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• ADDENDUM TO THE MEMORANDUM OFAGREEMENT BETWEEN THE STATE OFWASHINGTON AND THE UNITED STATES ENVIRONMENTALPROTECTION AGENCY REGION 10 FOR FINALDANGEROUS WASTE PROGRAM AUTHORIZATION

AGREEMENT OF PROCEDURES FOR CORRECTIVEACTION IMPLEMENTATION AT RCRA REGULATED FACILITIES
Pursuant to the provisions found in the Memorandum ofAgreement between the State of Washington and the United States Environmental Protection Agency Region 10 for Final Dangerous Waste Program Authorization, dated November 26, 1985,hereafter "MOA", at Section II, Responsibilities ofParties, Subsection I, Provisions for Modification ofthe MOA, this modification is jointly agreed to byboth the State of Washington, hereafter "State", and United States Environmental Protection Agency Region 10,hereafter, "U.S. EPARegion 10", and is incorporated into the November 26, 1985MOA as an addendum thereto. The addendum is in writing as required, and is effective upon signature ofboth the director of the Washington Department of Ecology, and the Regional Administratorfor U.S. EPARegion 10. 

### 1 GENERAL This addendum to the November 26, 1985MOA establishes policies, responsibilities, and procedures pursuant to 40 CFR § 271.8 for operation of the State's Dangerous Waste Management Program ("State Program"). The State Program received final authorization . on January 31, 1986,under Section 3006 of the Resource Conservation and RecoveryAct

of 1976, as amended ("RCRA" or the "Act"), Pub. Law 94-59-80, 42 U.S.C §§ 6901 et seq.). This addendum to the MOA has been prepared to support the State's application for authorization ofState corrective action requirements and a State corrective action program. This addendum further sets forth the manner in which the State will coordinate withEPA in administering the State corrective action program. The State program is and will be administered bythe State ofWashington Department of Ecology ("Ecology"). This addendum willremain in effect until the State withdraws from authorization or until such time as State Program authorization iswithdrawn by EPA according to the provisions of 40CFR § 271.22, or reverts to EPA according to the provisions of 40 CFR § 271.23, or until such time as the State and U.S. EPA Region 10 modify this addendum in accordance with the terms of the MOA, or modify the MOA to supersede this addendum, or terminate the existingMOA and supplant it with another agreement.

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• II. INTRODUCTION; POLICY STATEMENT The State and U.S. EPARegion 10 working in partnership have developed an innovative and precedent setting program for implementation ofRCRA corrective action requirements at dangerous waste managementfacilities in Washington. This program is referred to as the alternative authorities initiative. Underthe alternative authorities initiative, the State may implementRCRA corrective action requirements using an enforceable order or decree issued pursuant to the State cleanup'authority, the Model ToxicsControl Act ("MTCA") and its implementing regulations Chapter 173-340 WAC. The State and U.S. EPARegion 10are committed to successful implementation of the alternative authorities initiative and have entered into this agreement, in part, to ensure such success. Each of the parties to this agreement is responsible for ensuring that its obligations under RCRA and under this agreement are met. The Director and the Regional Administrator agree to maintain a high level ofcooperation and coordination between the State and U.S. EPA Region 10staffto assure successful and effective administration of the State corrective action program. The State has primary authority and responsibility for all aspects ofthe authorized dangerous waste program, including the authorized State corrective action program. U.S. EPARegion lO'sprimary responsibility under this agreement is oversight of the authorized State Program. The purpose of U.S. EPARegion 10's oversight is to ensure that progress on environmental objectives is being made and environmental laws are being implemented in a consistent manner. EPA retains responsibility to ensure full and faithful execution of the requirements ofRCRA, including direct implementation of authorized requirements in the event the State is unable or unwilling to act.
EPAhas promulgated regulations which provide for the orderly transfer ofRCRA provisions from federal to State administration followingState authorization. States with authorization under Section 3006(b) ofRCRA, 42U.S.c. § 6926(b), have a continuing obligation to maintain a hazardous waste program that is equivalent to the federal RCRAprogram. EPA has a continuing obligation to oversee the administration and enforcement ofRCRA in authorized states. The Hazardous and Solid Waste Amendments ("HSW 

### N') to RCRA and the federal program for which a state is not authorized remainthe responsibility ofEPA for administration, enforcement and implementation.
III. STATE PROGRAM REVIEW U.S. EPA Region 10 oversight andreview of the State corrective action program shall be in accordance with the existing MOA, its attachments and amendments. EPA agrees to conduct its oversight of the State Program in a manner consistentwith the principles outlined in the Region 10 Oversight Policy.

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• IV. INFORMATION SHARING AND AVAILABILITY Information exchange and availability relating to the State corrective action program shall be in accordance with the existing MOA, its attachments and amendments.
V. IMPLEMENTATION OF THE CORRECTIVEACTION PROGRAM
A. RCRA Facility Assessments (RFAs)
A RCRA facilityassessment is typically the first step in implementation ofcorrective action requirements. The State and EPA agree that the purpose of a RCRA facility assessment is to identify all solidwaste management units at a facility and to evaluate those units in terms ofreleases or potential releases ofhazardous waste and/or hazardous constituents. The State agrees that all State-conducted RCRA facility assessments shall include a preliminary review ofavailable information of the facility and a visual site inspection to confirm historical information and to inspectfor evidence ofreleases. If releases are observed or suspected, a sampling visit may be conducted to assess contamination. Ecology agrees to perform or provide for a RCRA facility assessment at all facilities seeking or required to have a permit under RCRA. EPA and Ecology agree to negotiate schedules for the State to implement RCRA facility assessments for facilities subject to RFAs during annual negotiations of the grantworkplan

. B. Corrective Action Implementation Pipeline The corrective action implementation pipeline includes the following tasks:



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### * Investigation ofreleases; Characterization ofreleases, potentially contaminated media, and routes of exposure which may effecthuman health andthe environment; Study ofpotential releases; Study ofpotential corrective measures; Planning ofcorrective action measures; Selection of clean up standards, corrective measures, and enforceable performance standards that ensure the effectiveness of the remedy, after allowing for public participation in the selection process; Implementationofcorrective measures; Monitoring of the long-term effects ofcorrective measures.


# • The corrective action implementation pipeline may include additional tasks. Ecology has authority under Chapter 70.105 RCW and/or Chapter 70.105D RCW to compel owner/operators ofRCRA facilities to complete all corrective action pipeline tasks identified above.
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• C. Corrective Action Financial Assurance The State and U.S. EPARegion 10agree that requirements for corrective action financial assurance benefitregulatory agencies by ensuring adequate resources are available to complete corrective actions. Ecology may compel owner/operators of facilities subject to corrective action to fulfilltheir corrective action obligations through implementation of an enforceable order or decree issued pursuant to the State cleanup authority, the Model Toxics Control Act. Ecology has promulgated regulations at WAC 173-303-646(2) which require financial assurance for corrective action activities at dangerous waste management facilities. Ecology agrees to require financial assurance for completion ofcorrective action activities in accordance with WAC 173-303-646(2) and/or WAC 173-340-440(6).

. D. Public Participation in Corrective Action Remedy Selection The State andU.S. EPA Region 10agree that adequate provisions for public participation in corrective action remedy selections are an integral part ofthe corrective action program, that adequate public participationbenefits regulatory agencies, and that regulatory agencies have

## aresponsibility to provide for adequate and meaningful public participation opportunities. Federal implementation ofcorrective action provides for public participation in corrective action remedy selections. Ecology has public participationprovisions in the Dangerous Waste Regulations and in the Model Toxics Control Act Regulations. Ecology agrees to provide for public participation, including public participation in selection ofcorrective action remedies, which, at a minimum, includes the following: o Public Mailout. Ecology agrees that public notice shall be mailed to persons who reside within the potentially affected vicinity of the proposed corrective action remedy. The potentially affectedvicinity will include all property adjoining the facility and any other areas Ecology determines to be directly affected by the proposed corrective action remedy. The public shall be given a minimum of thirty (30) days to provide comment on the proposed corrective action remedy, unless other authorized program requirements are applicable.

o Newspaper Notice. Ecology agrees that notice of the proposed corrective action remedy will be publishedin the newspaper of the largest circulation in the city or county of the proposed action by display ad, legal notice, or other appropriate format. Notice of the proposed corrective action remedy willconcurrentlybe mailed to any other news media whichEcology determines to be appropriate. The public will be allowed a minimum of thirty (30) days to provide comment on the proposed corrective action remedy, unless other authorized program requirements are applicable

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# • o Public meeting. Ecology agrees that if, during the public comment period, ten or more persons request a public meeting on the proposed corrective action remedy, Ecology will hold a public meeting for the purpose of receiving public comments.



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• E. Cleanup standards and levels; Remedy selection The State and U.S. EPARegion 10 agree that consistent, environmentally protective cleanup standards and levels are essential to the success of a corrective action program. The 'State and U.S. EPARegion 10 agree that consistency between environmental

. agencies in application ofavailable cleanup standards and levels is preferred.
EPAhas drafted proposed national cleanup standards, published as proposed rules in the July 27, 1990,Federal Register (55 FR 30798) and referred to as the "draft Subpart S" rules. The State and U.S. EPARegion 10understand that the State is not being authorized for provisions of the proposed rule referred to as "draft subpart S". EPA's minimum national standards rely on an acceptable riskrange for corrective actions of 10-4 to**1O~** for carcinogenic substances and no observable adverse health effects for noncarcinogenic substances. Ecology may implement corrective action requirements using an enforceable order or decree issued pursuant to the Model Toxics Control Act. The Model ToxicsControl Act Regulations establish minimum State cleanup standards of cumulative carcinogenic risk no greater than 10-5; risks from individual carcinogens at no greater than**10~** for residential sites and 

### 10-5for industrial sites; and for non-carcinogenic substances with similar health effects, a hazard index of no greater than (1). Ecology willestablish site and media specific corrective action cleanup levels and select final corrective action remedies using the MTCA cleanup standards. The State agrees that site specific cleanup levels will, at a minimum, be no less stringent than those required under RCRA. The State and EPA acknowledge that as of the effective date of this Addendum, RCRA and the regulations promulgated thereunder require corrective action provisions be included in RCRA permits as necessary to protect human health and the environment, but do not contain provisions for media specific cleanup standards or levels. The State and EPA agree that in the absence of final media specific cleanup levelsunder RCRA, State cleanup levels will be evaluated against the proposed media protection standards calculated pursuant to proposed 40 C.F.R. § 264.525(d) (located in draft Subpart S). In the event that EPA promulgates final cleanup levels applicable to RCRA, the State shall ensure that the State cleanup levels will, at a minimum, be no less stringent than those required under RCRA, in accordance with the applicable authorization requirements. The State and U.S. EPARegion 10 agree that site and media specific cleanup levels calculated using the MTCA cleanup standards may be more stringent than Federally calculated cleanup levels. The State and EPA acknowledge that in the case ofFederally overseen corrective actions where achievement ofFederally selected final remedies does not achieve compliance with MTCA cleanup standards, the State may require additional cleanup under iridependent State authority. In orderto minimize circumstances where sequential and potentially duplicative cleanups may be

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• necessary, U.S. EPA Region 10intends to considerthe media protection standards established pursuant to the MTCAregulations when selecting corrective action remedies. U.S. EPARegion 10further intends to provide opportunities for Ecology to participate in the federal peer review panel for final corrective action remedy selections.
F. Coordination ofState and Federal Actions The State and U.S. EPA Region 10 agree that consistent coordination and communicationbetween regulatory agencies is important to successful implementation of a corrective action program. In order to foster such coordination and communication, U.S. EPARegion 10and Ecology intend to inform each other as early as possible of anticipated or pending corrective action orders. At a minimum, anticipated Federal and State actions will be coordinated through annualnegotiations of the grant workplan and periodic sites meetings. G. Applicable, Relevant and Appropriate Requirements (ARARs) The Model Toxics Control Act contains provisions for incorporating applicable, relevant and appropriate requirements (IARARs") from otherlaws into cleanup decisions. Ecology will use the ARAR process to the extent required by RCW 70.105D.030(2)(d) and WAC 173-340-710. Ecology intends to use the ARAR process under MTCA constructively, and willnot allow application ofMTCA ARARs to unduly delay issuance ofRCRAorders orpermits

. H. Corrective Action Requirements in State Issued Permits The State agrees to specify corrective action requirements and schedules of compliance for corrective action into all State issued dangerous waste management permits. Corrective action and schedules ofcompliance for corrective action shall be either incorporated into permits by reference at the time ofpermit issuance, or be incorporated into existingpermits as permit conditions using the permit modification process. 

### 1 Data management The State and U.S. EPARegion 10agree to track corrective action data in the RCRA Information System, in accordance with the RCRIS Memorandum ofUnderstanding.
VI. PROVISIONS FOR ENFORCEMENTAND COMPLIANCE MONITORING The State has primary responsibility for compliance and enforcement within the authorized State Program and under state authority and regulatory authority. EPA retains responsibility for ensuring fair and effective enforcement offederal requirements and a credible national deterrence to noncompliance through an effective State/federal enforcement partnership and in an oversight role .

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# • Enforcement and compliance monitoring shall be in accordance with the MOA and the current applicable StatelEPA Umbrella Compliance Assurance Agreement.
VII. TRANSITION FROM FEDERALADMINISTRATION TO STATE ADMINISTRATION OF CORRECTIVEACTION Upon the effective date ofauthorization, the State will begin to administer and enforce corrective action requirements within the State of Washington. U.S. EPARegion 10 actions which fall under the federal omnibus authority ofSection 3005(c)(3) ofRCRA, 42U.S.c. § 6925(c)(3), and/orwhich are federal enforcement authorities, including actions issued pursuant to Sections 3008(h), 3013, or 7003 ofRCRA, 42 U.S.c. §§ 6928(h), 6934, or 6973, willcontinue to be administered by U.S. EPARegion 10. In addition, HSWA amendments for which the State has not been authorizedwill continue to be administered and enforcedby U.S. EPARegion 10. Allpermits issued by U.S. EPARegion 10priorto final authorization of the State for corrective action willcontinue to be administered by U.S. EPARegion 10 until the issuance, or reissuance after modification, of the State permit. Upon the effective date of the issuance, or reissuance after modification, of the State permit to incorporate authorized State requirements, those EPA-issued permitprovisions for which the State is authorized to administer and enforce will expire. HSWA provisions for which the State is not authorized willcontinue in effect under the EPA-issued permit. eState and EPAworkload associated with permit transition will be addressed through annual negotiations of the grantworkplan.
VIII. OTHER FEDERALLAWS THAT MAY APPLY TO THE ISSUANCE OF PERMITS· Authorization ofthe State does not relieve facilities oftheir responsibility for compliance with otherFederallawsthat may apply to the issuance ofpermits (see 40 C.F.R. § 270.3). EPAretains responsibility for administration and/or enforcement ofthese Federal laws. EPA and the State agree to coordinate to the greatest degree possible any permit actions to which the following laws may apply: The Wild and Scenic Rivers Act, 16U.S.c. § 1273, et seq.; the National Historic Preservation Act of 1966, 16U.S.c. § 470, et seq.; the Endangered Species Act of 1966, 16U.S.c. § 1531, et seq.; (including the consultation provision ofsection 7); the Coastal Zone Management Act, 16U.S.c. § 1451, et seq.; and the Fish and Wildlife Coordination Act, 16U.S.c. § 661; et seq. The State agrees to consult withEPA to identify potential conflicts regarding Federal requirements and to cooperate with EPAin EPA's fulfillment of its obligations, if any, withregard to each permit issued by the State. The State agrees that, at a minimum, U.S. EPARegion 10 will be made. aware ofanticipated State actions through annual negotiations of the grant workplan and periodic sites meetings

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• IX. DISPUTE RESOLUTION The State and U.S. EPARegion 10agree to pursue informal, staff- level dispute resolution to the maximum extent possible. In cases where informal, stafflevel dispute resolution is not effective, a straight-forward formal dispute resolution procedure will be used. Whenever EPA or State personnel directly involved in the implementation of this agreementjudge that a problem exists or that this agreement is not being followed, the issue should be resolved at the Program Manager and Branch Chieflevels of the State and EPA, respectively. Ifthe State ProgramManager and EPABranch Chiefcannot reach agreement, the issue will be elevated to the AssistantDirector and DivisionDirector levels ofthe State and EPA, respectively. Ifthe State Assistant Director and EPADivision Director cannot reach agreement, the issue will be elevated to the Director of the Washington Department of Ecology and the Regional Administrator of U.S. EPARegion 10 for final resolution. When necessary, the U.S. EPARegion 10Assistant Regional Administrator for Washington Operations will be responsible for coordination of the dispute process and for preparing any necessary documentation.
X. DISCLAIMER This agreement and any procedures established to implement this agreement do not constitute rulemaking under 5 U.S.c. § 551 et seq. or RCW 70.105, RCW 70.105B,RCW 70.105D and RCW 90.48, and may not relied upon by any person to create a right or benefit, substantive or procedural, enforceable at law or in equity by any person, other· than the parties to this agreement, for alleged or actual breach of this agreement. XI. SIGNATURES



# • .U.S. Environmental Protection Agency, Region 10 Regional Administrator
By:

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8 State ofWashington Department of Ecology Director
By:

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