CORRECfIVE ACfION

Introduction. Washington is seeking federal authorization of a state corrective

action program. Currently, corrective action requirements are implemented by EPA

Region 10 in accordance with RCRA Sections 3004(u), 3004(v), and 3008(h) and with

regulatory requirements at 40 CFR § 264.101. The proposed state corrective action

program, as specified in these regulation amendments, will be more stringent in

implementation requirements than the existing federal program but will not subject

additional facilities to corrective action (with the exception of state-only dangerous waste

treatment, storage, recycling, or disposal facilities which will become newly subject to

corrective action as a result of this rulemaking).

Corrective action will be only one aspect of Washington'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 program would 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 of Washington citizens.

In designing a state corrective action program, Ecology has attempted to find a balance

between the preventative and corrective action aspects of dangerous 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 of Facility to ensure equivalency and

consistency with the federal corrective action program. The revised definition

emphasizes that, for the proposes of implementing corrective action imposed pursuant to

WAC 173-303-646(2) or (3), the term facility encompasses all contiguous property under

the control of an owner/operator seeking or required to have a dangerous waste

management permit (including an interim status permit) under the provisions of RCW

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 temporary units.

Ecology has added definitions of release, remediationwaste, solid waste

management unit, corrective action management unit, and temporary unit

To ensure consistency between corrective actions undertaken pursuant to WAC

173-303-646(2) or (3) and cleanups conducted under the Model Toxics Control Act

(MTCA) and to facilitate corrective action under the alternative authorities initiative, the

new definition of release includes the MTCA definition of release at RCW

70.105D.020(10).

Definition of dangerous constituent Ecology has defined dangerous constituent at

WAC 173-303-646(l)(c) only for the purposes of implementing corrective action. To

ensure consistency between corrective actions undertaken pursuant to WAC 173-303-

646(2) or (3) and cleanups conducted under the Model Toxies Control Act and to

DRAFT - 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 of petroleum products in the

definition of hazardous substance at RCW 70.105D.020(5) will not conflict with any

Federal or State exclusions for petroleum or petroleum contaminated media or debris

under RCRA. Ecology will continue to allow all applicable petroleum specific RCRA

exemptions to petroleum contaminated wastes 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 prior to 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 order or a final dangerous waste

management permit. For more 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 facilities are required by WAC 173-303·645 to conduct a

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. In order to facilitate coordination of non-HSWA corrective action and corrective

action under WAC 173-303-646(2), Ecology may allow owner/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 Toxies Control Act will not constitute compliance with the .

requirements for non-HSWA corrective action under WAC 173-303-645. Ecology intends

that non-HSWA corrective action requirements imposed pursuant to the MTCA will be

equivalent in scope and stringency to conventionally imposed non-HSWA corrective

actions requirements. For clarification, 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 of facilities seeking or required to have a permit for treatment, storage,

recycling, or disposal of dangerous waste must conduct corrective action for all releases

of dangerous wastes and dangerous constituents at the facility, including any and all from

Solid Waste Management Units (SWMUs). Corrective action is required regardless of

the time at which waste was managed at the facility or in SWMUs and regardless of

whether the facility or SWMU was intended for the management of solid or dangerous

waste.

Washington's requirements for corrective action for all releases of dangerous

waste and dangerous constituents are more stringent than federal corrective action

requirements at 40 CFR § 264.101. Under the federal system, corrective action

DRAFT· CORRECfNE ACfION PREAMBLE, PAGE 2

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requirements 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 stringency will benefit the agency and the

regulated community by, (1) Improving the efficiency of cleanups, by addressing sites

holistically instead of in 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 of the Model Toxies Control Act by conforming RCRA and MTCA

cleanup responsibilities and standards (no more double jeopardy), (3) Reducing

duplication of effort between Ecology programs, and (4) Reducing regulatory confusion

and the regulatory burden at facilities subject to corrective action.

Owner/operators of dangerous waste management facilities must implement

corrective action, as necessary to protect human health and the environment, for releases

which have migrated beyond the facility boundary. Ecology's requirements for corrective

action beyond the facility boundary are more stringent than federal requirements,

Ecology is not limited 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 of owner/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 may require owner/operators of dangerous 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 facility permit, corrective action

requirements imposed pursuant to the MTCA and a schedule of compliance for such

corrective actions will be incorporated into the permit at the time of permit issuance.

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 extent required by RCW 70.105D.030(2)(d) and WAC 173-340-710.

Implementation of corrective action requirements using the MTCA is known as

the Alternative Authorities Initiative. The alternative authorities initiative was

established to provide a mechanism for states with existing environmentally 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 program which relies on the Model Toxies Control Act (MTCA)

regulations to implement corrective action requirements. The alternative authorities

initiative represents a truly innovative and cooperative effort between state and federal

agencies to untangle the complexities of environmental cleanup requirements.

Authorization of Ecology's alternative authorities initiative will be the first EPA

authorization of a state alternative authority and will serve as the national model.

Ecology intends that corrective action requirements imposed pursuant to the

MTCA will be equivalent in scope and stringency to conventionally imposed corrective

DRAFT - CORRECfNE ACfION PREAMBLE, PAGE 3
actions. 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 will not constituent

compliance with the corrective action requirements of WAC 173-303-646(2). C·

It is 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 order or permit issued pursuant to RCW 70.104

and Chapter 173-303 WAC, independent of any potential requirements for a facility to

conduct a cleanup under the MTCA The ability to impose corrective action

requirements pursuant to the MTCA is a regulatory option which will be implemented at

Ecology's discretion.

Corrective Action Management Units (CAMUs). The Director of Ecology may

designate an area of a facility as a corrective action management unit (CAMU) for

purposes of implementing the corrective action requirements of WAC 173-303-646(2).

Placement of remediation waste into or within a CAMU does not constitute land disposal

of dangerous waste, and consolidation or placement of remediation wastes into or within

a CAMU does not constitute creation of a new unit subject to the minimum technology

requirements of WAC 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 in WAC 173-303-646(4), (5), and (6) are equivalent to

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 other waste, from off-site (except that

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 by Ecology in a I

corrective action order or a final dangerous waste management facility permit. Facility

owner/operators requesting a CAMU must provide Ecology with information sufficient to

make a CAMU determination. Ecology must provide opportunity for public review and

comment on all CAMU determinations.

It is Ecology's intent to use the CAMU provisions of WAC 173-303-646(4), (5),

and (6) to facilitate more environmentally protective, 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 of remedialwastes.

Ecology must specify the following when establishing a CAMU, (1) The areal

configuration of the CAMU, (2) Requirements for groundwater monitoring which 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 occur from areas of the CAMU where

waste will remain after CAMU closure, (3) Requirements for CAMU closure which are

consistent with 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

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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 may incorporate a regulated unit into a .

CAMU only if the regulated unit is closed or closing (per WAC 173-303-610) and its

inclusion will enhance 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 specific requirements 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 tank and container units (WAC 173-303-646(7». The Director of

Ecology may designate a temporary tank or container unit for the purposes of

implementing corrective action requirements. In designating a temporary tank or

container unit, the Director may determine that a design, operating, or closured standard

applicable to a tank or container unit may be replaced by alternative requirements which

are protective of human health and the environment. Temporary units must be located

within the facility boundary and may operate for only one year, except that under the

specific provisions of WAC 173-303-646(7)(e) temporary units may be allowed to operate

for one additional year. As with Corrective Action Management Unit determinations,

the Director must 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 wells regulated by the permit by rule provisions of WAC 173-303-

802 and permitted after November 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 owned treatment works regulated by the permit by rule provisions of WAC 173-

303-802 and permitted after November 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 at facilities applying for a final dangerous waste management

permit. Owner/operators of facilities applying for a final dangerous waste management

permit are required by WAC 173-303-S06(a)(xxiii) to submit information on all solid

waste management units in Part B of the permit application. Equivalent to federal rules

were promulgated in the December 1, 1987 Federal Register (52 FR 45788).

DRAFT - CORRECfIVE ACTION PREAMBLE, PAGE 5
FINAL 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 of hazardous 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 of dangerous waste in a faeility or on the

land 'N'ith the intent of lea'lmg st:tch dangerous waste at clost:trei::::~~mtEi.P.lj

£R1~~I~a::HUm!$.iI§9Jt\ll and includes, but is not 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 concrete vault or bunker intended for disposal purposes.

" DRAFf - 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

DRAFT - Corrective Action Rule Changes, Page 2

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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

e WAC 173-303-645 Releases from solid waste maaagemeat 1:lnits R~m~Iff91j fiilil):j:l.Jj. . . ·",··w··.·.···.w·,·.·~="'<"',M

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

645 (1)(a)(ii) All solid waste management units must comply with the

requirements in s1:lbseetion (12) of this seetion :\¥I;.,@fli~~_$l. Regulated

units (as defined in WAC 173-303-040) must cOmplY···Wiihthe~requ1rements of

subsections (2) through fl-l7 (12) of this section, in lieu of s1:lbsectioa (12) of this

seetioa Yl~I?~:l.i~r_~l, for purposes of detecting, characterizing, and

respondmg"t()·»'reIeases·"io~ifieuppermost aquifer. The idtf~niat6.fifinancial

~;~~~b~O~:;:;:::;o:m~~ of tbiose~

14. WAC 173-303-645(12)

645 (12) Correcti-ve actioa {or solid waste maaagemeat l:inits.

15. WAC 173-303-645(12)

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

DRAFT - Corrective Action Rule Changes, Page 3
16. WAC 173-303-646

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17. 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 injection wells with an

underground injection control (UIC) permit for underground injection shall have

a permit by rule if the owner or operator has 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 144.14 and applicable state waste discharge rules. EdtlfH6m~Jj.f$u.$:d

_~~'!!:n numbers. However, underground injection wells disposing of EHW 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 issued by EPA under section 3008(h) of RCRA or other federal

authority, by the department under chapter 70.105 RCW or other 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 173-303-830 Appendix I

=

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Corrective Action Reg. Changes

1. WAC 173-303-040

"Corrective action management unit" or "CAMU" means an area within a

facility that is designated bv the Director pursuant to WAC 173-303-646(4)(5) and

(6) for the purpose of implementing the corrective action requirements of WAC

173-303-646(2). A CAMU shall onlv be used for the management of remediation

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 of hazardous 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 of dangerous waste. A facility mav consist of several

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 of implementing 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 a permit under the provisions of RCW 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 of dangerous 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 salt bed formation, underground mine

Corrective Action Reg. Changes, Page 1
5.

or cave, or placement in a concrete vault or bunker intended for disposal

purposes.

WAC 173-303-040

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

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, or a corrective

action management unit.

c

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, corrective action management unit. 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 or unintentional spilling, leaking, pouring,

emitting, emptying, discharging, injecting, pumping, escaping, leaching, dumping,

or disposing of dangerous wastes or dangerous constituents as defined at WAC

173-303-646(1)(c), into the environment and includes the abandonment or

discarding of barrels, containers and other receptacles containing dangerous·

wastes or dangerous constituents and includes the definition of release at RCW

70.105D.020(10).

8. WAC 173-303-040

"Remediation Waste" 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 of implementing

corrective action requirements imposed pursuant to WAC 173-303-646(2) or (3).

For a given facility. remediation wastes mav originate 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 facility boundarY.

Corrective Action Reg. Changes, Page 2

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9.

10.

WAC 173-303-040

"Solid Waste Management Unit" or "SWMU" means any discernible

location at a facility. as defined for the purposes of corrective action. where solid

wastes have been placed at anv time. irrespective of whether the location was

intended for the management of solid or dangerous waste. Such locations include

onv area at a facility at which solid wastes. including spills. have been routinely

and systematically released. Such locations include regulated units as defined bv

Chapter 173-303 WAC. .

WAC 173-303-040

"Temporarv Unit" or "TU" means a tank or container unit used temporarilv

for treatment or storage of remediation waste. that is designated by the Director

pursuant to WAC 173-303-646(7) for the purpose of implementing 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

facility requirements 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 solid waste management 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 comply with the requirements of

subsections (2) through fH1 (12) of this section, in lieu of subsection (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 of subsection (P) of this section WAC 173-303-646(2)

apply to corrective action at regulated units.

14. WAC 173-303-645(12)

645 (12) Corrective action for solid waste management units.

Corrective Action Reg. Changes, Page 3
15. WAC 173-303-645(12)

(12) Use of the Model Toxics Control Act.

(a) The department may require the owner/operator of a facility to fulfill

his corrective action responsibilities under WAC 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 of Chapter 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 a permit under the

provisions of this Chapter the department will incorporate corrective action

requirements imposed pursuant to the Model Toxics Control Act into permits at

the time of permit 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 173-303-646 Corrective Action

(1) Purpose and Applicabilitv.

(a) The provisions of this section establish requirements for corrective

action for releases of dangerous wastes and dangerous constituents including

releases from solid waste management units.

(b) The provisions of this section apply to facilities seeking or required to 0

have a permit to treat. store, reCYcle or dispose of dangerous 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 constituent which caused a waste to be listed or designated as

dangerous under the provisions of Chapter 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 of whether such facilities or units were intended for the management of

solid or dangerous waste. Assurances of financial responsibility 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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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 of financial 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 of Chapter 173-303 WAC, corrective action must be specified in the

permit. The permit will contain schedules of compliance for such corrective

action (where such corrective action cannot be completed prior to issuance of the

permit) and assurances of financial 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 of Chapter 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 a permit under the

provisions of this Chapter the department will incorporate corrective action

requirements imposed pursuant to the Model Toxics Control Act into permits at

the time of permit 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 of implementing 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 of remediation wastes, as defined in WAC 173-303-040 into

or within a CMtU does not constitute land disposal of dangerous waste,

(c) Consolidation or placement of remediation 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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(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 will remain 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) In establishing 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 will remain 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 any potential or actual releases in

and/or from the CAMU; and

(vi) Potential for exposure of humans and environmental receptors

if releases 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, specify post-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 and the 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 7
303-040) 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. 0

(b) The requirements of WAC 173-303-610,.WAC 173-303-620, WAC 173-

303-645, and the unit specific requirements of WAC 173-303-650 through WAC

173-303-680 that applied to the regulated unit will continue 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 of remediation 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 of human health and the

environment.

(b) Anv temporarY unit to which alternative 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 of remediation 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: 0

(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 of humans and environmental receptors

if releases were to occur from the unit.

(d) The Director shall specify the length of time, 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 under WAC 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 protect human 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) permit for underground injection shall have

a permit by rule if the owner or operator has 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

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 management units. All underground

injection wells must comply with WAC 173-303-060, notification and identification

numbers. However, underground injection wells disposing of EHW are prohibited.

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

802 (4)(c)(viiO For 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 by EPA under section 3008(h) of RCRA or other federal

authority, by the department under chapter 70.105 RCW or other state authority,

including an order or consent decree issued oursuant to WAC 173-303-646(2) or

Corrective Action Reg. Changes, Page 9
ill or by a court in a judicial action brought by 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 173-303-830 Appendix 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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WAC!73-303-646_and sllppoI1mg Definitions

CORRECTIVE ACl'ION

General Discussion: Corrective action rule amendments were designed to facilitate

Ecology's implementation of a RCRA corrective action program which was consistent

with (1) the philosophy of EPA'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 support its application for federal authorization

of HSWA corrective action.

Ecology received many comments regarding the proposed regulations and the program

which they mandate. Commenters expressed almost uniform support of Ecology's

__ adoption of regulations 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 of MTCA 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 addressed below; 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 following general 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 of dangerous

waste regulation.

The term "corrective action" refers to federal requirements stemming from the 1984

Hazardous and Solid Waste Amendments (HSWA) to the federal Resource Conservation

and Recovery Act (RCRA). The HSWA amendments significantly increased 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 of HSWA, Congress noted that a

significant number of hazardous waste management facilities that received RCRA

permits were becoming Superfund cleanup sites due to releases of hazardous waste and

constituents from non-RCRA units. 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 past waste management activity.

By imposing corrective action requirements on owners and operators of hazardous waste

management facilities, Congress provided EPA a mechanism to address hazardous waste

contamination without depleting the publicly funded Superfund.

73
In 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 of hazardous waste to: 1)

Institute corrective action as necessary to protect human health and the environment for

all releases of hazardous waste and constituents from any and all solid waste

management units at the facility regardless of the time at which waste was placed in such

units, and 2) Specify corrective action, schedules of compliance for such corrective action,

and assurances of financial 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 by EPA on a case-by-case basis, and to provide

assurances of financial responsibility for such corrective action.

o

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 40 CFR Part 264.. Draft Subpart S has not yet been completely finalized, however

EP A is using portions of the proposed rules as guidance in implementing 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 such duplication of effort is not

efficient, and can cause inconsistency within EPA and confusion in the regulated

community. In addition, since many contaminated sites have cleanup responsibilities

under both RCRA and Superfund, facility owner/operators are potentially liable for twoenvironmental cleanups, a Superfund cleanup and a RCRA corrective action. Ecology"

observed a similar potential for "double jeopardy" between RCRA corrective actions and

:MTCA cleanups. In considering a state corrective action program, Ecology questioned

the efficiency of establishing 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 EPA working 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 Act u",rrCA) regulations to implement

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

are performed and completed in a manner consistent with existing State cleanup

requirements, and will significantly reduce the potential for "double jeopardy" 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 of environmental cleanup requirements. This will be the first EPA·

authorization of a corrective action program relying on an existing state cleanup

authority. It is hoped· that this program will serve as a national model for corrective

action authorization. Using this approach Ecology intends 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 of MTCA's cost-recovery provisions;

and 6) Save significant resources usually associated with "start-up" of a new regulatory

program.

It is important to note that corrective action requirements only apply to owner/operators

of facilities which treat, store, or dispose of dangerous waste in a manner which requires

a permit under the dangerous waste regulations (including facilities subject to federal

permit-by-rule). Dangerous waste generators who have operated in compliance with the

generator regulations 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 MTCA ban on administrative review

remains in effect when corrective action requirements imposed pursuant to MTCA are

incorporated by reference into RCRA permits. .

Comment 238: Several commenters asserted that the qualifying phrase, "the Director may

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 Director may designate no

CAMUs at a facility." was to emphasize the discretionary nature of Corrective 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 of implementing corrective actions

required by WAC 173-303-646(2), the Director may 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 may 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 of CAMUs. Revised WAC 173-303-646(5)(b) reads: "When

75
desiiPatini a CAMU, the Director shall specify requirements for the CAMU including

the following:"

In addition, Ecology has revised the proposed definition of a CAMU to be consistent 0

with the federal CAMU definition. The revised state CAMU definition at WAC 173-303-

040 reads: "Corrective action management unit" or "CAMU" means an area within a

facility that is designated by the Director pursuant to WAC 173-303-646(4)(5) and (6) for

the purpose of implementing the corrective action requirements of WAC 173-303-646(2).

A CAMU shall only be used for the management of remediation wastes pursuant to

implementini such corrective action requirements at the facility.

Comment 239: Several commenters asserted that the qualifying phrase, "however, when

necessary to protect human health and the environment, the department may require

remediation waste to meet land disposal standards before placement in 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 of human 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 of remediation wastes, as defined in

WAC 173-303-040 into or within a CAMU does not constitute land disposal of dangerous

~" 0

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 management units (SWMUs). Most cornmenters who

expressed this concern asserted that requiring corrective action for all releases constituted

significant expansion of the federally mandated corrective action program and suggested

Ecology limit corrective action responsibility to releases from SWMUs.

Response: Ecology believes 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

existing state (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 will apply for federal authorization of a

corrective action program which relies on the Model Toxies Control 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 CJ
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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 of MTCA 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 of RCRA corrective action requirements presented in the context of a MTCAtype cleanup. Ecology emphasizes that the Alternative Authorities Initiative does not

involve deferral of corrective 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 of permit issuance. The Alternative Authorities Initiative will be

administered and implemented by staff in 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: "Current EPA regulations do not address all releases

of hazardous constituents from solid waste management units at facilities receiving

permits under (RCRA Section) 3005(e). This could likely result in a situation 'of EPA

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

facility owner and operator and should not be shifted to the Superfund program,

particularly when a final permit 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 has the

ability to address all releases of hazardous 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 facilities operating under interim status,

should be required to address releases of dangerous waste and dangerous constituents

prior to or as a condition of permit issuance. To ensure that such facilities do not

become- a potential burden to the State, Ecology firmly 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

77
that dangerous waste management facilities should be allowed to operate with continuing

releases to the environment simply because such releases cannot be traced to waste

management units. Ecology fails to see the difference between an ongoing release to

groundwater from a processing unit and an ongoing release from a waste management C

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. Ecology believes 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 management facilities (including dangerous waste

generators) conducting independent or agency overseen MTCA cleanups by allowing

dangerous waste management facilities to defer a portion of their legitimate cleanup

obligations.

Ecology believes many of the concerns expressed over the extension of corrective action

jurisdiction to cover all releases stem from a perception that any discharge of a

hazardous substance, no matter how minor, will be subject to a fully overseen agency

cleanup or that dangerous waste management facility permits will be "held up" during

such cleanups. One commenter wrote, "Ecology should explain how it intends to make

these programs dovetail in a way that 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 of elevated levels of hazardous 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 of the

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 of information used to make this judgement. However, Ecology

would also consider the areal extent of contamination, 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 standards does 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 is based on a number

of factors in addition to the level of contamination."

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 given facility 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 from further 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 RCRA Facility Assessment (RFA), which is analogous to the MTCA Initial

Investigation/Site Hazard Ranking process. The RFA includes: (1) a desk top review of

available information of the site; (2) a visual site inspection to confirm available

information on solid waste management units at the site and to note any visual evidence

of releases; and (3) in some cases, a sampling visit, to confirm or disprove suspected

releases. Based on information gathered during the RFA or other information, Ecology

may determine that no further corrective action is required 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 under MTCA

The purpose of an RFI is to characterize the nature and extent of contamination at the

facility. Typically, the RFI Will be focused on specific concerns 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 Ecology determines, on the basis of

information generated during the RFI or other information, that cleanup is likely to be

necessary. In the third stage of corrective action the facility owner/operator will 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 Ecology determines remediation is necessary, the

Agency will specify a remedial alternative, cleanup levels, and points of compliance 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 of permitting will be

incorporated into RCRA operating and/or post-closure permits at the time of permit

issuance.

Ecology would further note that application of corrective action jurisdiction is mandated

only "where necessary to protect human health and the environment". Ecology's intent in

application of corrective action requirements will be to ensure that releases of dangerous

waste and dangerous constituents at facilities seeking or required to have' a permit are

79
adequately addressed or remediated so that such facilities do not pose an ongoing threat

to human health or the environment.

Comment 241: Similar to the concern expressed over corrective action for all releases, 0

' many commenters asserted that the proposed definition of dangerous constituent was

overly broad. Most commenters who expressed concern over the scope of the proposed

definition suggested that Ecology limit dangerous constituents to those defined by 40

CFR Part 261 Appendix 8 and 40 CFR Part 264 Appendix 9.

Response: In order to ensure consistency between'MTCA cleanups and corrective action

cleanups, Ecology believes it is important to include in the definition of dangerous

constituent all substances potentially regulated by MTCA

Although Ecology's jurisdiction under the proposed definition of dangerous constituent is

broad, by specifically referencing constituents listed in 40 CFR'Part 261 Appendix VIII

and 40 CFR Part 264 Appendix IX, Ecology intends to emphasize those constituents as

the substances most likely to be of concern 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 of dangerous wastes and dangerous constituents which, based on available

information, are likely to have been releases at a particular site. Only where very little is

known of waste characteristics or where there is the potential for a wide spectrum of

dangerous wastes or constituents to be released (such as, at a commercial dangerous

waste management facility) would facility owner/operators routinely be required to

perform extensive analysis for a broader spectrum of constituents. .

Comment 242: One conimenter suggested Ecology use an existing term to define the

universe of substances subject to corrective action.

Response: Ecology recognizes that the proposed definition of dangerous constituent and

existing definition of dangerous 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. __

Ecology recognizes that there may be inconsistencies in the current rules. It is because

of those potential inconsistencies that Ecology proposed a definition of dangerous

constituent "for the purposes of corrective action" and placed the proposed definition at

WAC 173-303-646(c) instead of WAC 173-303-040. Ecology regrets that conforming the

regulatory use of the 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 since those

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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are included in the definition of hazardous substances promulgated at WAC 173-340-200,

and by reference in the definition of dangerous constituent proposed at WAC 173-303-

646(c). We understand that these references could cause the appearance of joint

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 all properties of mixed waste

subject to dangerous waste regulations and can respond properly to spills of mixed

wastes. The department sees no compelling reason to specifically exempt radionuclides

from the definition of dangerous constituent at this time. Ecology will consider cleanup

actions taken under other statutory and regulatory authorities,· including the AEA, when

assessing the necessity for corrective action.

Comment 244: One commenter specifically questioned Ecology's legal authority to

include hazardous substances in the proposed definition of dangerous constituent,

asserting that Ecology's legal authority under RCW 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 heavily on RCW Chapter 70.105D,

Ecology notes that they are consistent with the statutory mandate at RCW 70.105.005(1),

which states, in part: 'The health and welfare of the people of the state depend on clean

and pure environmental resources unaffected by hazardous waste contamination."

Comment 245: 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/operator from conducting a MTCA

independent cleanup action in an attempt to achieve site conditions that would preclude

or satisfy corrective 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 of independent actions will be required within the

corrective action context, rather than to prohibit such actions. The draft language should

be modified to reflect this emphasis." -- .

Response: Ecology apologizes for the confusion caused by our imprecise language. OUf

intent was, indeed, to emphasize that agency approval/acceptance of independent MTCA

actions would be required within the corrective action context. Our intent 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 include certain threshold corrective

action requirements. Such requirements may be incorporated into independent cleanups

through MTCA's provisions for application of applicable and relevant and appropriate

requirements (ARARs). Threshold corrective action requirements include: 1) The

independent corrective action cleanup must address all contiguous property under the

control of the facility owner/operator; 2) The independent corrective action cleanup

81
must explicitly address all current and historic solid waste management units (including

RCRA regulated units) at a facility and must assess those units releases and/or potential

releases. Information on agency identified solid waste management units at a particular

dangerous waste management facility may be obtained by requesting a copy of the

RCRA Facility 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 Of Information Offices at EPA Region 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 will address this issue more completely through development of guidance for

owner/operators of RCRA facilities 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/or EPA) must

independently assess each dangerous waste management facility in the corrective action

context to determine if corrective action is necessary given facility specific conditions. In

the case of a facility which had undergone a complete independent MTCA cleanup such

that facility conditions did not warrant additional corrective action, Ecology could remove

the facility from corrective action consideration following the agency conducted RCRA

Facility Assessment (RFA). -

Comment 246: Several commenters objected to corrective action for all releases and the

definition of dangerous 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 of corrective action. One

commenter wrote, "(we) strongly oppose any new state-only requirements that are not

accompanied by detailed analysis of the need for exceeding federal requirements and the

costs of such regulations, including both public and private costs."

Response: Ecology's strategy for implementation of corrective action is discussed in some

detail in the response to Comment #240. Ecology believes that the proposed corrective

action program represents a consolidation of existing regulatory obligations and doesnot

involve promulgation of "new" requirements. Ecology's proposed corrective action --

regulations are based on existing regulations 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 cost reduction could be substantial for

sites that under current rules might have been subject to two clean-ups. A small business

economic impact statement is not required for rules that lower costs.

Comment 247: Several commenters suggested Ecology defer 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 discussed program implementation in our response to comment #240.

While Ecology understands 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 action implementation plan, Ecology is

currently preparing a detailed application for federal authorization of a State corrective

action program based on the proposed regulations. The draft application includes

detailed discussions of potential workload and resource impacts on Ecology's Regional

and Headquarters offices and of corrective action implementation. The completed

authorization application will be formally submitted to EPA Region 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-scale remedial projects.

Response: Comment noted. If an owner/operator believed a CAMU was unnecessary for

his/her remedial project or believed a CAMU would constitute a burden to the remedial

project, he or she is under no obligation to propose or construct a CAMU. Due to the

discretionary nature of corrective action management units, Ecology believes it is unlikely

their requirements will constitute a burden to small-scale remedial projects.

Comment 249: Three commenters asserted that inclusion of petroleum products in the

proposed definition of dangerous constituent was problematic, "causing, for example,

RCRA permits to require cleanup of petroleum hydrocarbons, which are exempt from

RCRA."

Response: RCRA does not include a blanket exemption for petroleum products; releases

of petroleum and petroleum products at dangerous waste management facilities are

subject to RCRA corrective action. Ecology believes commenters 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.

Comment 250: One commenter requested clarification of the relationship of corrective

actions imposed pursuant to MTCA to non-corrective action MTCA cleanups and

asserted that, "the RCRA program should not only use MTCA for enforcement, but

should recognize cleanups achieved under MTCA. Now that Ecology is making no

further action letters available, TSD operators who have performed an independent

cleanup under 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, Ecology will not apply MTCA later. This

coordination is especially important in light of the proposed huge expansion of RCRA

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

83
action 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 action based on

information gathered during the agency conducted RCRA Facility Assessment (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 will consider cleanups conducted under other regulatory

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 of information indicating a threat or potential threat to human

health or the environment exists at a given facility. Consideration of a site for MTCA

cleanup is not automatic, the agency must decide, based on some information, that a

given site merits consideration under MTCA For this reason, 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 consistency between actual cleanup activities. Conforming the scope of cleanups

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 the joint jurisdiction present at most dangerous waste management facilities, it

can only reduce and mitigate the areas of potential conflict between such jurisdictions.

Due to the conceptual differences between the MTCA and RCRA programs, compliance

with RCRA Corrective Action requirements, even to the extent they rely on MTCA

standards, cannot automatically be deemed compliance with MTCA, just as compliance

with MTCA cannot automatically be deemed 'compliance with RCRA corrective action.

To summarize, Ecology emphasizes that if facility owner/operators, through compliance

with any given obligation, achieve site conditions which legitimately preclude or satisfy

similar requirements 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

84 o
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 is committed to

developing internal agreements and guidance to facilitate removing such facilities from

the hazardous sites list, as appropriate, at completion of their corrective action activities.

Comment 251: One commenter urged 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 40 CFR Part 264 subpart S require that CAMUs be

formally designated and approved by EPA 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 agency approval and oversight required by EPA for designation

of a CA!\fU precludes its use by facility owner/operators during an independent (or

voluntary) cleanup.

Comment 252: One commenter asserted that Ecology should, "encourage owner/

operators to fulfill non-HSWA corrective action requirements 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 from RCRA regulated units, promulgated by

Ecology at WAC 173-303-645. As under the federal system, WAC 173-303-645 requires

a three phase program for detecting, characterizing, and responding to releases to the

uppermost aquifer from regulated units. In the first phase, Detection Monitoring, facility

owner/operators must monitor groundwater at the downgradient edge of the regulated

unit boundary 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 is indicated through detection of an indicator parameter and/or constituent, the

facility owner/operator must test groundwater for constituents listed in 40 CFR--Part 264

Appendix IX, and establish a groundwater protection 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 of groundwater contamination. After the groundwater has been

fully characterized facility owner/operators may enter the third phase of WAC 173-303-

645, Corrective Action (also known as non-HSWA corrective action) and must remove or

treat in place all contaminants which are present in concentrations above the

groundwater protection standard.

85
The requirements of WAC 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 of contaminated groundwater at regulated units. These requirements are

considered self-implementing, in that facility owner/operators are responsible for

constructing and maintaining a detection monitoring system as a condition of operating a

RCRA regulated unit. Although the requirements are considered self-implementing, as

facility owner/operators begin Compliance Monitoring and Corrective Action, a high

degree of agency oversight is typically provided (e.g., facility owner/operators are

required to report the detection of indicator constituents; Ecology will review and

approve compliance monitoring plans). Neither the current nor the proposed regulations

specifically preclude voluntary non-HSWA corrective action. Although it is feasible that

a facility owner/operator might attempt to implement the remedial requirements of WAC

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

allow owner/operators of facilities subject to non-HSWA corrective action to fulfill the

requirements for remediation of releases 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 of HSWA and non-HSWA corrective

actions at any given facility. The amendment allowing Ecology to use MTCA to compel

the remedial portions of non-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

facility operating or post-closure permits at the time of permit issuance.

Comment 253: 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 of the requirements is uncertain."

Response: Financial assurance for completion of corrective action activities is required by

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 is EPA 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 Financial Assurance for Corrective Action (FACA) were

proposed by EPA on October 24, 1986. These proposed regulations are being used as

agency guidance pending the finalization of national corrective action regulations. Under

the federal guidelines, corrective action costs are estimated in two parts, (1) a year-byyear current cost estimate of required corrective actions in undiscounted current dollars;

and (2) the sum of these year-by-year estimates of corrective action costs. FACA cost

86

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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

Deflator for the Gross National Product published by the Department of Commerce.

EPA requires that corrective action costs be estimated using third-party costs rather than .

first-party costs (i.e., costs of contractor labor rather than the owner/operator's own

labor). Under EPA's guidance, facility owner/operators may demonstrate financial

assurance through one or more of the following mechanisms from 40 CFR 264 Subpart

Hand 40 CFR 265 Subpart H, as applicable: trust fund, surety bond guaranteeing

performance, letter of credit, financial test, or corporate guarantees.

Ecology intends to implement FACA requirements for facility investigations on a case-bycase basis; financial assurance for completion of remedies 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

may require the potentially liable person to provide financial assurances, through a trust

fund or equivalent financial mechanism approved by the department, sufficient to cover

all costs of operation and maintenance including compliance 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 of applicable, relevant and appropriate requirements.

Ecology is preparing additional guidance on financial assurance for corrective action and

will make such guidance available as soon as possible.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 is published annually by the Robert Snow Means Company.

Comment 254: Two commenters suggested that Ecology revise the proposed definition of

facility to eliminate reference to "motor vehicles, 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 or required 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 of dangerous waste or

constituents at a given dangerous 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 will retain

87
corrective action authority under RCRA Section 3008(h). This commenter suggested

that a more reasonable approach would be for Ecology to "enter into a memorandum of

understanding with EPA Region 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 action pursuant to 3008(h) authority. As

part of Ecology's application for federal authorization of a corrective action program, we

are negotiating with EPA Region 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 for RCRA corrective action, in Washington.

Comment 256: One. commenter requested clarification regarding the event or mechanism

which would trigger the obligation to institute corrective action.·

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Response: Corrective action is triggered by an agency determination (based on an agency

conducted RCRA Facility Assessment or other information) that circumstances at the

facility pose 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 RCRA permits

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 of compliance 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 action requirements 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 40 CFR Part 264 Subpart S.

Response: Comment noted. Given the uncertainty surrounding re-promuIga tion of

detailed federal corrective action regulations and the existing "double jeopardy" at

dangerous waste management facilities subject to both RCRA corrective action and

MTCA cleanup, Ecology believes it is imprudent to await additional federal regulations

before addressing the cleanup situation in Washington. EPA Region 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 of facility for the purposes of corrective

action, a definition of remediation 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.

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Response: 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 of MTCA to fund corrective action oversight.

Comment 259: One commenter suggested Ecology defer adoption of corrective action for

all releases until the upcoming evaluation of the state-only program is complete.

Response: Comment noted. Ecology has no plans to examine corrective action

requirements in the context of the state-only program evaluation.

Comment 260: Several commenters expressed support for Ecology's adoption of CAMU

regulations. One commenter wrote, "(We) strongly support inclusion of the corrective

action management unit provisions in the regulation. This action will serve to expedite

corrective actions and encourage utilization of treatment technologies..."

Response: Ecology acknowledges the support.

Comment 261: One commenter supported the use of MTCA for corrective action.

Response: Ecology acknowledges the support.

Comment 262: 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 of facility for purposes of corrective action which is to

include all property 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 not necessarily fair for facilities who are out trying to buy an entire quarter

section just to protect their boundaries."

Response: The proposed definition of facility for the purpose of corrective action is

equivalent to the existing federal definition of facility for the purpose of corrective 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 of facility for the purpose of corrective actionis

different from other definitions of facility in that, for the purpose of implementing

corrective action that facility definition includes "all contiguous property". Other

definitions of facility are typically construed to be limited to areas of the facility at which

waste management activities occur.

. Comment 263: One commenter pointed out inconsistencies in use of language in

Ecology's proposed definition of release and suggested revising the definition to read, in

pertinent part, "...disposing of dangerous 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 is inconsistent with Ecology's

89
intent to include in the definition of release all dangerous constituents as defined for the

purposes of corrective 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 of dangerous waste, or dangerous constituents as defined

at WAC 173-303-646(1)(c), into the environment and includes the abandonment or

discarding of barrels, containers and other receptacles containing dangerous wastes or

dangerous constituents and includes the definition of release 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 should be

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 of release is, indeed, broad,

application of corrective action jurisdiction is mandated only "where necessary to protect

human health and the environment". Ecology notes that the state definition of release is

consistent with the federal release definition proposed in draft Subpart S. The reference

to the definition of release at RCW 70.105D.020(10) is included to ensure that corrective

action cleanups are conducted in a manner consistent with MTCA cleanups.

Comment 265: One commenter expressed concern regarding the proposed definition of

Solid Waste Management Unit (SWMU), asserting, "If there were relatively small

quantities of materials containing hazardous substances releases in the past and that do

not and will not 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 of the definition of solid waste management unit or be subject to the

requirements of a corrective action."

. Response: Ecology emphasizes that, although corrective action jurisdiction is broad, the

applicability is quite limited. As discussed above, a facility becomes subject to corrective

actions as a condition of its dangerous waste management activities, that is, by conducting

regulated treatment, storage, or disposal of dangerous 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) of used 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 management unit and operation of such a unit could cause a facility to become

subject to corrective action. Ecology would likely require that such a unit be Investigated

completely before making a determination regarding the risks or potential risks posed by

the unit and the necessity for active remediation or corrective action at the Facility.

Comment 266: One commenter pointed out that, although Ecology requires corrective

action, as necessary to protect human 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 only information on Solid Waste

Management Units.

Response: Comment noted. Ecology has revised the proposed regulations to eliminate

this inconsistency and require facility owner/operators to submit information on known

releases of dangerous 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 known releases.

(A) The following information is required for any and all known releases

.of dangerous 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 defined by WAC 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 of federal cleanup requirements,

which are complex enough already. If the purpose of revising this legislation is in part to

make it understandable 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

conforming RCRA 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.

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