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DATE: February 17, 1995 PAGE: 1 of 3

CANCELS: NEW POLICY: 130B

APPROVED BY: ____________

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POL 130B Permit Exemptions For Remedial Actions Under MTCA

This policy implements RCW 70.105D.090 Remedial Actions Exemptions from procedural requirements, which exempt Remedial Actions conducted under the Model Toxics Control Act from the procedural requirements of specified state environmental permits and local government permits. The intent of the exemption is to expedite cleanup of contaminated sites.

The exemption applies to persons conducting a remedial action at a facility under a consent decree, order, or agreed order, and the department when it conducts a remedial action. Such actions are exempt from the procedural requirements of chapters 70.94 [Air], 70.95 [Solid Waste], 70.105 [Hazardous Waste], 75.20 [Hydraulic Permit], 90.48 [Water Quality], and 90.5 8 [Shorelands] RCW, and the procedural requirements of any laws requiring or authorizing local government permits or approvals for the remedial action. This exemption does not apply to independent actions.

1. The Department Shall Ensure Compliance With Substantive Permit Requirements.

The department shall ensure compliance with the substantive provisions of chapters 70.94, 70.95, 70.105, 75.20, 90.48, and 90.58 RCW, and the substantive provisions of laws requiring or authorizing local government permits or approvals. The department will make a final decision regarding which substantive provisions are applicable. The substantive requirements will be incorporated into the order or decree and, as the Department deems appropriate, other remedial action documents. This applies to actions taken for the remedial action and any impacts due to remedial action.

2. Department Will Ensure Compliance through Administrative Action.

The department shall ensure compliance with the substantive requirements of permit laws through a consent decree, order or agreed order issued under the Model Toxics Control Act, or during the department conducted remedial action. The substantive requirements shall be incorporated into appropriate remedial action documents such as the remedial investigation and feasibility study, the interim action workplan or proposed cleanup action plan. Any time an order or decree is issued, the project manager must determine if the remedial actions required under the order or decree require a permit. If so, the order or decree must include the known substantive

requirements for those permits. The order or decree will also specify that any future determination of substantive requirements will be complied with and identified in the appropriate remedial action document. See Procedure 130B, Appendix A and B.

3. The Department Shall Consult With State Agencies And Local Governments

The department shall consult with state agencies, local governments and Department of Ecology programs that would normally issue the permits, early in the remedial action process and at key points during the process to determine which permit approvals should be considered for the remedial action and issue a determination regarding substantive permit requirements. Consultation with the permitting agency will occur throughout the remedial action process in order for the department to ensure that substantive permit requirements have been identified and are being met. This will occur through direct consultation with the various agencies and through opportunity for comment provided by the MTCA public notice. Project Managers will obtain documentation from the consulted agencies regarding the substantive requirements. Ecology may either request this documentation or ask the PLP to consult with the permitting agencies to obtain the documentation for Ecology.

4. The Department Shall Provide An Opportunity For Public Comment

The department shall provide an opportunity for public comment by the public, tribes, and state and local governments that would otherwise implement the laws referenced in this policy. The department will provide notice with opportunity for comment during the standard public comment opportunities provided under the MTCA, incorporating other public notice provisions as deemed appropriate by the department. Such notice will inform the public of the substantive permit requirements. This notice will be sent to those individuals or organizations who would normally have received such notice and to the agencies which normally issue the permit approval.

5. The Department Shall Not Assume Responsibility For Recovery Of Established Fees For State Or Local Government Permit Approvals.

Ecology will not cost recover other governmental agencies' fees. However, this law does not prohibit other state and local agencies from charging a fee to defray the costs of services rendered. These agencies shall charge and collect their own fees.

For those permit programs Ecology is authorized to implement, Ecology will not be charging established fee rates but, will recover the Ecology's costs through the standard cost recovery system as described in WAC 173 340 550.

6. Ecology Will Ensure Substantive Permit Requirements Apply.

Ecology will make a final determination regarding what substantive requirements will apply in situations where requirements conflict. Ecology will consult with the affected agencies prior to making such decisions. This determination will be made based on whether the cleanup action is protective of human health and the environment.

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