[Federal Register Volume 59, Number 61 (Wednesday, March 30, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-7373]


[[Page Unknown]]

[Federal Register: March 30, 1994]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 271

[FRL-4853-5]

 

Washington: Final Authorization of State Hazardous Waste 
Management Program Revisions

AGENCY: Environmental Protection Agency.

ACTION: Notice of proposed rulemaking on application of the State of 
Washington for program revision and public comment period.

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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 
made a decision, subject to public review and comment, that the State 
of Washington's hazardous waste program revision satisfies all of the 
requirements necessary to qualify for final authorization. Thus, EPA 
intends to approve the State of Washington's hazardous waste program 
revisions. The State of Washington's application for program revision 
is available for public review and comment.

DATES: All comments on the State of Washington's program revision 
application must be received by the close of business on April 29, 
1994. If significant interest is expressed, EPA will conduct a public 
hearing. The decision on whether or not to hold a public hearing will 
be based on receipt of written comments and requests for public 
hearing. Persons wishing to request a public hearing should submit the 
request in writing before April 21, 1994 to: Patricia Springer, U.S. 
EPA Region 10, HW-107, 1200 Sixth Avenue, Seattle, Washington 98101. If 
EPA decides to conduct a public hearing it will be held on April 28, 
1994. Contact Domenic Calabro at 1-800-424-4EPA, ext. 6640 to determine 
whether or not EPA has decided to hold a public hearing, and for the 
time and location of the hearing.

ADDRESSES: Copies of Washington's program revision application are 
available at the following addresses for inspection and copying: 
Washington Department of Ecology, Library, Room 3S-06, 300 Desmond 
Drive, Lacey, Washington 98503, Phone (206) 407-6150 during the hours 
of 8 a.m.-5 p.m.; and U.S. EPA Region 10, Library, 1200 Sixth Avenue, 
10th Floor, Seattle, Washington 98101, Phone (206) 553-1289 during the 
hours of 9 a.m.-4 p.m. Written comments should be sent to Patricia 
Springer at the address below.

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 (``RCRA'' or ``the Act''), 42 
U.S.C. 6926(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 (Pub. 
L. 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 260-266, 
268, 124 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. Today, the State of Washington is seeking 
approval of its program revision for corrective action in accordance 
with 40 CFR 271.21(b)(4). The State of Washington is requesting 
approval to pursue corrective action obligations through an existing 
cleanup authority by issuing orders for corrective action which will be 
incorporated into permits issued pursuant to the authorized State 
program permitting provisions. Attachments 1, 2, 5, 6, 8-17 and 
Appendices 1-4 of the State's application are provided for information 
only.
    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 a critical nexus 
in the authorization program.
    EPA has promulgated corrective action regulations for permitted 
hazardous waste treatment, storage and disposal facilities in 40 CFR 
264.100 and 264.101. Corrective Action for Solid Waste Management 
Units, 40 CFR 264.101, mandates that owners or operators of facilities 
seeking a permit must institute corrective action at the facility, that 
corrective action will be specified in the permit, and that owners or 
operators of facilities seeking a permit must implement corrective 
action beyond the facility boundary where necessary to protect human 
health and the environment.
    Washington's corrective action program goes slightly beyond the 
EPA-promulgated regulations by relying on 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 and to undertake such corrective actions beyond 
the property boundary where necessary. Washington will exercise 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 limits the 
program 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 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 the section 
3004(u) of RCRA. This will be the controlling interpretation against 
which Washington's regulatory definition of solid waste management unit 
will be measured until EPA codifies a statutory or regulatory 
definition.
    The statutory language of section 3004(u) of RCRA also limits the 
program 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.
    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 only be considered to be part of an authorized RCRA program 
when the order is incorporated into an existing RCRA permit.
    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 solid waste management units to conduct 
corrective action at those units in accordance with the Dangerous Waste 
Regulations. In Washington, the statutory authority for both the 
Dangerous Waste Regulations, Chapter 173-303 WAC, and for the MTCA is 
found in the Revised Code of Washington (RCW), Chapter 70.105D. RCW 
70.105D.030(1)(d) is the statutory provision authorizing MTCA and 
allowing the State of Washington Department of Ecology to continue to 
revise and modify its Dangerous Waste Regulations. RCW 70.105D.050(1) 
explicitly grants the Department of Ecology the authority to issue 
orders under the MTCA program to conduct remedial action.
    EPA is not delegating section 3008(h) RCRA authority (42 U.S.C. 
6928(h)). 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.
    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 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.
    Washington will be authorized for the following provisions:

----------------------------------------------------------------------------------------------------------------
                        Federal requirement                                        State authority              
----------------------------------------------------------------------------------------------------------------
                                                                                                                
                   RCRA Corrective Action Program                                                               
Corrective action:                                                                                              
    Applicability: SWMU, 40 CFR 264.90(a)..........................  WAC 173-303-645(1)(a)(ii).                 
    SWMU, 40 CFR 264.101(a)........................................  WAC 173-303-646.                           
    Specified in permit, 40 CFR 264.101(b).........................  WAC 173-303-646(2)(c).                     
Permits by rule:                                                                                                
    UIC permits issued after 11//8/84, 40 CFR 270.60(b)(3).........  WAC 173-303-802(3).                        
    NPDES permits issued after 11/8/84, 40 CFR 270.60(c)(3)........  WAC 173-303-802(4)(c)(viii).               
Permit application:                                                                                             
    Contents of part B 40 CFR 270.14(c)............................  WAC 173-303-806(4)(a)(xx).                 
    40 CFR 270.14(c)(7)............................................  WAC 173-303-806(4)(a)(xx)(G).              
    40 CFR 270.14(c)(8)(v).........................................  WAC 173-303-806(4)(a)(xx)(H)(iii).         
    40 CFR 270.14(d)...............................................  WAC 173-303-806(4)(a)(xxiii).              
Corrective action beyond the facility boundary:                                                                 
    40 CFR 264.100(e)..............................................  WAC 173-303-645(11)(e).                    
    40 CFR 264.101(c)..............................................  WAC 173-303-646(2)(b).                     
                                                                                                                
             Corrective Action Management Units (CAMU)                                                          
                                                                                                                
Definitions:                                                                                                    
    Facility to include all contiguous property, 40 CFR 260.10.....  WAC 173-303-040.                           
    CAMU, 40 CFR 260.10, 264.101, 270.2............................  WAC 173-303-040.                           
    Landfill and miscellaneous unit to include CAMU, 40 CFR 264.10.  WAC 173-303-040.                           
    Remediation wastes to include all solid and hazardous waste and  WAC 173-303-040.                           
     all media and debris, 40 CFR 264.10.                                                                       
    Land disposal facility, 40 CFR 264.3...........................  WAC 173-303-040.                           
    Interim Status standards apply in lieu of 40 CFR 264 standards,  WAC 173-303-400(2)(a).                     
     40 CFR 264.3.                                                                                              
    Corrective action for SWMU will be specified in permit           WAC 173-303-646(2)(a) and (c).             
     including schedules of compliance, 40 CFR 264.101.                                                         
Designation requirements for CAMU:                                                                              
    Designated for implementing remedies, 40 CFR 264.552...........  WAC 173-303-646(2) and (4)(a).             
    Designation of regulated unit as CAMU, 40 CFR 264.552..........  WAC 173-303-646(6).                        
    Designation will facilitate implementation, 40 CFR 264.552.....  WAC 173-303-646(5)(a).                     
    O/O provides sufficient information, 40 CFR 264.552............  WAC 173-303-646(5)(e).                     
    Rationale documented and made available to public, 40 CFR        WAC 173-303-646(5)(f).                     
     264.552.                                                                                                   
    Permit modification requirements must be followed to             WAC 173-303-646(5)(g); WAC 173-303-830.    
     incorporate CAMU into permit, 40 CFR 264.552.                                                              
Requirements for temporary units (TU):                                                                          
    Standards may be replaced by alternative requirements, 40 CFR    WAC 173-303-646(7)(a) and (b).             
     264.553.                                                                                                   
    Factors for establishing standards, 40 CFR 264.553(c)..........  WAC 173-303-646(7)(c).                     
    Length of time TU may operate, 40 CFR 264.553(e)...............  WAC 173-303-646(7)(d) and (e).             
    Incorporation of TU in permit, 40 CFR 264.553..................  WAC 173-303-830.                           
    Rationale documented and made available to the public, 40 CFR    WAC 173-303-646(7)(g).                     
     264.553.                                                                                                   
                                                                                                                
   RCRA Corrective Action Using Existing State Cleanup Authority                                                
                                                                                                                
Corrective action at SWMUs for all releases, 40 CFR 264.101........  RCW 70.105.130(1), (2)(a-b), (2)(c)(ii-iii)
                                                                      and (2)(e); RCW 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 271.16.............................  RCW 70.105.080,.085, .095(1-2), .097, .120;
                                                                      RCW 70.105D.030(2)(c), .050(1),(4),(5)(a).
Permitting requirements, 40 CFR 270.30, 270.32, 271.14 and 271.16..  RCW 70.105.130(2)(a), (b), and (c)(ii-iii);
                                                                      RCW 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) and (B).                
Permitting requirements, schedules of compliance and assurances of   RCW 70.105.130(2)(a); RCW 70.105D.030(1)(a-
 financial responsibility, 40 CFR 270.33 and 271.14.                  b), (2)(c); WAC 173-303-646(2)(c) and     
                                                                      (3)(c), -802(3) and (4).                  
Corrective action beyond the facility boundary, 40 CFR 264.101.....  RCW 70.105.130(2)(c)(iii); RCW             
                                                                      70.105D.030(1)(a) and (b); WAC 173-303-   
                                                                      646(2)(b) and (3)(a).                     
Definition of facility, 40 CFR 260.10 and 264.101..................  RCW 70.105.101(11); RCW 70.105D.020(3); WAC
                                                                      173-303-040.                              
Implement and complete corrective action, 40 CFR 264.101...........  RCW 70.105.130(2)(b), (c)(ii-iii) and (e); 
                                                                      RCW 70.105D.030(1)(a), (b), and (f); WAC  
                                                                      173-303-646(2)(a) and (b).                
Financial responsibility for completing corrective action, 40 CFR    RCW 70.105.130(1) and (2)(c)(iii); RCW     
 264.101 and 271.14.                                                  70.105D.030(1)(d); WAC 173-303-646(2)(a-  
                                                                      c).                                       
Public participation, 40 CFR 270.42 and 271.16(d)..................  RCW 70.105.130(2)(a); RCW                  
                                                                      70.105D.030(2)(a); WAC 173-303-830.       
----------------------------------------------------------------------------------------------------------------

    EPA has reviewed the State of Washington's application and has made 
a decision, subject to public review and comment, that the State of 
Washington's hazardous waste program revision satisfies all of the 
requirements necessary to qualify for final authorization. 
Consequently, EPA intends to grant the State of Washington final 
authorization for the additional program modifications. The public may 
submit written comments on EPA's decision up until April 29, 1994. 
Copies of the State of Washington's application for program revision 
are available for inspection and copying at the locations indicated in 
the Addresses section of this notice.
    If significant interest is expressed, EPA will conduct a public 
hearing. The decision on whether or not to hold a public hearing will 
be based on receipt of written comments and requests for public 
hearing. Persons wishing to request a public hearing should submit the 
request in writing before April 21, 1994 to: Patricia Springer, USEPA 
Region 10, HW-107, 1200 Sixth Avenue, Seattle, Washington 98101. If EPA 
decides to conduct a public hearing it will be held on April 28, 1994. 
Contact Domenic Calabro at 1-800-424-4EPA, ext. 6640 to determine 
whether or not EPA has decided to hold a public hearing, and for the 
time and location of the hearing.
    In the event a hearing is not held, all written comments will be 
considered in reaching a final decision on this proposed action. EPA 
will provide a written response to all comments.
    Approval of the State of Washington's program revision shall become 
effective when the Regional Administrator's final approval is published 
in the Federal Register. If adverse comment pertaining to the State of 
Washington's program revision discussed in this notice is received, EPA 
will publish either (1) a notice of disapproval or (2) a final 
rulemaking approving the modifications, which would include appropriate 
comment response.

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.
    For permits which contain provisions for automatic transfer of the 
permit from EPA authority to State authority, corrective action permit 
requirements contained in either an EPA-issued or joint EPA/State-
issued permit shall be adopted and be fully enforceable as State permit 
requirements upon the effective date of final State authorization for 
corrective action, in accordance with the terms of the permit. 
Automatic transfer of authority upon the effective date of final State 
authorization for corrective action for these permits shall occur 
regardless of whether the permit has been reissued as a State-issued 
permit or the EPA-issued permit has been terminated.
    For those permits which do not contain provisions for automatic 
transfer of permit authority following the effective date of final 
State authorization for corrective action, the EPA-issued permit will 
expire as to those provisions for which the State is authorized to 
administer and enforce upon the effective date of the issuance, or 
reissuance after modification, of the State permit. HSWA provisions for 
which the State is not authorized will continue in effect under EPA 
jurisdiction.

Indian Lands

    Washington is not seeking authorization to operate on Indian lands.

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: March 14, 1994.
Chuck Clarke,
Regional Administrator.
[FR Doc. 94-7373 Filed 3-29-94; 8:45 am]
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