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...(RCW 70.105D.030(1)).

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.

Small Business Economic Impact Statements: The purpose of this report is to assist ecology in making decisions on the proposed rule amendments. It will also assist in complying with legal requirements. The law requires that the economic aspects of state agency rules be evaluated prior to promulgation. If there is a disproportionate impact on small businesses then the agency must reduce the cost of the rule if it is legal and feasible to do so.

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.

This process does not always result in the provision of regulatory relief. At several steps along this process ecology could determine that regulatory relief is not warranted or that a full SBEIS is unnecessary. For example, if ecology found in Step II that all businesses within an industrial category had more (or less) than fifty employees, the regulation could not, by definition, disproportionately affect small businesses. Such a finding would obviate the need to provide regulatory relief. Or, if the cost to businesses determined in Step IV were below the "more than minor" cost threshold, then, by law, an SBEIS is not required. Similarly, ecology could determine that it could not legally provide regulatory relief in Step VI. The analyses must proceed to Step VII for ecology to be obligated to provide regulatory relief to small businesses.

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.

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

† All employment statistics from U.S. Department of Commerce, County Business Patterns, 1996, Washington, CBP/96-49, November 1998, Table 1b.

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)).

These statutory provisions do not prevent ecology from providing regulatory relief to small businesses. They do, however, clearly articulate that ecology's preeminent objective must be the protection of public health and the environment. As a result, ecology built into the proposed amendments the flexibility to modify cleanup requirements in ways that both lower the cost to small businesses and appropriately protects human health and the environment. Throughout the development of the mitigation measures for small businesses, ecology was careful to maintain those elements of the proposed amendments needed to protect human health and the environment.

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.

13. The proposed amendments addressing terrestrial ecological cleanup standards have been crafted so that most small business commercial sites will be exempt from performing a detailed evaluation. Also, the simplified process for addressing nonexempt sites is expected to help many small businesses expedite cleanups.

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.

2Will the proposed rule cause businesses to lose sales or revenue? Ecology finds it unlikely that the proposed regulatory amendments will cause affected businesses any sales or revenue losses. While closing down a business temporarily to conduct a cleanup will result in lost sales, ecology does not anticipate these amendments would cause a significant increase in that down time.

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.

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.

See WAC 173-340-745 for additional criteria to determine if a land use not specifically listed in this definition would meet the requirement of "traditional industrial use"