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ADDENDUM TO THE MEMORANDUM OF AGREEMENT BETWEEN

THE STATE OF WASHINGTON AND

THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION 10

FOR FINAL DANGEROUS WASTE PROGRAM AUTHORIZATION

AGREEMENT OF PROCEDURES FOR CORRECTIVE ACTION

IMPLEMENTATION AT RCRA REGULATED FACILITIES

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

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

Final Dangerous Waste Program Authorization, dated November 26, 1985, hereafter

"MOA", at Section II, Responsibilities of Parties, Subsection I, Provisions for

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

Washington, hereafter "State", and United States Environmental Protection Agency

Region 10, hereafter, "U.S. EPA Region 10", and is incorporated into the November 26,

1985 MOA as an addendum thereto. The addendum is in writing as required, and is

effective upon signature of both the director of the Washington Department of Ecology,

and the Regional Administrator for U.S. EPA Region 10.

1 GENERAL

This addendum to the November 26, 1985 MOA 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 Recovery Act

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 of State corrective action requirements and a State corrective action

program. This addendum further sets forth the manner in which the State will

coordinate with EPA in administering the State corrective action program. The State

program is and will be administered by the State of Washington Department of Ecology

("Ecology").

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

such time as State Program authorization is withdrawn by EPA according to the

provisions of 40 CFR § 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 existing MOA and supplant it with another agreement.
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II. INTRODUCTION; POLICY STATEMENT

The State and U.S. EPA Region 10 working in partnership have developed an innovative

and precedent setting program for implementation of RCRA corrective action

requirements at dangerous waste management facilities in Washington. This program is

referred to as the alternative authorities initiative. Under the alternative authorities

initiative, the State may implement RCRA corrective action requirements using an

enforceable order or decree issued pursuant to the State cleanup 'authority, the Model

Toxics Control Act ("MTCA") and its implementing regulations Chapter 173-340 WAC.

The State and U.S. EPA Region 10 are 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 of cooperation and coordination between the State and

U.S. EPA Region 10 staff to assure successful and effective administration of the State

corrective action program.

The State has primary authority and responsibility for all aspects of the authorized

dangerous waste program, including the authorized State corrective action program. U.S.

EPA Region lO's primary responsibility under this agreement is oversight of the

authorized State Program. The purpose of U.S. EPA Region 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 of RCRA, including direct implementation of

authorized requirements in the event the State is unable or unwilling to act.

EPA has promulgated regulations which provide for the orderly transfer of RCRA

provisions from federal to State administration following State authorization. States with

authorization under Section 3006(b) of RCRA, 42 U.S.c. § 6926(b), have a continuing

obligation to maintain a hazardous waste program that is equivalent to the federal

RCRA program. EPA has a continuing obligation to oversee the administration and

enforcement of RCRA in authorized states. The Hazardous and Solid Waste

Amendments ("HSWN') to RCRA and the federal program for which a state is not

authorized remain the responsibility of EPA for administration, enforcement and

implementation.

III. STATE PROGRAM REVIEW

U.S. EPA Region 10 oversight and review 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 consistent with 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 CORRECTIVE ACTION PROGRAM

A. RCRA Facility Assessments (RFAs)

A RCRA facility assessment is typically the first step in implementation of corrective

action requirements. The State and EPA agree that the purpose of a RCRA facility

assessment is to identify all solid waste management units at a facility and to evaluate

those units in terms of releases or potential releases of hazardous waste and/or hazardous

constituents. The State agrees that all State-conducted RCRA facility assessments shall

include a preliminary review of available information of the facility and a visual site

inspection to confirm historical information and to inspect for evidence of releases. 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 grant workplan.

B. Corrective Action Implementation Pipeline

The corrective action implementation pipeline includes the following tasks:

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Investigation of releases;

Characterization of releases, potentially contaminated media, and routes of

exposure which may effect human health and the environment;

Study of potential releases;

Study of potential corrective measures;

Planning of corrective 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;

Implementation of corrective measures;

Monitoring of the long-term effects of corrective measures.

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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 of RCRA facilities to complete all corrective action pipeline tasks

identified above.

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C. Corrective Action Financial Assurance

The State and U.S. EPA Region 10 agree that requirements for corrective action

financial assurance benefit regulatory agencies by ensuring adequate resources are

available to complete corrective actions. Ecology may compel owner/operators of

facilities subject to corrective action to fulfill their 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 of corrective 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 and U.S. EPA Region 10 agree that adequate provisions for public

participation in corrective action remedy selections are an integral part of the corrective

action program, that adequate public participation benefits regulatory agencies, and that

regulatory agencies have a responsibility to provide for adequate and meaningful public

participation opportunities. Federal implementation of corrective action provides for

public participation in corrective action remedy selections. Ecology has public

participation provisions 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 of corrective 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 affected vicinity 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 published in 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 will concurrently be

mailed to any other news media which Ecology 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. EPA Region 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. EPA Region 10 agree that consistency between environmental .

agencies in application of available cleanup standards and levels is preferred.

EPA has 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. EPA Region 10 understand 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 risk range 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 Toxics Control 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 10-5 for industrial sites; and for non-carcinogenic

substances with similar health effects, a hazard index of no greater than (1).

Ecology will establish 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

levels under 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. EPA Region 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 of Federally overseen corrective actions where achievement of Federally

selected final remedies does not achieve compliance with MTCA cleanup standards, the

State may require additional cleanup under iridependent State authority. In order to

minimize circumstances where sequential and potentially duplicative cleanups may be

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necessary, U.S. EPA Region 10 intends to consider the media protection standards

established pursuant to the MTCA regulations when selecting corrective action remedies.

U.S. EPA Region 10 further intends to provide opportunities for Ecology to participate

in the federal peer review panel for final corrective action remedy selections.

F. Coordination of State and Federal Actions

The State and U.S. EPA Region 10 agree that consistent coordination and

communication between regulatory agencies is important to successful implementation of

a corrective action program. In order to foster such coordination and communication,

U.S. EPA Region 10 and 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 annual negotiations 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 other laws 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 will not allow application of MTCA ARARs to unduly delay issuance

of RCRAorders or permits.

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 of compliance for corrective action shall be either

incorporated into permits by reference at the time of permit issuance, or be incorporated

into existing permits as permit conditions using the permit modification process.

1 Data management

The State and U.S. EPA Region 10 agree to track corrective action data in the RCRA

Information System, in accordance with the RCRIS Memorandum of Understanding.

VI. PROVISIONS FOR ENFORCEMENT AND 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 of federal 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 FEDERAL ADMINISTRATION TO STATE

ADMINISTRATION OF CORRECTIVE ACTION

Upon the effective date of authorization, the State will begin to administer and enforce

corrective action requirements within the State of Washington. U.S. EPA Region 10

actions which fall under the federal omnibus authority of Section 3005(c)(3) of RCRA,

42 U.S.c. § 6925(c)(3), and/or which are federal enforcement authorities, including

actions issued pursuant to Sections 3008(h), 3013, or 7003 of RCRA, 42 U.S.c. §§

6928(h), 6934, or 6973, will continue to be administered by U.S. EPA Region 10.

In addition, HSWA amendments for which the State has not been authorized will

continue to be administered and enforced by U.S. EPA Region 10.

All permits issued by U.S. EPA Region 10 prior to final authorization of the State for

corrective action will continue to be administered by U.S. EPA Region 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 permit provisions for which the State is

authorized to administer and enforce will expire. HSWA provisions for which the State

is not authorized will continue in effect under the EPA-issued permit.

eState and EPA workload associated with permit transition will be addressed through

annual negotiations of the grant workplan.

VIII. OTHER FEDERAL LAWS THAT MAY APPLY TO THE ISSUANCE OF

PERMITS·

Authorization of the State does not relieve facilities of their responsibility for compliance

with other Federal laws that may apply to the issuance of permits (see 40 C.F.R. §

270.3). EPA retains responsibility for administration and/or enforcement of these

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,

16 U.S.c. § 1273, et seq.; the National Historic Preservation Act of 1966, 16 U.S.c. §

470, et seq.; the Endangered Species Act of 1966, 16 U.S.c. § 1531, et seq.; (including

the consultation provision of section 7); the Coastal Zone Management Act, 16 U.S.c. §

1451, et seq.; and the Fish and Wildlife Coordination Act, 16 U.S.c. § 661; et seq. The

State agrees to consult with EPA to identify potential conflicts regarding Federal

requirements and to cooperate with EPA in EPA's fulfillment of its obligations, if any,

with regard to each permit issued by the State. The State agrees that, at a minimum,

U.S. EPA Region 10 will be made. aware of anticipated 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. EPA Region 10 agree to pursue informal, staff- level dispute

resolution to the maximum extent possible.

In cases where informal, staff level 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 agreement judge that a problem exists or

that this agreement is not being followed, the issue should be resolved at the Program

Manager and Branch Chief levels of the State and EPA, respectively. If the State

Program Manager and EPA Branch Chief cannot reach agreement, the issue will be

elevated to the Assistant Director and Division Director levels of the State and EPA,

respectively. If the State Assistant Director and EPA Division 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. EPA Region 10 for final resolution.

When necessary, the U.S. EPA Region 10 Assistant 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

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.U.S. Environmental Protection Agency,

Region 10

Regional Administrator

By: ~~

Date: 0CT 1. 7 1994

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State of Washington

Department of Ecology

Director

By: 7'l7-It~ ~Z

Date: ~. p?LJ, / tIJ '9 ;I