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Addendum to the Memorandum of Agreement

between the State of Washington and

The United States Environmental Protection Agency Region 10

for final Dangerous Waste Program Authorization

May 1998

Agreement for Revised State's Authorized Program to Include the Puyallup

Non-Trust Lands Pursuant to the Settlement Act of 1989

Pursuant to the provisions found in the Memorandum ofAgreement between the State of

Washington and the United States Environmental Protection Agency Region 10 for Final

Dangerous Waste Program Authorization, dated November 26, 1985, hereafter "MOA",

at Section II. Responsibilities of Parties, Subsection I. Provision for Modification ofthe

MOA, this modification is jointly agreed to by both the State of Washington, hereafter

"State", and United States Environmental Protection Agency Region 10, hereafter, "U.S.

EPA Region 10", and is incorporated into the November 26, 1985 MOA as an addendum

thereto. This addendum is effective upon signature of both the Director ofthe

Washington State Department of Ecology and the Regional Administrator for U.S. EPA

Region 10.

I. General

This addendum to the MOA supports the State's authorization revision application to

include the non-trust lands within the 1873 Survey Area ofthe Puyallup Reservation as

defined in the settlement agreement between the Puyallup Tribe, Federal, State, and local

governments dated August 27, 1988 (Settlement Agreement). The Settlement Agreement

was ratified by Congress and incorporated in Federal law on June 21, 1989, as the

Puyallup Tribe ofIndians Settlement Act of 1989,25 U.S.C. sections 1773, et. seq.

(Settlement Act).

This addendum to the November 26, 1985 MOA establishes responsibilities and

procedures pursuant to 40 CFR section 271.8 for operation ofthe State's Dangerous

Waste Management Program (State Program) on the non-trust lands within the 1873

Survey Area ofthe Puyallup Reservation. The State Program received final authorization

on January 31, 1986, under Section 3006 ofthe Resource Conservation and Recovery Act

of 1976, as amended (RCRA or the Act), Pub: Law 94-59-80, 42 U.S.C Sections 6901, et.

seq.

This addendum will remain in effect until the State withdraws from authorization or until

such time as State Program authorization is withdrawn by EPA according to the

provisions of 40 CFR section 271.22, or reverts to EPA according to the provisions of 40

CFR section 271.23, or until such time as the State and U.S. EPA Region 10 modify this

addendum in accordance with the terms ofthe MOA, or modify the MOA to supersede

this addendum, or terminate the existing MOA and supplant it with another agreement.
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II. Responsibilities

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

lands within the 1873 Survey Area ofthe Puyallup Reservation as defined by the

Settlement Agreement, the Settlement Act, and where not provided therein as otherwise

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

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

implementing RCRA on the trust lands, and over Indians and Indian activities on the nontrust lands within the 1873 survey area.

EPA agrees to initiate an appropriate mechanism to prevent any authority gaps when a

person, as defined in WAC 173-303-040 or 40 CFR 260.10, who manages hazardous

waste is affected by a change from State to Federal jurisdiction. The State and EPA

agree to communicate all such jurisdictional changes to the Puyallup Tribe. EPA Region

10 will adhere to its EPA Indian Policy, dated March 14, 1994, and its commitment to

working with Federally recognized tribes on a government-to-government basis to

enhance environmental protection.

III. Implementation Strategy for Lead Regulatory Agency Changes

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

information and communicate all jurisdictional change within the 1873 boundary ofthe

Puyallup Reservation. A person who manages hazardous waste is required to notify the

regulatory lead agency of a change pursuant to notice requirements for treatment, storage,

and disposal (TSD) facilities at WAC 173-303-805(7), WAC 173-303-810(14), or 40

CFR 270.30(1)(3); or through generator notification requirements pursuant to WAC 173-

303-060(2),40 CFR 270.1(b) or 270.70(a)(1).

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

a person who manages hazardous waste gives notice regarding land acquisition, changes

of operator/owner, and/or affected activities that result in a change ofthe lead regulatory

agency.

A. Implementation Strategy Protocol

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

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

agency.

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

change, the notice will be shared with appropriate staff ofEPA, Ecology, and the

Puyallup Tribe.

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

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

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

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

with corresponding data entry change requirements.

B. Permit Conditions

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

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

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

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

whether to modify the existing permit or revoke and reissue the permit, or ifthere is

cause, terminate the permit. The permit will identify the new lead regulatory agency.

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

generators for which EPA has jurisdictional authority.

All RCRA permits within the 1873 Survey Area ofthe Puyallup Reservation boundary

will have the following permit conditions:

"In accordance with reporting requirements in WAC 173-303-810(14) and

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

the Regional Administrator prior to transfer of ownership interest or

operational control ofthis Permit to any person. The Director or the

Regional Administrator may require modification, or revocation and

reissuance ofthe permit, or incorporate other requirements as may be

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

CFR Part 270 Subpart D."

And,

"EPA will become the regulatory authority ifthe facility's notice results in

a State to Federal jurisdictional change. Ecology will become the

regulatory authority ifthe facility's notice results in a Federal to State

jurisdictional change."

C. Cleanup Implications for Contamination Crossing Jurisdictional Boundaries

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

whenever contamination from one parcel crosses boundaries ofregulatory jurisdiction

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

Tribe. EPA and Ecology agree to provide each other with pertinent information to

determine the best strategy for such effected parcels. In some instances, dual jurisdiction

may exist. Both agencies intend to provide consistent environmental protection. The

agencies will use protective cleanup approaches and levels as referenced in Federal or

State law or guidance. Discussions between agency staff will be the starting point for all

such decisions including active communication with the Puyallup Tribe.

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IV. Dispute Resolutions

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

Action addendum, dated October 17, 1994. These revisions reflect the current EPA

Region 10 organization structure.

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

resolution to the maximum extent possible. In cases where informal, stafflevel dispute

resolution is not effective, a straightforward formal dispute resolution procedure will be

used. Whenever EPA or State personnel directly involved in the implementation ofthis

agreement judge that a problem exists or that this agreement is not being followed, the

issue should be resolved at the State Program Manager and the EPA Office Director

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

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

Ecology and the Regional Administrator ofthe U.S. EPA Region 10 for final resolution.

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

Office will be responsible for coordination ofthe dispute process and for preparing any

necessary documentation.

V. Provisions for Modification ofthe MOA Addendum

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

with State or Federal program modifications or for any other purpose mutually agreed

upon. Any revisions or modifications must be in writing and must be signed by both the

Director and the Regional Administrator.

As final authorization is achieved for the 1984 amendments to the Hazardous and Solid

Waste Act (HSWA) and future amendments to RCRA, these will be incorporated into

this Memorandum ofAgreement, along with any necessary changes to State statutes,

regulations, the State Program Description, and Attorney General's Statement. EPA is

directly responsible for the implementation and enforcement ofregulations promulgated

under HSWA in the 1984 amendments to RCRA in authorized states until those states

become authorized for HSWA regulations under their authorized program.

VI. Disclaimer

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

constitute rulemaking under 5 U.S.C. Sections 551 et. seq. or under chapters 70.105,

70.105B, 70.105D and 90.48 RCW, and may not be relied upon by any person to create a

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

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Signatures

u.s. Environmental Protection Agency

Region 10

Regional Administrator

By:

Date: 6.,,(2../1& _

State of Washington

Department of Ecology

Director

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