### CORRECfIVEACfION Introduction. Washington is seeking federal authorization of a state corrective action program. Currently, corrective action requirements are implemented byEPA Region 10 inaccordance withRCRASections 3004(u), 3004(v), and 3008(h) and with regulatoryrequirements at 40CFR § 

### 264.101. The proposed state corrective action program, as specified in these regulation amendments, will be more stringent in implementation requirements than the existingfederal program but will not subject additional facilities to corrective action (with the exceptionofstate-only dangerous waste treatment, storage, recycling, or disposal facilities which willbecome newlysubject to corrective action as a result of this rulemaking). Corrective action will be only one aspect ofWashington's multi-faceted dangerous 

### waste regulatory program. The dangerous waste program is largely a preventative program, focused on waste minimization, waste management standards, and compliance monitoring and designed to minimize or eliminate the need for future corrective action. Weakening the preventative portions of the dangerous waste regulatory program to emphasize a corrective action programwould be short-sighted. However, ignoring the legitimate needs for remediation and cleanup at some dangerous waste management facilities poses unacceptable risks to the health and environment ofWashington citizens. In 

### designing a state corrective action program, Ecology has attempted to find a balance between the preventative and corrective action aspects ofdangerous waste regulation. Definitions. An 

### adequate and focused definitional structure is vital to the success of any regulatory program. Ecology has crafted a definitional structure for corrective actin which will facilitate environmentally protective and expedient corrective action cleanups. Ecology has revised the definition ofFacility to ensure equivalency and consistency with the federal corrective action program. The revised definition emphasizes that, for the proposes ofimplementing corrective action imposed pursuantto WAC 173-303-646(2) or (3), the term facility encompasses all contiguous propertyunder the control of an owner/operator seeking or required to have a dangerous waste managementpermit (including an interim status permit) underthe provisions ofRCW 70.105 or Chapter 173-303 WAC. The definitions of land disposal; landfill, and miscellaneous unit have been amended to reflect new standards for corrective action management units and corrective action temporaryunits. Ecology has added definitions of release, remediationwaste, solid waste managementunit, corrective action managementunit, and temporary unit To ensure consistencybetween corrective actions undertaken pursuant to WAC 173-303-646(2) or (3) and cleanups conducted under the Model ToxicsControlAct (MTCA) and to facilitate corrective action under the alternative authorities initiative, the new definition ofrelease includes the MTCA definition of release at RCW 70.105D.020(10). Definition ofdangerous constituent Ecology has defined dangerous constituent at WAC 

### 173-303-646(l)(c) only for the purposes ofimplementing corrective action. To ensure consistencybetween corrective actions undertakenpursuant to WAC 173-303- 646(2) or (3) and cleanups conducted under the Model ToxiesControl Act and to

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- CORRECTIVE ACTION PREAMBLE, PAGE 1

### facilitate corrective action under the alternative authorities initiative, the definition of dangerous constituent includes all constituents defined as hazardous substances at RCW 70.105D.020(5). Ecology believes that the inclusion ofpetroleumproducts in the definition ofhazardous substance at RCW 70.105D.020(5) will not conflict with any Federal or State exclusions for petroleum or petroleum contaminated media or debris underRCRA. Ecology willcontinue to allow all applicable petroleum specificRCRA exemptions to petroleum contaminatedwastes generated through implementation of corrective action requirements. Interim status facilities. 

### Owners/operators of interim status facilities are required by WAC 173-303-400(2)(a)(i) to fulfill the corrective action requirements of WAC 173- 303-646(2). As 

### under the Federal RCRA system, owner/operators of interim status facilities who wish to, or are required to, exit the RCRA system must fulfill all applicable closure requirements and conduct corrective action priorto interim status termination. A conforming change has been made to WAC 173-303-805(7)(a)(v) to.allow Ecology to approve changes during interim status which are necessary to comply with corrective action requirements imposed in

# acorrective action orderor a final dangerous waste management permit. Formore information on corrective action requirements see discussion of WAC 173-303-646(2) and (3). Corrective action for releases from regulated units. Owner/operators of dangerous waste management facilitiesare required by WAC 173-303·645 to conducta three phase program for detecting, characterizing, and responding to releases to the uppermost aquifer from regulate units, this program is known as non-HSWA corrective action. 

### Inorderto facilitate coordination ofnon-HSWAcorrective action and corrective action under WAC 173-303-646(2), Ecology may allowowner/operators to fulfill nonHSWA corrective action requirements through implementation of

# an enforceable action issued pursuant to the Model ToxiesControl Act (MTCA). Voluntary cleanups conducted under the Model ToxiesControl Act will 

### not constitute compliance with the . requirements for non-HSWA corrective action underWAC 173-303-645. Ecology intends that non-HSWA corrective action requirements imposed pursuant to the MTCAwill be equivalent in scope and stringency to conventionally imposed non-HSWA corrective actions requirements. Forclarification, Ecology has retitled Section -645, ''Releases from regulated units" and made conforming changes throughout the section to correctly reference new section WAC 173-303-646. Mandatory corrective action requirements (WAC 173-303-646(1) & 

### (2». Owners/operators offacilities seeking or required to have a permitfortreatment, storage, recycling, or disposal ofdangerous waste must conduct corrective action for allreleases ofdangerous wastes and dangerous constituents at the facility, including any and all from Solid Waste Management Units (SWMUs). Corrective action isrequiredregardless of the time at whichwaste was managed at the facility or in SWMUs and regardless of whether the facilityor SWMU was intended for the management of solid or dangerous waste. Washington's requirements for corrective action for all releases ofdangerous waste and dangerous constituents are more stringent than federal corrective action requirements at 40 CFR § 

### 264.101. Under the federal system, corrective action



### DRAFT· CORRECfNEACfION PREAMBLE, PAGE 2 

# orequirements are limited to releases from solid waste management units; under Washington's system, corrective action may be required for any release regardless of its origin. Ecology believes this additional stringencywillbenefitthe agency and the regulated community by, (1) Improving the efficiency ofcleanups, by addressing sites holisticallyinstead ofin pieces. Ecology believes this will allow for more integrated, site specific and cost effective remedies, (2) Allowing Ecology to give some facilities some

assurances that environmental cleanup under the dangerous waste regulations will satisfy the requirements ofthe Model ToxiesControl Act byconforming RCRA and MTCA cleanup responsibilities and standards (no more doublejeopardy), (3) Reducing duplication ofeffortbetween Ecology programs, and (4) Reducing regulatory confusion and the regulatory burden at facilities subject to corrective action. Owner/operators ofdangerous waste management facilities must implement corrective action, as necessary to protecthuman health and the environment, for releases which have migrated beyond the facilityboundary. Ecology's requirements for corrective action beyond the facility boundary are more stringent than federal requirements, Ecology is notlimited by the 'best efforts" language of the federal regulations. Financial

assurances for corrective action must be provided. Ecology may impose corrective action requirements in a final dangerous waste management facility permit, or an administrative order issued pursuant to RCW 70.105. In the case ofowner/operators seeking a final permit, corrective action and schedules of

. compliance for such corrective actions must be specified in the permit. Alternative authorities; alternative corrective action (WAC 173.303.646(3». Ecology mayrequire owner/operators ofdangerous waste management facilities to fulfill their corrective action requirements through implementation of an enforceable action imposed pursuant to the Model Toxies Control Act (MTCA). In the case of facilities seeking a final dangerous waste management facilitypermit, corrective action requirements imposed pursuant to the MTCA and a schedule ofcompliance for such corrective actions will be incorporated into the permit at the time ofpermitissuance. When imposing corrective action requirements pursuant to the MTCA, the requirements of WAC 173·303 must be met as Applicable, Relevant and Appropriate Requirements (ARARs) to the extentrequiredbyRCW 70.105D.030(2)(d) and WAC 173-340-710. Implementation ofcorrective action requirements using the MTCAis known as the Alternative Authorities Initiative. The alternative authorities initiative was established to provide a mechanism for states with existingenvironmentally protective-- cleanup authorities to use those authorities to perform corrective action at RCRA faculties. Under the alternative authorities initiative Ecology is applying for authorization of a corrective action programwhich relies on the Model Toxies Control Act (MTCA) regulations to implement corrective action requirements. The alternative authorities initiative represents a truly innovative and cooperative effortbetween state and federal agencies to untangle the complexities ofenvironmental cleanup requirements. Authorization ofEcology's alternative authorities initiative will be the first EPA authorization of a state alternative authority and willserve as the national model. Ecology intends that corrective action requirements imposedpursuant to the MTCAwill be equivalent in scope and stringency to conventionally imposed corrective

DRAFT

- CORRECfNE ACfION PREAMBLE, PAGE 3actions. Ecology will incorporate "RCRA-only" provisions, such as the provisions for corrective action management units, into alternative corrective actions as ARARs. Voluntary cleanups conducted under the Model Toxies Control Act willnot constituent compliance with the corrective action requirements ofWAC 173-303-646(2). 

# C·
Itis important to note that the corrective action requirements specified by WAC 173-303-646(2) are the mandatory corrective action provisions, and preserve Ecology's ability to require corrective action in an orderor permit issued pursuant to RCW 70.104 and Chapter 173-303 WAC, independent ofany potential requirements for a facility to conducta cleanup under the MTCA The ability to impose corrective action requirements pursuant to the MTCAis a regulatory option which 

### willbe implemented at Ecology's discretion. CorrectiveAction ManagementUnits (CAMUs). The DirectorofEcology may designate an area ofa facility as a corrective action management unit (CAMU) for purposes ofimplementing the corrective action requirements ofWAC 173-303-646(2). Placement ofremediation waste into orwithin a CAMU does not constitute land disposal ofdangerous waste, and consolidation or placementofremediation wastes into orwithin

a CAMU does not constitute creation ofa new unit subject to the minimum technology requirements ofWAC 173-303-140(2). Designation of a CAMU will not change the Department's existing authority to address clean-up levels, media-specific points of compliance, or other remedy selection decisions. The provisions for CAMUs inWAC 173-303-646(4), (5), and (6) are equivalentto the Federal CAMU provisions codified in the February 16, 1992 Federal Register (55 FR 8658). CAMUs may accept only remediation waste, as defined at WAC 173-303-040. CAMUs may not accept remediation waste, or any otherwaste, from off-site (exceptthat remediation waste generated through cleanup of an on-site release which has migrated

. 

# C off-site may be managed in a CAMU). CAMUs must be designated byEcology in a I corrective action order or a final dangerous waste management facilitypermit. Facility owner/operators requesting a CAMU mustprovide Ecology with information sufficient to make a CAMU determination. Ecology mustprovide opportunity for public review and
comment on all CAMU determinations. It isEcology's intent to use the CAMU provisions ofWAC173-303-646(4), (5), and (6) to facilitate more environmentallyprotective, cost-effective, site-specific, and appropriate remedial decisions. While CAMUs could, in some cases, be used to consolidate remedial wastes at a facility, it is Ecology's intent that CAMUs will primarily be used to perform more on-site treatment and more innovative treatment ofremedialwastes.Ecology must specify the following when establishing a CAMU, (1) The areal configuration ofthe CAMU, (2) Requirements for groundwater monitoringwhich are sufficient to continue to detect and to characterize the nature, extent, concentration, direction, and movement of existing releases from sources within the CAMU and detect and subsequently characterize releases which may occurfrom areas of the CAMU where waste willremain after CAMU closure, (3) Requirements for CAMU closure which are consistentwith the closure performance standard at WAC 173-303-610(2)(a) and which may include requirement for excavation, removal, treatment, or containment of

DRAFT

- CORRECfIVE ACTION PREAMBLE, PAGE 4 

# o

### remediation wastes, (4) For areas where wastes will remain after CAMU closure, requirements for capping, (5) Requirements for removal and decontamination of equipment, devices, and structures used in waste management activities within the CAMU, and (6) Requirements for post-closure activities, as necessary to protect human health and the environment, including, for areas of the CAMU where wastes will remain after closure, monitoring and maintenance activities and the frequency with which such activities shall be performed to ensure the integrity of any cap, final cover, or other containment system. Incorporation or a regulated unit in a CAMU. The Director of Ecology may designate a regulated unit as a CAMU and/or mayincorporate a regulated unit into a . CAMU onlyif

### the regulated unit is closed or closing(perWAC 173-303-610) 

### and its inclusion willenhance implementation of effective,protective, and reliable remedial actions at the facility. The requirements of WAC 173-303-610 

### (closure and post-closure), WAC 173-303-620 

### (financial requirements), WAC 173-303-645 

### (releases from regulated units), and the unit specificrequirements of WAC 173-303-650

### through WAC 173-303- 

### 680 that applied to the regulated unit will continue to apply to the portion of the CAMU into with the regulated unit was incorporated. Temporary tankand containerunits (WAC 173-303-646(7». The Directorof Ecology may designate a temporary tank or containerunit for the purposes of implementing corrective action requirements. 

### Indesignating a temporary tank or containerunit, the Directormay determine that a design, operating, or closured standard applicable to a tank or containerunit may be replaced byalternative requirements which are protective ofhuman health and the environment. Temporary units must be located within the facility boundary and may operate for only one year, except that underthe specific provisions of WAC 173-303-646(7)(

### e) temporary units may be allowed to operate for one additional year. As 

### with CorrectiveAction Management Unit determinations, the Directormust document the rationale for designating a temporary unit and for granting time extensions for temporary units and must make such documentation available for public review and comment. Corrective action for underground injection wells. Owner/operators of underground injection wellsregulatedby the permit by rule provisions ofWAC 173-303- 802 

### and permitted afterNovember 8, 1984 

### must comply with the corrective action requirements of WAC 173-303-646(2). 

### Equivalent to federal rules promulgated in 

### the December 1, 1987 

### Federal Register (52 

### FR 45788). 

### Corrective action for NPDES permit-by-rule facilities•.Owner/operators of publicly ownedtreatmentworks regulatedby the permit by rule provisions of WAC 173- 303-802 

### and permitted afterNovember 8, 1984

### must comply with the corrective action requirements of WAC 173-303-646(2). 

### Equivalent to federal rules promulgated in 

### the December 1, 1987 

### Federal Register (52 

### FR 45788). 

### Corrective action atfacilities applying for a final dangerous waste management permit. Owner/operators of facilities applying for a finaldangerous waste management permit are requiredby WAC 173-303-S06(a)(xxiii) to submit information on all solid waste management units in 

### PartB of the permit application. Equivalent to federal rules

were promulgated in 

### the December 1, 1987 

### Federal Register (52 

### FR 45788).



### DRAFT

- CORRECfIVEACTION PREAMBLE, PAGE 5FINAL DRAFf Corrective Action Reg. Changes

1. WAC 173-303-040



# .,_ ••r2. WAC 173-303-040

"discharge" or "dangerous waste discharge" means the accidental or intentional release ofhazardous substances, dangerous waste or dangerous waste constituents such that the substance, waste, or waste constituent may enter or be emitted into the environment. Release includes, but is not limited to, the actions of: SpiHing, leakiFlg, pumping, pouring, emitting, dumping, emptying, depositing, placing, or injecting.



### 3. WAC 173-303-040

"Facility" means all contiguous land, and structures, other appurtenances, and improvements on the land used for recycling, reusing, reclaiming, transferring,

chapter, the terms "facility,""treatment, storage, disposal facility," 

### ''TSD facility," "dangerous waste facility" or ''waste management facility' shall be used



# D

4

..WAC 173-303-040

''land disposal" means placement ofdangerous waste in a faeility or on the land 'N'ith the intent oflea'lmg st:tch dangerous waste at**clost:trei::::~~mtEi.P.lj**

### £R1~~I~a::HUm!$.iI§9Jt\ll and includes, but 

### isnot limit'ed"'""t"ci:,xplacement for disposal pt:trposes in a: landfill, surface impoundment, waste pile, injection well, land treatment facility, salt dome or salt bed formation, underground mine or
cave, or placement 

### in a concretevault or bunker intended for disposal purposes.

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- Corrective Action Rule Changes, Page 1

### S. WAC 173-303-040

"landfill" means a disposal facility, or part of a facility, where dangerous 

# 0

waste is placed in or on the land and which is not a land treatment facility, a surface impoundment, a waste pile, an underground injection well, a salt dome formation, a salt bed formation, an underground mine, a cave,**o.f:~a':Wrre~ :~S!lg!imm&~&m';:mm·**  

# ,.:::."".:.:-:.:.:

..:":"".",.:.:.:.,,.:.:.;.:>

6. WAC 173-303-040

"miscellaneous unit" means a dangerous waste management unit where dangerous waste is treated, stored or disposed and that is not a container, tank, surface impoundment, pile, land treatment unit, landfill, incinerator, boiler, industrial furnace,**~~~~!X~~l~!Jmi:;H!i\,!~mSfif:jfmJll~m~'I!Xti9Uj** 

# . underground injection well WIth appropnate technical standards under 40 CFR Part 146, or unit eligible for a research, development, and demonstration permit under WAC 173-303-809.

7. WAC 173-303-040

8. WAC 173-303-040

9. WAC 173-303-040

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- Corrective Action Rule Changes, Page 2 

# o

# ie**:~~:::,:::::;:;:~~:;::::;::;:;::::;:~::,«::::;:::;;;::",:::;;,~,;:::;::.<** 

### 10. WAC 173-303-040

·11. WAC 173-303-400(3)(a)(i)

400(3)(a)(i) The land disposal restrictions of WAC 173-303-140; the facility

## t_;§;~t§~j1~~illtta;_~llough**173-303-440i[ln91l:m;~1Splt~1w£l~mgl**

12. WAC 173-303-645

WAC 173-303-645 Releases from solid waste maaagemeat 1:lnits**R~m~Iff91j** 

# e fiilil):j:l.Jj.

. .**·",··w··.·.···.w·,·.·~="'<"',M**


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

645 (1)(a)(ii) All solid waste managementunits must comply with the requirements in 

### s1:lbseetion (12) ofthis seetion**:\¥I;.,@fli~~_$l.** 

### Regulated units (as defined in 

### WAC 173-303-040) must**cOmplY···Wiihthe~requ1rements** 

### of subsections (2) through

## fl-l7 (12) ofthis section, 

### in lieu ofs1:lbsectioa

### (12) ofthis 

### seetioa**Yl~I?~:l.i~r_~l,** 

### for purposes ofdetecting, characterizing, and**respondmg"t()·»'reIeases·"io~ifie**

### uppermost aquifer. The**idtf~niat6.fi** 

### financial

# ~;~~~b~O~:;:;:::;o:m~~ 

# oftbio

# se~

14. WAC 173-303-645(12)

645 

### (12) Correcti-ve actioa 

### {orsolid waste maaagemeat l:inits.



### 15. WAC 173-303-645(12) 

# S£'lmll.I •• II••**;~fll§B!tgrt.If[Gi!U~~!91§!**

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- Corrective Action Rule Changes, Page 3

### 16. WAC 173-303-646

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-Corrective Action Rule Changes, Page 4 

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c

### DRAFT - Corrective Action Rule Changes, Page 5-----**--~-**

DRAFT· Corrective Action Rule Changes, Page 6 

# o

0

1



# ()

### DRAFT· Corrective Action Rule Changes, Page 7

### DRAFf

- Corrective Action Rule Changes, Page 8 

# o

o



# o17. WAC 173-303-680(3)

680 (3) Monitoring, analysis, inspection, response, reporting, and corrective action. Monitoring, testing, analytical data, inspections, response, and reporting procedures and frequencies must ensure compliance with subsection (2) of this section, WAC 173-303-320, 173-303-340(1), 173-303-380(3), 173-303-390 (1) and (3), and 'VAG 173 303 645(12)**!t~(g;[t~3.~z.).** as well as meet any additional requirements needed···"io···i>ro"iea·····iiumaii"'health and the environment as specified in the permit,

18. WAC 173-303-802(3)

802 (3) Underground injection wells. Underground injectionwells with an underground injection control (UIC) permit for underground injection shall have

a permitby rule ifthe owner or operatorhas a UIC permit issued by the department under a federally approved program for underground injection control, and complies with the conditions of the permit and requirements of 40 CPR 144.14and applicable state waste discharge rules.**EdtlfH6m~Jj.f$u.$:d**

# _~~'!!:n numbers. However, underground injection wells disposing ofEHW are prohibited,

19. WAC 173-303-802(4)(c)(viii)

20. WAC 173-303-805(7)(a)(v)

805 (7)(a)(v) Changes made in accordance with an interim status corrective action order issuedby EPA under section 3008(h) ofRCRA or other federal authority, by the department under chapter70.105 RCW orother state authority,

### m:2mmtjI!mBtg§lk.~1.1!QI;BIk~lji"!I!fi~t}m;:2I~'lit!~;mell~
DRAFT - Corrective Action Rule Changes, Page 9**(~)i** or by a court in a judicial action brought.**b~** EPA or by the department. Changes under this subsection (7)(a)(v) are limited to the treatment, storage, or disposal of solid waste from releases that originate within the boundary of the facility.

-
21. WAC 173-303-806(4)(a)(xxii)

22. WAC 173-303-830Appendix I



# =

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- Corrective Action Rule Changes, Page 10 

# o

o

()Corrective Action Reg. Changes

1. WAC 173-303-040

"Corrective action management unit" or "CAMU" means an areawithin a facility that is designated bv the Directorpursuant to WAC 173-303-646(4)(5) and (6) for the purpose ofimplementing the corrective action requirements ofWAC 173-303-646(2). A CAMU shall onlv be used for the management ofremediation
wastes prusuant to implementing such corrective action requirements at the facility.

2. WAC 173-303-040

"discharge" or "dangerous waste discharge" means the accidental or intentional release ofhazardous substances, dangerous waste or dangerous waste constituents such that the substance, waste, or waste constituent may enter or be emitted into the environment. Release includes, but is not limited to, the actions of: Spilling, leaking, pumping, pouring, emitting, dumping, emptying, depositing, placing, or injecting.



### .., .:J. WAC 173-303-040

"Facility" means all contiguous land, and structures, other appurtenances, and improvements on the land used for recycling, reusing, reclaiming, transferring, storing, treating, or disposing ofdangerous waste. A facility mav consist ofseveral treatment, storage, or disposal units (e.g. one or more landfills, surface impoundments, or combinations of them). Unless otherwise specified in this chapter, the terms "facility," "treatment, storage, disposal facility," "TSD facility," "dangerous waste facility" or "waste management facility' shall be used interchangeably. For the purposes ofimplementing corrective action imposed pursuant to WAC 173-303-646(2) or (3), the term Facility has the following meaning: All contiguous property under the control of an owner or operator seeking or required to have apermit under the provisions ofRCW 70.105 or Chapter 173-303 WAC. including the definition of facility at RCW 70.105D.020(3).

4. WAC 173-303-040
"land disposal" means placement ofdangerous waste in a facility or on the land with the intent of leaving such dangerous waste at closure, except in a corrective action management unit. and includes, but is not limited to, placement for dispo:;al purposes in a: landfill, surface impoundment, waste pile, injection well, land treatment facility, salt dome or 

### saltbed formation, underground mine

Corrective Action Reg. Changes, Page 1

### 5. or cave, or placement in a concrete vault orbunker intended for disposal purposes.

WAC 173-303-040

"landfill" means a disposal facility, orpart of a facility, where dangerous waste is placed in or on the land and which is not a land treatmentfacility, a surface impoundment, a waste pile, an underground injectionwell, a salt dome formation, a salt bed formation, an underground mine, a cave, or a corrective action managementunit. 

# c

6. WAC 173-303-040

"miscellaneous unit" means a dangerous waste management unit where dangerous waste istreated, stored or disposed and that is not a container, tank, surface impoundment, pile, land treatmentunit, landfill, incinerator, boiler, industrial furnace, corrective action managementunit. temporarY unit. underground injection well with appropriate technical standards under 40 CFR Part 146, or unit eligible for a research, development, and demonstration permit under WAC 173-303-809.

7. WAC 173-303-040

"Release" means any intentional orunintentional spilling, leaking, pouring, emitting, emptying, discharging, injecting, pumping, escaping, leaching, dumping,

or disposing ofdangerous wastes or dangerous constituents as defined at WAC 173-303-646(1)(c), into the environment and includes the abandonment or discarding ofbarrels, containers and otherreceptacles containing dangerous·
wastes or dangerous constituents and includes the definition of release at RCW 70.105D.020(10).

8. WAC 173-303-040

"RemediationWaste" means all solid or dangerous wastes, and all media (including ground water, surface water, soils, and sediments) and debris, which contain listed dangerous wastes, or which themselves exhibit a dangerous waste characterIstic or criteria, that are managed for the purpose ofimplementing corrective action requirements imposed pursuant to WAC 173-303-646(2) or (3). For a given facility. remediation wastes mavoriginate onlv from within the facilitv boundarY, except that remediation waste mav include wastes managed in implementing corrective action in accordance with WAC 173-303-646(2)(b) for releases extending bevond the facilityboundarY.

Corrective Action Reg. Changes, Page 2 

# .:

(j9.



### 10. WAC 173-303-040

"Solid Waste Management Unit" or "SWMU" means any discernible location at a facility. as defined for the purposes ofcorrective action. where solid wastes have been placed at anv time. irrespective ofwhether the locationwas intended for the management of solid or dangerous waste. Such locations include

onvarea at a facility at which solid wastes. including spills. have been routinely and systematically released. Such locations includeregulated units as defined bv Chapter 173-303 WAC.

.

WAC 173-303-040
"TemporarvUnit" or "TU" means a tank or containerunitused temporarilv for treatment or storage ofremediationwaste. that is designated by the Director pursuant to WAC 173-303-646(7) for the purpose ofimplementing the corrective action requirements of WAC 173-303-646(2) or (3).

11. WAC 173-303-400(3)(a)(i)

400(3)(a)(i) The land disposal restrictions of WAC 173-303-140; the facilityrequirements of WAC 173-303-280 through 173-303-440; and the corrective action requirements of WAC 173-303-646(2);

12.



### 13. WAC 173-303-645

WAC 173-303-645 Releases from solidwastemanagement units Releases from regulated units.

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

645 (l)(a)(ii) All solid waste management units must comply with the requirements in subsection (12) of this section WAC 173-303-646(2). Regulated units (as defined in 

### WAC 173-303-040) must complywith 

### the requirements of subsections (2) through

## fH1 (12) of this section, in 

### lieu ofsubsection (12) of this section WAC 173-303-646(2), for purposes of detecting, characterizing, and responding to releases to the uppermost aquifer. The corrective action financial responsibility requirements ofsubsection (P) 

### of this section WAC 173-303-646(2) apply to corrective action at regulatedunits.

14. WAC 173-303-645(12)

645 (12) Corrective action for solid wastemanagement units.

Corrective Action Reg. Changes, Page 315. WAC 173-303-645(12)

(12) Use of the Model Toxics Control Act. (a) The department mayrequire the owner/operator of a facility to fulfill his corrective action responsibilities underWAC 173-303-645 using an enforceable 

# 0

action issued pursuant to the Model Toxics Control Act. as amended. (Chapter 70.105D RCW) and its implementing regulations. (b) Corrective action requirements imposed by an action issued pursuant to the Model Toxics Control Act shall be in compliance with the requirements of WAC 173-303-645 and the requirements ofChapter 173-303 WAC to the extent required bv RCW 70.105D.030(2)(d) and WAC 173-340-710. (c) In the case of facilities seeking orrequired to have apermitunder the provisions of this Chapter the departmentwillincorporate corrective action requirements imposed pursuant to the Model Toxics Control Act into permits at the time ofpermit issuance. Such incorporation shall in no way affect the timing

or scope of review of the Model Toxics Control Act action.

16. WAC 173-303-646

WAC 173-303-646Corrective Action

(1) Purpose and Applicabilitv. (a) The provisions of this section establish requirements for corrective action for releases ofdangerous wastes and dangerous constituents including releases from solid waste managementunits. (b) The provisions of this section applyto facilities seeking or required to 

# 0

have a permit to treat. store, reCYcle or dispose ofdangerous waste. (c) For the purposes of WAC 173-303-646, dangerous constituent shall

mean anv constituent identified in WAC 173-303-9905 or 40 CFR Part 264 appendix IX, any constituentwhich caused a waste to be listed or designated as dangerous under the provisions ofChapter 173-303 WAC. and any constituent defined as a hazardous substance at RCW 70.105D.020(5).

(2) Requirements. (a) The owner or operator of a facility must institute corrective action as necessarY to protect human health and the environment for all releases of

-- dangerous wastes and dangerous constituents. including releases from all solid waste management units at the facility. Corrective action is required regardless of the time at which waste was managed at the facility or placed in such units and regardless ofwhether such facilities or units were intended for the management of solid or dangerous waste. Assurances of financialresponsibility for such corrective action must be provided. (b) The owner/operator must implement corrective actions beYond the facilitv prooertv boundarY. where necessarY to protect human health and the

Corrective Action Reg. Changes, Page 4 

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# :e environment. Additionallv, as necessary to protect human health and the environment, the department mav require the owner!operator to implement on site measures to address releases which have migrated beyond the facility boundary. Assurances offinancial responsibility for such corrective action must be provided. (c) In the case of a facility seeking or required to have a permit under the provisions ofChapter 173-303 WAC, corrective action must be specified in the permit. The permitwill contain schedules ofcompliance for such corrective action (where such corrective action cannotbe completed prior to issuance ofthe permit) and assurances offinancial responsibility for completion of such corrective action.

(3) Use of the Model Toxics Control Act. (a) The department mav require the owner(operator of a facility to fulfill his corrective action responsibilities under WAC 173-303-646(2) using an enforceable action issued pursuant to the Model Toxics Control Act, as amended, (Chapter 70.105D RCW) and its implementing regulations. (b) Corrective action requirements imposed bv the department in an action issued pursuant to the Model Toxics Control Act shall be in compliance with the requirements of WAC 173-303-646(2) and the requirements ofChapter 173-303 WAC to the extent required bv RCW 70.105D.030(2)(d) and WAC 173-340-710. (c) In the case of facilities seeking or required to have apermit under the provisions of this Chapter the department willincorporate corrective action requirements imposed pursuant to the Model Toxics Control Act into permits at the time ofpermit issuance. Such incorporation shall in no wav affect the timing or scope of review of the Model Toxics Control Act action.

(4) Corrective Action Management Unit (CA..t'vIU) (a) For the purpose ofimplementing corrective actions required by WAC 173-303-646(2), the Director mav choose to designate an area at a facility as a corrective action management unit. Designation of a CAMU shall be in accordance with the provisions of this subsection and WAC 173-303-646(5) and (6). The Director mav choose to designate one or more CAJ.VfUs at a facility, (b) Placement ofremediation wastes, as defined in WAC 173-303-040 into

or within a CMtU does not constitute land disposal ofdangerous waste, (c) Consolidation or placement ofremediation wastes, as defined iilWAC 173-303-040 into or within a CAJ.\1U does not constitute creation of a unit subject to the minimum technolo2:V requirements of WAC 173-303-140(2),however, when necessary to protect human health and the environment. the department may require a CAMU meet all or part of the minimum technology requirements. Cd) Designation of a CAMU shall not in anv wav affect the department's existing authorities, including authority under Chapter 70,105D RCW. to address clean-up levels, media-specific points of comoliance, or other remedv selection decisions.

Corrective Action Reg, Changes, Page 5(e) Designation of a CAMU shall not in anv wav affect the timing or scope of review of anv actions taken under the Model Toxics Control Act pursuant to WAC 173-303-646(3) to fulfill the corrective action requirements of WAC 173-303-646(2) or the corrective action requirements of WAC 173-303-645.

Corrective Action Reg. Changes, Page 6 

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o(iv) Requirements for closure that shall minimize the need for further maintenance of the CAJ.\1U and shall include, as appropriate and deemed necessarY bv the Director, the following: (A) Requirements for excavation, removal, treatment and/or containment of wastes; (B) For areas in which wastes willremain after closure of the CAMU, requirements for capping of such areas; and .(C) Requirements for removal and decontamination of equipment. devices, and structures used in remediation waste management activities within the CAMU.

. (c) Inestablishing closure requirements for CAMUs under WAC 173-303- 646(b)(iv) the Director shall consider the following factors: (i) CAMU characteristics; (ii) Volume of wastes which willremain in place after CAi\1U closure: (iii) Potential for releases from the CAMU; (iv) Phvsical and chemical characteristics of the waste; (v) HYdrological and other relevant environmental conditions at the facility which may influence the migration of anypotential or actual releases in and/or from the CAMU; and (vi) Potential for exposure of humans and environmental receptors ifreleases were to occur at or from the CAJ.\1U. (d) The Director shall. for areas of the CAJ.\1U in which wastes will remain in place after CAMU closure, specifypost-closure requirements to control. minimize, or eliminate. to the extent necessarY to protect human health and the environment, post-closure escape of dangerous waste, dangerous constituents, leachate, contaminated runoff, and dangerous waste decomposition products to the ground, to ground waters, to surface waters, and to the atmosphere. Such post-closure requirements shall include, as necessarY to protect human health and the environment, monitoring and maintenance**acti~ties** andthe frequency with which such activities shall be performed to ensure the integrity of anv cap, final
cover, or other containment svstem. (e) The owner!operator of a facility shall provide sufficient information to enable the Director to designate aCAMU in accordance with the criteria in WAC 173-303-646(4), WAC 173-303-646(5)(a) through (d), and WAC 173-303-646(6). (0 The Director shall document the rationale for designating CAi\IItJs and shall make such documentation available to the public. (g) Incorporation of the designation of and requirements for a CAi\1U into a existing permit must be approved by the Director according to the procedures for agenCY initiated permit modifications under WAC 173-303-830(3),

or according to the permit modification procedures of WAC 173-303-830C4).

(6) Incorporation of a Regulated Unit Within a CAt\tlU (a) The Director may designate a regulated unit (as defined in WAC 173-

Corrective Action Reg. Changes, Page 7303-040) as a CAMU, or may incorporate a regulated unit into a CAMU, if: (i) The regulated unit is closed or closing, meaning it has begun the closure process under WAC 173-303-610 or WAC 173-303-400: and (ii) Inclusion of the regulated unit will enhance implementation of effective, protective and reliable remedial actions at the facility. 

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(b) The requirements of WAC 173-303-610,.WAC 173-303-620, WAC 173- 303-645, and the unit specific requirements of WAC 173-303-650through WAC 173-303-680that applied to the regulated unit willcontinue to applY to the portion of the CAMU into which the regulated unit was incorporated.

(7) Temporarv Units (TUs) (a) For temporarY tanks and container storage areas used for treatment or storage ofremediation wastes during implementation of the corrective action requirements of WAC 173-303-646(2), the Director may determine that a design, operating, or closure standard applicable to such units may be replaced bv alternative requirements which are protective ofhuman health and the environment. (b) Anv temporarY unit to whichalternative requirements are applied in accordance with WAC 173-303-646(7)(a) shall be: (D Located within the facility boundarY: and (ii) Used only for treatment or storage ofremediation wastes managed pursuant to implementation of the corrective action requirements of WAC 173-303-646(2) at the facility.

. (c) In establishing standards to be apolied to a temporarY unit. the Director shall consider the following factors: 

### (0 Length of time unit will be in operation: 

### (in Type of unit: 

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(iii) Volumes of wastes to be managed:

. (iv) Physical and chemical characteristics'of the wastes to be managed in the unit: (v) Potential for releases from the unit: (vi) Hvdrogeological and other relevant environmental conditions at the facility which mav influence the migration of any potential releases: and (vii) Potential for exposure ofhumans and environmental receptors ifreleases were to occur from the unit. (d) The Director shall specify the length oftime, not to exceed one-year, a temporarY unit will be allowed to operate. The Director shall also**specifyd~sign,** operating, and closure requirements for the temporary unit. (e) The Director mav extend the operating period of a temporarY unit for up to one additional vear, provided the Director determines that: (i) Continued operation of the unit will not pose a threat to human health and the environment: and (ii) Continued operation of the unit is necessarY to ensure timely and efficient implementation of remedial actions at the facility.

Corrective Action Reg. Changes, Page 8 

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### 17. 

### (D Incorporation of the designation of and requirements for a temporarY unit or a time extension for a temporarY unit into an existing permit shall be: 

### 0) Approved in accordance with the procedures for Agencyinitiated permit modifications under WAC 173-303-830(3). or (in Requested bv the owner or operator as a Class II 

### modification according to the procedures underWAC 173-303-830(4). (g) The Director shall document the rationale for designating a temporarY unit and for granting time extensions for temporarY units and shall make such documentation available to the public.

WAC 173-303-680(3)
680 (3) Monitoring, analysis, inspection, response, reporting, and corrective action. Monitoring, testing, analytical data, inspections, response, and reporting procedures and frequencies must ensure compliance with subsection (2) of this section, WAC 173-303-320,173-303-340(1),173-303-380(3), 173-303-390 (1) and (3), and WAC 173 303**6~5(12)** 

### WAC 173-303-646(2) as well as meet any additional requirements needed to protecthuman health and the environment as specified in the permit.

18. WAC 173-303-802(3)

802(3) Underground injection wells. Underground injection wells with an underground injection control (UIC) permitforunderground injection shall have

a permit by rule if the owner or operatorhas a UIC permit issued by the department under a federally approved program for underground injection control, and complies with the conditions ofthe permit and requirements of 40 CFR 144.14 and applicable state waste discharge rules. For VIC permits issued after November 8. 1984 the owner/operator must complv with WAC 173-303- 646(2). corrective action for solid waste managementunits. All underground injectionwells mustcomply with WAC 173-303-060, notification and identification numbers. However, underground injection wells disposing ofEHW are prohibited.

19. WAC 173-303-802(4)(c)(viii)

802 (4)(c)(viiOFor NPDES permits issued after November 8. 1984.WAC 173-303-646(2), corrective action for solid waste management units.

20. WAC 173-303-805(7)(a)(v)

805 (7)(a)(v) Changes made in accordance with an interim status corrective action order issued byEPA under section 3008(h) ofRCRA or other federal authority, by the department under chapter70.105 RCW 

### or other state authority, including an order or consent decree issuedoursuant to WAC 173-303-646(2) or

Corrective Action Reg. Changes, Page 9

### ill or by a court in ajudicial actionbrought byEPA or by the department. Changes under this subsection (7)(a)(v) are limited to the treatment, storage, or disposal of solid waste from releases that originate within the boundary of the facility.

21. WAC 173-303-806(4)(a)(xxii)

22. WAC 173-303-830Appendix I

M. Corrective Action 1. Approval of a corrective action management unit pursuant to WAC 173-303- 646(4)(5) and (6) class 1. 2. Approval of a temporarY unit or time extension for a temporarY unit pursuant to WAC 173-303-646(7) class 2.

Corrective Action Reg. Changes, Page 10 

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()....:-

. I

-- WAC!73-303-646_

# andsllppoI1mgDefinitions CORRECTIVEACl'ION

GeneralDiscussion: Corrective action rule amendments were designed to facilitate Ecology's implementation of a RCRA corrective action programwhich was consistent with (1) the philosophy ofEPA's existing corrective action program and (2) State cleanup requirements under the Model Toxics Control Act. Additionally, Ecology developed the proposed amendments to be adequate to supportits application for federal authorization ofHSWA corrective action.

Ecologyreceived many comments regarding the proposed regulations and the program which they mandate. Commenters expressed almost uniform support ofEcology's

__adoption ofregulations governing Corrective Action Management Units (CAM:Us); many
commenters urged Ecology to take the CAMU concept even further by allowing CAMUs at voluntary cleanups. One commenter explicitly supported Ecology's proposal to use the cleanup authority ofMTCA to compel corrective actions. Some commenters expressed guarded support of the conceptual frame of the Alternative Authorities Initiative, but had reservations regarding the scope of corrective actions the Alternative Authorities Initiative would mandate. Other commenters objected to Ecology adopting any corrective action requirements. These comments are addressedbelow; however, Ecology believes many commenters did not understand the scope and application of corrective action requirements and the intent of the Alternative Authorities Initiative, so we offer the followinggeneral discussion.

Washington's dangerous waste regulatory program is'largely a preventative program, focused on waste minimization, waste management standards, and compliance monitoring and designed to minimize or eliminate the need for corrective action at dangerous waste management facilities. In designing a state corrective action program, Ecology has attempted to find a balance between the preventative and remedial aspects ofdangerous
waste regulation.

The term "corrective action" refers to federal requirements stemming from the 1984 Hazardous and Solid Waste Amendments (HSWA) to thefederal Resource Conservation and Recovery Act (RCRA). The HSWA amendments significantlyincreased the federal requirements on people who generate or manage hazardous waste by promulgating statutory requirements for, among other things,corrective action at hazardous waste management facilities. In the legislative history ofHSWA, Congress noted that a significantnumber ofhazardous waste management facilities that received RCRA permits were becoming Superfund cleanup sites due to releases ofhazardous waste and constituents from non-RCRAunits. Congress also noted that the stringent waste management requirements passed under core RCRA only addressed wastes generated and managed after the Act and did nothing to address pastwaste management activity. By imposing corrective action requirements on owners and operators ofhazardous waste management facilities, Congress providedEPA a mechanism to address hazardous waste contamination without depleting the publicly funded Superfund.

73In July, 1985,EPA published the first HSWA Codification rule (50 FR 28702), including regulatory language for corrective action at solid waste management units (40 CFR § 264.101). The July, 1985, Federal regulations, require owner/operators of facilities seeking a permit for the treatment, storage or disposal ofhazardous waste to: 1) Institute corrective action as necessary to protect human health and the environment for all releases ofhazardous waste and constituents from any and all solid waste managementunits at the facilityregardless of the time at whichwaste was placedin such units, and 2) Specify corrective action, schedules of compliance for such corrective action, and assurances offinancial responsibility for completing corrective action in all final RCRA permits.

In December, 1987, (52 FR 45788) EPA amended the regulatory requirements for corrective action, adding a requirement for owner/operators of facilities seeking a RCRA permit for the treatment, storage or disposal of hazardous waste to: Implement corrective actions beyond the facility property boundary where necessary to protect human health and the environment, unless the owner/operator could demonstrate to

..EPA's satisfaction that, despite the owner/operator's best efforts, they were unable to

obtain the necessary permission to undertake such actions, and to take on-site measures to address such releases as determined byEPA on a case-by-case basis, and to provide

assurances of financial responsibility for such corrective action. 

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In July, 1990 (55 FR 30798) EPA proposed detailed regulations for corrective action, known as "draft Subpart S",referring to their draft status and to their anticipated subpart in 40CFR Part 264

.. Draft Subpart S has not yet been completely finalized, however EP A is usingportions ofthe proposed rules as guidance inimplementing corrective action requirements. On February 16, 1993, (58 FR 8658)EPA finalized regulations 

# 0 governing corrective action management units (CAJ.\1Us) and corrective action temporary

. units (TUs).

Prior to developing a corrective action authorization strategy, Ecology considered EPA's corrective action implementation and observed some duplication of effort between EPA's Superfund and RCRA programs. Ecology believes suchduplication ofeffort isnot efficient, and can cause inconsistency within EPA and confusion in the regulated community. In addition, since many contaminated sites have cleanup responsibilities underboth RCRA and Superfund, facility owner/operators are potentially liable for twoenvironmental cleanups, a Superfund cleanup and aRCRA corrective action. Ecology" observed a similar potential for "doublejeopardy" between RCRA corrective actions and :MTCAcleanups. In considering a state corrective actionprogram, Ecology questioned the efficiency ofestablishing a new cleanup program for dangerous waste facilities when effective cleanup standards and procedures were already in place under the Model Toxies Control Act. In order to address these concerns, Ecology and EPAworking in partnership developed the Alternative Authorities Initiative.

The Alternative Authorities Initiative was established to provide a mechanism for Ecology to use its state "Superfund" authority (MTCA) to compel corrective actions at RCRA facilities. Ecology is applying for authorization of a corrective action program which relies in part on the Model Toxics Control Actu",rrCA) regulations to implement

74 

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### corrective action requirements. This will enable Ecology to ensure that corrective actions

are performed and completed in a manner consistent with existingState cleanup requirements, and will significantly reduce the potential for "doublejeopardy" at dangerous waste management facilities. The Alternative Authorities Initiative represents a truly innovative and cooperative effort between state and federal agencies to untangle the complexities ofenvironmental cleanup requirements. This will be the first EPA· authorization of a corrective action programrelying on an existingstate cleanup authority. It is hoped·that this programwill serve as a national model for corrective action authorization. Using this approach Ecologyintends to: 1) Reduce duplication of effort between Ecology's Toxies Cleanup and Hazardous Waste Programs; 2) Enhance agency-wide consistency by conforming cleanup requirements and procedures for RCRA and non-RCRA facilities; 3) Reduce regulatory confusion; 4) Achieve more timely agency-overseen cleanups through implementation ofMTCA's cost-recovery provisions; and 6) Save significantresources usually associated with "start-up" of a new regulatory program.

It isimportant to note that corrective action requirements only apply to owner/operators of facilities which treat, store, or dispose of dangerous waste in a mannerwhich requires

apermitunder the dangerous waste regulations (including facilities subject to federal permit-by-rule). Dangerous waste generators who have operated in compliance with 

### the generatorregulations are not subject to corrective action.

Comment

### 237: One commenter requested clarification of Ecology's intent in proposing the provision at WAC 173-303-646(3)(c). .

Response: 

### Ecology's intent is to emphasize that the MTCAban on administrative review remains in effect when corrective action requirements imposed pursuant to MTCA are incorporated byreference into RCRApermits.

.

Comment

### 238: Several commenters asserted that the qualifyingphrase, "the Directormay choose to designate no CAMUs at a facility" proposed at WAC 173-303-646(4)(il) was unnecessary and suggested Ecology remove the language from the final rules.

Response: 

### Ecology's intent in promulgating the phrase, "the Directormay designate no CAMUs at a facility." was to emphasize the discretionary nature ofCorrective ACtion Management Units (CAMUs). Ecology agrees that the phrase is confusing and has deleted it from the final rules. In order to retain emphasis on the discretionary nature of CAMUs, Ecology has inserted the phrase "choose to" in the preceding language. Revised WAC 173-303-646(4)(a) reads: "For the purpose ofimplementing corrective actions required by WAC 173-303-646(2),the Directormay choose to designate an area at a facility as a corrective action management unit. Designation of a CAMU shall be in accordance with the provisions of this subsection andWAC 173-303-646(5) and (6). The Directormay choose to designate one or more CAMUs at a facility."

Ecology has also revised language proposed at WAC 173-303-646( 5)(b) to emphasize the discretionary nature ofCAMUs. Revised WAC 173-303-646(5)(b) reads: "When

75desiiPatini a CAMU, the Director shall specifyrequirements for the CAMU including the following:"



### Inaddition, Ecology has revised the proposed definition of a CAMU to be consistent 

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with the federal CAMU definition. The revised state CAMU definition at WAC 173-303- 040 reads: "Corrective action management unit" or "CAMU" means an areawithin a facilitythat is designated by the Directorpursuant to WAC 173-303-646(4)(5) and (6) for the purpose ofimplementing the corrective action requirements ofWAC 173-303-646(2). A CAMU shall only be used for the management ofremediation wastes pursuant to implementini such corrective action requirements at the facility.

Comment 239: Several commenters asserted that the qualifyingphrase, "however, when necessary to protect human health and the environment, the department mayrequire remediation waste to meet land disposal standards before placementin a CAMU" was unnecessary and would discourage the flexibility CAMU regulations were intended'to provide.

Response: The intent of the phrase was to emphasize Ecology's ability to specify any corrective action management unit (CAJ."\1U) standard which the department believes necessary to ensure protection ofhuman health and the environment. These standards could potentially include conventional RCRA standards such the land disposal restrictions. Upon reconsideration, Ecology agrees that the language could be construed to discourage creative cleanup solutions and has removed the phrase from the final rule. Revised WAC 173-303-646(4)(b) reads: "Placement ofremediation wastes, as defined in WAC 173-303-040into or within a CAMU does not constitute land disposal ofdangerous**~"** 

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Comment 240: Many commenters expressed concern that Ecology was extending corrective action requirements to all releases instead of limiting corrective action to releases from solid waste managementunits (SWMUs). Most cornmenters who expressed this concern asserted that requiring corrective action for all releases constituted significantexpansion ofthe federally mandated corrective action program and suggested Ecology limit corrective action responsibility to releases from SWMUs.

Response: Ecologybelieves that concerns regarding "new"corrective action requirements result from some confusion about the proposal. In order to address these

-- misunderstandings, we will clarify the corrective action proposal in some detail.

Ecology views the proposed corrective action program as a beneficial consolidation of existingstate (MICA) and federal (Corrective Action) cleanup requirements. Ecology wishes to emphasize that, in our view, requiring dangerous waste management facilities to institute corrective action for all releases does not subject the regulated community to any additional or new requirements. Ecology willapplyfor federal authorization of a corrective action program which relies on the Model ToxiesControl Act Regulations to compel corrective action requirements. Known as the Alternative Authorities Initiative, the intent is to recognize existing state cleanup regulations and policy and to work within that framework to address RCRA corrective action requirements. Ecology believes that

76 

# CJQ using existing state regulations to compel corrective actions is much more efficient than promulgating new, duplicative cleanup requirements for dangerous waste management facilities. Federal authorization (scheduled for early 1994) will recognize that the stringent and protective cleanup requirements ofMTCA are adequate to fulfill RCRA corrective action requirements, provided RCRA-only concerns (such as characterization of individual solid waste management units) are addressed. The resulting orders will be a hybrid ofRCRA corrective action requirements presented in the context ofa MTCAtype cleanup. Ecology emphasizes that the Alternative Authorities Initiative does not involvedeferral ofcorrective action requirements to an alternate state authority. Rather, the alternate state authority will be utilized in implementing corrective action requirements. Corrective action requirements imposed in orders or consent decrees issued pursuant to MTCA will be incorporated into RCRA operating and post-closure permits, at the time ofpermit issuance. The Alternative Authorities Initiative will be administered and implemented by staffin Ecology's Hazardous Waste and Toxics Reduction Program.

Federal corrective action requirements stem from Congress' finding that, due to RCRA's inability to address some releases, permitted hazardous waste management facilities were potentially becoming Superfund cleanup sites. In the Legislative History to RCRA Section 3004(u), Congress wrote: "CurrentEPAregulations do not address all releases ofhazardous constituents from solid waste management units at facilities receiving permits under (RCRA Section) 3005(e). This could likely result in a situation'ofEPA issuing a final permit to a facility which is causing ground water contamination from inactive unit, without the permit addressing that contamination in any way. The Committee believes that all facilities receiving permits should be required to clean up all releases from all units at the facility, whether or not such units are currently active...Unless all hazardous constituents releases from solid waste management units at permitted facilities are addressed and cleaned up the Committee is deeply concerned that many more sites will be added to the future burdens of the Superfund program with little prospect for control or cleanup. The responsibility to control such releases lies with the facilityowner and operator and should not be shifted to the Superfund program, particularly when a finalpermit has been requested by the facility." (See, H.R. Rep. No. 198, 98th Con g., 1st Sess. 20, 61, reprinted in 1984 U.S. Code Congo & Admin. News 5576, 5579, 5620.) As a result, in part, of the HSWA amendments, EPA now hasthe ability to address all releases ofhazardous waste and constituents at facilities regulated under RCRA.

Ecology similarly believes that facilities seeking or required to have permits to treat, store, or dispose dangerous waste, including facilitiesoperating under interim status, should be required to address releases of dangerous waste and dangerous constituents prior to or as a condition ofpermit issuance. To ensure that such facilities do not become- a potential burden to the State, Ecologyfirmly believes that such cleanups should be accomplished in a manner consistent with existing state cleanup law and regulations (Model Toxics Control Act).

Regarding commenters specific suggestion that Ecology limit corrective action requirements to releases from solid waste management units, Ecology rejects the premise

77that dangerous waste management facilities should be allowed to operate with continuing releases to the environment simplybecause such releases cannot be traced to waste management units. Ecology fails to see the difference between an ongoing release to groundwaterfrom a processing unit and an ongoing release from a waste management 

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unit. Both could result in potential adverse impacts to human health and the

. environment and place a cleanup burden on the State at the end of the operating life of the facility. Ecologybelieves that limiting corrective action requirements to releases which can be traced to waste management units would essentially hold dangerous waste management facilities to cleanup requirements less stringent than the requirements imposed at non-dangerous waste managementfacilities (including dangerous waste generators) conducting independent or agency overseen MTCA cleanups by allowing dangerous waste management facilities to defer a portion oftheir legitimate cleanup obligations.

Ecology believes many of the concerns expressed over the extension ofcorrective action jurisdiction to cover all releases stem from a perception that any discharge of a hazardous substance, no matterhow minor, will be subject to a fully overseen agency cleanup or that dangerous waste management facilitypermits willbe "held up" during such cleanups. One commenterwrote, "Ecology should explain how it intends to make these programs dovetail in a waythat will not turn every small cleanup into a 'federal case' requiring a permit amendment, public hearings, etc."

Ecology recognizes that active remediation may not be necessary at every facility potentially subject to state cleanup requirements; similarly, EPA has recognized that active remediation may not be necessary at every facility subject to RCRA Corrective Action. 

### In the responsiveness summary to the Model Toxics Control Act, Ecology wrote: ''The process leading from the identification ofelevated levels ofhazardous substances to

an actual cleanup involves several steps. At the first step, Ecology may receive a report of a release and must perform an initial investigation. Following the completion ofthe initial investigation, Ecology must determine whether the release poses a threat or potential threat to human health and the environment. The (MTCA) cleanup standards would be one source ofinformation used to make thisjudgement. However, Ecology would also consider the areal extent ofcontamination, the magnitude of any cleanup standard exceedances, and the site characteristics in making a determination that**furth~!­** study is needed. The same factors would also be considered when performing a site

__ hazards assessment. At this stage, additional information would be collected to further define contamination levels, potential populations at risk, potential exposure pathways, etc. As with the initial investigation, an exceedance of the cleanup standardsdoes not automatically trigger a site listing or site cleanup. A determination that a site constitutes

a threat or potential threat to human health and the environment isbased on a number of factors in addition to the level ofcontamination."

Ecology proposes to rely on an administrative process based closely on the federal corrective action process. The Alternative Authorities administrative process provides the department many opportunities to remove from consideration facilities or units which the agency has found do not pose a threat or potential threat to human health and the environment. Like the federal corrective action pipeline, the Alternative Authorities

78 

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()

# .. administrative process was developed to ensure that corrective actions taken are commensurate with the risks posed by a givenfacility or unit. In the administrative process, each stage serves as a screen sending forward to the next step those facilities or units at a facility which Ecology has found to be a threat or potential threat to human health or the environment and eliminating fromfurther consideration units and facilities which we have determined do not pose a threat or potential threat to human health or the environment.

The Alternative Authorities Initiative administrative process begins with an Agencyconducted RCRAFacilityAssessment (RFA), which is analogous to the MTCA Initial Investigation/Site Hazard Ranking process. The RFAincludes: (1) a desk top review of available information of the site; (2) a visual siteinspection to confirm available information on solid waste management units at the site and to note any visual evidence ofreleases; and (3) in some cases, a samplingvisit, to confirm or disprove suspected releases. Based on information gathered during the RFA or other information, Ecology may determine that no further corrective action isrequired at the facility or will assign each facility a corrective action priority ranking.

The second stage of the corrective action process is the RCRA Facility Investigation (RFI). The RFI is analogous to the Remedial Investigation (RI) process underMTCA The purpose of an RFI is to characterize the nature and extent ofcontamination at the facility. Typically, the RFI Will be focused on specificconcerns identified in the RFA and will be staged to avoid unnecessary analysis. The RFI must specifically address and characterize solid waste management units which have been identified as releasing or potentially releasing dangerous waste or dangerous constituents.

The third stage of corrective action begins when Ecologydetermines, on the basis of information generated during the RFI or otherinformation, that cleanup is likely to be necessary. In the third stage ofcorrective action the facilityowner/operatorwill be required to conduct a Corrective Measures Study (CMS) to identify and assess possible remedial technologies for the facility or units. The CMS is analogous to the Feasibility Study (FS) process under MTCA If Ecologydetermines remediation is necessary, the Agency will specify a remedial alternative, cleanup levels, and points ofcompliance in a draft Cleanup Action Plan (CAP). The Cleanup Action Plan is analogous to the,- Statement of Basis in the Corrective Action process. The draft Cleanup Action 'Plan will be made available for public review and comment. Following public review and comment, Ecology will finalize the Cleanup Action Plan.

Corrective action requirements which are imposed in advance ofpermitting will be incorporated into RCRA operating and/or post-closure permits at the time ofpermit issuance.

Ecology would further note that application of corrective actionjurisdiction is mandated only "where necessary to protect human health and the environment". Ecology's intent in application ofcorrective action requirements will be to ensure that releases ofdangerous waste and dangerous constituents at facilities seeking or required to have' a permit are

79adequately addressed or remediated so that such facilities do not pose an ongoing threat to human health or the environment.

Comment 241: Similarto the concern expressed over corrective action for all releases, 

# 0 ' manycommenters asserted that the proposed definition ofdangerous constituentwas

overlybroad. Most commenters who expressed concern over the scope of the proposed definition suggested thatEcology limit dangerous constituents to those defined by 40 CFR Part 261 Appendix 8 and 40 CFR Part 264Appendix 9.

Response: In order to ensure consistency between'MTCA cleanups and corrective action cleanups, Ecology believes it isimportant to include in the definition ofdangerous constituent all substances potentially regulatedbyMTCA
Although Ecology'sjurisdictionunder the proposed definition ofdangerous constituent is broad, by specifically referencing constituents listed in 40 CFR'Part261 AppendixVIII and 40CFR Part 264 Appendix IX, Ecologyintends to emphasize those constituents as the substances most likely to be ofconcern at dangerous waste management facilities. Furthermore, given the limited resources typically available for implementing environmental cleanup, it is Ecology's intention to focus corrective action investigations on the subset ofdangerous wastes and dangerous constituents which, based on available information, are likely to havebeen releases at a particular site. Only where very little is known of waste characteristics or where there is the potential for a widespectrum of dangerous wastes or constituents to be released (such as, at a commercial dangerous
waste management facility) would facilityowner/operators routinelybe required to perform extensive analysis for abroader spectrum ofconstituents.

.

Comment 242: One conimenter suggestedEcology use an existing term to define the universe ofsubstances subject to corrective action.

Response: Ecology recognizes that the proposed definition ofdangerous constituent and existingdefinition ofdangerous waste constituent may seem duplicative or confusing, however, to ensure that regulatory terminology precisely defines the intended universe of constituents subject to corrective action, we have retained the definition as proposed.

__ Ecologyrecognizes that there may be inconsistencies in the current rules. It isbecause of those potential inconsistencies that Ecology proposed a definition ofdangerous constituent "for the purposes ofcorrective action" and placed the proposed definition at WAC 173-303-646(c) instead of WAC 173-303-040. Ecology regrets that conformingthe regulatory use ofthe terms dangerous constituent and dangerous waste constituent is beyond the scope of this rule-making, however, we hope to address these inconsistencies during upcoming regulatory reform initiatives.

Comment 243:-One commenter asserted that the corrective action regulations should not apply to radionuclides or the radioactive components of mixed wastes sincethose substances are addressed under the Atomic Energy Act (AEA).

Response: Ecology agrees that radionuclides and the radioactive component of mixed waste are addressed under the Atomic Energy Act. We also recognize that radionuclides

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o\ . are includedin the definition ofhazardous substances promulgated at WAC 173-340-200, and byreference in the definition ofdangerous constituent proposed at WAC 173-303- 646(c). We understand that these references could cause the appearance ofjoint regulation of radionuclides, however, it is Ecology's intent to complement rather than supersede AEA regulations. For example, the Department of Energy shares radionuclide data with Ecology in order that Ecology can consider allproperties of mixed waste subject to dangerous wasteregulations and can respond properly to spills ofmixed
wastes. The department sees no compelling reason to specifically exempt radionuclides from the definition ofdangerous constituent at this time. Ecology willconsider cleanup actions taken under other statutory and regulatory authorities,· including the 

### AEA, when assessing the necessity forcorrective action.

Comment 244: One commenter specifically questionedEcology's legal authority to include hazardous substances in the proposed definition ofdangerous constituent, asserting that Ecology's legalauthority underRCW Chapter 70.105 was limited to hazardous wastes.

Response: Ecology relies on both RCW Chapter 70.105 and RCW Chapter 70.105D for the statutory basis of the Dangerous Waste Regulations. Although the proposed corrective action regulations may seem to rely more heavilyon RCW Chapter 70.105D, Ecology notes that they are consistent with the statutory mandate at RCW 70.105.005(1), whichstates, in part: 'The health and welfare of the people of the state depend on clean and pure environmental resources unaffectedby hazardous waste contamination."

Comment245: Four commenters expressed concern that the preamble and proposed regulatory language seemed to preclude voluntary corrective action. One commenter wrote, "the preamble appears to prohibit an owner/operatorfrom conducting a MTCA independent cleanup action in an attempt to achieve site conditions that would preclude or satisfycorrective action. The draft language contains no specific language about independent actions. We assume the intent of the preamble language is to emphasize that agency approval/acceptance ofindependent actions will be required within the corrective action context, rather than to prohibit such actions. The draft language should be modified to reflectthisemphasis."

-- .
Response: Ecology apologizes for the confusion caused byour imprecise language. OUf intentwas, indeed, to emphasize that agency approval/acceptance ofindependent MTCA actions would be requiredwithin the corrective action context. Ourintent was not to discourage or preclude in any way independent cleanup actions, which Ecology believes often provide for timely,appropriate, protective and cost-effective remedial activities.

Ecology emphasizes that MTCA independent actions which have, as one of their goals, satisfaction of corrective action obligations must includecertain threshold corrective action requirements. Suchrequirements may be incorporated into independent cleanups through MTCA's provisions for application of applicable and relevant and appropriate requirements (ARARs). Threshold corrective actionrequirements include: 1) The independent corrective action cleanup must address all contiguous property under the control of the facilityowner/operator; 2) The independent corrective action cleanup

81must explicitlyaddress all current and historic solid waste managementunits (including RCRAregulated units) at a facility and must assess those units releases and/or potential releases. Information on agency identified solid waste management units at aparticular dangerous waste management facility may be obtained by requesting a copy of the RCRAFacility Assessment (RFA) Report for that facility. Such requests should be 

# 0

made to the appropriate Regional Office of the Department or by contacting the Freedom OfInformation Offices at EPARegion 10. Not all dangerous waste management facilities have undergone RFAs; and 3) The independent corrective action cleanup must address releases which have migrated beyond the facility boundary.

Ecology willaddress this issue more completely through development of guidance for owner/operators ofRCRAfacilities who wish to include corrective action obligations in their implementation of an independent MTCA cleanup.

In a more general sense, Ecology wishes to emphasize that completion of an independent cleanup cannot be assumed to automatically fulfill corrective action requirements. As discussed in our response to comments #240 and #250, Ecology (and/orEPA) must independently assess each dangerous waste management facility in the corrective action context to determine ifcorrective action is necessary given facility specific conditions. 

### In the case of a facility which had undergone a complete independent MTCA cleanup such that facilityconditions did not warrant additional corrective action, Ecology could remove the facilityfrom corrective action consideration following the agency conducted RCRA FacilityAssessment (RFA).

-

Comment 246: Several commenters objected to corrective action for all releases and the definition ofdangerous constituent on the grounds that Ecology had not adequately 

# C"

demonstrated the need for departure from federal corrective action regulations or had
not adequately evaluated the potential financial impacts ofcorrective action. One commenterwrote, "(we) strongly oppose any new state-only requirements that are not accompaniedby detailed analysis of the need for exceeding federal requirements and the costs of such regulations, including both public and private costs."

Response: Ecology's strategyfor implementation ofcorrective action is discussed in some detail in the response to Comment #240. Ecology believes that the proposed corrective action program represents a consolidation of existingregulatory obligations and doesnot involve promulgation of"new"requirements. Ecology's proposed corrective action

-- regulations are based on existingregulations promulgated pursuant to MTCA. A review has indicated there are no new requirements and that this consolidation of sets of requirements in one rule may reduce costs. This costreduction could be substantial for sitesthat under current rules might have been subject to two clean-ups. A small business economic impact statementis not required for rules that lower costs.

Comment 247: Several commenters suggested Ecologydefer both adoption of corrective action requirements for all releases and the proposed definition of dangerous constituent until it had prepared a detailed implementation plan and made such plan available for public review and comment.

82 

# C)Response: 

### Ecology discussedprogram implementation in our response to comment #240. While Ecologyunderstands the concern in 

### the regulated community over the scope and application of corrective action authority, we plan to address those concerns through additional outreach and guidance rather than delay adoption of corrective action regulations. Regarding a detailed corrective actionimplementation plan, Ecology is currently preparing a detailed application for federal authorization of a State corrective action programbased on the proposed regulations. The draft application includes detailed discussions ofpotentialworkload and resource impacts on Ecology's Regional and Headquarters officesand of corrective actionimplementation. The completed authorization application will be formally submitted to EPARegion 10 for consideration. EPA Region 10 will make a preliminary authorization determination, and make such deterinination available for public review and comment through publication in the Federal Register. After it has been completed, a copy of the authorization application will be available for public review.

Comment

### 248: One commenter expressed concern that detailed requirements for corrective action management units would be a burden to small-scaleremedial projects.

Response: 

### Comment noted. If an owner/operatorbelieved a CAMUwas unnecessary for his/her remedial project or believed a CAMU would constitute a burden to the remedial project, he or she isunderno obligation to propose or construct a CAMU. Due to the discretionary nature ofcorrective action management units, Ecology believes it is unlikely their requirements will constitute aburden to small-scale remedial projects.

Comment249: 

### Three commenters asserted that inclusion ofpetroleum products in the proposed definition ofdangerous constituentwas problematic, "causing, for example, RCRApermits to require cleanup ofpetroleumhydrocarbons, which are exemptfrom RCRA."

Response: 

### RCRA does not include a blanket exemption for petroleum products; releases ofpetroleum and petroleum products at dangerous waste management facilities are subject to RCRA corrective action. Ecology believescommenters may have been referring to the RCRA exemption from the requirement to conduct TCLP testing on certain petroleum contaminated soils. However, this exemption applies only to waste generated during clean-up and does not affect actual clean-up obligations.

Comment250: 

### One commenter requested clarification of the relationship ofcorrective actions imposed pursuant to MTCA to non-corrective actionMTCA cleanups and asserted that, "the RCRA program should not only use MTCA for enforcement, but should recognize cleanups achieved under MTCA. Nowthat Ecology is making no further action letters available, TSD operators who haveperformed an independent cleanupunder MTCA and had it approved should not face possible RCRA corrective action. Conversely, the regulations should specify that when a party has performed a RCRA closure or corrective action, Ecologywill not applyMTCA later. This coordination is especially important in light of the proposed huge expansion ofRCRA authority which results from including petroleum as a hazardous constituent and covering all releases, not just those from a SWMU. This definition would make RCRA corrective

83action authority and MTCA authority virtually coextensive at a TSD site. The two programs should explicitly be integrated."

Response: The Hazardous Waste and Toxies Reduction Program fully intends to 

# 0 recognize MTCA cleanups (independent or agency overseen) which have, through their completion, achieved site conditions which preclude or satisfy corrective action requirements. Ecology believes that facilities which have undergone such MTCA cleanups can appropriately be removed from consideration for corrective actionbased on information gathered during the agency conductedRCRAFacilityAssessment (RFA). As discussed in more detail in our response to comment #240, Ecology believes the administrative process associated with corrective action offers many opportunities to remove from consideration facilities which the department has determined do not pose a threat or potential threat to human health and the environment. In making these determinations, Ecology willconsider cleanups conducted under otherregulatory programs or authorities.

In a more general sense, this comment points to a fundamental difference between RCRA Corrective action and MTCA cleanup. The MTCA cleanup process begins following agency receipt ofinformation indicating a threat or potential threat to human health or the environment exists at a given facility. Consideration of a site forMTCA cleanup isnot automatic, the agency must decide, based on some information, that a given site merits consideration under MTCA For thisreason, cleanup programs are typically considered reactive regulatory programs. RCRA, however, is typically considered a preventative, or pro-active, regulatory program. RCRA corrective action regulations require that each dangerous waste management facility be considered for corrective action cleanups as a condition of it's dangerous waste management activities. 

# 0
That is, the corrective action process begins automatically at all dangerous waste management facilities to ensure that such facilities will not, at the end of their operating life,become MTCA (or Superfund) cleanup sites.

In crafting a state corrective action program, Ecology struggled to retain the important conceptual differences between MTCA cleanups and RCRA corrective actions while ensuring consistencybetween actual cleanup activities. Conforming the scope ofcleanups and cleanup standards was one of the department's primary goals in developing the

-- Alternative Authorities Initiative. Conforming cleanup standards and requirements results in more efficient agency administration of cleanup programs; however, it cannot eliminate thejointjurisdiction present at most dangerous waste management facilities, it can onlyreduce and mitigate the areas ofpotential conflictbetween such jurisdictions. Due to the conceptual differences between the MTCA and RCRA programs, compliance withRCRA Corrective Action requirements, even to the extent they rely onMTCA standards, cannot automatically be deemed compliance with MTCA,just as compliance withMTCA cannot automatically be deemed'compliance with RCRA corrective action.

To summarize, Ecology emphasizes that if facilityowner/operators, through compliance with any given obligation, achieve site conditions whichlegitimately preclude or satisfy similarrequirements under another obligation, there is no reason to believe Ecology will require duplication of effort. However, in the case of a MTCA cleanup, Ecology must

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### individually review each site to ensure that corrective action is not required; in the case of a corrective action cleanup, Ecology cannot guarantee that additional cleanup under MTCA will never be necessary. In some cases, corrective action cleanups may occur at facilities which are listed on MTCA's hazardous sites list. Ecology iscommitted to developing internal agreements and guidance to facilitate removing such facilities from the hazardous sites list, as appropriate, at completion oftheir corrective action activities.

Comment

### 251: One commenterurged Ecology to make Corrective Action Management Units available to owner/operators conducting voluntary cleanups.

Response: 

### Ecology is committed to making the flexible remedial solutions which the CAMU regulations were designed to encourage available as appropriate. However, federal CAMU regulations at 

### 40CFR Part 264subpart S require that CAMUs be 

### formallydesignated and approvedbyEPA or an authorized state in the context of an agency overseen, facility-wide cleanup. When designating (or approving) a CAMU, EPA or the authorized state must specify detailed CAMU design, operating, closure and postclosure requirements. Additionally,EPA or the authorized state must make CAMU determinations and conditions available for public review and comment prior to CAMU approval. The detailed agencyapproval and oversightrequiredbyEPAfor designation of a CA!\fU precludes its use byfacility owner/operators during an independent (or voluntary) cleanup.

Comment

### 252: One commenter asserted that Ecology should, "encourage owner/ operators to fulfill non-HSWA corrective actionrequirements through implementation of voluntary cleanups conducted under MTCA"

Response: 

### Non-HSWA corrective action refers to requirements to conduct corrective action for releases to the uppermost aquifer fromRCRA regulated units, promulgatedby Ecology at WAC 

### 173-303-645. As 

### under the federal system, WAC 

### 173-303-645 requires

athree phase program for detecting, characterizing, and responding to releases to the uppermost aquifer fromregulated units. In the first phase, Detection Monitoring, facility owner/operatorsmust monitor groundwater at the downgradient edge of the regulated unitboundary for indicator parameters or constituents. Indicator parameters and/or constituents are chosen based on their ability to indicate the likelihood of a release. If

### a release isindicated through detection of an indicatorparameter and/or constituent, the facility owner/operatormust test groundwaterfor constituents listed in 

### 40CFR--Part 264 Appendix IX, and establish a groundwaterprotection standard for every constituent detected above background levels. Confirmation of a release to groundwater triggers WAC 

### 173-303-645 phase 2, 

### Compliance Monitoring. During Compliance Monitoring facility owner/operators are required to perform additional investigations to characterize the nature and extent ofgroundwater contamination. After the groundwater has been fully characterizedfacility owner/operators mayenter the third phase of WAC 

### 173-303- 645, 

### Corrective Action (also known as non-HSWAcorrective action) and must remove or treat in place all contaminants which are present in concentrations above the groundwaterprotection standard.

85The requirements ofWAC 173-303-645 are analogous to federal requirements at 40 CFR Part 264 Subpart F, and prescribe a specific approach to detection, characterization and cleanup ofcontaminated groundwater at regulated units. These requirements are considered self-implementing, in that facilityowner/operators are responsible for constructing and maintaining a detection monitoring system as a condition ofoperating a RCRAregulated unit. Although the requirements are considered self-implementing, as facilityowner/operators begin Compliance Monitoring and Corrective Action, a high degree of agency oversight is typicallyprovided (e.g., facilityowner/operators are required to report the detection ofindicatorconstituents; Ecology will reviewand approve compliance monitoring plans). Neither the current nor the proposed regulations specificallypreclude voluntary non-HSWA corrective action. Although it is feasible that a facilityowner/operator might attempt to implement the remedial requirements ofWAC 173-303-645 pursuant to a voluntary MTCA cleanup, Ecology considers it unlikely, since the agency will, under the existing regulatory scheme, already be involved in oversight of compliance monitoring requirements.

In order to ensure consistency in implementation of HSWA and non-HSWA corrective action requirements, Ecology has proposed amendments at WAC 173-303-645(11), to allowowner/operators of facilities subject to non-HSWA corrective action to fulfill the requirements for remediation ofreleases through an appropriate non-HSWA corrective action cleanup order, issued, in part, pursuant to MTCA Ecology's intent in proposing this amendment was to provide for coordination ofHSWA and non-HSWA corrective actions at any given facility. The amendment allowing Ecology to use MTCA to compel the remedial portions ofnon-HSWA corrective action in no way alters any facilities' obligations to comply with existing WAC 173-303-645 requirements. Any non-HSWA corrective action activities compelled prior to permitting would be incorporated into facilityoperating or post-closure permits at the time ofpermit issuance.

Comment253: Several commenters requested clarification of the requirements for corrective action financial assurance. One commenter specifically asserted that, "(since)

no mechanisms for estimating costs or determining financial responsibility are provided (the) impact ofthe requirements is uncertain."

Response: Financial assurance for completion ofcorrective action activities isrequiredby EPA within 120 days of selection of a final remedy. Financial assurance for correctiveaction (FACA) is also required by EPA to ensure that a facility owner/operator is able to implement any approved interim or conditional remedies. Additionally, it isEPA Region 10's policy to require corrective action financial assurance to demonstrate that a facility owner/operator has the ability to complete an agency approved RFI and/or CMS work plan.

Detailed'regulations for FinancialAssurance for Corrective Action (FACA) were proposedby EPA on October 24, 1986. These proposed regulations are being used as agency guidance pending the finalization ofnational corrective action regulations. Under the federal guidelines, corrective action costs are estimated in two parts, (1) a year-byyear current cost estimate ofrequired corrective actions in undiscounted current dollars; and (2) the sum ofthese year-by-year estimates ofcorrective action costs. FACA cost

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c

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# '" estimates must be adjusted annually to account for inflation using either recalculations in current dollars or an inflation factor derived from the most recent annual Implicit Price Deflatorfor the Gross National Product published by the Department ofCommerce. EPA requires that corrective action costs be estimated using third-party costs rather than

. first-party costs (i.e., costs ofcontractor labor rather than the owner/operator's own labor). Under EPA's guidance, facilityowner/operators may demonstrate financial

assurance through one or more of the following mechanisms from 40 CFR 264Subpart Hand 40 CFR 265 SubpartH, as applicable: trust fund, surety bond guaranteeing performance, letter of credit, financial test, or corporate guarantees.
Ecologyintends to implement FACA requirements for facility investigations on a case-bycase basis; financial assurance for completion ofremedies will be required in a manner consistent with the federal guidelines discussed above. In the context of the Alternative Authorities Initiative, Ecology anticipates that FACA will be imposed in most cases pursuant to WAC 173-34D-440( 6) which reads: "Financial assurances. The department mayrequire the potentially liable person to provide financial assurances, through a trust fund or equivalent financialmechanism approved by the department, sufficient to cover all costs ofoperation and maintenance includingcompliance monitoring and undertaking appropriate corrective measures. It is the department's expectation that such assurances will be required wherever the cleanup action includes containment and in other appropriate circumstances."

Additional financial assurance requirements could apply, as appropriate, using MTCA's provisions for incorporation ofapplicable, relevant and appropriate requirements. Ecology ispreparing additional guidance on financial assurance for corrective action and will make such guidance available as soon aspossible.EPA has published detailed guidance for estimating closure and post-closure costs. Ecology believes these guidelines could be extrapolated to address corrective action cost estimating, as appropriate. Additionally, the following reference materials may be useful in estimating corrective action costs: Means Mechanical Cost Data, Means Construction Cost Data, and Means Site Work Cost Data. Each ispublished annually by the Robert SnowMeans Company.

Comment 254: Two commenters suggested that Ecology revise the proposed definition of facility to eliminate reference to "motorvehicles, rolling stock, vessel or aircraft" and limit the revised definition to "real 

### property,'improvements and appurtenances."

Response: Comment noted. Since one of the primary goals of the Alternative Authorities Initiative and the proposed amendments is to ensure consistency between RCRA corrective actions and MTCA cleanups, Ecology sees no reason to limit the MTCA definition as suggested. Ecology reminds commenters that corrective action applicability only extends to facilities which are seeking orrequired to have a permit to manage dangerous waste and therefore would typically not include mobile sources unless such sources could be shown to have releases or potential releases ofdangerous waste or constituents at a givendangerous waste management facility.

Comment 255: One commenter asserted that Ecology's proposed regulations requiring corrective action at interim status facilities were inappropriate given that EPA willretain

87corrective action authority under RCRA Section 3008(h). This commentersuggested that a more reasonable approach would be for Ecology to "enterinto a memorandum of understanding with EPARegion 10 to assure that (Ecology) has adequate opportunity to participate in the 3OO8(h) order process." .

Response: Ecology is sensitive to the concerns of the regulated community regarding continued federal implementation of corrective actionpursuant to 3008(h) authority. As part ofEcology's application for federal authorization of a corrective action program, we

are negotiating with EPARegion 10 to include 3008(h)notification and comment provisions in the State/EPA Memorandum of Agreement. It is the stated goal of Ecology and EPA to work as partners to ensure timely, effective and efficient implementation of the RCRA program, including provisions forRCRA corrective action, in Washington.

Comment 256: One.commenterrequested clarificationregarding the event or mechanism which would trigger the obligation to institute corrective action.· 

# c

Response: Corrective action is triggered by an agencydetermination (based on an agency conducted RCRAFacility Assessment or other information) that circumstances at the facilitypose a threat or potential threat to human health and the environment and
warrant investigation to determine the presence or extent ofreleases of dangerous waste and dangerous constituents. Additionally, all operating and post-closure RCRApermits issued after the effective date of the HSWA amendments must contain provisions for corrective action (as necessary to protect human health and the environment) and schedules ofcompliance for completion of corrective action activities. Facility owner/operators who wish to conduct an independent cleanup in an attempt to achieve site conditions which preclude or satisfy corrective actionrequirements are encouraged to 

# 0 work closely with the department and to see the response to comment #243, above. _J

Comment 257: Two commenters suggested Ecology defer adoption of any corrective action requirements until EPA promulgated final corrective action regulations pursuant to 40CFR Part 264 Subpart S.

Response: Comment noted. Given the uncertainty surrounding re-promuIga tionof detailed federal corrective action regulations and the existing "double jeopardy" at dangerous waste management facilities subject to both RCRA corrective action and MTCA cleanup, Ecologybelieves it is imprudent to awaitadditional federal regulations before addressing the cleanup situation in Washington. EPARegion 10 has strongly encouraged and supported Ecology's adoption of corrective action requirements and the Alternative Authorities Initiative. Ecology notes that EPA recently finalized portions of proposed Subpart S, including the definition offacility for the purposes of corrective action, a definition ofremediation waste, and provisions for corrective action management units. These new federal corrective action provisions are reflected in Ecology's proposed rule amendments.

Comment 258: One commenter expressed concern that Ecology would "cannibalize" existing resources to fund a state corrective action initiative.

88 

# oResponse: Comment noted. Ecology believes that one of the many advantages to the Alternative Authorities Initiative is the ability of the agency to use the cost-recovery provisions ofMTCA to fund corrective action oversight.

Comment 259: One commenter suggested Ecologydefer adoption ofcorrective action for allreleases until the upcoming evaluation of the state-only program iscomplete.

Response: Commentnoted. Ecology has no plans to examine corrective action requirements in the context of the state-only program evaluation.

Comment260: Several commenters expressed support for Ecology's adoption of CAMU regulations. One commenterwrote, "(We) stronglysupport inclusion of the corrective action management unit provisions in the regulation. This action will serve to expedite corrective actions and encourage utilization oftreatment technologies..."

Response: Ecology acknowledges the support.

Comment261: One commenter supported the use ofMTCA for corrective action.

Response: Ecology acknowledges the support.

Comment262: One commenter expressed general concern regarding Ecology's proposed definition of facility for the purpose of corrective action, "I also think that the state should review their definition offacility for purposes ofcorrective action which is to include allproperty under the control of the permitted facility and that is a slightly different definition than the definition for facility. I think that's a little bit unclear and perhaps notnecessarily fair for facilities who are out trying to buy an entire quarter section just to protect their boundaries."

Response: The proposed definition offacility for the purpose of corrective action is equivalent to the existingfederal definition offacility for the purpose ofcorrective action. Ecology has adopted the corrective action definition of facility to ensure that state

overseen corrective actions are consistent with federally overseen corrective actions and
to support our application for federal authorization of a state corrective action program. Ecology agrees that the definition offacility for the purpose of corrective actionis different from other definitions offacility in that, for the purpose ofimplementing corrective action that facility definition includes "allcontiguous property". Other definitions of facility are typicallyconstrued to be limited to areas of the facility at which waste management activities occur.

. Comment 263: One commenterpointed out inconsistencies in use oflanguage in

Ecology's proposed definition of release and suggested revising the definition to read, in pertinent part, "...disposing ofdangerous waste or dangerous waste constituents as defined ..."

Response: Comment noted. Ecology has made the suggested language change, however, the suggested use of the phrase dangerous waste constituent isinconsistent with Ecology's

89intent to include in the definition ofrelease all dangerous constituents as defined for the purposes ofcorrective action at WAC 173-303-646(2)(c). The revised definition of release at WAC 173-303-040 reads: "Release means any intentional or unintentional spilling, leaking, pouring, emitting, emptying, discharging, injecting, pumping, escaping, 

# G.' leaching, dumping, or disposing ofdangerous waste, or dangerous constituents as defined at WAC 173-303-646(1)(c), into the environment and includes the abandonment or discarding ofbarrels, containers and otherreceptacles containing dangerous wastes or dangerous constituents and includes the definition ofrelease at RCW 70.105D.020(10)."

Comment 264: _ One commenter expressed concern that the proposed.definition of releases included "any" intentional or unintentional spilling, leaking, pouring, emitting...etc. The commenter asserted that the '1iteral application of this phrase is far too stringent."

Response: Comment noted. Ecology believes that corrective actions required shouldbe
commensurate with the risks to human health and the environment posed by circumstances at any given facility. As discussed in our response to comment #240, although the jurisdiction mandated by the definition ofrelease is, indeed, broad, application of corrective actionjurisdiction ismandated only "where necessary to protect human health and the environment". Ecology notes that the state definition ofrelease is consistentwith the federal release definition proposed in draft Subpart S. The reference to the definition ofrelease at RCW 70.105D.020(10) isincluded to ensure that corrective action cleanups are conducted in a manner consistent with MTCAcleanups.

Comment 265: One commenter expressed concern regarding the proposed definition of SolidWaste ManagementUnit (SWMU), asserting, "Ifthere were relatively small quantities ofmaterials containing hazardous substances releases in the past and that do not and willnot present any clear risk to human health or the environment currently or in the foreseeable future, we believe those releases should not be included in the application ofthe definition of solid waste management unit or be subject to the requirements ofa corrective action."

. Response: Ecology emphasizes that, although corrective actionjurisdiction isbroad, the

applicability is quite limited. As discussed above, a facilitybecomes subject to corrective actions as a condition of its dangerous waste management activities, thatis, by conducting regulated treatment, storage, or disposal ofdangerous waste. Even at facilities subject to corrective action, if a facility owner/operator can demonstrate to Ecology's satisfaction that conditions at the facility pose no threat to human health or the environment, the facility can exit the corrective action process at that stage (see response to comment #240). Ecology notes that a facility which is not subject to corrective action but has conditions which pose a threat or potential threat to human health or the environment may be subject to cleanup under the State Model Toxics Control Act (MTCA) or other laws.

Ecology further notes that this commenter used as an example of a potential SWMU,

. "(disposal) ofused solvents in a dry well...essentially allowing the spent solvent to be

released into the soil." At a facility subject to corrective action, such a dry well would

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### certainly be considered a SWMU. Depending on the regulatory status of the spent solvents disposed and the dates of disposal, the dry 

### well could be considered a dangerous waste managementunit and operation of such a unit could cause a facility to become subject to corrective action. Ecology wouldlikely require that such a unit be Investigated completelybefore making a determination regarding the risks or potential risksposedby the unit and the necessity for active remediation or corrective action at the Facility.

Comment

### 266: One commenterpointed out that, although Ecology requires corrective action, as necessary to protecthuman health and the environment, for all releases of dangerous waste or dangerous constituents, the proposed regulations for information submittal required facility"owner/operators to submit onlyinformation on SolidWaste Management Units.

Response: 

### Comment noted. Ecology has revised the proposed regulations to eliminate this inconsistency and require facilityowner/operators to submit information on known releases ofdangerous waste or dangerous constituents (as defined for the purposes of corrective action) in addition to the information required for SWMUs. New section WAC 173-303-806(4)(a)(xxiv) reads:

"(xxiv) Information requirements for knownreleases. (A) The following information isrequired for any and all known releases .ofdangerous waste and dangerous constituents (as defined by WAC 173-303-

646(2)(c)) at the facility. (1) The location of the release on the topographic map required under paragraph (xviii) of this subsection. (2) General dimensions of the release and any relevant structural description. For example, if the release is

### from a storage tank, provide a structural description of the tank. Supply any available drawings. (3) Time frame over which the release occurred. (4) Specification of all dangerous waste or dangerous constituents (as definedbyWAC 173-303-646(2)(c))present in the release, to the extent available."

Comment

### 267: One commenter asserted that requiring corrective action for all releases would result in a program far more complicated than the federal corrective action program, writing, "please do not codify an exceedance offederal cleanup requirements, which are complex enough already. If

### the purpose of revising this legislation is inpartto make itunderstandable and implementable, adopting preexisting requirements verbatim is by far the preferable course."

Response: As 

### discussed in our response to comment #240, Ecology believes that the state corrective action program proposed under the Alternative Authorities Initiative will result in many efficiencies. We understand that the administrative procedures involved with conformingRCRA corrective actions and MTCA cleanups may seem, in the short term, unnecessarily complex. In order to further address these complexities, Ecology is committed to developing general guidance on the corrective action process and specific guidance on the more complicated aspects of corrective action implementation.

91