Washington: Final Authorization of State Hazardous Waste Management Program Revisions; Final Rule ENVIRONMENTAL PROTECTION AGENCY

SUMMARY: The State of Washington has applied for final authorization of

revisions to its hazardous waste program under the Resource

Conservation and Recovery Act (RCRA). The Environmental Protection

Agency (EPA) has reviewed the State of Washington's application and has

reached a decision that the State of Washington's hazardous waste

program revision satisfies all of the requirements necessary to qualify

for final authorization. Thus, EPA is granting final authorization to

the State of Washington to operate its expanded program, subject to the

authority retained by EPA in accordance with the Hazardous and Solid

Waste Amendments of 1984.

EFFECTIVE DATE: Final authorization for the State of Washington shall

be effective November 4, 1994.

FOR FURTHER INFORMATION CONTACT: Patricia Springer, U.S. EPA, M/S: HW-

107, 1200 Sixth Avenue, Seattle, Washington 98101, Phone (206) 553-

2858.

SUPPLEMENTARY INFORMATION:

A. Background

States with final authorization under section 3006(b) of the

Resource Conservation and Recovery Act, as amended (``RCRA''), 42

U.S.C. 6929(b), have a continuing obligation to maintain a hazardous

waste program that is equivalent to, consistent with, and no less

stringent than the Federal hazardous waste program. In addition, as an

interim measure, the Hazardous and Solid Waste Amendments of 1984 to

RCRA (Public Law 98-616, November 8, 1984, hereinafter ``HSWA'') allows

States to revise their programs to become substantially equivalent

instead of equivalent to RCRA requirements promulgated under HSWA

authority. States exercising the latter option receive ``interim

authorization'' for the HSWA requirements under section 3006(g) of

RCRA, 42 U.S.C. 6926(g), and later apply for final authorization for

the HSWA requirements.

Revisions to State hazardous waste programs are necessary when

Federal or State statutory or regulatory authority is modified or when

certain other changes occur. Most commonly, State program revisions are

necessitated by changes to EPA's regulations in 40 CFR parts 124, 260-

266, 268 and 270.

B. State of Washington

The State of Washington initially received final authorization on

January 31, 1986. The State of Washington received authorization for

revisions to its program on November 23, 1987 (52 FR 35556, 9/22/87)

and on October 16, 1990 (55 FR 33695, 8/17/90). On January 12, 1994,

the State of Washington submitted a program revision application for

additional program approvals. On March 30, 1994, EPA published a

proposal to approve the State of Washington's application for program

revision in accordance with 40 CFR 271.21(b)(4).

EPA has reviewed the State of Washington's application, and has

made a final decision that Washington's hazardous waste program

revision satisfies all of the requirements necessary to qualify for

final authorization. Consequently, EPA is granting final authorization

for the additional program modifications to Washington's hazardous

waste program. Attachments 1, 2, 5, 6, 8-17 and Appendices 1-4 of the

State's application are provided for information only.

C. Washington's Corrective Action Program

The State of Washington's authorized RCRA program is set forth in

Chapter 173-303 of the Washington Administrative Code (WAC), entitled

``Dangerous Waste Regulations''. The Dangerous Waste Regulations

include both authorized and non-authorized requirements. Washington has

amended the Dangerous Waste Regulations to include corrective action

requirements; however, Washington may also rely on its existing state

``superfund-like'' cleanup authority, Model Toxics Control Act (MTCA),

and its implementing regulations in Chapter 173-340 entitled ``Model

Toxics Control Act Cleanup Regulation'', to implement corrective action

requirements and to compel corrective actions.

The statutory authority for the Dangerous Waste Regulations is

found in the Revised Code of Washington (RCW), Chapters 70.105 and

70.105D. RCW 70.105D.030(1)(d) is the statutory provision which allows

the State of Washington Department of Ecology (Ecology) to carry out

all state programs authorized under the federal RCRA statute. RCW

70.105.130 designates Ecology as the agency tasked with implementing

the authorized RCRA program and provides Ecology with the authority to

establish a permit system for owners or operators of facilities which

treat, store, or dispose of dangerous waste. RCW 70.105.020 authorizes

Ecology to revise and modify the Dangerous Waste Regulations. Statutory

authority for MTCA is also found in RCW Chapter 70.105D. RCW

70.105D.030(2) authorizes Ecology to adopt rules to set cleanup

standards for remedial actions taken under MTCA authority. RCW

70.105D.050(1) explicitly grants Ecology the authority to issue orders

under MTCA to direct potentially liable parties to conduct remedial

action.

Washington may compel corrective action by issuing orders pursuant

to MTCA to owners and operators of facilities seeking or required to

have a permit to manage dangerous waste. Such orders are referred to as

``state corrective action orders''. State corrective action orders will

be somewhat hybrid, presenting RCRA corrective action requirements in

the context of a state ``superfund-like'' cleanup. EPA emphasizes that

corrective action requirements are not being deferred to a state

superfund-like authority; rather, the state authority will be used to

compel RCRA corrective action requirements. In order to fulfill the

RCRA Section 3004 (u) and(v) requirement that all RCRA permits must

include corrective action permit conditions, state corrective action

orders will be incorporated into RCRA permits issued pursuant to the

authorized State program permitting regulations.

Washington's corrective action program would allow corrective

action to be specified through the terms of a State-issued order which

is incorporated by reference into operating or post-closure permits

issued to facilities. The State could: 1) issue the order in advance of

the permit; 2) modify the permit to incorporate the order; or 3)

simultaneously issue the order and the permit with the order

incorporated into the permit. Under the Washington program, a State

order would be considered to be part of the authorized RCRA program

only when the order is incorporated into an existing RCRA permit, or

when the order is issued simultaneously with and incorporated by

reference into a new RCRA permit.

D. Comparison of Washington's Corrective Action Program to the

Federal Program

Ordinarily, States await promulgation of Federal regulations prior

to submitting their applications. However, there is no impediment under

the RCRA statutory provisions which would bar a State from seeking

authorization of a program in advance of Federally promulgated

regulations provided the State bases its program on existing Federal

statutory language. An existing Federal counterpart is the critical

nexus in the authorization program.

Washington's corrective action program goes slightly beyond the

EPA-promulgated regulations (see 40 CFR 264.100 and 264.101) which

implement the statutory provisions of sections 3004(u) and (v) of RCRA,

42 U.S.C. 6924(u) and (v), in which facilities seeking a permit are

required to undertake corrective action for all releases of hazardous

waste or constituents from any solid waste management unit (SWMU) and

to undertake such corrective actions beyond the property boundary where

necessary. Washington's program will instead utilize its existing

Superfund-like cleanup order authority (the Model Toxics Control Act)

through the State's authorized RCRA program by linking the cleanup

order authority with the State's authorized RCRA program permitting

requirements to fulfill the mandates of sections 3004(u) and (v) of

RCRA, 42 U.S.C. 6924(u) and (v).

The statutory language of Section 3004(u) of RCRA applies to

corrective action at solid waste management units. Although no

statutory or regulatory definition of ``solid waste management unit''

has been promulgated, EPA's proposed Subpart S corrective action rule,

published in the Federal Register on July 27, 1990 (55 FR 30798),

contains EPA's most current interpretation of key terms in section

3004(u) of RCRA. This is and will be the controlling interpretation

against which Washington's regulatory definition of solid waste

management unit shall be measured until EPA codifies a statutory or

regulatory definition.

The statutory language of section 3004(u) of RCRA also applies to

``facilities seeking a permit.'' Such facilities include those

hazardous waste management facilities which are required to obtain

permits to operate and to those subject to post-closure permits. EPA

has interpreted this language to mean that corrective action must be

specified in operating or post-closure permits issued to such

facilities.

State corrective action orders will be issued to facilities subject

to the Washington State Dangerous Waste Regulations, codified in the

Washington Administrative Code (WAC) in Chapter 173-303, but these

orders will rely in part on the State of Washington's Model Toxics

Control Act (MTCA) statutory and regulatory provisions and will require

current owners and operators of SWMUs to conduct corrective action at

those units in accordance with the Dangerous Waste Regulations.

EPA is not delegating RCRA section 3008(h) authority [42 U.S.C.

6928(h)] as part of this authorization. No Federal enforcement

authorities are delegated when EPA authorizes state programs under

section 3006 of RCRA.

Any orders issued to a facility under MTCA will not be considered

to be part of the EPA-authorized corrective action program unless and

until they are incorporated into a RCRA permit. Terms of the orders

which go beyond the scope of the authorized Dangerous Waste regulations

will be considered broader in scope, and thus not Federally

enforceable. Federal enforceability does not affect the ability of the

State to impose requirements pursuant to their legitimate State

statutory authorities or to enforce those requirements in lawfully-

issued orders or permits.

Some portions of Washington's revised program are broader in scope

than the Federal program, and thus are not Federally enforceable. Due

to Washington's statutory mandate to address all releases of hazardous

substances, Washington has developed corrective action requirements

which are, in part, broader in scope than the Federal corrective action

requirements in RCRA Section 3004(u), in that dangerous waste

management facilities in Washington will be required to conduct

corrective action as necessary to protect human health and the

environment for all releases of dangerous waste and dangerous

constituents at or from the facility, regardless of the source of the

release.

Some portions of Washington's revised program are more stringent

than the Federal program. The requirement to implement corrective

action for releases which have migrated beyond the facility boundary is

more stringent than the Federal requirement, in that it is not limited

by the ``best efforts'' language in the Federal requirement.

To clarify, Washington will be authorized for the following

provisions as part of this authorization (see State Authorization

Checklists 17L, 38, 44A, 44B, 121):

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Federal requirement State authority

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RCRA Corrective Action

Program

Corrective Action (50 FR

28702, 7/15/85):

Applicability: SWMU, 40 WAC 173-303-645(1)(a)(ii).

CFR Sec. 264.90(a).

SWMU, 40 CFR Sec. WAC 173-303-646.

264.101(a).

Specified in permit, 40 WAC 173-303-646(2)(c).

CFR Sec. 264.101(b).

Permits by rule: UIC WAC 173-303-802(3).

permits issued after 11//

8/84, 40 CFR Sec.

270.60(b)(3).

NPDES permits issued WAC 173-303-802(4)(c)(viii).

after 11/8/84, 40 CFR

Sec. 270.60(c)(3).

Permit Application [52 FR

23447 (6/22/87)]; [52 FR

33936 (9/9/87)]; [52 FR

45788 (12/1/87)]:

Contents of Part B 40 CFR WAC 173-303-806(4)(a)(xx).

Sec. 270.14(c).

40 CFR Sec. 270.14(c)(7). WAC 173-303-806(4)(a)(xx)(G).

40 CFR Sec. WAC 173-303-806(4)(a)(xx)(H)(iii).

270.14(c)(8)(v).

40 CFR Sec. 270.14(d).... WAC 173-303-806(4)(a)(xxiii).

Corrective action beyond the

facility boundary [52 FR

45788 (12/1/87)]:

40 CFR Sec. 264.100(e)... WAC 173-303-645(11)(e).

40 CFR Sec. 264.101(c)... WAC 173-303-646(2)(b).

Corrective Action Management

Units (CAMU) [58 FR 8658 (2/

16/93)]:

Definitions:

Facility to include all WAC 173-303-040.

contiguous property, 40

CFR Sec. 260.10.

CAMU, 40 CFR Secs. WAC 173-303-040.

260.10, 264.101, 270.2.

Landfill and WAC 173-303-040.

miscellaneous unit to

include CAMU, 40 CFR

Sec. 260.10.

Remediation wastes to WAC 173-303-040.

include all solid and

hazardous waste and all

media and debris, 40 CFR

Sec. 260.10.

Land disposal facility, WAC 173-303-040.

40 CFR Sec. 268.2(c).

Interim Status standards WAC 173-303-400(2)(a).

apply in lieu of 40 CFR

264 standards, 40 CFR

Sec. 264.3.

Corrective action for WAC 173-303-646(2)(a) & (c).

SWMU will be specified

in permit, including

schedules of compliance,

40 CFR Sec. 264.101.

Designation Requirements for

CAMU:

Designated for WAC 173-303-646(2) & (4)(a).

implementing remedies,

40 CFR Sec. 264.552.

Designation of regulated WAC 173-303-646(6).

unit as CAMU, 40 CFR

Sec. 264.552.

Designation will WAC 173-303-646(5)(a).

facilitate

implementation, 40 CFR

Sec. 264.552.

O/O provides sufficient WAC 173-303-646(5)(e).

information, 40 CFR Sec.

264.552.

Rationale documented and WAC 173-303-646(5)(f).

made available to

public, 40 CFR Sec.

264.552.

Permit modification WAC 173-303-646(5)(g); WAC 173-303-830.

requirements must be

followed to incorporate

CAMU into permit, 40 CFR

Sec. 264.552.

Requirements for Temporary

Units (TU) [58 FR 8658 (2/16/

93)]:

Standards may be replaced WAC 173-303-646(7)(a) & (b).

by alternative

requirements, 40 CFR

Sec. 264.553.

Factors for establishing WAC 173-303-646(7)(c).

standards, 40 CFR Sec.

264.553(c).

Length of time TU may WAC 173-303-646(7)(d) & (e).

operate, 40 CFR Sec.

264.553(e).

Incorporation of TU in WAC 173-303-646(7)(f); WAC 173-303-830

permit, 40 CFR Sec.

264.553.

Rationale documented and WAC 173-303-646(7)(g).

made available to the

public, 40 CFR Sec.

264.553..

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In order to approve the State of Washington to use orders issued

under MTCA to compel RCRA corrective action, it was necessary to

identify the essential elements of a RCRA corrective action program and

to determine that the State had the necessary authorities to meet these

substantive RCRA requirements. The following table identifies those

substantive RCRA corrective action requirements and demonstrates that

the corresponding State authorities exist which allow the State to meet

these requirements. Whereas certain of the state authorities listed are

already authorized or are being authorized in today's action, this

table only serves to demonstrate that orders issued under MTCA can

compel corrective action which would meet all substantive RCRA

corrective action requirements and is provided here for information

only. As stated above, orders issued by the state are not part of the

RCRA authorized program until such order is incorporated into a RCRA

permit.

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Federal requirement State authority

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RCRA Corrective Action Using

Existing State Cleanup Authority:

Corrective action at SWMUs for RCW 70.105.130(1), (2)(a-b),

all releases, 40 CFR Sec. (2)(c)(ii-iii) and (2)(e); RCW

264.101. 70.105D.030(1)(a,b,d,f); WAC 173-

303-400(3)(a)(i), -646(2)(a-b), -

802(3-4).

Enforcement authorities, 40 CFR RCW 70.105.080,.085, .095(1-2),

Sec. 271.16. .097, .120; RCW 70.105D.030(2)(c),

.050(1),(4),(5)(a).

Permitting requirements: 40 CFR RCW 70.105.130(2)(a), (b), and

Secs. 270.30, 270.32, 271.14 (c)(ii-iii); RCW

and 271.16. 70.105D.030(1)(a); WAC 173-303-

646(2)(a-c), -646(3)(a-c), -

400(3)(a)(i), -806(4)(a)(xxi)(A) &

(B).

Permitting requirements, RCW 70.105.130(2)(a); RCW

schedules of compliance and 70.105D.030(1)(a-b), (2)(c); WAC

assurances of financial 173-303-646(2)(c) & (3)(c), -

responsibility, 40 CFR Secs. 802(3) & (4).

270.33 and 271.14.

Corrective action beyond the RCW 70.105.130(2)(c)(iii); RCW

facility boundary, 40 CFR Sec. 70.105D.030(1)(a) & (b); WAC 173-

264.101. 303-646(2)(b) & (3)(a).

Definition of facility, 40 CFR RCW 70.105.101(11); RCW

Secs. 260.10 and 264.101. 70.105D.020(3); WAC 173-303-040.

Implement and complete RCW 70.105.130(2)(b), (c)(ii-iii) &

corrective action, 40 CFR Sec. (e); RCW 70.105D.030(1)(a), (b), &

264.101. (f); WAC 173-303-646(2)(a) & (b).

Financial responsibility for RCW 70.105.130(1) & (2)(c)(iii);

completing corrective action, RCW 70.105D.030(1)(d); WAC 173-303-

40 CFR Secs. 264.101 and 646(2)(a-c).

271.14.

Public participation, 40 CFR RCW 70.105.130(2)(a); RCW

Secs. 270.42 and 271.16(d). 70.105D.030(2)(a); WAC 173-303-

830.

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E. Indian Lands

Washington is not seeking authorization to operate on Indian lands.

F. Public Hearing and Comments

Although EPA received three requests for a public hearing, EPA did

not find that the bases for the requests warranted a public hearing,

since the issues raised were outside the scope of this authorization

action.

EPA received a number of comments during the public comment period.

A detailed Response to Comments has been prepared and is available upon

request. The following is a summary of the comments received and EPA's

responses to those comments.

One commenter was concerned about the interaction between

regulation of radioactive materials under the Atomic Energy Act (AEA)

and of hazardous wastes under RCRA, specifically that EPA's

authorization of the State of Washington for RCRA corrective action

under the State's Hazardous Waste Management Act (HWMA) would allow the

Washington Department of Ecology to ``preempt'' the State Department of

Health's regulatory authority (delegated by the Nuclear Regulatory

Commission) over the operation of their facility. The commenter was

also concerned about certain conflicting state regulatory and statutory

provisions regarding the regulatory authority of the Department of

Health.

In response, the State of Washington has not asked that the

statutory provision cited by the commenter [RCW 70.105.240(2)] be

authorized as part of the federally authorized RCRA program. As such,

RCW 70.105.240(2) will not be part of the federally-authorized state

RCRA corrective action program which will operate in lieu of the

federal RCRA corrective action program. This will remain a ``state-

only'' provision and EPA will not enforce it.

The State of Washington is today being authorized to implement its

corrective action program in lieu of the federal RCRA corrective action

program. The RCRA corrective action program seeks to address releases

of hazardous waste and constituents from solid waste management units

at a facility. ``Regulated units'' are units such as landfills, waste

piles, surface impoundments, and land treatment units used to treat,

store, or dispose of RCRA-regulated hazardous wastes and are subject to

full regulation under subtitle C of RCRA. See 40 CFR 264.90. ``Solid

waste management units,'' or ``SWMUs,'' are any discernable units at

which ``solid wastes'' may have been placed at any time. See 55 FR

30798, 30874, July 27, 1990 (proposed RCRA Subpart S Rule). If EPA

determines that the presence of solid or hazardous waste at either a

regulated unit or a solid waste management unit has led to a release or

a threatened release of a hazardous waste or constituent from such

units, EPA can require the owner or operator of a unit to address such

releases by taking necessary ``corrective action'' at the unit.

EPA's ability to require corrective action at such units does not

mean that SWMUs are ``regulated'' under the RCRA ``base program'' and

therefore subjected to RCRA permitting requirements. The RCRA ``base

program'' consists, in part, of those provisions of RCRA that govern

the generation, transport, treatment, storage and disposal of hazardous

wastes. The RCRA ``base program'' is considered to be those provisions

of the RCRA program before the passage of the Hazardous and Solid Waste

Amendments (``HSWA'') of 1984 to RCRA. HSWA introduced the corrective

action requirements into the RCRA statute. In contrast and in general,

only ``regulated units'' and generator accumulation areas are subject

to the operational requirements of the RCRA ``base program.'' These

operational requirements are separate and apart from any corrective

action requirements that might be imposed by the State of Washington

under the authorized state corrective action program.

Therefore, the commenter's concern that EPA's authorization of the

State of Washington for RCRA corrective action will allow the

Department of Ecology to ``preempt'' the Department of Health's

regulatory authority over the operation of the commenter's facility is

unfounded. If the State of Washington wanted to regulate the daily

operations of the facility's radioactive waste management activities

under RCRA, it would have to do so under the state's dangerous waste

``base'' RCRA program.

One commenter stated that ``Given that EPA has stated that it will

interpret Washington's regulatory definition of SWMU against its

discussion in the proposed corrective action rule, [the commenter]

requests that the State of Washington through its authorized program

will not be allowed to assert jurisdiction over mixed waste activities

prior to July 3, 1986, as well.'' The commenter cites the State of

Washington's recent definition of ``solid waste management unit'' which

was added to the State's Dangerous Waste regulations, which ``means any

discernable location at a facility, as defined for the purposes of

corrective action, where solid wastes have been placed at any time. .

.'' (emphasis added). The commenter further states that ``the preamble

to EPA's corrective action rule did not attempt to retroactively apply

EPA's jurisdiction over mixed waste prior to July 3, 1986.''

In response, EPA has consistently interpreted the radioactive mixed

waste to be a solid waste under RCRA for the purposes of RCRA

corrective action (see 55 FR 30798 at 30860, July 27, 1990 and 51 FR

24504 Footnote #1, July 3, 1986). Therefore, it is clear that EPA

considers radioactive mixed waste to be a solid waste under RCRA for

purposes of RCRA corrective action. Corrective actions under RCRA which

address releases from solid waste management units are not limited to

releases of hazardous waste or constituents after any certain date.

EPA's proposed definition of a ``solid waste management unit'' in EPA's

proposed Subpart S rule (see 55 FR at 30808-30809) and the State of

Washington's promulgated definition of a ``solid waste management

unit'' in its Dangerous Waste Regulations (see WAC 173-303-646(2)(a))

both define a SWMU to include in part (state regulatory language

differences are in brackets):

Any discernable unit [location at a facility] . . . at which

solid wastes have been placed at any time, irrespective of whether

the unit was intended for the management of solid or hazardous

[dangerous] waste.

Thus, EPA's determination that the hazardous component of

radioactive mixed waste was regulated and subject to permitting

requirements of Subtitle C of RCRA in 1986 does not affect EPA's

ability (or a state's ability, when that state has been authorized for

corrective action under RCRA) to require corrective action for the

hazardous component of radioactive solid waste at SWMUs where such

waste was disposed of before 1986.

EPA, in its authorization of the State of Washington for RCRA

corrective action, is not authorizing the State to ```regulate' mixed

waste disposed of prior to 1986'' as suggested by the commenter.

Rather, the authorization will allow the State to assert corrective

action (cleanup of past releases) jurisdiction, which is not RCRA

operational (day-to-day waste handling and management) jurisdiction,

over solid waste (which includes the hazardous component of radioactive

mixed waste) at solid waste management units at facilities seeking

permits under RCRA. The State of Washington received final

authorization for RCRA operational jurisdiction over radioactive mixed

waste on November 23, 1987.

A commenter pointed out that EPA was not authorizing the State of

Washington at this time for the ``omnibus'' authority of section

3005(c)(3) of RCRA, yet the State corrective action program and

regulations indicate that the State will assert authority over releases

of hazardous waste and constituents from ``non-SWMU'' units and areas.

The commenter then asks whether EPA will assert its omnibus authority

along with the State authority over corrective action for non-SWMU

releases, and if so, how will EPA conduct such action.

In response, EPA cannot disregard its statutory obligations under

RCRA to require corrective actions where EPA deems such actions to be

necessary to protect human health and the environment. However, EPA

also does not intend to require duplicative efforts under two separate

statutory or regulatory schemes at any given facility. EPA is not

authorizing the state of Washington for RCRA ``omnibus'' authority as

part of today's authorization. As such, State regulations which allow

the State to require corrective action for releases from non-SWMUs are

``broader in scope'' than the corrective action program for which the

State is currently seeking authorization and, as such, are not

federally enforceable.

In addition, EPA's statutory obligations under sections 3008(h),

3013, and 7003 of RCRA, 42 U.S.C. 6928(h), 6934, and 6973, to ensure

protection of human health and the environment, empower EPA to ensure

that all releases of hazardous waste are addressed. These statutory

authorities are independent from EPA's oversight of the authorized

state corrective action program. Should EPA decide that assertion of

EPA statutory authority is necessary, such action will be coordinated

with any ongoing State action to ensure that duplicative actions are

not taken unless necessary to protect human health or the environment.

However, EPA does not anticipate that it will have to exercise such

authority very often, given the protectiveness embodied in the State's

MTCA statute and the manner in which the State has implemented the MTCA

program.

A commenter questioned that once a State-issued order is

incorporated by reference into the facility's RCRA permit, can that

order be amended without a corresponding modification of the RCRA

permit.

In response, at the time the State order is incorporated by

reference into a RCRA permit, the order becomes subject to all

permitting requirements, including public participation requirements

required for permit modifications. This includes any State-issued

orders designating a corrective action management unit (CAMU) or

temporary unit (TU). Therefore, if at some time after incorporation by

reference into a RCRA permit, it is determined that the incorporated

order must be changed, such a change will require a permit modification

as well. The class of permit modification required, along with the

extent of public participation required by such a modification, will be

determined using the State regulations.

A commenter requested clarification of the public participation

process to be used by the State under the authorized corrective action

program. Specifically, the commenter pointed out that MTCA orders have

their own public participation process. The commenter queried whether

there would be a second public participation process at the time such

order would be incorporated into a RCRA permit. The commenter also

queried to what extent the public would be able to comment on the

previously issued order at the time of permit issuance or modification;

and to what extent the existing State regulations governing public

participation would operate in lieu of the federal regulations codified

at 40 CFR 124.11 through 124.17.

In response, the commenter is referred to the Program Description

contained in this application for authorization, wherein Washington's

Department of Ecology explains how public participation goals and

requirements will be met. In brief, the State will follow only the

existing MTCA public participation requirements (which are extensive)

when a MTCA order is issued prior to permit issuance. Since that is not

a RCRA permit action, there are no RCRA permit public participation

requirements which apply. At the time the order is incorporated into a

RCRA permit through permit modification, or if the order is issued

concurrently with the RCRA permit, the permit issuance or modification

will be under the State's authorized corrective action program. The

RCRA public participation requirements would govern the public

participation process at that time. However, public comment at that

time will be limited to whether the incorporated MTCA terms, schedules

and conditions appropriately fulfill corrective action requirements of

the authorized State RCRA program. Public comment on the MTCA terms,

schedules and conditions will not affect the ability of the state to

enforce the MTCA order under MTCA authority, independent of the

authorized RCRA corrective action program. At the time the MTCA order

is incorporated into a RCRA permit, and at any time thereafter for the

life of the RCRA permit, Ecology will ensure that the public

participation procedures under RCRA and MTCA are coordinated to

eliminate duplication of effort and fulfill RCRA requirements.

A commenter questioned how authorization of the State program would

be affected by EPA's promulgation of a final federal rule regarding

corrective action. The commenter also questioned whether EPA intended

to use the proposed subpart S corrective action rules to measure the

State's ``consistency'' with the federal corrective action program; and

what EPA intended when EPA stated in its Notice of Proposed Rulemaking

that EPA's proposed definition of a SWMU ``will be the controlling

interpretation against which Washington's regulatory definition of a

solid waste management unit will be measured until EPA codifies a

statutory or regulatory definition.''

In response, should EPA finalize a federal rule regarding

corrective action at some point after the State has received corrective

action authorization, the State will be required to submit an

application for a revision of the State corrective action program, in

accordance with 40 CFR 271.21(e)(1) and 271.25. Until EPA promulgates a

final federal corrective action rule, EPA intends to use its proposed

subpart S rules (55 FR 30798, July 27, 1990) as the measure of

consistency in order to determine whether the State's authorized

corrective action program is at least as stringent as the federal

corrective action program would be under the proposed Subpart S rule.

Since the proposed subpart S rule has not yet been finalized, EPA

cannot authorize nor enforce the provisions of Subpart S. However, EPA

is currently using the provisions contained in the proposed Subpart S

rule as guidance when conducting federal corrective actions.

Two commenters raised concerns regarding the State of Washington's

siting criteria for new hazardous waste facilities. In response, the

proposed approval and authorization of Washington's hazardous waste

program revision is for a corrective action program. Since the

corrective action program under RCRA is intended to address clean up of

releases of hazardous waste at existing hazardous waste facilities, the

commenters' concerns regarding siting of new facilities are outside the

scope of this current authorization action. The State's siting criteria

are State regulations which have no federal counterpart, and as such

are not part of the federal RCRA program.

A commenter raised concerns regarding Hanford, specifically with

respect to the burial of decommissioned reactor cores, and regarding

incinerator standards. In response, EPA today is approving and

authorizing the state for a RCRA corrective action program. EPA's

authorization today does not directly address cleanup decisions at

Hanford, the disposal of decommissioned reactor cores, nor EPA's

incinerator standards found in the Boiler and Industrial Furnace

Regulations (40 CFR part 266). Therefore, these concerns are considered

to be outside the scope of today's authorization action, and would be

addressed by the State RCRA base program.

Therefore, it is EPA's determination that there are no changes

required to this authorization action as a result of the comments

received.

G. Status of Federal Permits

Upon the effective date of authorization, the State of Washington

will begin to administer and enforce corrective action requirements.

EPA 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 EPA. In addition, HSWA amendments for

which the State has not been authorized will continue to be

administered and enforced by EPA.

Due to recent legal developments in the national RCRA hazardous

waste program, the discussion that appeared in the proposed rule (March

30, 1994, 59 FR 14827) concerning permits with automatic transfer

provisions has been revised. 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 RCRA permit. Upon the

effective date of the issuance, or reissuance after modification, of

the State RCRA 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.

H. Decision

I conclude that the State of Washington's application for program

revision meets all of the statutory and regulatory requirements

established by RCRA. Accordingly, the State of Washington is granted

final authorization to operate its hazardous waste program as revised.

The State of Washington now has responsibility for permitting

treatment, storage, and disposal facilities within its borders and

carrying out other aspects of the RCRA program described in its revised

program application, subject to the limitations of the HSWA. The State

of Washington also has primary enforcement responsibilities, although

EPA retains the right to conduct inspections under section 3007 of

RCRA, 42 U.S.C. 6927, and to take enforcement actions under sections

3008, 3013 and 7003 of RCRA, 42 U.S.C. 6928, 6934 and 6973.

Compliance With Executive Order 12866

The Office of Management and Budget has exempted this rule from the

requirements of section 6 of Executive Order 12866.

Certification Under the Regulatory Flexibility Act

Pursuant to the provisions of 4 U.S.C. 605(b), I hereby certify

that this authorization will not have a significant economic impact on

a substantial number of small entities. This authorization effectively

suspends the applicability of certain Federal regulations in favor of

the State of Washington's program, thereby eliminating duplicative

requirements for handlers of hazardous waste in the State. It does not

impose any new burdens on small entities. This rule, therefore, does

not require a regulatory flexibility analysis.

List of Subjects in 40 CFR Part 272

Administrative practice and procedure, Confidential business

information, Hazardous materials transportation, Hazardous waste,

Indian lands, Intergovernmental relations, Penalties, Reporting and

recordkeeping requirements, Water pollution control, Water supply.

Authority: This notice is issued under the authority of Sections

2002(a), 3006 and 7004(b) of the Solid Waste Disposal Act, as

amended, 42 U.S.C. 6912(a), 6926, 6974(b).

Dated: October 17, 1994.

Chuck Clarke,

Regional Administrator.

[FR Doc. 94-27170 Filed 11-2-94; 8:45 am]

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