PROPOSED RULES
Original Notice.
Preproposal statement of inquiry was filed as WSR 97-10-092.
Title of Rule: Model Toxics Control Act, public participation grants; and remedial action grants.
Purpose: Implement changes recommended by the Policy Advisory Committee in its December 1996 report to the legislature and ecology; comply with other laws and the governor's executive order on regulatory reform.
Statutory Authority for Adoption: Chapter 70.105D RCW.
Statute Being Implemented: Chapter 70.105D RCW.
Summary: Amend the rules for the Model Toxics Control Act, public participation grants, and remedial action grants to reduce confusion experienced by constituents wanting to cleanup contaminated property.
Reasons Supporting Proposal: Clarify, strengthen, and apply new methodologies and science that will create a more effective rule that is protective of human health and the environment.
Name of Agency Personnel Responsible for Drafting: Trish Akana, Olympia, (360) 407-7230; Implementation and Enforcement: Toxics Cleanup Program, State-wide, (360) 407-6000.
Name of Proponent: Washington State Department of Ecology, governmental.
Rule is not necessitated by federal law, federal or state court decision.
Explanation of Rule, its Purpose, and Anticipated Effects: The rules will increase flexibility in varying parameters to define cleanup levels and remediation levels; defines objectives and framework for regulations on ecological risk assessment; clarifies remedy selection and streamlines the process; encourage cleanups through various approaches to area-wide contamination; allow early public involvement and technical assistance to communities; streamline the grants procedures; and replace interim guidance on total petroleum hydrocarbons.
Proposal Changes the Following Existing Rules: The liable party could propose site-specific exposure assumptions; citizens will be assured of early notice and more effective participation in site cleanup decisions affecting the community's quality of life; if there are soil-based ecological resources on or nearby the site, the liable party can more easily evaluate the need for an ecological risk assessment; emphasis is added on evaluating the cost and reliability of institutional controls as part of remedy selection; area-wide solutions to contamination offer alternatives that will speed cleanup and expedite redevelopment; and if the site contains petroleum contamination, a new approach will be available to more accurately reflect the characteristics and risks of the contamination within the existing cleanup methods.
A small business economic impact statement has been prepared under chapter 19.85 RCW.
(a) Investigate, provide for investigating, or require
potentially liable persons to investigate any releases or
threatened releases of hazardous substances, including but not
limited to inspecting, sampling, or testing to determine the
nature or extent of any release or threatened release...; (b) Conduct, provide for conducting, or require potentially
liable persons to conduct remedial actions (including
investigations under (a) of this subsection) to remedy releases
or threatened releases of hazardous substances... In conducting,
providing for, or requiring remedial action, the department shall
give preference to permanent solutions to the maximum extent
practicable...; (e) Classify substances as hazardous substances...; (g) Enforce the application of permanent and effective
institutional controls that are necessary for a remedial action
to be protective of human health and the environment; (h) Require holders to conduct remedial actions necessary to
abate an imminent or substantial endangerment...; (i) Provide informal advice and assistance to persons
regarding the administrative and technical requirements of this
chapter; and (j) Take any other actions necessary to carry out the
provisions of this chapter, including the power to adopt
rules...
With regard to rule making, the MTCA further directed ecology to:
Publish and periodically update minimum cleanup standards for remedial actions at least as stringent as the federal cleanup standards under section 121 of the federal cleanup law, 42 [U].S.C. 9621 and at least as stringent as all applicable state and federal laws, including health-based standards under state and federal law (RCW 70.105D.030 (2)(e)).
Ecology regulations implementing MTCA--Adopted in the early 1990s--Have been very effective in moving sites through cleanup. As of September, 1999, 43% of the more than 7,700 contaminated sites require no further action; the cleanup is in-progress at 38% of the sites; and cleanup is pending at 19% of the sites. One measure of the progress achieved towards cleaning up sites are the nearly 3.66 million pounds of toxic contaminants that were treated, removed, recycled or contained in 1997.1
Despite this success, certain aspects of the regulation are controversial. In response, the 1995 legislature adopted ESHB 1810 which directed ecology to establish a Policy Advisory Committee "...to provide advice to the legislature and the department on administrative and legislative actions to more effectively implement the model toxics control act" (Section 1, HB 1810). The law specifically directed the Policy Advisory Committee to consider substantive regulatory changes in the following areas:
(1) Use of site-specific risk assessments.
(2) Evaluation of ecological cleanup standards and the need to establish and adopt levels to protect the environment.
(3) Delivery of enhanced technical assistance to liable persons thereby helping small business and others with the cleanup process.
(4) Methods to enhance public participation.
(5) Greater assurance about the quality of independent cleanups.
(6) Greater assurance of the successful use of institutional and engineering controls to protect people and the environment from hazardous substances left at a site.
(7) Increased initiatives to cleanup area-wide sites that are commonly known as brownfields to re-enter the market as productive, useable, tax-revenue generating and economically restored property.
(8) More understandable and usable regulations that reflect how cleanups are conducted under MTCA.
(9) More options for addressing and resolving disputes between ecology and liable persons.
(10) Developing a short- and long-term strategy for dealing with the most prevalent contaminant: Petroleum.
The Policy Advisory Committee submitted its final report on December 15, 1996. The final report contains numerous recommendations for regulatory changes to the Act. Throughout its work, the Policy Advisory Committee clearly expected that its recommendations would form the basis of an ecology proposal to amend the current MTCA rule.
The Proposed Regulatory Revisions: The department is directed by the Model Toxics Control Act to provide grants to persons who may be adversely affected by a release or threatened release of hazardous substance and to not-for-profit public interest groups. These grants are to be used to facilitate public participation in the investigation and remediation of a release or threatened release of a hazardous substance and to facilitate public participation in the implementation of the state's solid and hazardous waste management priorities. The purpose of chapter 173-321 WAC is to set forth eligibility criteria and funding requirements for ecology to follow in providing these grants. Because proposed amendments to this chapter do not affect small (or large) businesses, the proposed changes to this chapter will not have a disproportionate affect on small businesses.
The department is also proposing amendments to chapter 173-322 WAC. This chapter provides the department direction and authority to provide remedial action grants and loans to local governments for the purpose of addressing remedial actions. Because proposed amendments to this chapter do not affect small (or large) businesses, the proposed changes to this chapter will not have a disproportionate affect on small businesses.
After receiving the Policy Advisory Committee's report in December 1996, ecology began a three-year negotiated rule-making effort to craft revisions to the rules (chapter 173-340 WAC). This effort included the formation of an external advisory group and extensive discussions with stakeholders. In addition, a separate advisory group met to review the cleanup standards for sites contaminated with petroleum products. Ecology partnered with the Duwamish Coalition's Total Petroleum Hydrocarbon Project Oversight Group to develop a methodology for setting site-specific, risk-based cleanup levels at petroleum-contaminated sites. The result was the development of rules that will replace the department's interim TPH guidance. In addition, the agency worked extensively with its Science Advisory Board to update the science for analyzing cross-media effects of contamination. Throughout this effort ecology worked to keep interested parties abreast of potential changes under consideration. Thus, the proposed amendments to the MTCA rule reflect the input of individuals both within and outside the department. In June 1998, the department employed the services of a professional mediator to go between constituents and ecology staff and facilitate solutions to outstanding issues.
While touching nearly every section of the current rule, the proposed amendments fall into three main categories. First, many of the proposed amendments simply revise current regulatory language to clarify existing cleanup requirements. State government has long recognized that some administrative rules are difficult to understand. The governor sought to address this problem by requiring agencies to review their regulations to ensure they were understandable to regulated parties (Executive Order on Regulatory Improvement, No. 97-02).
Ecology's review of the MTCA rule revealed that certain sections were less than clear. For example, the proposed amendments include language to better explain development of remediation levels and the remedy selection process. Current ecology policy recognizes and uses the concept of "remediation level" or "action level" (which is different from "cleanup level") during the remedy selection process. However, the concept is not defined and many PLPs are unaware of it. The proposed amendments would formally incorporate and recognize the role of "remediation levels" or "action levels" in the remedy selection process. The proposed amendments would also further explain the remedy selection process: (1) How to scope the feasibility study in order to narrow the focus of alternatives to be evaluated; (2) the criteria used to determine the minimum cleanup requirements and; (3) the criteria used to determine the alternative that is "permanent to the maximum extent practicable." These types of changes would not establish new or alter current regulatory requirements. Rather, they make existing MTCA requirements more understandable to potentially liable persons (PLPs), lending institutions, ecology staff, and other interested parties.
The second category of proposed changes incorporate current ecology policy and guidance into the rule. Since adoption of the original MTCA rule, the department has made many policy decisions and issued many guidance documents on how to implement the rule. For example, current ecology policy on statistical methods for determining compliance is incorporated into the rule, as is ecology's current policy on delisting of sites. Another example where ecology policy has been included in the proposed rule amendments concerns prospective purchaser consent decrees and the 1997 legislative change in criteria.
The final category of proposed amendments would significantly change parts of the MTCA rules. These changes affect the process used to determine the remediation activity(s) and what ecology will accept as a protective remedy, affecting both PLPs and ecology. Examples of these changes include:
| • | The proposed amendments clarify the use of a quantitative risk assessment in evaluating alternatives being considered during the feasibility study and in establishing cleanup levels (within specified constraints). Currently, ecology uses mostly qualitative assessment of the residual risk. While the effect of using quantitative risk assessment will depend on site specific circumstances, ecology generally anticipates higher levels of residual contamination. The amendments include a process for assessing risk to terrestrial ecological receptors and quantitatively estimating cross media effects of contamination in determining cleanup levels. |
| • | The proposed amendments place more emphasis on ensuring the effectiveness of institutional controls. Institutional controls are measures at contaminated sites to ensure that the actual use to which such a site is put after cleanup is compatible with the level of cleanup completed. The proposal places added emphasis on ensuring that adequate funding is available to cover long-term site costs through financial assurances. This change should result in better long-term effectiveness (over the coming decades) of nonpermanent site remedies. |
| • | The proposed amendments authorize ecology to develop model remedies as resources allow. This was recognized as an important measure for small business (see section on mitigation measures). Ecology anticipates that model remedies could be developed for common categories of facilities, types of contamination, types of media, or specific geographic areas. The availability of model remedies will encourage site cleanups for two reasons. First, PLPs could reduce the up-front costs of preparing feasibility studies. Second, PLPs would have more certainty of regulatory approval of an independent remediation. |
| • | The proposed rule adds some new, and changes some existing, cleanup/contamination standards for various contaminants. For example, Method A cleanup levels for groundwater would include standards for MTBE and Naphthalene. The Method A groundwater cleanup levels for some petroleum constituents, such as ethylbenzene, lead, toluene and xylenes, are proposed to be less stringent. For soil, the Method A values for petroleum constituents, such as benzene, ethylbenzene, toluene and xylenes, will become more stringent. |
Each rule proposed by ecology in response to legislative mandates must comply with the Administrative Procedure Act (RCW 34.05.328) and the Regulatory Fairness Act (chapter 19.85 RCW).
The Regulatory Fairness Act (act)2 requires RCW agencies to prepare a small business economic impact statement (SBEIS) prior to proposing to amend or adopt a regulation. The impetus for the legislation was a concern that regulatory mandates could "...threaten the very existence of some small businesses" (RCW 19.85.011). The act defines a small business as "any business entity, including a sole proprietorship, corporation, partnership, or other legal entity, that is owned and operated independently from all other businesses, that has the purpose of making a profit, and that has fifty or fewer employees" (RCW 19.85.020).
Ecology used the following process to determine whether it should provide regulatory relief to small businesses in the proposed rule.
| Step I | Determine the categories of businesses affected by the proposed regulations. |
| Step II | Determine the range of employment for each category of business. |
| Step III | Determine the "more than minor" cost threshold for each category of business. |
| Step IV | Determine whether the estimated cost exceeds the "more than minor" cost threshold for each category of business. |
| Step V | Determine whether the proposed regulations imposes a disproportionate cost burden on small businesses. |
| Step VI | Determine whether regulatory relief for small businesses is legal and feasible. |
| Step VII | Describe the regulatory relief provided to small businesses. |
| Step VIII | Miscellaneous SBEIS requirements. |
Step I: What Businesses are Affected by the Proposed Regulation? The proposed rule is somewhat unusual in that it does not directly regulate a specific category of businesses. Rather, it regulates the cleanup of contaminated land. An affected business is one that has in the past or will in the future, knowingly or unknowingly generates or arranges for disposal of hazardous substances or owns or operates a facility where hazardous substances have been released into the environment. Thus, virtually all businesses in the state could fall under this regulation. However, for most business or industrial categories, only a subset of entities will have a release that poses a threat to human health or the environment will be affected by the proposed rule amendments.3
Ecology used its integrated site information system (ISIS) to identify the types of businesses that commonly have hazardous waste contamination problems and would be affected by the proposed rule. (Sites listed in the ISIS database have known or suspected hazardous waste contamination.) Through this effort, ecology identified twelve categories of businesses (identified by standard industrial code or SIC) with high numbers of contaminated sites:
Metal Mining
Miscellaneous Wood Products
Natural Gas Production and Distribution
Petroleum Refining
Petroleum Asphalt
Miscellaneous Petroleum Products
Electroplating
Agricultural Chemicals
Sanitary Sewerage and Refuse Systems
Scrap Metal and Waste
Gasoline Service Stations
Automotive Repair
While many businesses affected by the proposed rule fall outside these twelve categories, ecology believes they cover a sufficient range of activities to determine whether the proposed rule would impose disproportionate costs on small businesses.
Step II: What is the Employment Profile of Businesses Affected by the Proposed Regulation? To determine the employment profiles of businesses potentially affected by the proposed amendments, ecology turned to reports issued by the United States Department of Commerce.4 Table 1 presents state employment for each identified category of business. Most business categories have many more employers with fewer than fifty employees than those with more than fifty employees. However, since all but one category includes businesses with both more than fifty and less than fifty employees, the proposed regulation clearly has the potential to impose disproportionate costs on small businesses.
Employment Statistics of Business Categories Commonly Affected by the Proposed Amendments to Model Toxics Control Act Regulations†
| SIC Code | Industry | Total Number of Establishments | Number of Establishments by Employment-size | Total Number of Employees | |
| 1 to 49 | 50+ | ||||
| 10 | Metal Mining | 28 | 27 | 1 | 351 |
| 249 | Miscellaneous Wood Products | 94 | 82 | 12 | 1750 |
| 287/5191 | Agricultural Chemicals | 29/398 | 25/387 | 4/11 | 799/4216 |
| 291 | Petroleum Refining | 9 | 4 | 5 | 1719 |
| 295 | Petroleum Asphalt | 17 | 13 | 4 | 554 |
| 299 | Miscellaneous Petroleum Products | 4 | 4 | 0 | 63 |
| 347 | Electroplating | 79 | 73 | 6 | 1429 |
| 492 | Natural Gas Production and Distribution | 43 | 35 | 8 | 1791 |
| 495 | Sanitary Sewerage and Refuse Systems | 150 | 136 | 14 | 9489 |
| 5093 | Scrap Metal and Waste | 188 | 180 | 8 | 2141 |
| 554 | Gasoline Service Stations | 1448 | 1443 | 5 | 12330 |
| 753 | Automotive Repair | 3082 | 3076 | 6 | 14594 |
Step III: What are the "more than minor" Cost Thresholds for Businesses Affected by the Proposed Regulation? An SBEIS is required whenever a regulation imposes "more than minor" costs on a regulated business. The "more than minor" threshold ranges from $50 to $300 depending on what standard industrial code (SIC) category the business falls into.5 Given the number and range of businesses potentially affected by the proposed regulations, this SBEIS uses $50 as the benchmark between minor and "more than minor" costs.
Step IV: Do the Costs Imposed by the Proposed Rule Exceed the "more than minor" Cost Threshold? When calculating the cost of proposed amendments to existing regulations, it is very important to separate out and ignore the cost of the current regulations. While important to the liable parties, the costs of complying with the current requirements are not relevant to this analysis. The only cost issue for the SBEIS analysis is how much more or less businesses will pay to comply with the amended rule.
The wide scope of the proposed amendments to the rules implementing the Model Toxics Control Act will increase costs for some businesses and decrease costs for others. For example, the proposed changes to the Method "A" soil cleanup standards could increase costs for sites contaminated with benzene and lower the cleanup cost for sites with heating oil contamination. Similarly, if a person chooses to revise the default input parameters for calculating soil ingestion cleanup levels for sites contaminated with petroleum mixtures, then the revised parameters could raise or lower costs. The proposed amendments would make other changes that will raise cleanup costs at certain sites. Specifically, the addition of dermal and vapor exposure pathways when using site-specific risk assessments to develop soil cleanup standards may increase costs at sites that choose this option. Still other proposed changes could decrease cost such as the provisions expanding the use of quantitative risk assessment when selecting the cleanup remedy.
The estimated change in cleanup costs brought about by the proposed amendments will vary substantially among businesses both within and between industrial categories. Usually only a subset of businesses in any given category will have contributed to a contamination problem and therefore face cleanup costs. Moreover, the actual cleanup costs depend on many factors: The quantity and toxicity of chemicals used by the business; the type of ground underlying the contamination (e.g., rock, sand, silt or clay); the proximity of the contaminated land to residential areas; and, whether the contaminated land overlays an aquifer.
Another factor affecting business costs is whether the contamination was caused by more than one entity. In such cases, the cleanup costs can often be spread among several PLPs. Despite these factors, any business responsible for cleaning up even a small portion of a small area of low toxicity contamination will virtually always exceed the "more than minor" cost threshold. Therefore, ecology concludes that the proposed regulatory amendments will increase costs by more than the "more than minor" $50 cost threshold.
To provide an example of the likely cost impact of the proposed rule amendments on businesses, ecology considered their effect on gasoline refueling stations. Gasoline station owners where releases to the environment have occurred can choose one of two types of cleanup processes: Method A or Method B. Those choosing Method A may experience slightly higher costs under the proposed rule. The proposal would lower residual soil cleanup levels for several contaminants (e.g., gasoline, ethylbenzene and xylene). Therefore, dependent on soil type and the extent of contaminates released to the environment, the consequence of this change may be that gas station owners would have to treat in-place or remove and haul away additional soil. This is also dependent on the remedy that will ultimately be selected. If additional contaminated soil needs to be removed, cleanup costs will be slightly higher.
The change in cost to gas station owners choosing Method B type cleanup will be less certain. The proposed rule amendments will increase the amount of precleanup planning, evaluating and testing. However, by basing the cleanup on site-specific parameters (e.g., the proximity of the site to people and ground water) the proposed rule would afford gas station owners the opportunity to lower the amount of soil removed and thereby reduce costs. Thus, the department did not predict the overall effect of the proposed rule amendments on gas station owners choosing Method B type of cleanup. Under the current rules, most gas station owners have chosen to follow a Method A type cleanup process. Given the potential for the proposed rule amendments to decrease the cost of Method B cleanups, the department expects that the number of gas stations choosing Method B will slightly increase under the proposed rule.
Step V: Does the Proposed Regulation Impose a Disproportionate Cost Burden on Small Businesses? To determine whether the proposed rule will disproportionately affect small businesses, the act requires a comparison of "the cost of compliance for small business with the cost of compliance for the ten percent of [the largest] businesses... using one or more of the following as a basis for comparing costs:
(a) Cost per employee;
(b) Cost per hour of labor; or
(c) Cost per $100 of sales." (RCW 19.85.040)
Of the alternative ways to compare costs, the preferable approach is "cost per $100 of sales." By providing a measure of the effect of the proposed rule on the profits of affected businesses, this approach best indicates the likelihood that the businesses will continue (or fail). Thus, this approach most directly addresses the legislature's concern of whether a proposed rule "...threaten[s] the very existence of some small businesses."
As stated above, the costs to cleanup contaminated sites to MTCA standards are large and may vary widely depending on specific site and business circumstances. A small business economic impact statement prepared for the existing MTCA cleanup regulations found that "the draft regulation does have a disproportional impact on small business."6 For example, small businesses in the electric, gas and sanitary services industry faced costs up to 100 times the cleanup costs (relative to sales) as their larger counterparts. The principal finding of that analysis was that cleanup costs are proportional to business size--larger businesses have a larger sales base over which to spread regulatory costs.
In this rule revision, more sophisticated methods are available to make risk assessment and risk management decisions, but these methods may not be as readily used by small business as large business because they are more complex and technical. As a result, ecology concludes that small businesses are more likely to face disproportionately higher costs than large businesses.
Step VI: Is Regulatory Relief for Small Businesses Legal and Feasible? When an agency finds disproportionate cost impacts, the act requires the agency to reduce the costs imposed by the rule on small businesses "where legal and feasible in meeting the stated objectives of the statutes upon which the rule is based" (RCW 19.85.030). Therefore, the next logical question is can ecology provide relief?
The statute from which ecology derives its authority to issue these regulations describe overarching goals rather than specific regulatory requirements:
| • | Each person has a fundamental and inalienable right to a healthful environment, and each person has a responsibility to preserve and enhance that right. The beneficial stewardship of the land, air, and waters of the state is a solemn obligation of the present generation for the benefit of future generations (RCW 70.105D.010). |
| • | It is in the public's interest to efficiently use our finite land base, to integrate our land use planning policies with our cleanup policies, and to cleanup and reuse contaminated industrial properties in order to minimize industrial development pressures on undeveloped land and to make clean land available for future social use (RCW 70.105D.010). |
| • | ...the purpose of this chapter [is] to identify, eliminate, or minimize any threat or potential threat posed by hazardous substances to human health or the environment... (RCW 70.105D.020(21)). |
| • | In conducting, providing for, or requiring remedial action, the department shall give preference to permanent solutions to the maximum extent practicable and shall provide for or require adequate monitoring to ensure the effectiveness of the remedial action (RCW 70.105D.030 (1)(b)). |
Step VII: The Regulatory Relief Provided to Small Businesses: The act provides some guidance for the provision of small business relief due to disproportionate cost impacts.
"Methods to reduce the costs on small businesses may include:
(a) Reducing, modifying, or eliminating substantive regulatory requirements;
(b) Simplifying, reducing, or eliminating recordkeeping and reporting requirements;
(c) Reducing the frequency of inspections;
(d) Delaying compliance timetables;
(e) Reducing or modifying fine schedules for noncompliance; or
(f) Any other mitigation techniques (RCW 19.85.030)."
After carefully considering these approaches within the underlying statutory objectives, ecology included several elements in the MTCA rules to mitigate economic impacts. Many of these elements continue from the current MTCA rules while a few are new or expand on existing provisions to mitigate small business costs.
1. The proposed rule explicitly allows that a remediation level that leaves hazardous substances at the site in concentrations above cleanup levels may be considered protective of human health and the environment. Many small businesses have not been aware of this concept that has been allowed under the current rule. Explicitly defining and using it in the rule makes this option more available and "user friendly" to small business.
2. The proposed amendments would include provisions allowing the establishment of an off-property point of compliance for area-wide groundwater contamination by multiple sites.
3. The proposed amendments expand the types of financial assurance mechanisms that ecology will accept. The current rule requires a trust fund or equivalent mechanism. The change provides more flexibility for businesses to choose an instrument that meets the particular needs of the business. Exceptions from the requirement for financial assurances that will most likely apply to small businesses include where the potentially liable persons for the site will have insufficient funds to conduct the cleanup or where requiring a financial assurance would force a potentially liable person for the site into bankruptcy or similar financial hardship.
4. Ecology will develop model remedies covering sites with similar types of facilities, types of contamination, types of media, or specific geographic areas. Typically, the type of cleanups for which ecology will develop model remedies will meet the following criteria: a) The site conditions including facilities and contamination that commonly occur; b) the remediation choices are obvious and limited; c) the selected remediation method has been proven capable of achieving the cleanup standards; and d) ecology has experience with similar remediation efforts at other sites. Gasoline leaking from underground storage tanks is one example of the type of sites for which ecology is likely to develop a model remediation. When developed the streamlined procedures mitigate the economic costs of site remediation.
5. The proposed amendments include provisions providing for technical consultations and assistance for independent remedial actions. Experience has shown that most cleanups are done independently and that most of these are done by small businesses. Providing specific authorization and a process for technical assistance on these cleanups will primarily benefit small businesses. Ecology can waive fees for the technical assistance based on a person's ability to pay or when costs are de minimis. If the level of consultation a business (small or large) desires for its sites more in-depth or time consuming for ecology staff than that provided without charge, the business will have the option of continuing its consultation by entering into an agreement to reimburse ecology for its costs of providing the business assistance.
6. Provisions allow the use of site-specific risk assessment in setting cleanup levels, remediation levels, or in making remedial action decisions under MTCA within certain limitations. This may result in an increase or decrease in cleanup levels and/or remediation levels (and subsequently costs) from the existing rule. To assist the small business, ecology has also provided specific procedures for conducting site-specific risk assessments. However, this method is optional and business may still choose to use Method A values rather than following the more complex methodology provided in Method B.
7. The state toxics control account can be used to help fund remediation efforts. Use of this financial resource is limited to situations where the additional funds will substantially expedite and enhance a remediation activity and prevent or mitigate unfair economic hardship. This funding source will help small business most since they generally have more difficulty raising the necessary funds to complete the remediation actions for which they are liable. Funding needs are evaluated on a case-by-case basis, and financial assistance can range from a partial subsidy to a complete subsidy for cleanup activities. Financial assistance is contingent upon the availability of funds within the model toxics control account.
8. Ecology can facilitate resource sharing during data collection activities related to monitoring. For example, ecology may be able to facilitate resource sharing among applicants in areas where there are several potentially liable parties in close proximity. Ecology can also provide data available from compliance monitoring programs.
9. Many sites have multiple sources of contamination or multiple potentially liable persons or both. Because liability under the MTCA is strict joint and several, the agency may choose to pursue one PLP or many PLPs at a site. One department consideration when deciding on which PLP(s) to pursue is the financial resource available for payment of remedial action costs. This flexibility can lessen the burden on small businesses to the extent that multiple parties share cleanup costs for a site.
10. Ecology has a provision establishing an administrative process for issuing agreed orders that will help to mitigate the impacts of the proposed rule on small businesses. As opposed to a consent decree or a unilateral order, an agreed order may be more desirable to potentially liable parties because of the relatively streamlined process associated with this kind of order (e.g., the assistance of an attorney is not necessarily required). Agreed orders may be used for any type of cleanup action. Because they represent a simplified means of complying with some of the requirements of the cleanup decision process, these legal tools are especially well suited for small businesses.
11. Interim actions provide a means of economic mitigation for small businesses. Interim cleanup of a site may be required to reduce threats from contamination while a complete investigation is being performed. Interim actions do not completely achieve cleanup standards at a site. This can be used in some situations to spread the costs of remediation over a period of time. However, the interim action must be consistent with the final cleanup action, or, if the cleanup action is not known, the interim action must not eliminate reasonable cleanup alternatives. To the extent that interim actions are taken to address problems before they become worse with time, this provision may also contribute to an overall reduction in the total cleanup cost that may be borne by small businesses.
12. The proposal for adding a Citizen Technical Advisor within ecology should directly benefit small business by providing an information resource to increase understanding of the Model Toxics Control Act and cleanup issues. The Citizen Technical Advisor may be available to citizens, citizens groups and businesses. The duties of the advisor will include:
| • | As time allows, provide technical review of site-specific risk documents at the request of citizens or businesses, |
| • | As time allows, review documents as requested by citizens or businesses, including background documents as necessary, |
| • | Answer general questions from the public related to risk assessment, remedial actions, and site cleanup process, |
| • | Translate technical terminology into nontechnical language, and |
| • | Reviewing notices to the public relevant to risk and to provide comment on the effectiveness of communication and key risk issues, at the request of citizens or business. |
Step VIII: Miscellaneous SBEIS requirements:
0How did ecology involve affected businesses and other interested parties in the development of the rule? The department's proposal to amend chapter 173-340 WAC began with the legislature's adoption of HB 1810 in 1995. Ecology brought together a twenty-two member Policy Advisory Committee representing diverse views from the legislature, local government, large and small businesses, agriculture, environmental organizations, financial institutions, ports, ecology and the Department of Health. Through their affiliations with larger interest groups, Policy Advisory Committee members carried forward and represented information, interests and objectives of a much larger constituency. The eighteen-month PAC process, resulted in a series of recommended changes to current MTCA regulations. These recommendations formed the starting point for ecology's process to develop the proposed regulatory amendments.
Ecology established an External Advisory Workgroup to review and advise the agency regarding rule development. The committee members participated in negotiating the proposal. The department also actively sought input from the regulated community, community leaders, environmental organizations and others on its proposals through mass mailings of meeting announcements and documents. Ecology distributed for public comment a discussion draft of potential regulatory amendments in December of 1998, and then held two public workshops, one held in Seattle and the other in Spokane, to take informal public comment. Ecology significantly revised the proposed amendment on the basis of the comments received from sixty-seven individuals providing their input.
1What are the reporting, recordkeeping, and other compliance requirements? The proposed changes to the Model Toxics Control Act provide for reporting and recordkeeping; the required format that data or information must be submitted to ecology; and the length of time that records must be retained by the site owner/operator. Examples of these changes to sections within the MTCA include:
| • | Changes to WAC 173-340-420 requires ecology to conduct periodic reviews of a site whenever ecology conducts a cleanup action plan or approves a cleanup action where in ecology's judgment, modification to the default equations or assumption using site-specific information would significantly increase the concentration of hazardous substances remaining at the site after cleanup. Additionally, ecology would conduct a periodic review at sites where there is uncertainty in the ecological evaluation or where the reliability of the cleanup action requires an assurance that long-term protection of human health and the environment is being achieved. Ecology believes that these requirements would primarily affect larger sites that choose to perform a site-specific risk assessment. |
| • | Changes to WAC 173-340-440 require institutional controls whenever contaminated soil is left near the ground surface so that plants and animals could be affected by it. The purpose of institutional controls is to limit activities that may interfere with a cleanup taking place or resulting in exposure to hazardous substances at the site. |
| • | Changes to WAC 173-340-840 will require sampling data to be submitted in both electronic and printed form. Most site owners/operators are currently required to do this now in accordance with department procedures. Therefore, this requirement only clarifies existing agency procedures and should not add additional cost to owners/operators. |
| • | Changes to WAC 173-340-850 will require site cleanup records to be kept as long as institutional controls are in effect to ensure the remedial action is adequately carried out. Currently, site owners/operators are required to retain records for ten years. Experience has shown that some cleanups continue beyond a ten-year period. The cost of retaining these records for additional time should have minimal impact, since most owner/operator's records are kept for tax or real estate purposes anyway. |
Ecology also finds it unlikely that the proposed amendment will result in significantly higher prices. Businesses will be limited in their ability to pass through costs because the proposed amendments only affect a portion of the businesses in most industrial categories. In order to remain competitive, most businesses will have to hold the line on prices. The result is that ecology expects most cleanup expenditures to come out of business profits. Because the effect of the rule varies considerably from site to site, ecology is unable to predict with any certainty the overall effect on business profits.
One exception to this expectation is for gas stations. The department's experience suggests that most gas stations have had releases from their underground storage tank system or from overfills. Therefore, most gas stations will face cleanup costs at some point. Generally, the cleanup costs range from $10,000 to $100,000. Assuming a $50,000 cost that is paid for over five years at an 8% rate of interest is an annual cost of $12,500. While the proposed rules may slightly increase this cost, ecology does not expect an increase of more than 20%, or $2500 per year. Dividing this cost by the 50,000 gallons the typical gas station pumps each month results in an estimated additional per gallon cost of less than $0.01 per gallon. Therefore, the department anticipates that consumers would see minimal increase in the cost of gasoline as a result of the proposed rule.
3What professional services is a small business likely to
need in order to comply with the requirements of the proposed
rule? A small business may need a variety of professional
services to comply with the existing rule. The proposed rule
should not change the need for a small business to obtain
professional services. If the small business would have needed
professional services to implement the existing rule they will
likely require professional services to implement the rule after
the changes are in effect. In summary, to implement the existing
rule or the proposed changes a business may need to hire an
accredited laboratory to extract and analyze samples and a
consultant to interpret and report the results. Depending on the
findings in the initial report, a business may need a consultant
to prepare a remedial investigation and a feasibility study of
cleanup alternatives. In this case the business may also have to
hire a contractor to perform the actual cleanup. Finally, a
business may likely retain legal counsel to help determine
liability and to review decrees or orders and the cleanup action
plan.
Regulatory Fairness Act,
Chapter 19.85 RCW
RCW 19.85.020 Definitions. Unless the context clearly indicates otherwise, the definitions in this section apply through this chapter.
(1) "Small business" means any business entity, including a sole proprietorship, corporation, partnership, or other legal entity, that is owned and operated independently from all other businesses, that has the purpose of making a profit, and that has fifty or fewer employees.
(2) "Small business economic impact statement" means a statement meeting the requirements of RCW 19.85.040 prepared by a state agency pursuant to RCW 19.85.030.
(3) "Industry" means all of the businesses in this state in any one four-digit standard industrial classification as published by the United States department of commerce. However, if the use of a four-digit standard industrial classification would result in the release of data that would violate state confidentiality laws, "industry" means all businesses in a three-digit standard industrial classification. [1994 c 249 § 10; 1993 c 280 § 34; 1989 c 374 § 1; 1982 c 6 § 2.]
RCW 19.85.025 Application of chapter--Limited. (1) Unless an agency receives a written objection to the expedited repeal of a rule, this chapter does not apply to a rule proposed for expedited repeal pursuant to RCW 34.05.354. If an agency receives a written objection to expedited repeal of the rule, this chapter applies to the rule-making proceeding.
(2) This chapter does not apply to a rule proposed for expedited adoption under RCW 34.05.230 (1) through (8), unless a written objection is timely filed with the agency and the objection is not withdrawn.
(3) This chapter does not apply to the adoption of a rule described in RCW 34.05.310(4).
(4) An agency is not required to prepare a separate small business economic impact statement under RCW 19.85.040 if it prepared an analysis under RCW 34.05.328 that meets the requirements of a small business economic impact statement, and if the agency reduced the costs imposed by the rule on small business to the extent required by RCW 19.85.030(3). The portion of the analysis that meets the requirements of RCW 19.85.040 shall be filed with the code reviser and provided to any person requesting it in lieu of a separate small business economic impact statement. [1997 c 409 § 212; 1995 c 403 § 401.]
RCW 19.85.030 Agency rules--Small business economic impact statement--Reduction of costs imposed by rule. (1) In the adoption of a rule under chapter 34.05 RCW, an agency shall prepare a small business economic impact statement: (a) If the proposed rule will impose more than minor costs on businesses in an industry; or (b) if requested to do so by a majority vote of the joint administrative rules review committee within forty-five days of receiving the notice of proposed rule making under RCW 34.05.320. However, if the agency has completed the pilot rule process as defined by RCW 34.05.313 before filing the notice of a proposed rule, the agency is not required to prepare a small business economic impact statement.
An agency shall prepare the small business economic impact statement in accordance with RCW 19.85.040, and file it with the code reviser along with the notice required under RCW 34.05.320. An agency shall file a statement prepared at the request of the joint administrative rules review committee with the code reviser upon its completion before the adoption of the rule. An agency shall provide a copy of the small business economic impact statement to any person requesting it.
An agency may request assistance from the business assistance center in the preparation of the small business economic impact statement.
(2) The business assistance center shall develop guidelines to assist agencies in determining whether a proposed rule will impose more than minor costs on businesses in an industry and therefore require preparation of a small business economic impact statement. The *business assistance center may review an agency determination that a proposed rule will not impose such costs, and shall advise the joint administrative rules review committee on disputes involving agency determinations under this section.
(3) Based upon the extent of disproportionate impact on small business identified in the statement prepared under RCW 19.85.040, the agency shall, where legal and feasible in meeting the stated objectives of the statutes upon which the rule is based, reduce the costs imposed by the rule on small businesses. Methods to reduce the costs on small businesses may include:
(a) Reducing, modifying, or eliminating substantive regulatory requirements;
(b) Simplifying, reducing, or eliminating recordkeeping and reporting requirements;
(c) Reducing the frequency of inspections;
(d) Delaying compliance timetables;
(e) Reducing or modifying fine schedules for noncompliance; or
(f) Any other mitigation techniques. [1995 c 403 § 402; 1994 c 249 § 11. Prior: 1989 c 374 § 2; 1989 c 175 § 72; 1982 c 6 § 3.]
RCW 19.85.040 Small business economic impact statement--Purpose--Contents. (1) A small business economic impact statement must include a brief description of the reporting, recordkeeping, and other compliance requirements of the proposed rule, and the kinds of professional services that a small business is likely to need in order to comply with such requirements. It shall analyze the costs of compliance for businesses required to comply with the proposed rule adopted pursuant to RCW 34.05.320, including costs of equipment, supplies, labor, and increased administrative costs. It shall consider, based on input received, whether compliance with the rule will cause businesses to lose sales or revenue. To determine whether the proposed rule will have a disproportionate impact on small businesses, the impact statement must compare the cost of compliance for small business with the cost of compliance for the ten percent of businesses that are the largest businesses required to comply with the proposed rules using one or more of the following as a basis for comparing costs:
(a) Cost per employee;
(b) Cost per hour of labor; or
(c) Cost per one hundred dollars of sales.
(2) A small business economic impact statement must also include:
(a) A statement of the steps taken by the agency to reduce the costs of the rule on small businesses as required by RCW 19.85.030(3), or reasonable justification for not doing so, addressing the options listed in RCW 19.85.030(3);
(b) A description of how the agency will involve small businesses in the development of the rule; and
(c) A list of industries that will be required to comply with the rule. However, this subsection (2)(c) shall not be construed to preclude application of the rule to any business or industry to which it would otherwise apply.
(3) To obtain information for purposes of this section, an agency may survey a representative sample of affected businesses or trade associations and should, whenever possible, appoint a committee under RCW 34.05.310(2) to assist in the accurate assessment of the costs of a proposed rule, and the means to reduce the costs imposed on small business. [1995 c 403 § 403; 1994 c 249 § 12. Prior: 1989 c 374 § 3; 1989 c 175 § 73; 1982 c 6 § 4.]
RCW 19.85.050 Agency plan for review of business rules--Scope--Factors applicable to review--Annual list. (1) Within one year after June 10, 1982, each agency shall publish and deliver to the office of financial management and to all persons who make requests of the agency for a copy of a plan to periodically review all rules then in effect and which have been issued by the agency which have an economic impact on more than twenty percent of all industries or ten percent of the businesses in any one industry. Such plan may be amended by the agency at any time by publishing a revision to the review plan and delivering such revised plan to the office of financial management and to all persons who make requests of the agency for the plan. The purpose of the review is to determine whether such rules should be continued without change or should be amended or rescinded, consistent with the stated objectives of applicable statutes, to minimize the economic impact on small businesses as described by this chapter. The plan shall provide for the review of all such agency rules in effect on June 10, 1982, within ten years of that date.
(2) In reviewing rules to minimize any significant economic impact of the rule on small businesses as described by this chapter, and in a manner consistent with the stated objectives of applicable statutes, the agency shall consider the following factors:
(a) The continued need for the rule;
(b) The nature of complaints or comments received concerning the rule from the public;
(c) The complexity of the rule;
(d) The extent to which the rule overlaps, duplicates, or conflicts with other state or federal rules, and, to the extent feasible, with local governmental rules; and
(e) The degree to which technology, economic conditions, or other factors have changed in the subject area affected by the rule.
(3) Each year each agency shall publish a list of rules which are to be reviewed pursuant to this section during the next twelve months and deliver a copy of the list to the office of financial management and all persons who make requests of the agency for the list. The list shall include a brief description of the legal basis for each rule as described by RCW 34.05.360, and shall invite public comment upon the rule. [1989 c 175 § 74; 1982 c 6 § 5.]
RCW 19.85.061 Compliance with federal law. Unless so requested by a majority vote of the joint administrative rules review committee under RCW 19.85.030, an agency is not required to comply with this chapter when adopting any rule solely for the purpose of conformity or compliance, or both, with federal statute or regulations. In lieu of the statement required under RCW 19.85.030, the agency shall file a statement citing, with specificity, the federal statute or regulation with which the rule is being adopted to conform or comply, and describing the consequences to the state if the rule is not adopted. [1995 c 403 § 404.]
1 Model Toxics Control Account, 1998 Annual Report, Washington State Department of Ecology, No. 98-603.
2 The Regulatory Fairness Act is codified in chapter 19.85 RCW.
3 One exception to this general rule is gas stations. Virtually all gas stations have had a release; therefore, almost all businesses in this category are affected.
4 U.S. Dept. of Commerce, County Business Patterns, 1996, Washington, CBP/96-49, November 1998, Tables 1a, 1b, and 1c.
5 Facilitating Regulatory Fairness, Washington State Department of Community, Trade and Economic Development, Washington State Business Assistance Center, 1995.
6 "Small Business Economic Impact Statement, Model Toxics Control Act Cleanup Regulation, chapter 173-340 WAC," Department of Ecology, October 1989.
A copy of the statement may be obtained by writing to Trish Akana, Rules Coordinator, Toxics Cleanup Program, P.O. Box 432, Olympia, WA 98504-7600, phone (360) 407-7230, fax (360) 407-7154.
The department has determined that the proposed amendments to chapters 173-321 and 173-322 WAC do not affect businesses and, therefore, the changes to those chapters will not have a disproportionate affect on small businesses.
RCW 34.05.328 applies to this rule adoption. These rules are significant under RCW 34.05.328 because they adopt new or make significant amendments to a policy or regulatory program. The agency has conducted the additional analysis required under RCW 34.05.328.
Hearing Location: On December 9, 1999, Thursday, at 6:00 p.m., Washington State University Satellite, Room SS129, 14204 Salmon Creek Avenue, Vancouver, WA; on December 14, 1999, Tuesday, at 1:30 p.m., Mountaineers Building, Tahoma 1 Room, 300 Third Avenue West, Seattle, WA and at 6:00 p.m., Parks Board Room, Denny Park on Dexter, Seattle, Washington; on December 15, 1999, Wednesday, at 6:00 p.m., Department of Ecology, Eastern Regional Office, First Floor Conference Room, Spokane, WA; and on December 16, 1999, Thursday, at 6:00 p.m., Department of Ecology, Central Regional Office, Waterfall/Seafoam Conference Room, 15 West Yakima Avenue, Suite 200, Yakima, WA.
Assistance for Persons with Disabilities: Contact agency by November 17, 1999, TDD (360) 407-6006.
Submit Written Comments to: Trisha Akana, Rules Coordinator, Toxics Cleanup Program, P.O. Box 47600, Olympia, WA 98504-7600, fax (360) 407-7154, by January 17, 2000.
Date of Intended Adoption: May 17, 2000.
October 19, 1999
Dan Silver
Deputy Director
OTS-3344.4
AMENDATORY SECTION(Amending WSR 90-08-086, filed 4/3/90,
effective 5/4/90)
WAC 173-340-100
Purpose.
This chapter is promulgated under the Model Toxics Control Act. It establishes administrative processes and standards to identify, investigate, and cleanup facilities where hazardous substances have come to be located. It defines the role of the department and encourages public involvement in decision making at these facilities.
The goal of this chapter is to implement the policy declared by chapter 70.105D RCW. This chapter provides a workable process to accomplish effective and expeditious cleanups in a manner that protects human health and the environment. This chapter is primarily intended to address releases of hazardous substances caused by past activities although its provisions may be applied to potential and ongoing releases of hazardous substances from current activities.
Note:
All materials incorporated by reference in this chapter are available for inspection at the Department of Ecology's
Toxics Cleanup Program, 300 Desmond Drive, Lacey, Washington, 98503.
[Statutory Authority: Chapter 70.105D RCW. 90-08-086, § 173-340-100, filed 4/3/90, effective 5/4/90.]
(1) Purpose. This section provides an overview of the cleanup process that typically will occur at a site where a release of a hazardous substance has been discovered. If there are any inconsistencies between this section and any specifically referenced sections, the referenced section shall govern.
(2) Site discovery. Site discovery includes:
(a) Release reporting. ((A reporting program is established
to help identify potential hazardous waste sites.)) An owner((s
and)) or operator((s)) who knows of or discovers a release of a
hazardous substance due to past activities must report the
release to the department ((within ninety days of discovery,
under)) as described in WAC 173-340-300. ((Most current releases
of hazardous substances must be reported to the department under
the state's hazardous waste, underground storage tank, or water
quality laws.)) The term "hazardous substance" includes a broad
range of substances as defined by chapter 70.105D RCW.
(b) Initial investigation. Within ninety days of learning
of a hazardous substance release, the department will conduct an
initial investigation of the site under WAC 173-340-310. For
sites that may need further remedial action, the department will
send an early notice letter ((will be sent)) to the owner
((and)), operator, and other potentially liable persons known to
the department, informing them of the department's decision.
(3) Site priorities. ((Priorities)) Sites are prioritized
for further remedial action ((are set)) by the following process:
(a) Site hazard assessment. Based on the results of the
initial investigation, a site hazard assessment will be performed
if necessary, ((under)) as described in WAC 173-340-320. The
purpose of the site hazard assessment is to gather information to
confirm whether a release has occurred and to enable the
department to evaluate the relative potential hazard posed by the
release. If the department decides that no further action is
required, it will notify the public of that decision through the
Site Register.
(b) Hazardous sites list. The department will maintain a
list of sites ((that require)) known as the "hazardous sites
list" where further remedial action is required. ((Sites will be
listed)) The department will add sites to this list after the
completion of a site hazard assessment. Sites placed on the list
will be ranked using the department's hazard ranking method. The
department ((may)) will remove a site from the hazardous sites
list if the ((cleanup action at the site has achieved the cleanup
standards and all remedial actions except confirmational
monitoring have been completed. See)) site meets the
requirements for removal described in WAC 173-340-330.
(c) Biennial program report. Every even-numbered year, the department will prepare a biennial program report for the legislature. The hazard ranking, along with other factors, will be used in this report to identify the projects and expenditures recommended for appropriation. See WAC 173-340-340.
(4) Detailed site investigations and cleanup decisions. The following steps will be taken to ensure that the proper method of cleanup is chosen for the site.
(a) Remedial investigation ((and feasibility study)). A
((state)) remedial investigation((/feasibility study will)) shall
be performed at ranked sites under WAC 173-340-350. The
((state)) purpose of the remedial investigation((/feasibility
study)) is to collect data and information necessary to
define((s)) the extent of ((the problems at the site and
evaluates alternative cleanup actions)) contamination and to
characterize the site.
(b) ((Selection of cleanup action.)) Feasibility study. A
feasibility study shall be conducted at ranked sites under WAC 173-340-350. The purpose of the feasibility study is to develop
and evaluate alternative cleanup actions. The department ((will
evaluate the remedial investigation/feasibility study, establish
cleanup levels and the point or points at which they must be
complied with in accordance with the procedures provided for in
WAC 173-340-700 through 173-340-760 and)) shall select a cleanup
action that ((will)) protects human health and the environment
and ((meet the other)) that is based on the remedy selection
criteria and requirements ((of)) in WAC ((173-340-360))
173-340-350 through 173-340-390. ((At some sites, restrictions
on the use of the land and resources ()) WAC 173-340-440 sets
forth the circumstances in which institutional controls(())) will
be required to ((insure)) ensure continued protection of human
health and the environment. ((See WAC 173-340-440.))
(c) Decision document. The cleanup action ((will)) shall be
set forth in a draft cleanup action plan that addresses cleanup
requirements for hazardous substances at the site. After public
comment on the draft plan, a final cleanup action plan ((will))
shall be issued by the department. (((See WAC 173-340-700 for
additional overview discussion of these requirements.)))
(5) Site cleanup. Once the appropriate cleanup action has been selected for the site, the actual cleanup will be performed.
(a) Cleanup actions. WAC 173-340-400 describes the design and construction requirements for implementing the cleanup action plan.
(b) Compliance monitoring and review. The cleanup action must include compliance monitoring under WAC 173-340-410 and in some cases periodic review under WAC 173-340-420 to ensure the long-term effectiveness of the cleanup action.
(6) Interim actions. Under certain conditions it may be
appropriate to take early actions at a site ((prior to)) before
completing the process described in subsections (2) through (5)
of this section. WAC 173-340-430 describes when it is
appropriate to take these early or interim actions and the
requirements for such actions.
(7) Leaking underground storage tanks. Underground storage
tank (UST) owners and underground storage tank operators
regulated under chapter 90.76 RCW are required to perform
specific actions in addition to what other site owners and
operators would do under this chapter. ((Such additional actions
include reporting of a confirmed release within twenty-four
hours, follow-up investigation, free product removal and
immediate assessment of the threat to human health and the
environment at the site. A written report describing the site
and the actions taken must be submitted within ninety days of
release confirmation. Depending on the results of these actions,
additional remedial actions may be required.)) WAC 173-340-450
describes ((these and other)) the requirements for leaking
underground storage tanks.
(8) Procedures for conducting remedial actions.
(a) Remedial action agreements. The department has authority to take remedial actions or to order persons to conduct remedial actions under WAC 173-340-510 and 173-340-540. However, the department encourages agreements for investigations and cleanups in appropriate cases. These agreements can be agreed orders or consent degrees reached under the procedures of WAC 173-340-520 and 173-340-530.
(b) Independent remedial actions. Persons may ((decide to
perform)) conduct investigations and cleanups without department
approval under this chapter. The department will use the
appropriate requirements ((contained herein in its evaluation
of)) in this chapter when evaluating the adequacy of any
independent remedial action((s performed)). Except as limited by
WAC 173-340-515(2), nothing in this chapter prohibits persons
from ((performing)) conducting such actions before the department
is ready to act at the site; however, all interim and cleanup
actions must be reported to the department under WAC
((173-340-300)) 173-340-515. Furthermore, independent remedial
actions are ((done)) conducted at the potentially liable person's
own risk and the department may take or require additional
remedial actions at these sites at any time. (See WAC
((173-340-510)) 173-340-515 and 173-340-545.)
(((c))) (9) Public participation. At sites where the
department is conducting the cleanup or overseeing the cleanup
under an order or decree, the public will receive notice and an
opportunity to comment on most of the steps in the cleanup
process. At many sites, a public participation plan will be
prepared to provide opportunities for more extensive public
involvement in the cleanup process.
These and other requirements are described in WAC 173-340-600.
[Statutory Authority: Chapter 70.105D RCW. 91-04-019, § 173-340-120, filed 1/28/91, effective 2/28/91; 90-08-086, § 173-340-120, filed 4/3/90, effective 5/4/90.]
(1)
Introduction. The department shall conduct or require remedial
actions consistent with the provisions of this section((, as
typically defined by the subsequent sections)).
(2) Information sharing. It is the policy of the department
to make ((available)) information about releases or threatened
releases ((with property)) available to owners, operators or
other persons with potential liability for a site in order to
encourage them to conduct prompt remedial action. It is also the
policy of the department to make the same information available
to interested members of the general public so they can follow
the progress of site cleanup in the state.
(3) Information exchange.
(((a) Technical assistance.)) All persons are encouraged to
contact the department and seek assistance on the general
administrative and technical requirements of this chapter. Through its technical consultation program described in WAC 173-340-515, the department may also provide informal advice and
assistance to ((potentially liable)) persons conducting or
proposing remedial actions at a specific site at any time
((during the development of a remedial action)). Unless the
department is providing formal guidance for the implementation of
an order or decree, any comments by the department or its agents
are advisory and not commitments or approvals binding on the
department. A person may not represent this advice as an
approval of a remedial action. If the person requesting the
advice is seeking binding commitments or approvals, then an order
or consent decree shall be used. ((The department advises
persons requiring site-specific legal or technical assistance to
hire an attorney or engineering consultant with the appropriate
environmental expertise.
(b) Response to requests. If the department believes that responding to a request for technical assistance would involve substantial time or resources or would not be in the public interest, the department may decline to provide the requested assistance. The department shall inform the requester of its response. The department may require one or more of the following before devoting time to the request:
(i) A proposed schedule;
(ii) Payment, in advance, for its costs in responding to the request;
(iii) Other assurances that the requester is serious about carrying out the provisions of this chapter; or
(iv) Other information.))
(4) Scope of public participation. The department seeks to encourage public participation in all steps of the cleanup process. The department shall encourage a level of participation appropriate to the conditions at a facility and the level of the public's interest in the site.
(5) Scope of information. It is the department's intention
that adequate information ((will)) be gathered at a site to
enable decisions on appropriate actions. It is also the
department's intention that decisions be made and cleanups
proceed expeditiously once adequate information is obtained. Studies can be performed and submittals made at varying levels of
detail appropriate to the conditions at the site. ((For example,
the department might decide that a study of a small site with
minimal ground water impacts need not include as detailed an
analysis of the ground water flow system as for a study of a
geologically more complex site.)) Also, steps in the cleanup
process may be combined to facilitate quicker cleanups, where
appropriate. Flexibility in the scope of investigations and in
combining steps may be particularly appropriate for routine
cleanup actions. Once ((the department has)) adequate
information ((it will make cleanup)) has been obtained, decisions
shall be made within the framework provided in this chapter and
in site-specific orders or decrees.
(6) ((Combining steps. Several steps in the cleanup process
may be combined into fewer steps, when appropriate. For example,
the department and a potentially liable person may agree that
conditions at a site are such that the remedial
investigation/feasibility study and remedial design and
implementation steps could be combined into a single step.
(7) Routine cleanup actions. Flexibility in the scope of investigations and in combining steps may be particularly appropriate for routine cleanup actions. For example, the department may decide to approve a routine cleanup action based upon a single investigation that includes a site hazard assessment and a simplified state remedial investigation/feasibility study and engineering design plan.
(a) A cleanup action may be considered routine if the following criteria are met:
(i) It involves an obvious and limited choice among cleanup methods;
(ii) It uses a cleanup method that is reliable and has proven capable of accomplishing cleanup standards;
(iii) Cleanup standards for each hazardous substance addressed by the cleanup are obvious and undisputed, and allow an adequate margin of safety for protection of human health and the environment;
(iv) The department has experience with similar actions; and
(v) The action does not require an environmental impact statement.
(b) Routine cleanup actions consist of or are comparable to one or more of the following remedial actions:
(i) Cleanup of above-ground structures;
(ii) Cleanup of below-ground structures;
(iii) Cleanup of contaminated soils where the action would restore the site to cleanup levels; or
(iv) Cleanup of solid wastes, including containers.
(c) Cleanup of ground water will not normally be considered a routine cleanup action.
(d) A routine cleanup action may be conducted under any of the procedures described in WAC 173-340-510. However, the department will attempt to ensure that all routine cleanup action decisions are consistent with this chapter.
(8))) Preparation of documents. Except for the initial investigation, any of the studies, reports, or plans used in the cleanup process can be prepared by either the department or the potentially liable person. The department retains all authority to review and verify the documents submitted and to make decisions based on the documents and other relevant information.
(((9))) (7) Inter-agency coordination.
(a) If the department is conducting remedial actions or
requiring remedial actions under an order or decree, the
department shall ensure appropriate local, state, and federal
agencies and tribal ((organizations)) governments are kept
informed and, as appropriate, involved in the development and
implementation of remedial actions. The department may require a
potentially liable person to undertake this responsibility. If
the potentially liable person demonstrates that they are unable
to obtain adequate involvement to allow the remedial action to
proceed by a particular government agency or tribe, the
department shall request the involvement of the agency or tribe.
(b) The nature and degree of coordination and consultation
shall be commensurate with the other agencies and tribes
interests and needs at the site. Interested agencies and tribes
shall also be included in the mailing list for public notices
under WAC 173-340-600. To facilitate coordination, it is
important ((for the)) that agencies and tribes ((to)) provide
specific comments, including the identification of additional
information needed or mitigating measures that are necessary or
desirable to satisfy their concerns.
(c) In order to provide for expeditious cleanup actions, all
federal, state, ((and)) local agencies, and tribes are encouraged
to coordinate when providing notices, holding meetings and
hearings, and preparing documents. Whenever reasonable, the
department shall coordinate and combine its activities with other
agencies and tribes to minimize the duplication of notices,
hearings and preparation of documents, unless otherwise
prohibited.
(((10))) (8) State Environmental Policy Act. Remedial
actions under this chapter are required to comply with the State
Environmental Policy Act. The department shall ensure the
requirements in this chapter and the State Environmental Policy
Act are integrated to the extent practical through consolidated
comment periods and documents.
(9) Appeals. Unless otherwise indicated all department decisions made under this chapter are remedial decisions and may be appealed only as provided for in RCW 70.105D.060.
[Statutory Authority: Chapter 70.105D RCW. 90-08-086, § 173-340-130, filed 4/3/90, effective 5/4/90.]
(1) Purpose. It is the
department's intent to move sites through the cleanup process as
expeditiously as possible. However, the department is limited by
the amount of personnel and funds it can expend in any given
fiscal year. This section is intended to establish reasonable
deadlines for remedying releases within these constraints. The
((procedure)) department's process for ranking and setting site
priorities is described in WAC 173-340-330 and 173-340-340,
respectively.
(2) Initial investigation. Within ninety days of learning of a release or threatened release of a hazardous substance, the department shall complete an initial investigation under WAC 173-340-310.
(3) Further investigation. At least twice a year, the
department will determine which sites with completed initial
investigations are a high priority for further investigation. At
that time, the department will schedule high priority sites for
further investigations to ((commence)) begin within six months. This determination will be based on the best professional
judgment of ((department)) departmental staff. Sites may be
scheduled for further investigation at any time if the department
determines that the site warrants expedited action.
(4) Site assessment and ranking. For high priority sites,
the department shall complete the site hazard assessment and
hazard ranking ((on high priority sites)) within one hundred
eighty days of the scheduled start date. These sites will be
identified in the department's site register. Sites not
designated as a high priority will be scheduled for future
investigations and listed in the biennial report to the
legislature (WAC 173-340-340). The department will conduct at
least thirty-five site hazard assessments each fiscal year until
the number of sites needing site hazard assessments are reduced
below this number.
(5) Site investigation. Within thirty days of ranking, the
department shall designate which sites are a high priority for a
((state)) remedial investigation/feasibility study and which
sites are a lower priority where further action can be delayed. The department shall review these lower priority sites and
provide an opportunity for public comment as part of the biennial
report to the legislature (WAC 173-340-340).
(6) Remedial investigation/feasibility study. For all sites
designated as a high priority, the ((state)) remedial
investigation/feasibility study shall be completed under WAC 173-340-350 within eighteen months of signing the order or
decree. The department may extend the deadline up to twelve
months if the circumstances at the site merit a longer time
frame. The department shall provide the public an opportunity to
comment on any extension. The department shall initiate a
((state)) remedial investigation/feasibility study on at least
ten sites per fiscal year.
(7) Cleanup action. The department shall select the cleanup
action under WAC 173-340-360 and file a consent decree or issue
an order for cleanup action for all designated high priority
sites within six months of the completion of the ((state))
remedial investigation/feasibility study. The department may
extend the deadline for up to four months for consent decree and
order discussions. The department shall provide the public with
an opportunity to comment on any deadline extension.
(8) Site schedules. The department will publish site
schedules for designated high priority sites in the site register
((under)) according to WAC 173-340-600(6).
[Statutory Authority: Chapter 70.105D RCW. 90-08-086, § 173-340-140, filed 4/3/90, effective 5/4/90.]
For the purpose of this
chapter, the following definitions ((shall)) apply:
(("Act" means the same as the "Model Toxics Control Act" and
"chapter 70.105D RCW."))
"Acute toxicity" means the ability of a hazardous substance to cause injury or death to an organism as a result of a short-term exposure to a hazardous substance.
"Agreed order" means an order issued by the department under WAC 173-340-530 with which the potentially liable person receiving the order agrees to comply. An agreed order may be used to require or approve any cleanup or other remedial actions but it is not a settlement under RCW 70.105D.040(4) and shall not contain a covenant not to sue, or provide protection from claims for contribution, or provide eligibility for public funding of remedial actions under RCW 70.105D.070 (2)(d)(xi).
"Aliphatic hydrocarbons" or "aliphatics" means organic compounds that are characterized by a straight, branched, or cyclic arrangement of carbon atoms. See also "aromatic hydrocarbons."
"All practicable methods of treatment" means all technologies and/or methods currently available and demonstrated to work under similar site circumstances or through pilot studies, and applicable to the site at reasonable cost. These include "all known available and reasonable methods of treatment" (AKART) for discharges or potential discharges to waters of the state, and "best available control technologies" for releases of hazardous substances into the air resulting from cleanup actions.
"Applicable state and federal laws" means all legally applicable requirements and those requirements that the department determines, based on the criteria in WAC 173-340-710(3), are relevant and appropriate requirements.
"Area background" means the concentrations of hazardous substances that are consistently present in the environment in the vicinity of a site which are the result of human activities unrelated to releases from that site.
"Aromatic hydrocarbons" or "aromatics" means organic compounds that are characterized by one or more benzene rings. See also "aliphatic hydrocarbons."
"Bioconcentration factor" means the ratio of the concentration of a hazardous substance in the tissue of an aquatic organism divided by the hazardous substance concentration in the ambient water in which the organism resides.
"Carcinogen" means any substance or agent that produces or
tends to produce cancer in humans. For implementation of this
chapter, the term carcinogen ((will apply)) applies to substances
on the United States Environmental Protection Agency lists of A
(known human) and B (probable human) carcinogens, and any
substance ((which)) that causes a significant increased incidence
of benign or malignant tumors in a single, well conducted animal
bioassay, consistent with the weight of evidence approach
specified in the United States Environmental Protection Agency's
Guidelines for Carcinogen Risk Assessment as set forth in 51 FR
33992 et seq. ((as presently published or as subsequently amended
or republished.))
"Carcinogenic potency factor" or "CPF" means the upper 95th percentile confidence limit of the slope of the dose-response curve and is expressed in units of (mg/kg-day)-1. When derived from human epidemiological data, the carcinogenic potency factor may be a maximum likelihood estimate.
"Chronic reference dose" means an estimate (with an uncertainty spanning an order of magnitude or more) of a daily exposure level for the human population, including sensitive subpopulations, that is likely to be without an appreciable risk of adverse effects during a lifetime.
"Chronic toxicity" means the ability of a hazardous substance to cause injury or death to an organism resulting from repeated or constant exposure to the hazardous substance over an extended period of time.
"Cleanup" means the implementation of a cleanup action or interim action.
"Cleanup action" means any remedial action, except interim actions, taken at a site to eliminate, render less toxic, stabilize, contain, immobilize, isolate, treat, destroy, or remove a hazardous substance that complies with WAC 173-340-350 and 173-340-360.
"Cleanup action alternative" means one or more treatment technology, containment action, removal action, engineered control, institutional control or other type of remedial action ("cleanup action components") that, individually or, in combination, achieves a cleanup action at a site.
"Cleanup action plan" means the document prepared by the
department under WAC ((173-340-360 which)) 173-340-380 that
selects the cleanup action and specifies cleanup standards and
other requirements for the cleanup action.
"Cleanup level" means the concentration of a hazardous substance in soil, water, air, or sediment that is determined to be protective of human health and the environment under specified exposure conditions.
(("Cleanup process" means the process for identifying,
investigating, and cleaning up hazardous waste sites under
chapter 70.105D RCW.))
"Cleanup standards" means the standards ((promulgated))
adopted under RCW 70.105D.030 (2)(d). Establishing cleanup
standards requires specification of the following:
Hazardous substance concentrations that protect human health and the environment ("cleanup levels");
The location on the site where those cleanup levels must be attained ("points of compliance"); and
Additional regulatory requirements that apply to a cleanup
action because of the type of action and/or the location of the
site. These requirements are specified in applicable state and
federal laws and are generally established ((following)) in
conjunction with the selection of a specific cleanup action.
(("Closure site assessment" means a site assessment required
for closure of an underground storage tank pursuant to rules
adopted under chapter 90.76 RCW.)) "Cohen's method" means the
maximum likelihood estimate of the mean and standard deviation
accounting for data below the method detection limit or practical
quantitation limit using the method described in the following
publications:
• Cohen, A.C., 1959. "Simplified estimators for the normal distribution when samples are singly censored or truncated." Technometrics. Volume 1, pages 217-237.
• Cohen, A.C., 1961. "Tables for maximum likelihood estimates: Singly truncated and singly censored samples." Technometrics. Volume 3, pages 535-541.
"Compliance monitoring" means a remedial action that consists of monitoring as described in WAC 173-340-410.
"Conceptual site model" means a conceptual understanding of a site that identifies potential or suspected sources of hazardous substances, types and concentrations of hazardous substances, potentially contaminated media, and actual and potential exposure pathways, including receptors. This model is typically initially developed during the scoping of the remedial investigation and further refined as additional information is collected on the site. It is a tool used to assist in making decisions at a site.
"Conducting land use planning under chapter 36.70A RCW" as used in the definition of "industrial properties" means having adopted a comprehensive plan and development regulations for the site under chapter 36.70A RCW.
"Containment" means a container, vessel, barrier, or
structure, whether natural or constructed, ((which)) that
confines a hazardous substance within a defined boundary and
prevents or minimizes its release into the environment.
"Contaminant" means any hazardous substance that does not occur naturally or occurs at greater than natural background levels.
"Curie" means the measure of radioactivity defined as that quantity of radioactive material which decays at the rate of 3.70 x 1010 transformations per second. This decay rate is nearly equivalent to that exhibited by 1 gram of radium in equilibrium with its disintegration products.
"Day" means calendar day; however, any document due on the weekend or a holiday may be submitted on the first working day after the weekend or holiday.
"Decree" means consent decree under WAC 173-340-520. "Consent decree" is synonymous with decree.
"Degradation by-products" or "daughter products" means the secondary product of biological or chemical processes that break down chemicals into other chemicals. The daughter products may be more or less toxic than the parent compound.
"Department" means the department of ecology.
"Developmental reference dose" means an estimate (with an uncertainty of an order of magnitude or more) of an exposure level for the human population, including sensitive subgroups, that is likely to be without an appreciable risk of developmental effects.
"Direct contact" means exposure to hazardous substances through ingestion or dermal contact.
"Director" means the director of ecology or the director's designee.
"Drinking water fraction" means the fraction of drinking water that is obtained or has the potential to be obtained from the site.
"Engineered controls" means treatment and containment. For examples of engineered controls see WAC 173-340-440.
"Environment" means any plant, animal, natural resource, surface water (including underlying sediments), ground water, drinking water supply, land surface (including tidelands and shorelands) or subsurface strata, or ambient air within the state of Washington or under the jurisdiction of the state of Washington.
"Equivalent carbon number" or "EC" means a value assigned to a component of a petroleum mixture, empirically derived from the boiling point of the component normalized to the boiling point of n-alkanes or the retention time of n-alkanes in a boiling point gas chromatography column.
"Exposure" means subjection of an organism to the action,
influence, or effect of a hazardous substance (chemical agent) or
physical agent. ((Exposure is quantified as the amount of the
agent available at the exchange boundaries (e.g., skin, lungs,
gut) and available for absorption.))
"Exposure parameters" means those parameters used to derive an estimate of the exposure to a hazardous substance.
"Exposure pathway" means the path a hazardous substance takes or could take from a source to an exposed organism. An exposure pathway describes the mechanism by which an individual or population is exposed or has the potential to be exposed to hazardous substances at or originating from a site. Each exposure pathway includes an actual or potential source or release from a source, an exposure point, and an exposure route. If the exposure point differs from the source of the hazardous substance, the exposure pathway also includes a transport/exposure medium.
"Facility" means ((any building, structure, installation,
equipment, pipe or pipeline (including any pipe into a sewer or
publicly owned treatment works), well, pit, pond, lagoon,
impoundment, ditch, landfill, storage container, motor vehicle,
rolling stock, vessel, or aircraft; or any site or area where a
hazardous substance, other than a consumer product in consumer
use, has been deposited, stored, disposed of, or placed, or
otherwise come to be located.)) the same as "site."
"Federal cleanup law" means the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended by
the Superfund Amendments and Reauthorization Act of 1986, 42
U.S.C. 9601 et seq.((, as presently promulgated or as
subsequently amended or repromulgated.))
"Fish diet fraction" means the percentage of the total fish or shellfish in an individual's diet that is obtained or has the potential to be obtained from the site.
"Food crop" means any domestic plant ((which)) that is
produced for the purpose of, or may be used in whole or in part
for, consumption by people or livestock. This shall include
nursery, root, or seedstock to be used for the production of food
crops.
"Free product" means a hazardous substance that is present as a nonaqueous phase liquid (that is, liquid not dissolved in water). The term includes both light and dense nonaqueous phase liquid.
"Ground water" means water in a saturated zone or stratum beneath the surface of land or below a surface water.
"Hazard index" means the sum of two or more hazard quotients for multiple hazardous substances and/or multiple exposure pathways.
"Hazardous sites list" means the list of hazardous waste sites maintained under WAC 173-340-330.
"Hazardous substance" means any dangerous or extremely hazardous waste as defined in RCW 70.105.010 (5) and (6), or any dangerous or extremely dangerous waste as designated by rule under chapter 70.105 RCW; any hazardous substance as defined in RCW 70.105.010(14) or any hazardous substance as defined by rule under chapter 70.105 RCW; any substance that, on the effective date of this section, is a hazardous substance under section 101(14) of the federal cleanup law, 42 U.S.C., Sec. 9601(14); petroleum or petroleum products; and any substance or category of substances, including solid waste decomposition products, determined by the director by rule to present a threat to human health or the environment if released into the environment.
The term hazardous substance does not include any of the following when contained in an underground storage tank from which there is not a release: Crude oil or any fraction thereof or petroleum, if the tank is in compliance with all applicable federal, state, and local law.
"Hazardous waste site" means any facility where there has been confirmation of a release or threatened release of a hazardous substance that requires remedial action.
"Hazard quotient" or "HQ" means the ratio of the dose of a single hazardous substance over a specified time period to a reference dose for that hazardous substance derived for a similar exposure period.
"Health effects assessment summary tables" or "HEAST" means a data base developed by the United States Environmental Protection Agency that provides a summary of information on the toxicity of hazardous substances.
"Highest beneficial use" means the beneficial use of a resource generally requiring the highest quality in the resource. For example, for many hazardous substances, providing protection for the beneficial use of drinking water will generally also provide protection for a great variety of other existing and future beneficial uses of ground water.
"Independent remedial actions" means remedial actions conducted without department oversight or approval and not under an order, agreed order, or consent decree.
"Indicator hazardous substances" means the subset of hazardous substances present at a site selected under WAC 173-340-708 for monitoring and analysis during any phase of remedial action for the purpose of characterizing the site or establishing cleanup requirements for that site.
"Industrial properties" means properties that are or have been characterized by, or are to be committed to, traditional industrial uses such as processing or manufacturing of materials, marine terminal and transportation areas and facilities, fabrication, assembly, treatment, or distribution of manufactured products, or storage of bulk materials, that are either:
| • | Zoned for industrial use by a city or county conducting
land use planning under chapter 36.70A RCW (Growth
Management Act); or |
| • | For counties not planning under chapter 36.70A RCW (Growth Management Act) and the cities within them, zoned for industrial use and adjacent to properties currently used or designated for industrial purposes. |
"Inhalation correction factor" means a multiplier that is
used to adjust exposure estimates based on ingestion of drinking
water to take into account exposure to hazardous substances
((which)) that are volatilized and inhaled during use of the
water.
"Initial investigation" means a remedial action that
consists of an investigation under WAC 173-340-310 ((to determine
that a release or threatened release may have occurred that
warrants further action under this chapter)).
"Institutional controls" means ((a)) measures undertaken to
limit or prohibit activities that may interfere with the
integrity of an interim action or a cleanup action or result in
exposure to hazardous substances at the site. For examples of
institutional controls see WAC 173-340-440(1).
"Integrated risk information system" or "IRIS" means a data
base developed by the United States Environmental Protection
Agency ((which)) that provides a summary of information on hazard
identification and dose-response assessment for specific
hazardous substances.
"Interim action" means a remedial action conducted under WAC 173-340-430 that partially addresses the cleanup of a site.
"Interspecies scaling factor" means the conversion factor used to take into account differences between animals and humans.
"Land's method" means the method for calculating an upper confidence limit for the mean of a lognormal distribution, described in the following publications:
• Land, C.E., 1971. "Confidence intervals for linear functions of the normal mean and variance." Annals of Mathematics and Statistics. Volume 42, pages 1187-1205.
• Land, C.E., 1975. "Tables of confidence limits for linear functions of the normal mean and variance." In: Selected Tables in Mathematical Statistics, Volume III, pages 385-419. American Mathematical Society, Providence, Rhode Island.
"Legally applicable requirements" means those cleanup
standards, standards of control, and other human health and
environmental protection requirements, criteria, or limitations
((promulgated)) adopted under state or federal law that
specifically address a hazardous substance, cleanup action,
location, or other circumstances at the site.
"Lowest observed adverse effect level" or "LOAEL" means the lowest concentration of a hazardous substance at which there is a statistically or biologically significant increase in the frequency or severity of an adverse effect between a population and a control group.
"Mail" means delivery through the United States Postal Service or an equivalent method of delivery or transmittal, including private mail carriers, or personal delivery.
"Maximum contaminant level" or "MCL" means the maximum
concentration of a contaminant established by either the
Washington state board of health or the United States
Environmental Protection Agency under the Federal Safe Drinking
Water Act (42 U.S.C. 300f et seq.) and published in chapter 248-54 WAC or 40 C.F.R. 141 ((as presently promulgated or
subsequently amended or repromulgated)).
"Maximum contaminant level goal" or "MCLG" means the maximum
concentration of a contaminant established by either the
Washington state board of health or the United States
Environmental Protection Agency under the Federal Safe Drinking
Water Act (42 U.S.C. 300f et seq.) and published in chapter 248-54 WAC or 40 C.F.R. 141 ((as presently promulgated or
subsequently amended or repromulgated,)) for which no known or
anticipated adverse effects on human health occur, including an
adequate margin of safety.
"Method detection limit" or "MDL" means the minimum
concentration of a compound that can be measured and reported
with ((99%)) ninety-nine percent confidence that the value is
greater than zero.
"Millirem" or "mrem" means the measure of the dose of any radiation to body tissue in terms of its estimated biological effect relative to a dose received from an exposure to one roentgen (R) of x-rays. One millirem equals 0.001 rem.
"Mixed funding" means any funding provided to potentially liable persons from the state toxics control account under WAC 173-340-560.
"Model Toxics Control Act" or "act" means ((the act approved
by the voters at the November 1988 general election, also known
as Initiative 97 ())chapter 70.105D RCW(())), first passed by the
voters in the November 1988 general election as Initiative 97 and
as since amended by the legislature.
"Natural attenuation" means a variety of physical, chemical or biological processes that, under favorable conditions, act without human intervention to reduce the mass, toxicity, mobility, volume, or concentration of hazardous substances in soil or ground water. These in situ processes include: Natural biodegradation; dispersion; dilution; sorption; volatilization; and, chemical or biological stabilization, transformation, or destruction of hazardous substances. Natural attenuation is not an active remedial measure.
"Natural background" means the concentration of hazardous
substance consistently present in the environment ((which)) that
has not been influenced by localized human activities. For
example, several metals naturally occur in the bedrock and soils
of Washington state due solely to the geologic processes that
formed these materials and the concentration of these metals
would be considered natural background. Also, low concentrations
of some particularly persistent organic compounds such as
polychlorinated biphenyls (PCBs) can be found in surficial soils
and sediment throughout much of the state due to global use of
these hazardous substances. These low concentrations would be
considered natural background. Similarly, concentrations of
various radionuclides ((which)) that are present at low
concentrations throughout the state due to global distribution of
fallout from bomb testing and nuclear accidents would be
considered natural background.
"Natural biodegradation" means in-situ biological processes such as aerobic respiration, anaerobic respiration, and co-metabolism, that occur without man's intervention and that break down hazardous substances into other compounds or elements. The process is typically a multiple step process and may or may not result in organic compounds being completely broken down or mineralized to carbon dioxide and water.
"Natural person" means any unincorporated individual or group of individuals. The term "individual" is synonymous with "natural person."
"No observed adverse effect level" or "NOAEL" means the exposure level at which there are no statistically or biologically significant increases in frequency or severity of adverse effects between the exposed population and its appropriate control; some effects may be produced at this level, but they are not considered to be adverse, nor precursors to specific adverse effects.
"Nonpotable" means not a current or potential source of drinking water. See WAC 173-340-720 and 173-340-730 for criteria for determining if ground water or surface water is a current or potential source of drinking water.
"Null hypothesis" means an assumption about hazardous
substance concentrations at a site when evaluating compliance
with cleanup levels established under this chapter. The null
hypothesis is that the site is contaminated at concentrations
((which)) that exceed cleanup levels. This shall not apply to
cleanup levels based on background concentrations where other
appropriate statistical methods supported by a power analysis
would be more appropriate to use.
"Order" means an enforcement order issued under WAC 173-340-540 or an agreed order issued under WAC 173-340-530.
"Owner or operator" means any person ((with any ownership
interest in the facility or who exercises any control over the
facility; or in the case of an abandoned facility, any person who
had owned, or operated, or exercised control over the facility
any time before its abandonment. The term does not include:
An agency of the state or unit of local government which acquired ownership or control involuntarily through bankruptcy, tax delinquency, abandonment, or circumstances in which the government involuntarily acquires title. This exclusion does not apply to an agency of the state or unit of local government which has caused or contributed to the release or threatened release of a hazardous substance from the facility; or
A person who, without participating in the management of a facility, holds indicia of ownership primarily to protect the person's security interest in the facility)) that meets the definition of this term in RCW 70.105D.020(12).
"PAHs (carcinogenic)" or "cPAHs" means those polycyclic
aromatic hydrocarbons substances, PAHs ((substances)), identified
as A (known human) or B (probable human) carcinogens by the
United States Environmental Protection Agency. These include
benzo(a)anthracene, benzo(b)fluoranthene, benzo(k)fluoranthene,
benzo(a)pyrene, chrysene, dibenzo(a,h)anthracene, and
indeno(1,2,3-cd)pyrene.
"Permanent solution" or "permanent cleanup action" means a cleanup action in which cleanup standards of WAC 173-340-700 through 173-340-760 can be met without further action being required at the site being cleaned up or any other site involved with the cleanup action, other than the approved disposal of any residue from the treatment of hazardous substances.
"Person" means an individual, firm, corporation, association, partnership, consortium, joint venture, commercial entity, state government agency, unit of local government, federal government agency, or Indian tribe.
"Picocurie" or "pCi" means 10-12 curie.
"Point of compliance" means the point or points where cleanup levels established in accordance with WAC 173-340-720 through 173-340-760 shall be attained. This term includes both standard and conditional points of compliance. A conditional point of compliance is only available for ground water and the conditions for its use are described in WAC 173-340-720(10).
"Polychlorinated biphenyls" or "PCB mixtures" means those aromatic compounds containing two benzene nuclei with two or more substituted chlorine atoms. For the purposes of this chapter, PCB includes those congeners which are identified using the appropriate analytical methods as specified in WAC 173-340-830.
"Polycyclic aromatic hydrocarbons" or "PAH" means those hydrocarbon molecules composed of two or more fused benzene rings. For the purpose of this chapter, PAH includes those compounds which are identified and quantified using the appropriate analytical methods as specified in WAC 173-340-830. The specific compounds generally included are acenaphthene, acenaphthylene, fluorene, naphthalene, anthracene, fluoranthene, phenanthrene, benzo[a]anthracene, benzo[b]fluoranthene, benzo[k]fluoranthene, pyrene, chrysene, benzo[a]pyrene, dibenzo[a,h]anthracene, indeno[1,2,3-cd]pyrene, and benzo[ghi]perylene.
"Potentially liable person" means any person ((whom)) who
the department finds, based on credible evidence, to be liable
under RCW 70.105D.040.
"Practicable" means (((except when used in the phrase
"permanent to the maximum extent practicable" which is defined in
WAC 173-340-360(5)))) capable of being designed, constructed and
implemented in a reliable and effective manner including
consideration of cost. When considering cost under this
analysis, an alternative shall not be considered practicable if
the incremental costs of the alternative ((is substantial and))
are disproportionate to the incremental degree of ((protection))
benefits provided by the alternative over other lower cost
alternatives.
"Practical quantitation limit" or "PQL" means the lowest concentration that can be reliably measured within specified limits of precision, accuracy, representativeness, completeness, and comparability during routine laboratory operating conditions, using department approved methods.
"Probabilistic risk assessment" means a mathematical technique for assessing the variability and uncertainty in risk calculations. This is done by using distributions for model input parameters, rather than point values, where sufficient data exists to justify the distribution. These distributions are then used to compute various simulations using tools such as Monte Carlo analysis to examine the probability that a given outcome will result (such as a level of risk being exceeded). When using probabilistic techniques under this chapter for human health risk assessment, distributions shall not be used to represent dose response relationships (reference dose, reference concentration, cancer potency factor).
"Public notice" means, at a minimum, adequate notice mailed to all persons who have made a timely request of the department and to persons residing in the potentially affected vicinity of the proposed action; mailed to appropriate news media; published in the newspaper of largest circulation in the city or county of the proposed action; and opportunity for interested persons to comment.
"Public participation plan" means a plan prepared under WAC 173-340-600 to encourage coordinated and effective public involvement tailored to the public's needs at a particular site.
"Rad" means that quantity of ionizing radiation that results in the absorption of 100 ergs of energy per gram of irradiated material, regardless of the source of radiation.
"Radionuclide" means a type of atom ((which)) that
spontaneously undergoes radioactive decay. Radionuclides are
hazardous substances under the act.
(("Recovery by-products" means any hazardous substance,
water, sludge or other materials collected in the free product
removal process in response to a release from an underground
storage tank.))
"Reasonable maximum exposure" means the highest exposure that can be reasonably expected to occur for a human or other living organisms at a site under current and potential future site use.
"Reference dose" or "RFD" means a benchmark dose, derived from the NOAEL or LOAEL for a hazardous substance by consistent application of uncertainty factors used to estimate acceptable daily intake doses and an additional modifying factor, which is based on professional judgment when considering all available data about a substance, expressed in units of milligrams per kilogram body weight per day. This includes chronic reference doses, subchronic reference doses, and developmental reference doses.
(("Regional office" means one of the regional offices of the
department of ecology.))
"Release" means any intentional or unintentional entry of any hazardous substance into the environment, including but not limited to the abandonment or disposal of containers of hazardous substances.
"Relevant and appropriate requirements" means those cleanup standards, standards of control, and other human health and environmental requirements, criteria, or limitations established under state and federal law that, while not legally applicable to the hazardous substance, cleanup action, location, or other circumstance at a site, the department determines address problems or situations sufficiently similar to those encountered at the site that their use is well suited to the particular site. The criteria specified in WAC 173-340-710(3) shall be used to determine if a requirement is relevant and appropriate.
"Rem" means the unit of radiation dose equivalent that is the dosage in rads multiplied by a factor representing the different biological effects of various types of radiation.
"Remediation level (REL)" means the concentration, or other means of identification, of a hazardous substance in soil, water, air, or sediment above which a particular cleanup action component will be required as part of a cleanup action at a site. Other means of identification may include visual or physical identification. A cleanup action that includes remediation levels which is selected in accordance with WAC 173-340-350 through 173-340-390 constitutes a cleanup action which is protective of human health and the environment.
"Remedy" or "remedial action" means any action or expenditure consistent with the purposes of chapter 70.105D RCW to identify, eliminate, or minimize any threat posed by hazardous substances to human health or the environment including any investigative and monitoring activities with respect to any release or threatened release of a hazardous substance and any health assessments or health effects studies conducted in order to determine the risk or potential risk to human health.
"Restoration time frame" means the period of time needed to achieve the required cleanup levels at the points of compliance established for the site.
"Risk" means the probability that a hazardous substance, when released into the environment, will cause an adverse effect in exposed humans or other living organisms.
"Routine cleanup action" means a remedial action ((that
consists of a cleanup action meeting the requirements in WAC 173-340-130(7))) meeting the following criteria:
• Cleanup standards for each hazardous substance addressed by the cleanup are obvious and undisputed, and allow for an adequate margin of safety for protection of human health and the environment;
• It involves an obvious and limited choice among cleanup action alternatives and uses an alternative that is reliable, has proven capable of accomplishing cleanup standards, and with which the department has experience;
• The cleanup action does not require preparation of an environmental impact statement.
• The site qualifies under WAC 173-340-7490 for an exclusion from conducting a simplified or site-specific terrestrial ecological evaluation.
Routine cleanup actions consist of, or are comparable to, one or more of the following remedial actions:
• Cleanup of above-ground structures;
• Cleanup of below-ground structures;
• Cleanup of contaminated soils where the action would restore the site to cleanup levels; or
• Cleanup of solid wastes, including containers.
"Safety and health plan" means a plan prepared under WAC 173-340-810.
(("Sample mean" means the arithmetic mean or the average of
a set of measurements. The arithmetic mean is defined as the sum
of all measurements divided by the number of measurements.))
"Sampling and analysis plan" means a plan prepared under WAC 173-340-820.
"Saturated zone" means the area below the water table in which all interstices are filled with water.
"Schools" means preschools, elementary schools, middle schools, high schools, and similar facilities, both public and private, used primarily for the instruction of minors.
"Science advisory board" means the advisory board established by the department under RCW 70.105D.030(4).
"Secondary maximum contaminant level" means the maximum
concentration of a secondary contaminant in water established by
the United States Environmental Protection Agency under the
Federal Safe Drinking Water Act (42 U.S.C. 300f et seq.) and
published in 40 C.F.R. 143 as presently ((promulgated)) adopted
or as subsequently amended or ((repromulgated)) readopted.
"Sensitive environment" means an area of particular environmental value, where a release could pose a greater threat than in other areas including: Wetlands; critical habitat for endangered or threatened species; national or state wildlife refuge; critical habitat, breeding or feeding area for fish or shellfish; wild or scenic river; rookery; riparian area; big game winter range.
"Site" means ((the same as facility.
"Site characterization report" means a written report describing the site and nature of a release from an underground storage tank, as described in WAC 173-340-450 (4)(b).
"Site check" means the investigation conducted pursuant to rules adopted under chapter 90.76 RCW in order to confirm a release from an underground storage tank)) any building, structure, installation, equipment, pipe or pipeline (including any pipe into a sewer or publicly owned treatment works), well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, vessel, or aircraft; or any site or area where a hazardous substance, other than a consumer product in consumer use, has been deposited, stored, disposed of, or placed, or otherwise come to be located.
"Site hazard assessment" means a remedial action that consists of an investigation performed under WAC 173-340-320.
(("Site register" means the public information document
described in WAC 173-340-600.))
"Soil" means a mixture of organic and inorganic solids, air,
water, and biota ((which)) that exists on the earth's surface
above bedrock, including materials of anthropogenic sources such
as slag, sludge, etc.
(("State remedial investigation/feasibility study" means a
remedial action that consists of activities performed under WAC 173-340-350 to collect, develop, and evaluate sufficient
information regarding a site to enable the selection of a cleanup
plan under WAC 173-340-360.
"Status report" means a written or verbal report on the status of the interim actions taken in response to a release from an underground storage tank, as described in WAC 173-340-450 (4)(b).)) "Soil biota" means invertebrate multicellular animals that live in the soil or in close contact with the soil.
"Subchronic reference dose" means an estimate (with an uncertainty of an order of magnitude or more) of a daily exposure level for the human population, including sensitive subgroups, that is likely to be without appreciable risk of adverse effects during a portion of a lifetime.
"Surface water" means lakes, rivers, ponds, streams, inland waters, salt waters, and all other surface waters and water courses within the state of Washington or under the jurisdiction of the state of Washington.
"Technically possible" means capable of being designed, constructed and implemented in a reliable and effective manner, regardless of cost.
"Terrestrial ecological receptors" means plants and animals that live primarily or entirely on land.
"Threatened or endangered species" means species listed as threatened or endangered under the federal Endangered Species Act 16 U.S.C. Section 1533, or classified as threatened or endangered by the state fish and wildlife commission under WAC 232-12-011(1) and 232-12-014.
"Total excess cancer risk" means the upper bound on the estimated excess cancer risk associated with exposure to multiple hazardous substances and multiple exposure pathways.
"Total petroleum hydrocarbons" or "TPH" means any fraction
of crude oil that is contained in plant condensate, crankcase
motor oil, gasoline, aviation fuels, kerosene, diesel motor fuel,
benzol, fuel oil, and other products derived from the refining of
crude oil. For the purposes of this chapter, TPH will generally
mean those fractions of the above products that are ((quantified
by EPA Methods 8015 or 418.1)) the total of all hydrocarbons
quantified by analytical methods NWTPH-Gx; NWTPH-Dx; volatile
petroleum hydrocarbons (VPH) for volatile aliphatic and volatile
aromatic petroleum fractions; and extractable petroleum
hydrocarbons (EPH) for nonvolatile aliphatic and nonvolatile
aromatic petroleum fractions, as appropriate, or other test
methods approved by the department.
"Type I error" means the error made when it is concluded that an area of a site is below cleanup levels when it actually exceeds cleanup levels. This is the rejection of a true null hypothesis.
"Underground storage tank" or "UST" means an underground storage tank and connected underground piping as defined in the rules adopted under chapter 90.76 RCW.
(("Underground storage tank operator" means any underground
storage tank operator as defined in the rules adopted under
chapter 90.76 RCW.
"Underground storage tank owner" means any underground storage tank owner as defined in the rules adopted under chapter 90.76 RCW.
"Underground storage tank release" means a confirmed release from an underground storage tank pursuant to the rules adopted under chapter 90.76 RCW.))
"Unrestricted site use conditions" means restrictions on the use of the site or natural resources affected by releases of hazardous substances from the site are not required to ensure continued protection of human health and the environment.
"Upper bound on the estimated excess cancer risk of one in
one hundred thousand" means the upper ((95th)) ninety-fifth
percent confidence limit on the estimated risk of one additional
cancer above the background cancer rate per one hundred thousand
individuals.
"Upper bound on the estimated excess cancer risk of one in one million" means the upper 95th percent confidence limit on the estimated risk of one additional cancer above the background cancer rate per one million individuals.
"Volatile organic compound" means those carbon-based compounds listed in EPA methods 601, 602, 603, 624, 8010, 8015, 8020, 8030, 8240, 502.1, 502.2, 503.1, 524.1, 524.2, and those with similar vapor pressures or boiling points. For petroleum, volatile means aliphatic and aromatic constituents up to and including EC12, plus naphthalene, 1-methylnaphthalene and 2-methylnaphthalene.
"Wastewater facility" means all structures and equipment required to collect, transport, treat, reclaim, or dispose of domestic, industrial, or combined domestic/industrial wastewaters.
"Wetlands" means lands transitional between terrestrial and aquatic systems where the water table is usually at or near the surface or the land is covered by shallow water. For the purposes of this classification, wetlands must have one or more of the following attributes at least periodically, the land supports predominantly hydrophytes; the substrate is predominately undrained hydric soil; and the substrate is nonsoil and saturated with water or covered by shallow water at some time during the growing season each year.
"Wildlife" means any nonhuman vertebrate animal other than fish.
"Zoned for (a specified) use" means the use is allowed as a permitted or conditional use under the local jurisdiction's land use zoning ordinances. A land use that is inconsistent with the current zoning but allowed to continue as a nonconforming use or through a comparable designation is not considered to be zoned for that use.
[Statutory Authority: Chapter 70.105D RCW. 96-04-010 (Order 94-37), § 173-340-200, filed 1/26/96, effective 2/26/96; 91-04-019, § 173-340-200, filed 1/28/91, effective 2/28/91; 90-08-086, § 173-340-200, filed 4/3/90, effective 5/4/90.]
Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.
AMENDATORY SECTION(Amending WSR 91-04-019, filed 1/28/91,
effective 2/28/91)
WAC 173-340-210
Usage.
For the purposes of this chapter, the following shall apply:
(1) Unless the context clearly requires otherwise the use of the singular shall include the plural and conversely.
(2) The terms "applicable," "appropriate," "relevant," "unless otherwise directed by the department" and similar terms implying discretion mean as determined by the department, with the burden of proof on other persons to demonstrate that the requirements are or are not necessary.
(3) "Approved" means for department conducted or ordered remedial actions, or for potentially liable person conducted cleanups agreed to by the department in an agreed order or decree governing remedial actions at the site.
(4) "Conduct" means to perform or undertake whether directly or through an agent or contractor, unless this chapter expressly provides otherwise.
(5) "Include" means included but not limited to.
(6) "May" or "should" means the provision is optional and permissive, and does not impose a requirement.
(7) "Shall," "must," or "will" means the provision is mandatory.
(8) "Threat" means threat or potential threat.
(9) "Under" means pursuant to, subject to, required by, established by, in accordance with, and similar expressions of legislative or administrative authorization or direction.
[Statutory Authority: Chapter 70.105D RCW. 91-04-019, § 173-340-210, filed 1/28/91, effective 2/28/91; 90-08-086, § 173-340-210, filed 4/3/90, effective 5/4/90.]
(1) Purpose.
As part of a program to identify hazardous waste sites, this
section sets forth the requirements for reporting a release of a
hazardous substance due to past activities, whether discovered
before or after the effective date of this regulation. It also
sets forth the requirements for reporting independent ((cleanup))
remedial actions. The department may take any other actions it
deems appropriate to identify potential hazardous waste sites
consistent with chapter 70.105D RCW.
(2) Release report.
(a) Any owner or operator who has information that a
hazardous substance has been released to the environment at the
owner or operator's facility and may be a threat to human health
or the environment shall report such information to the
department ((by June 1, 1990, or for discovery of releases after
this date,)) within ninety days of discovery. Releases from
underground storage tanks ((as described in the rules adopted
under chapter 90.76 RCW must)) shall be reported by the owner or
operator of the underground storage tank within twenty-four hours
of release confirmation, in accordance with WAC 173-340-450. To
the extent known, the report shall include:
(i) The identification and location of the hazardous
substance((,));
(ii) Circumstances of the release and the discovery((,));
and
(iii) Any remedial actions planned, completed, or underway. All other persons are encouraged to report such information to the department.
(b) Persons should use best professional judgment in deciding whether a release of a hazardous substance may be a threat or potential threat to human health or the environment. The following, which is not an exhaustive list, are examples of situations that generally should be reported under this section:
(i) Contamination in a water supply well.
(ii) Contaminated seeps, sediment or surface water.
(iii) Vapors in a building, utility vault or other structure that appear to be entering the structure from nearby contaminated soil or ground water.
(iv) Free liquids such as petroleum product or other organic liquids on the surface of the ground or in the ground water.
(v) Any contaminated soil or dumped waste materials that would be classified as a hazardous waste under federal or state law.
(vi) Any abandoned containers such as drums or tanks, above ground or buried, still containing more than trace residuals of hazardous substances.
(vii) Sites where unpermitted industrial waste disposal has occurred.
(viii) Sites where chemicals have leaked or been dumped on the ground.
(ix) Leaking underground petroleum storage tanks.
(3) Exemptions. The following releases are exempt from these notification requirements:
(a) Application of pesticides and fertilizers for their intended purposes and according to label instructions;
(b) Lawful and nonnegligent use of hazardous substances by a natural person for personal or domestic purposes;
(c) A release in accordance with a permit that authorizes the release;
(d) A release previously reported to the department in fulfillment of a reporting requirement in this chapter or in another law or regulation;
(e) A release previously reported to the United States Environmental Protection Agency under CERCLA, Section 103(c) (42 U.S.C. Sec. 9603(c));
(f) Except for releases under subsection (2)(b)(iii) of this section, a release to the air;
(g) Releases discovered in public water systems regulated by the department of health; or
(h) A release to a permitted wastewater facility.
An exemption from ((these)) the notification requirements in
this section does not imply a release from liability ((in future
actions by the department)) under this chapter.
(4) Report of independent actions.
(((a) Report. Any person who conducts an independent
interim action or cleanup action shall submit a written report to
the department within ninety days of the completion of the
action. For the purposes of this section, the department will
consider an interim action or cleanup action complete if no
remedial action other than compliance monitoring has occurred at
the site for ninety days. This is not intended to preclude
earlier reporting of such actions. See WAC 173-340-450 for
additional requirements for reporting independent interim actions
for releases from underground storage tanks.
(b) Contents. The report shall include the information in subsection (2) of this section if not already reported, and results of all site investigations, cleanup actions and compliance monitoring planned or underway. The department may require additional reports on the work performed.
(c) Combined reports. If the independent interim action or cleanup action is completed within ninety days of discovery, a single written report may be submitted on both the release and the action taken. The reports shall contain the information specified in subsections (2) and (4) of this section and shall be submitted within ninety days of completion of the interim action or cleanup action.
(d) Notification. The department shall publish a notice of all reports on independent interim actions and cleanup actions received under this section in the site register.)) See WAC 173-340-515 for additional reporting requirements for independent remedial actions. See WAC 173-340-450 for reporting requirements for independent remedial actions for releases from underground storage tanks.
(5) Department response. Within ninety days of ((receipt
of)) receiving information under this section, the department
shall ((respond)) conduct an initial investigation in accordance
with WAC 173-340-310. ((Receipt of information regarding an
independent interim action or cleanup action under subsection (3)
or (4) of this section shall not obligate the department to take
any action beyond that prescribed in WAC 173-340-310 and
subsection (4)(d) of this section. Neither submission of
information on independent interim action and cleanup actions nor
any response by the department shall release the person
submitting the report or any other person from liability. The
department reserves all rights to pursue any subsequent action it
deems appropriate.)) For sites on the hazardous sites list, the
department shall, as resources permit, review reports that
document independent cleanup actions. The review shall include
an evaluation of whether the site qualifies for removal from the
hazardous sites list or whether further remedial action is
required.
(6) Other obligations. Nothing in this section shall eliminate any obligations to comply with reporting requirements that may exist in a permit or under other laws.
[Statutory Authority: Chapter 70.105D RCW. 91-04-019, § 173-340-300, filed 1/28/91, effective 2/28/91; 90-08-086, § 173-340-300, filed 4/3/90, effective 5/4/90.]
(1) Purpose. An
initial investigation is an inspection of a suspected site by the
department and documentation of conditions observed during that
site inspection. The purpose of the initial investigation is to
determine whether ((or not)) a release or threatened release of a
hazardous substance may have occurred that warrants further
action under this chapter.
(((a))) (2) Applicability and timing. Whenever the
department receives information and has a reasonable basis to
believe that there may be a release or a threatened release of a
hazardous substance that may pose a threat to human health or the
environment, the department shall conduct an initial
investigation within ninety days.
(((b))) (3) Exemptions. The department shall not be
required to conduct an initial investigation when:
(((i))) (a) The circumstances associated with the release or
threatened release are known to the department and have
previously been or currently are being evaluated by the
department or other government agency; ((or
(ii))) (b) The release is permitted; or
(c) The release is exempt from reporting under WAC 173-340-300.
(((2) Contents. The initial investigation shall include at
a minimum: A site visit and documentation of conditions
observed.
(3))) (4) Department deferral to others. The department may rely on another government agency or a contractor to the department to conduct an initial investigation on its behalf, provided the department determines such an agency or contractor is not suspected to have contributed to the release or threatened release of a hazardous substance and that no conflict of interest exists.
(((4))) (5) Department decision. Based on the information
obtained about the site, the department shall within thirty days
of completion of the initial investigation make one or more of
the following decisions:
(a) A site hazard assessment is required;
(b) Emergency remedial action is required;
(c) Interim action is required; or
(d) The site requires no further action under this chapter at this time because either:
(i) There has been no release or threatened release of a hazardous substance; or
(ii) A release or threatened release of a hazardous substance has occurred, but in the department's judgment, does not pose a threat to human health or the environment; or
(iii) Action under another authority is appropriate.
A decision for a particular follow-up action does not preclude the department from requiring some other action in the future based on reevaluation of the site or additional information. If the department determines that an emergency remedial action or interim action is required, then notification of the threat to the potentially affected vicinity may be required by the department. The method and nature of the notification shall be determined on a case-by-case basis. Such notification shall be the responsibility of the site owner or operator if required in writing by the department.
(((5))) (6) Early notice letter.
(a) For sites requiring further remedial action under
chapter 70.105D RCW, the department ((will)) shall notify the
owner, operator, and any potentially liable person known to the
department of its decision. ((This letter)) For sites requiring
no further remedial action, if requested by the owner or
operator, the department shall notify the owner or operator of
the department's conclusion. These notices shall be in writing
and may be combined with the ((notice)) determination of status
letter in WAC 173-340-500.
(b) Where further remedial action is required, the notification required under this subsection shall be a letter mailed to the person which includes:
(i) The basis for the department's decision;
(ii) Information on the cleanup process provided for in this chapter;
(iii) A statement that it is the department's policy to work cooperatively with persons to accomplish prompt and effective cleanups;
(iv) A person or office of the department to contact regarding the contents of the letter; and
(v) A statement that the letter is not a determination of liability and that cooperating with the department in planning or conducting a remedial action is not an admission of guilt or liability.
(7) Timing. Nothing in this section shall preclude the department from taking or requiring appropriate remedial action at any time.
[Statutory Authority: Chapter 70.105D RCW. 90-08-086, § 173-340-310, filed 4/3/90, effective 5/4/90.]
(1) Purpose. A site hazard assessment is an early study to provide preliminary data regarding the relative potential hazard of the site. The purpose of the site hazard assessment is to provide sufficient sampling data and other information for the department to:
(a) Confirm or rule out that a release or threatened release of a hazardous substance has occurred;
(b) ((To)) Identify the hazardous substance and provide some
information regarding the extent and concentration of the
substance;
(c) Identify site characteristics that could result in the hazardous substance entering and moving through the environment;
(d) Evaluate the potential for the threat to human health and the environment; and
(e) Determine the hazard ranking of the site under WAC 173-340-330, if appropriate.
(2) Timing. ((Unless otherwise directed by the department))
Generally, a site hazard assessment shall be completed before
proceeding to any subsequent phase of remedial action, other than
an emergency or interim action.
(3) Administrative options. The site hazard assessment may be conducted under any of the procedures described in WAC 173-340-510.
(4) Scope and content. ((A site hazard assessment is an
early study to provide preliminary data regarding the relative
potential hazard of the site.)) A site hazard assessment is not
intended to be a detailed site characterization, however it shall
include sufficient sampling, site observations, maps, and other
information needed to meet the purposes specified in subsection
(1) of this section. To fulfill this requirement, a site hazard
assessment shall include, as appropriate, the following
information:
(a) Identification of hazardous substances, including what was released and is threatened to be released and/or, if known, what products of decomposition, recombination, or chemical reaction are currently present on site, and an estimate of their quantities and concentrations;
(b) Evidence confirming a release or threatened release of hazardous substances to the environment;
(c) Description of facilities containing releases, if any, and their condition;
(d) Identification of the location of all areas where a hazardous substance is known or suspected to be, indicated on a site map;
(e) Consideration of surface water run-on and run-off and the hazardous substances leaching potential;
(f) Preliminary characterization of the subsurface and ground water actually or potentially affected by the release, including vertical depth to ground water and distance to nearby wells, bodies of surface water, and drinking water intakes;
(g) Preliminary evaluation of receptors, including: Human population, food crops, recreation areas, parks, sensitive environments, irrigated areas, and aquatic resources currently or potentially affected by ground water, air, or surface water containing the release of hazardous substances at the site, including distances to these receptors; and
(h) ((Any other physical factors which may be significant in
estimating the potential or current exposure to sensitive
biota.)) Sufficient information to determine whether the site
qualifies under WAC 173-340-7491 for an exclusion from conducting
a simplified or site-specific terrestrial ecological evaluation
and, if not, whether the site meets any of the conditions in WAC 173-340-7491(2) requiring a site-specific terrestrial ecological
evaluation.
(5) Guidance. The department shall make available guidance for how to conduct a site hazard assessment to meet the requirements of this section. Persons are encouraged to contact the department to obtain a copy of the latest guidance.
(6) Department decision. Based on the results of the site hazard assessment and other available information about the site, the department shall either determine the site warrants no further action using the criteria in WAC 173-340-310 (5)(d) or proceed with ranking and placing the site on the hazardous sites list under WAC 173-340-330.
(7) Notification. The department shall make available the results of the site hazard assessment to the site's owner and operator and any person who has received a potentially liable person status letter under WAC 173-340-500 regarding the site. If the department finds after a site hazard assessment that the site requires no further action, it shall publish this decision in the Site Register.
[Statutory Authority: Chapter 70.105D RCW. 90-08-086, § 173-340-320, filed 4/3/90, effective 5/4/90.]
(1) Purpose. The department shall maintain a list of
sites where remedial action has been determined by the department
to be necessary. This list, called the hazardous sites list,
shall fulfill the department's responsibilities under RCW 70.105D.030 (2)(b) and (3). From this list, the department shall
select those sites where action is anticipated and include those
in the biennial program report((. (See)) under WAC 173-340-340.(()))
(2) Hazard ranking.
(a) The department shall give a hazard ranking to sites
placed on the list ((shall be given a hazard ranking)). The
purpose of hazard ranking is to estimate, based on the
information compiled during the site hazard assessment, the
relative potential risk posed by the site to human health and the
environment. This assessment considers air, ground water, and
surface water migration pathways, human and nonhuman exposure
targets, properties of the substances present, and the
interaction of these variables.
(((a))) (b) The department shall evaluate each site on a
consistent basis using the procedure described in the "Washington
Ranking Method Scoring Manual((,))" ((and all revisions and
additions thereto)), publication number 90-14, dated April 1992.
The sediment component of a site shall be scored using the
procedures described in "Sediment Ranking System," publication
number 97-106, dated January 1990, and "Status Report: Technical
Basis for SEDRANK Modifications," publication number 97-107,
dated June 1991. The ranking procedure and major amendments to
the manual shall be reviewed by the science advisory board
established under chapter 70.105D RCW. Information obtained in
the site hazard assessment, plus any additional data specified in
((the manual)) these publications, shall be included in the
hazard ranking evaluation.
(((b))) (3) Site Register. The department shall
periodically provide notification of the results of hazard
ranking in the Site Register ((established under WAC 173-340-600)). The department shall make available hazard
ranking results for each site to the site owner and operator and
any potentially liable person known to the department ((prior to
publishing)) before publication in the Site Register.
(((c))) (4) Reranking. The department may at its discretion
re-rank a site if, ((prior to)) before the initiation of state
action at the site, the department receives additional
information within the scope of the evaluation criteria which
indicates that a significant change in rank may result.
(((3))) (5) Listing.
(((a))) Sites shall be ranked and placed on the hazardous
sites list if, after the completion of a site hazard assessment,
the department ((has determined)) determines that further action
is required at the site. The list shall be updated at least once
per year. Placement of a site on the hazardous sites list does
not, by itself, imply that persons associated with the site are
liable under chapter 70.105D RCW.
(((b))) (6) Site status. The hazardous sites list shall
((also)) reflect the current status of remedial action at each
site. The department may change a site's status to reflect
current conditions. The status for each site shall be identified
as one of the following:
(((i))) (a) Sites awaiting further remedial action;
(((ii))) (b) Sites with remedial action in progress;
(((iii))) (c) Sites where a cleanup action has been
conducted but confirmational monitoring is underway;
(((iv))) (d) Sites with independent remedial actions; or
(((v))) (e) Other categories established by the department.
(((4))) (7) Removing sites from the list.
(a) The department may remove a site from the list only after it has determined that:
(i) For sites where the selected cleanup action does not
include containment, all remedial actions except confirmational
monitoring have been completed and compliance with the cleanup
standards has been achieved at the site; ((or))
(ii) The listing was erroneous; or
(iii) For sites where the selected cleanup action includes containment, if the following conditions have been met:
(A) All construction and operation of remedial actions have been adequately completed and only passive maintenance activities such as monitoring, inspections and periodic repairs remain;
(B) Sufficient confirmational monitoring has been done to demonstrate that the remedy has effectively contained the hazardous substances of concern at the site;
(C) All required performance monitoring has been completed;
(D) Any required institutional controls are in place and have been demonstrated to be effective in protecting public health and the environment from exposure to hazardous substances and protecting the integrity of the cleanup action;
(E) Written documentation is present in the department files that describes what hazardous substances have been left on site, where they are located and the long term monitoring and maintenance obligations at the site;
(F) When required under WAC 173-340-440, financial assurances are in place;
(G) For sites with releases to ground water, it has been demonstrated the site meets ground water cleanup levels at the designated point of compliance.
(b) A site owner, operator, or potentially liable person may
request that a site be removed from the list by submitting a
petition to the department. The petition shall include thorough
documentation of all investigations performed, all cleanup
actions taken, and ((of)) adequate compliance monitoring to
demonstrate to the department's satisfaction that one of the
conditions in (a) of this subsection has been met. The
department may require payment of costs incurred, including an
advance deposit, for review and verification of the work
performed. The department shall review such petitions; however,
the timing of the review shall be at its discretion and as
resources may allow.
(((c))) (8) Record of sites. The department ((will)) shall
maintain a record of sites that have been removed from the list
under (((a)(i) of this)) subsection (7) of this section. The
record shall identify which sites have institutional controls
under WAC 173-340-440 and which sites are subject to periodic
review under WAC 173-340-420. This record will be made available
to the public upon request.
(((5))) (9) Relisting of sites. The department may relist a
site ((which)) that has previously been removed if it determines
that the site requires further remedial action.
(((6))) (10) Notice. The department shall provide public
notice and an opportunity to comment when the department proposes
to remove a site from the list. Additions to the list, changes
in site status, and removal from the list shall be published in
the Site Register.
[Statutory Authority: Chapter 70.105D RCW. 90-08-086, § 173-340-330, filed 4/3/90, effective 5/4/90.]
(1) Timing. Before November 1 of each even-numbered year, the department shall prepare a biennial program report for the legislature containing its plan for conducting remedial actions for the following two fiscal years. This report shall identify the projects and expenditures recommended for appropriation from both the state and local toxics control accounts. In determining which sites the department shall consider for planned action, emphasis shall be given to sites posing the highest risk to human health and the environment, as indicated by a site's hazard ranking. The department may also consider other factors in setting site priorities. After legislative action and any revisions, this report shall become the department's biennial program plan.
(2) Public notice. The department shall provide public
notice and a hearing on the proposed plan. For purposes of this
subsection only, public notice shall consist of mailings to all
persons who have made a timely request ((and)) to the appropriate
news media, and publication in the state register. Notice shall
also be provided in the Site Register. The public comment period
on the proposed plan shall run for at least thirty days from the
date of the publication in the Site Register.
[Statutory Authority: Chapter 70.105D RCW. 90-08-086, § 173-340-340, filed 4/3/90, effective 5/4/90.]
(1) Purpose. The purpose of a ((state))
remedial investigation/feasibility study is to collect, develop,
and evaluate sufficient information regarding a site to ((enable
the selection of)) select a cleanup action under WAC 173-340-350
and 173-340-360.
(2) Timing. Unless otherwise directed by the department, a
((state)) remedial investigation/feasibility study shall be
completed before selecting a cleanup action under WAC 173-340-350
and 173-340-360, except for an emergency or interim action.
(3) Administrative options. A ((state)) remedial
investigation/feasibility study may be conducted under any of the
procedures described in WAC 173-340-510; for example, independent
remedial actions, agreed orders, enforcement orders, and consent
decrees.
(4) Submittal requirements. For a remedial action conducted by the department or under a decree or order, a report shall be prepared at the completion of the remedial investigation/feasibility study. Additionally, the department may require reports to be submitted for discrete elements of the remedial investigation/feasibility study. Reports prepared under this section and under an order or decree shall be submitted to the department for review and approval. See also subsection (7)(c)(iv) of this section for information on the sampling and analysis plan and the safety and health plan.
(5) Public participation. Public participation will be accomplished in a manner consistent with WAC 173-340-600.
(((5))) (6) Scope. The scope of a ((state)) remedial
investigation/feasibility study ((will depend)) varies from site
to site, depending on the informational and analytical needs of
the specific facility. This requires that the process remain
flexible((, with the scope of the state remedial
investigation/feasibility study varying from site to site)) and
be streamlined when possible to avoid the collection and
evaluation of unnecessary information so that the cleanup can
proceed in a timely manner. Where information required in
subsections (7)(c) and (8)(c) of this section is available in
other documents for the site, that information may be
incorporated by reference to avoid unnecessary duplication.
However, in all cases sufficient information must be collected,
developed, and evaluated to enable the selection of a cleanup
action under WAC 173-340-350 and 173-340-360. In addition, for
facilities on the federal national priorities list, ((the state))
a remedial investigation/feasibility study shall comply with
federal requirements.
(((6) Contents.)) (7) Procedures for conducting a remedial
investigation.
(a) Purpose. The purpose of the remedial investigation is to collect data necessary to adequately characterize the site for the purpose of developing and evaluating cleanup action alternatives. Site characterization may be conducted in one or more phases to focus sampling efforts and increase the efficiency of the remedial investigation. Site characterization activities may be integrated with the development and evaluation of alternatives in the feasibility study, as appropriate.
(b) Scoping activities. The following scoping activities may be taken before conducting a remedial investigation, to focus the collection of data and assist the department in making the preliminary evaluation required under the State Environmental Policy Act (see WAC 197-11-256):
(i) Assemble and evaluate existing data on the site, including the results of any interim or emergency actions, initial investigations, site hazard assessments, and other site inspections;
(ii) Develop a preliminary conceptual site model of the potential exposure pathways and potential migration routes at the site;
(iii) Begin to identify likely cleanup levels for the site;
(iv) Begin to identify likely cleanup action components that may address the releases at the site;
(v) Consider the type, quality and quantity of data necessary to support selection of a cleanup action;
(vi) Begin to identify likely applicable state and federal laws under WAC 173-340-710.
(c) Information requirements. A ((state)) remedial
investigation((/feasibility study)) shall include the following
information as appropriate:
(((a))) (i) General facility information. General
information, including: Project title; name, address, and phone
number of project coordinator; legal description of the facility
location; dimensions of the facility; present owner and operator;
chronological listing of past owners and operators and
operational history; and other pertinent information.
(((b))) (ii) Site conditions map. An existing site
conditions map ((which)) that illustrates relevant current site
features such as((:)) property boundaries((;)), proposed facility
boundaries((;)), surface topography((;)), surface and subsurface
structures((;)), utility lines((;)), well locations((;)), and
other pertinent information.
(((c))) (iii) Field investigations. Sufficient
investigations to characterize the distribution of hazardous
substances present at the site, and threat to human health and
the environment. Where applicable to the site, these
investigations will need to address the following:
(((i))) (A) Surface water and sediments. Investigations of
surface water and sediments to characterize significant
hydrologic features such as: Surface drainage patterns and
quantities, areas of erosion and sediment deposition, surface
waters, floodplains, and actual or potential hazardous substance
migration routes towards and within these features. Sufficient
surface water and sediment sampling shall be performed to
adequately characterize the areal and vertical distribution and
concentrations of hazardous substances. Properties of surface
and subsurface sediments ((which)) that are likely to influence
the type and rate of hazardous substance migration, or are likely
to affect the ability to implement alternative cleanup actions
shall be characterized.
(((ii))) (B) Soils. Investigations to adequately
characterize the areal and vertical distribution and
concentrations of hazardous substances in the soil due to the
((facility)) release. Properties of surface and subsurface soils
((which)) that are likely to influence the type and rate of
hazardous substance migration, or which are likely to affect the
ability to implement alternative cleanup actions shall be
characterized.
(((iii))) (C) Geology and ground water system
characteristics. Investigations of site geology and hydrogeology
to adequately characterize the areal and vertical distribution
and concentrations of hazardous substances in the ground water
and those features which affect the fate and transport of these
hazardous substances. This shall include, as appropriate, the
description, physical properties and distribution of bedrock and
unconsolidated materials; ground water flow rate and gradient for
affected and potentially affected ground waters; ground water
divides; areas of ground water recharge and discharge; location
of public and private production wells; and ground water quality
data.
(((iv))) (D) Air. An evaluation of air quality impacts,
including sampling, where appropriate, and information regarding
local and regional climatological characteristics which are
likely to affect the hazardous substance migration such as((:))
seasonal patterns of rainfall((;)), the magnitude and frequency
of significant storm events((;)), temperature extremes((;)),
prevailing wind direction((;)), variations in barometric
pressure, and wind velocity.
(((v))) (E) Land use. Information regarding present and
proposed land and resource uses and zoning for the site and
potentially affected areas and characterizing human and
ecological populations that are reasonably likely to be exposed
or potentially exposed to the ((hazardous substance released from
the facility and present and proposed land uses and zoning for
the site and potentially affected areas)) release based on such
use.
(((vi) Natural resources and ecology.)) (F) Terrestrial
ecological evaluation.
(I) Information to determine the impact or potential impact
of the hazardous substance from the facility on the natural
resources and ecology of the area ((such as: Sensitive
environment, plant and animal species, and other environmental
receptors)) including any information needed to conduct a
terrestrial ecological evaluation, under WAC 173-340-7492 or
173-340-7493, or to establish an exclusion under WAC 173-340-7491.
(((vii))) (II) Where appropriate, a terrestrial ecological
evaluation may be conducted so as to avoid duplicative studies of
soil contamination that will be remediated to address other
concerns, such as protection of human health. This may be
accomplished by evaluating residual threats to the environment
after cleanup action alternatives for human health protection
have been developed. Examples of sites where this approach may
not be appropriate include: A site contaminated with a hazardous
substance that is primarily an ecological concern and will not
obviously be addressed by the cleanup action for the protection
of human health, such as zinc; or a site where the development of
a human health based remedy is expected to be a lengthy process,
and postponing the terrestrial ecological evaluation would cause
further delay or harm to the environment.
(III) If it is determined that a simplified or site-specific terrestrial ecological evaluation is not required under WAC 173-340-7091, the basis for this determination shall be included in the remedial investigation report.
(G) Hazardous substance sources. A description of and
sufficient sampling to define the location, quantity, areal and
vertical extent, concentration within and sources of ((waste
disposal areas)) releases. Where relevant, information on the
physical and chemical characteristics, and the biological effects
of hazardous substances shall be provided.
(((viii))) (H) Regulatory classifications. Regulatory
designations classifying affected air, surface water and ground
water, if any.
(((d) Risk assessment. A risk assessment characterizing the
current and potential threats to human health and the environment
that may be posed by hazardous substances. This assessment may
not be required when the department determines that proposed
cleanup standards are obvious and undisputed and allow an
adequate margin of safety for protection of human health and the
environment.
(e) Cleanup action alternatives. An evaluation of alternative cleanup actions that protect human health and the environment by eliminating, reducing, or otherwise controlling risks posed through each exposure pathway and migration route, shall be required. The number and types of alternatives to be evaluated shall take into account the characteristics and complexity of the facility. A phased approach for evaluation of alternatives may be required for certain facilities, including an initial screening of alternatives to reduce the number of potential remedies for the final detailed evaluation. The final evaluation of cleanup action alternatives that pass the initial screening shall be evaluated for compliance with the requirements in WAC 173-340-360.
(f) Work plans. A sampling and analysis plan, and a safety and health plan shall be prepared as part of state remedial investigation/feasibility study activities. These plans shall conform to the requirements specified in this chapter.
(g))) (iv) Workplans. A safety and health plan and a sampling and analysis plan, shall be prepared as part of the remedial investigation/feasibility study. These plans shall conform to the requirements specified in this chapter. See WAC 173-340-810 and 173-340-820.
(v) Other information as required by the department.
(8) Procedures for conducting a feasibility study.
(a) Purpose. The purpose of the feasibility study is to develop and evaluate cleanup action alternatives to enable a cleanup action to be selected for the site. If concentrations of hazardous substances do not exceed the cleanup level at a standard point of compliance, no further action is necessary.
(b) Screening of alternatives. An initial screening of alternatives to reduce the number of alternatives for the final detailed evaluation may be appropriate. The person conducting the feasibility study may initially propose cleanup action alternatives or components to be screened from detailed evaluation. The department shall make the final determination of which alternatives must be evaluated in the feasibility study. The following cleanup action alternatives or components may be eliminated from the feasibility study:
(i) Alternatives that, based on a preliminary analysis, the department determines so clearly do not meet the minimum requirements in subsection (9) of this section including those alternatives whose costs are so clearly disproportionate that a more detailed analysis is unnecessary; and
(ii) Alternatives or components that are not technically possible at the site.
(c) Contents of the feasibility study. A feasibility study shall include the following information as appropriate.
(i) General requirements.
(A) The feasibility study shall include cleanup action alternatives that protect human health and the environment by eliminating, reducing, or otherwise controlling risks posed through each exposure pathway and migration route.
(B) A reasonable number and type of alternatives shall be evaluated, taking into account the characteristics and complexity of the facility, including current site conditions and physical constraints. Alternatives for protection of aquatic ecological receptors, terrestrial ecological receptors and human health shall be developed as appropriate to the site.
(C) Each alternative may consist of one or more cleanup action components, including, but not limited to, components that reuse or recycle the hazardous substances, destroy or detoxify the hazardous substances, immobilize or solidify the hazardous substances, provide for on-site or off-site disposal of the hazardous substances in an engineered, lined and monitored facility, on-site isolation or containment of the hazardous substances with attendant engineering controls, and institutional controls and monitoring.
(D) Alternatives to be evaluated during the feasibility study may, as appropriate, include different remediation levels for the same component. For example, alternatives that excavate and treat soils at varying concentrations may be appropriate to evaluate. See subsection (11) of this section for detailed information on establishing potential remediation levels to be evaluated in the feasibility study.
(E) If necessary, evaluate the residual threats that would accompany each alternative and determine if remedies that are protective of human health will also be protective of terrestrial receptors. See subsection (7)(c)(iii)(F) of this section.
(F) The feasibility study shall include alternatives with the standard point of compliance for each environmental media containing hazardous substances, and may include, as appropriate, alternatives with conditional points of compliance.
(G) Each alternative shall be evaluated on the basis of the requirements and the criteria in subsections (9) and (10) of this section, using the procedures in this section and WAC 173-340-360.
(H) A preferred cleanup action may be identified in the feasibility study, where appropriate.
(I) Other information. Other information may be required by the department.
(ii) Permanent alternatives.
(A) The feasibility study shall include at least one permanent cleanup action alternative, as defined in WAC 173-340-200, to serve as a baseline against which other alternatives shall be evaluated for the purpose of determining whether the cleanup action selected is permanent to the maximum extent practicable. The most practicable permanent alternative shall be included.
(B) A permanent cleanup action alternative need not be included for municipal landfills, for sites where a permanent alternative is not technically possible, where a model remedy is chosen as the cleanup action, and for sites where the cost of a permanent alternative is so clearly disproportionate that a more detailed analysis is not necessary, as determined in (b) of this subsection.
(9) Minimum requirements for cleanup actions. All cleanup actions must meet the following requirements. Because cleanup actions will often involve the use of several cleanup action components at a single site, the overall cleanup action shall meet the requirements of this section. The department recognizes that some of these requirements contain flexibility and will require the use of professional judgment in determining how to apply them at particular sites.
(a) Threshold requirements.
(i) Protect human health and the environment.
(ii) Comply with cleanup standards. See WAC 173-340-700 through 173-340-760.
(iii) Comply with applicable state and federal laws. See WAC 173-340-710.
(iv) Provide for compliance monitoring. See WAC 173-340-410 and 173-340-720 through 173-340-760.
(b) Other requirements. When selecting from cleanup action alternatives that fulfill the threshold requirements, the selected action shall:
(i) Use permanent solutions to the maximum extent practicable. See WAC 173-340-360(3).
(ii) Provide for a reasonable restoration time frame. See subsection (12)(e) of this section.
(iii) Consider public concerns. See WAC 173-340-600.
(c) Ground water cleanup actions.
(i) Permanent ground water cleanup actions. A permanent cleanup action shall be used to achieve the cleanup levels for ground water in WAC 173-340-720 at the standard point(s) of compliance (see WAC 173-340-720 (6)(a) and (b)) where a permanent cleanup action is practicable or deemed by the department to be in the public interest.
(ii) Nonpermanent ground water cleanup actions. When a permanent cleanup action to achieve the cleanup levels in WAC 173-340-720 with a point of compliance throughout the site is not practicable, the following measures shall be taken:
(A) Treatment or removal of the source of the release shall be conducted for liquid wastes, areas contaminated with high concentrations of hazardous substances, highly mobile hazardous substances, or hazardous substances that cannot be reliably contained. This includes removal of petroleum and other light nonaqueous phase liquid (LNAPL) from the ground water using normally accepted engineering practices. Source containment may be appropriate when a dense nonaqueous phase liquid (DNAPL) cannot be recovered after reasonable efforts have been made.
(B) Ground water containment, including barriers or hydraulic control through ground water pumping, or both, shall be implemented to the maximum extent practicable to avoid lateral and vertical expansion of the ground water volume affected by the hazardous substance;
(d) Soils at current or potential future residential areas, schools and day care centers. For current or potential future residential areas, schools and day care centers, soils above the cleanup level must be treated, removed, or contained. Property will qualify as a current or potential residential area if:
(i) The property is currently used for residential use; or
(ii) The property has a potential to serve as a future residential area based on the consideration of zoning, statutory and regulatory restrictions, comprehensive plans, historical use, adjacent land uses, and other relevant factors.
(e) Institutional controls. Where institutional controls are being considered:
(i) Use institutional controls and financial assurances where required. See WAC 173-340-440.
(ii) Cleanup actions shall not rely primarily on institutional controls and monitoring where it is technically possible to implement a cleanup action alternative that uses a more permanent cleanup action for all or a portion of the site.
(iii) Institutional controls shall be evaluated according to the evaluation criteria just as any other cleanup action component. Institutional controls shall demonstrably reduce risks to ensure a protective remedy.
(f) Releases and migration. Cleanup actions shall prevent or minimize present and future releases and migration of hazardous substances in the environment.
(g) Dilution and dispersion. Cleanup actions shall not rely primarily on dilution and dispersion unless the incremental costs of any active remedial measures over the costs of dilution and dispersion grossly exceed the incremental degree of benefits of active remedial measures over the benefits of dilution and dispersion.
(10) Evaluation criteria. In addition to meeting the minimum requirements in subsection (9)(a), (b)(ii) and (iii) and (c) through (d) of this section; the following criteria shall be used to evaluate and compare each cleanup action alternative in order to determine whether a cleanup action is permanent to the maximum extent practicable.
(a) Protectiveness. Overall protectiveness of human health and the environment including, but not limited to, the degree to which existing risks are reduced, time required to reduce risk at the facility and attain cleanup standards, on-site and off-site risks resulting from implementing the alternative, and improvement of the overall environmental quality.
(b) Permanence. The degree to which the alternative permanently reduces the toxicity, mobility or volume of hazardous substances, including adequacy of the alternative in destroying the hazardous substances, reduction or elimination of hazardous substance releases and sources of releases, degree of irreversibility of waste treatment process, and the characteristics and quantity of treatment residuals generated.
(c) Cost. The cost to implement the alternative, including the cost of construction, the net present value of any long-term costs, and agency oversight costs that are cost recoverable. Long-term costs include, but are not limited to: Operation and maintenance, monitoring, equipment replacement, maintenance of institutional controls. Cost estimates for treatment technologies shall describe pretreatment, analytical, labor, and waste management costs. The design life of the cleanup action shall be estimated and the cost of replacement or repair of major elements shall be included in the cost estimate.
(d) Effectiveness over the long term. Long-term effectiveness includes the degree of certainty that the alternative will be successful, long-term reliability ("long-term" means as long as hazardous substances that exceed the cleanup levels are estimated to remain on site), magnitude of residual risk with the alternative in place, and effectiveness of controls required to manage treatment residues or remaining wastes. The following types of cleanup action components may be used as a guide, in descending order, when assessing the relative degree of long-term effectiveness: Reuse or recycling; destruction or detoxification; immobilization or solidification; on-site or off-site disposal in an engineered, lined and monitored facility; on-site isolation or containment with attendant engineering controls; and institutional controls and monitoring.
(e) Management of short-term risks. The risk to human health and the environment associated with the alternative during construction and implementation, and the effectiveness of measures that will be taken to manage such risks.
(f) Technical and administrative implementability. Ability to be implemented including consideration of whether the alternative is technically possible, availability of necessary off-site facilities, services and materials, administrative and regulatory requirements, scheduling, size, complexity, monitoring requirements, access for construction operations and monitoring, and integration with existing facility operations and other current or potential remedial actions.
(g) Consideration of public concerns. Whether the community has concerns regarding the alternative, and, if so, the extent to which the alternative addresses those concerns. This process includes concerns from individuals, community groups, local governments, tribes, federal and state agencies, or any other organization that may have an interest in or knowledge of the site.
(11) Remediation levels.
(a) A cleanup action selected for a site will often involve a combination of cleanup action components, such as treatment of some soil contamination and containment of the remainder. Remediation levels are used to identify the concentrations of hazardous substances at which different cleanup action components will be used. (See the definition of remediation level in WAC 173-340-200.) For example, a cleanup action that uses both soil treatment and containment will have a soil remediation level above which soil will be treated and below which soil will be contained. Remediation levels are not the same as cleanup levels. While cleanup levels are selected for all sites, remediation levels may or may not be selected, depending on the situation. If a permanent cleanup action is the remedy ultimately selected for the site, then no remediation level is necessary. (See the definition of permanent solution in WAC 173-340-200.) For example, if the cleanup action ultimately selected for a site is to treat all soil contamination that exceeds cleanup levels, then no remediation level is necessary for the site.
(b)(i) Potential remediation levels may be developed as part of the cleanup action alternatives to be considered during the feasibility study. (See subsection (8)(c)(D) of this section.) Quantitative or qualitative methods may be used to develop these potential remediation levels. These methods may be simple or complex, as appropriate to the site. A potential remediation level may be developed by considering fate and transport issues, a human health risk assessment, an ecological risk assessment, or other appropriate methods. Other appropriate methods include, but are not limited to, situations where the use of a cleanup action component is based on physical or visual identification of contaminated material rather than a concentration. All cleanup action alternatives in a feasibility study, including those with proposed remediation levels, must be evaluated to determine whether they meet all of the requirements in subsection (9) of this section.
(ii) Final remediation levels are evaluated and established through the remedy selection process in WAC 173-340-350 through 173-340-390. Selection of a final cleanup action that includes a remediation level requires a determination that a permanent cleanup action is not practicable, based on the disproportionate cost test (see WAC 173-340-360(3)), and a determination that the cleanup action alternative meets all the requirements in subsection (9) of this section, including that it is protective of human health and the environment.
(12) Quantitative risk assessment.
(a) Overview. A site-specific risk assessment may be conducted characterizing the current and potential threats to human health and the environment that may be posed by the release at the site for the purpose of evaluating alternatives, including those using remediation levels. Where this chapter requires the use of a specified approach, including a formula and default values, for a particular exposure pathway, a risk assessment shall use that approach, except as provided for under WAC 173-340-702 and 173-340-708.
(b) Reasonable maximum exposure. Standard reasonable maximum exposures and corresponding Method B and C equations in WAC 173-340-720 through 173-340-760 may be modified and used during remedy selection to help assess the protectiveness to human health of a cleanup action alternative that uses a remediation level, engineered control and/or institutional control. Other considerations will also be needed in evaluating protectiveness, i.e., the use of these modified equations does not automatically establish a final remediation level. See WAC 173-340-708(3) for information on the use of alternate reasonable maximum exposures for remediation levels, including consideration of varying land uses.
(c) Acceptable risk level. The acceptable risk level for remediation levels shall be the same as that used for the cleanup level.
(d) Input parameters. Input parameters for the Method B and C human health equations for establishing remediation levels may be modified as described in WAC 173-340-708(10).
(e) Similar to the human health soil equations, the equations used in WAC 173-340-747 to develop cleanup concentrations may also be used to help assess protectiveness of a cleanup action alternative that uses a remediation level, engineered control and/or institutional control for the soil to ground water pathway. The standard three phase model may be modified as described in WAC 173-340-708 (10)(b) and (c) and in WAC 173-340-747 to help evaluate protectiveness of the alternatives. In addition, other appropriate methods as provided for in WAC 173-340-747, may be proposed to develop potential remediation levels where the soil to ground water pathway is a concern.
(f) WAC 173-340-702 (14), (15) and (16) describe the burden of proof, consideration of new scientific information and minimum criteria for modifying the standard reasonable maximum exposures, human health exposure parameters, soil to ground water equation input parameters and other assumptions in WAC 173-340-700 through 173-340-760. These sections apply to development of potential and final remediation levels as well as cleanup levels.
(g) Commercial gas station scenario.
(i) At active commercial gas stations, where there are retail sales of gasoline and/or diesel and the site is covered with asphalt or concrete pavement, equations 740-3 and 740-5 may be used with the exposure frequency reduced to 0.25 to demonstrate when a cap is protective of the soil ingestion and dermal pathways. This scenario is intended to be a conservative estimate of a child trespasser scenario at a commercial gas station where contaminated soil has been excavated and stockpiled or soil is otherwise accessible. Sites using remediation levels must also use institutional controls to prevent uses that could result in a higher level of exposure.
(ii) Equations 740-3 and 740-5 may also be modified on a site-specific basis as described in WAC 173-340-700 through 173-340-750.
(13) Additional requirements.
(a) Cleanup levels. Unless otherwise specified under this chapter, cleanup levels shall be established for hazardous substances in each media and for each pathway where a release has occurred, using WAC 173-340-700 through 173-340-760. These are typically initially established during the scoping of the remedial investigation and may be further refined during the remedial investigation and/or feasibility study.
(b) Compliance with other laws. The department may require that a remedial investigation/feasibility study include additional information or analyses to comply with the State Environmental Policy Act or other applicable laws. This includes information necessary to make a threshold determination (see WAC 197-11-335(1)), or information necessary to integrate the remedial investigation/feasibility study with an environmental impact statement (see WAC 197-11-262).
(c) Treatability studies. The department may require treatability studies as necessary to provide sufficient information to develop and evaluate cleanup action alternatives for a site.
(((h) Any information needed to fulfill the applicable
requirements of the State Environmental Policy Act.
(i))) (d) Restoration time frame.
(i) The cleanup action selected shall provide for a reasonable restoration time frame. The factors to be considered when establishing a reasonable restoration time frame shall include:
(A) Potential risks posed by the site to human health and the environment;
(B) Practicability of achieving a shorter restoration time frame;
(C) Current use of the site, surrounding areas, and associated resources that are, or may be, affected by releases from the site;
(D) Potential future use of the site, surrounding areas, and associated resources that are, or may be, affected by releases from the site;
(E) Availability of alternative water supplies;
(F) Likely effectiveness and reliability of institutional controls;
(G) Ability to control and monitor migration of hazardous substances from the site;
(H) Toxicity of the hazardous substances at the site; and
(I) Natural processes that reduce concentrations of hazardous substances and have been documented to occur at the site or under similar site conditions.
(ii) A longer period of time may be used for the restoration time frame for a site to achieve cleanup levels at the point of compliance if the cleanup action selected has a greater degree of long-term effectiveness than on-site or off-site disposal, isolation, or containment options.
(iii) When area background concentrations (see WAC 173-340-200 for definition) would result in recontamination of the site to levels that exceed cleanup levels, that portion of the cleanup action which addresses cleanup below area background concentrations may be delayed until the off-site sources of hazardous substances are controlled. In these cases the remedial action shall be considered an interim action until cleanup levels are attained.
(iv) Where cleanup levels determined under Method C in WAC 173-340-706 are below technically possible concentrations, concentrations that are technically possible to achieve shall be met within a reasonable time frame considering the factors in paragraph (d) of this subsection. In these cases the remedial action shall be considered an interim action until cleanup levels are attained.
(v) Extending the restoration time frame shall not be used as a substitute for active cleanup actions, when such actions are practicable.
(e) Other information. Other information ((as)) may be
required by the department.
(((7) In appropriate cases the department may allow
departure from the requirements of subsection (6) of this section
and will allow information to be incorporated by reference to
avoid unnecessary duplication.
(8) Report. A report shall be prepared at the completion of the remedial investigation/feasibility study. Additionally, the department may require reports to be submitted following discrete elements of the remedial investigation/feasibility study. Reports prepared under this section and under an order or decree shall be submitted to the department for review and approval.))
[Statutory Authority: Chapter 70.105D RCW. 91-04-019, § 173-340-350, filed 1/28/91, effective 2/28/91; 90-08-086, § 173-340-350, filed 4/3/90, effective 5/4/90.]
(1) Purpose.
(((a))) This section describes the ((requirements)) process
for selecting cleanup actions, using the requirements and
criteria in WAC 173-340-350 (9) and (10). ((It specifies the
criteria for approving cleanup actions, the order of preference
for cleanup technologies, policies for permanent solutions, the
application of these criteria to particular situations, and the
process for making these decisions. This section is intended to
be used in conjunction with the cleanup standards defined in WAC 173-340-700 through 173-340-760 and the administrative principles
for the overall cleanup process (WAC 173-340-130).
(b) Because cleanup actions will often involve the use of several cleanup technologies or methods at a single site, the overall cleanup action shall meet the requirements of this section.
(2) Threshold requirements.
All cleanup actions conducted under this chapter shall protect human health and the environment; shall comply with cleanup standards (see WAC 173-340-700 through 173-340-760); shall comply with applicable state and federal laws (see WAC 173-340-710); and shall provide for compliance monitoring (see WAC 173-340-410).
(3) Other requirements. In addition, the cleanup action conducted shall:
(a) Use permanent solutions to the maximum extent practicable (see WAC 173-340-360 (4), (5), (7), and (8));
(b) Provide for a reasonable restoration time frame (see WAC 173-340-360(6)); and
(c) Consider public concerns raised during public comment on the draft cleanup action plan (see WAC 173-340-360 (10) through (13)).
(4) Cleanup technologies.
(a) Cleanup of hazardous waste sites shall be conducted using technologies which minimize the amount of untreated hazardous substances remaining at a site. Toward that end, the following technologies for addressing specific hazardous substances or pathways shall be considered in order of descending preference:
(i) Reuse or recycling;
(ii) Destruction or detoxification;
(iii) Separation or volume reduction followed by reuse, recycling, destruction, or detoxification of the residual hazardous substance;
(iv) Immobilization of hazardous substances;
(v) On-site or off-site disposal at an engineered facility designed to minimize the future release of hazardous substances and in accordance with applicable state and federal laws;
(vi) Isolation or containment with attendant engineering controls; and
(vii) Institutional controls and monitoring.
(b) A combination of technologies from more than one of the categories under (a) of this subsection may be used at a specific site. For example, the source of the hazardous substance may be recovered and recycled or destroyed, while containment is used to stop the migration of hazardous substances that have reached the ground water.
(c) Since cleanup actions will often involve a combination of technologies, cleanup action alternatives shall maximize the use of higher preference technologies.
(d) Ecology does not expect that one type of technology will be used for all sites. The adoption of the technology preferences in this subsection is designed to make it more difficult to select a cleanup action with a low preference without careful explanation of why technologies above it have not been used. As noted in subsection (9) of this section, ecology expects that lower options will be appropriate for some sites.
(5) Permanent solutions.
(a) When selecting a cleanup action, preference shall be given to permanent solutions to the maximum extent practicable.
(b) A permanent solution is one in which cleanup standards can be met without further action being required at the original site or any other site involved with the cleanup action, other than the approved disposal of any residue from preferred treatment technologies under subsection (4)(a)(i) through (iii) of this section.
(c) In general, technologies which reuse, recycle, destroy, or detoxify hazardous substances will result in permanent solutions if residual hazardous substance concentrations are below cleanup levels established under WAC 173-340-700 through 173-340-760. Containment of hazardous substances and/or institutional controls alone are not permanent solutions. Other technologies, such as immobilization of hazardous substances, may provide permanent solutions under some conditions.
(d) Ecology recognizes that permanent solutions may not be practicable for all sites. A determination that a cleanup action satisfies the requirement to use permanent solutions to the maximum extent practicable is based upon consideration of a number of factors. The following criteria shall be used to determine whether a cleanup action is "permanent to the maximum extent practicable":
(i) Overall protectiveness of human health and the environment including the degree to which existing risks are reduced, time required to reduce risk at the facility and attain cleanup standards, on-site and off-site risks resulting from implementing the alternative, the degree the cleanup action may perform to a higher level than specific standards in WAC 173-340-700 through 173-340-760, and improvement of the overall environmental quality;
(ii) Long-term effectiveness including degree of certainty that the alternative will be successful, long-term reliability, magnitude of residual risk, and effectiveness of controls required to manage treatment residues or remaining wastes;
(iii) Short-term effectiveness including protection of human health and the environment during construction and implementation of the alternative, and the degree of risk to human health and the environment prior to attainment of cleanup standards;
(iv) Permanent reduction of toxicity, mobility and volume of the hazardous substance including adequacy of the alternative in destroying the hazardous substances, reduction or elimination of hazardous substance releases and sources of releases, degree of irreversibility of waste treatment process, and the characteristics and quantity of treatment residuals generated;
(v) Ability to be implemented including consideration of whether the alternative is technically possible, availability of necessary off-site facilities, services and materials, administrative and regulatory requirements, scheduling, size, complexity, monitoring requirements, access for construction, operations and monitoring, and integration with existing facility operations and other current or potential remedial actions;
(vi) Cleanup costs. A cleanup action shall not be considered practicable if the incremental cost of the cleanup action is substantial and disproportionate to the incremental degree of protection it would achieve over a lower preference cleanup action. When selecting from among two or more cleanup action alternatives which have an equivalent level of preference under subsection (4) of this section, preference may be given to the least cost alternative. In performing this evaluation, the top three preferences in subsection (4) of this section shall be considered equivalent unless there are overriding public concerns or technical uncertainties;
(vii) The degree to which community concerns are addressed.
(e) To ensure a bias toward permanent solutions, cleanup actions conducted under this chapter including consideration of prior actions at the site shall comply with the following requirements:
(i) The cleanup action shall prevent or minimize present and future releases and migration of hazardous substances in the environment;
(ii) The cleanup action shall provide for a net reduction in the amount of a hazardous substance being released from the source area;
(iii) The cleanup action shall not rely primarily on dilution and dispersion of the hazardous substance if active remedial measures are technically possible;
(iv) A cleanup action relying primarily on institutional controls and monitoring shall not be used where it is technically possible to implement a cleanup action alternative that utilizes a higher preference cleanup technology for all or a portion of the site; and
(v) A cleanup action involving off-site transport and disposal of hazardous substances without treatment shall not be used if a treatment technology or method exists which will attain cleanup standards and is practicable.
(6) Restoration time frame.
(a) The cleanup action selected shall provide for a reasonable restoration time frame. The factors to be considered when establishing a reasonable restoration time frame shall include:
(i) Potential risks posed by the site to human health and the environment;
(ii) Practicability of achieving a shorter restoration time frame;
(iii) Current use of the site, surrounding areas, and associated resources that are, or may be, affected by releases from the site;
(iv) Potential future use of the site, surrounding areas, and associated resources that are, or may be, affected by releases from the site;
(v) Availability of alternative water supplies;
(vi) Likely effectiveness and reliability of institutional controls;
(vii) Ability to control and monitor migration of hazardous substances from the site;
(viii) Toxicity of the hazardous substances at the site; and
(ix) Natural processes which reduce concentrations of hazardous substances and have been documented to occur at the site or under similar site conditions.
(b) A longer period of time may be used for the restoration time frame for a site to achieve cleanup levels at the point of compliance if higher preference cleanup technologies in accordance with subsections (4) and (5) of this section are selected instead of on-site or off-site disposal, isolation, or containment options.
(c) When area background concentrations would result in recontamination of the site to levels which exceed cleanup levels, that portion of the cleanup action which addresses cleanup below area background concentrations may be delayed until the off-site sources of hazardous substances are controlled. In these cases the remedial action shall be considered an interim action until cleanup levels are attained.
(d) Where cleanup levels determined under method C in WAC 173-340-707 are below technically possible concentrations, concentrations that are technically possible to achieve shall be met within a reasonable time frame considering the factors in (a) of this subsection. In these cases the remedial action shall be considered an interim action until cleanup levels are attained.
(e) Extending the restoration time frame shall not be used as a substitute for active cleanup actions, when such actions are practicable.
(7) Ground water restoration.
(a) Ground water treatment to achieve the levels in WAC 173-340-720 throughout the ground water at and beyond the point of compliance shall be required where such treatment is practicable or where such treatment is not practicable, but deemed by the department to be in the public interest.
(b) When ground water treatment to achieve the cleanup levels at or beyond the point of compliance within an existing ground water plume is not practicable the following measures shall be taken:
(i) Treatment shall be used to reduce the levels to the maximum extent practicable;
(ii) Ground water containment, including barriers or hydraulic control through ground water pumping or both, shall be implemented to the maximum extent practicable to avoid lateral and vertical expansion of the ground water volume affected by the hazardous substance;
(iii) Source control measures shall be implemented to prevent or minimize additional releases to the ground water;
(iv) Adequate ground water monitoring to demonstrate control and containment of the hazardous substance shall be conducted;
(v) The potentially liable person shall provide an alternative water supply or treatment for persons with water supplies rendered unusable by the release; and
(vi) The practicability of achieving ground water cleanup levels by treating the ground water affected by the release shall be reevaluated during the periodic review under WAC 173-340-420.
(c) Appropriate restrictions on the use of ground water shall be placed under WAC 173-340-440 until cleanup levels established under WAC 173-340-720 are achieved.
(d) The integrity and continued operation of any treatment or containment system shall be assured in accordance with WAC 173-340-440.
(8) Containment actions.
(a) A cleanup action which relies primarily on on-site disposal, isolation, or containment of hazardous substances shall not be conducted if it is practicable to reuse, destroy, or detoxify those substances in a manner that remaining concentrations are below cleanup levels established under WAC 173-340-700 through 173-340-760.
(b) Long-term monitoring (WAC 173-340-410) and institutional controls (WAC 173-340-440) shall be required if on-site disposal, isolation, or containment is the selected cleanup action for a site or a portion of a site. Such measures shall be required until residual hazardous substance concentrations no longer exceed site cleanup levels established under WAC 173-340-700 through 173-340-760.
(c) If the proposed cleanup action involves on-site containment, the draft cleanup action plan shall specify the types, levels, and amounts of hazardous substances remaining on-site and the measures that will be utilized to prevent migration and contact with those substances.
(9) Expectations. Ecology has the following expectations for cleanup actions conducted under this chapter. The department recognizes that there may be sites where these expectations are not appropriate:
(a) Ecology expects that treatment technologies will be used wherever practicable. Use of treatment technologies should be emphasized at sites containing liquid wastes, areas contaminated with high concentrations of hazardous substances, highly mobile materials, and/or discrete areas of hazardous substances which lend themselves to treatment;
(b) To minimize the need for long-term management of contaminated materials, ecology expects that hazardous substances will be totally destroyed, detoxified, and/or removed to concentrations below cleanup levels throughout sites containing small volumes of hazardous substances;
(c) Ecology recognizes the need to use engineering controls, such as containment, for sites or portions of sites that contain large volumes of materials with relatively low levels of hazardous substances where treatment is impracticable;
(d) Ecology expects institutional controls, such as water use restrictions and deed restrictions, will be used to supplement engineering controls in order to prevent or limit exposure to hazardous substances and protect the integrity of the cleanup action;
(e) Ecology expects that cleanup actions will return useable ground waters to their beneficial uses wherever practicable, within a reasonable time frame. When restoration of ground water to beneficial uses is not practicable, ecology expects to require measures to minimize/prevent further migration, minimize ongoing releases, prevent exposure to contaminated water, and other appropriate measures (see WAC 173-340-360(7));
(f) In order to minimize the potential for migration of hazardous substances, ecology expects that active measures will be taken to prevent precipitation and subsequent runoff from coming into contact with contaminated soils and waste materials. When such measures are impracticable, such as during active cleanup, ecology expects that site runoff will be contained and treated prior to release from the site;
(g) Ecology expects that when hazardous substances remain on-site at concentrations which exceed cleanup levels, those hazardous substances will be consolidated to the maximum extent practicable where needed to minimize the potential for direct contact and migration of hazardous substances;
(h) Ecology expects that, for facilities adjacent to a surface water body, active measures will be taken to prevent/minimize releases to surface water via surface runoff and ground water discharges. Ecology expects that dilution will not be the sole method for demonstrating compliance with cleanup standards; and
(i) Ecology expects that cleanup actions conducted under this chapter will not result in a significantly greater overall threat to human health and the environment than other alternatives.
(10) Draft cleanup action plan. The department shall issue a draft cleanup action plan for cleanup actions conducted by the department or conducted by a potentially liable person under an order or decree. The level of detail in the draft cleanup action plan shall be commensurate with the complexity of the site and proposed cleanup action.
(a) The draft cleanup action plan shall include the following:
(i) A general description of the proposed cleanup action including compliance monitoring;
(ii) A brief summary of other alternative cleanup actions evaluated in the state remedial investigation/feasibility study or comparable documents;
(iii) Site cleanup levels and points of compliance for each hazardous substance and for each media of concern;
(iv) The schedule for implementation of the cleanup action plan including, if known, restoration time frame;
(v) Required institutional controls and site use restrictions, if any, for the proposed cleanup action;
(vi) Justification for selecting a cleanup action that uses cleanup technologies that have a lower preference than higher representative cleanup technologies listed in subsection (4)(a) of this section;
(vii) Applicable state and federal laws for the proposed cleanup action, when these are known at this step in the cleanup process (this does not preclude subsequent identification of applicable state and federal laws);
(viii) A preliminary determination by the department that the proposed cleanup action will comply with subsections (2) and (3) of this section; and
(ix) Where the cleanup action involves on-site containment, specification of the types, levels, and amounts of hazardous substances remaining on site and the measures that will be utilized to prevent migration and contact with those substances.
(b) For routine actions the department may use an order or decree to fulfill the requirements of a cleanup action plan, provided that the information in (a) of this subsection is included therein. The scope of detail for the required information shall be commensurate with the complexity of the site and proposed cleanup action.
(11) Public participation. The department will provide public notice and opportunity for comment on the draft cleanup plan as described in WAC 173-340-600.
(12) Final plan. Upon completion of the public comment period the department, after review and consideration of the comments received, shall issue a final cleanup action plan and publish its availability in the site register and by other appropriate methods. If the department determines, following the implementation of the preferred alternative, that the cleanup levels established in the cleanup action plan cannot be achieved, the department shall issue public notice of this determination.
(13) Federal cleanup sites. A record of decision or order or consent decree prepared under the Federal Cleanup Law that provides for a cleanup action may be used by the department to meet the requirements of this section provided:
(a) The cleanup action meets the requirements in subsections (2) and (3) of this section;
(b) The state has concurred with the cleanup action; and
(c) An opportunity was provided for the public to comment on the cleanup action.)) (2) Requirements and evaluation criteria. Alternatives that are in the feasibility study must be evaluated to determine whether they meet all the minimum requirements in WAC 173-340-350(9). In particular, one of those requirements is that the selected alternative is permanent to the maximum extent practicable. The disproportionate cost test, set out in this section, shall be used in making that determination.
(3) Procedure for selecting an alternative that is permanent to the maximum extent practicable.
(a) Applicability.
(i) When selecting a cleanup action, preference shall be given to permanent solutions to the maximum extent practicable. This shall be done by comparing the costs and benefits of the cleanup action alternatives that meet the minimum requirements under WAC 173-340-350 (9) and (10). The costs and benefits to be compared in the disproportionate cost test are the evaluation criteria identified under WAC 173-340-350(10).
(ii) It shall not be necessary to conduct a disproportionate cost analysis under this subsection, if the department and the potentially liable persons agree that:
(A) The incremental costs of a permanent alternative over that of the lower cost alternatives are not substantial; and
(B) The permanent alternative is identified by the department as the proposed cleanup action in the draft cleanup action plan.
(b) Permanent cleanup action. A permanent cleanup action or permanent solution is defined at WAC 173-340-200.
(c) Disproportionate cost analysis. Costs are disproportionate to benefits if the incremental costs of the alternative over that of a lower cost alternative exceed the incremental degree of benefits achieved by the alternative over that of the other lower cost alternative.
(i) The alternatives evaluated in the feasibility study shall be ranked from most to least permanent, based on the evaluation of the alternatives under WAC 173-340-350(10) and the definition of permanent solution in WAC 173-340-200.
(ii) The most practicable permanent solution shall be the baseline cleanup action alternative against which cleanup action alternatives are compared. If no permanent solution has been evaluated in the feasibility study, the cleanup action alternative evaluated in the feasibility study that provides the greatest degree of permanence shall be the baseline cleanup action alternative.
(iii) The comparison of benefits and costs may be quantitative, but will often be qualitative and require the use of best professional judgment. In particular, ecology has the discretion to favor or disfavor qualitative benefits and use that information in selecting a cleanup action. Where two or more alternatives are equal in benefits, the department shall select the less costly alternative provided the requirements of WAC 173-340-350(9) are met.
[Statutory Authority: Chapter 70.105D RCW. 91-04-019, § 173-340-360, filed 1/28/91, effective 2/28/91; 90-08-086, § 173-340-360, filed 4/3/90, effective 5/4/90.]
The department has the following expectations for the development of cleanup action alternatives under WAC 173-340-350 and the selection of cleanup actions under WAC 173-340-360. The department recognizes that there may be some sites where these expectations are not appropriate.
(1) The department expects that treatment technologies will be emphasized at sites containing liquid wastes, areas contaminated with high concentrations of hazardous substances, highly mobile materials, and/or discrete areas of hazardous substances that lend themselves to treatment.
(2) To minimize the need for long-term management of contaminated materials, the department expects that all hazardous substances will be destroyed, detoxified, and/or removed to concentrations below cleanup levels throughout sites containing small volumes of hazardous substances.
(3) The department recognizes the need to use engineering controls, such as containment, for sites or portions of sites that contain large volumes of materials with relatively low levels of hazardous substances where treatment is impracticable.
(4) In order to minimize the potential for migration of hazardous substances, the department expects that active measures will be taken to prevent precipitation and subsequent runoff from coming into contact with contaminated soils and waste materials. When such measures are impracticable, such as during active cleanup, the department expects that site runoff will be contained and treated prior to release from the site.
(5) The department expects that when hazardous substances remain on-site at concentrations which exceed cleanup levels, those hazardous substances will be consolidated to the maximum extent practicable where needed to minimize the potential for direct contact and migration of hazardous substances;
(6) The department expects that, for facilities adjacent to a surface water body, active measures will be taken to prevent/minimize releases to surface water via surface runoff and ground water discharges in excess of cleanup levels. The department expects that dilution will rarely be the sole method for demonstrating compliance with cleanup standards.
(7) The department expects that natural attenuation of hazardous substances may be appropriate at sites where:
(a) Source control has been conducted to the maximum extent practicable;
(b) Leaving contaminants on-site during the restoration time frame does not pose an unacceptable threat to human health or the environment;
(c) There is evidence that natural attenuation is occurring and will continue to occur at a reasonable rate at the site; and
(d) Appropriate monitoring requirements are adopted to ensure that the natural attenuation process is taking place and that human health and the environment are protected.
(8) The department expects that cleanup actions conducted under this chapter will not result in a significantly greater overall threat to human health and the environment than other alternatives.
[]
(1) Draft cleanup action plan. Steps in the process. The department shall issue a draft cleanup action plan for a cleanup action to be conducted by the department or by a potentially liable person under an order or decree. The level of detail in the draft cleanup action plan shall be commensurate with the complexity of the site and proposed cleanup action.
(a) The draft cleanup action plan shall include the following:
(i) A general description of the proposed cleanup action developed in accordance with WAC 173-340-350 and 173-340-360.
(ii) A summary of the rationale for selecting the proposed alternative.
(iii) A brief summary of other alternative cleanup actions evaluated in the remedial investigation/feasibility study.
(iv) Cleanup standards and, where applicable, remediation levels, for each hazardous substance and for each medium of concern at the site.
(v) The schedule for implementation of the cleanup action plan including, if known, restoration time frame.
(vi) Institutional controls, if any, required as part of the proposed cleanup action.
(vii) Applicable state and federal laws, if any, for the proposed cleanup action, when these are known at this step in the cleanup process (this does not preclude subsequent identification of applicable state and federal laws).
(viii) A preliminary determination by the department that the proposed cleanup action will comply with WAC 173-340-350(9).
(ix) Where the cleanup action involves on-site containment, specification of the types, levels, and amounts of hazardous substances remaining on site and the measures that will be used to prevent migration and contact with those substances.
(b) For routine actions the department may use an order or decree to fulfill the requirements of a cleanup action plan, provided that the information in (a) of this subsection is included in an order or decree. The scope of detail for the required information shall be commensurate with the complexity of the site and proposed cleanup action.
(2) Public participation. The department will provide public notice and opportunity for comment on the draft cleanup plan, as required in WAC 173-340-600(13).
(3) Final cleanup action plan. After review and consideration of the comments received during the public comment period, the department shall issue a final cleanup action plan and publish its availability in the Site Register and by other appropriate methods. If the department determines, following the implementation of the preferred alternative, that the cleanup standards or, where applicable, remediation levels established in the cleanup action plan cannot be achieved, the department shall issue public notice of this determination.
(4) Federal cleanup sites. For federal cleanup sites, a record of decision or order or consent decree prepared under the federal cleanup law may be used by the department to meet the requirements of this section provided:
(a) The cleanup action meets the requirements under WAC 173-340-350(9);
(b) The state has concurred with the cleanup action; and
(c) An opportunity was provided for the public to comment on the cleanup action.
[]
(1) Purpose. The purpose of model remedies is to streamline and accelerate the selection of cleanup actions that protect human health and the environment, with a preference for permanent solutions to the maximum extent practicable.
(2) Circumstances. The department may, from time to time, identify model remedies for common categories of facilities, types of contamination, types of media, and geographic areas. In identifying a model remedy, the department shall identify the circumstances for which application of the model remedy meets the requirements in WAC 173-340-350(9).
(3) Effect. Where a site meets the circumstances identified by the department under subsection (2) of this section, the components of the model remedy may be selected as the cleanup action, or portion of the cleanup action. At such sites, it shall not be necessary to conduct a feasibility study under WAC 173-340-350(8) or a disproportionate cost analysis under WAC 173-340-360(3) for those components or portions of the site to which a model remedy applies.
[]
((Unless otherwise
directed by the department, cleanup actions shall comply with
this section except for emergencies or interim actions.))
(1) Purpose. ((The purpose of this section is to ensure
that the)) A cleanup action is the actual cleanup of a site,
including preparation of documents describing how the cleanup
will be done and documenting the cleanup work completed. Cleanup
actions must comply with this section. Cleanup actions ((is))
must be designed, constructed, and operated in a manner ((which))
that is consistent with:
(a) The cleanup action plan;
(b) Accepted engineering practices; and
(c) The requirements of WAC ((173-340-360 (1) and (2)))
173-340-350(9).
(2) Administrative options. A cleanup action may be conducted under any of the procedures described in WAC 173-340-510.
(3) Public participation. During cleanup action implementation, public participation shall be accomplished in a manner consistent with the requirements of WAC 173-340-600.
(4) ((Plans describing the cleanup action.)) Cleanup action
plan. Design, construction, and operation of the cleanup action
shall be consistent with the purposes of this section and shall
consider relevant information provided by the ((state)) remedial
investigation/feasibility study. For most cleanups, to ensure
this is done it will be necessary to prepare the ((following))
engineering documents described in this section. The scope and
level of detail in these documents may vary from site to site
depending on the site-specific conditions and nature and
complexity of the proposed cleanup action. In ((some)) many
cases, such as routine cleanups and cleanups at leaking
underground storage tanks, it ((may be)) is appropriate to
combine the information in these various documents into one
report to avoid unnecessary duplication. Where the information
is contained in other documents it may be appropriate to
incorporate those documents by reference to avoid duplication.
Any document prepared in order to implement a cleanup may be used
to satisfy these requirements provided they contain the required
information. In addition, for facilities on the national
priorities list the plans prepared for the cleanup action shall
also comply with federal requirements.
(a) Engineering design report. The engineering design report shall include sufficient information for the development and review of construction plans and specifications. It shall document engineering concepts and design criteria used for design of the cleanup action. The following information shall be included in the engineering design report, as appropriate:
(i) Goals of the cleanup action including specific cleanup or performance requirements;
(ii) General information on the facility including a summary
of information in the ((state)) remedial
investigation/feasibility study updated as necessary to reflect
the current conditions;
(iii) Identification of who will own, operate, and maintain the cleanup action during and following construction;
(iv) Facility maps showing existing site conditions and proposed location of the cleanup action;
(v) Characteristics, quantity, and location of materials to be treated or otherwise managed, including ground water containing hazardous substances;
(vi) A schedule for final design and construction;
(vii) A description and conceptual plan of the actions, treatment units, facilities, and processes required to implement the cleanup action including flow diagrams;
(viii) Engineering justification for design and operation parameters, including:
(A) Design criteria, assumptions and calculations for all components of the cleanup action;
(B) Expected treatment, destruction, immobilization, or containment efficiencies and documentation on how that degree of effectiveness is determined; and
(C) Demonstration that the cleanup action will achieve compliance with cleanup requirements by citing pilot or treatability test data, results from similar operations, or scientific evidence from the literature;
(ix) Design features for control of hazardous materials spills and accidental discharges (for example, containment structures, leak detection devices, run-on and run-off controls);
(x) Design features to assure long-term safety of workers and local residences (for example, hazardous substances monitoring devices, pressure valves, bypass systems, safety cutoffs);
(xi) A discussion of methods for management or disposal of any treatment residual and other waste materials containing hazardous substances generated as a result of the cleanup action;
(xii) Facility specific characteristics ((which)) that may
affect design, construction, or operation of the selected cleanup
action, including:
(A) Relationship of the proposed cleanup action to existing facility operations;
(B) Probability of flooding, probability of seismic activity, temperature extremes, local planning and development issues; and
(C) Soil characteristics and ground water system characteristics;
(xiii) A general description of construction testing
((which)) that will be used to demonstrate adequate quality
control;
(xiv) A general description of compliance monitoring
((which)) that will be performed during and after construction to
meet the requirements of WAC 173-340-410;
(xv) A general description of construction procedures proposed to assure that the safety and health requirements of WAC 173-340-810 are met;
(xvi) Any information not provided in the ((state)) remedial
investigation/feasibility study needed to fulfill the applicable
requirements of the State Environmental Policy Act (chapter 43.21C RCW);
(xvii) Any additional information needed to address the
applicable state, federal and local requirements including the
substantive requirements for any exempted permits; and property
access issues which need to be resolved to implement the cleanup
action; ((and))
(xviii) For sites requiring financial assurance and where not already incorporated into the order or decree or other previously submitted document, preliminary cost calculations and financial information describing the basis for the amount and form of financial assurance and, a draft financial assurance document;
(xix) For sites using institutional controls as part of the cleanup action and where not already incorporated into the order or decree or other previously submitted documents, copies of draft restrictive covenants and/or other draft documents establishing these institutional controls; and
(xx) Other information as required by the department.
(b) Construction plans and specifications. Construction plans and specifications shall detail the cleanup actions to be performed. The plans and specifications shall be prepared in conformance with currently accepted engineering practices and techniques and shall include the following information as applicable:
(i) A general description of the work to be performed and a summary of the engineering design criteria from the engineering design report;
(ii) General location map and existing facility conditions map;
(iii) A copy of any permits and approvals;
(iv) Detailed plans ((and procedural)), procedures and
material specifications necessary for construction of the cleanup
action;
(v) Specific quality control tests to be performed to document the construction, including specifications for the testing or reference to specific testing methods, frequency of testing, acceptable results, and other documentation methods;
(vi) Startup procedures and criteria to demonstrate the cleanup action is prepared for routine operation;
(vii) Additional information to address applicable state, federal, and local requirements including the substantive requirements for any exempted permits;
(viii) A compliance monitoring plan prepared under WAC 173-340-410 describing monitoring to be performed during construction, and a sampling and analysis plan meeting the requirements of WAC 173-340-820;
(ix) Provisions to assure safety and health requirements of WAC 173-340-810 are met; and
(x) Other information as required by the department.
(c) Operation and maintenance plan. An operation and
maintenance plan ((which)) that presents technical guidance and
regulatory requirements to assure effective operations under both
normal and emergency conditions. The operation and maintenance
plan shall include the following elements, as appropriate:
(i) Name and phone number of the responsible individuals;
(ii) Process description and operating principles;
(iii) Design criteria and operating parameters and limits;
(iv) General operating procedures, including startup, normal operations, operation at less than design loading, shutdown, and emergency or contingency procedures;
(v) A discussion of the detailed operation of individual treatment units, including a description of various controls, recommended operating parameters, safety features, and any other relevant information;
(vi) Procedures and sample forms for collection and management of operating and maintenance records;
(vii) Spare part inventory, addresses of suppliers of spare parts, equipment warranties, and appropriate equipment catalogues;
(viii) Equipment maintenance schedules incorporating manufacturers recommendations;
(ix) Contingency procedures for spills, releases, and personnel accidents;
(x) A compliance monitoring plan prepared under WAC 173-340-410 describing monitoring to be performed during operation and maintenance, and a sampling and analysis plan meeting the requirements of WAC 173-340-820;
(xi) Description of procedures which ((assure)) ensure that
the safety and health requirements of WAC 173-340-810 are met,
including specification of contaminant action levels and
contingency plans, as appropriate;
(xii) Procedures for the maintenance of the facility after
completion of the cleanup action, including provisions for
removal of unneeded appurtenances, and the maintenance of covers,
caps, containment structures, and monitoring devices; ((and))
(xiii) Other information as required by the department.
(5) ((In appropriate cases the department may authorize
departure from the requirements of subsection (4) of this
section, and may allow information to be incorporated by
reference to avoid unnecessary duplication.
(6))) Permits. Permits and approvals and any substantive
requirements for exempted permits, if required for construction
or to otherwise implement the cleanup action, shall be identified
and where possible, resolved ((prior to)) before, or during, the
design phase to avoid delays during construction and
implementation of the cleanup action.
(((7))) (6) Construction. Construction of the cleanup
action shall be conducted in accordance with the construction
plans and specifications, and other plans prepared under this
section.
(a) Department inspections.
(i) The department may perform site inspections and
construction oversight. The department may require that
construction activities be halted at a site if construction or
any supporting activities((:)) are not consistent with approved
plans; are not in compliance with environmental regulations or
accepted construction procedures; or endanger human health or the
environment.
(ii) The department may conduct a formal inspection of the
site following construction and an initial operational shake down
period to ensure satisfactory completion of the construction. If
such an inspection is performed, the construction documentation
report and engineer's opinion specified in (b)(ii) of this
subsection shall be available ((prior to)) before the inspection.
(b) Construction documentation.
(i) Except as provided for in (b)(iii) of this subsection,
all aspects of construction shall be performed under the
((supervision)) oversight of a professional engineer registered
in the state of Washington or a qualified technician under the
direct supervision of a professional engineer registered in the
state of Washington or as otherwise provided for in RCW 18.43.130. During construction, detailed records shall be kept
of all aspects of the work performed including construction
techniques and materials used, items installed, and tests and
measurements performed.
(ii) As built reports. At the completion of construction
the engineer responsible for the ((supervision)) oversight of
construction shall prepare as built drawings and a report
documenting all aspects of facility construction. The report
shall also contain an opinion from the engineer, based on testing
results and inspections, as to whether the cleanup action has
been constructed in substantial compliance with the plans and
specifications and related documents.
(iii) For leaking underground storage tanks, the
construction oversight and documentation report may be conducted
by an underground storage tank provider certified under chapter 173-360 WAC. Removal of above ground abandoned drums, tanks and
similar above ground containers and associated minor soil
contamination may be overseen and documented by an experienced
environmental professional. In other appropriate cases the
department may authorize departure from the requirements of this
subsection ((and may allow information to be incorporated by
reference to avoid unnecessary duplication)).
(c) Financial assurance and institutional control documentation. As part of the as-built documentation for the site cleanup, where the following information has not already been submitted under an order or decree or as part of another previously submitted document, the following information shall be included in the as-built report:
(i) For sites requiring financial assurance, a copy of the financial assurance document and any procedures for periodic adjustment to the value of the financial assurance mechanism;
(ii) For sites using institutional controls as part of the cleanup action, copies of recorded deed restrictions and other documents establishing these institutional controls.
(d) Plan modifications. Changes in the design or construction of the cleanup action performed under an order or decree shall be approved by the department.
(((8))) (7) Opportunity for public comment. If the
department determines that any plans prepared under this section
represent a substantial change from the cleanup action plan, the
department shall provide public notice and opportunity for
comment under WAC 173-340-600.
(((9))) (8) Plans and reports. Plans or reports prepared
under this section and under an order or decree shall be
submitted to the department for review and approval. For
independent remedial actions, the plans and reports shall be
submitted as required under WAC 173-340-515.
(((10) Waste management.)) (9) Requirements for managing
waste generated by site cleanup. Any waste contaminated by a
hazardous substance generated during cleanup activities and
requiring off-site treatment, storage or disposal, shall be
transported to a facility permitted or approved to handle these
wastes.
[Statutory Authority: Chapter 70.105D RCW. 90-08-086, § 173-340-400, filed 4/3/90, effective 5/4/90.]
(1) Purpose. There are three types of compliance monitoring: Protection, performance, and conformational monitoring. The purposes of these three types of compliance monitoring and evaluation of the data are to:
(a) Protection monitoring. Confirm that human health and the environment are adequately protected during construction and the operation and maintenance period of an interim action or cleanup action as described in the safety and health plan;
(b) Performance monitoring. Confirm that the interim action or cleanup action has attained cleanup standards and remediation levels and, if appropriate, other performance standards such as construction quality control measurements or monitoring necessary to demonstrate compliance with a permit or, where a permit exemption applies, the substantive requirements of other laws;
(c) Confirmational monitoring. Confirm the long-term effectiveness of the interim action or cleanup action once cleanup standards, remediation levels, and, if appropriate, other performance standards have been attained.
(2) General requirements. Compliance monitoring shall be
required for all cleanup actions, and may be required for interim
and emergency actions((, performed)) conducted under this
chapter. Unless otherwise directed by the department, when
compliance monitoring is required, a compliance monitoring plan
shall be prepared.
(((3) Compliance monitoring plans. A compliance monitoring
plan shall be prepared for all cleanup actions and may be
required for interim and emergency actions unless otherwise
directed by the department.)) Plans prepared under this section
and under an order or decree shall be submitted to the department
for review and approval. Protection monitoring may be addressed
in the safety and health plan. Performance and confirmational
monitoring may be addressed in separate plans ((and)) or may be
combined with other plans or submittals, such as those in WAC 173-340-400 and 173-340-820.
(3) Contents of a monitoring plan. Compliance monitoring plans may include monitoring for chemical constituents, biological testing, and physical parameters as appropriate for the site. Where the cleanup action includes engineered controls or institutional controls, the monitoring may need to include not only measurements but also documentation of observations on the performance of these controls. Long-term monitoring shall be required if on-site disposal, isolation, or containment is the selected cleanup action for a site or a portion of a site. Such measures shall be required until residual hazardous substance concentrations no longer exceed site cleanup levels established under WAC 173-340-700 through 173-340-760. Compliance monitoring plans shall be specific for the media being tested and shall contain the following elements:
(a) A sampling and analysis plan meeting the requirements of
WAC 173-340-820 which shall explain in the statement of
objectives how the purposes of ((WAC 173-340-410(2))) subsection
(1) of this section are met;
(b) Data analysis and evaluation procedures used, to demonstrate and confirm compliance and justification for these procedures, including:
(i) A description of any statistical method to be employed; or
(ii) If sufficient data is not available ((prior to)) before
writing the plan to propose a reliable statistical method to
demonstrate and confirm compliance, a contingency plan proposing
one or more reliable statistical methods to demonstrate and
confirm compliance, and the conditions under which the methods
would be used at the facility; and
(c) Other information as required by the department.
[Statutory Authority: Chapter 70.105D RCW. 90-08-086, § 173-340-410, filed 4/3/90, effective 5/4/90.]
(1) ((If the department
selects or approves a cleanup action that results in hazardous
substances remaining at a site at concentrations which exceed
method A or method B cleanup levels established under WAC 173-340-700 through 173-340-760 or if conditional points of
compliance have been established, the department shall review the
cleanup action no less frequently than every five years after the
initiation of such cleanup action to assure that human health and
the environment are being protected.
(2))) Purpose. A periodic review is a remedial action under this chapter. A periodic review consists of a review by the department of post-cleanup site conditions and monitoring data to assure that human health and the environment are being protected. When required, periodic reviews shall be conducted by the department at least every five years after the initiation of a cleanup action.
(2) General requirements. The department shall conduct periodic reviews of a site whenever the department conducts a cleanup action or approves of a cleanup action under an order, agreed order or consent decree that results in the following circumstances. For sites where the department issues a no further action opinion and one of the following circumstances exist, the department shall conduct periodic reviews as resources permit. The department may require potentially liable persons to submit information needed by the department to conduct a periodic review. Periodic reviews are required at the following sites:
(a) Where an institutional control and/or financial assurance is required as part of the cleanup action;
(b) Where a conditional point of compliance has been established;
(c) Where the cleanup level is based on a practical quantitation limit as provided for under WAC 173-340-707; and
(d) Where, in the department's judgment, modifications to the default equations or assumptions using site-specific information would significantly increase the concentration of hazardous substances remaining at the site after cleanup or the uncertainty in the ecological evaluation or the reliability of the cleanup action is such that additional follow up review is necessary to assure long-term protection of human health and the environment.
(3) Review criteria. When evaluating whether human health and the environment are being protected, the factors the department shall consider shall include:
(a) The effectiveness of ongoing or completed cleanup actions;
(b) New scientific information for individual hazardous substances or mixtures present at the site;
(c) New applicable state and federal laws for hazardous substances present at the site;
(d) Current and projected site and resource uses and for these uses, the effectiveness of engineered controls and institutional controls in limiting exposure to hazardous substances remaining at the site;
(e) The availability and practicability of ((higher
preference technologies as defined in WAC 173-340-360(4))) more
permanent remedies; and
(f) The availability of improved analytical techniques to evaluate compliance with cleanup levels.
(((3))) (4) Public comment. The department shall publish a
notice of all periodic reviews in the Site Register and provide
an opportunity for public comment. The department shall also
notify all potentially liable persons known to the department of
the results of the periodic review.
(((4))) (5) Additional action. When the department
determines that substantial changes in the cleanup action are
necessary to protect human health and the environment at the
site, a revised cleanup action plan shall be prepared. The
department shall provide opportunities for public review and
comment on the draft cleanup action plan ((consistent with the
requirements)) in accordance with WAC ((173-340-360)) 173-340-380
and 173-340-600.
(6) Reviews conducted by the department. In conducting a periodic review under this section, the department shall determine whether additional reviews are necessary, taking into consideration the factors in subsection (3) of this section. Sites with institutional controls shall remain subject to periodic reviews as long as the institutional controls are required.
[Statutory Authority: Chapter 70.105D RCW. 91-04-019, § 173-340-420, filed 1/28/91, effective 2/28/91; 90-08-086, § 173-340-420, filed 4/3/90, effective 5/4/90.]
(1) Purpose. ((The
purpose of this section is to describe how certain interim
actions can occur prior to the selection and completion of a
cleanup action.)) An interim action is distinguished from a
cleanup action in that an interim action only partially addresses
the cleanup of a site. An interim action is:
(a) ((An)) A remedial action that is technically necessary
to reduce a threat to human health or the environment by
eliminating or substantially reducing one or more pathways for
exposure to a hazardous substance at a facility; or
(b) ((An)) A remedial action that corrects a problem that
may become substantially worse or cost substantially more to
address if the remedial action is delayed; or
(c) ((An)) A remedial action needed to provide for
completion of a site hazard assessment, ((state)) remedial
investigation/feasibility study or design of a cleanup action.
Example. A site is identified where oil-based wood
preservative has leaked from a tank and is puddled on the ground
and is floating on the water table. Run-off from adjacent
properties passes through the site. Neighborhood children have
been seen on the site. In this case, several interim actions
would be appropriate ((prior to)) before fully defining the
extent of the distribution of hazardous substances at the site
and selecting a cleanup action. These interim actions might
consist of removing the tank, fencing the site, rerouting
run-off, and removing the product puddled on the ground and
floating on the water table. Further studies would then
determine what additional soil and ground water cleanup would be
needed.
(2) General requirements.
(((a))) Interim actions may:
(((i))) (a) Achieve cleanup standards for a portion of the
site; or
(((ii))) (b) Provide a partial cleanup, that is, clean up
hazardous substances from all or part of the site, but not
achieve cleanup standards; or
(((iii))) (c) Provide a partial cleanup of hazardous
substances and not achieve cleanup standards, but provide
information on how to achieve cleanup standards for a cleanup. For example, demonstration of an unproven cleanup ((method))
technology.
(((b))) (3) Relationship to the cleanup action:
(((i))) (a) If the cleanup action is known, the interim
action shall be consistent with the cleanup action.
(((ii))) (b) If the cleanup action is not known, the interim
action shall not foreclose reasonable alternatives for the
cleanup action. This is not meant to preclude the destruction or
removal of hazardous substances.
(((3))) (4) Timing.
(a) Interim actions may occur anytime during the cleanup
process. Interim actions shall not be used to delay or supplant
the cleanup process. An interim action may be done ((prior to))
before or in conjunction with a site hazard assessment and hazard
ranking. However, sufficient technical information must be
available regarding the facility to ensure the interim action is
appropriate and warranted.
(b) Interim actions shall be followed by additional remedial actions unless compliance with cleanup standards has been confirmed at the site.
(c) The department shall set appropriate deadlines commensurate with the actions taken for completion of the interim action.
(((4))) (5) Administrative options. ((Except as provided in
WAC 173-340-530,)) Interim cleanup actions may be conducted under
any of the procedures described in WAC 173-340-510.
(((5))) (6) Public participation. Public participation will
be accomplished in a manner consistent with WAC 173-340-600.
(((6))) (7) Submittal requirements. Unless otherwise
directed by the department and except for underground storage
tank releases being addressed under WAC 173-340-450 and
emergencies, a report shall be prepared ((prior to)) before
conducting an interim action. Reports prepared under an order or
decree shall be submitted to the department for review and
approval. Reports for independent remedial actions shall be
submitted as required by WAC 173-340-515. Reports shall be of a
scope and detail commensurate with the work performed and
site-specific characteristics, and shall include, as appropriate:
(a) A description of the interim action and how it will meet
the criteria identified in subsections (1) ((and)), (2) and (3)
of this section;
(b) Information from the applicable subsections of the
remedial investigation/feasibility study of WAC 173-340-350,
including at a minimum((;)):
(i) A description of existing site conditions and a summary of all available data related to the interim action;
(ii) Alternative interim actions considered and an explanation why the proposed alternative was selected;
(c) Information from the applicable subsections of the design and construction requirements of WAC 173-340-400;
(d) A compliance monitoring plan meeting the applicable requirements of WAC 173-340-410;
(e) A safety and health plan meeting the requirements of WAC 173-340-810; and
(f) A sampling and analysis plan meeting the requirements of WAC 173-340-820.
(((7))) (8) Construction. Construction of the interim
action shall be in conformance with WAC 173-340-400(7).
[Statutory Authority: Chapter 70.105D RCW. 91-04-019, § 173-340-430, filed 1/28/91, effective 2/28/91; 90-08-086, § 173-340-430, filed 4/3/90, effective 5/4/90.]
(1) Purpose. Institutional controls are measures undertaken to limit or
prohibit activities that may interfere with the integrity of an
interim action or cleanup action or that may result in exposure
to hazardous substances at a site. ((Such measures))
Institutional controls include, but are not limited to:
(a) Physical measures such as fences;
(b) Use restrictions such as limitations on the use of property or resources; or requirements that cleanup action occur if existing structures or pavement are disturbed or removed;
(c) Maintenance requirements for engineered controls such as the inspection and repair of monitoring wells, treatment systems, caps or ground water barrier systems; and
(d) Educational programs such as signs, postings, public notices, health advisories, mailings, and similar measures that educate the public and/or employees about site contamination and ways to limit exposure.
(2) Applicability. Institutional control requirements apply to remedial actions being conducted at sites under any of the administrative options in WAC 173-340-510.
(3) Engineered controls. The term institutional controls refers to nonengineered measures while the term engineered controls refers to treatment and containment systems. Examples of engineered controls include a layer of clean soil, asphalt or concrete paving or other materials placed over contaminated soils to limit contact with contamination; a ground water flow barrier such as a bentonite slurry trench; ground water gradient control systems such as French drains or pump and treat systems; and vapor control systems.
(4) Circumstances required. Institutional controls shall be required to assure both the continued protection of human health and the environment and the integrity of an interim action or cleanup action in the following circumstances:
(a) ((Where a)) The cleanup ((action results in residual
concentrations of)) standard is established using Method A or B
and hazardous substances ((which exceed method A or method B
cleanup levels, as applicable, established under WAC 173-340-700
through 173-340-760)) remain at the site at concentrations that
exceed Method A or B cleanup levels; ((or))
(b) ((If)) The cleanup standard is established using Method
C;
(c) A conditional point((s)) of compliance ((have)) has been
established as the basis for measuring compliance at the site;
((or
(c) When the)) (d) The cleanup level is based on the assumption of land use other than residential such as industrial or commercial;
(e) Any time an institutional control is required under WAC 173-340-7490 through 173-340-7494; or
(f) The department determines such controls are required to assure the continued protection of human health and the environment or the integrity of the cleanup action.
(((2) Institutional controls)) (5) Technically possible.
Cleanup actions shall not ((be used as a substitute for)) rely
primarily on institutional controls and monitoring where it is
technically possible to implement a cleanup action((s)) that
((would otherwise be technically possible)) uses a more permanent
cleanup action for all or a portion of the site.
(((3) Institutional controls include:
(a) Physical measures, such as fences and signs, to limit activities that may interfere with the cleanup action or result in exposure to hazardous substances at the site; and
(b) Legal and administrative mechanisms to limit site use or activities and/or to ensure that any physical measures are maintained over time. Examples of limits on site use activities include restricting the use of a property for industrial or commercial purposes or other specified land uses, or placing restrictions on activities such as disturbing a cap or using the ground water. Examples of maintenance activities include, inspection and repair of monitoring wells, treatment systems, caps or ground water barrier systems.
(4))) (6) Criteria. Institutional controls shall be evaluated under the same requirements and criteria as any other cleanup action component. See WAC 173-340-350 (9) and (10). Institutional controls should demonstrably reduce risks to ensure a protective remedy. This demonstration should be based on a quantitative, scientific analysis where appropriate.
(7) Review. The department will review compliance with institutional control requirements as part of periodic reviews under WAC 173-340-420.
(8) Format.
(a) For properties owned by a person who has been named as a potentially liable person or who has not been named a potentially liable person by the department but meets the criteria in RCW 70.105D.040 for being named a potentially liable person, appropriate institutional controls shall be described in a restrictive covenant on the property. The covenant shall be executed by the property owner and recorded with the register of deeds for the county in which the site is located. This restrictive covenant shall run with the land, and be binding on the owner's successors and assigns.
(b) A restrictive covenant may not be required for properties owned by a local, state, or federal government entity if that entity demonstrates to the department that:
(i) It does not routinely file with the county recording officer records relating to its interest in real property; and
(ii) It will implement an effective alternative system to meet the requirements of subsection (9) of this section.
The department shall require the government entity to implement the alternative system as part of the cleanup action plan. If a government entity meets these criteria, and if it subsequently transfers its ownership in any portion of the property, then the government entity must file a restrictive covenant upon transfer if any of the conditions in subsection (4) of this section still exist.
(c) For properties containing hazardous substances where the
owner does not meet the criteria in RCW 70.105D.040 for being a
potentially liable person, the department may approve cleanup
actions ((which)) that include restrictive covenants or other
legal and/or administrative mechanisms. The use of legal or
administrative mechanisms ((which)) that do not include
restrictive covenants is intended to apply to situations where
the release has affected properties near the source of the
release not owned by a person potentially liable under the act
and it is not possible to obtain a restrictive covenant on the
property. Examples of such mechanisms include zoning overlays,
placing notices in local zoning or building department records or
state lands records, public notices and educational mailings.
(((5))) (9) Restrictive covenants. Where required, the
restrictive covenant shall:
(a) Prohibit activities on the site that may interfere with a cleanup action, operation and maintenance, monitoring, or other measures necessary to assure the integrity of the cleanup action and continued protection of human health and the environment;
(b) Prohibit activities that may result in the release of a
hazardous substance ((which)) that was contained as a part of the
cleanup action;
(c) Require notice to the department of the owner's intent to convey any interest in the site. No conveyance of title, easement, lease, or other interest in the property shall be consummated by the property owner without adequate and complete provision for the continued operation, maintenance and monitoring of the cleanup action, and for continued compliance with this subsection;
(d) Require the land owner to restrict leases to uses and activities consistent with the restrictive covenant and notify all lessees of the restrictions on the use of the property. This requirement applies only to restrictive covenants imposed after February 1, 1996;
(e) Require the owner to include in any instrument conveying any interest in any portion of the property, notice of the restrictive covenant under this section.
(f) Require notice and approval by the department of any
proposal to use the site in a manner ((which)) that is
inconsistent with the restrictive covenant. If the department,
after public notice and comment approves the proposed change, the
restrictive covenant shall be amended to reflect the change;
(((f))) (g) Grant the department and its designated
representatives the right to enter the property at reasonable
times for the purpose of evaluating compliance with the cleanup
action plan and other required plans, including the right to take
samples, inspect any remedial actions taken at the site, and to
inspect records.
(((6))) (10) Local government notification. ((Prior to))
Before a restrictive covenant being established under this
chapter, the department shall notify and seek comment from a city
or county department with land use planning authority for real
property subject to the restrictive covenant. Once a restrictive
covenant has been executed, this same department shall be
notified and sent a copy of the restrictive covenant. For
independent cleanups ((using)) reviewed by the department under
WAC 173-340-515 that use restrictive covenants, the person
conducting the cleanup shall be responsible for these
notifications.
(((7))) (11) Financial assurances. The department ((may))
shall require ((the potentially liable person to provide))
financial assurance((s, through a trust fund or equivalent
financial)) mechanisms ((approved by the department, sufficient
to cover all costs of operation and maintenance including
compliance monitoring and undertaking appropriate corrective
measures. It is the department's expectation that such
assurances will be required wherever the cleanup action includes
containment and in other appropriate circumstances)) where
appropriate, at sites where the cleanup action selected includes
engineering and/or institutional controls. It is presumed that
financial assurance mechanisms will be required unless the PLP
can demonstrate that sufficient financial resources are available
and in place to provide for the long-term effectiveness of
engineering and institutional controls adopted. Financial
assurances shall be of sufficient amount to cover all costs
associated with the operation and maintenance of the cleanup
action, including institutional controls, compliance monitoring,
and corrective measures.
(a) Mechanisms. Financial assurance mechanisms may include one or more of the following: A trust fund, a surety bond, a letter of credit, financial test, guarantee, standby trust fund, local government bond rating test, local government financial test, local government guarantee, local government fund, or financial assurance mechanisms required under another law (for example, requirements for solid waste landfills or treatment, storage, and disposal facilities) that meets the requirements of this section.
(b) Exemption from requirement. The department shall not require financial assurances if persons conducting the cleanup can demonstrate that requiring financial assurances will result in the PLPs for the site having insufficient funds to conduct the cleanup or being forced into bankruptcy or similar financial hardship.
(((8))) (12) Removal of restrictions. If the residual
hazardous substances remaining at the site are subsequently
reduced in concentration such that the method A or method B
cleanup levels, as applicable, established under WAC 173-340-700
through 173-340-760 are met without a conditional point of
compliance, then the owner may submit a request to the department
that the restrictive covenant or other restrictions be
eliminated. The restrictive covenant or other restrictions shall
be removed, if the department, after public notice and
opportunity for comment, concurs.
[Statutory Authority: Chapter 70.105D RCW. 96-04-010 (Order 94-37), § 173-340-440, filed 1/26/96, effective 2/26/96; 91-04-019, § 173-340-440, filed 1/28/91, effective 2/28/91.]
(1) Purpose. The purpose of this section is to set forth the
requirements for addressing releases ((which)) that may pose a
threat to human health or the environment from ((USTs defined))
an underground storage tank (UST) regulated under chapter 90.76 RCW ((and rules adopted therein, including heating oil USTs of
greater than 1,100 gallons capacity)).
(a) Releases from USTs exempted under chapter 90.76 RCW and rules adopted therein are still subject to all other requirements of this chapter.
(b) Unless the department requires otherwise, UST owners and
UST operators regulated under chapter 90.76 RCW shall comply with
the requirements in this section after confirmation of an UST
release ((which)) that may pose a threat to human health or the
environment.
(2) Initial response. Within twenty-four hours of ((the))
discovery of an UST release, the UST owner or the UST operator
shall perform the following actions:
(a) Report the UST release to the department and other authorities with jurisdiction, in accordance with rules adopted under chapter 90.76 RCW and any other applicable law;
(b) Remove as much of the hazardous substance from the UST as is possible and necessary to prevent further release to the environment;
(c) Eliminate or reduce any fire, explosion or vapor hazards in such a way as to minimize any release of hazardous substances to surface water and ground water; and
(d) Visually inspect any aboveground releases or exposed belowground releases and prevent the hazardous substance from spreading into surrounding soils, ground water and surface water.
(3) Interim actions.
(a) As soon as possible but no later than twenty days following confirmation of an UST release, the UST owner or the UST operator shall perform the following interim actions:
(i) Continue to monitor and mitigate any additional fire and
safety hazards posed by vapors or free product ((which)) that may
have migrated from the UST into structures in the vicinity of the
site, such as sewers or basements;
(ii) Reduce the threat to human health and the environment posed by contaminated soils that are excavated or discovered as a result of investigation or cleanup activities. Treatment, storage and disposal of soils must be carried out in compliance with all applicable federal, state and local requirements;
(iii) Test for hazardous substances in the environment where
they are most likely to be present. Such testing shall be done
in accordance with a sampling and analysis plan prepared under
WAC 173-340-820. The sample types, sample locations, and
measurement methods shall be based on the nature of the stored
substance, type of subsurface soils, depth to ground water and
other factors as appropriate for identifying the presence and
source of the release. If contaminated soil is found in contact
with the ground water or soil contamination appears to extend
below the lowest soil sampling depth, then testing shall include
the installation of ground water monitoring wells to test for the
presence of possible ground water contamination. Information
gathered for the site check or closure site assessment conducted
((pursuant to)) under rules adopted under chapter 90.76 RCW,
which sufficiently characterizes the releases at the site, may be
substituted for the testing required under this paragraph;
(iv) The testing performed under (a)(iii) of this subsection shall use the analytical methods specified in WAC 173-340-830 and include, at a minimum, the following:
(A) ((Benzene, toluene, ethylbenzene, xylene, lead, and
total petroleum hydrocarbons where leaded gasoline may be
present;
(B) Benzene, toluene, ethylbenzene, xylene and total petroleum hydrocarbons where unleaded gasoline may be present;
(C) Total petroleum hydrocarbons and other appropriate indicator hazardous substances where any petroleum product other than gasoline may be present;
(D))) For petroleum product releases, the concentration(s) of hazardous substances potentially present at the site, as appropriate for the type of petroleum product(s) released. The minimum testing requirements are specified in table 830-1.
(B) The hazardous substance stored and any likely decomposition by-products where a hazardous substance other than petroleum may be present; and
(((E))) (C) Any other tests required by the department; and
(v) Investigate for the presence of free product.
(((b))) (4) Free product removal. At sites where
investigations indicate free product is present, the UST owner or
the UST operator shall conduct, as soon as possible after
discovery, an interim action to remove the free product while
continuing, as necessary, any other actions required under this
section. To accomplish this the UST owner or UST operator shall:
(((i))) (a) Conduct free product removal to the maximum
extent practicable and in a manner ((which)) that minimizes the
spread of hazardous substances, by using recovery and disposal
techniques appropriate to the hydrogeologic conditions at the
site. The objective of free product removal system must be, at a
minimum, to stop the free product migration;
(((ii))) (b) Properly treat, discharge, or dispose of
((recovery by-products)) any hazardous substance, water, sludge
or any other materials collected in the free product removal
process in compliance with all applicable local, state, and
federal regulations and permits; and
(((iii))) (c) Handle all flammable products safely to
prevent fires and explosions.
(((4))) (5) Reporting requirements. The following reports
are required to be submitted to the department:
(a) Status report. Within twenty days after an UST release, the UST owner or UST operator shall submit a status report to the department. The status report shall identify if known, the types, amounts, and locations of hazardous substances released, how the release occurred, evidence confirming the release, actions taken under subsections (2) and (3) of this section, any planned remedial actions, and any results of work done up to the time of the report. This report may be provided verbally to the department.
(b) Site characterization reports. Within ninety days after release confirmation, unless directed to do otherwise by the department, the UST owner or UST operator shall submit a report to the department about the site and nature of the release. This report shall be submitted to the department in writing and may be combined with the twenty-day status report, if the information required is available at that time. The site characterization report shall include, at a minimum, the following information:
(i) The information required for the status report under (a) of this subsection;
(ii) A site conditions map indicating approximate boundaries of the property, all areas where hazardous substances are known or suspected to be located, and sampling locations. This map may consist of a sketch of the site at a scale sufficient to illustrate this information;
(iii) Available data regarding surrounding populations, surface and ground water quality, use and approximate location of wells potentially affected by the release, subsurface soil conditions, depth to ground water, direction of ground water flow, proximity to and potential for affecting surface water, locations of sewers and other potential conduits for vapor or free product migration, surrounding land use, and proximity to sensitive environments;
(iv) Results of tests for hazardous substances performed under subsection (3)(a)(iii) and (iv) of this section;
(v) Results of the free product investigation required under subsection (3)(a)(v) of this section;
(vi) Results of all completed site investigations, interim
actions and cleanup actions and a description of any remaining
investigations, cleanup actions and compliance monitoring
((which)) that are planned or underway; and
(vii) Information on the free product removal efforts at sites where investigations indicate free product is present. This shall include, at a minimum, the following information:
(A) Name of the person responsible for implementing the free product removal measures;
(B) The estimated quantity, type, and thickness of free product observed or measured in wells, boreholes and excavations;
(C) The type of free product recovery system used;
(D) The location of any on-site or off-site discharge during the recovery operation;
(E) The type of treatment applied to, and the effluent quality expected from, any discharge;
(F) The steps taken and planned to obtain necessary permits for any discharge;
(G) Disposition of recovered free product; and
(viii) Any other information required by the department.
(((5) State)) (6) Remedial investigation and feasibility
study.
(a) If the initial cleanup actions taken at an UST site do
not achieve cleanup standards throughout the site, a remedial
investigation and feasibility study may need to be conducted in
accordance with WAC 173-340-350. The scope of a ((state))
remedial investigation and feasibility study ((under this
chapter)) will depend on the informational needs at ((a specific
site and will vary from site to site to avoid the collection of
unnecessary information. For sites with UST releases, a state
remedial investigation and feasibility study must at a minimum
address the elements in WAC 173-340-350 (6)(a), (b), (c)(ii),
(c)(iii), (c)(v) through (c)(vii) and (e). The department may
require additional information when needed to select a cleanup
action)) the site. UST owners and operators shall conduct a
((state)) remedial investigation and feasibility study for sites
where the following conditions exist:
(i) There is evidence that the release has caused hazardous
substances to be present in the ground water in excess of the
ground water standards ((promulgated)) adopted under chapter 90.48 RCW or cleanup levels in WAC 173-340-720 (Table 720-1);
(ii) Free product is found; or
(iii) Where otherwise required by the department.
(b) UST owners and UST operators shall submit the
information collected for the ((state)) remedial
investigation/feasibility study to the department as soon as
practicable. The information may be included with other reports
submitted under this section.
(((6))) (c) If the department determines, based on the
results of the remedial investigation/feasibility study or other
information, that additional remedial action is required, the
department may require the UST owner or the UST operator to
submit engineering documents as described in WAC 173-340-400.
(7) Cleanup standards. Unless directed to do otherwise by
the department, cleanup actions performed by UST owners or UST
operators shall comply with the cleanup standards((,)) described
in WAC 173-340-700 through ((173-340-750)) 173-340-760 and the
requirements for the selection of cleanup actions((,)) in WAC
((173-340-360)) 173-340-350 through 173-340-390.
(8) Independent cleanup actions. In addition to work performed under subsections (2) through (5), and (7) of this section, UST owners or UST operators performing independent cleanup actions shall:
(a) Notify the department of their intention to begin cleanup. This can be included with other reports under this section;
(b) Comply with any conditions imposed by the department to assure adequate protection of human health and the environment; and
(c) Within ninety days of completion of the cleanup action, submit the results of all investigations, interim and cleanup actions and compliance monitoring not previously submitted to the department.
[Statutory Authority: Chapter 70.105D RCW. 91-04-019, § 173-340-450, filed 1/28/91, effective 2/28/91.]
(1) Policy. It is the responsibility of each and every
liable person to conduct remedial action so that sites are
cleaned up well and expeditiously where a release or threatened
release of a hazardous substance requires remedial action. Potentially liable persons are encouraged to initiate discussions
and negotiations with the department and the office of the
attorney general ((which)) that may lead to an agreement on the
remedial action to be conducted with the state of Washington. The department may provide informal advice and assistance on the
development of proposals for remedial action, as provided by WAC
((173-340-130)) 173-340-515. Any approval by the department or
the state of remedial action shall occur by one of the means
described in subsections (2) and (3) of this section.
(2) Actions initiated by the potentially liable person. Potentially liable persons may initiate a remedial action, as follows:
(a) A person may initiate negotiations for a consent decree by submitting a letter under WAC 173-340-520(1).
(b) A person may request an agreed order by submitting a letter under WAC 173-340-530.
(3) Action initiated by the department. The department may initiate remedial action by:
(a) Issuing a letter inviting negotiations on a consent decree under WAC 173-340-520(2); or
(b) Requesting an agreed order under WAC 173-340-530; or
(c) Issuing an enforcement order under WAC 173-340-540.
(4) Department remedial action. Nothing in this chapter
shall preclude the department from taking appropriate remedial
action on its own at any time. Except for emergency actions and
initial investigations, reasonable effort will be made to notify
potentially liable persons ((prior to)) before the department
((taking)) takes remedial actions for which the recovery of
public funds can be sought under RCW 70.105D.050(3).
(((5) Independent remedial action. Nothing in this chapter
shall preclude potentially liable persons from taking independent
remedial action without oversight or approval from the department
at sites not in discussions or negotiations for, or under, an
order or decree. A potentially liable person may not take
independent remedial actions after commencing discussions or
negotiations for an agreed order or consent decree unless:
(a) Such action does not foreclose or preempt the remedial actions under discussion or negotiations and such action does not foreclose the selection of cleanup action; or
(b) If the potentially liable person has provided reasonable notice to the department and the department does not object to such action.
The department will use the appropriate requirements contained herein to evaluate the adequacy of any independent remedial action performed. Persons performing independent remedial actions do so at their own risk and may be required to take additional remedial actions if the department deems such actions necessary. In such circumstances, the department reserves all of its rights to take actions authorized by law.))
[Statutory Authority: Chapter 70.105D RCW. 90-08-086, § 173-340-510, filed 4/3/90, effective 5/4/90.]
(1) Purpose. An independent remedial action is a remedial action conducted without department oversight or approval and not under an order, agreed order or consent decree. This section describes the procedures and requirements for independent remedial actions. See WAC 173-340-545 for additional requirements pertaining to independent remedial actions anticipated to be part of a private right of action.
(2) Applicability. Nothing in this chapter shall preclude potentially liable persons from conducting independent remedial actions at sites not in discussions or negotiations for, or under, an order or decree. However, a potentially liable person may not conduct independent remedial actions after commencing discussions or negotiations for an agreed order or consent decree unless:
(a) Such action does not foreclose or preempt the remedial actions under discussion or negotiation and such action does not foreclose the selection of a cleanup action; or
(b) If the potentially liable person has provided reasonable notice to the department and the department does not object to such action.
(3) Standards.
(a) In reviewing independent remedial actions, the department shall determine whether the remedial actions meet the substantive requirements of this chapter and/or whether further remedial action is necessary at the site. Persons conducting independent remedial actions do so at their own risk, and may be required to take additional remedial actions if the department determines such actions are necessary. In such circumstances, the department reserves all of its rights to take actions authorized by law.
(b) When this chapter requires a consultation with, or an approval or determination by the department, such a consultation, approval or determination is not necessary in order to conduct an independent remedial action. However, independent remedial actions must still meet the substantive requirements of this chapter.
(c) When specific documents are required in WAC 173-340-350, 173-340-360, 173-340-380, 173-340-400, 173-340-410, 173-340-430, 173-340-450, 173-340-700 through 173-340-760, and 173-340-810 through 173-340-850, the documents prepared for independent remedial actions need not be the same in title or format. Other documents can be used in place of the documents specified in these sections as long as sufficient information is included to serve the same purpose.
(4) Reports to the department.
(a) Any person who conducts an independent interim action or cleanup action shall submit a written report to the department within ninety days of the completion of the action. For the purposes of this section, the department will consider an interim action or cleanup action complete if no remedial action other than compliance monitoring has occurred at the site for ninety days. This does not preclude earlier reporting of such actions or reporting of site investigations. See WAC 173-340-450 for additional requirements for reporting independent remedial actions for releases from underground storage tanks.
(b) The report shall include the information in WAC 173-340-300(2) if not already reported, and the results of all site investigations, cleanup actions and compliance monitoring planned or under-way. The department may require additional reports on the work conducted.
(c) If the independent interim action or cleanup action is completed within ninety days of discovery, a single written report may be submitted on both the release and the action taken. The report shall contain the information specified in provision (b) of this subsection and shall be submitted within ninety days of completion of the remedial action.
(d) The department shall publish in the Site Register a notice of all reports on independent interim actions and cleanup actions received under this section. If deemed necessary, the department shall also conduct an initial investigation under WAC 173-340-310. Neither submission of information on an independent remedial action nor any response by the department shall release the person submitting the report or any other person from liability. The department reserves all rights to pursue any subsequent action it deems appropriate.
(5) Technical consultations. The department may provide informal advice and assistance (technical consultations) on the administrative and technical requirements of this chapter to persons conducting or otherwise interested in an independent remedial action. Such advice or assistance is advisory only and not binding on the department. This advice may include written opinions. These written opinions shall be limited to whether the independent remedial actions or proposals for those actions meet the substantive requirements of this chapter and/or whether the department believes further remedial action is necessary at the facility. Upon completing the review of an independent remedial action report or proposal that is voluntarily submitted for ecology's review and opinion, the department will:
(a) Provide a written opinion regarding the remedial actions performed or proposed at the site;
(b) Provide a written opinion regarding the remedial actions performed at the site and remove the site or a portion of the site from the hazardous sites list if the department has sufficient information to show that the independent remedial actions are appropriate to characterize and address contamination at the site, as provided for in WAC 173-340-330 (4)(b); or
(c) Provide a written opinion describing the deficiencies with the remedial action or proposal for a remedial action at the site. It is the department's policy, in conducting reviews under this subsection, to promote independent remedial actions by delisting sites or portions of sites whenever petitions and supporting documents show that the actions taken are appropriate to characterize and address the contamination at the site.
(6) Cost of technical consultations. For information on the payment of remedial action costs, see WAC 173-340-550(6).
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(1) Procedures for consent decrees initiated by potentially liable persons. To request a consent decree a person shall submit a letter to the department and office of the attorney general via certified mail, return receipt requested, or by personal delivery.
(a) Request. The letter shall describe, based on available information:
(i) The proposed remedial action, including the schedule for the work;
(ii) Information which demonstrates that the settlement will lead to a more expeditious cleanup, be consistent with cleanup standards if the remedial action is a cleanup action, and be consistent with any previous orders;
(iii) The facility, including location and boundaries;
(iv) The environmental problems to be addressed including a description of the releases at the facility and the potential impact of those releases to human health and the environment;
(v) A summary of the relevant historical use or conditions at the facility;
(vi) The date on which the potentially liable person will be ready to submit a detailed proposal;
(vii) Any special scheduling considerations for implementing the remedial actions;
(viii) Names of other persons who the person has reason to believe may be potentially liable persons at the facility; and
(ix) A proposed public participation plan. This proposed plan shall be commensurate with the nature of the proposal and site and shall include the elements listed in WAC 173-340-600(8).
(b) The letter may include:
(i) A waiver of the procedural requirements of WAC 173-340-500 and acceptance, for purposes of settlement, of potentially liable person status.
(ii) The contents of detailed proposal under (((f))) (g) of
this subsection.
(c) A prospective purchaser consent decree is a particular type of consent decree entered into with a person not currently liable for remedial action at the site for which the decree is being requested. RCW 70.105D.040(5) contains specific statutory requirements for this type of decree. In addition to the information in (a) and (b) of this subsection, a request for a prospective purchaser consent decree shall include:
(i) Identification of all persons proposing to enter into the consent decree and information which demonstrates that those persons are not currently liable for remedial action at the site;
(ii) Information which demonstrates that the settlement will yield substantial new resources to facilitate cleanup; and
(iii) A general description of the proposed continued use or redevelopment or reuse of the site, including the proposed schedule for purchase, redevelopment, or reuse.
(d) Recognizing that the steps of the cleanup process may be
combined and may vary by site, the information in the request
shall be at the level of detail appropriate to the steps in the
process for which the consent decree is requested. For example,
a request for a consent decree for a ((state)) remedial
investigation/feasibility study should generally include the
level of information needed for a site hazard assessment, if not
already done by the department, so that the department and the
public can evaluate the proposed scope of work and relative
priority of the site.
(((d))) (e) The department may waive part of the letter
requirements of (a) of this subsection if the requirements have
already been met.
(((e))) (f) Response. The department shall respond to the
request within sixty days, unless the department needs additional
time to determine potentially liable person status under WAC 173-340-500. This determination will be based in part on a
preliminary finding by the department that any resulting consent
decree would be in accordance with RCW 70.105D.040 (4)(a). The
department may:
(i) Request additional information;
(ii) Accept the request and require the person to submit a detailed written proposal by a specified date; or
(iii) Provide written reasons for denying the request.
(((f))) (g) Contents of detailed proposal. The proposal
shall contain:
(i) A proposed technical scope of work describing the remedial action to be conducted;
(ii) The data, studies, or any other information upon which the settlement proposal is based;
(iii) A statement describing the potentially liable person's
ability to conduct or finance the remedial action as described in
the proposed scope of work; ((and))
(iv) A schedule for proposed negotiations and implementation of the proposed remedial actions; and
(v) Any additional information requested by the department.
(h) In addition to the information in (g) of this subsection, the detailed proposal for a prospective purchaser consent decree shall include the following:
(i) Information showing a legal commitment to purchase, redevelop or reuse the site;
(ii) A detailed description including a plan of the proposed continued use, redevelopment, or reuse of the site, including, if necessary, an updated schedule for purchase, redevelopment or reuse;
(iii) Information which demonstrates that the redevelopment or reuse of the site is not likely to contribute to the existing or threatened releases at the site, interfere with remedial actions that may be needed at the site, or increase health risks to persons at or in the vicinity of the site; and
(iv) If the requestor does not propose to conduct the entire cleanup of the site, available information about potentially liable persons who are expected to conduct the remainder of the cleanup.
(((g))) (i) The department and the office of the attorney
general shall determine whether the proposal provides a
sufficient basis for negotiations, and shall deliver to the
potentially liable person within sixty days following receipt of
their proposal a written notice indicating whether or not the
proposal is sufficient to proceed with negotiations.
(((h))) (j) Prepayment agreement. Unless otherwise
determined by the department, any person who requests a
prospective purchaser agreement and receives a notice accepting
the request under (f) of this subsection shall enter into a
prepayment agreement with the department consistent with WAC 173-340-550(7) before negotiations will begin.
(k) Time limits for negotiations. The department shall set
the time period and starting date for negotiations. The
department and the office of the attorney general shall then
negotiate with those potentially liable persons who have received
a notice under (((e))) (f) of this subsection that their proposal
was sufficient to proceed with negotiations. Negotiations may
address one or more phases of remedial action. The length of the
negotiation period specified by the department shall be no less
than that proposed by the potentially liable person provided it
does not conflict with the deadlines established under WAC 173-340-140.
(((i))) (l) Enforcement stay. For consent decrees that are
not prospective purchaser agreements, unless an emergency exists,
the department will stay any enforcement action under chapter 70.105D RCW, but the duration of such stay shall not exceed one
hundred twenty days from the date negotiations begin. The
department can withdraw from negotiations if it determines that:
(i) Reasonable progress is not being made toward a consent decree acceptable to the department; or
(ii) The proposal is inappropriate based on new information or changed circumstances.
The department may ((commence with)) begin an enforcement
action after notifying the potentially liable person, in writing,
of its intent to withdraw from negotiations.
(2) ((State-initiated)) Procedures for consent decrees
initiated by the department. When the department believes that a
consent decree will be a more expeditious method to achieve
remedial action at a facility, it may initiate the procedures set
forth in this subsection by sending a letter to the potentially
liable person. The letter shall be sent via certified mail,
return receipt requested, or by personal service.
(a) The letters may be delivered with potentially liable person status letters issued under WAC 173-340-500. The period for negotiation shall not commence until the thirty-day comment period required by WAC 173-340-500 has expired or the person expressly waives the procedural requirements of WAC 173-340-500.
(b) Contents of letter. The letter shall:
(i) Inform potentially liable person(s) that the department and the attorney general want to begin negotiations which may lead to a consent decree providing for remedial action;
(ii) Propose a draft consent decree and scope of work;
(iii) Define the negotiation process and schedule which shall not exceed ninety days;
(iv) Reference the department's finding under WAC 173-340-500;
(v) Request a written statement of the potentially liable person's willingness to proceed with the negotiation process defined in the letter; and
(vi) Request the names of other persons whom the person has reason to believe may be potentially liable persons at the facility.
(c) The letter may request the potentially liable person to
respond, in writing, to the proposed draft consent decree and
scope of work ((prior to initiating)) before beginning the
negotiation phase.
(d) Negotiations. The department and the office of the attorney general shall negotiate with potentially liable persons who have indicated to the department a willingness to proceed with the negotiations. The negotiation time frame shall begin from the date the potentially liable person receives the letter under (a) of this subsection unless modified by the department. Negotiations may address one or more phases of remedial action.
(e) Enforcement stay. Unless an emergency exists, the department will stay any enforcement action under chapter 70.105D RCW, but the duration of the stay shall not exceed ninety days from the date negotiations begin. The department can withdraw from negotiations if it determines that:
(i) Reasonable progress is not being made toward a consent decree acceptable to the department; or
(ii) The proposal is inappropriate based on new information or changed circumstances. The department may commence with enforcement action after notifying the potentially liable person, in writing, of its intent to withdraw from negotiations.
(f) Deadline extensions. The department may, at its discretion, extend the deadline for negotiations established in (b) of this subsection, provided the extension does not exceed thirty days.
(3) Filing a decree. After satisfying the public comment and hearing requirements, the department shall determine whether the proposed settlement negotiated under subsection (1) or (2) of this section, is more expeditious and consistent with cleanup standards established and in compliance with any order issued by the department relevant to the remedial action. After making the requisite findings, the department shall forward the proposed consent decree with the findings required by RCW 70.105D.040(4), to the office of the attorney general. If agreed to by the office of the attorney general, the consent decree will be filed by that office with the appropriate superior court or the federal court having jurisdiction over the matter.
[Statutory Authority: Chapter 70.105D RCW. 90-08-086, § 173-340-520, filed 4/3/90, effective 5/4/90.]
(1) Purpose. Agreed orders
may be used for all remedial actions. ((Since an agreed order is
not a settlement, an agreed order shall not provide for mixed
funding, a covenant not to sue, or protection from claims for
contribution.)) An agreed order means that the potentially
liable person agrees to perform remedial actions at the site in
accordance with the provisions of the agreed order and that the
department will not take additional enforcement action against
the potentially liable person to require those remedial actions
specified in the agreed order so long as the potentially liable
person complies with the provisions of the order. Since an
agreed order is not a settlement, an agreed order shall not
provide for mixed funding, a covenant not to sue, or protection
from claims for contribution. The department may require
additional remedial actions should it deem such actions
necessary.
(2) ((Request.)) Procedures for agreed orders initiated by a
potentially liable person.
(a) To request an agreed order, a person shall submit a letter to the department based on available information, describing:
(i) The proposed remedial action including a schedule for the work;
(ii) The facility, including location and boundaries;
(iii) The environmental problems to be addressed, including the releases at the facility and the potential impact of those releases to human health and the environment;
(iv) A summary of the relevant historical use or conditions at the facility;
(v) Names of other persons whom the person has reason to believe may be potentially liable persons at the facility; and
(vi) A proposed public participation plan. This proposed plan shall be commensurate with the nature of the proposal and site and shall include, at a minimum, the elements listed in WAC 173-340-600(8).
(b) The letter may include a waiver of the procedural requirements of WAC 173-340-500, and acceptance, for purposes of the agreed order, of potentially liable person status.
(c) Recognizing that the basic steps of the cleanup process
may be combined and may vary by site, the information in the
request shall be at the level of detail appropriate to the step
in the process for which the order is requested. For example, a
request for an agreed order for a ((state)) remedial
investigation/feasibility study should generally include the
level of information needed for a site hazard assessment, so that
the department and the public can evaluate the proposed scope of
work and relative priority of the site.
(d) The department may waive part of the letter requirements of (a) of this subsection if the requirements have already been met.
(3) ((Response.)) Department response to PLP-initiated
request. The department shall respond to the request within
sixty days, unless the department needs additional time to
determine potentially liable person status under WAC 173-340-500.
The department may:
(a) Request additional information;
(b) Proceed with discussions, if the department believes it is in the public interest to do so; or
(c) Provide written reasons for denying the request.
(4) Procedures for agreed orders initiated by the department. When the department believes that an agreed order is an appropriate method to achieve remedial action at a facility, it may initiate the request for an agreed order.
(5) Duration of discussions. Discussions on the agreed order shall not exceed sixty days unless the department decides continued discussions are in the public interest.
(6) Enforcement. Unless an emergency exists, the department will stay any enforcement action under chapter 70.105D RCW; however, the duration of such stay shall not exceed sixty days from the date discussions begin. Furthermore, the department can withdraw from discussions if it determines that:
(a) Reasonable progress is not being made toward an agreed order acceptable to the department; or
(b) The agreed order is inappropriate based on new information or changed circumstances.
The department may ((commence with)) begin an enforcement
action after notifying the potentially liable person in writing
of its intent to withdraw from discussions.
(((5))) (7) Focus of discussions. The focus of discussions
for the agreed order shall ordinarily be the technical scope of
work and work schedule. This subsection is not intended to
preclude discussion on any item. It is intended to convey the
expectation that the scope of work and work schedule will be the
primary topics of discussion in ((formulating)) developing agreed
orders.
(((6))) (8) Public participation.
(a) When issuing an agreed order, the department shall
provide appropriate public participation opportunities under WAC 173-340-600. ((If the agreed order is for a routine cleanup
action and any person requests judicial review, then the
applicable consent decree procedures under WAC 173-340-520 will
be initiated.
(7) Revisions.)) (b) If the department and the potentially liable person signing the order agree to substantial changes in the order, the department shall provide appropriate additional public notice and opportunity to comment.
[Statutory Authority: Chapter 70.105D RCW. 96-04-010 (Order 94-37), § 173-340-530, filed 1/26/96, effective 2/26/96; 90-08-086, § 173-340-530, filed 4/3/90, effective 5/4/90.]
(1) Purpose. A private right of action is a legal claim authorized by RCW 70.105D.080 under which a person may recover costs of remedial action from other persons liable under the act. RCW 70.105D.080 limits recovery of remedial action costs to those remedial actions that, when evaluated as a whole, are the substantial equivalent of a department-conducted or department-supervised remedial action. The purpose of this section is to facilitate private rights of action and minimize department staff involvement in these actions by providing guidance to potentially liable persons and the court on what remedial actions the department would consider the substantial equivalent of a department-conducted or department-supervised remedial action. In determining substantial equivalence, the department anticipates the requirements in this section will be evaluated as a whole and that a claim would not be disallowed due to omissions that do not diminish the overall effectiveness of the remedial action.
(2) Substantial equivalent. For the purposes of this section, the department considers the following remedial actions to be the substantial equivalent of a department-conducted or department-supervised remedial action.
(a) A remedial action conducted by the department;
(b) A remedial action that has been or is being conducted under an order or decree and the remedial requirements of the order or decree have been satisfied for those portions of the remedial action for which the private right of action is being sought; or
(c) A remedial action that has been conducted as an independent remedial action that includes the following elements:
(i) Information on the site and remedial actions conducted has been reported to the department in accordance with WAC 173-340-300, 173-340-450 and 173-340-515, as applicable;
(ii) The department has not objected to the remedial action being conducted or any such objection has been cured as determined by the court;
(iii) Except for emergency remedial actions, before conducting an interim action or cleanup action, reasonable steps have been taken to provide advance public notice;
(iv) The remedial actions have been conducted substantially equivalent with the technical standards and evaluation criteria described in subsection (4) of this section; and
(v) For facilities where hazardous substances have been disposed of as part of the remedial action, documentation is available indicating where these substances were disposed of and that this disposal was in compliance with applicable state and federal laws. It is not the intent of this provision to require extensive documentation. For example, if the remedial action results in solid wastes being transported off-site for disposal, it would be sufficient to have records indicating the wastes have been disposed of at a permitted solid waste or hazardous waste landfill.
(3) Public notice requirements. This subsection shall be used to determine if reasonable steps have been taken to provide advanced public notice under subsection (2)(c)(iii) of this section. These public notice procedures apply only to interim actions or cleanup actions conducted as independent remedial actions after December 25, 1993. The notice may be combined with any notices under another law. For interim actions or cleanup actions conducted as independent remedial actions before December 25, 1993, the department recognizes little or no public notification typically occurred because there were no department-specified requirements other than the reporting requirements in this chapter. For these actions, this chapter contains no other specific public notice requirements or guidance, and the court will need to determine such requirements, if any, on a case-by-case basis. For independent remedial actions consisting of site investigations and studies, it is anticipated that public notice would not normally be done since often these early phases of work are to determine if a release even requires an interim action or cleanup action. For the purposes of this section only, unless the court determines other notice procedures are adequate for the site-specific circumstances, the following constitutes adequate public notice for independent remedial actions and supersedes the requirements in WAC 173-340-600:
(a) Except for emergency remedial actions, written notification has been mailed at least fifteen days before beginning construction of the interim action or cleanup action to the last known address of the following persons:
(i) The department (which shall publish a summary of the notice in the Site Register);
(ii) The local jurisdictional health department/district;
(iii) The town, city or county with land use jurisdiction;
(iv) The land owners identified by the tax assessor at the time the action is begun for that portion of the facility where the interim action or cleanup action is being conducted; and
(v) Persons potentially liable under RCW 70.105D.040 known to the person conducting the interim action or cleanup action. In identifying persons potentially liable under RCW 70.105D.040 who are to be noticed under this provision, the person conducting the remedial action need only make a reasonable effort to review information currently readily available. Where the interim action or cleanup action is complex, written notification before beginning detailed design is recommended but not required. For emergency remedial actions, written notice should be provided as soon as practicable;
(b) The written notification includes: A brief statement describing the releases being remedied and the interim actions or cleanup actions expected to be conducted; the schedule for these interim actions or cleanup actions; and, for persons potentially liable under RCW 70.105D.040 known to the person conducting the interim actions or cleanup actions, a statement that they could be held liable for the costs of remedial actions being conducted; and
(c) Posting a sign at the site at a location visible to the general public indicating what interim actions or cleanup actions are being conducted and identifying a person to contact for more information. Except for emergency remedial actions this sign should be posted not later than the beginning of construction of any interim action or cleanup action and should remain posted for the duration of the construction. For emergency remedial actions posting of a sign should be done as soon as practicable;
(4) Technical standards and evaluation criteria. This subsection shall be used to determine if the remedial actions have been conducted substantially equivalent with the technical standards and evaluation criteria contained in this chapter. For the purposes of this section, remedial actions shall be deemed to comply with subsection (2)(c)(iv) of this section if they have been conducted substantially equivalent with the technical standards and evaluation criteria contained in the following sections, where applicable. Except for a restrictive covenant under WAC 173-340-440, where documents are required by the following sections, the documents prepared need not be the same in title or format. Other documents can be used in place of the documents specified in these sections as long as sufficient information is included in the record to serve the same purpose. When using these sections to determine substantial equivalence it should be recognized that there are often many alternative methods for cleanup of a facility that would comply with these provisions. When this chapter requires a consultation with, or an approval or determination by the department, such a consultation, approval or determination is not necessary for remedial actions to meet the substantial equivalence requirement under this section, however, the remedial action must still be conducted substantially equivalent with the substantive requirements of those provisions. In applying these sections, reference should be made to the other applicable sections of this chapter, with particular attention to:
(a) WAC 173-340-130 (Administrative principles);
(b) WAC 173-340-200 (Definitions);
(c) WAC 173-340-210 (Usage);
(d) WAC 173-340-350 (Remedial investigation/feasibility study);
(e) WAC 173-340-360 (Selection of cleanup actions);
(f) WAC 173-340-380 (Cleanup action plan);
(g) WAC 173-340-400 (Cleanup actions);
(h) WAC 173-340-410 (Compliance monitoring requirements);
(i) WAC 173-340-430 (Interim actions);
(j) WAC 173-340-440 (Institutional controls);
(k) WAC 173-340-450 (Releases from underground storage tanks);
(l) WAC 173-340-700 through 173-340-760 (Cleanup standards); and
(m) WAC 173-340-810 through 173-340-850 (General provisions).
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(1)
Policy. RCW 70.105D.050(3) requires that the state seek to
recover the amounts spent by the department for investigative and
remedial actions and orders. It is the department's intention to
recover those costs which are reasonably attributable to ((the))
individual sites. Timing of cost recovery for individual sites
will be considered on a case-by-case basis, however, the
department may demand, and generally requires, payment of costs
as they are incurred.
(2) Costs. Each person who is liable under chapter 70.105D RCW is liable for remedial action costs incurred by the department. Remedial action costs are costs reasonably attributable to the site and may include costs of direct activities, support costs of direct activities, and interest charges for delayed payments. The department may send its request for payment to all potentially liable persons who are under an order or decree for the remedial action costs at the site. The department shall charge an hourly rate based on direct staff costs plus support costs. It is the department's intention that the resulting hourly rate charged be less than the hourly rate typically charged by a comparably sized consulting firm providing similar services. The department shall use the following formula for computing hourly rates:
Hourly Rate = DSC + DSC(ASCM) + DSC(PSCM) + DSC(CTA), where:
DSC = Direct Staff Costs defined in (a) of this
subsection((,)).
ASCM = Agency Support Cost Multiplier defined in (b) of
this subsection((, and)).
PSCM = Program Support Cost Multiplier defined in (c) of this subsection.
CTA = Citizen Technical Advisor cost multiplier defined in (d) of this subsection.
(a) Costs of direct activities are direct staff costs and other direct costs. Direct staff costs (DSC) are the costs of hours worked directly on a contaminated site, including salaries, retirement plan benefits, Social Security benefits, health care benefits, leave and holiday benefits, and other benefits required by law to be paid to, or on behalf of, employees. Other direct costs are costs incurred as a direct result of department staff working on a contaminated site including, for example, costs of: Travel related to the site, printing and publishing of documents about the site, purchase or rental of equipment used for the site, and contracted work for the site.
(b) Agency support costs are the costs of facilities, communications, personnel, fiscal, and other state-wide and agency-wide services. The agency support cost multiplier (ASCM) used shall be the agency indirect rate approved by the agency's federal cognizant agency (which, as of July 1, 1993, was the United States Department of the Interior) for each fiscal year.
(c) Program support costs are the costs of administrative time spent by site managers and other staff who work directly on sites and a portion of the cost of management, clerical, policy, computer, financial, and other support provided by other program staff to site managers and other staff who work directly on sites. Other activities of the toxics cleanup program not included in program support costs include, for example, community relations not related to a specific site, policy development, and a portion of the cost of nonsite management, clerical, policy, computer, financial, and other support staff. The program support cost multiplier (PSCM) used shall be calculated by dividing actual program support costs by the direct staff costs of all hours charged to site related work. This multiplier shall be evaluated at least biennially and any changes published in at least two publications of the Site Register. The calculation and source documents used in any revision shall be audited by either the state auditor's office or a private accounting firm. Audit results shall be available for public review. This multiplier shall not exceed 1.0 (one).
(d) The citizen technical advisor cost multiplier is based on the direct costs and agency support costs associated with the citizen technical advisor office within the department.
(3) Request for payment. When the department requests payment of remedial action costs it shall provide an itemized statement documenting the costs incurred.
(4) Interest charges. A ((minimum)) charge of twelve
percent interest (annual percentage rate, compounded monthly)
shall accrue on all remedial action costs not paid within ninety
days of the billing date, or within another longer time period
designated by the department.
(5) ((Private rights of action. The purpose of this
subsection is to facilitate private rights of action and minimize
department staff involvement in these actions by providing
guidance to potentially liable persons and the court on what
remedial actions the department would consider the substantial
equivalent of a department-conducted or department-supervised
remedial action. In determining substantial equivalence, the
department anticipates the requirements in this section will be
evaluated as a whole and that a claim would not be disallowed due
to omissions that do not diminish the overall effectiveness of
the remedial action. For the purposes of this section, the
department would consider the following remedial actions to be
the substantial equivalent of a department-conducted or
department-supervised remedial action.
(a) A remedial action conducted by the department;
(b) A remedial action that has been or is being conducted under an order or decree and the remedial requirements of the order or decree have been satisfied for those portions of the remedial action for which the private right of action is being sought; or
(c) A remedial action that has been conducted as an independent remedial action that includes the following elements:
(i) Information on the site and remedial actions conducted has been reported to the department in accordance with WAC 173-340-300 and 173-340-450, as applicable;
(ii) The department has not objected to the remedial action being conducted or any such objection has been cured as determined by the court;
(iii) Except for emergency remedial actions, prior to conducting an interim action or cleanup action, reasonable steps have been taken to provide advance public notice. The notice may be combined with any notices under another law. These public notice procedures apply only to interim actions or cleanup actions conducted as independent remedial actions after the effective date of this section. For interim actions or cleanup actions conducted as independent remedial actions prior to the effective date of this section, the department recognizes little or no public notification typically occurred because there were no department-specified requirements other than the reporting requirements in this chapter. For these actions, this chapter contains no other specific public notice requirements or guidance, and the court will need to determine such requirements, if any, on a case-by-case basis. For independent remedial actions consisting of site investigations and studies, it is anticipated that public notice would not normally be done since often these early phases of work are to determine if a release even requires an interim action or cleanup action. For the purposes of this subsection only, unless the court determines other notice procedures are adequate for the site-specific circumstances, the following constitutes adequate public notice and supersedes the requirements in WAC 173-340-600:
(A) Except for emergency remedial actions, written notification has been mailed at least fifteen days prior to beginning construction of the interim action or cleanup action to the last known address of the following persons: The department which shall publish a summary of the notice in the Site Register; the local jurisdictional health department/district; the town, city or county with land use jurisdiction; the land owners identified by the tax assessor at the time the action is commenced for that portion of the facility where the interim action or cleanup action is being conducted; and persons potentially liable under RCW 70.105D.040 known to the person conducting the interim action or cleanup action. In identifying other potentially liable persons who are to be noticed under this provision, the person doing the remedial action need only make a reasonable effort to review information currently readily available. Where the interim action or cleanup action is complex, notification prior to beginning detailed design is recommended but not required. For emergency remedial actions, written notice should be provided as soon as practicable;
(B) The notice includes: A brief statement describing the releases being remedied and the interim actions or cleanup actions expected to be conducted; the schedule for these interim actions or cleanup actions; and, for persons potentially liable under RCW 70.105D.040 known to the person conducting the interim actions or cleanup actions, a statement that they could be held liable for the costs of remedial actions being conducted; and
(C) Posting a sign at the site at a location visible to the general public indicating what interim actions or cleanup actions are being conducted and identifying a person to contact for more information. Except for emergency remedial actions this sign should be posted not later than the beginning of construction of any interim action or cleanup action and should remain posted for the duration of the construction. For emergency remedial actions posting of a sign should be done as soon as practicable;
(iv) The remedial actions have been conducted substantially equivalent with the technical standards and evaluation criteria contained in the following sections, where applicable. Where documents are required by the following sections, the documents prepared need not be the same in title or format. Other documents can be used in place of the documents specified in these sections as long as sufficient information is included in the record to serve the same purpose. When using these sections to determine substantial equivalence it should be recognized that there are often many alternative methods for cleanup of a facility that would comply with these provisions. In applying these sections, reference should be made to the other applicable sections of this chapter, with particular attention to WAC 173-340-130 (Administrative principles), WAC 173-340-200 (Definitions) and WAC 173-340-210 (Usage):
(A) WAC 173-340-350 (State remedial investigation and feasibility study);
(B) WAC 173-340-360 (Selection of cleanup actions);
(C) WAC 173-340-400 (Cleanup actions);
(D) WAC 173-340-410 (Compliance monitoring requirements);
(E) WAC 173-340-430 (Interim actions);
(F) WAC 173-340-440 (Institutional controls);
(G) WAC 173-340-450 (Releases from underground storage tanks);
(H) WAC 173-340-700 through WAC 173-340-760 (Cleanup standards); and
(I) WAC 173-340-810 through WAC 173-340-850 (General provisions); and
(v) For facilities where hazardous substances have been disposed of as part of the remedial action, documentation is available indicating where these substances were disposed of and that this disposal was in compliance with applicable state and federal laws. It is not the intent of this provision to require extensive documentation. For example, if the remedial action results in solid wastes being transported off-site for disposal, it would be sufficient to have records indicating the wastes have been disposed of at a permitted solid waste or hazardous waste landfill.
(6))) Natural resource damages. Nothing in this section shall affect the authority of the department and the office of attorney general to recover natural resource damages.
(((7))) (6) Independent remedial actions.
(a) ((The department has established a mechanism to recover
the direct and support costs associated with the review and
evaluation of independent remedial action reports submitted under
WAC 173-340-300(4). This enables the department to evaluate
independent cleanups and facilitates the return of property to
productive use. Participation in this program is voluntary, and
ecology will recover only the costs of review under the
independent remedial action program from those persons requesting
the department's review of an independent remedial action report.
Ecology shall recover its costs of providing the review of
independent remedial action reports, including:
(i) Providing a written determination regarding the adequacy of the remedial actions performed at a site;
(ii) Providing a written determination regarding the adequacy of the remedial actions performed at a site and removing sites or portions of sites from the hazardous sites list if the department has sufficient information to show that the independent remedial efforts are appropriate to characterize and address contamination at the site, as provided for in WAC 173-340-330 (4)(b); or
(iii) Providing a written determination describing the deficiencies with the report or remedial action conducted at the site.
(b) The mechanism used to recover ecology's costs shall be evaluated in June 1994, and, if necessary, adjusted. The mechanism used to recover ecology's costs of review shall be evaluated every other year thereafter.
(c) It is the department's policy, in conducting reviews under this subsection, to promote independent remedial actions by delisting sites or portions of sites whenever petitions and supporting documents show that the actions taken are appropriate to characterize and address the contamination at the site.
(8))) The department may collect, from persons requesting a site-specific technical consultation under WAC 173-340-515, the costs incurred by the department in providing such advice and assistance.
(b) For situations where the department has decided to collect its costs, a refundable deposit of a reasonable amount will be required. The department's hourly costs shall be determined based on the method in WAC 173-340-550(2).
(c) The department's Toxics Cleanup Program manager or designee may make a discretionary, nonappealable decision on whether a person is eligible for a waiver of fees based on that person's ability to pay.
(d) The department shall waive collection of its costs, where appropriate, in providing technical assistance in support of an appropriate level of public participation or where the department's time in responding to the request is de minimis.
(7) Prepayment of costs.
(a) Persons potentially liable under this chapter or seeking a prospective purchaser agreement may request the department's oversight of remedial actions through a prepayment agreement. The purpose of such an agreement is to enable department oversight of remedial actions at lower priority sites. The department shall make a determination that such an agreement is in the public interest. A prepayment agreement requires a person to pay the department's remedial action costs, in advance, allowing the department to increase staff for the unanticipated workload. Agreements may cover one or more facilities. Whether the department can respond favorably to a request for a prepayment agreement will depend, in part, on the department and attorney general receiving authorization for the staffing necessary to implement the agreement. Persons interested in such an agreement are encouraged to contact the department early on to informally discuss the potential for using such an agreement at a facility.
(b) Prepayment agreements do not replace an order or decree but are preliminary to or work in conjunction with such documents. Persons entering into a prepayment agreement shall enter into good faith negotiations on an agreed order or consent decree governing remedial actions at the facility in accordance with the procedures described in WAC 173-340-520(1) or 173-340-530(2). Failure to successfully conclude such negotiations may result in the department withdrawing from the prepayment agreement or initiating enforcement action.
[Statutory Authority: RCW 70.105D.030 (1)(f), 70.105D.040(2) and SB 5404. 93-24-064, § 173-340-550, filed 11/24/93, effective 12/25/93. Statutory Authority: Chapter 70.105D RCW. 90-08-086, § 173-340-550, filed 4/3/90, effective 5/4/90.]
(1)
Purpose. Public participation is an integral part of the
department's responsibilities under the Model Toxics Control Act.
The department's goal is to provide the public with timely
information and meaningful opportunities for participation
((which)) that are commensurate with each site. The department
will meet this goal through a public participation program that
includes: The early planning and development of a site-specific
public participation plan; the provision of public notices; a
site register; public meetings or hearings; and the participation
of regional citizens' advisory committees.
(2) Other requirements. In addition to the requirements in this section, other sections of this chapter contain specific notice requirements that must also be followed. See WAC 173-340-720 for notice requirements on an off-property conditional point of compliance and cleanup levels for ground water flowing into nearby surface water; WAC 173-340-545 for public notice requirements for private rights of action; WAC 173-340-440 for local government notification requirements for restrictive covenants; and WAC 173-340-310 for public notice requirements for emergency or interim actions required by the department as a result of an initial investigation.
(3) Criteria. In order to promote effective and meaningful public participation, the department may determine that public participation opportunities in addition to those specifically required by chapter 70.105D RCW, or this chapter, are appropriate and should be provided. In making this determination, the department may consider:
(a) Known or potential risks to human health and the environment that could be avoided or reduced by providing information to the public;
(b) Public concerns about the facility;
(c) The need to contact the public in order to gather information about the facility;
(d) The extent to which the public's opportunity to affect subsequent departmental decisions at the facility may be limited or foreclosed in the future;
(e) The need to prevent disclosure of confidential, unverified, or enforcement-sensitive information;
(f) The routine nature of the contemplated remedial action; and
(g) Any other factors as determined by the department.
(((3))) (4) Public notice. Whenever public notice is
required by chapter 70.105D RCW, the department shall, at a
minimum, provide or require notice as described in this section
except as specified for the biennial report in WAC 173-340-340.
(a) Request for notice. Notice shall be mailed to persons
who have made a timely request. A request for notice is timely
if received ((prior to)) before or during the public comment
period for the current phase of remedial action at the facility. However, the receipt of a request for notice shall not require
the department to extend the comment period associated with the
notice.
(b) Mail. Notice shall be mailed to persons who reside
within the potentially affected vicinity of the proposed action. The potentially affected vicinity shall include all property
((adjoining)) within and contiguous to the site and any other
area that the department determines to be directly affected by
the proposed action.
(c) Newspaper publication. Notice of the proposed action shall be published in the newspaper of largest circulation in the city or county of the proposed action, by one or more of the following methods: Display ad; legal notice; or any other appropriate format, as determined by the department.
(d) Other news media. Notice of the proposed action shall
be mailed to any other news media ((which)) that the department
determines to be appropriate. The department may consider how a
medium compares with the newspaper of largest circulation in
terms of: Audience reached; timeliness; adequacy in conveying
the particular information in the notice; cost; or other relevant
factors.
(e) Comment periods. All public notices shall indicate the public comment period on the proposed action. Unless stated otherwise, comment periods shall be for thirty days at a minimum.
(f) Combining public comment requirements. Whenever reasonable, the department shall consolidate public notice and opportunities for public comment under this chapter with public notice and comment requirements under other laws and regulations.
(((4))) (g) Site-specific risk assessment. For public
notices describing cleanup plans that use site-specific risk
assessment or would restrict future site or resource use, the
public notice shall specifically identify the restrictions and
invite comments on these elements of the cleanup plan. This
notice shall also include a statement indicating the availability
of the department's Citizen Technical Advisor for providing
technical assistance to citizens on site-specific risk assessment
and other issues related to site remediation.
(5) Public meetings. During any comment period announced by a public notice issued under this chapter, if ten or more persons request a public meeting on the subject of the public notice, the department shall hold a public meeting for the purpose of receiving comments.
(((5))) (6) Additional methods. In addition to "public
notice" required by chapter 70.105D RCW, or this chapter, the
department may use any of the following methods to provide
information to the public:
(a) Press releases;
(b) Fact sheets;
(c) Public meetings;
(d) Publications;
(e) Personal contact by department employees;
(f) Posting signs at the facility;
(g) Notice in the Site Register;
(h) Any other methods as determined by the department.
(((6))) (7) Site Register. The department shall regularly
publish and maintain a publication called the Site Register,
((giving)) which provides notice of the following:
(a) Determinations of no further action under WAC 173-340-320;
(b) Results of site hazard rankings;
(c) Availability of annual and biennial reports;
(d) Issuance of enforcement orders, agreed orders, or proposed consent decrees;
(e) Public meetings or hearings;
(f) Scoping notice of department-conducted ((state))
remedial investigation/feasibility study;
(g) Availability of ((state)) remedial
investigation/feasibility study reports and draft and final
cleanup plans;
(h) Change in site status or placing sites on or removing sites from the hazardous sites list under WAC 173-340-330;
(i) Availability of engineering design reports under WAC 173-340-400;
(j) Schedules developed under WAC 173-340-140;
(k) Reports of independent cleanup actions received under WAC 173-340-300;
(l) ((Commencement)) Beginning of negotiations or
discussions under WAC 173-340-520 and 173-340-530;
(m) Deadline extensions or missed deadlines under WAC 173-340-140; ((and))
(n) A summary of any notices received under WAC 173-340-545 for cleanup actions and interim actions being conducted where a private right of action is anticipated;
(o) A list of available department publications, including guidance, technical reports and policies pertinent to remedial actions;
(p) The results of department review of reports on independent remedial actions submitted under WAC 173-340-515; and
(q) Any other notice that the department ((deems)) considers
appropriate for inclusion.
(((7))) (8) Evaluation. As part of requiring or conducting
a remedial action at any facility, the department shall evaluate
public participation needs at the facility((, including)). The
evaluation shall include an identification of the potentially
affected vicinity for the remedial action. For sites where
site-specific risk assessment is used, the department shall also
evaluate public interest in the site, significant public concerns
regarding future site use, and public values to be addressed
through the public participation plan.
(((8))) (9) Public participation plans.
(a) Scope. The public participation plans required by this section are intended to encourage a coordinated and effective public involvement tailored to the public's needs at a particular facility. The scope of a plan shall be commensurate with the nature of the proposed remedial actions; the level of public concern; and the risks posed by the facility.
(b) Early planning encouraged. In order to develop an appropriate plan, the department or potentially liable person (if submitting a plan to the department) should engage in an early planning process to assess the public participation needs at the facility. This process may include identifying and conferring with individuals, community groups, local governments, tribes, public agencies, or any other organizations that may have an interest in or knowledge of the facility.
(c) Plan development. The department shall develop the
plan, or work with the potentially liable person to develop the
plan. If a plan already exists for a facility, the department
shall consider whether the existing plan is still appropriate or
whether the plan should be amended. For example, a plan
originally developed to address a ((state)) remedial
investigation/feasibility study may need to be amended to address
implementation phases.
(d) Plans required. As part of requiring or conducting a
remedial action, except emergency actions, at any site that has
been assigned a hazard ranking score, the department shall ensure
that a public participation plan is developed and implemented. The department may also require the development of a public
participation plan ((for facilities which have not been assigned
a hazard ranking score)) as part of an agreed order or consent
decree ((with a potentially liable person)) for facilities that
have not been assigned a hazard ranking score.
(e) The department shall determine if the variables proposed to be modified in a site-specific risk assessment or alternative reasonable maximum exposure scenario may affect the significant public concerns regarding future land uses and exposure scenarios. If the department finds that those concerns may be affected, then ecology shall assure appropriate public involvement and comment opportunities will occur as identified in the public participation plan.
(f) Plan as part of order or decree. A potentially liable person will ordinarily be required to submit a proposed public participation plan as part of its request for an agreed order or a consent decree. If a plan already exists for the facility, the potentially liable person may either resubmit the existing plan with any proposed amendments or submit an entirely new proposed plan. The proposed plan may be revised during the course of discussions or negotiations on the agreed order or consent decree.
The final public participation plan may become part of the agreed order or consent decree.
(((f))) (g) Contents. The public participation plan shall
include the following:
(i) Applicable public notice requirements and how these will be met, including: When public notice will occur; the length of the comment periods accompanying each notice; the potentially affected vicinity and any other areas to be provided notice, to the extent known.
(ii) Information repositories. The plan should identify at least one location where the public can review information about the remedial action. Multiple locations may be appropriate.
(iii) Methods of identifying the public's concerns. Such
methods may include: Interviews; questionnaires; meetings;
contacts with community groups or other organizations ((which))
that have an interest in the site; establishing citizen advisory
groups for sites; or obtaining advice from the appropriate
regional citizens' advisory committee.
(iv) Methods of addressing the public's concerns and conveying information to the public. These may include any of the methods listed in subsection (5) of this section.
(v) Coordination of public participation requirements. The plan should identify any public participation requirements of other applicable federal, state or local laws, and address how such requirements can be coordinated. For example, if Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) applies to the proposed action, the plan should explain how CERCLA and this chapter's public comment periods will be coordinated.
(vi) Amendments to the plan. The plan should outline the process for amending the plan. Any amendments must be approved by the department.
(vii) Citizen technical advisor: A statement indicating the availability of the department's citizen technical advisor for providing technical assistance to citizens on issues related to the investigation and cleanup of the site.
(viii) Any other elements that the department determines to be appropriate for inclusion in the final public participation plan.
(((g))) (h) Implementation. The department shall retain
approval authority over the actions taken by a potentially liable
person to implement the plan.
(((9))) (10) Consent decrees. In addition to any other
applicable public participation requirements, the following shall
be required for consent decrees.
(a) A public participation plan ((which)) that meets the
requirements of subsection (((8))) (9) of this section shall be
developed when required by subsection (((8))) (9)(d) of this
section.
(b) Notice of negotiations. When the department decides to
proceed with negotiations it shall place a notice in the Site
Register advising the public that negotiations have ((commenced))
begun. This notice shall include the name of the facility, a
general description of the subject of the ((order)) consent
decree and the deadlines for negotiations.
(c) Notice of proposed decree. The department shall provide or require public notice of proposed consent decree. The notice may be combined with notice of other documents under this chapter, such as a cleanup action plan, or under other laws. The notice shall briefly:
(i) Identify and generally describe the facility;
(ii) Identify the person(s) who are parties to the consent decree;
(iii) Generally describe the remedial action proposed in the proposed consent decree, including substantive permit requirements and institutional controls;
(iv) Indicate the date, place, and time of the public hearing on the proposed consent decree. Where a public hearing is not planned, indicate that a public hearing will only be held if at least ten persons request one; and
(v) Invite the public to comment at the public hearing (if applicable) or in writing. The public comment period shall run for at least thirty days from the date of the issuance of the notice.
(d) Public hearing. The department shall hold a public hearing on the proposed consent decree for the purpose of providing the public with an opportunity to comment whenever ten or more persons request a public hearing or whenever the department determines a public hearing is necessary.
(e) Revisions. If the state and the potentially liable person agree to substantial changes to the proposed consent decree, the department shall provide additional public notice and opportunity to comment.
(f) Extensions. The department shall publish in the next Site Register the extension of deadlines for designated high priority sites.
(((10))) (11) Agreed orders. In addition to any other
applicable public participation requirements, the following shall
be required for agreed orders under WAC 173-340-530.
(a) Public participation plan. A plan meeting the
requirements of subsection (((8))) (9) of this section shall be
developed when required by subsection (((8))) (9)(d) of this
section.
(b) Notice of discussions. When the department decides to proceed with discussions it shall place a notice in the Site Register advising the public that discussions have commenced. This notice shall include the name of the facility, a general description of the subject of the order and the deadlines for discussions.
(c) Notice of agreed orders. Public notice shall be
provided by the department for any agreed order. For all agreed
orders, notice shall be mailed no later than three days after the
issuance of the agreed order. For all agreed orders ((covering a
state remedial investigation/feasibility study)), the comment
period shall be at least thirty days ((and shall be completed
before the agreed order becomes effective)). ((For other agreed
orders,)) The agreed order may be effective before the comment
period is over, unless the department determines it is in the
public interest to complete the public comment period ((prior
to)) before the effective date of the agreed order. The
department may determine that it is in the public interest to
provide public notice ((prior to)) before the effective date of
any agreed order or to hold a public meeting or hearing on the
agreed order. This notice shall briefly:
(i) Identify and generally describe the facility;
(ii) Identify the person(s) who are parties to the agreed order;
(iii) Generally describe the remedial action proposed in the proposed agreed order, including substantive permit requirements and institutional controls; and
(iv) Invite the public to comment on the proposed agreed order.
(d) Revisions. If the department and the potentially liable person agree to substantial changes to the proposed agreed order, the department shall provide additional public notice and opportunity to comment.
(e) Extensions. The department shall publish in the next Site Register the extension of deadlines for designated high priority sites.
(((11))) (12) Enforcement orders. In addition to any other
applicable public participation requirements, the department
shall provide public notice of all enforcement orders. Except in
the case of emergencies, notice shall be mailed no later than
three days after the date of the issuance of the order. In
emergencies, notice shall be mailed no later than ten days after
the issuance of the order.
(a) Contents of notice. All notices shall briefly:
(i) Identify and generally describe the facility;
(ii) Identify the person(s) who are parties to the order;
(iii) Generally describe the terms of the proposed order, including substantive permit requirements and institutional controls; and
(iv) Invite the public to comment on the proposed order.
(b) The department may amend the order on the basis of public comments. The department shall provide additional public notice and opportunity to comment if the order is substantially changed.
(((12) State)) (13) Remedial investigation/feasibility
study. In addition to any other applicable public participation
requirements, the following shall be required during a ((state))
remedial investigation/feasibility study.
(a) Scoping. When the department elects to perform a
((state)) remedial investigation/feasibility study, the
department shall provide public notice and an opportunity to
comment on the scope of the ((state)) remedial
investigation/feasibility study will be provided.
(b) Extensions. The department shall publish in the next Site Register the extension of deadlines for designated high priority sites.
(c) Report. The department shall provide or require public
notice of ((state)) remedial investigation/feasibility study
reports prepared under WAC 173-340-350. This public notice may
be combined with public notice of the draft cleanup action plan. At a minimum, public notice shall briefly:
(i) Describe the site and ((state)) remedial
investigation/feasibility study results;
(ii) If available, identify the department's selected cleanup action and provide an explanation for its selection;
(iii) Invite public comment on the report. The public comment period shall extend for at least thirty days from the date of mailing of the notice.
(((13))) (14) Selection of cleanup actions. In addition to
any other applicable public participation requirements, the
department shall:
(a) Provide a notice of availability of draft or final cleanup action plans and a brief description of the proposed or selected alternative in the Site Register;
(b) Provide public notice of the draft cleanup action plan. A notice of a draft cleanup plan may be combined with notice on
the ((state)) remedial investigation/feasibility study. Notice
of a draft cleanup action plan may be combined with notice on a
draft consent decree or on an order. At a minimum, public notice
shall briefly:
(i) Describe the site;
(ii) Identify the department's proposed cleanup action and provide an explanation for its selection;
(iii) Invite public comment on the draft cleanup action plan. The public comment period shall run for at least thirty days from the date of issuance of the public notice.
(((14))) (c) Whenever the cleanup action plan proposes a
restrictive covenant as part of the draft cleanup plan, provide
notice to and seek comments from the city or county department
with land use planning authority for real property subject to the
restrictive covenant. The purpose of this notification is to
solicit comment on whether the proposed restrictive covenant is
consistent with any current or proposed land use plans.
(15) Cleanup action implementation. In addition to any other applicable public participation requirements, the following shall be required during cleanup action implementation.
(a) Public notice and opportunity to comment on any plans prepared under WAC 173-340-400 that represent a substantial change from the cleanup action plan.
(b) When the department conducts a cleanup action, public notice and an opportunity to comment shall be provided on the engineering design report and notice shall be given in the Site Register.
(((15))) (16) Routine cleanup and interim actions. In
addition to any other applicable public participation
requirements, the following will be required for routine cleanup
actions and interim actions.
(a) Public notice shall be provided for any proposed routine
cleanup or interim actions ((under WAC 173-340-130 or
173-340-430)). This public notice shall be combined with public
notice of an order or settlement whenever practicable.
(b) At a minimum, public notice shall briefly:
(i) Describe the site;
(ii) Identify the proposed action, including proposed permit exemptions and institutional controls;
(iii) Identify the likely or planned schedule for the action;
(iv) Reference any planning documents prepared for the action;
(v) Identify department staff who may be contacted for further information; and
(vi) Invite public comment on the routine cleanup or interim action. The public comment period shall extend for at least thirty days from the date of the mailing of notice.
(17) Public participation grants. RCW 70.105D.070(4) requires funds be allocated for public participation grants to persons, including groups who may be adversely affected by a release or threatened release of a hazardous substance. Persons interested in applying for such grants are encouraged to contact the department to learn about available funding, grant application procedures and deadlines.
(18) Technical assistance. There is created within the department a citizen technical advisor office to provide independent technical assistance to citizens on the Model Toxics Control Act and remedial actions occurring under the act. This office will be established upon the effective date of this rule revision and continue for three years. Before the end of the three-year period, the department will work with citizen and business representatives to evaluate the effectiveness of this office and to determine whether the office should continue. The costs of this office shall be recovered by the department as provided for in WAC 173-340-550.
[Statutory Authority: Chapter 70.105D RCW. 90-08-086, § 173-340-600, filed 4/3/90, effective 5/4/90.]
(1) The department shall establish regional citizens' advisory committees as part of a public participation program. The regional citizens' advisory committees are intended to promote meaningful and effective public involvement in the department's remedial action program under chapter 70.105D RCW. The committees will advise the department as to the concerns of citizens locally and regionally regarding the remedial actions within each committee's region, with emphasis on issues that affect the region as a whole, rather than site-specific concerns.
(2) Location. There shall be a regional citizens' advisory committee representing each geographic region of the state served by a regional office of the department.
(3) Membership. At any time, each committee shall have no fewer than five and no more than twelve members. The director shall, no later than July 1, 1990, appoint five members to each committee to represent citizens' interests in the region. These members shall serve three-year terms that may be renewed at the director's discretion. These members should represent citizen interests in the region.
(a) The director may appoint up to seven additional members to represent communities that may be affected by the remedial actions within each region. These members shall serve two-year terms that may be renewed at the director's discretion.
(b) At no time shall more than twenty-five percent of the membership of any committee consist of persons who are elected or appointed public officials or their representatives.
(c) The department shall advise the public as to whether any vacancies exist on the committees, and shall accept applications from interested citizens.
(d) The following persons shall not be eligible to serve on any committee:
(i) Persons whom the department has found are potentially liable persons under WAC 173-340-500 with regard to any facility that is currently the subject of department investigative, remedial or enforcement actions, not including compliance monitoring;
(ii) Agents or employees of such potentially liable persons as described in (d)(i) of this subsection; and
(iii) Agents or employees of the department.
(e) A member shall refrain from participating in a committee matter if that member for any reason cannot act fairly and in the public interest with regard to that matter.
(f) The director may dismiss a member for cause in accordance with the terms of the regional citizens' advisory committee charter.
(4) Meetings. The committees shall meet at least twice a year at the regional offices or elsewhere as agreed upon by a committee and the department. Appropriate department staff may attend these meetings. The department shall brief the committees on the program's major planned and ongoing activities for the year.
(a) The department and the committees may agree to additional meetings.
(b) Each committee will designate one of its members to serve as chair. The committee chairs shall meet every year with the program manager or his/her designee.
(c) All committee meetings shall be open to the public. The department shall inform the public of committee meetings.
(5) Resources ((to be)) allocated to the committees.
(a) The department shall determine, after consulting with the committees, the amount of staff time and other department resources that shall be available to the committees for each biennium.
(b) The department shall designate staff to work with the committees.
(c) Members shall be reimbursed for travel expenses (as provided for in chapter 43.03 RCW) for any meetings approved by the department.
(6) Responsibilities. The committees are directed to:
(a) Meet at least twice annually;
(b) Inform citizens within each region as to the existence of the committees and their availability as a resource;
(c) Review the department's biennial program priorities, and advise the department of citizen concerns regarding the program priorities;
(d) Advise the department ((on a timely basis of citizen
concerns regarding investigative or remedial activities within
each region, and where possible, suggest ways in which the
department can address those concerns)) of community concerns
about the cleanup program's activities and develop proposals for
addressing these concerns. Committees may use issues at specific
sites as a foundation for understanding regional issues;
(e) Annually prepare a brief report to the department describing:
(i) Major citizen concerns that have been brought to the committee's attention during the past year;
(ii) Any committee proposals or recommendations to address these concerns;
(iii) The committee's plans for the coming year; and
(iv) Any other information or issues which the committee believes appropriate for inclusion.
(((7))) (f) The committees are encouraged to work with the
department and the public to develop additional committee goals
or responsibilities.
[Statutory Authority: Chapter 70.105D RCW. 90-08-086, § 173-340-610, filed 4/3/90, effective 5/4/90.]
PART VII--CLEANUP STANDARDS(1) Purpose. This section provides an overview of the methods for establishing cleanup standards that apply to a release or threatened release of a hazardous substance at a site. If there are any inconsistencies between this section and any specifically referenced section, the referenced section shall govern.
(2) ((Cleanup standards versus selection of cleanup
actions.)) Explanation of term "cleanup level." A cleanup level
is the concentration of a hazardous substance in soil, water, air
or sediment that is determined to be protective of human health
and the environment under specified exposure conditions. Cleanup
levels, in combination with points of compliance, typically
define the area or volume of soil, water, air or sediment at a
site that must be addressed by the cleanup action.
(3) Explanation of term "cleanup standards." Cleanup standards consist of the following:
(a) Cleanup levels for hazardous substances present at the site;
(b) The location where these cleanup levels must be met (point of compliance); and
(c) Other regulatory requirements that apply to the site because of the type of action and/or location of the site ("applicable state and federal laws").
(4) Relationship between cleanup standards and cleanup action.
(a) Cleanup standards are identified for the particular
hazardous substances at a site and the specific areas or
pathways, such as land or water, where humans and the environment
can become exposed to these substances. This part provides
uniform methods state-wide for identifying cleanup standards and
requires that all cleanups under the act meet these standards. The actual degree of cleanup may vary from site to site and will
be determined by the cleanup action alternative selected under
WAC ((173-340-360)) 173-340-350 through 173-340-390. ((Establishing cleanup standards for individual sites requires
the specification of the following:
(i) Hazardous substance concentrations that protect human health and the environment ("cleanup levels");
(ii) The location on the site where those cleanup levels must be attained ("points of compliance"); and
(iii) Additional regulatory requirements that apply to a cleanup action because of the type of action and/or the location of the site. These requirements are specified in applicable state and federal laws and are generally established in conjunction with the selection of a specific cleanup action.))
(b) For most sites, there are several cleanup technologies
or combinations of cleanup technologies ("cleanup action
alternatives") that may be used to comply with cleanup standards
at individual sites. Other parts of this rule govern the process
for planning and deciding on the cleanup action to be taken at a
site. ((For example,)) This may include establishing
"remediation levels" or the concentrations of hazardous
substances above which a particular cleanup technology will be
applied. See WAC 173-340-350 (((State remedial investigation and
feasibility study) (RI/FS) specifies the studies that are
prepared to define the nature and extent of contamination ("RI")
and to identify and evaluate cleanup action alternatives ("FS"). WAC 173-340-360 (Selection of cleanup actions) specifies the
criteria for selecting the preferred alternative)) through
173-340-390. WAC 173-340-350(10) contains detailed information
on establishing remediation levels. WAC 173-340-410 specifies
the monitoring required to ((assure)) ensure that the remedy is
effective.
(((c) The department recognizes that cleanup actions
selected under WAC 173-340-360 may involve)) Where a cleanup
action involves containment of soils with hazardous substances((.
In these cases)) above cleanup levels, the cleanup action may be
determined to comply with cleanup standards, provided the
compliance monitoring program is designed to ensure the long-term
integrity of the containment system, and the other requirements
for containment ((technologies in WAC 173-340-360(8))) in this
chapter are met.
(((3) Three basic methods for establishing cleanup levels.))
(5) Methods for setting cleanup levels. The first step in
setting cleanup levels is to develop a conceptual site model.
This identifies which media (soils, water, air) and potential
pathways of exposure need to be addressed. Land use and resource
uses may affect cleanup levels and these need to also be
identified. Cleanup levels may then be established for each
media. Both the conceptual site model and cleanup levels may be
refined as additional information is collected during the
remedial investigation/feasibility study. These rules provide
three approaches for establishing cleanup levels:
(a) Method A: ARARs and Tables. On some sites, the cleanup
action may be routine (WAC 173-340-130) or may involve relatively
few hazardous substances. Under Method A, cleanup levels ((for
hazardous substances are established)) at these sites are set at
concentrations at least as stringent as concentrations specified
in applicable state and federal laws and Tables ((1, 2, or 3))
720-1, 740-1, and 745-1 of this chapter. For soil contamination,
the process described in WAC 173-340-7090 through 173-340-7094
must be used to demonstrate that the site qualifies for an
exclusion from a simplified or site-specific ecological
evaluation or to establish a Method A soil cleanup level that is
protective of plants and animals.
Method A cleanup levels for hazardous substances not
addressed under applicable state and federal laws or Tables ((1,
2, or 3)) 720-1, 740-1, and 745-1 are established at
concentrations which do not exceed the natural background
concentration or the practical quantitation limit for the
substance in question.
Except where institutional controls are required by WAC 173-340-440(4), site cleanups that achieve Method A cleanup levels can be used without future restrictions on the property due to residual levels of contamination.
(b) Method B: ((Standard)) Universal method. Method B is
the ((standard)) universal method for determining cleanup levels
for ground water, surface water, soil, and air, that is, it can
be used at all sites. Under Method B, cleanup levels for
individual hazardous substances are established using applicable
state and federal laws ((or)) and the risk equations and other
requirements specified in WAC 173-340-720 through 173-340-750.
Method B is divided into two tiers: Standard and modified. Standard Method B uses generic default assumptions to calculate cleanup levels. Modified Method B provides for the use of site-specific information to change selected default assumptions, within the limitations allowed in WAC 173-340-708. Modified Method B may be used to establish cleanup levels. Other modifications to the Method B formulas may be used to establish remediation levels.
For both standard and modified Method B, individual
carcinogen((s,)) cleanup levels are based upon the upper bound of
the estimated excess lifetime cancer risk of one in one million
(1 x 10-6).
For individual noncarcinogenic substances, cleanup levels
are set at concentrations which are anticipated to result in no
acute or chronic toxic effects on human health ((and the
environment)) (that is, hazard quotient of one (1) or less) and
no significant adverse effects on the propagation of aquatic and
terrestrial organisms.
Where a hazardous waste site involves multiple hazardous
substances and/or multiple pathways of exposure, standard and
modified Method B cleanup levels for individual substances must
be ((modified)) adjusted downward for additive health effects in
accordance with the procedures in WAC 173-340-708. Under this
method, the total excess lifetime cancer risk for a site shall
not exceed one in one hundred thousand (1 x 10-5) and the hazard
index for substances with similar noncarcinogenic toxic effects
shall not exceed one (1).
For soil contamination, the process described in WAC 173-340-7090 through 173-340-7094 must be used to demonstrate that the site qualifies for an exclusion from a simplified or site-specific ecological evaluation or to establish a Method B soil cleanup level that is protective of plants and animals.
Except where institutional controls are required by WAC 173-340-440(4), site cleanups that achieve Method B cleanup levels can be used without future restrictions on the property due to residual levels of contamination.
(c) Method C: Conditional method. Compliance with cleanup
levels developed under the Method A or B may be impossible to
achieve or may cause greater environmental harm. In those
situations, Method C cleanup levels for individual hazardous
substances may be established ((on the basis of applicable state
and federal laws and a site-specific risk assessment)) for
surface water, ground water, and air. Method C industrial soil
and air cleanup levels may also be established at industrial
properties ((which)) that meet the criteria in WAC 173-340-745.
Under Method C, cleanup levels for individual hazardous substances are established using applicable state and federal laws and the risk equations and other requirements specified in WAC 173-340-720 through 173-340-750. Method C is similarly divided into two tiers: Standard and modified. Standard Method C uses generic default assumptions to calculate cleanup levels. Modified Method C provides for the use of site-specific information to change selected default assumptions, within the limitations allowed in WAC 173-340-708. Modified Method C may be used to establish cleanup levels. Other modifications to the Method C formulas may be used to establish remediation levels.
For individual carcinogens, both standard and modified Method C cleanup levels are based upon the upper bound of the estimated lifetime cancer risk of one in one hundred thousand (1 x 10-5). For individual noncarcinogenic substances, both standard and modified Method C cleanup levels are set at concentrations which are anticipated to result in no acute or chronic toxic effects on human health (that is, hazard quotient of one (1) or less) and no significant adverse effects on the protection and propagation of aquatic and terrestrial organisms.
Where a hazardous waste site involves multiple hazardous
substances and/or multiple pathways of exposure, both standard
and modified Method C cleanup levels for individual substances
must be ((modified)) adjusted downward for additive health
effects in accordance with the procedures in WAC 173-340-708. Under ((this method)) these procedures, the total excess lifetime
cancer risk for a site shall not exceed one in one hundred
thousand (1 x 10-5) and the hazard index for substances with
similar noncarcinogenic toxic effects shall not exceed one (1).
(((4) Additional)) For soil contamination, the process
described in WAC 173-340-7090 through 173-340-7094 must be used
to demonstrate that the site qualifies for an exclusion from a
simplified or site-specific ecological evaluation or to establish
a Method C soil cleanup level that is protective of plants and
animals.
Site cleanups meeting Method C cleanup levels must have restrictions placed on the property (institutional controls) to ensure future protection of human health and the environment.
(6) Requirements for setting cleanup levels. Several
requirements apply to cleanups under any of the three ((basic))
methods. Some of these requirements, such as the identification
of applicable state and federal laws, describe analyses used
along with Methods A, B or C in order to set cleanup levels for
particular substances at a site. Others describe the technical
procedures to be used.
(a) Applicable state and federal laws. RCW 70.105D.030 (2)(d) requires the cleanup standards in these rules to be "at least as stringent as all applicable state and federal laws." In addition to establishing minimum requirements for cleanup standards, applicable state and federal laws may also impose certain technical and procedural requirements for performing cleanup actions. These requirements are described in WAC 173-340-710 and are similar to the "ARAR" (applicable, relevant and appropriate requirements) approach of the federal superfund law. Sites that are cleaned up under an order or decree may be exempt from obtaining a permit under certain other laws but they must still meet the substantive requirements of these other laws. (See WAC 173-340-710(9).)
(b) Cross-media contamination. In some situations,
migration of hazardous substances from one medium may cause
contamination in a second media. For example, the release of
hazardous substances in soil may cause ground water
contamination. Under Methods A, B, and C, cleanup levels must be
established at concentrations ((which)) that prevent violations
of cleanup levels for other media ((following implementation of
the cleanup action)).
(c) Risk assessment procedures. The analyses performed
under Methods B and C use several factors for defining cleanup
levels for carcinogens and noncarcinogens. The individual
factors and procedures for modifying these factors based on ((new
scientific)) site-specific information are specified in WAC 173-340-708 and 173-340-720 through 173-340-750. WAC 173-340-708
also provides rules for use of indicator hazardous substances.
The standards for review of new scientific information are
described in WAC 173-340-702 (14), (15) and (16).
(d) Natural background and analytical considerations. ((Cleanup levels shall not exceed concentrations established
under methods A, B, or C except where the natural background
concentration is greater than the cleanup level established under
those methods. In such)) In some cases, cleanup levels
calculated using the methods specified in this chapter are less
than natural background levels or levels that can be reliably
measured. In those situations, the cleanup level shall be
established at a concentration equal to the practical
quantitation limit or natural background concentration. See WAC 173-340-707 and 173-340-709 for additional information.
(((5) Threshold criteria for all cleanup actions. WAC 173-340-360 specifies that all cleanup actions conducted under
this chapter shall protect human health and the environment,
comply with cleanup standards and applicable state and federal
laws, and provide for compliance monitoring. These are the
threshold criteria and all cleanup actions must meet these
criteria regardless of other factors such as cost or technical
limitations.
(6) Measuring compliance.)) (7) Procedures for demonstrating
compliance with cleanup standards. Setting cleanup standards
also involves being able to demonstrate that they have been met. This involves specifying where on the site the cleanup levels
must be met ("points of compliance"), how long it takes for a
site to meet cleanup levels ("restoration time frame"), and
conducting sufficient monitoring to demonstrate that the cleanup
standards have been met and will continue to be met in the
future. The provisions for establishing points of compliance are
in WAC 173-340-720 through 173-340-750. The provisions for
establishing restoration time frames are in WAC ((173-340-360))
173-340-350. The compliance monitoring plan prepared under WAC 173-340-410 specifies precisely how these are measured for each
site. ((Where cleanup levels are below the practical
quantitation limit, compliance with cleanup standards will be
based upon the practical quantitation limit.
(7) Administrative principles for cleanup standards.
(a) Remedial actions under this chapter shall be conducted in a manner that is consistent with this section. This section shall be used in combination with WAC 173-340-130, the more specific sections in Part VII of this chapter and WAC 173-340-360.
(b) Establishing cleanup standards and selecting an appropriate cleanup action involves many technical and public policy decisions. This chapter is intended to constrain the range of decisions needed to be made on individual sites to promote expeditious cleanups.
(c) The act contains policies which state, in part, each person has a fundamental and inalienable right to a healthful environment and it is essential that sites be cleaned up well. Consistent with these policies, cleanup standards under this chapter shall be established which provide conservative estimates of human health and environmental risks which protect susceptible individuals as well as the general population.
(d) Cleanup standards under this chapter shall be established which protect human health and the environment for current and potential future site and resource uses.
(e) Cleanup actions that achieve cleanup levels under methods A, B or C (as applicable) and comply with applicable state and federal laws shall be presumed to be protective of human health and the environment.
(f) Except as provided for in applicable state and federal laws, cost shall not be a factor in determining what cleanup level is protective of human health and the environment. In addition, where specifically provided for in this chapter, cost may be appropriate for certain other determinations related to cleanup standards such as point of compliance. Cost shall, however, be considered when selecting an appropriate cleanup action.
(g) At most sites, there is more than one hazardous substance and more than one pathway for hazardous substances to get into the environment. For many sites there is more than one technology that could address each of these. When evaluating cleanup action alternatives it is appropriate to consider a representative range of technologies that could address each of these as well as different combinations of these technologies to accomplish the overall site cleanup.
(h) The cleanup of a particular media of a site will often affect other media at the site. These cross-media impacts shall be considered when establishing cleanup standards and selecting a cleanup action. Cleanup actions conducted under this chapter shall use appropriate engineering controls or other measures to minimize these cross-media impacts.
(i) In general, cleanup levels must be met throughout a site before the site will be considered to be clean. A remedy that leaves hazardous substances on a site in excess of cleanup levels may qualify as a cleanup action as long as the remedy is protective of human health and the environment, meets cleanup levels at specified points of compliance, complies with applicable state and federal laws, provides for adequate monitoring, and incorporates appropriate institutional controls. However, these rules are intended to promote thorough cleanups rather than long-term partial cleanups or containment measures.)) At sites where remediation levels are used, the compliance monitoring plan will also need to describe the performance monitoring to be conducted to demonstrate the remediation levels have been achieved.
(8) Specific procedures for setting cleanup levels at petroleum contaminated sites. In addition to the other requirements in this section, this chapter provides for the following specific procedures to establish cleanup levels at sites where there has been a release of total petroleum hydrocarbons (TPH) and hazardous substances associated with a release of TPH.
(a) The potential impact of TPH on terrestrial ecological receptors must be evaluated under WAC 173-340-7490 through 173-340-7494.
(b) It is necessary to analyze for and evaluate certain carcinogenic and noncarcinogenic hazardous substances that may be associated with a release of TPH. These are identified in Table 830-1. In cases where the cleanup level for one or more of these associated hazardous substances is exceeded but the TPH cleanup level is not, the cleanup level shall be based on the associated hazardous substance.
(i) Method A. Method A may be used to establish cleanup levels for TPH and associated hazardous substances at qualifying sites (see WAC 173-340-704). At these sites, the presence, location and concentration of TPH may be established by using the NWTPH method described under Method 7 (see WAC 173-340-830 (3)(a)(vii)). The NWTPH method is a simplified, and relatively inexpensive, analytical method for evaluating TPH. Method A cleanup levels have been determined for four common petroleum mixtures: Gasoline range organics (GRO), diesel range organics (DRO), heavy oils, and electrical insulating mineral oil, as well as many hazardous substances that may be associated with the TPH. A site owner may decide to use Method A for some substances or media and Method B or C for others, depending upon site conditions and qualifications.
(ii) Method B and Method C tiered approach. This chapter provides for a three-tiered approach for establishing Method B and Method C cleanup levels at sites that involve a release of TPH. These tiers are not required to be approached sequentially (that is, the process may be started at any tier). The tiered process allows one to calculate different cleanup levels for TPH and associated hazardous substances using progressively more complex and site-specific information, and also allows for basing the cleanup levels on the presence or absence of exposure pathways, determined as part of the conceptual site model. In establishing a TPH cleanup level using the tiered process, it is still necessary to comply with other requirements and procedures under WAC 173-340-700 through 173-340-750.
(A) Conceptual site model. A conceptual site model must be developed as a first step for determining cleanup levels in any of the Method B and Method C tiers for TPH. The nature of the contamination, potentially contaminated media, actual and potential exposure pathways, potential receptors, and current and future land and resource uses are defined in this process.
(B) General description of the three tiers.
(I) Tier 1 consists of the standard Method B and Method C formulas and requirements under WAC 173-340-720 through 173-340-750 for each applicable pathway identified by the conceptual site model, including specific requirements set forth in those sections for petroleum mixtures.
(II) Tier 2 consists of the site-specific use of modified Method B and Method C formulas and requirements under WAC 173-340-720 through 173-340-750 for each applicable exposure pathway identified by the conceptual site model; and inclusion and development of additional, site-specific exposure pathways not addressed in Method A or Tier 1. Consideration of current and future site uses may be considered in establishing remediation levels.
(III) Tier 3 consists of the site-specific use of standard or modified Method B and Method C formulas and requirements for each applicable exposure pathway identified by the conceptual site model and the use of new scientific information to establish a cleanup level as provided under WAC 173-340-702 (14), (15) and (16). It is considered a more complex evaluation in terms of technical sophistication (such as the use of new fate and transport models), data needs, cost and time. Consideration of current and future site uses may be considered in establishing remediation levels.
(IV) A single tier may be used for all exposure pathways or more than one tier may be used when there are multiple exposure pathways.
(C) Fractionated approach. Method B and Method C cleanup levels for TPH are determined using the fractionated analytical approach for petroleum as described under Method 7 (see WAC 173-340-830 (3)(a)(vii)). This approach divides the TPH mixture into equivalent carbon numbers. Use of the fractionated approach requires testing or knowledge to define product composition as described under subsection (8)(b)(ii)(D) of this section ("Determination of product composition"). For direct contact with contaminated media, cleanup levels are calculated using reference doses that have been determined by the department for each fraction. Cleanup levels can also be calculated based on the measured or predicted ability of the fractions to migrate from one medium to other media. The most conservative of the calculated cleanup levels are to be used, depending on the results of the conceptual site model.
(D) Determination of product composition. Product composition may be determined by analyzing each sample in accordance with the VPH/EPH method described under Method 7 (see WAC 173-340-830 (3)(a)(vii)). Alternatively, product composition may be determined by one of the following methods:
(I) Correlation. Where WTPH or NWTPH methods described in Method 7 are used to collect and analyze the presence, location and concentration of TPH, knowledge of the fraction-specific composition of the petroleum released at the site may be based on analysis and correlation of a portion of the site samples with both the VPH/EPH and WTPH/NWTPH methods.
(II) Retrofitting. Where WTPH or NWTPH methods were used to collect and analyze the presence, location and concentration of TPH before the effective date of this provision, knowledge of the fraction-specific composition of the petroleum released at the site may be based on the fraction-specific composition assumptions used by the department to calculate Method A cleanup levels, which the department shall publish in guidance. If the identity of the petroleum product released at the site is not known, or is a mixture of products, retrofitting under this provision shall be based on the composition that yields the lowest TPH cleanup level.
(E) Consultation with the department. Because of the complexity of the development of site-specific Method B and Method C petroleum cleanup levels using the second or third tiers described above, or the use of correlated or retrofitted data, persons planning on using these methods are encouraged to contact the department to obtain appropriate technical guidance.
[Statutory Authority: Chapter 70.105D RCW. 96-04-010 (Order 94-37), § 173-340-700, filed 1/26/96, effective 2/26/96; 91-04-019, § 173-340-700, filed 1/28/91, effective 2/28/91; 90-08-086, § 173-340-700, filed 4/3/90, effective 5/4/90.]
(1) Purpose. This
section defines the general policies and principles that ((the
department)) shall ((utilize to ensure that cleanup standards
under this chapter are established and implemented in a
scientifically and technically sound manner)) be followed when
establishing and implementing cleanup standards. This section
shall be used in combination with other sections of this chapter.
(2) Policy on expediting cleanups. Establishing cleanup standards and selecting an appropriate cleanup action involves many technical and public policy decisions. This chapter is intended to constrain the range of decisions made on individual sites to promote expeditious cleanups.
(3) Goal for cleanups. The Model Toxics Control Act contains policies that state, in part, each person has a fundamental and inalienable right to a healthful environment and it is essential that sites be cleaned up well. Consistent with these policies, cleanup standards and cleanup actions selected under this chapter shall be established that provide conservative estimates of human health and environmental risks that protect susceptible individuals as well as the general population.
(4) Current and potential site and resource uses. Cleanup standards and cleanup actions selected under this chapter shall be established that protect human health and the environment for current and potential future site and resource uses.
(5) Presumption for cleanup actions. Cleanup actions that achieve cleanup levels at the applicable point of compliance under Methods A, B, or C (as applicable) and comply with applicable state and federal laws shall be presumed to be protective of human health and the environment.
(6) Cost considerations. Except as provided for in applicable state and federal laws, cost shall not be a factor in determining what cleanup level is protective of human health and the environment. In addition, where specifically provided for in this chapter, cost may be appropriate for certain other determinations related to cleanup standards such as point of compliance. Cost shall, however, be considered when selecting an appropriate cleanup action.
(7) Cleanup alternatives. At most sites, there is more than one hazardous substance and more than one pathway for hazardous substances to get into the environment. For many sites there is more than one method of cleanup (component) that could address each of these. When evaluating cleanup action alternatives it is appropriate to consider a representative range of cleanup action components that could address each of these as well as different combinations of these components to accomplish the overall site cleanup.
(8) Cross-media impacts. The cleanup of a particular medium at a site will often affect other media at the site. These cross-media impacts shall be considered when establishing cleanup standards and selecting a cleanup action. Cleanup actions conducted under this chapter shall use appropriate engineering controls or other measures to minimize these cross-media impacts.
(9) Relationship between cleanup levels and cleanup actions. In general, cleanup levels must be met throughout a site before the site will be considered clean. A cleanup action that leaves hazardous substances on a site in excess of cleanup levels may be acceptable as long as the cleanup action complies with WAC 173-340-350 and 173-340-360. However, these rules are intended to promote thorough cleanups rather than long-term partial cleanups or containment measures.
(((2))) (10) Relationship to federal cleanup law. When
evaluating cleanup actions performed under the federal cleanup
law, the department shall consider WAC 173-340-350, 173-340-360
((and)), 173-340-370, 173-340-390, 173-340-420, 173-340-440,
173-340-450, 173-340-700 through 173-340-760, and 173-340-830 to
be ((a)) legally applicable requirements under Section 121(d) of
the Federal Cleanup Law.
(((3) Regulation update.)) (11) Updated cleanup standards. The department shall review and, as appropriate, update WAC 173-340-700 through 173-340-760 ((no less frequently than)) at
least once every five years.
(((4))) (12) Applicability of new cleanup levels.
(a) For cleanup actions conducted by the department, or under an order or decree, the department shall determine the cleanup level that applies to a release based on the rules in effect under this chapter at the time the department issues a final cleanup action plan for that release. In reviewing the adequacy of independent remedial actions, the department shall determine the cleanup level that applies to a release based on the rules in effect at the time the final cleanup action for that release began or in effect when the department reviews the cleanup action, whichever is less stringent.
(b) A release cleaned up under the cleanup levels determined in (a) of this subsection shall not be subject to further cleanup action due solely to subsequent amendments to the provisions in this chapter on cleanup levels, unless the department determines, on a case-by-case basis, that the previous cleanup action is no longer sufficiently protective of human health and the environment.
(c) Nothing in this subsection constitutes a settlement or release of liability under MTCA.
(13) Institutional controls. Institutional controls ((under
WAC 173-340-440)) shall be required whenever ((a cleanup action
results in residual concentrations of hazardous substances which
exceed method A or method B cleanup levels, as applicable, or
conditional points of compliance are approved by the department
under WAC 173-340-720 through 173-340-760. Institutional
controls shall also be required when cleanup levels are
established under WAC 173-340-745)) any of the circumstances
identified in WAC 173-340-440(4) are present at a site.
(((5))) (14) Burden of proof. Any person responsible for
undertaking a cleanup action under this chapter who proposes to:
(a) Use a reasonable maximum exposure scenario other than the default provided for each medium;
(b) Use assumptions other than the default values provided for in this chapter;
(c) Establish a cleanup level under Method C; or
(d) Use a conditional point of compliance, shall have the
burden of demonstrating to the department that requirements in
this ((part)) chapter have been met to ((assure)) ensure
protection of human health and the environment. The department
shall only approve ((cleanup levels under method C or conditional
points of compliance)) of such proposals when it determines that
((that the person undertaking the cleanup actions met)) this
burden of proof is met.
(((6))) (15) New scientific information. The department
shall consider new scientific information when establishing
cleanup levels and remediation levels for individual sites. In
making a determination on how to use this new information, the
department shall, as appropriate, consult with the science
advisory board, the department of health, and the United States
Environmental Protection Agency. Any proposal to use new
scientific information shall meet the quality of information
requirements in subsection (16) of this section. To minimize
delay in cleanups, any proposal to use new scientific information
should be introduced as early in the cleanup process as possible.
Proposals to use new scientific information may be considered up
to the time of issuance of the final cleanup action plan
governing the cleanup action for a site unless triggered as part
of a periodic review under WAC 173-340-420 or through a reopener
under RCW 70.105D.040 (4)(c).
(16) Criteria for quality of information.
(a) The intent of this subsection is to establish minimum criteria to be considered when evaluating information used by or submitted to the department proposing to modify the methods or factors specified in this chapter or proposing methods or factors not specified in this chapter for calculating cleanup levels and remediation levels. This subsection does not establish a burden of proof or alter the burden of proof provided for elsewhere in this chapter.
(b) When deciding whether to approve or require modifications to the default methods or factors specified in this chapter for establishing cleanup levels and remediation levels or when deciding whether to approve or require alternative or additional methods or factors, the department shall consider information submitted by all interested persons and the quality of that information. When evaluating the quality of the information the department shall consider the following factors, as appropriate for the type of information submitted:
(i) Whether the information is based on a theory or technique that has widespread acceptance within the relevant scientific community;
(ii) Whether the information was derived using standard testing methods or other widely accepted scientific methods;
(iii) Whether a review of relevant available information, both in support of and not in support of the proposed modification, has been provided along with the rationale explaining the reasons for the proposed modification;
(iv) Whether the assumptions used in applying the information to the facility are valid and would ensure the proposed modification would err on behalf of protection of human health and the environment;
(v) Whether the information adequately addresses populations that are more highly exposed than the population as a whole and are reasonably likely to be present at the site; and
(vi) Whether adequate quality assurance and quality control procedures have been used, any significant anomalies are adequately explained, the limitations of the information are identified, and the known or potential rate of error is acceptable.
[Statutory Authority: Chapter 70.105D RCW. 91-04-019, § 173-340-702, filed 1/28/91, effective 2/28/91.]
(1) Applicability. Method A may be used to establish cleanup levels at the following types of sites:
(a) Sites undergoing routine cleanup actions as defined in
WAC ((173-340-130)) 173-340-200; or
(b) Sites where numerical standards are available in this
chapter or applicable state and federal laws for all indicator
hazardous substances in ((all)) the media ((of concern)) for
which the Method A cleanup level is being used. Provided that:
(c) The site has few hazardous substances; and
(d) For establishing soil cleanup levels only, the site qualifies for an exclusion from a simplified or site-specific ecological evaluation under WAC 173-340-7490 through 173-340-7494 or it can be demonstrated under those sections that the Method A soil cleanup levels are ecologically protective for the site.
(2) Procedures. Method A cleanup levels shall be established in accordance with the procedures in WAC 173-340-720 through 173-340-760. Method A cleanup levels shall be at least as stringent as all of the following:
(a) Concentrations of individual hazardous substances listed
in ((the)) Tables ((in WAC 173-340-720, 173-340-740, or
173-340-745)) 720-1, 740-1, or 745-1 in this chapter;
(b) Concentrations of individual hazardous substances established under applicable state and federal laws; and
(c) For individual hazardous substances deemed indicator hazardous substances for the medium of concern under WAC 173-340-708(2) and not addressed under (a) and (b) of this subsection, concentrations that do not exceed natural background levels or the practical quantitation limit for the substance in question.
(3) More stringent cleanup levels. The department may establish Method A cleanup levels more stringent than those required by subsection (2) of this section, when based on a site-specific evaluation, the department determines that such levels are necessary to protect human health and the environment. Any imposition of more stringent requirements under this provision shall comply with WAC 173-340-702 and 173-340-708.
(4) ((Caution on misusing method A tables. Method A tables
have been developed for specific purposes. They are intended to
provide conservative cleanup levels for sites undergoing routine
cleanup actions or those sites with relatively few hazardous
substances. The tables may not be appropriate for defining
cleanup levels at other sites. For these reasons, the values in
these tables should not automatically be used to define cleanup
levels that must be met for financial, real estate, insurance
coverage or placement, or similar transactions or purposes. Exceedances of the values in these tables do not necessarily
trigger requirements for cleanup action under this chapter.))
Remediation levels. Under Method A, the Method B formulas may be
modified for the purpose of using a human health risk assessment
to establish remediation levels. WAC 173-340-708 (3) and (10)
describe the adjustments that can be made to the Method B
formulas. Also see WAC 173-340-350(11) for more detailed
information on establishing remediation levels.
(5) Inconsistencies. If there are any inconsistencies between this section and any specifically referenced sections, the referenced section shall govern.
[Statutory Authority: Chapter 70.105D RCW. 91-04-019, § 173-340-704, filed 1/28/91, effective 2/28/91.]
(1) Purpose. Method B is
applicable to all sites. It shall be used to develop cleanup
levels unless one or more of the conditions for using Method A or
Method C are demonstrated to exist and the person conducting the
cleanup action elects to ((utilize)) use that method.
(2) Cleanup levels. Method B consists of two approaches, standard and modified. Standard Method B uses default formulas, assumptions and procedures to develop cleanup levels. Under modified Method B site-specific information may be used to change certain assumptions to calculate different cleanup levels. When the term "Method B" is used in this chapter, it means both standard and modified Method B. Method B cleanup levels shall be established in accordance with the procedures in WAC 173-340-720 through 173-340-760. Method B cleanup levels shall be at least as stringent as all of the following:
(a) Concentrations of individual hazardous substances established under applicable state and federal laws;
(b) Concentrations ((which)) that are estimated to result in
no adverse effects on the protection and propagation of aquatic
((and terrestrial)) life and, no significant adverse effects on
plants and animals using the procedures specified in WAC 173-340-7490 through 173-340-7494;
(c) For hazardous substances for which sufficiently
protective, health-based criteria or standards have not been
established under applicable state and federal laws, those
concentrations which protect human health ((and the environment))
as determined by the following methods:
(i) Concentrations ((which)) that are estimated to result in
no acute or chronic toxic effects on human health as determined
using a hazard quotient of one (1) and the procedures specified
in WAC 173-340-720 through 173-340-760;
(ii) For known or suspected carcinogens, concentrations for which the upper bound on the estimated excess cancer risk is less than or equal to one in one million (1 x 10-6) as determined using the procedures specified in WAC 173-340-720 through 173-340-760; and
(iii) Concentrations ((which)) that eliminate or minimize
the potential for food chain contamination((; and)) as necessary
to protect human health.
(3) More stringent cleanup levels. The department may establish Method B cleanup levels that are more stringent than those required by subsection (2) of this section, when based upon a site-specific evaluation, the department determines that such levels are necessary to protect human health and the environment. Any imposition of more stringent requirements under this provision shall comply with WAC 173-340-702 and 173-340-708.
(4) Multiple hazardous substances or pathways.
Concentrations of individual hazardous substances established
under subsections (2) and (3) of this section, including those
based on applicable state and federal laws, shall be adjusted
downward to take into account exposure to multiple hazardous
substances and/or exposure resulting from more than one pathway
of exposure. These adjustments shall be made in accordance with
the procedures in WAC 173-340-708. In making these adjustments,
the hazard index shall not exceed one (1) and the total excess
cancer risk shall not exceed one in one hundred thousand (1 x
10-5). ((These overall limits on the hazard index and total
excess cancer risk shall also apply to sites where there is
exposure to a single hazardous substance by one exposure pathway,
including cleanup levels based on applicable state and federal
laws.))
(5) Adjustments to cleanup levels based on applicable laws. Where a cleanup level is based on an applicable state or federal law, and the level of risk upon which the applicable state and federal law is based exceeds an excess cancer risk of one in one hundred thousand (1 x 10-5) or a hazard index of one (1), the cleanup level must be adjusted downward so that the total excess cancer risk and hazard index at the site does not exceed the limits established in subsection (4) of this section.
(6) Limitation on adjustments. Cleanup levels determined using Method B, including cleanup levels adjusted under subsections (4) and (5) of this section, are not required to be set at levels below the practical quantitation limit or natural background. See WAC 173-340-707 and 173-340-709 for additional requirements on practical quantitation limits and natural background.
(7) Remediation levels. Method B formulas may be modified for the purpose of using a human health risk assessment to establish remediation levels. WAC 173-340-708 (3) and (10) describe the adjustments that can be made to the Method B formulas. Also see WAC 173-340-350(11) for more detailed information on establishing remediation levels.
(8) Inconsistencies. If there are any inconsistencies between this section and any specifically referenced sections, the referenced section shall govern.
[Statutory Authority: Chapter 70.105D RCW. 91-04-019, § 173-340-705, filed 1/28/91, effective 2/28/91.]
(1) Purpose. Method C
cleanup levels represent concentrations ((which)) that are
protective of human health and the environment for specified site
uses and conditions. A site (or portion of a site) that
qualifies for a Method C cleanup level for one medium does not
necessarily qualify for a Method C cleanup level in other media. Each medium must be evaluated separately using the criteria
applicable to that medium. Method C cleanup levels may be used
in the following situations:
(a) For surface water, ground water and air, Method C
cleanup levels may be established where the person conducting the
cleanup action can demonstrate that such levels comply with
applicable state and federal laws, that all practicable methods
of treatment are ((utilized)) used, that institutional controls
are implemented in accordance with WAC 173-340-440, and that one
or more of the following conditions exist:
(i) Where Method A or B cleanup levels are below area background concentrations, Method C cleanup levels may be established at concentrations that are equal to area background concentrations, but in no case greater than concentrations specified in subsection (2) of this section; or
(ii) Where attainment of Method A or B cleanup levels has
the potential for creating a significantly greater overall threat
to human health or the environment than attainment of Method C
cleanup levels established under this chapter, Method C cleanup
levels may be established at concentrations ((which)) that
minimize those overall threats, but in no case greater than
concentrations specified in subsection (2) of this section. Factors that shall be considered in making this determination
include:
(A) Results of a site-specific risk assessment;
(B) Duration of threats;
(C) Reversibility of threats;
(D) Magnitude of threats; and
(E) Nature of affected population.
(iii) Where Method A or B cleanup levels are below technically possible concentrations, Method C cleanup levels may be established at the technically possible concentrations, but in no case greater than levels specified in subsection (2) of this section.
(b) ((For soil cleanup levels only,)) Method C soil cleanup
levels may ((also)) only be established where the person
conducting the cleanup action can demonstrate that the area under
consideration is an industrial property and meets the criteria
for establishing industrial soil cleanup levels under WAC 173-340-745.
(c) Method C air cleanup levels may also be established for facilities qualifying as industrial property under WAC 173-340-745 and for utility vaults and manholes. (See WAC 173-340-750.)
(2) Cleanup levels. Method C consists of two approaches, standard and modified. Standard Method C uses default formulas, assumptions and procedures to develop cleanup levels. Under modified Method C, site-specific information may be used to change certain assumptions to calculate different cleanup levels. When the term "Method C" is used in this chapter, it means both standard and modified Method C. Method C cleanup levels shall be established in accordance with the procedures in WAC 173-340-720 through 173-340-760. Method C cleanup levels shall be at least as stringent as all of the following:
(a) Concentrations established under applicable state and federal laws;
(b) Concentrations ((which)) that are estimated to result in
no significant adverse effects on the protection and propagation
of aquatic ((and terrestrial)) life and no significant adverse
effects on wildlife using the procedures specified in WAC 173-340-7490 through 173-340-7494;
(c) For hazardous substances for which sufficiently
protective, health-based criteria or standards have not been
established under applicable state and federal laws, those
concentrations which are protective of human health ((and the
environment)) as determined by the following methods:
(i) Concentrations ((which)) that are estimated to result in
no significant adverse acute or chronic toxic effects on human
health as estimated using a hazard quotient of one (1) and the
procedures defined in WAC 173-340-720 through 173-340-760; and
(ii) For known or suspected carcinogens, concentrations for which the upper bound on the estimated excess cancer risk is less than or equal to one in one hundred thousand (1 x 10-5) as determined using the procedures defined in WAC 173-340-720 through 173-340-760; and
(iii) Concentrations ((which)) that eliminate or minimize
the potential for food chain contamination as necessary to
protect human health.
(3) More stringent cleanup levels. The department may establish Method C cleanup levels that are more stringent than those required by subsection (2) of this section when based upon a site-specific evaluation, the department determines that such levels are necessary to protect human health and the environment. Any imposition of more stringent requirements under this provision shall comply with WAC 173-340-702 and 173-340-708.
(4) Multiple hazardous substances or pathways.
Concentrations of individual hazardous substances established
under subsections (2) and (3) of this section, including those
based on applicable state and federal laws, shall be adjusted
downward to take into account exposure to multiple hazardous
substances and/or exposure resulting from more than one pathway
of exposure. These adjustments shall be made in accordance with
WAC 173-340-708. In making these adjustments, the hazard index
shall not exceed one and the total excess cancer risk shall not
exceed one in one hundred thousand (1 x 10-5). ((These overall
limits on the hazard index and total excess cancer risk shall
also apply to sites where there is exposure to a single hazardous
substance by one exposure pathway, including cleanup levels based
on applicable state and federal laws.))
(5) Adjustments to cleanup levels based on applicable laws. When a cleanup level is based on an applicable state or federal law and the level of risk upon which the applicable law is based exceeds an excess cancer risk of one in one hundred thousand (1 x 10-5) or a hazard index of one (1), the cleanup level must be adjusted downward so that the total excess cancer risk does not exceed one in one hundred thousand (1 x 10-5) and the hazard index does not exceed one (1) at the site.
(6) Limitation on adjustments. Cleanup levels determined using Method C, including cleanup levels adjusted under subsections (4) and (5) of this section, are not required to be set at levels below the practical quantitation limit or natural background. See WAC 173-340-707 and 173-340-709 for additional requirements on practical quantitation limits and natural background.
(7) Remediation levels. Method C formulas may be modified for the purpose of using a human health risk assessment to establish remediation levels. WAC 173-340-708 (3) and (10) describe the adjustments that can be made to the Method C formulas. Also see WAC 173-340-350(11) for more detailed information on establishing remediation levels.
(8) Inconsistencies. If there are any inconsistencies between this subsection and any specifically referenced sections, the referenced section shall govern.
[Statutory Authority: Chapter 70.105D RCW. 96-04-010 (Order 94-37), § 173-340-706, filed 1/26/96, effective 2/26/96; 91-04-019, § 173-340-706, filed 1/28/91, effective 2/28/91.]
(1) Purpose. This section defines the risk assessment framework
that ((the department will utilize)) shall be used to establish
cleanup levels and remediation levels under this chapter. As
used in this section, cleanup levels and remediation levels means
the human health risk assessment component of these levels. This
chapter defines certain default values and methods to be used in
calculating cleanup levels and remediation levels. This section
allows varying from these default values and methods under
certain circumstances. When deciding whether to approve
alternate values and methods the department shall ensure that the
use of alternative values and methods will not significantly
delay site cleanups.
(2) Selection of indicator hazardous substances.
(a) When defining cleanup requirements at a site that is contaminated with a large number of hazardous substances, the department may eliminate from consideration those hazardous substances that contribute a small percentage of the overall threat to human health and the environment. The remaining hazardous substances shall serve as indicator hazardous substances for purposes of defining site cleanup requirements.
(b) If the department considers this approach appropriate for a particular site, the factors evaluated when eliminating individual hazardous substances from further consideration shall include:
(i) The toxicological characteristics of the hazardous substance that influence its ability to adversely affect human health or the environment relative to the concentration of the hazardous substance at the site;
(ii) The chemical and physical characteristics of the hazardous substance which govern its tendency to persist in the environment;
(iii) The chemical and physical characteristics of the hazardous substance which govern its tendency to move into and through environmental media;
(iv) The natural background concentrations of the hazardous substance;
(v) The thoroughness of testing for the hazardous substance at the site;
(vi) The frequency that the hazardous substance has been detected at the site; and
(vii) Degradation by-products of the hazardous substance.
(c) When the department determines that the use of indicator hazardous substances is appropriate for a particular site, it may also require biological testing to address potential toxic effects associated with hazardous substances eliminated from consideration under this subsection.
(3) Reasonable maximum exposure.
(a) Cleanup levels and remediation levels shall be based on estimates of current and future resource uses and reasonable maximum exposures expected to occur under both current and potential future site use conditions, as specified further in this chapter.
(b) The reasonable maximum exposure is defined as the highest exposure that is reasonably expected to occur at a site under current and potential future site use. WAC 173-340-720 through 173-340-760 define the reasonable maximum exposures for ground water, surface water, soil, and air. These reasonable maximum exposures will apply to most sites where individuals or groups of individuals are or could be exposed to hazardous substances. For example, the reasonable maximum exposure for most ground water is defined as exposure to hazardous substances in drinking water and other domestic uses.
(c) Persons performing cleanup actions under this chapter
may ((utilize)) use the evaluation criteria in WAC 173-340-720
through 173-340-760, where allowed in those sections, to
demonstrate that the reasonable maximum exposure scenarios
specified in those sections are not appropriate for cleanup
levels for a particular site. The use of an alternate exposure
scenario shall be documented by the person performing the cleanup
action. Documentation for the use of alternate exposure
scenarios under this provision shall be based on the results of
investigations performed in accordance with WAC 173-340-350.
(d) Persons performing cleanup actions under this chapter may also use alternate reasonable maximum exposure scenarios to help assess the protectiveness to human health of a cleanup action alternative that uses remediation levels, or engineered controls and/or institutional controls to limit exposure to the contamination remaining on the site. An alternate reasonable maximum exposure scenario shall reflect the highest exposure that is reasonably expected to occur under current and potential future site exposure considering, among other appropriate factors, the potential for institutional controls to fail and the extent of the time period of failure under these scenarios and the land uses at the site. Land uses other than residential and industrial, such as agricultural, recreational, and commercial, shall not be used as the basis for a reasonable maximum exposure scenario for the purpose of establishing a cleanup level. However, these land uses may be used as the basis for an alternate reasonable maximum exposure scenario for the purpose of developing a remediation level. For example, if a cap (with appropriate institutional controls) is the proposed cleanup action at a commercial site, the reasonable maximum exposure scenario for assessing the protectiveness of the cap with regard to direct soil contact could be changed from a child living on the site to a construction or maintenance worker and child trespasser scenario.
(e) A conceptual site model may be used to identify when individuals or groups of individuals may be exposed to hazardous substances through more than one exposure pathway. For example, a person may be exposed to hazardous substances from a site by drinking contaminated ground water, eating contaminated fish, and breathing contaminated air. At sites where the same individuals or groups of individuals are or could be consistently exposed through more than one pathway, the reasonable maximum exposure shall represent the total exposure through all of those pathways. At such sites, the cleanup levels and remediation levels derived for individual pathways under WAC 173-340-720 through 173-340-760 and WAC 173-340-350 and 173-340-360 shall be adjusted downward to take into account multiple exposure pathways.
(4) Cleanup levels for individual hazardous substances. Cleanup levels for individual hazardous substances will generally be based on a combination of requirements in applicable state and federal laws and risk assessment. Remediation levels are established as described in WAC 173-340-350(11).
(5) Multiple hazardous substances.
(a) Cleanup levels for individual hazardous substances established under Methods B and C and remediation levels shall be adjusted downward to take into account exposure to multiple hazardous substances. Adverse effects resulting from exposure to two or more hazardous substances with similar types of toxic response are assumed to be additive unless scientific evidence is available to demonstrate otherwise.
(b) Cancer risks resulting from exposure to two or more carcinogens are assumed to be additive unless scientific evidence is available to demonstrate otherwise.
(c) For noncarcinogens, for purposes of establishing cleanup
levels ((for noncarcinogens)) under Methods B and C, and for
remediation levels, the health threats resulting from exposure to
two or more hazardous substances with similar types of toxic
response may be apportioned between those hazardous substances in
any combination as long as the hazard index does not exceed one
(1).
(d) For carcinogens, for purposes of establishing cleanup
levels ((for carcinogens)) under Methods B and C, and for
remediation levels, the cancer risks resulting from exposure to
multiple hazardous substances may be apportioned between
hazardous substances in any combination as long as the total
excess cancer risk does not exceed one in one hundred thousand (1
x 10-5).
(e) The department may require biological testing to assess the potential interactive effects associated with chemical mixtures.
(f) When making adjustments to cleanup levels and remediation levels for multiple hazardous substances, the concentration for individual hazardous substances should not be adjusted downward to less than the practical quantitation limit or natural background.
(6) Multiple pathways of exposure.
(a) Estimated doses of individual hazardous substances resulting from more than one pathway of exposure are assumed to be additive unless scientific evidence is available to demonstrate otherwise.
(b) Cleanup levels and remediation levels based on one pathway of exposure shall be adjusted downward to take into account exposures from more than one exposur