[Federal Register Volume 59, Number 213 (Friday, November 4, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-27170]


[[Page Unknown]]

[Federal Register: November 4, 1994]


_______________________________________________________________________

Part IV





Environmental Protection Agency





_______________________________________________________________________



40 CFR Part 271




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

40 CFR Part 271

[FRL-5099-5]

 
Washington: Final Authorization of State Hazardous Waste 
Management Program Revisions

AGENCY: Environmental Protection Agency.

ACTION: Immediate final rule.

-----------------------------------------------------------------------

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): 

------------------------------------------------------------------------
     Federal requirement                    State authority             
------------------------------------------------------------------------
    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..                                                          
------------------------------------------------------------------------

    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.

------------------------------------------------------------------------
        Federal requirement                    State authority          
------------------------------------------------------------------------
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.                              
------------------------------------------------------------------------

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]
BILLING CODE 6560-50-P