice to the state, EPA may take

action under Section 3008 of RCRA againsta holder ofa

state issued permit on the ground that the permittee is

not complying witha condition of that permit.

This agreement will be modified to reflect approved state

and national enforcement policies.

In addition, EPA may take action under Section 3008 of

RCRA againsta holder ofa state issued permit. This

action will be based on any unresolved formal comment.s

that were made by EPA during the public review and issuance of that permit. EPA shall give advance written

notice of such action to the state.

Site Visits

EPA is responsible for maintaining reliable national data

on hazardous waste management. These data are used to

report to the President and Congress on the achievements

of the hazardous waste 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

agrees to reply ina reasonable time to 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 conducta special surveyor

perform information collection site visits after prior

notification to the state. EPA will share with the state

ina timely fashion any national reports or regional reports

developed by EPA asa result of such information collection.

III-16
4. Enforcement Agreement

The RCRA enforcement agreement will be included as

Attachment A to this agreement. The intent of the enforcement agreement is to provide a basis for implementing an

effective state/federal enforcement relationship. The

enforcement 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 enforcement agreement also delineates the

relationship of the state enforcement policy to the compliance strategy and the enforcement agreement itself. The .

objective of the enforcement agreement is to maintain a

stable, predictable, and coordinated enforcement presence.

..

o

G. State Delisting Action

H.

If a state delisting action causes the authorized program to

be no longer equivalent to EPA's, then EPA sha 11 provide

written notification of. this position to the state within

twenty (20) working days of the action. The state shall have

twenty (20) working days to refute or demonstrate equivalency

before EPA may begin proceedings to withdraw program approval.

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 shall be appended as attachments to this

memorandum' of agreement 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 shall 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.

o

For the State:

STATE OF WASHINGTON

DEPARTMENT OF ECOLOGY

By~~

Title:~7~ &r?~

Date: !!p.5' /,9

III-17

For the Federal Government:

U.S. ENVIRONMENTAL PROTECTION

AGENCY, REGION X