# • ATIORNEY GENERAL'S STATEMENT FOR FINAL AUTHORIZATION FOR RCRA CORRECTIVEACTION USING EXISTING STATE CLEANUP AUTHORI1YPROGRAM ("CACAP"); FOR FINAL AUTHORIZATION FQR RCRA CORRECTIVE ACTION; AND 

### FOR FINAL AUTHORIZATION FOR CORRECTIVE ACflON MANAGEMENT UNITS AND 

### TEMPORARY UNITS

INTRODUCTION This Attorney General's Statementadds a newprogramto the State of Washington's federally authorized RCRA program. The new program will be known as CACAP (Corrective Action Using Existing State Cleanup Authority Program) or as the Alternative Authorities Initiative. This statementsets out the legal framework for the newprogramand is considered an addition to prior Attorney General's Statements and is further considered a revision of certain sections of the currentfederally authorizedRCRAprogramin the state. State Comments: Washington received final authorization for the base RCRA program and portions of non-HSWA Cluster I on January 30, 1986. In 1987, Washington received authorization for federal program amendments contained in non-HSWA Cluster I (except for §3006(f) public availability ofinformation) as well as radioactive mixed waste (non-HSWA Cluster ill) 

### and portions of HSWA Cluster I. 

### In 1990, Washington receive authorization for §3006(f) public availability ofinformation (from non-HSWA Cluster I), all 

### of non-HSWA Cluster Il, and portions of non-HSWA Cluster ill 

### and IV. Currently, Washington has an authorizationapplication pending for the remainderofnon-HSWAClusterill; 

### most of nonHSWA Cluster IV; and portions of non-HSWA Cluster V, HSWA Cluster I and Il, 

### Washington anticipates authorization for the pending application in 1994. Statutory references are to Chapter 70.105 Revised Code ofWashington ("RCW"), ''The Hazardous Waste Management Act" and Chapter 70.105D RCW, "Model Toxics Control Act". Chapter70.105 RCW was enacted in 1980;Chapter 70.105D RCW in 1989. Regulatory citations are to Chapter 173-303 Washington Administrative Code ("WAC"), "Dangerous Waste Regulations", adopted October, 1982 and most recently amended April, 1991, or to Chapter 173-340 WAC, ''The Model Toxies Control Act Cleanup Regulation", adopted May, 1990 and amended February, 1991. Regulatory cites which are underlined

.were promulgated in Chapter 173-303 WAC on June 16, 1993,adopted December 6, 1993

and will be fully effectiveJanuary 6, 1994. Washington's system of waste regulations utilizes different terminology than the Attorney General's Statement, Page 1

### federal system. UnderWashington's regulatory program, hazardous wastes are referred to as dangerous waste. A subset of dangerous waste, which Washington has determinedposes greater risks to human health and the environment, is referred to as extremely hazardous waste. Hazardous constituents are referred to as dangerous constituents and hazardous waste constituents are referred to as dangerous waste constituents.

Attorney General's Statement, Page 2

# Ie . Ie RCRA CORRECTIVE ACflON USING EXISTING STATE CLEANUP AUTHORflY

AUTHORITY TO IMPLEMENT THE FEDERAL RCRA PROGRAM AND TO REQUIRE CORRECTIVE ACTION A. State statutes and regulations require owner/operators of facilities seeking or required to have a permit under RCRA Section 3005, 42 U.S.C. § 6925, to implement corrective action as necessaryto protect humanhealth and the environment for all releases of hazardous wastes or constituents from any solid waste management unit at any treatment, storage or disposal facility seeking or required to have a permit. Federal Authority: 

### RCRA § 

### 3004(u), 42 U.S.c. § 

### 6924(u); 40 C.F.R. §264.101 Citation of Laws and Regulations; dates ofenactment and adoption: 

### 70.105.130(1) 70.105D.030(1)(d) 70.105.130(2)(a) 70.105.130(2)(b) 70.105.130(2)(c)(ii) 70.105.130(2)(c)(iii) 70.105D.030(1)(a) 70.105D.030(1)(b) 70.105.130(2)(e) 70.105D.030(1)(f) WAC 173-303-646(2)(a) WAC 173-303-646(2)(b) \V AC 173-303-400(3)(a)(i) WAC 173-303-802(3) WAC 173-303-802(4) Remarks of the Attorney General: 

### State statutes (RCW70.105D.030(1)(d)) authorize stateprogramswhicharenecessary and appropriate to 

### administer a fully authorized state hazardous waste management program equivalentto the federal programunderthe Resource Conservation and Recovery Act, as amended including federal provisions for RCRA corrective action. State statutes authorize Ecology to investigate, provide for investigating, or require potentially liable persons to investigate any release or threatened releases of hazardous Attorney General's Statement, Page 3substances, including but not limited to inspecting, sampling, or testing to determine the nature or extent of any release or threatened release. In addition state statutes authorize Ecology to conduct, provide for conducting, or require potentially liable persons to conduct 

# 0 remedial actions (including investigations) to remedy releases or threatened releases of hazardous substances. State statutory requirements for investigative and remedial actions do not differentiate between cleanup requirements at RCRA and non-RCRA facilities. Similarly, state statutory requirements for investigative and remedial actions do not differentiate between releases from solid waste management units and releases from other sources. (Washington wishes to note that the statutory provisions at RCW 70.105D.030 are most similar to federal enforcement provisions at RCRA Section 3008(h), in that the state is not limited to addressing releases from any particular source and liable persons are explicitly responsible to conduct remedial action for all releases to the environment.) State regulations governing corrective action at RCRA facilities, promulgated at WAC 173-303-646, require owner/operators of facilities seeking or required to have a permit for the treatment, storage, recycling, and/or disposal ofdangerous waste to institute corrective action as necessary to protect human health and the environment from all releases ofdangerous wastes anddangerous constituents, including any and allreleases from all solid waste management units, at the facility. As in the Federal corrective action program, state regulations require corrective action regardless of the time of the release and regardless of whether the facility or unit was intended for the management of solid or dangerous waste. Through its statutory mandate to address all releases of hazardous substances, Washington has developed corrective action requirements which are, in part, broader in 

# 0 scope than the federal corrective action requirements at RCRA § 3004(u). Specifically, dangerous waste managementfacilities inWashingtonwill be requiredto conductcorrective action for all releases ofdangerous waste and dangerous constituents at or from the facility regardless of the source of the release. (Washington notes that, although state corrective actionrequirements are, inpart, broaderin scope thanfederal provisions at RCRASections 3004(u) and (v), theirimplementationwill be analogous to federal enforcementofcorrective action requirements pursuant to RCRA Section 3008(h).) B. State statutes and regulations provide for the enforcement ofcorrective**_~~tion.** In addition, the State statutes and regulations provide for the enforcement of schedules of compliance for corrective action. Federal Authority: RCRA § 3004(u), 42 USC § 6924(u); 40 CFR § 271.16 Citation of Laws and Regulations; Dates ofEnactment and Adoption: 70.105.080 Attorney General's Statement, Page 4 

# c

### 70.105.085 70.105.095(1) 70.105.095(2) 70.105D.030(2)(c) 70.105D.050(1) 70.105D.050(4) 70.105.097 70.105.120 70.105D.050(5)(a) Remarks of the Attorney General: 

### The provisions for state enforcement of corrective action regulations and for citizen suits to enforce state corrective action regulations satisfy the requirements at 40 CFR § 

### 271.16.

ESSENTIAL ELEMENTS OF THE CACAP PROGRAM State statutes and regulations provide authority to meet the essential elements of corrective action. These elements are considered the minimum elements required for the program. The state may exceed these minimumrequirements. Where the state exceeds the requirements the "Remarks of the Attorney General" will explain why and how the state exceeds the minimum. The authority for the essential elements is as follows: A. State statutes and regulations provide authority to compel corrective action through permits, and in addition provide authority to compel corrective action through state administrative orders. State statutes and regulations require corrective action. State statutes and regulations require that all permits for treatment/storage/disposal facilities issued after the date of state authorization require corrective action for all releases, ofall hazardous waste orhazardous constituents (at a minimum40 C.F.R. § 261 AppendixVIII), from any solid waste management unit (SWMU) at a treatment/storage/ disposal facility. Federal authority: 

### RCRA § 

### 3004(u), 42 USC 6924(u); 40 CFR § 

### 271.14, § 

### 271.16, § 

### 270.30, § 

### 270.32 Citation of Laws and Regulations; Dates ofEnactment and Adoption: 

### 70.105.130(2)(a) 70.105.130(2)(b) 70.105.130(2)(c)(ii) 70.105.130(2)(c)(iii) 70.105D.030(1)(a) Attorney General's Statement, Page 5WAC 173-303-646(2)(a) WAC 173-303-646(2)(b) WAC 173-303-646(2)(c) WAC 173-303-400(3)(a)(i) WAC 173-303-646(3)(a) WAC 173-303-646(3)(b) WAC 173-303-646(3)(c) WAC 173-303-806(4 )(a)(xxi)(A) & (B) Remarks ofthe Attorney General: State statutes designate the Department of Ecology as the state agency responsible to establish a comprehensive state-wide framework for the planning, regulations, control, and management of hazardous waste. State statutes (RCW 70.105D.030(1)(d)) authorize state programs which are necessary and appropriate to administer a fully authorized state hazardous waste management program equivalent to the federal program under the Resource Conservation and Recovery Act, as amended, and designate the Department of Ecology as the state agency responsible for developing, implementing and enforcing such state programs. State statutes also provide that the Departmentof Ecology may adoptrules : necessary to implement statutory mandates, including the statutory mandates for implementation of the federal program and for cleanup of hazardous waste sites. 

# c

TheDepartmentof Ecology has adoptedcorrective actionregulationsinChapter 173- 303WashingtonAdministrativeCode (WAC). The requirement to conduct corrective action is found at WAC 173-303-400(3)(a)(i) and WAC 173-303-646(2). State corrective action 

# 0 requirements are, in part, broader in scope than federal corrective action requirements at RCRA 3004(u) and (v) and 40 CFR § 264.101. Specifically, the state requires corrective actionfor all releases ofdangerouswaste and dangerous constituents at a Facility, regardless ofsource; federal corrective action islimited to releases from solid waste managementunits. WAC 173-303-646(3) authorizes Washington to require facilities to fulfill their corrective action obligations through implementation of an approved remedial action (including investigations) pursuant to the state cleanup authority, RCW 70.105D the Model Toxics Control Act (MTCA), as amended, and its implementing regulations, Chaptez.I73- 340 WAC. Corrective action requirements imposed pursuant to the MTCA will, at a minimum be equivalent to conventionally imposed corrective actions. Corrective action cleanup standards imposed pursuant to MTCA may be more stringent than federally imposed corrective action cleanup standards. The potential for additional stringency is caused by MTCA's reduced risk range (10- 5 cumulative carcinogenic risk, with carcinogenic risk from individual constituents limited to 10-6, compared to the carcinogenic riskrange of 10 4 to 10-6proposed in draft subpart S and currently implemented by the Federal Superfund program).

Attorney General's Statement, Page 6 

# (j

### Washington wishes to note, that WAC 173-303-646(2) contains the mandatory state corrective action provisions, and preserves the state's ability to impose corrective action requirements in administrative orders or permits issued pursuant to Chapter 70.105 RCW and Chapter 173-303 WAC, independent of any potential requirements for a facility to conduct a state cleanup under the MTCA Washington chose to adopt corrective action regulations in Chapter 173-303 WAC, in part, to emphasize that dangerous waste managementfacilities have legitimate cleanup obligations as a condition oftheir dangerous waste management, independent of any other cleanup obligations which may be applicable to such facilities under state or federal law. The ability to impose corrective action requirements pursuant to the MTCA is a regulatory option which will be implemented at Ecology's discretion. B. State statutes and regulations require the following information to be included in the permits of facilities where releases have occurred: (i.) Schedules ofcompliance for corrective action requirements and (H.) Assurances offinancial responsibility for completing corrective actions. Federal Authority: 

### RCRA § 

### 3004(u), 42 USC § 

### 6924(u), 40 CFR § 

### 270.33, § 

### 271.14. Citation ofLaws and Regulations; Dates ofEnactment and Adoption: 

### 70.105.130(2)(a) 70.105D.030(1)(a) 70.105D.030(1)(b) 70.105D.030(2)(c) WAC 173-303-646(2)(c) WAC 173-303-646(3)(c) WAC 173-303-802(3) WAC 173-303-802(4) Remarks of the Attorney General: 

### The requirements forincorporationof corrective action and schedules of

### compliance for corrective action in finalpermits at WAC 173-303-646(2)(c) andWAC 173-303-646(3)(c) and the requirements for permitby rule facilities to conduct corrective action at WAC 173- 303-802(3), and WAC 173-303-802(4) are equivalentto the federal requirements at 40CFR § 

### 264.101(b), 40 CFR § 

### 270.60(b)(3)(i), and 40 CFR § 

### 270.60(c)(3)(vii). 

### In the case of corrective actionrequirements and schedules of complianceimposedpursuantto the MTCA, Washington willincorporate suchrequirements and schedules into final permits at the time of permit issuance.

Attorney General's Statement, Page 7C. Statestatutes and regulations require that corrective action be taken beyond the facility boundary where necessary to protect human health and the environmentunless the owner/operator of the facility demonstrates to the state's satisfaction that, despite the 

# C owner's/operator's best efforts, the owner/operator was unable to obtain the necessary permission to undertake such action. Federal Authority: RCRA § 3004(v), 42 USC § 6924(v); 40 C.F.R. § 264.101 Citation of Laws and Regulations; dates ofenactment and adoption: 70.105.130(2)(c)(iii) 70.105D.030(1)(a) 70.105D.030(1)(b) WAC 173-303-646(2)(b) WAC 173-303-646(3)(a) Remarks of the Attorney General: The requirement to implement corrective action for releases which have migrated beyond the facility boundary at WAC 173-303-646(2)(b) is more stringent than the federal requirement at 40 CFR § 264.101(b). Washington's authority to require remediation of releases which have migratedbeyond the facility boundary is not limitedby the ''best efforts" language of the federal requirement. 

# 0

D. State statutes and regulations define "facility" as all contiguous property under the control ofthe owner/operator. Federal Authority: RCRA § 3004(u), 42 USC 6924(u); 40 CFR § 260.10, § 264.101. Citation of Laws and Regulations; Dates ofEnactment and Adoption: 70.105.101(11) 70.105D.020(3) WAC 173-303-040 Remarks of the Attorney General: The definition of facility at WAC 173-303-040 isequivalent to the federal definition of facility at 40 CFR § 260.10.

Attorney General's Statement, Page 8E. State statutes and regulations require owners/operators to take all necessary steps to study, implement and complete corrective action. Federal Authority: 

### RCRA § 

### 3004(u), 42 USC § 

### 6924(u); 40 CFR § 

### 264.101 Citation ofLaws and Regulations; Dates of Enactment and Adoption: 

### 70.105.130(2)(b) 70.105.130(2)(c)(ii) 70.105.130(2)(c)(iii) 70.105D.030(1)(a) 70.105D.030(1)(b) 70.105.130(2)(e) 70.105D.030(1)(f) WAC 173-303-646(2)(a) WAC 173-303-646(2)(b) Remarks ofthe Attorney General: 

### Washington's requirements to conduetcorrective action and Washington's ability to require owner/operators to take all steps necessary to implement corrective action are equivalent to federal requirements at Sections 3004(u) of RCRA and 40 CFR § 

### 264.10l. State corrective action requirements are, in part, broader in 

### scope than federal corrective actionrequirements at RCRA3004(u) and (v) and 40 CFR § 

### 264.101. Specifically, the state requires corrective action for all 

### releases of dangerous waste and dangerous constituents at a Facility, regardless of source; federal corrective action is limited to releases from solid waste management units. F. State statutes and regulations require demonstrations offinancial responsibility for completing corrective action in both the permit and in state administrative orders. Federal Authority: 

### RCRA § 

### 3004(u), 42 USC § 

### 6924(u); 40 CFR § 

### 264.101, § 

### 271.14. Citation of Laws and Regulations; Dates of Enactment and Adoption: 

### 70.105.130(1) 70.105D.030(1)(d) 70.105.130(2)(c)(iii) WAC 173-303-646(2)(a) WAC 173-303-646(2)(b) Attorney General's Statement, Page 9

### WAC 173-303-646(2)(c) Remarks of the Attorney General: 

### RCW 70.105D.030(1)(d) authorizes state programs which are necessary and appropriate to administer a fully authorized state hazardous waste management program equivalent to the federal program under the Resource Conservation and Recovery Act, as amended. This includes federal provisions requiring financial assurance for completion of corrective action activities. The corrective action financial assurance requirements for facilities seeking or required to have a RCRA permit at WAC 173-303-646(2)(a), (b) and (c) are equivalent to the federal requirements at 40 CFR § 

### 264.101(b) and (c). G. State statutes and regulations provide for public participation with respect to selection of corrective measures in the state's order authority and in the state's permit authority. In addition, state statutes and regulations in its permit authority require public participation for permit modifications equivalent to the federal public participation requirements in the applicable federal statutes and regulations for permit modification procedures for permits. Federal Authority: 

### RCRA § 

### 7004(b), 42 U.S.c. § 

### 6974; 40 C.F.R. § 

### 270.42, § 

### 271.16(d). Citation of Laws and Regulations; Dates ofEnactment and Adoption: 

### 70.105.130(2)(a) 70.105D.030(2)(a) WAC 173-303-830 Remarks ofAttorney General: 

### Washington's provisions forpermitmodifications at WAC 173-303-830are equivalent to federal provisions for permit modifications at 40 CFR § 

### 270.42. When imposing corrective action requirements pursuant to MTCA, Washington will conduct**~blic** 

### involvement according to the requirements at RCW 70.105D.030(2)(a), which Will 

### include public notice and opportunity to comment on remedy selection and design. The public involvement processes for permitting, also at WAC 173-303-830, will 

### extend to corrective action requirements which are incorporated by reference into permits at the time of final permit issuance. When imposing corrective action requirements in an order issued pursuant to the MTCA, Washington's public involvement requirements may be more stringentthan federal public involvement requirements. Under MTCA, Washington must provide public notice and opportunity to comment on the development of investigative plans as well as remedial Attorney General's Statement, Page 10 

# 0,



# c

# ie decisions. Additionally, under MTCA, Washington must provide for updates on site cleanups at meetings of regional citizen's advisorycommittees and in 

### bi-annual reports to the state legislature.

Attorney General's Statement, Page 11OPTIONAL SECTION FOR STATES SEEKlNG FINAL AUTHORIZATION FOR CACAP PROGRAM This section is an optional section states may use to provide additional information on CACAP in the state. Information a state may want to include, for example, might be an elaboration of definitions used in the CACAP program. State Comments: Washington has chosen to use this section to outline the definitional structurewhich will be used to implement Washington's CACAP program. Washington believes that an adequate, well understood, definitional structure is essential to successful CACAP implementation, therefore, it has codified a definitional system which will allow it to require corrective actions which at a minimum are equivalent to those required under RCRA Sections 3004(u) and 3004(v). Washington's statutory system of definitions for hazardous waste management is found in Revised Code of Washington (RCW) Chapter 70.105 and Chapter 70.105D. Regulatory definitions pertaining to corrective action and the CACAP program have been codified in Chapter 173-303 of the Washington Administrative Code (WAC), entitled, "Dangerous Waste Regulations". 

# c

Inorderto facilitate alternativeauthorities correctiveaction, Washingtonhas adopted by reference many of the definitions from the Model Toxics Control Act. Washington intends that corrective action provisions not specifically provided for in the MTCA, 

# C including, but not limited to provisions for corrective action managementunits, solid waste management units, temporary units, and financial assurance, will be applied using the applicable relevant and appropriate requirement provisions of MTCA. A. Definition of facility Citations of Laws and Regulations; dates ofenactment and adoption: 70.105.101(11) 70.105D.020(3) WAC 173-303-040 Remarks of the Attorney General: The definition of facility at WAC 173-303-040 is equivalent to the federal definition of facility at 40 CFR Part 260.10.

Attorney General's Statement, Page 12 

# oB. Universe ofconstituents subject to corrective action; definitions ofdangerous waste and dangerous constituent Citations ofLaws and Regulations; dates ofenactment and adoption: 70.105D.020(5) 70.105.010(14) 70.105D.030(1)(e) WAC 173-303-9905 WAC 173-303-040: Remarks ofthe Attorney General: The universe of constituents (substances) subject to corrective action under state authority pursuant to the state definitions ofdangerous waste and dangerous constituent is equivalentto the universe ofconstituents subjectto federal corrective actionpursuantto the federal definitions of hazardous waste and hazardous constituents. While the state may define such universe more explicitly than it is defined under federal regulations, both use the same underlying test to determine constituents subject to regulatory control, thatis,does' the constituent pose a threat or potential threat to human health and/or the environment, either intrinsicly or due to site specific conditions. The universe of constituents subject to federal corrective action is generally defined by the federal statutory definition of hazardous waste at RCRA Section 1004(5), by the definition ofhazardous constituent as discussed in the first HSWA codification rule (50 FR 28713) and by the regulatory definition ofhazardous waste constituent at 40 CFR § 260.10. The federal universe of constituents subject to corrective action includes, at least: (1) constituents present in hazardous waste as identified by RCRA Section 1004(5); (2) constituents listed at 40 CFR Part 261 Appendix VITI; (3) constituents released from solid waste; (4) constituents which are reaction byproducts; and (5) constituents listed at 40 CFR Part 264 Appendix IX. In the case of all but the constituents listed at 40 CFR Part 261 Appendix VIII, in order to address them in the context of corrective action, EPA must also make a determinationthat such constituents are "hazardous". Although thereis no explicit guidance on this determination, EPA seems to base such decisions on threats or potential threats to human health and/or the environment posed by such constituents either intrinsicly or due to site specific circumstances. In the first HSWA codification rule, EPA wrote, "Although the scope ofsection 3004(u)'sjurisdiction appears broad given the definition ofrelease and its multimedia jurisdiction, the Agency has limited the application of this provision by mandating corrective action only where necessarY to protect human health and the environment." (emphasis in original). Although the quote is in the context of a discussion of the definition of release, it is appropriate to extend that reasoning to the broad universe addressed by the term "hazardous constituent". In a similar discussion in the preamble to



# - '-**"-..~** Attorney General's Statement, Page 13 '."the proposal of 40 CFR Part 264 Subpart S, EPA wrote "...the remedial authority under section 3004(u) is not limited to releases of wastes specifically listed in 40 CFR part 261 or identified pursuant to the characteristic tests found in that section. Rather, it extends· 

# C) potentially to any substance meeting the statutory definition. However, EPA believes that use of the phrase 'hazardous wastes or constituents' indicated that Congress was particularly concerned that the Agency use the section 3004(u) authority to address a specific subset of this broad category, that is, hazardous constituents." (see 55 FR 30809) As under the federal system, Washington uses a combination of statutory and regulatory definitions combined with a determinationthat a given constituentis "hazardous" to define the universe of constituents subject to state .corrective action. Theuniverse of constituents subjectto state corrective actionincludes: (1) constituentsidentifiedby the state statutory definition of dangerous waste, which is analogous to the federal definition of hazardous waste at RCRA Section 1004(5); (2) constituents listed in the state's equivalent analogue to 40 CFR Part 261 Appendix VIII (WAC 173-303-9905); (3) constituents listed at 40CFR Part264Appendix IX; and (4) constituents which are identified by the definition of hazardous substance at RCW 70.105D.020(5), including solid waste decomposition products. Washington believes that reaction byproducts, although not explicitly listed, can be included in the definition ofhazardous substance at RCW 70.105D.020(5) to the extent that such byproducts pose a threat or potential threat to human health and/or the environment. It is important to note that, by inclusion of the definition of hazardous substance from RCW 70.105D.020(5),(,Washington does not intend to regulate hazardous substances or products in their product forms. Regulatory authority under Chapter 173-303 WAC is 

# C limited to wastes and substances which are, or potentially have been, released to the environment. Washington does not believe the inclusion of petroleum products in the definition of hazardous substance at RCW 70.105D.020(5) will conflict with any federal exemptions for petroleum or petroleum contaminated debris under RCRA, since such exemptions are limited to exemptions from specific waste determination requirements and do not affect facility owner/operator responsibilities for corrective action to address all hazardous constituents, including constituents ofpetroleum. C. Definition ofrelease Citations of Laws and Regulations; dates ofenactment and adoption: 70.105D.020(1O) . 70.105.010(4) WAC 173-303-040 WAC 173-303-040

Attorney General's Statement, Page 14

# :e Remarks ofthe Attorney General: The definition ofrelease at WAC 173-303-040 is equivalent to the federal definition of release proposed in the July 27, 1990 Federal Register (55 FR 30874). D. Definition of Solid Waste Management Unit Citations of Laws and Regulations; dates ofenactment and adoption: 70.105.130(1) 70.105D.030(1)(d) 70.105.130(2)(c)(iii) 70.105.130(2)(e) 70.105D.030(1)(f) WAC 173-303-040 Remarks of the Attorney General: The definition ofsolid waste managementunit at WAC 173-303-040 is equivalent to the federal definition ofsolid waste managementunitproposed in the July 27, 1990 Federal Register (55 FR 30874). E. Definition of Schedule of Compliance Citations of Laws and Regulations; dates ofenactment and adoption: 70.105.130(2)(a) 70.105.130(2)(c)(iii) 70.105.130(2)(b) 70.105D.030(2)(b) 70.105.130(2)(e) 70.105D.030(1)(f) WAC 173-303-040 Remarks of the Attorney General: The definition ofschedule of compliance at WAC 173-303-040 is equivalent to the federal definition of schedule of compliance at 40 CFR § 270.2.

Attorney General's Statement, Page 15

### II. RCRA CORRECfIVE ACTION PROGRAM

A. State statutes and regulations contain the following corrective action requirements as indicated in Revision Checklist 17 L: (1) Corrective action is required for releases of hazardous waste or hazardous constituents from any solid waste management units at a facility seeking a permit regardless of when the waste was placed in the unit, in all permits issued after November 8, 1984. Federal Authority: 

### RCRA § 

### 3004(u), 42 USC 6924(u); 40 CFR § 

### 264.90, § 

### 264.101. Citation ofState Laws and Regulations; Date ofEnactment and Adoption: 

### 70.105.130(2)(a) 70.105.130(2)(b ) 70.105.130(2)(c)(ii) 70.105.130(2)(c)(iii) 70.105D.030(1)(a) 70.105D.030(1)(b) 70.105.130(2)(e) 70.105D.030(1)(f) WAC 173-303-646(2) Remarks ofthe Attorney General: 

### The requirements to conduct corrective action and include corrective action requirements in final permits at WAC 173-303-646(2) are equivalent to federal corrective action requirements at 40 CFR § 

### 264.101(a). State corrective action requirements are, in 

### part, broader in scope than federal corrective action requirements at RCRA 3004(u) and (v) and 40 CFR § 

### 264.101. Specifically, the state requires corrective action for all releases of dangerous waste and dangerous constituents at a Facility, regardless of source; fe-deral corrective action is limited to releases from solid waste management units. (2) Corrective action is required beyond a facility's boundary, in accordance with RCRA § 3004(v)(1) Federal Authority: 

### RCRA § 

### 3004(v)(1); 40 CFR § 

### 264.101.

Attorney General's Statement, Page 16 

# o



# o

()

# Ie Citation ofState Laws and Regulations; Date ofEnactment and Adoption: 70.105D.030(1)(a) 70.105D.030(1)(b) 70.105.130(2)(b) 70.105D.130(2)(c)(ii) 70.105.130(2)(c)(iii) WAC 173-303-646(2)(b) Remarks ofAttorney General: The requirementfor corrective actionto extend beyond a facility's boundary at WAC 173-303-646(2)(b) is more stringent than federal requirements at 40 CFR § 264.101(b). Washington's authority to require remediation ofreleases which have migratedbeyond the facilityboundary is not limited by the "best efforts" language ofthe federal requirement. (3) Corrective action is required beyond a facility's boundary in accordance with § 3004(v) for all landfills, surface impoundments and waste pile units (including any new units, replacement ofexisting units or lateral expansions ofexisting units) which receive hazardous waste after July 26, 1982. Federal Authority: RCRA § 3004(v)(2) Citation ofState Laws and Regulations; Date ofEnactment and Adoption: 70.105.130(2)(b) 70.105.130(2)(c)(iii) 70.105D.130(2)(c)(ii) 70.105D.030(1)(a) 70.105D.030(1)(b) WAC 173-303-040 WAC 173-303-800(2) WAC 173-303-646(2)(a) WAC 173-303-646(2)(b) Remarks ofAttorney General: State requirements for correctiveactionbeyond a facility's boundaryfor releases from all landfills, surface impoundments and waste pile units (including any new units, replacement of existing units or lateralexpansions of existingunits) which receive hazardous waste after July 26, 1982 are equivalent in scope to federal requirements at RCRA § 3004(v)(2), except to the extent that state corrective action requirements are, in part, Attorney General's Statement, Page 17

### broader in 

### scope and, in part, more stringent than analogous federal requirements. State corrective action requirements are, in part, broader in 

### scope than federal corrective action requirements at RCRA 3004(u) and (v) and 40 CFR § 

### 264.101. Specifically, the state 

# 0 requires corrective action for all releases of dangerous waste and dangerous constituents at a Facility, regardless of source; federal corrective action is limited to releases from solid waste management units. State corrective action requirements are in 

### part more stringent than federal requirements as the state's authority to compel remediation ofreleases which have migrated beyond the facilityboundary is not limited by the ''best efforts" language of the federal requirement. (4) There is evidence of financial responsibility for the completion ofcorrective action on- and off-site. Federal Authority: 

### RCRA § 

### 3004(a)(6), § 

### 3004(u); 40 CFR § 

### 264.90, § 

### 264.101. Citation of State Laws and Regulations; Date ofEnactment and Adoption: 

### 70.105.130(1) 70.105D.030(1)(d) 70.105.130(2)(a) 70.105D.030(1)(a) 70.105D.030(1)(b) WAC 173-303-645(1)(a)(ii) WAC 173-303-646(2)(a) WAC 173-303-646(2)(b) WAC 173-303-646(2)(c) Remarks ofAttorney General: 

### RCW 70.105D.030(1)(d) authorizes state programs which are necessary and appropriate to administer a fully authorized state hazardous waste management program equivalent to the federal program under the Resource Conservation and RecoveryAct, as amended. This includes federal provisions requiring financial assurance for completion of corrective action activities. State requirements for corrective action financial assurance at WAC 173-303-645(1)(a)(ii) and WAC 173-303-646(2) are equivalenttofederalrequirements for corrective action financial assurance at 40 CFR § 

### 264.90, § 

### 264.101. (B) State statutes and regulations require landfills, surface impoundments, land treatment units, and waste piles that received waste after July 26, 1982 and which qualify forinterim status to comply with thegroundwatermonitoring,unsaturatedzone monitoring, and corrective action requirements applicable to new units at the time ofpermitting as indicated in Revision Checklist 17 L. 

### Attorney General's Statement, Page 18 

# (J



# o

# Ie Federal Authority: RCRA § 3005(i); 40 CFR § 264.90(a). Citation ofState Laws and Regulations; Date ofEnactment and Adoption: 70.105.130(2)(a) 70.105.130(2)(b) 70.105.130(2)(c)(ii) 70.105.130(2)(c)(iii) 70.105D.030(1)(a) 70.105D.030(1)(b) WAC 173-303-040 WAC 173-303-645(1) WAC 173-303-645(1)(a)(ii) Remarks ofAttorney General: The requirement for regulated units which are subject to interim status to comply with the groundwater monitoring, unsaturated zone monitoring, and corrective action requirements applicable to new units at the time ofpermittingat WAC 173-303-645(1)(a)(ii) is equivalent to federal requirements at 40 CPR § 264.90(a). (C) State statutes and regulations provide for additional information and engineeringfeasibility plan requirements regardinggroundwatercontaminationdetected at the time ofPart B permit application as indicated in Revision Checklist 38. Federal Authority RCRA §§ 3004 and 3005; 40 CFR § 270.14 Citation ofLaws and Regulations; Date ofEnactment and Adoption 70.105.130(2)(a) 70.105.130(2)(b) 70.105.130(2)(c)(ii) 70.105.130(2)(c)(iii) 70.105D.030(1)(a) 70.105D.030(1)(b) WAC 173-303-806(4)(a)(xx)(A) - (V) Remarks ofthe Attorney General The requirement for submittal ofadditional information and engineering feasibility Attorney General's Statement, Page 19plan requirements regarding groundwater contamination at the time of Part B permit application at WAC 173-303-806(4) (a) (xx) is equivalenttofederal requirements at40 CFR 

# C**§~~ .~**  (D) State statutes and regulations require owners and operators offacilities seeking permits to providedescriptiveinformation onthe solid waste managementunits themselves and all available information pertaining to any releases from the units as indicated in Revision Checklist 44 A. Federal Authority RCRA § 3004(u); 40 CFR § 270.14 Citation ofLaws and Regulations; Date ofEnactment and Adoption

.I I 70.105.130(2)(a) 70.105.130(2)(b) 70.105.130(2)(c)(ii) 70.105.130(2)(c)(iii) 70.105D.030(1)(a) 70.105D.030(1)(b) WAC 173-303-040 WAC 173-303-646(2) WAC 173-303-806(4)(a)(xx) WAC 173-303-806(4)(a)(xxiii) Remarks ofthe Attorney General The requirement for facility owner/operators to submitinformationdescribing solid wastemanagementunits andanyreleasefromsuchunits atWAC 173-303-806(4)(a)(xx)and WAC 173-303-806(4)(a)(xxiii) is equivalent to federal requirements at 40 CFR § 270.14. (E) State statutes andregulations requireowners andoperators ofhazardouswaste treatment, storage and disposal facilities (including permit-by-rule faclllties subject to 40 CFR264.101) to institute corrective action beyond the facility boundary to protect human health and the environment, unless the owner/operatoris denied access to adjacent lands despite the owner/operator's best efforts, as indicated in Revision Checklist 44 B. Federal Authority RCRA § 3004(v); 40 CFR §§ 264.100(e) and 264.101(c) 

# o

Attorney General's Statement, Page 20 

# C)

# -.

• Citation ofLaws and**R~ations;** Dates ofEnactment and Adoption 70.105.130(2)(a) 70.105.130(2)(b) 70.105.130(2)(c)(ii) 70".105.130(2)(c)(iii) 70.105D.030(1)(a) "70.105D.030(1)(b) 

### VVi\<:" 173-303-040 

# vo«: 173-303-802(3) 

# so«: 173-303-802(4)(c)(viii) WA<: 173-303-646(2)(a) WA<: 173-303-646(2)(b) 

### Wi\<: 173-303-645(1l)(e) Remarks ofthe Attorney General The requirements for facility owner/operators, including owner/operators ofpermit- " by-rule facilities,to institute corrective action beyond the facilityboundaryatWA<: 173-303- 645(11)(e) and WA<: 173-303-646(2)(b) are equivalent to federal requirements at 40 <:FR §§ 264.100(e) and 264.101(c), except to the extent that state corrective action requirements are, in part, broader in scope and, in part, more stringent than analogous federal requirements. State corrective action requirements are, in part, broader in scope than federal corrective action requirements at R<:RA 3004(u) and (v) and 40 <:FR § 264.lOI. Specifically, the state requires corrective action for all releases of dangerous waste and dangerous constituents at a Facility, regardless ofsource; federal corrective action is limited to releases from solid waste management units. State corrective action requirements are in part more stringentthan federal requirements asthe state's authority to compel remediation of releases which have migrated beyond the facility boundary is not limited by the "best efforts" language of the federal requirement.

Attorney General's Statement,Page 21

### feU!~GcL

### III. CORRECTIVE ACTION MANAGEMENT UNITS AND TEMPORARY UNITS

_(A) State

-statutes and regulations define the following terms for the purpose of corrective action: (1) Facility to include

-all contiguous property under the control of the owner/operator; 

# G

Federal Authority: RCRA § 3004(u), §

### 3004(~); 40 CFR§ 260.10. Citation ofState Laws and Regulations; Dates ofEnactment and Adoption: 70.105.101(11) 70.105D.020(3) WAC 173-303-040 Remarks of-the Attorney General: J

The definition offacility at WAC 173-303-040 is equivalent to the federal definition 

# 0 . of facility at 40 CFR § 260.10. The-definition of facility is also discussed at Section II, item



### E. (2) Corrective Action Management Unit ("CAMU") for purposes ofmanagement of remediation wastes pursuant to implementing corrective action at the facility; Federal Authority: RCRA § 3004(u), § 3004(v); 40 CFR § 264.101, § 270.2., § 260.10. Citation ofState Laws and Regulations, Dates 'of Enactmentand Adoption: 

# r' 70.105.130(2)(c)(iii) 70.105.130(2)(b) 70.105D.030(1)(a) 70.105D.030(1)(b) WAC 173-303-040 Remarks ofthe Attorney General:

I' The definition of corrective action management unit at WAC 173-303-040 is equivalent to the federal definition at 40 CFR § 264.101, and § 260.10. Attorney General's Statement; Page 22**\~\j,,~t.~** 

# G(3) Landfill to include CAMU; Federal Authority: RCRA § 3004(v), § 3004(v); 40 CFR § 264.10. Citation of State Laws and Regulations, Dates ofEnactment and Adoption: 70.105.130(2)(b) 70.105.130(2)(c)(iii) WAC 173-303-040 Remarks ofthe Attorney General: Washington does not define landfill and land disposal facility separately. Rather, the definition of land disposal facility is part of the definition of landfill. The definition of landfill at WAC 173-303-040 is equivalent to the federal definitions of landfill and land disposal facility at 40 CFR § 260.10. (4) Miscellaneous unit to include CAMU; Federal Authority: RCRA § 3004(u), § 3004(v); 40 CFR § 264.10. Citation of State Laws and Regulations, Date ofEnactment and Adoption: 70.105.130(2)(b) 70.105.130(2)(c)(iii) WAC 173-303-040 Remarks of the Attorney General: The definition ofmiscellaneous unit at WAC 173-303-040 is equivalentto the**~geral** definition of miscellaneous unit at 40 CFR § 260.10. (5) Remediation waste to include all solid and hazardous waste and all media and debris which contain listed hazardous waste or exhibit hazardous waste characteristics managed for the purpose ofimplementing corrective action; Federal Authority: RCRA § 3004(u), § 3004(v); 40 CFR § 264.10.

Attorney General's Statement, Page 23,



# I Citation ofState Laws and Regulations, Dates ofEnactment and Adoption: 70. 105.130(2)(b) 70.105.130(2)(c)(iii) 70.105D.030(1)(a) 70.105D.030(1)(b) WAC 173-303-040 Remarks ofthe Attorney General: The definitionofremediationwastes atWAC 173-303-040 isequivalentto the federal definition ofremediation waste at 40 CFR § 260.10. (6) Disposal facility to be a facility or part of a facility at which hazardous waste is intentionally placed into or onto the land or water, and at which hazardous waste will remain after closure, not to include a CAMU into which remediation wastes are placed. Federal Authority: 

# o

RCRA § 3004(u), § 3004(v); 40 CFR § 264.3. Citation ofState Laws an.

## (';;J-~ '1(. 

### :>.. (l!.") 70.105.130(2)(b) 70.105.130(2)(c)(iii) WAC 173-303-040 Remarks ofthe Attorney ( ictment and Adoption: 

# o

Washington does not define landfill andland disposal facility separately. Rather, the definition of land disposal facility is part of the definition of landfill. The definition of landfill at WAC 173-303-040 is equivalent to the federal definitions oflandfill and disposal facility at 40 CFR § 260.10. (B) State statutes and regulations provide that interim status standards apply in lieu of 40 CFR Part 264 standards until final administrative disposition of the permit is made. Federal Authority: RCRA § 3004(u), § 3004(v); 40 CFR § 264.3.

Attorney General's Statement, Page 24 

# (], , , , Citation of State Laws and Regulations, Dates ofEnactment and Adoption: 70.105.130(2)(a) 70.105.130(2)(b) 70.105.130(2)(c)(ii) 70.105.130(2)(c)(iii) WAC 173-303-400(2)(a) Remarks ofthe Attorney General: The requirement that interim status standards continue to apply until final administrative disposition of a Part B permit application is completed or interim status is terminated pursuant to WAC 173-303-805(7), at WAC 173-303-400(2) is equivalent with federal provisions at 40 CFR § 264.3. (C) Corrective action for solidwaste management units ("SWMU") willbe specified in the permit including schedules ofcompliance. Federal Authority: RCRA § 3004(u), § 3004(v), 40 CFR § 264.101 Citation ofState Laws and Regulations, Dates ofenactment and adoption: 70.105.130(2)(a) 70.105.130(2)(b) 70.105.130(2)(c)(ii) 70.105.130(2)(c)(iii) 70.105D.030(1)(a) 70.105D.030(1)(b) 70.105D.030(2)(b) WAC 173-303-646(2)(a) WAC 173-303-646(2)(c) Remarks ofthe Attorney General: The requirement for corrective action and schedules of compliance for corrective action to be specified in permits at WAC 173-303-646(2) is equivalent to federal requirements for corrective action and schedules of compliance for corrective action to be specified in permits.

Attorney General's Statement, Page 25, , (D) State statutes and regulations contain the following requirements for CAMU: (1) CAMUs are designated for the purposeofimplementingremedies under40 CFR § 264.101; Federal Authority: RCRA § 3004(u); 40 CFR § 264.552. Citation of State Laws and Regulations, Dates of Enactment and Adoption 70.105.130(2)(b) 70.105D.030(1)(a) 70.105D.030(1)(b) WAC 173-303-646(2) WAC 173-303-646(4)(a) Remarks of the Attorney General: The ability of the Directorof Ecology to designate a CAMU at WAC 173-303-646(4) is equivalent to federal provisions at 40 CFR § 264.552. (2) The Regional Administratoror state equivalent may designate a regulated unit as a CAMU ifthe regulated unit is in the closure process, or to enhance implementation of effective, protective, reliable remedial actions; Federal Authority: RCRA § 3004(u), 40 CFR § 264.552 Citation ofState Laws and Regulations, Dates ofEnactment and Adoption: 70.105.130(2)(b) 70.105D.030(1)(a) 70.105D.030(1)(b) WAC 173-303-646(6) Remarks ofthe Attorney General: Therequirements forincorporationofregulatedunits into orwithin CAMUs atWAC 173-303-646(6) are equivalent to federal requirements at 40 CFR § 264.552(b). (3) CAMU designationwillfacilitateimplementationofreliable, effective,protective, cost-effective remedies and will not create unacceptable risks; !\ttorney General's Statement, Page 26 

# o

cFederal Authority: RCRA § 3004(u), 40 CFR § 264.552 Citation ofState Laws and Regulations, Dates ofEnactment and Adoption: 70.105.130(2)(b) 70.105D.030(1)(a) 70.105D.030(1)(b) WAC 173-303-646(5)(a) Remarks ofthe Attorney General: The specifications for CAMU designation at WAC 173-303-646(5)(a) are equivalent to federal provisions at 40 CFR § 264.552. (4) The owner/operator of the facility requesting a CAMU designation must be required to supply sufficient information to enable the Regional Administrator or state equivalent to designate a CAMU in accordance with the criteria of40 CFR § 264.552; Federal Authority: RCRA § 3004(u), 40 CFR § 264.552 Citations ofState Laws and Regulations, Dates ofEnactment and Adoption: 70.105.130(2)(c)(ii) 70.105.130(2)(c)(iii) WAC 173-303-646(5)(e) Remarks of the Attorney General: The requirementfor owner/operators to submit information sufficientto enable the Director to designate a CAMU in accordance with the regulatory standards for C..AMU determinations at WAC 173-303-64.6(5)(e) is equivalent to federal requirements at 40 CFR § 264.552. (5) The Regional Administratororstateequivalentmust documenttherationale for each CAJ.\1U designation and must make this documentation available to the public; Federal Authority: RCRA § 3004(u), 40 CFR § 264.552

Attorney General's Statement, Page 27Citation of State Laws and Regulations Dates ofEnactment and Adoption: 

### 70.105D.030(1)(a) 70.105D.030(1)(b) 70.105D.030(2)(a) WAC 173-303-646(5)(t) Remarks of the Attorney General: 

### The requirement for CAMU rationales to' be documented and for such documentation to be publicly available at WAC 173-303-646(5)(t) is equivalent to federal requirements at 40 CFR § 

### 264.552. (6) Existing permit modification procedures must be'followed to incorporate each CAMU into an existing permit; Federal Authority: 

### RCRA § 

### 3004(u), 40 CFR § 

### 264.552 Citation of State Laws and Regulations, Dates ofEnactment and Adoption: 

### 70.105.130(2)(a) 70.105.130(2)(c)(ii) 70.105.130(2)(c)(iii) WAC 173-303-646(5)(g) WAC 173-303-830 Remarks ofthe Attorney General: 

### The requirementfor CAMU determinations to be incorporatedinto existing permits in accordance with the establishedprocedures for class IIIpermitmodification at WAC 173- 303-646(5)(g) is equivalent to federal requirements at 40 CFR § 

### 264.552. (E) State statutes and regulations containthe followingrequirements for temporary units ("TU"): 1. The Regional Administrator or state equivalent may, for temporary tanks, container storage areas used for treatment or storage ofhazardous remediation wastes during remedial activities required under 40 CFR § 264.101, determine that a design, operating, or closure standard applicable to such units may be replaced by alternative requirements which are protective of human health and the environment and that such units are located within the facility boundary and used only for treatment or storage of remediation wastes; 

### Attorney General's Statement, Page 28 

# c

o

u

### Federal Authority: RCRA § 

### 3004(u), 40 CPR § 

### 264.553 

### Citation of State Laws and Regulations; Date ofEnactment and Adoption: 70.105.130(2)(c

### )(ii) 70.105.130(2)(c)(iii) 70.105.130(2)(b) 70.105D.030(1)(a) 70.105D.030(1)(b) WAC 173-303-646(7)(a) and (b)



### .Remarks ofthe Attorney General: The procedures for specification of a temporaryunit at WAC 173-303-646(7)(a) and (b) are equivalent to federal regulations at 40 CFR § 

### 264.553. 

### 2. The Regional Administrator or state equivalent shall consider the factors established in 40 CFR § 

### 265.553(c) in establishing standards to be 

### applied to the TU; Federal Authority: RCRA § 

### 3004(u), 40 CPR § 

### 264.553 

### Citation ofState Laws and Regulations; Date ofEnactment and Adoption: 70.105.130(2)(c

### )(ii) 70.105.130(2)(c)

### (iii) 70.105.130(2)(b) 70.105D.030(1)(a) 70.105D.030(1)(b) WAC 173-303-646(7)(c) 

### Remarks ofthe Attorney General: The requirement for the Director to consider specific factors when establishing standards to be applied to atemporaryunit, andthefactors to be considered, are equivalent to federal requirements at 40 CPR § 

### 264.553. 

### 3. The RegionalAdministratororstateequivalent shall specifyin

### thepermitor orderthe length oftime a TU will be 

### allowed to operate, 

### to be 

### no longerthan a period of one year

### to be 

### extended only if

### the factors in 

### 40 CFR § 26S.sS3(e) 

### are considered;

Attorney General's Statement, Page 29**.'~** ./ Federal Authority: 

### RCRA § 

### 3004(u), 40 CFR § 

### 264.553 Citation ofState Laws and Regulations; Date ofEnactment and Adoption: 

### 70.105.130(2)(a) 70.105.130(2)(b) 70.105.130(2)(c)(ii) 70.105.130(2)(c)(iii) 70.105D.030(1)(a) 70.105D.030(1)(b) WAC 173-303-646(7)(d) WAC 173-303-646(7)(e) Remarks ofthe Attorney General:

, 

### The limits on the operating life of a temporary unit, and the requirements for extension of the operating life of a temporary unit at WAC f73-303-646(7)(d) and (e) are equivalent. to federal requirements at 40 CPR § 

### 264.553.**4~** .Incorporation of a TU into an existing permit shall bein accordancewith 40 CFR § 270.41 and § 270.42; Federal Authority: 

### RCRA § 

### 3004(u), 40 CPR § 

### 264.553 Citation of State Laws and Regulations; Date ofEnactment and Adoption: 

### 70.105.130(2)(a) WAC 173-303-646(7)(0 WAC 173-303-830 Remarks ofthe Attorney General: 

### The requirement for temporary unit determinations to be incorporated into existing permits in 

### accordance with 

### the established procedures for permit modification at WAC 173-303-646(5)(g)·is equivalent to federal requirements at40 CPR § 

### 264.553. 

## s. The RegionalAdministratororstateequivalentmustdocumentthe rationale for each TU designation and must make this documentation available to the public. 

# c



# o

I

1 I I 

### Attorney General's Statement, Page 30 ()

# .-.

•

o \.

Federal Authority: 

### RCRA § 

### 3004(u), 40 CFR § 

### 264.553 Citation of State Laws and Regulations; Date ofEnactment and Adoption: 

### 70.105D.030(1)(a) . 70.105D.030(1)(b). 70.105D.030(2)(a) WAC 173-303-646(7)(g) Remarks ofthe Attorney General:



### .The requirement for designation oftemporary units to be documented and for such documentation to be publicly available at WAC 173-303-646(7)(g) is equivalent to federal requirements at40 CFR § 

### 264.553.

Attorney General's Statement, Page 31**(,,~** \';:**~~·i::,** '

..

....-., '..:)-_"\ 

### IV. CERTIFICATION OF THE 

### AITORNEY GENERAL

CERTIFICA nON I hereby certify, pursuant to my authority as Ecology Division Chief, Washington Attorney General's Office and in accordance with Section 3006(b) of the Resource Conservation and Recovery Act, as amended by the Hazardous and Solid Waste Amendments of 1984 (42 U.S.c. 6901 et**~.),** 

### and 40 

### CF.R. § 

### 271, that in myopinion the laws of the State of Washington provide- adequate authority to carry 

### out the CACAP program, the. RCRA corrective action program, and the corrective action management unit/temporary unit program, as set forth in the "Program Description" submitted by the State ofWashingtonDepartment of Ecology ("Ecology"). The specific authorities provided are contained 

### in the statutes or regulations lawfully adopted at the time this 

### Statement_is signed and which shall be fully effective by January 6, 1994. These authorities and this certification supplement the previously certified authorities described in 

### my predecessors' certification ofJune 25, 1984.

MEMORANDUM OF AGREEMENT A

.

### The State of Washington has the authority to 

### enter into a memorandum of agreement with the United States Environmental Protection Agency, and B. 

### The State of Washington has the authority to 

### carry out the agreement, and C. 

### No partof the agreementbetweenthe State ofWashingtonand the UnitedStates EnvironmentalProtectionAgency must be promulgated as aruleinthe State of Washington in order to be binding. 

# ()



# o

Seal of Office

# Si;;;:~.**o~Z~nl** At;o:Oey State of Washington

.. .__ Jay J. Manning 

### Name (type or print) December 10, 1993 

### Date

. Attorney General's Statement, Page 32

### APPENDIX 1 SUBSTANTIVE ELEMENTS WInCH STATES MAY WANT TO CONSIDER FOR CACAPPROGRAM

The elements listed below are elements anticipated to be codified by the federal regulatoryprogramuponthepromulgationof the final rulefor federal "SubpartS"corrective action and which states may want to consider now in preparation for promulgation of the final rule for Subpart S. A state receiving authorization for CACAP will need to undergo a revision to its authorized program after the federal rule is finalized. If a state can

- currently demonstrate that

### it meets the substantive elements of Subpart S, the state will be

in a good position to become authorized for "Subpart S". Atthis time, a state cannot be authorized for these substantive elements. A. State should have authority to require corrective action for all releases including those not associated with solid waste management units ("SWMUs"). Federal authority: RCRA § 3004(u), 42 USC § 6924(u), 40 CFR § 264.101 Citation ofLaws and Regulations; dates ofenactment and adoption: 70.105.130(2)(b) 70.105.130(2)(c)(ii) 70.105.130(2)(c)(iii) 70.105D.030(1)(a)

. 70.105D.030(1)(b) WAC 173-303-646(2)(a) WAC 173-303-646(3) WAC 173-340-110 WAC 173-340-350 WAC 173-340-360 WAC 173-340-400 Remarks ofthe Attorney General: Washington has the ability to require corrective actionto address all environmentally significant releases, including those not associated with the federal concept of solid waste management unit. Additionally, the Model Toxics Control Act provides independent authority to address all releases of hazardous substances regardless of their origin.

Attorney General's Statement, Page 33B. State should have authority to make final decisions as to required corrective actions (i.e., investigation through termination). Federal authority: RCRA 3004(u), 42 USC 6924(u), 40 CFR § 264.101 Citation ofLaws and Regulations; dates ofenactment and adoption: 70.105.130(2)(b) 70.105.130(2)(c)(ii) 70.105.130(2)(c)(iii) 70.105D.030(1)(a) WAC 173-303-646(2)(a) 70.105D.030(1)(b) WAC 173-303-646(3) WAC 173-340-110 WAC 173-340-350 WAC 173-340-360 WAC 173-340-400 Remarks ofthe Attorney General: 

# c

Purusantto statuatorymandates atRCW70.105D.030(1)(a), (b) and (d), Ecologyhas the ability and will make final decisions regarding all aspects ofcorrective action, including 

# 0 site investigationandcharacterization,remedyselection, design, operation, maintenanceand monitoring. C. State should have authority to require interim measures prior to final remedy selection. Federal Authority: RCRA § 3004(u), 42 USC § 6924(u), RCRA § 3005(c), 42 USC 6925(c), 40 CER § 264.101. Citation ofLaws and Regulations; dates of enactment and adoption: 70.105.130(2)(b) 70.105.130(2)(c)(ii) 70.105.130(2)(c)(iii) 70.105D.030(1)(a) 70.105D.030(1)(b) WAC 173-303-646(2)(a) Attorney General's Statement, Page 34 

# u

### WAC 173-303-646(3) WAC 173-340-430(1) WAC 173-340-430(4) WAC 173-303-430(5) Remarks ofthe Attorney General: 

### Interim actions, as described in WAC 173-340-430, are equivalent to interim measures as described in proposed Subpart S. When appropriate, Ecology will 

### require interim actions during the corrective action process. D. State should have authority to establish corrective measures standards and selection criteria that ensure protectiveness of human health and the environment and provide long-term reliable remedies. Federal Authority: 

### RCRA § 

### 3004(u), 42 USC § 

### 6924(u), RCRA § 

### 3005(c), 42 USC 6925(c), 40 CFR § 

### 264.101. Citation ofLaws and Regulations; dates ofenactment and adoption: 

### 70.105.130(2)(b) 70.105.130(2)(c)(ii) 70.105.130(2)(c)(iii) 70.105D.030(1)(a) 70.105D.030(1)(b) 70.105D.030(2)(d) WAC 173-303-646(2)(a) WAC 173-303-646(3) WAC 173-340-360(2) WAC 173-340-360(3) Remarks of the Attorney General: 

### Washington's mandatory corrective action requirements at WAC 173-303-646(2)(a) specify that corrective action must be conducted as necessary to protect human health and the environment. In the case ofcorrective action requirements imposed using the MTCA, Washingtonwill 

### furtherrely on the regulatoryrequirements ofChapter 173-340WAC, which ispredicatedonprotectionofhumanhealth and the environment (see legislative declaration of policy at RCW 70.105D.010). Washington has a statutory mandate at RCW 70.105D.030(1)(b) to give preference to 

### permanent remedial solutions to the maximum extent practicable and to provide for or Attorney General's Statement, Page 35require adequate monitoring to ensure the effectiveness ofsuch remedial actions. E. State should have authority to specify monitoring locations and techniques for 

# C monitoring all media. Federal Authority: RCRA § 3004(u), 42 USC § 6924(u), RCRA § 3004(v), 42 USC 6924(v), 40 CFR § 264.101. Citation of Laws and Regulations; dates ofenactment and adoption: 70.105 .130(2)(b) 70.105.130(2)(c)(ii) 70.105.130(2)(c)(iii) 70.105D.030( 1)(a) 70.105D.030(1)(b) WAC 173-303-646(2)(a) WAC 173-303-646(3) WAC 173-340-410 WAC 173-340-700(6) WAC 173-340-720 WAC 173-340-730 WAC 173-340-740 WAC 173-340-750 WAC 173-303-760 Remarks of the Attorney General: Washington will rely on the statutory language at RCW 70.105D.030(1)(D) and 70.105.130 to specifymonitoring techniques and locations. Washingtonroutinely negotiates and/orspecifies monitoringlocations for all mediaunderthe ModelToxics ControlAct, and will continue to do so when imposing corrective action requirements using the MTCA F. State should have authority to establish the point ofcompliance for groundwater cleanup levels as the swMU boundary. Federal Authority: RCRA § 3004(u), 42 USC § 6924(u), RCRA § 3004(v), 42 USC 6924(v), 40 CFR § 264.101.

. .

Attorney General's Statement, Page 36 

# o

# • Citation of Laws and Regulations; dates of enactment and adoption: 

### 70.105.130(2)(b) 70.105.130(2)(c)(ii) 70.105.130(2)(c)(iii) 70.105D.030(1)(a) 70.105D.030(1)(b) WAC 173-303-646(2)(a) WAC 173-303-646(3) WAC 173-340-120(5)(b) WAC 173-340-700(6) WAC 173-340-720(6)(a) WAC 173-340-720(6)(b) WAC 173-340-720(6)(c) Remarks ofthe Attorney General: 

### Washington will rely on the statutory language at RCW 70.105D.030(d) and 70.105.130 to specify points of compliance throughout the SWMU or at the SWMU boundary. In the case of corrective action requirements imposed using the MTCA, Washington has authority under WAC 173-340-720(6)(c) to set a point of compliance as close as practicable to a source ofcontamination, and will interpret the closest practicable point of compliance to 

### be the SWMU boundary, unless cleanup standards can be met throughout the SWMU. When requiring that cleanup standards be met throughout the SWMU, as opposed to only at the SWMU boundary, Washington will be implementing corrective action requirements which are more stringent than those proposed in Subpart S. G. State should have authority to establish at each site cleanup levels that protect human health and the environment. At a minimum, unless the future uses of a site are demonstrated and assured to limit exposure of human populations and environmental receptors, cleanup levels could not exceed: a. for groundwater, maximum contaminantlevels ("MCLs"), maximumcontaminant level goals ("MCLGs"), levels of no adverse effects from non-carcinogens, and-levels that limits carcinogenic risk to 10-4; b. for surface water, MCLs, MCLGs, levels of no adverse effects from noncarcinogens, and levels that limit carcinogenic risk to 10-4; c. for air, national ambient air quality standards, levels ofno adverse effects from non-carcinogens, and levels that limit carcinogenic risk to 10-4; d. for soil, levels of no adverse effects from non-carcinogens, and levels that limit carcinogenic risk to 10 -4. Note: For a non-carcinogen contaminant at a site, the concentration which will result in 

### Attorney General's Statement, Page 37no adverse effects is determined by multiplying the reference dose ("RID") by the body weight of an exposed individual, and dividing that quantity by the exposure ofthat person to the contaminated medium. For a carcinogenic contaminant at a site, the concentration**C~\** which will result in a specific level ofrisk is determined by multiplying the risk specific dose ("RSD") by the body weight ofan exposed individual, and dividingthat quantityby the exposure of the individual to the contaminated medium. Federal Authority: RCRA § 3004(u), 42 USC § 6924(u), RCRA § 3004(v), 42 USC 6924(v), RCRA § 3005(c), 42 USC § 6925(c), 40 CFR § 264.101. Citation of Laws and Regulations; dates ofenactment and adoption: 70.105.130(2)(b) 70.105.130(2)(c)(ii) 70.105.130(2)(c)(iii) 70.105D.030(1)(a) 70.105D.030(1)(b) 70.105D.030(2)(d) WAC 173-340-700(3)(b) WAC 173-340-700(3)(c) Remarks of the Attorney General: Washington'smethodsfor calculatingcleanuplevels aremore-stringentthanproposed federal cleanup standards. Washingtonroutinelyuses cleanup levels calculated pursuant to the MTCA for dangerous waste compliance issues. Washingtonhas specified by regulation that MTCAcleanup levels will be used as dangerouswaste clean closure levels. Washington will apply MTCA cleanup levels to alternative authority corrective action and will consider MTCA cleanup standards when calculating cleanup levels for corrective action.

Attorney General's Statement, Page 38 

# o

c