(1) Applicable state and federal laws.
All cleanup actions conducted under this chapter shall comply with applicable state and federal laws. For purposes of this chapter, the term "applicable state and federal laws" shall include legally applicable requirements and those requirements that the department determines, based on consideration of the criteria in subsection (4) of this section, are relevant and appropriate requirements.
(2) Department determination.
The person conducting a cleanup action shall identify all applicable state and federal laws. The department shall make the final interpretation on whether these requirements have been correctly identified and are legally applicable or relevant and appropriate.
(3) Legally applicable requirements.
Legally applicable requirements include those cleanup standards, standards of control, and other environmental protection requirements, criteria, or limitations adopted under state or federal law that specifically address a hazardous substance, cleanup action, location or other circumstances at the site.
(4) Relevant and appropriate requirements.
Relevant and appropriate requirements include those cleanup standards, standards of control, and other environmental requirements, criteria, or limitations established under state or federal law that, while not legally applicable to the hazardous substance, cleanup action, location, or other circumstance at a site, address problems or situations sufficiently similar to those encountered at the site that their use is well suited to the particular site. WAC 173-340-710
identifies several requirements the department shall consider relevant and appropriate for establishing cleanup standards. For other regulatory requirements, the following criteria shall be evaluated, where pertinent, to determine whether such requirements are relevant and appropriate for a particular hazardous substance, remedial action, or site:
(a) Whether the purpose for which the statute or regulations under which the requirement was created is similar to the purpose of the cleanup action;
(b) Whether the media regulated or affected by the requirement is similar to the media contaminated or affected at the site;
(c) Whether the hazardous substance regulated by the requirement is similar to the hazardous substance found at the site;
(d) Whether the entities or interests affected or protected by the requirement are similar to the entities or interests affected by the site;
(e) Whether the actions or activities regulated by the requirement are similar to the cleanup action contemplated at the site;
(f) Whether any variance, waiver, or exemption to the requirements are available for the circumstances of the site;
(g) Whether the type of place regulated is similar to the site;
(h) Whether the type and size of structure or site regulated is similar to the type and size of structure or site affected by the release or contemplated by the cleanup action; and
(i) Whether any consideration of use or potential use of affected resources in the requirement is similar to the use or potential use of the resources affected by the site or contemplated cleanup action.
For purposes of this chapter, a regulatory variance or waiver provision included in an applicable state and federal law shall be considered potentially applicable to interim actions and cleanup actions and the department may determine that a particular regulatory variance or waiver is appropriate if the substantive conditions for such a regulatory variance or waiver are met. In all such cases, interim actions and cleanup actions shall be protective of human health and the environment.
(6) New requirements.
The department shall consider new applicable state and federal laws as part of the periodic review under WAC 173-340-420
. Cleanup actions shall be evaluated in light of these new requirements to determine whether the cleanup action is still protective of human health and the environment.
(7) Selection of cleanup actions.
To demonstrate compliance with WAC 173-340-350
, cleanup actions shall comply with all applicable state and federal laws in addition to the other requirements of this chapter. The following, which is not a complete list, are selected applications of specific applicable state and federal laws to cleanup actions.
(a) Water discharge requirements.
Hazardous substances that are directly or indirectly released or proposed to be released to waters of the state shall be provided with all known, available and reasonable methods of treatment consistent with the requirements of chapters 90.48
RCW and the regulations that implement those statutes.
(b) Air emission requirements.
Best available control technologies consistent with the requirements of chapter 70.94
RCW and the regulations that implement this statute shall be applied to releases of hazardous substances to the air resulting from cleanup actions at a site.
(c) Solid waste landfill closure requirements.
For solid waste landfills, the solid waste closure requirements in chapter 173-304
WAC shall be minimum requirements for cleanup actions conducted under this chapter. In addition, when the department determines that the closure requirements in chapters 173-351
WAC are legally applicable or relevant and appropriate requirements, the more stringent closure requirements under those laws shall also apply to cleanup actions conducted under this chapter.
(d) Sediment management requirements.
Sediment cleanup actions conducted under this chapter shall comply with the sediment cleanup standards in chapter 173-204
WAC. In addition, a remedial investigation/feasibility study conducted under WAC 173-340-350
shall also comply with the cleanup study plan requirements under chapter 173-204
WAC. The process for selecting sediment cleanup actions under this chapter shall comply with the requirements in WAC 173-340-350
(8) Interim actions.
Interim actions conducted under this chapter shall comply with legally applicable requirements. The department may also determine, based on the criteria in subsection (3) of this section, that other requirements, criteria, or limitations are relevant and appropriate for interim actions.
(9) Permits and exemptions.
(a) Independent remedial actions must obtain permits required by other federal, state and local laws.
(b) Under RCW 70.105D.090
, remedial actions conducted under a consent decree, order, or agreed order, and the department when it conducts a remedial action are exempt from the procedural requirements of certain laws. This exemption shall not apply if the department determines that the exemption would result in loss of approval from a federal agency necessary for the state to administer any federal law. This exemption applies to the following laws:
(i) Chapter 70.94
(ii) Chapter 70.95
(iii) Chapter 70.105
(iv) Chapter 75.20
(v) Chapter 90.48
(vi) Chapter 90.58
(vii) Any laws requiring or authorizing local government permits or approvals for the remedial action.
(c) Remedial actions exempt from procedural requirements under (a) and (b) of this subsection still must comply with the substantive requirements of these laws.
(d) The department shall ensure compliance with substantive requirements and provide an opportunity for comment by the public and by the state agencies and local governments that would otherwise implement these laws as follows:
(i) Before proposing any substantive requirements, the department or potentially liable persons, if directed to do so by the department, shall consult with the state agencies and local governments to identify potential permits and to obtain written documentation from the consulted agencies regarding the substantive requirements for permits exempted under RCW 70.105D.090
(ii) The permit exemptions and the substantive requirements, to the extent they are known, shall be identified by the department in the order, decree, or if the cleanup is being conducted by the department, in the work plan prepared by the department.
(iii) A public notice of the order, decree or work plan shall be issued in accordance with WAC 173-340-600
. The notice shall specifically identify the permits exempted under RCW 70.105D.090
and seek comment on the substantive requirements proposed to be applied to the remedial action. This notice shall be mailed to the state agencies and local governments that would otherwise implement these permits. This notice shall also be mailed to the same individuals that the state agencies and local government have identified that would normally be mailed notice to if a permit was being issued.
(iv) Substantive requirements, to the extent known and identified by the state agencies and local governments before issuing the order, decree or work plan and those identified by the state agencies and local government during the public comment period shall be incorporated into the order, decree or work plan if approved by the department.
(e) It shall be the continuing obligation of persons conducting remedial actions to determine whether additional permits or approvals or substantive requirements are required. In the event that either the person conducting the remedial action or the department becomes aware of additional permits or approvals or substantive requirements that apply to the remedial action, they shall promptly notify the other party of this knowledge. The department, or the potentially liable person at the department's request, shall consult with the state or local agency on these additional requirements. The department shall make the final determination on the application of any additional substantive requirements at the site.
[Statutory Authority: Chapter 70.105D RCW. 01-05-024 (Order 97-09A), § 173-340-710, filed 2/12/01, effective 8/15/01; 91-04-019, § 173-340-710, filed 1/28/91, effective 2/28/91.]