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ATIORNEY GENERAL'S STATEMENT FOR FINAL

AUTHORIZATION FOR RCRA CORRECTIVE ACTION USING

EXISTING STATE CLEANUP AUTHORI1Y PROGRAM ("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 Statement adds a new program to 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 statement sets out the legal framework for the new program and

is considered an addition to prior Attorney General's Statements and is further considered

a revision of certain sections of the current federally authorized RCRA program in 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 of information) 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 of information (from non-HSWA Cluster I), all of non-HSWA

Cluster Il, and portions of non-HSWA Cluster ill and IV. Currently, Washington has an

authorization application pending for the remainder of non-HSWA Cluster ill; 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 of Washington ("RCW"),

''The Hazardous Waste Management Act" and Chapter 70.105D RCW, "Model Toxics

Control Act". Chapter 70.105 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 effective January 6, 1994.

Washington's system of waste regulations utilizes different terminology than the

Attorney General's Statement, Page 1
federal system. Under Washington's regulatory program, hazardous wastes are referred to

as dangerous waste. A subset of dangerous waste, which Washington has determined poses

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 necessary to protect human health 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 of enactment 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)

\VAC 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 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 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 3
substances, 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 of dangerous waste to institute

corrective action as necessary to protect human health and the environment from all

releases of dangerous wastes and dangerous constituents, including any and all releases 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 management facilities in Washington will be required to conduct corrective

action for all releases of dangerous waste and dangerous constituents at or from the facility

regardless of the source of the release. (Washington notes that, although state corrective

action requirements are, in part, broader in scope than federal provisions at RCRA Sections

3004(u) and (v), their implementation will be analogous to federal enforcement of corrective

action requirements pursuant to RCRA Section 3008(h).)

B. State statutes and regulations provide for the enforcement of corrective _~~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 of Enactment 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 minimum requirements. 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, of all

hazardous waste or hazardous constituents (at a minimum 40 C.F.R. § 261 Appendix VIII),

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 of Enactment 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 5
WAC 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 of the 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 Department of Ecology may adopt rules :

necessary to implement statutory mandates, including the statutory mandates for

implementation of the federal program and for cleanup of hazardous waste sites.

c

The Department of Ecology has adopted corrective action regulations in Chapter 173-

303 Washington Administrative Code (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

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.

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 risk range of

104 to 10-6 proposed 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

management facilities have legitimate cleanup obligations as a condition of their 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 of compliance for corrective action requirements and

(H.) Assurances of financial responsibility for completing corrective actions.

Federal Authority:

RCRA § 3004(u), 42 USC § 6924(u), 40 CFR § 270.33, § 271.14.

Citation of Laws and Regulations; Dates of Enactment 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 for incorporation of corrective action and schedules of compliance

for corrective action in final permits at WAC 173-303-646(2)(c) and WAC 173-303-646(3)(c)

and the requirements for permit by rule facilities to conduct corrective action at WAC 173-

303-802(3), and WAC 173-303-802(4) are equivalent to the federal requirements at 40 CFR

§ 264.101(b), 40 CFR § 270.60(b)(3)(i), and 40 CFR § 270.60(c)(3)(vii). In the case of

corrective action requirements and schedules of compliance imposed pursuant to the MTCA,

Washington will incorporate such requirements and schedules into final permits at the time

of permit issuance.

Attorney General's Statement, Page 7
C. State statutes and regulations require that corrective action be taken beyond the

facility boundary where necessary to protect human health and the environment unless 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 of enactment 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 migrated beyond the facility boundary is not limited by the ''best efforts"

language of the federal requirement. 0

D. State statutes and regulations define "facility" as all contiguous property under

the control of the owner/operator.

Federal Authority:

RCRA § 3004(u), 42 USC 6924(u); 40 CFR § 260.10, § 264.101.

Citation of Laws and Regulations; Dates of Enactment 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 § 260.10.

Attorney General's Statement, Page 8
E. 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 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)

70.105.130(2)(e)

70.105D.030(1)(f)

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

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

Remarks of the 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

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; federal corrective action is limited to releases from solid

waste management units.

F. State statutes and regulations require demonstrations of financial 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 of Enactment and Adoption:

70.105.130(2)(a)

70.105D.030(2)(a)

WAC 173-303-830

Remarks of Attorney General:

Washington's provisions for permit modifications at WAC 173-303-830 are 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 stringent than 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 advisory committees and in bi-annual reports to

the state legislature.

Attorney General's Statement, Page 11
OPTIONAL 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 structure which

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

In order to facilitate alternative authorities corrective action, Washington has 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 management units, 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 of enactment 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 o
B. Universe of constituents subject to corrective action; definitions of dangerous

waste and dangerous constituent

Citations of Laws and Regulations; dates of enactment and adoption:

70.105D.020(5)

70.105.010(14)

70.105D.030(1)(e)

WAC 173-303-9905

WAC 173-303-040:

Remarks of the Attorney General:

The universe of constituents (substances) subject to corrective action under state

authority pursuant to the state definitions of dangerous waste and dangerous constituent is

equivalent to the universe of constituents subject to federal corrective action pursuant to 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, that is, 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 of hazardous constituent as discussed in the first HSWA codification rule (50 FR

28713) and by the regulatory definition of hazardous 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

determination that such constituents are "hazardous". Although there is 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 of section 3004(u)'s jurisdiction appears broad given the definition of release 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 determination that a given constituent is "hazardous"

to define the universe of constituents subject to state .corrective action. The universe of

constituents subject to state corrective action includes: (1) constituents identified by 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 40 CFR Part 264 Appendix 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 of hazardous 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 of petroleum.

C. Definition of release

Citations of Laws and Regulations; dates of enactment 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 of the Attorney General:

The definition of release 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 of enactment 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 of solid waste management unit at WAC 173-303-040 is equivalent to

the federal definition of solid waste management unitproposed in the July 27, 1990 Federal

Register (55 FR 30874).

E. Definition of Schedule of Compliance

Citations of Laws and Regulations; dates of enactment 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 of schedule 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 of State Laws and Regulations; Date of Enactment 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 of the 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

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Ie

Citation of State Laws and Regulations; Date of Enactment 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 of Attorney General:

The requirement for corrective action to 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 of releases which have migrated beyond the

facility boundary is not limited by the "best efforts" language of the 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 of existing units or lateral expansions of existing units) which receive

hazardous waste after July 26, 1982.

Federal Authority:

RCRA § 3004(v)(2)

Citation of State Laws and Regulations; Date of Enactment 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 of Attorney General:

State requirements for corrective action beyond a facility's boundary for releases from

all landfills, surface impoundments and waste pile units (including any new units,

replacement of existing units or lateral expansions of existing units) 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 of releases which

have migrated beyond the facility boundary is not limited by the ''best efforts" language of

the federal requirement.

(4) There is evidence of financial responsibility for the completion of corrective

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 of Enactment 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 of 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. State requirements for corrective action financial assurance at

WAC 173-303-645(1)(a)(ii) and WAC 173-303-646(2) are equivalent to federal requirements

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

for interim status to comply with the groundwater monitoring, unsaturated zone monitoring,

and corrective action requirements applicable to new units at the time of permitting 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 of State Laws and Regulations; Date of Enactment 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 of Attorney 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 of permitting at 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

engineering feasibility plan requirements regarding groundwater contamination detected at

the time of Part B permit application as indicated in Revision Checklist 38.

Federal Authority

RCRA §§ 3004 and 3005; 40 CFR § 270.14

Citation of Laws and Regulations; Date of Enactment 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 of the Attorney General

The requirement for submittal of additional information and engineering feasibility

Attorney General's Statement, Page 19
plan requirements regarding groundwater contamination at the time of Part B permit

application at WAC 173-303-806(4) (a) (xx) is equivalent to federal requirements at 40 CFR C §~~ .~

(D) State statutes and regulations require owners and operators of facilities seeking

permits to provide descriptive information on the solid waste management units 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 of Laws and Regulations; Date of Enactment 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 of the Attorney General

The requirement for facility owner/operators to submit information describing solid

waste management units and any release from such units at WAC 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 and regulations require owners and operators of hazardous waste

treatment, storage and disposal facilities (including permit-by-rule faclllties subject to 40

CFR 264.101) to institute corrective action beyond the facility boundary to protect human

health and the environment, unless the owner/operator is 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 of Laws and R~ations; Dates of Enactment 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 of the Attorney General

The requirements for facility owner/operators, including owner/operators of permit- "

by-rule facilities, to institute corrective action beyond the facility boundary at WA<: 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 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

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 of State Laws and Regulations; Dates of Enactment and Adoption:

70.105.101(11)

70.105D.020(3)

WAC 173-303-040

Remarks of-the Attorney General:

J

The definition of facility 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 of management 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 of State Laws and Regulations, Dates 'of Enactment and 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 of the 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 of Enactment and Adoption:

70.105.130(2)(b)

70.105.130(2)(c)(iii)

WAC 173-303-040

Remarks of the 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 of Enactment and Adoption:

70.105.130(2)(b)

70.105.130(2)(c)(iii)

WAC 173-303-040

Remarks of the Attorney General:

The definition of miscellaneous unit at WAC 173-303-040 is equivalent to 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 of implementing corrective action;

Federal Authority:

RCRA § 3004(u), § 3004(v); 40 CFR § 264.10.

Attorney General's Statement, Page 23
,

I

Citation of State Laws and Regulations, Dates of Enactment 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 of the Attorney General:

The definition of remediation wastes at WAC 173-303-040 is equivalent to the federal

definition of remediation 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 of State Laws an. (';;J-~ '1(. :>.. (l!.")

70.105.130(2)(b)

70.105.130(2)(c)(iii)

WAC 173-303-040

Remarks of the Attorney (

ictment and Adoption:

o

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 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 of Enactment 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 of the 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 solid waste management units ("SWMU") will be specified

in the permit including schedules of compliance.

Federal Authority:

RCRA § 3004(u), § 3004(v), 40 CFR § 264.101

Citation of State Laws and Regulations, Dates of enactment 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 of the 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 purpose of implementing remedies under 40 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 Director of Ecology to designate a CAMU at WAC 173-303-646(4)

is equivalent to federal provisions at 40 CFR § 264.552.

(2) The Regional Administrator or state equivalent may designate a regulated unit

as a CAMU if the 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 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(6)

Remarks of the Attorney General:

The requirements for incorporationof regulated units into or within CAMUs at WAC

173-303-646(6) are equivalent to federal requirements at 40 CFR § 264.552(b).

(3) CAMU designation will facilitate implementation ofreliable, effective, protective,

cost-effective remedies and will not create unacceptable risks;

!\ttorney General's Statement, Page 26

o

c
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(5)(a)

Remarks of the 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 of 40 CFR § 264.552;

Federal Authority:

RCRA § 3004(u), 40 CFR § 264.552

Citations of State Laws and Regulations, Dates of Enactment 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 requirement for owner/operators to submit information sufficient to 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 Administrator or state equivalent must document the rationale 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 27
Citation of State Laws and Regulations Dates of Enactment 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 of Enactment 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 of the Attorney General:

The requirement for CAMU determinations to be incorporated into existing permits

in accordance with the established procedures for class III permit modification at WAC 173-

303-646(5)(g) is equivalent to federal requirements at 40 CFR § 264.552.

(E) State statutes and regulations contain the following requirements for temporary

units ("TU"):

1. The Regional Administrator or state equivalent may, for temporary tanks,

container storage areas used for treatment or storage of hazardous 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 of Enactment 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 of the Attorney General:

The procedures for specification of a temporary unit 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 of State Laws and Regulations; Date of Enactment 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 of the Attorney General:

The requirement for the Director to consider specific factors when establishing

standards to be applied to a temporary unit, and the factors to be considered, are equivalent

to federal requirements at 40 CPR § 264.553.

3. The Regional Administrator or state equivalent shall specify in the permit or

order the length of time a TU will be allowed to operate, to be no longer than 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 of State Laws and Regulations; Date of Enactment 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 of the 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 be in accordance with 40

CFR § 270.41 and § 270.42;

Federal Authority:

RCRA § 3004(u), 40 CPR § 264.553

Citation of State Laws and Regulations; Date of Enactment and Adoption:

70.105.130(2)(a)

WAC 173-303-646(7)(0

WAC 173-303-830

Remarks of the 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 at 40 CPR § 264.553.

s. The Regional Administrator or state equivalent must document the 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 of Enactment and Adoption:

70.105D.030(1)(a) .

70.105D.030(1)(b).

70.105D.030(2)(a)

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

Remarks of the Attorney General:

.The requirement for designation of temporary units to be documented and for such

documentation to be publicly available at WAC 173-303-646(7)(g) is equivalent to federal

requirements at 40 CFR § 264.553.

Attorney General's Statement, Page 31

(,,~ \';: ~~·i::, ' .. ....-., '..:)-
_"\

IV. CERTIFICATION OF THE AITORNEY GENERAL

CERTIFICAnON

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 my opinion 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 of Washington Department 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 of June 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 part of the agreement between the State of Washington and the United States

Environmental Protection Agency must be promulgated as arulein the State ofWashington

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 CACAP PROGRAM

The elements listed below are elements anticipated to be codified by the federal

regulatory program upon the promulgation of the final rule for federal "Subpart S" 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". At this 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 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 173-340-110

WAC 173-340-350

WAC 173-340-360

WAC 173-340-400

Remarks of the Attorney General:

Washington has the ability to require corrective action to 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 33
B. 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 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)

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 of the Attorney General:

c

Purusant to statuatory mandates at RCW 70.105D.030(1)(a), (b) and (d), Ecology has

the ability and will make final decisions regarding all aspects of corrective action, including 0

site investigation and characterization, remedy selection, design, operation, maintenance and

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 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)

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 of the 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 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)

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 of corrective action requirements imposed using the MTCA,

Washington will further rely on the regulatory requirements of Chapter 173-340WAC, which

is predicated on protection of human health 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 35
require adequate monitoring to ensure the effectiveness of such 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 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 173-340-410

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 specify monitoring techniques and locations. Washington routinely negotiates

and/or specifies monitoring locations for all media under the Model Toxics Control Act, and

will continue to do so when imposing corrective action requirements using the MTCA

F. State should have authority to establish the point of compliance 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 of the 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 of contamination, 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 contaminant levels ("MCLs"), maximum contaminant

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 of no 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 37
no 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 of that person

to the contaminated medium. For a carcinogenic contaminant at a site, the concentration C~\

which will result in a specific level of risk is determined by multiplying the risk specific

dose ("RSD") by the body weight of an exposed individual, and dividing that quantity by 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 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)

70.105D.030(2)(d)

WAC 173-340-700(3)(b)

WAC 173-340-700(3)(c)

Remarks of the Attorney General:

Washington's methods for calculating cleanup levels are more-stringent than proposed

federal cleanup standards. Washington routinely uses cleanup levels calculated pursuant to

the MTCA for dangerous waste compliance issues. Washington has specified by regulation

that MTCA cleanup levels will be used as dangerous waste 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

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