Current through Register Vol. 24-06, March 15, 2024
(1) The owner or
operator of a facility must institute corrective action as necessary to protect
human health and the environment for all releases of dangerous wastes and
dangerous constituents, including releases from all solid waste management
units at the facility. Corrective action is required regardless of the time at
which waste was managed at the facility or placed in such units and regardless
of whether such facilities or units were intended for the management of solid
or dangerous waste. Assurances of financial responsibility for such corrective
action must be provided.
(2) The
owner/operator must implement corrective actions beyond the facility property
boundary, where necessary to protect human health and the environment.
Additionally, as necessary to protect human health and the environment, the
department may require the owner/operator to implement on site measures to
address releases which have migrated beyond the facility boundary. Assurances
of financial responsibility for such corrective action must be
provided.
(3) In the case of a
facility seeking or required to have a permit under the provisions of chapter
173-303 WAC, corrective action must be specified in the permit. The permit will
contain schedules of compliance for such corrective action (where such
corrective action cannot be completed prior to issuance of the permit) and
assurances of financial responsibility for completion of such corrective
action.
(4) At a minimum,
corrective actions must be consistent with the following requirements of
chapter 173-340 WAC.
(a) As necessary to
select a cleanup action consistent with WAC
173-340-360,
173-340-350,
state remedial investigation and feasibility study. Information that is
adequate to support selection of a cleanup action consistent with WAC
173-340-360
but was developed under a different authority (for example, as part of closure
under WAC
173-303-610
or as part of a federally overseen cleanup) may be used.
(b) WAC
173-340-360,
selection of cleanup actions.
(c)
WAC
173-340-400,
implementation of the cleanup action.
(d) WAC
173-340-410,
compliance monitoring requirements.
(e) WAC
173-340-420,
periodic review.
(f) WAC
173-340-440,
institutional controls.
(g) WAC
173-340-700
through
173-340-760,
cleanup standards.
(5) At
a minimum, financial assurance for corrective actions as required in
subsections (1) and (2) of this section must be consistent with the following
requirements:
(a) States and the federal
government are exempt from the requirements of this section.
(i) Operators of state or federally owned
facilities are exempt from the requirements of this section, except (c), (f),
and (g) of this subsection.
(ii)
Operators of facilities that are not state or federally owned must meet all of
the requirements of this section, even if the facility is leased by or
otherwise under contract with the state or federal government.
(b) Unless otherwise specified,
the definitions and requirements for allowable financial assurance mechanisms
as set forth in the current financial assurance rules covering closure and
post-closure in this section and as incorporated by reference in
40 C.F.R.
264.141,
264.143,
264.145,
and
264.151
will be the definitions and requirements for allowable financial assurance for
corrective action purposes. The words "corrective action" are to be substituted
for the words "closure," "post closure," "post-closure," or "postclosure" in
the above listed regulations as needed to produce this result.
(c) Within thirty days from the effective
date of a permit, agreed order or consent decree, the owner or operator shall
submit to the department for review and approval a written cost estimate to
cover the activities listed in the applicable Scope of Work and Schedule
document(s). If the department rejects the cost estimate as submitted, the
department shall provide to the owner or operator a revised cost estimate
amount that will be the approved cost estimate.
(d) Within thirty days after the department's
final approval of the owner or operator's cost estimate amount or the owner or
operator's receipt of the department's approved cost estimate amount, the owner
or operator shall establish and maintain continuous coverage of financial
assurance in the amount of the approved cost estimate and submit the applicable
financial assurance documentation. If the department does not accept, reject,
or revise the owner or operator's cost estimate within sixty days after
submittal, the cost estimate will be deemed approved for purposes of this
section.
(e) Adjustments by the
department. If the department determines that the timing or content of
submission of cost estimates and financial assurance documents are not
consistent with the degree and duration of risk associated with the corrective
action activities, the department may adjust the level of financial assurance
or timing of document submission required under this section as may be
necessary to protect human health and the environment. This adjusted level or
timing will be based on the department's assessment of the degree and duration
of risk associated with the ownership or operation of the facility or group of
facilities. In addition, if the department determines that there is a
significant risk to human health and the environment from nonsudden accidental
occurrences resulting from corrective action activities, it may require that
the owner or operator of the facility comply with this section. An owner or
operator must furnish to the department within a reasonable time, any
information which the department requests to determine whether cause exists for
such adjustments of level or type of coverage. Any adjustments of level or type
of coverage for a facility that has a permit will be treated as a permit
modification under WAC
173-303-830.
(f) If during the course of the corrective
action activities the owner or operator is required to submit an additional
work plan(s) under the applicable permit, agreed order or consent decree, or to
conduct activities related to corrective action not previously part of the
original cost estimate, the process outlined in (b) of this subsection shall
apply in the submission process of an additional work plan(s) and the resulting
additional cost estimate(s).
(g)
All cost estimates must be based on the costs to the owner or operator of
hiring a third party to complete the work and shall be in accordance with the
requirements of WAC
173-303-620.
(h) The owner or operator shall annually
adjust all cost estimates for inflation using the procedure outlined in WAC
173-303-620(3)(c).
However, the department may also allow a reduction in the owner or operator's
cost estimate for corrective action work actually performed during the previous
year.
(i) Acceptable financial
assurance mechanisms are trust funds, surety bonds, letters of credit,
insurance, the financial test, and the corporate guarantee, consistent with WAC
173-303-620.
The department may allow other financial assurance mechanisms if they are
consistent with the laws of Washington and if the owner or operator
demonstrates to the satisfaction of the department that those mechanisms
provide adequate financial assurance.
(j) If the owner or operator is using the
financial test or corporate guarantee to meet its financial assurance
obligation, the annual inflationary adjustment shall occur within ninety days
after the close of the owner's or operator's fiscal year. If the owner or
operator is using any mechanism other than the financial test or corporate
guarantee, this adjustment shall occur each year within thirty days after the
anniversary of the effective date of the permit, agreed order, consent decree,
or alternative effective date pursuant to (d) of this subsection.
(k) If the owner or operator seeks to
establish financial assurance by using a letter of credit or a surety bond, the
owner or operator shall at the same time establish and thereafter maintain a
standby trust fund acceptable to the department into which funds from the other
financial assurance instrument can be deposited, if the financial assurance
provider is directed to do so by the department pursuant to
regulation.
(l) The owner or
operator shall notify the department's site manager or project coordinator and
the financial assurance officer by certified mail of the commencement of a
voluntary or involuntary bankruptcy proceeding, naming the owner or operator as
debtor, within ten days after commencement of the proceeding. A guarantor of a
corporate guarantee must make such a notification if it is named as debtor as
required under the terms of the corporate guarantee.
(m) Once the owner or operator has
established financial assurance with an acceptable mechanism as described
above, the facility will be deemed to be without the required financial
assurance:
(i) In the event of bankruptcy of
the trustee or issuing institution; or
(ii) If the authority of the trustee
institution to act as trustee has been suspended or revoked; or
(iii) If the authority of the institution
issuing the surety bond, letter of credit, or insurance policy has been
suspended or revoked.
In the event of bankruptcy of the trustee or a suspension or
revocation of the authority of the trustee institution to act as a trustee, the
owner or operator must establish a replacement financial assurance mechanism by
any means specified in WAC
173-303-620
or other financial instrument as approved by the department within sixty days
after such an event.
Statutory Authority:
Chapters
70.105,
70.105D, and
15.54 RCW and
RCW
70.105.007. 04-24-065 (Order 03-10), §
173-303-64620, filed 11/30/04, effective
1/1/05.