MODEL TOXICS CONTROL ACT((—))CLEANUP REGULATIONS

PART ((I))1 - OVERALL CLEANUP PROCESS

This chapter is promulgated under chapter 70A.305 RCW, the Model Toxics Control Act. It establishes administrative processes and standards to identify, investigate, and clean up ((facilities))sites where hazardous substances have come to be located. It defines the role of ((the department))ecology and encourages public and tribal involvement in decision making at these ((facilities))sites.

The goal of this chapter is to implement chapter ((70.105D))70A.305 RCW, the Model Toxics Control Act. This chapter provides a workable process to accomplish effective and expeditious cleanups in a manner that protects human health and the environment, including vulnerable populations and overburdened communities. 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.

(1) This chapter ((shall apply))applies to all ((facilities))sites where there has been a release or threatened release of a hazardous substance that may pose a threat to human health or the environment. Under this chapter, ((the department))ecology may require or take those actions necessary to investigate and ((remedy))clean up these releases.

(2) ((Nothing herein shall be construed to diminish the department's))Ecology retains all its authority to address a release or threatened release under other applicable laws or regulations. The cleanup process and procedures under this chapter and under other laws may be combined. ((The department))Ecology may initiate a remedial action under this chapter and may upon further analysis determine that another law is more appropriate, or vice versa.

(3) If a hazardous substance remains at a ((facility))site after actions have been completed under other applicable laws or regulations, ((the department))ecology may apply this chapter to protect human health or the environment.

(((1) Purpose.)) This section provides an overview of the cleanup process that typically ((will)) occurs at a site ((where))following the discovery of a release or threatened release of a hazardous substance ((has been discovered with an emphasis on sites being cleaned up under order or consent decree))to the environment. See WAC 173-340-510 for an overview of the administrative options for investigating and cleaning up a site. If there are any inconsistencies between this section and any specifically referenced sections, the referenced section ((shall)) governs.

(((2) Site discovery. Site discovery includes:

(a)))(1)Release reporting.Within 90 days of discovering a hazardous substance release or threatened release that may pose a threat to human health or the environment, an owner or operator ((who knows of or discovers a release of a hazardous substance due to past activities)) must report the release to ((the department))ecology as described in WAC 173-340-300. ((Most current releases of hazardous substances must be))Other persons are encouraged to report such releases. Some releases are exempt from the release reporting requirements of this chapter, including those previously reported to ((the department))ecology 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))in WAC 173-340-200.

(((b)))(2)Initial investigation. Within ((ninety))90 days of learning of a hazardous substance release, ((the department will))ecology conducts 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 to the owner, operator, and other potentially liable persons known to the department, informing them of the department's decision.

These and other requirements are described in WAC 173-340-600.))to confirm whether a release occurred that poses a threat and to determine whether further remedial action is necessary to confirm or address that threat. Ecology may extend an initial investigation when independent remedial actions are completed within 90 days of release discovery. Ecology notifies owners and operators in writing of its determination. For sites where remedial action is necessary, ecology also notifies the public in the Contaminated Site Register and provides information about the site on ecology's website under WAC 173-340-600.

(((1) Introduction. The department shall))Ecology will conduct or require remedial actions, or provide technical assistance for independent remedial actions, consistent with the provisions of this section.

(((2) Information sharing. It is the policy of the department))(1) Sharing information. Ecology's policy is to make information about releases or threatened releases 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))Ecology's policy is also 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.))(2) Providing technical assistance. All persons are encouraged to contact ((the department))ecology 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 persons conducting or proposing remedial actions at a specific site at any time. 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.

(5) Scope of information. It is the department's intention))the state cleanup law. Under ecology's voluntary cleanup program, persons planning or conducting independent remedial action may also request technical assistance on how to investigate and clean up a site and written opinions on whether a planned or completed remedial action meets the substantive requirements of the state cleanup law. Such technical assistance is advisory only and is not binding on ecology. Such technical assistance does not constitute, and may not be represented by a person as, an approval of a remedial action. See RCW 70A.305.170(1) and WAC 173-340-515(5). Ecology will only provide a binding commitment or approval under an order or decree.

(3) Collecting adequate information. Ecology intends that adequate information be gathered at a site to enable decisions on appropriate actions. ((It is also the department's intention))Ecology also intends 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. 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 adequate information has been obtained, ecology will make decisions ((shall be made)) within the framework provided ((in this chapter))under the state cleanup law and in site-specific orders or decrees.

(((6) Preparation of))(4) Preparing 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))ecology or the potentially liable person. ((The department))Ecology retains all authority to review and verify the documents submitted and to make decisions based on the documents and other relevant information.

(7) ((Interagency coordination.))Coordinating with agencies.

(a) ((If the department is conducting remedial actions or requiring remedial actions under an order or decree, the department shall))For ecology-conducted and ecology-supervised remedial actions, ecology will ensure appropriate local, state, and federal agencies ((and tribal governments)) are kept informed and, as appropriate, involved in the development and implementation of remedial actions. ((The department))Ecology 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))to allow the remedial action to proceed, ecology will request the involvement of the agency ((or tribe)).

(b) The nature and degree of coordination and consultation ((shall))must be commensurate with the other agencies' ((and tribes')) interests and needs at the site. Interested agencies ((and tribes shall also))must be included in the ((mailing)) lists for public notices under WAC 173-340-600. To facilitate coordination, it is important that agencies ((and tribes)) provide specific comments, including the identification of other applicable state and federal laws and any 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 with ecology when providing notices, holding meetings and hearings, and preparing documents. Whenever reasonable, ((the department shall))ecology will coordinate and combine its activities with other agencies ((and tribes)) to minimize the duplication of notices, hearings and preparation of documents, unless otherwise prohibited.

(8) Integrating State Environmental Policy Act. See chapter 197-11 WAC for the State Environmental Policy Act requirements pertaining to the implementation of the ((Model Toxics Control Act))state cleanup law.

(9) ((Appeals.))Ecology decisions. Ecology retains all authority to determine compliance with state cleanup law requirements, including:

(10) Appealing ecology decisions. Unless otherwise indicated, all ((department))ecology decisions made under this chapter are remedial decisions and may be appealed only as provided for in RCW ((70.105D.060))70A.307.070.

PART ((II))2 - DEFINITIONS AND USAGE

For the purpose of this chapter, the following definitions apply unless the context clearly requires otherwise:

"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))ecology 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))70A.305.040(4) and does 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)))70A.305.190 (4)(a)(v) and (vi).

"Aliphatic hydrocarbons" or "aliphatics" means organic compounds that are characterized by a straight, branched, or cyclic (nonbenzene ring) arrangement of carbon atoms and that do not contain halogens (such as chlorine). See also "aromatic hydrocarbons."

"All practicable methods of treatment" means all technologies ((and/or))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" (BACT) for releases of hazardous substances into the air resulting from cleanup actions.

"Applicable state and federal laws" means all legally applicable requirements specified in WAC 173-340-710(3) and those requirements that ((the department))ecology determines, based on the criteria in WAC 173-340-710(((3)))(4), are relevant and appropriate requirements.

"Area background" means the concentration((s)) of a hazardous substance((s that are)) consistently present in the environment in the vicinity of a site ((which are))as the result of human activities unrelated to releases from that site. Compare "natural background."

"Aromatic hydrocarbons" or "aromatics" means organic compounds that are characterized by one or more benzene rings, with or without aliphatic hydrocarbon substitutions of hydrogen atoms on the rings, and that do not contain halogens (such as chlorine). See also "aliphatic hydrocarbons."

"Averaging time" means the time over which the exposure is averaged. For noncarcinogens, the averaging time typically equals the exposure duration. For carcinogens, the averaging time equals the life expectancy of a person.

"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 applies to substances on the United States Environmental Protection Agency lists of A (known human) and B (probable human) carcinogens, and any substance 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.

"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 through 173-340-390.

"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 173-340-380 that ((selects))documents the selected cleanup action and specifies the cleanup standards and other requirements ((for)) the cleanup action must meet.

"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 standards" means the standards adopted under RCW ((70.105D.030 (2)(d)))70A.305.030 (2)(e). Establishing cleanup standards requires specification of the following:

(a) Hazardous substance concentrations that protect human health and the environment ("cleanup levels");

(b) The location on the site where those cleanup levels must be attained ("points of compliance"); and

(c) Additional regulatory requirements that apply to a cleanup action because of the type of action and/or the location of the site. These requirements are specified in applicable state and federal laws and are generally established in conjunction with the selection of a specific cleanup action.

"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:

((•))(a) Cohen, A.C., 1959. "Simplified estimators for the normal distribution when samples are singly censored or truncated." Technometrics. Volume 1, pages 217-237.

((•))(b) 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 the monitoring ((as)) described in WAC 173-340-410, including protection monitoring, performance monitoring, and confirmation monitoring.

"Conceptual site model" means a conceptual understanding of a site that identifies ((potential or suspected sources of))known or suspected:

(a) Hazardous ((substances,))substance sources and release mechanisms;

(b) Hazardous substance types and concentrations ((of hazardous substances, potentially));

(d) Contaminated environmental media, ((and actual))including the general extent and distribution of contamination within the media;

(e) Current and potential human and ecological receptors and exposure pathways ((and receptors))(complete and incomplete); and

(f) Physical and habitat features, including current and potential future land and water uses.

This model is typically ((initially)) developed during the scoping of ((the))a remedial investigation and further refined as additional information is collected ((on))about the site during the remedial investigation. ((It))The model 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 (Growth Management Act).

"Containment" means a container, vessel, barrier, or structure, whether natural or constructed, 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 a consent decree issued under WAC 173-340-520. "Consent decree" is synonymous with decree.

"Degradation by-products" or "decomposition by-products" means the secondary product of biological or chemical processes that break down chemicals into other chemicals. The decomposition by-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 and/or dermal contact.

"Director" means the director of the department 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 control((s))" means a containment ((and/or))or treatment system((s)) that ((are))is designed and constructed to prevent or limit the movement of, or the exposure to, a hazardous substance((s)). An engineered control is a type of remedial action. Examples of engineered controls include:

(a) A layer of clean soil, asphalt or concrete paving or other materials placed over contaminated soils to limit contact with contamination;

(b) A groundwater flow barrier such as a bentonite slurry trench;

(c) A groundwater gradient control system((s)) such as a French drain((s)) or a pump and treat system((s)); and

(d) A vapor control system((s)).

"Environment" means any plant, animal, natural resource, surface water (including underlying sediments), groundwater, 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 fraction of a petroleum mixture, empirically derived from the boiling point of the fraction 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 duration" means the period of exposure to a hazardous substance.

"Exposure frequency" means the portion of the exposure duration that an individual is exposed to a hazardous substance, expressed as a fraction. For example, if a person is exposed ((260))250 days (five days per week for ((52))50 work weeks) over a year (365 days), the exposure frequency would be equal to: (5 x 50)/365 = 0.7.

"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 (a) 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 (b) 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.

"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.).

"Fish diet fraction" means the percentage of the total fish and/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 that is produced for the purpose of, or may be used in whole or in part for, consumption by people or livestock. This ((shall)) includes nursery, root, or seedstock to be used for the production of food crops.

"Free product" means a nonaqueous phase liquid that is present in the soil, bedrock, groundwater or surface water as a ((district))distinct separate layer. Under the right conditions, if sufficient free product is present, free product is capable of migrating independent of the direction of flow of the groundwater or surface water.

"Gastrointestinal absorption fraction" means the fraction of a substance transported across the gastrointestinal lining and taken up systemically into the body.

"Groundwater" 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:

(a) Any dangerous or extremely hazardous waste as defined in RCW ((70.105.010 (5) and (6)))70A.300.010 (1) and (7), or any dangerous or extremely dangerous waste as designated by rule under chapter ((70.105))70A.300 RCW;

(b) Any hazardous substance as defined in RCW ((70.105.010(14)))70A.300.010(10) or any hazardous substance as defined by rule under chapter ((70.105))70A.300 RCW;

(c) 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);

(d) Petroleum or petroleum products; and

(e) 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 database developed by the United States Environmental Protection Agency that provides a summary of information on the toxicity of hazardous substances.

"Henry's law constant" means the ratio of a hazardous substance's concentration in the air to its concentration in water. Henry's law constant can vary significantly with temperature for some hazardous substances. The dimensionless form of this constant is used in the default equations in this chapter.

"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 groundwater.

"Independent remedial action((s))" means a remedial action((s)) conducted without ((department))ecology 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:

((•))(a) Zoned for industrial use by a city or county conducting land use planning under chapter 36.70A RCW (Growth Management Act); or

((•))(b) 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" and for evaluating if a land use zoning category meets the requirement of being "zoned for industrial use."

"Inhalation absorption fraction" means the percent of a hazardous substance (expressed as a fraction) that is absorbed through the respiratory system.

"Inhalation correction factor" means a multiplier that is used to adjust exposure estimates based on ingestion of drinking water to take into account exposure to hazardous substances that are volatilized and inhaled during use of the water.

"Initial investigation" means a remedial action that consists of an investigation conducted under WAC 173-340-310.

"Institutional control((s))" means a measure((s)) undertaken to limit or prohibit activities that may interfere with the integrity of an interim action or a cleanup action or result in exposure to hazardous substances at the site. An institutional control is a type of remedial action. For examples of institutional controls, see WAC 173-340-440(1).

"Integrated risk information system" or "IRIS" means a database developed by the United States Environmental Protection Agency that provides a summary of information on hazard identification and dose-response assessment for specific hazardous substances.

"Interim action" means a remedial action conducted under WAC 173-340-430.

"Interspecies scaling factor" means the conversion factor used to take into account differences between animals and humans.

"Land's method" means the method for calculating an upper confidence limit for the mean of a lognormal distribution, described in the following publications:

((•))(a) Land, C.E., 1971. "Confidence intervals for linear functions of the normal mean and variance." Annals of Mathematics and Statistics. Volume 42, pages 1187-1205.

((•))(b) Land, C.E., 1975. "Tables of confidence limits for linear functions of the normal mean and variance." In: Selected Tables in Mathematical Statistics, Volume III, pages 385-419. American Mathematical Society, Providence, Rhode Island.

"Legally applicable requirements" means those cleanup standards, standards of control, and other human health and environmental protection requirements, criteria, or limitations adopted under state or federal law that specifically address a hazardous substance, cleanup action, location, or other circumstances at the site.

"Lowest observed adverse effect level" or "LOAEL" means the lowest concentration of a hazardous substance at which there is a statistically or biologically significant increase in the frequency or severity of an adverse effect between an exposed population and a control group.

(("Mail" means delivery through the United States Postal Service or an equivalent method of delivery or transmittal, including private mail carriers, or personal delivery.))

"Maximum contaminant level" or "MCL" means the maximum concentration of a contaminant established by either the Washington state board of health or the United States Environmental Protection Agency under the ((Federal)) Safe Drinking Water Act (42 U.S.C. 300f et seq.) and published in chapter ((248-54))246-290 WAC or 40 C.F.R. Part 141.

"Maximum contaminant level goal" or "MCLG" means the maximum concentration of a contaminant established by either the Washington state board of health or the United States Environmental Protection Agency under the ((Federal)) Safe Drinking Water Act (42 U.S.C. 300f et seq.) and published in chapter ((248-54))246-290 WAC or 40 C.F.R. Part 141 for which no known or anticipated adverse effects on human health occur, including an adequate margin of safety.

"Method detection limit" or "MDL" means the minimum concentration of a compound that can be measured and reported with ((ninety-nine))99 percent (((99%))) confidence that the value is greater than zero.

"Millirem" or "mrem" means the measure of the dose of any radiation to body tissue in terms of its estimated biological effect relative to a dose received from an exposure to one roentgen (R) of X-rays. One millirem equals 0.001 rem.

"Mixed funding" means any funding provided to a potentially liable person((s)) from the ((state))model toxics control capital account under WAC 173-340-560.

"Model Toxics Control Act" or "act" means chapter ((70.105D))70A.305 RCW, first passed by the voters in the November 1988 general election as Initiative 97 and as since amended by the legislature.

"Natural attenuation" means a variety of physical, chemical or biological processes that, under favorable conditions, act without human intervention to reduce the mass, toxicity, mobility, volume, or concentration of hazardous substances in the environment. These in situ processes include: Natural biodegradation; dispersion; dilution; sorption; volatilization; and((,)) chemical or biological stabilization, transformation, or destruction of hazardous substances. See WAC 173-340-370(7) for a description of the expected role of natural attenuation in site cleanup. A cleanup action that includes natural attenuation and conforms to the expectation in WAC 173-340-370(7) can be considered an active remedial measure.

"Natural background" means the concentration of a hazardous substance consistently present in the environment that has not been influenced by localized human activities. For example, several metals and radionuclides naturally occur in the bedrock, sediments, and soils of Washington state due solely to the geologic processes that formed these materials ((and)). The concentration of these hazardous substances would be considered natural background. Also, low concentrations of some particularly persistent organic compounds such as polychlorinated biphenyls (PCBs) can be found in surficial soils and sediment throughout much of the state due to global distribution of these hazardous substances. These low concentrations would be considered natural background. Similarly, concentrations of various radionuclides that are present at low concentrations throughout the state due to global distribution of fallout from bomb testing and nuclear accidents would be considered natural background. Compare "area background."

"Natural biodegradation" means ((in-situ))in situ biological processes such as aerobic respiration, anaerobic respiration, and cometabolism, that occur without human intervention and that break down hazardous substances into other compounds or elements. The process is typically a multiple step process and may or may not result in organic compounds being completely broken down or mineralized to carbon dioxide and water.

"Natural person" means any unincorporated individual or group of individuals. The term "individual" is synonymous with "natural person."

"Nonaqueous phase liquid" or "NAPL" means a hazardous substance that is present in the soil, bedrock, groundwater, or surface water as a liquid not dissolved in water. The term includes both light nonaqueous phase liquid (LNAPL) and dense nonaqueous phase liquid (DNAPL).

"No observed adverse effect level" or "NOAEL" means the exposure level at which there are no statistically or biologically significant increases in frequency or severity of adverse effects between the exposed population and its appropriate control((;)). Some effects may be produced at this level, but they are not considered to be adverse, nor precursors to specific adverse effects.

"Nonpotable" means not a current or potential source of drinking water. See WAC 173-340-720 and 173-340-730 for criteria for determining if groundwater or surface water is a current or potential source of drinking water.

"Null hypothesis" means an assumption about hazardous substance concentrations at a site when evaluating compliance with cleanup levels established under this chapter. The null hypothesis is that the site is contaminated at concentrations that exceed cleanup levels. This ((shall))does not apply to cleanup levels based on background concentrations where other appropriate statistical methods supported by a power analysis would be more appropriate to use.

"Oral RFD conversion factor" means the conversion factor used to adjust an oral reference dose (which is typically based on an administered dose) to a dermal reference dose (which is based on an absorbed dose).

"Order" means an enforcement order issued under WAC 173-340-540 or an agreed order issued under WAC 173-340-530.

"Owner or operator" means any person that meets the definition of this term in RCW ((70.105D.020(12)))70A.305.020(22).

"PAHs (carcinogenic)" or "cPAHs" means those polycyclic aromatic hydrocarbons substances, PAHs, identified as A (known human) or B (probable human) carcinogens by the United States Environmental Protection Agency. These include benzo(a)anthracene, benzo(b)fluoranthene, benzo(k)fluoranthene, benzo(a)pyrene, chrysene, dibenzo(a,h)anthracene, and indeno(1,2,3-cd)pyrene.

"Permanent solution" or "permanent cleanup action" means a cleanup action in which cleanup standards of ((WAC 173-340-700 through 173-340-760))Part 7 of this chapter can be met without further action being required at the site being cleaned up or any other site involved with the cleanup action, other than the approved disposal of any residue from the treatment of hazardous substances.

"Person" means an individual, firm, corporation, association, partnership, consortium, joint venture, commercial entity, state government agency, unit of local government, federal government agency, or Indian tribe.

"Picocurie" or "pCi" means 10-12 curie.

"Point of compliance" means the point or points where cleanup levels established in accordance with WAC 173-340-720 through 173-340-760 ((shall))must be attained. This term includes both standard and conditional points of compliance. A conditional point of compliance for particular environmental media is only available as provided in WAC 173-340-720 through 173-340-760.

"Polychlorinated biphenyls" or "PCB mixtures" means those aromatic compounds containing two benzene nuclei with two or more substituted chlorine atoms. For the purposes of this chapter, PCB includes those congeners which are identified using the appropriate analytical methods as specified ((in))by ecology under WAC 173-340-830.

"Polycyclic aromatic hydrocarbons" or "PAH" means those hydrocarbon molecules composed of two or more fused benzene rings. For the purpose of this chapter, PAH includes those compounds which are identified and quantified using the appropriate analytical methods ((as)) specified ((in))by ecology under WAC 173-340-830. The specific compounds generally included are acenaphthene, acenaphthylene, fluorene, naphthalene, anthracene, fluoranthene, phenanthrene, benzo[a]anthracene, benzo[b]fluoranthene, benzo[k]fluoranthene, pyrene, chrysene, benzo[a]pyrene, dibenzo[a,h]anthracene, indeno[1,2,3-cd]pyrene, and benzo[ghi]perylene.

"Potentially liable person" means any person who ((the department))ecology finds, based on credible evidence, to be liable under RCW ((70.105D.040))70A.305.040.

"Practicable" means capable of being designed, constructed, and implemented in a reliable and effective manner including consideration of cost. ((When considering cost under this analysis,))An alternative ((shall))is not ((be considered)) practicable if ((the))its incremental costs ((of the alternative)) are disproportionate to ((the))its incremental degree of benefits ((provided by the alternative over other lower cost)), compared to another alternative((s)). Whether a cleanup action uses permanent solutions to the maximum extent practicable is determined using the procedures in WAC 173-340-360(6).

"Practical quantitation limit" or "PQL" means the lowest concentration that can be reliably measured within specified limits of precision, accuracy, representativeness, completeness, and comparability during routine laboratory operating conditions, using ((department))ecology approved methods.

"Probabilistic risk assessment" means a mathematical technique for assessing the variability and uncertainty in risk calculations. This is done by using distributions for model input parameters, rather than point values, where sufficient data exists to justify the distribution. These distributions are then used to compute various simulations using tools such as Monte Carlo analysis to examine the probability that a given outcome will result (such as a level of risk being exceeded). When using probabilistic techniques under this chapter for human health risk assessment, distributions ((shall))may not be used to represent dose response relationships (reference dose, reference concentration, cancer potency factor).

"Public notice" means((, at a minimum, adequate notice mailed to all persons who have made a timely request of the department and to persons residing in the potentially affected vicinity of the proposed action; mailed to appropriate news media; published in the newspaper of largest circulation in the city or county of the proposed action; and opportunity for interested persons to comment))the notice and opportunity to comment required under WAC 173-340-600(2).

"Public participation plan" means a plan prepared under WAC 173-340-600 to encourage coordinated and effective public involvement tailored to the public's needs at a particular site.

"Rad" means that quantity of ionizing radiation that results in the absorption of 100 ergs of energy per gram of irradiated material, regardless of the source of radiation.

"Radionuclide" means a type of atom that spontaneously undergoes radioactive decay. Radionuclides are hazardous substances under the act.

"Reasonable maximum exposure" means the highest exposure that can be reasonably expected to occur for a human or other living organisms, including a vulnerable population or an overburdened community, at a site under current and potential future site use.

"Reference dose" or "RFD" means a benchmark dose, derived from the NOAEL or LOAEL for a hazardous substance by consistent application of uncertainty factors used to estimate acceptable daily intake doses and an additional modifying factor, which is based on professional judgment when considering all available data about a substance, expressed in units of milligrams per kilogram body weight per day. This includes chronic reference doses, subchronic reference doses, and developmental reference doses.

"Release" means any intentional or unintentional entry of any hazardous substance into the environment, including but not limited to the abandonment or disposal of containers of hazardous substances.

"Relevant and appropriate requirements" means those cleanup standards, standards of control, and other human health and environmental requirements, criteria, or limitations established under state and federal law that, while not legally applicable to the hazardous substance, cleanup action, location, or other circumstance at a site, ((the department))ecology determines address problems or situations sufficiently similar to those encountered at the site that their use is well suited to the particular site. The criteria specified in WAC 173-340-710(((3) shall be))(4) are used to determine if a requirement is relevant and appropriate.

"Rem" means the unit of radiation dose equivalent that is the dosage in rads multiplied by a factor representing the different biological effects of various types of radiation.

"Remedial investigation/feasibility study" means a remedial action that consists of ((activities conducted under WAC 173-340-350 to collect, develop, and evaluate sufficient information regarding a site to select a cleanup action under WAC 173-340-360 through 173-340-390))both a remedial investigation and a feasibility study.

"Remediation level (REL)" means a concentration (or other method of identification) of a hazardous substance in soil, water, air, or sediment ((above which))used to identify where a particular cleanup action component ((will be))is required as part of a cleanup action at a site. Other methods of identification include physical appearance or location. A cleanup action selected in accordance with WAC 173-340-350 through 173-340-390 that includes remediation levels constitutes a cleanup action which is protective of human health and the environment. See WAC 173-340-355 for a description of the purpose of remediation levels and the requirements and procedures for developing a cleanup action alternative that includes remediation levels.

"Remedy" or "remedial action" means any action or expenditure consistent with the purposes of chapter ((70.105D))70A.305 RCW to identify, eliminate, or minimize any threat posed by hazardous substances to human health or the environment including any investigative and monitoring activities with respect to any release or threatened release of a hazardous substance and any health assessments or health effects studies conducted in order to determine the risk or potential risk to human health.

"Restoration time frame" means the period of time needed to achieve the required cleanup levels at the points of compliance established for the site.

"Risk" means the probability that a hazardous substance, when released into the environment, will cause an adverse effect in exposed humans or other living organisms.

"Routine cleanup action" means a remedial action meeting all of the following criteria:

Routine cleanup actions consist of, or are comparable to, one or more of the following remedial actions:

(("Safety and health plan" means a plan prepared under WAC 173-340-810.))

"Sampling and analysis plan" means a plan prepared under WAC 173-340-820.

"Saturated zone" means the area below the water table in which all interstices are filled with water.

"Schools" means preschools, elementary schools, middle schools, high schools, and similar facilities, both public and private, used primarily for the instruction of minors.

(("Science advisory board" means the advisory board established by the department under RCW 70.105D.030(4).

"Secondary maximum contaminant level" means the maximum concentration of a secondary contaminant in water established by the United States Environmental Protection Agency under the Federal Safe Drinking Water Act (42 U.S.C. 300f et seq.) and published in 40 C.F.R. 143.))

"Sensitive environment" means an area of particular environmental value, where a release could pose a greater threat than in other areas including: Wetlands; critical habitat for endangered or threatened species; national or state wildlife refuge; critical habitat, breeding or feeding area for fish or shellfish; wild or scenic river; rookery; riparian area; big game winter range.

"Site" means the same as "facility."

"Site hazard assessment and ranking" means a remedial action that consists of an ((investigation performed))assessment and ranking conducted under WAC 173-340-320.

"Soil" means a mixture of organic and inorganic solids, air, water, and biota that exists on the earth's surface above bedrock, including materials of anthropogenic sources such as slag, sludge, etc.

"Soil biota" means invertebrate multicellular animals that live in the soil or in close contact with the soil.

"Subchronic reference dose" means an estimate (with an uncertainty of an order of magnitude or more) of a daily exposure level for the human population, including sensitive subgroups, that is likely to be without appreciable risk of adverse effects during a portion of a lifetime.

"Surface water" means lakes, rivers, ponds, streams, inland waters, salt waters, and all other surface waters and water courses within the state of Washington or under the jurisdiction of the state of Washington.

"Technically possible" means capable of being designed, constructed, and implemented in a reliable and effective manner, regardless of cost.

"Terrestrial ecological receptors" means plants and animals that live primarily or entirely on land.

"Threatened or endangered species" means species listed as threatened or endangered under the federal Endangered Species Act 16 U.S.C. Section 1533, or classified as threatened or endangered by the state fish and wildlife commission under WAC ((232-12-011(1) and 232-12-014))220-200-100 or 220-610-010.

"Total excess cancer risk" means the upper bound on the estimated excess cancer risk associated with exposure to multiple hazardous substances and multiple exposure pathways.

"Total petroleum hydrocarbons" or "TPH" means any fraction of crude oil that is contained in plant condensate, crankcase motor oil, gasoline, aviation fuels, kerosene, diesel motor fuel, benzol, fuel oil, and other products derived from the refining of crude oil. For the purposes of this chapter, TPH ((will)) generally means those fractions of the above products that are the total of all hydrocarbons quantified by analytical methods NWTPH-Gx; NWTPH-Dx; volatile petroleum hydrocarbons (VPH) for volatile aliphatic and volatile aromatic petroleum fractions; and extractable petroleum hydrocarbons (EPH) for nonvolatile aliphatic and nonvolatile aromatic petroleum fractions, as appropriate, or other test methods approved by ((the department))ecology.

"Type I error" means the error made when it is concluded that an area of a site is below cleanup levels when it actually exceeds cleanup levels. This is the rejection of a true null hypothesis.

"Underground storage tank" or "UST" means ((an underground storage tank and connected underground piping as defined in the rules adopted under chapter 90.76 RCW))the term as defined in chapter 173-360A WAC.

"Unrestricted site use conditions" means restrictions on the use of the site or natural resources affected by releases of hazardous substances from the site are not required to ensure continued protection of human health and the environment.

"Upper bound on the estimated excess cancer risk of one in ((one hundred thousand))100,000" means the upper ((ninety-fifth))95th percent confidence limit on the estimated risk of one additional cancer above the background cancer rate per ((one hundred thousand))100,000 individuals.

"Upper bound on the estimated excess cancer risk of one in ((one million))1,000,000" means the upper ((ninety-fifth))95th percent confidence limit on the estimated risk of one additional cancer above the background cancer rate per ((one million))1,000,000 individuals.

"Volatile organic compound" means those carbon-based compounds listed in ((EPA))United States Environmental Protection Agency methods 502.2, 524.2, 551, 601, 602, 603, 624, 1624C, 1666, 1671, 8011, 8015B, 8021B, 8031, 8032A, 8033, 8260B, and those with similar vapor pressures or boiling points. ((See WAC 173-340-830(3) for references describing these methods.)) For petroleum, volatile means aliphatic and aromatic constituents up to and including EC12, plus naphthalene, 1-methylnaphthalene and 2-methylnaphthalene.

"Wastewater facility" means all structures and equipment required to collect, transport, treat, reclaim, or dispose of domestic, industrial, or combined domestic/industrial wastewaters.

"Wetlands" means ((lands transitional between terrestrial and aquatic systems where the water table is usually at or near the surface or the land is covered by shallow water. For the purposes of this classification, wetlands must have one or more of the following attributes at least periodically, the land supports predominantly hydrophytes; the substrate is predominately undrained hydric soil; and the substrate is nonsoil and saturated with water or covered by shallow water at some time during the growing season each year))the term as defined in WAC 173-201A-020.

"Wildlife" means any nonhuman vertebrate animal other than fish.

"Zoned for (a specified) use" means the use is allowed as a permitted or conditional use under the local jurisdiction's land use zoning ordinances. A land use that is inconsistent with the current zoning but allowed to continue as a nonconforming use or through a comparable designation is not considered to be zoned for that use.

For the purposes of this chapter, the following ((shall)) apply:

(1) Unless the context clearly requires otherwise, the use of the singular ((shall)) includes the plural and conversely.

(2) The terms "applicable," "appropriate," "relevant," "unless otherwise directed by ((the department))ecology" and similar terms implying discretion mean as determined by ((the department))ecology, with the burden of proof on other persons to demonstrate that the requirements are or are not necessary.

(3) "Approved" means for ((department conducted or ordered remedial actions, or for potentially liable person conducted cleanups agreed to by the department in an agreed order or decree governing remedial actions at the site))ecology-conducted or ecology-supervised remedial actions.

(4) "Conduct" means to perform or undertake whether directly or through an agent or contractor, unless this chapter expressly provides otherwise.

(5) "Include" means included, but not limited to.

(6) "May" or "should" means the provision is optional and permissive, and does not impose a requirement.

(7) "Shall," "must," or "will" means the provision is mandatory.

(8) "Threat" means threat or potential threat.

(9) "Under" means pursuant to, subject to, required by, established by, in accordance with, and similar expressions of legislative or administrative authorization or direction.

PART ((III))3 - SITE REPORTS AND CLEANUP DECISIONS

(1) Purpose.((As part of a program to identify hazardous waste sites,))This section sets forth the requirements for reporting a release or threatened release of a hazardous substance ((due to past activities, whether discovered before or after the effective date of this regulation. It also sets forth the requirements for reporting independent remedial actions. The department may take any other actions it deems appropriate to identify potential hazardous waste sites consistent with chapter 70.105D RCW.

(iii) Any remedial actions planned, completed, or underway. All other persons are encouraged to report such information to the department.))to the environment that may pose a threat to human health or the environment.

(b) ((Persons))Examples. An owner or operator should use best professional judgment in deciding whether a release or threatened release of a hazardous substance to the environment may ((be))pose a threat ((or potential threat)) to human health or the environment. The following, which is not an exhaustive list, are examples of situations that an owner or operator should generally ((should be reported))report under this section:

(i) Contamination in a water supply well((.));

(ii) Contaminated seeps, sediment or surface water((.));

(iii) Vapors in a building, utility vault or other structure that appear to be entering the structure from nearby contaminated soil or groundwater((.));

(iv) ((Free product))Nonaqueous phase liquid, such as a petroleum product or ((other organic liquids))chlorinated solvent, on the surface of the ground or in the groundwater((.))(free product);

(v) Any contaminated soil or unpermitted disposal of waste materials that would be classified as a hazardous waste under federal or state law((.));

(vi) Any abandoned containers such as drums or tanks, above ground or buried, still containing more than trace residuals of hazardous substances((.));

(vii) Sites where unpermitted industrial waste disposal has occurred((.));

(viii) Sites where hazardous substances have leaked or been dumped on the ground((.)); and

(ix) Leaking underground petroleum storage tanks not already reported under ((WAC 173-340-450))chapter 173-360A WAC.

(((3) Exemptions. The following releases are exempt from these notification requirements:

(6)))(3) Content of release report. An owner or operator must include the following information in a release report, to the extent known:

(4)Other((obligations))release reporting requirements. Nothing in this section ((shall)) eliminates any obligations to comply with reporting requirements ((that may exist in a permit or under))in other laws or permits including, but not limited to, the following:

(5) Reservation of rights. Nothing in this section precludes ecology from taking any actions it deems appropriate to identify contaminated sites consistent with chapter 70A.305 RCW.

(1) Purpose.((An initial investigation is an inspection of a suspected site by the department and documentation of conditions observed during that site inspection.)) The purpose of the initial investigation is to determine ((whether a release or threatened release of a hazardous substance may have occurred that warrants further action under this chapter.

(3) Exemptions. The department shall not be required to conduct an initial investigation when)):

(a) Whether there has been a release or threatened release of a hazardous substance to the environment;

(b) The circumstances associated with the release or threatened release are known to ((the department))ecology and have previously been or currently are being evaluated by ((the department))ecology or ((other))another government agency; or

(((b) The release is permitted; or

(c) The release is exempt from reporting under WAC 173-340-300(3).))(c) Ecology does not have a reasonable basis to believe that there has been a release or threatened release of a hazardous substance that may pose a threat to human health or the environment.

(4) ((Department deferral to))Reliance on others.((The department))Ecology may rely on another government agency or a contractor to ((the department))ecology to conduct an initial investigation on its behalf, provided ((the department determines such an)):

(a) The agency or contractor is not suspected ((to have))of having contributed to the release or threatened release ((of a hazardous substance)); and ((that))

(b) The agency or contractor has no conflict of interest ((exists)).

(5) ((Department decision. Based on the information obtained about the site, the department shall within thirty days of completion of the initial investigation make one or more of the following decisions:

(c) Sites not requiring further remedial action. For sites requiring no further remedial action under chapter 70.105D RCW, if requested by the owner or operator, the department shall notify the owner or operator of the department's conclusion. This notification shall be in writing and may be combined with the determination of status letter in WAC 173-340-500.))Timing.

(7) Reservation of rights. Nothing in this section ((shall)) precludes((the department))ecology from taking or requiring appropriate remedial action at any time.

(((1) Purpose. The purpose of the site hazard assessment is to provide sufficient sampling data and other information for the department to:

(7) Notification. The department shall make available the results of the site hazard assessment to the site's owner and operator and any person who has received a potentially liable person status letter under WAC 173-340-500 regarding the site. If the department finds after a site hazard assessment that the site requires no further action, it shall publish this decision in the Site Register.))(1) Purpose. The site hazard assessment and ranking process provides a method for ecology to assess and rank threats to human health and the environment posed by a site based on information readily available at the time of assessment. The site hazard assessment and ranking process satisfies the requirements of RCW 70A.305.030 (2)(b), and is not a substitute for a remedial investigation. Ecology uses site hazard assessments and rankings to:

(1) Purpose.((The department shall maintain a list of sites where remedial action has been determined by the department to be necessary. This list, called the hazardous sites list, shall fulfill the department's responsibilities under RCW 70.105D.030 (2)(b) and (3). From this list, the department shall select those sites where action is anticipated and include those in the biennial program report under WAC 173-340-340.

(i)))The purpose of the contaminated sites list is to identify:

(b) Nonpermanent cleanup action without containment. For sites where the selected cleanup action is not permanent and does not include containment, a site must meet the following criteria to be removed from the list:

(ii) All remedial actions under state cleanup law, except ((confirmational))confirmation monitoring and periodic reviews, have been completed ((and compliance with the cleanup standards has been achieved at the site;

(iii))).

(c) Nonpermanent cleanup action with containment. For sites where the selected cleanup action is not permanent and includes containment((, if all of the following conditions have been met:

(A) All construction and operation of remedial actions)), a site must meet the following criteria to be removed from the list:

(iii) All necessary operation and maintenance activities have been ((adequately)) completed ((and)), except for the following:

(((I) Only))(A) Passive maintenance activities, such as monitoring, inspections ((and)), or periodic repairs ((remain)); or

(((II)))(B) For ((municipal)) solid waste landfills ((only, a closure plan meeting the substantive requirements in chapter 173-351 WAC has been approved by the department as part of a remedial action under this chapter and the only remaining active maintenance activities are methane gas control, the operation of leachate collection and treatment systems, and/or surface water diversion;

(B)))permitted under chapter 173-340, 173-350, or 173-351 WAC, any operation or maintenance activities of systems for explosive gas control, leachate collection, or surface water run-on or runoff management;

(v) Sufficient ((confirmational))confirmation monitoring has been ((done))completed to demonstrate that the ((remedy has))cleanup action effectively ((contained))contains the hazardous substances of concern at the site;

(((C) All required performance monitoring has been completed;

(D)))(vi) Any required institutional controls are in place and have been demonstrated to be effective in protecting public health and the environment ((from exposure to hazardous substances)) and ((protecting)) the integrity of the cleanup action;

(((E)))(vii) Any required financial assurances are in place; and

(viii) Written documentation is present in ((the department))ecology files that describes what hazardous substances ((have been left))remain on site, where they are located, and the ((long term))long-term monitoring and maintenance obligations at the site((;

(10) Notice. The department shall provide public notice and an opportunity to comment when the department proposes to remove a site from the list. Additions to the list, changes in site status, and removal from the list shall be published in the Site Register.

(1) Purpose. The purpose of the no further action sites list is to identify:

(a) All sites where ecology or PLIA has determined no further remedial action is necessary under state cleanup law to meet the criteria in WAC 173-340-330(5); and

(b) For each listed site, whether institutional controls or periodic reviews remain necessary at the site.

(2) Adding a site to the list. Ecology will add a site to the no further action sites list if, and only if:

(a) After completing an initial investigation, ecology or PLIA determines that no further remedial action is necessary under state cleanup law to meet the criteria in WAC 173-340-330(5); or

(b) Ecology removes the site from the contaminated sites list based on the criteria in WAC 173-340-330(5).

(3) Tracking institutional controls and periodic reviews. For each site on the no further action sites list, ecology will identify on the list whether the site requires:

(a) Institutional controls under WAC 173-340-440; or

(b) Periodic reviews under WAC 173-340-420.

(4) Removing a site from the list. If ecology relists a site on the contaminated sites list under WAC 173-340-330(8), ecology will remove the site from the no further action sites list.

(5) Notification.

(a) Ecology will make the no further action sites list publicly available on ecology's website.

(b) If requested, ecology will notify a person electronically under WAC 173-340-600(6) upon adding or removing a site on the no further action sites list.

(((1) Timing. Before November 1 of each even-numbered year, the department shall prepare a biennial program report for the legislature containing its plan for conducting remedial actions for the following two fiscal years. This report shall identify the projects and expenditures recommended for appropriation from both the state and local toxics control accounts. In determining which sites the department shall consider for planned action, emphasis shall be given to sites posing the highest risk to human health and the environment, as indicated by a site's hazard ranking. The department may also consider other factors in setting site priorities. After legislative action and any revisions, this report shall become the department's biennial program plan.

(2) Public notice. The department shall provide public notice and a hearing on the proposed plan. For purposes of this subsection only, public notice shall consist of mailings to all persons who have made a timely request and to the appropriate news media, and publication in the state register. Notice shall also be provided in the Site Register. The public comment period on the proposed plan shall run for at least thirty days from the date of the publication in the Site Register.))(1) Strategic plan. Ecology will develop and periodically update a comprehensive and integrated strategic plan for cleaning up contaminated sites. The strategic plan must prioritize vulnerable populations and overburdened communities that may be impacted by a contaminated site, and consider the resource allocation factors in subsection (2) of this section. The strategic plan must include:

(((1) Purpose. The purpose of a remedial investigation/feasibility study is to collect, develop, and evaluate sufficient information regarding a site to select a cleanup action under WAC 173-340-360 through 173-340-390.

(d) Other information. Other information may be required by the department.))(1) Purpose. The purpose of a remedial investigation is to adequately characterize a contaminated site, including the distribution of hazardous substances and the threat they pose to human health and the environment, to enable:

(1) Purpose. The purpose of the feasibility study is to develop and evaluate cleanup action alternatives to enable the selection of a cleanup action that meets the requirements in WAC 173-340-360 and conforms, as appropriate, to the expectations in WAC 173-340-370.

(2) Applicability.

(a) Whether required. A feasibility study of cleanup action alternatives must be conducted, regardless of which administrative option in WAC 173-340-510 is used to conduct remedial action, except in the following circumstances.

(i) Permanent cleanup action completed. A feasibility study is not required if prior remedial actions at the site constitute a permanent cleanup action and meet the criteria in WAC 173-340-330 (5)(a). To qualify for this exemption, sufficient information must be collected and included in the remedial investigation report to demonstrate that the site meets the criteria (see WAC 173-340-350 (6)(j)(i) and (5)(f)(i) and (g)(vi)).

(ii) Model remedy selected. A feasibility study is not required to select a model remedy as the cleanup action or as a component of the cleanup action for a site (see WAC 173-340-390). However, a feasibility study is still required to select any remaining cleanup action components for the site. To qualify for this exemption or partial exemption, sufficient information must be collected and included in the remedial investigation report to demonstrate that the site meets the conditions established by ecology for using the model remedy (see WAC 173-340-350 (6)(j)(ii) and (5)(f)(ii) and (g)(vi)).

(b) Requirements. A feasibility study must comply with the requirements in this section and, as applicable, the following:

(i) For sites where there is a release or threatened release to sediment, the applicable requirements in WAC 173-204-550; and

(ii) For sites on the national priorities list, the applicable requirements under the federal cleanup law.

(3) Timing and phasing.

(a) Except as otherwise directed by ecology, a remedial investigation/feasibility study must be completed before cleanup standards are established and a cleanup action is selected. An emergency remedial action or an interim action may be conducted before a remedial investigation/feasibility study is completed.

(b) A remedial investigation/feasibility study may be conducted, or required by ecology to be conducted, for the entire site or for separate parts of a site, such as a sediment cleanup unit as defined in WAC 173-204-505.

(c) A remedial investigation/feasibility study may be conducted, or required by ecology to be conducted, as a single step or as separate steps in the cleanup process.

(d) A feasibility study may be conducted, or required by ecology to be conducted, in phases. For example, additional study may be necessary to evaluate the feasibility of a cleanup action alternative.

(4) Administrative options and requirements. A feasibility study may be conducted under any of the administrative options for remedial action described in WAC 173-340-510. Reporting and public participation requirements depend on the administrative option used to conduct remedial action.

(a) Ecology-conducted or ecology-supervised remedial actions. For an ecology-conducted or ecology-supervised feasibility study, ecology will provide or require:

(i) A feasibility study report that complies with the requirements in subsection (6)(f) of this section and WAC 173-340-840. For ecology-supervised remedial actions, ecology may require submittal of a report for its review and approval; and

(ii) Public notice of a feasibility study report in accordance with WAC 173-340-600(13).

(b) Independent remedial actions. Independent feasibility studies must be reported to ecology in accordance with WAC 173-340-515. Unlike for investigations conducted under WAC 173-340-350, such studies do not need to be reported separately upon completion (see WAC 173-340-515 (4)(a)). Reports must include, as appropriate, the information specified in subsection (6)(f) of this section.

(5) Scope. A feasibility study must adequately evaluate a reasonable number and type of cleanup action alternatives to meet the purposes in subsection (1) of this section.

(a) The scope of the study depends on many factors, including the nature and extent of contamination, the exposure pathways of concern, the human and ecological receptors potentially impacted by the contamination, the characteristics of the site, the type of cleanup action alternatives being evaluated, and any previous evaluations of cleanup action alternatives.

(b) The study may rely on previously collected information about the site and previous evaluations of cleanup action alternatives, such as treatability or pilot studies. Such information may be summarized and incorporated by reference in the feasibility study report to avoid unnecessary duplication.

(6) Steps. Except as otherwise directed by ecology, a feasibility study of cleanup action alternatives must be conducted in accordance with the following steps. The study should remain flexible to avoid collecting unnecessary information or conducting unnecessary evaluations.

(a) Step 1: Identify cleanup goals. Identify the goals for the cleanup action, in addition to compliance with the requirements in WAC 173-340-360. Include any planned future uses of the site.

(b) Step 2: Identify alternatives. Identify cleanup action alternatives for evaluation in the study. The alternatives must achieve the goals identified in Step 1 and comply with the requirements in WAC 173-340-360. Include:

(i) A reasonable number and type of alternatives, taking into account:

(A) The characteristics and complexity of the site, including current site conditions and physical constraints; and

(B) The threats posed by the site to human health and the environment, including vulnerable populations and overburdened communities;

(ii) At least one permanent cleanup action alternative;

(iii) For each environmental medium, at least one alternative with a standard point of compliance (see Part 7 of this chapter);

(iv) As appropriate, alternatives with a conditional point of compliance for one or more environmental media (see Part 7 of this chapter); and

(v) As appropriate, alternatives relying on a combination of cleanup action components for an environmental medium (such as treatment of some soil contamination and containment of the remainder). The alternatives must specify remediation levels for each component (see WAC 173-340-355).

(c) Step 3: Screen alternatives and components. Based on a preliminary analysis, eliminate from further evaluation the following cleanup action alternatives or components identified in Step 2:

(i) Alternatives that clearly do not meet the requirements for a cleanup action in WAC 173-340-360, including alternatives for which costs are clearly disproportionate to benefits under WAC 173-340-360(5);

(ii) Alternatives or components that are not technically possible at the site.

(d) Step 4: Evaluate remaining alternatives. Conduct a detailed evaluation of each remaining cleanup action alternative to determine whether it meets the requirements in WAC 173-340-360 and conforms to the expectations in WAC 173-340-370. If necessary, conduct additional remedial investigations under WAC 173-340-350 to complete the evaluation, including any investigations needed to complete a terrestrial ecological evaluation;

(e) Step 5: Select preferred alternative. Based on the detailed evaluation in Step 4, select a preferred cleanup action alternative that meets the requirements in WAC 173-340-360 and conforms, as appropriate, to the expectations in WAC 173-340-370.

(f) Step 6: Report results. Report the results of the feasibility study in accordance with subsection (4) of this section. Include the following information in the report:

(i) If the remedial investigation report is not combined with the feasibility study report, a summary of remedial investigation results, including:

(A) The conceptual site model used to develop and evaluate cleanup action alternatives;

(B) The proposed cleanup level for each hazardous substance within each affected environmental medium at the site, and the basis for the cleanup level; and

(C) Maps, cross-sections, and calculations illustrating the location, estimated amount, and concentration distribution of hazardous substances above the proposed cleanup levels for each affected environmental medium at the site;

(ii) Results of any additional investigations conducted after completing the remedial investigation report;

(iii) Results of any treatability or pilot studies needed to develop or evaluate cleanup action alternatives;

(iv) The cleanup goals identified in Step 1 of the feasibility study;

(v) The cleanup action alternatives identified in Step 2 of the feasibility study. For each alternative, include:

(A) The cleanup action components relied on to clean up each affected environmental medium;

(B) For alternatives relying on a combination of cleanup action components to clean up an environmental medium, the proposed remediation levels and the basis for those levels;

(C) The proposed point of compliance for each hazardous substance within each affected environmental medium at the site, and the basis for any conditional points of compliance (see Part 7 of this chapter);

(D) The location and estimated amount of each hazardous substance to be removed or treated by the alternative and the estimated time frame in which removal or treatment will occur; and

(E) The location, estimated amount, and projected concentration distribution of each hazardous substance remaining above proposed cleanup levels after implementing the alternative;

(vi) The cleanup action alternatives eliminated from further evaluation during the screening process in Step 3 of the feasibility study, and the basis for elimination;

(vii) Documentation of the detailed evaluation process in Step 4 of the feasibility study, including how impacts on vulnerable populations and overburdened communities were considered in the evaluation, and the basis for eliminating any alternative from further evaluation;

(viii) The preferred cleanup action alternative selected in Step 5 of the feasibility study, including:

(A) The basis for selecting the alternative and for any nonconformance to the expectations in WAC 173-340-370;

(B) Any local, state, or federal laws applicable to the alternative, including any known permits or approval conditions (see WAC 173-340-710);

(C) As appropriate, proposed indicator hazardous substances for the alternative (see WAC 173-340-703); and

(D) Sufficient information about the alternative to enable ecology to conduct the evaluations and make the determinations required under chapter 43.21C RCW, the State Environmental Policy Act, and chapter 197-11 WAC, the State Environmental Policy Act Rules;

(ix) Documentation of the proper management and disposal of any waste materials generated as a result of the feasibility study in accordance with applicable state and federal laws; and

(x) Any other information required by ecology.

(1) Purpose. A cleanup action ((selected for a site will)) often ((involve))relies on a combination of cleanup action components((, such as))to remediate an environmental medium. For example, to remediate soil, a cleanup action may rely on treatment of some soil contamination and containment of the remainder. ((Remediation levels are used to identify the concentrations (or other methods of identification) of hazardous substances at which different cleanup action components will be used. (See the definition of remediation level in WAC 173-340-200.) Remediation levels may be used at sites where a combination of cleanup actions components are used to achieve cleanup levels at the point of compliance (see the examples in subsection (3)(a) and (c) of this section). Remediation levels may also be used at sites where the cleanup action involves the containment of soils as provided under WAC 173-340-740 (6)(f) and at sites conducting interim actions (see the examples in subsection (3)(b) and (d) of this section).))The purpose of a remediation level is to specify when the various components are used as part of a cleanup action.

(2) Applicability. Remediation levels must be established as part of a cleanup action if the cleanup action relies on a combination of cleanup action components to remediate an environmental medium.

(5)Relationship to cleanup levels and cleanup standards. Remediation levels are not the same as cleanup levels or cleanup standards.

(a) A cleanup level defines the concentration of a hazardous substance((s)) above which a contaminated environmental medium (((e.g.,))such as soil) must be remediated in some manner (((e.g.,))such as treatment, containment, or institutional controls). A remediation level, on the other hand, defines the concentration (or other method of identification) of a hazardous substance in ((a particular))an environmental medium ((above or below))at which a particular cleanup action component (((e.g.,))such as soil treatment ((or))versus containment) will be used. Remediation levels, by definition, exceed cleanup levels.

(b) Cleanup levels must be established for every site. Remediation levels, on the other hand, ((may not be necessary at a site. Whether remediation levels are necessary depends on the cleanup action selected. For example, remediation levels would not be necessary if the selected cleanup action removes for offsite disposal all soil that exceeds the cleanup level at the applicable points of compliance))must be established only if a cleanup action relies on a combination of cleanup action components to remediate an environmental medium.

((A))(c) Cleanup ((action that uses remediation levels))actions, including those relying on a combination of cleanup action components to remediate an environmental medium, must meet each of the ((minimum)) requirements ((specified)) in WAC 173-340-360, including ((the requirement that all cleanup actions must comply))compliance with cleanup standards. ((Compliance with cleanup standards requires, in part, that cleanup levels are met at the applicable points of compliance. If the))If a remedial action does not comply with cleanup standards, the remedial action is an interim action, not a cleanup action. ((Where a cleanup action involves containment of soils with hazardous substance concentrations exceeding cleanup levels at the point of compliance, the cleanup action may be determined to comply with cleanup standards, provided the requirements specified in WAC 173-340-740 (6)(f) are met.

(3)))(6)Examples. The following examples of cleanup actions that use remediation levels are for illustrative purposes only. All cleanup action alternatives in a feasibility study, including those ((with proposed))using remediation levels, must be evaluated to determine whether they meet each of the ((minimum)) requirements ((specified)) in WAC 173-340-360 (((see WAC 173-340-360 (2)(h)). This evaluation requires, in part, a determination that a more permanent cleanup action is not practicable, based on the disproportionate cost analysis in WAC 173-340-360 (3)(e))).

(a) Example of a site meeting soil cleanup levels at the point of compliance. Assume ((that)) the soil cleanup level for a hazardous substance at a site is 20 ppm. This means any soil exceeding 20 ppm at the applicable point of compliance must be remediated. Further assume ((that)) the cleanup action ((alternative determined to comply with the minimum requirements in WAC 173-340-360 and selected for the site)) consists of ((soil treatment and removal and a remediation level of 100 ppm to define when those two components are used. Under the cleanup standard, any soil that exceeds the 20 ppm cleanup level at the applicable point of compliance must be remediated in some manner. Under the selected cleanup action, any soil that exceeds the 100 ppm remediation level must be removed and treated. Any soil that does not exceed the 100 ppm remediation level, but exceeds the 20 ppm cleanup level, must be removed and landfilled.))treating soil above 100 ppm and removing to an offsite landfill soil between 100 and 20 ppm. In this case, 100 ppm is a remediation level that defines which soil will be treated and which soil will be removed from the site. The cleanup action may be determined to comply with the cleanup standard because the 20 ppm soil cleanup level is met at the applicable point of compliance.

(b) Example of a site not meeting soil cleanup levels at the point of compliance. Assume ((that)) the soil cleanup level for a hazardous substance at a site is 20 ppm. This means any soil exceeding 20 ppm at the applicable point of compliance must be remediated. Further assume ((that)) the cleanup action ((alternative determined to comply with the minimum requirements in WAC 173-340-360 and selected for the site)) consists of ((soil treatment and containment and a remediation level of 100 ppm to define when those two components are used. Under the cleanup standard, any soil that exceeds the 20 ppm cleanup level at the applicable point of compliance must be remediated in some manner. Under the selected cleanup action, any soil that exceeds the 100 ppm remediation level must be treated. Any soil that does not exceed the 100 ppm remediation level, but exceeds the 20 ppm cleanup level, must be contained. Residual contamination above the cleanup level will remain at the site. However, assuming))treating soil above 100 ppm and containing soil between 100 and 20 ppm. The 100 ppm concentration is a remediation level that defines which soil will be treated and which soil will be contained at the site. Even though contamination above the 20 ppm cleanup level remains at the site, if the cleanup action meets the requirements specified in WAC 173-340-740 (6)(f) for soil containment actions, the cleanup action may be determined to comply with cleanup standards.

(c) Example of site meeting groundwater cleanup levels at the point of compliance. Assume ((that)) the groundwater cleanup level for a hazardous substance at a site is 500 ug/l and ((that)) a conditional point of compliance is established at the property boundary. This means any groundwater exceeding 500 ug/l at the point of compliance must be remediated. Further assume ((that)) the cleanup action ((alternative determined to comply with the minimum requirements in WAC 173-340-360 and selected for the site)) consists of: Removing the source of the groundwater contamination (((e.g., removal of))such as removing a leaking tank and associated soil contamination above the water table); extracting free product and any groundwater exceeding a concentration of 2,000 ug/l; and utilizing natural attenuation to restore the groundwater to 500 ug/l before it arrives at the property boundary. The ((groundwater concentration of)) 2,000 ug/l ((constitutes))concentration is a remediation level ((because it))that defines ((the concentration of a hazardous substance at which different cleanup action components are used))which groundwater will be actively treated and which groundwater will be naturally attenuated at the site. As long as the groundwater meets the 500 ug/l cleanup level at the conditional point of compliance (((the property boundary))), the cleanup action may be determined to comply with cleanup standards.

(d) Example of a site not meeting groundwater cleanup levels at the point of compliance. Assume ((that)) the groundwater cleanup level at a site is 5 ug/l and ((that)) a conditional point of compliance is established at the property boundary. This means any groundwater exceeding 5 ug/l at the point of compliance must be remediated. Further assume ((that)) the remedial action selected for the site consists of: Vapor extraction of the soil to nondetectable concentrations (to prevent further groundwater contamination); extraction and treatment of groundwater with concentrations in excess of 100 ug/l; and installation of an air stripping system to treat groundwater at a water supply well beyond the property boundary to less than 5 ug/l. Further assume ((that)) the groundwater cleanup level will not be met at the conditional point of compliance (the property boundary). The ((groundwater)) concentration of 100 ug/l ((constitutes))is a remediation level ((because it))that defines ((the concentration of a hazardous substance at which different cleanup action components are used. However, in this example, the remedial action does not constitute a cleanup action because it does not comply with cleanup standards, one of the minimum requirements for cleanup actions in WAC 173-340-360. Consequently,))which groundwater will be treated on site. In this example, the remedial action is ((considered)) an interim action ((until)), not a cleanup action, because it does not comply with cleanup standards (that is, it does not achieve the 5 ug/l cleanup level ((is attained)) at the conditional point of compliance (((the property boundary))).

(((4) General requirements. Potential remediation levels may be developed as part of the cleanup action alternatives to be considered during the feasibility study (see WAC 173-340-350 (8)(c)(i)(D)). These potential remediation levels may be defined as either a concentration or other method of identification of a hazardous substance. Other methods of identification include physical appearance or location (e.g., all of the green sludge will be removed from the northern area of the site). Quantitative or qualitative methods may be used to develop these potential remediation levels. These methods may include a human health risk assessment or an ecological risk assessment. These methods may also consider fate and transport issues. These methods may be simple or complex, as appropriate to the site. Where a quantitative risk assessment is used, see WAC 173-340-357. All cleanup action alternatives in a feasibility study, including those with proposed remediation levels, must still be evaluated to determine whether they meet each of the minimum requirements specified in WAC 173-340-360 (see WAC 173-340-360 (2)(h)).))

(1) Purpose.A cleanup action must protect human health and the environment, including vulnerable populations and overburdened communities (see WAC 173-340-360 (3)(a)(i)). A quantitative site-specific risk assessment may be conducted to help determine whether cleanup action alternatives, including those ((using a remediation level,))relying on engineered ((control and/or))or institutional ((control, are protective of))controls to limit exposure to contamination remaining at a site, protect human health and the environment. ((If a quantitative site-specific risk assessment is used, then other considerations may also be needed in evaluating the protectiveness of the overall cleanup action. Methods other than a quantitative site-specific risk assessment))Other methods may ((also)) be used in addition to, or instead of, a quantitative site-specific risk assessment to determine ((if))whether a cleanup action alternative is protective ((of human health and the environment.

(2) Relationship to selection of cleanup actions. Selecting a cleanup action requires a determination that each of the requirements specified in WAC 173-340-360 is met, including the requirement that the cleanup action is protective of human health and the environment. A quantitative risk assessment conducted under this section may be used to help determine whether a particular cleanup action alternative meets this requirement. A determination that a cleanup action alternative evaluated is protective of human health and the environment does not mean that the other minimum requirements specified in WAC 173-340-360 have been met)).

(((3) Protection of))(2) Human health risk assessment. A quantitative site-specific human health risk assessment may be conducted to help determine whether cleanup action alternatives, including those ((using a remediation level,))relying on engineered ((control and/or))or institutional ((control, are protective of))controls to limit exposure, protect human health. ((For the purpose of this assessment, the default assumptions in the standard Method B and C equations in WAC 173-340-720 through 173-340-750 may be modified as provided for under modified Method B and C. In addition to those modifications, adjustments to the reasonable maximum exposure scenario or default exposure assumptions may also be made. See WAC 173-340-708 (3)(d) and (10)(b).))This subsection defines the framework for assessing cleanup action alternatives relying on engineered or institutional controls to limit exposure. References to Method C in this subsection apply to ((a))an environmental medium only if the ((particular)) medium ((the))for which a remediation level is being established ((for)) qualifies for a Method C cleanup level under WAC 173-340-706.

(a) Reasonable maximum exposure. Standard reasonable maximum exposures and corresponding Method B and C equations in WAC 173-340-720 through 173-340-750 may be modified as provided under WAC 173-340-708 (3)(d). For example, land uses other than residential and industrial may be used as the basis for an alternative reasonable maximum exposure scenario for the purpose of assessing the protectiveness of a cleanup action alternative that ((uses a remediation level,))relies on engineered ((control, and/or))or institutional controls (such as containment) to limit exposure to contaminated soil.

(b) Exposure parameters. Exposure parameters for the standard Method B and C equations in WAC 173-340-720 through 173-340-750 may be modified as provided in WAC 173-340-708(10).

(c) Acceptable risk level. The acceptable risk level ((for))used to establish a remediation ((levels shall))level for a hazardous substance must be the same as that used ((for))to establish the cleanup level for the substance.

(d) Soil to groundwater pathway. The methods specified in WAC 173-340-747 to develop soil concentrations that are protective of groundwater beneficial uses may also be used ((during remedy selection)) to help assess ((the protectiveness to human health of))whether a cleanup action alternative that ((uses a remediation level,))relies on engineered ((control, and/or))or institutional controls (such as containment) will protect groundwater.

(e) Burden of proof, new science, and quality of information. Any modification of the default assumptions in the standard Method B and C equations, including modification of the standard reasonable maximum exposures and exposure parameters, or any modification of default assumptions or methods specified in WAC 173-340-747 requires compliance with WAC 173-340-702 (14), (15) and (16).

(f) Commercial gas station scenario.At active commercial gas stations, where there are retail sales of gasoline or diesel, one of the following may be done to demonstrate when a cap is protective of the soil ingestion and dermal pathways:

(i) ((At active commercial gas stations, where there are retail sales of gasoline and/or diesel,)) Equations 740-3 and 740-5 may be ((used with))modified by reducing the exposure frequency ((reduced)) to 0.25 ((to demonstrate when a cap is protective of the soil ingestion and dermal pathways)). This ((scenario))exposure frequency is intended to be a conservative estimate of a child trespasser scenario at a commercial gas station where contaminated soil has been excavated and stockpiled or soil is otherwise accessible. ((Sites using remediation levels))To rely on this exposure frequency:

(A) The cleanup action must ((also use))include institutional controls ((to))that prevent uses that could result in a higher level of exposure; and ((assess the protectiveness for))

(B) Other exposure pathways (e.g., soil vapors and soil to groundwater)((.))must be assessed to determine whether they are protective; or

(ii) Equations 740-3 and 740-5 may ((also)) be modified on a site-specific basis as described in WAC 173-340-740 (3)(c).

(((4) Protection of the environment.))(3) Ecological risk assessment. A quantitative site-specific ecological risk assessment may be ((conducted))used to help determine whether cleanup action alternatives, including those ((using a remediation level,))relying on engineered ((control and/or))or institutional controls to limit exposure, ((are protective of))protect the environment.

(1) Purpose.

This section ((describes the minimum requirements and procedures for selecting cleanup actions. This section is intended to be used in conjunction with the administrative principles for the overall cleanup process in WAC 173-340-130; the requirements and procedures in WAC 173-340-350 through 173-340-357 and WAC 173-340-370 through 173-340-390; and the cleanup standards defined in WAC 173-340-700 through 173-340-760.

(2) Minimum requirements for cleanup actions. All))specifies requirements for cleanup actions and the procedures for determining whether a cleanup action alternative meets those requirements.

(3) Requirements. A cleanup ((actions shall))action must meet all of the ((following)) requirements in this subsection. ((Because))When a cleanup ((actions will often involve the use of several))action includes more than one cleanup action ((components at a single site))component, the overall cleanup action ((shall))must meet the requirements ((of this section. The department))in this subsection. Ecology recognizes that some of the requirements contain flexibility and ((will)) require the use of professional judgment in determining how to apply them at a particular ((sites))site.

(((a) Threshold requirements. The cleanup action shall:

(vii) Consideration of public concerns. Whether the community has concerns regarding the alternative and, if so, the extent to which the alternative addresses those concerns. This process includes concerns from individuals, community groups, local governments, tribes, federal and state agencies, or any other organization that may have an interest in or knowledge of the site.))

(4) Determining whether a cleanup action provides for a reasonable restoration time frame.

(a) Purpose.The restoration time frame is the period of time needed for a cleanup action to achieve cleanup levels at the point of compliance (see WAC 173-340-200). This subsection ((describes))specifies the requirements and procedures for determining whether a cleanup action alternative provides for a reasonable restoration time frame, as required under subsection (((2)(b)(ii)))(3)(a)(ix) of this section. ((A determination that a cleanup action meets this one requirement does not mean that the other minimum requirements specified in subsection (2) of this section have been met. To select a cleanup action for a site, a cleanup action must meet each of the minimum requirements specified in subsection (2) of this section.))

(b) ((Factors.))Applicability.

(c) Evaluation. To determine whether a cleanup action alternative provides for a reasonable restoration time frame, the following factors ((to))must be considered ((include the following))at a minimum:

(i) Potential risks posed by the site to human health and the environment, including vulnerable populations and overburdened communities;

(ii) Practicability of achieving a shorter restoration time frame. A restoration time frame is not reasonable if an active remedial measure with a shorter restoration time frame is practicable;

(iii) Long-term effectiveness of the alternative. A longer restoration time frame may be reasonable if the alternative has a greater degree of long-term effectiveness than one that primarily relies on on-site or offsite disposal, isolation, or containment;

(iv) Current use of the site, surrounding areas, and associated resources that are, or may be, affected by releases from the site;

(((iv)))(v) Potential future use of the site, surrounding areas, and associated resources that are, or may be, affected by releases from the site;

(((v)))(vi) Availability of alternative water supplies;

(((vi)))(vii) Likely effectiveness and reliability of institutional controls;

(((vii)))(viii) Ability to control and monitor migration of hazardous substances from the site;

(((viii)))(ix) Toxicity of the hazardous substances at the site; ((and

(ix)))(x) Natural processes that reduce concentrations of hazardous substances and have been documented to occur at the site or under similar site conditions((.

(c) A longer period of time may be used for the restoration time frame for a site to achieve cleanup levels at the point of compliance if the cleanup action selected has a greater degree of long-term effectiveness than on-site or offsite disposal, isolation, or containment options)); and

(xi) For ecology-conducted or ecology-supervised remedial actions, public concerns identified under WAC 173-340-600 (13) and (14) and Indian tribes' rights and interests identified under WAC 173-340-620.

(d) ((When))Cleanup levels below area background concentrations. At sites where area background concentrations (((see)), as defined in WAC 173-340-200 ((for definition))), would result in recontamination of the site to levels that exceed cleanup levels((, that portion of the cleanup action which addresses cleanup)):

(ii) Cleaning up the site below area background concentrations may be delayed until the offsite sources of hazardous substances are controlled((. In these cases)); and

(iii) The remedial action ((shall be considered))is an interim action until cleanup levels are attained.

(e) Cleanup levels below technically possible concentrations. At sites where cleanup levels determined under Method C in WAC 173-340-706 are below concentrations that are technically possible ((concentrations,))to achieve:

(i) The remedial action must achieve concentrations that are technically possible to achieve ((shall be met)) within a reasonable restoration time frame ((considering the factors in subsection (b) of this section. In these cases)), as determined under (c) of this subsection; and

(ii) The remedial action ((shall be considered))is an interim action until cleanup levels are attained.

(((f) Extending the restoration time frame shall not be used as a substitute for active remedial measures, when such actions are practicable.))

((The department has the following expectations for the development of cleanup action alternatives under WAC 173-340-350 and the selection of cleanup actions under WAC 173-340-360. These expectations represent the types of cleanup actions the department considers likely results of the remedy selection process described in WAC 173-340-350 through 173-340-360; however, the department recognizes that there may be some sites where cleanup actions conforming to these expectations are not appropriate. Also, selecting a cleanup action that meets these expectations shall not be used as a substitute for selecting a cleanup action under the remedy selection process described in WAC 173-340-350 through 173-340-360.))Ecology has the following expectations for cleanup actions. The expectations represent the likely results of the cleanup action selection process described in WAC 173-340-350 through 173-340-390. Ecology recognizes that conformance with the expectations may not be appropriate at some sites. Selecting a cleanup action conforming to the expectations is not a substitute for conducting a feasibility study. The expectations must be considered when evaluating cleanup action alternatives in the feasibility study. Any nonconformance of the preferred cleanup action alternative to the expectations must be documented and explained in the feasibility study report.

(1) ((The department))Ecology expects that treatment technologies will be emphasized at sites containing liquid wastes, areas contaminated with high concentrations of hazardous substances, highly mobile materials, and/or discrete areas of hazardous substances that lend themselves to treatment.

(2) To minimize the need for long-term management of contaminated materials, ((the department))ecology expects that all hazardous substances will be destroyed, detoxified, and/or removed to concentrations below cleanup levels throughout sites containing small volumes of hazardous substances.

(3) ((The department))Ecology recognizes the need to use engineering controls, such as containment, for sites or portions of sites that contain large volumes of materials with relatively low levels of hazardous substances where treatment is impracticable.

(4) ((In order to))To minimize the potential for migration of hazardous substances, ((the department))ecology expects that active measures will be taken to prevent precipitation and subsequent runoff from coming into contact with contaminated soils and waste materials. When such measures are impracticable, such as during active cleanup, ((the department))ecology expects that site runoff will be contained and treated prior to release from the site.

(5) ((The department))Ecology expects that when hazardous substances remain on-site at concentrations ((which exceed))exceeding cleanup levels, those hazardous substances will be consolidated to the maximum extent practicable where needed to minimize the potential for direct contact and migration of hazardous substances((;)).

(6) ((The department))Ecology expects that((, for facilities adjacent to a surface water body,)) active measures will be taken to prevent/minimize releases to surface water or sediment via surface runoff and groundwater discharges in excess of cleanup levels. ((The department))Ecology expects that dilution will not be the sole method for demonstrating compliance with cleanup standards in these instances.

(7) ((The department))Ecology expects that natural attenuation of hazardous substances may be appropriate at sites where:

(a) Source control (including removal and/or treatment of hazardous substances) has been conducted to the maximum extent practicable;

(b) Leaving contaminants on-site during the restoration time frame does not pose an unacceptable threat to human health or the environment;

(c) There is evidence that natural biodegradation or chemical degradation is occurring and will continue to occur at a reasonable rate at the site; and

(d) Appropriate monitoring requirements are conducted to ensure that the natural attenuation process is taking place and that human health and the environment are protected.

(8) ((The department))Ecology expects that cleanup actions conducted under this chapter will not result in a significantly greater ((overall))long-term threat to human health and the environment from hazardous substances, either at the site being cleaned up or at another site involved with the cleanup action, than other cleanup action alternatives.

(1) ((Draft))Purpose. The purpose of a cleanup action plan is to document the selected cleanup action and to specify the cleanup standards and other requirements the cleanup action must meet.

(5) Content of cleanup action plan.((The department shall issue a draft cleanup action plan for a cleanup action to be conducted by the department or by a potentially liable person under an order or decree. The))A cleanup action plan must include the following information and provide a level of detail ((in the draft cleanup action plan shall be)) commensurate with the complexity of the site and ((proposed)) cleanup action((.

(i))):

(a) A general description of the ((proposed)) cleanup action ((developed))selected in accordance with WAC 173-340-350 through 173-340-390((.

(ii))), including any model remedy;

(b) A summary of the rationale for selecting the ((proposed alternative.

(iii)))cleanup action, including any model remedy;

(d) A brief summary of the other cleanup action alternatives evaluated in the remedial investigation/feasibility study((.

(iv)));

(e) Cleanup standards and, where applicable, remediation levels, for each hazardous substance and for each environmental medium of concern at the site((.

(v)));

(g) The schedule for ((implementation of))implementing the cleanup action plan including, if known, the restoration time frame((.

(vi)));

(h) Any institutional controls((, if any,)) required as part of the ((proposed)) cleanup action((.

(vii)));

(i) Any applicable state and federal laws((, if any,)) for the ((proposed)) cleanup action((, when these are)) known at this step in the cleanup process ((()). This does not preclude subsequent identification of applicable state and federal laws(().

(viii)));

(j) A preliminary determination by ((the department))ecology that the ((proposed)) cleanup action will comply with WAC 173-340-360((.

(ix) Where)); and

(k) If the cleanup action involves on-site containment, specification of the types, ((levels))concentrations, and amounts of hazardous substances remaining on site and the measures that will be used to prevent migration of and ((contact with those))exposure to the substances.

(((b) For routine actions the department may use an order or decree to fulfill the requirements of a cleanup action plan, provided that the information in (a) of this subsection is included in an order or decree. The scope of detail for the required information shall be commensurate with the complexity of the site and proposed cleanup action.

(4) Federal cleanup))(6) National priorities list sites. For ((federal cleanup)) sites on the national priorities list, ecology may use a record of decision or an order or consent decree prepared under the federal cleanup law ((may be used by the department)) to meet the requirements of this section, provided that:

(a) The cleanup action meets the requirements ((under))in WAC 173-340-360;

(b) The state ((has concurred))concurs with the cleanup action; and

(c) ((An opportunity))The public was provided ((for the public))an opportunity to comment on the cleanup action.

(1) Purpose. The purpose of model remedies is to streamline and accelerate the selection of a cleanup ((actions that protect human health and the environment, with a preference for permanent solutions to the maximum extent practicable))action for routine types of cleanup projects at sites with common features and lower risk to human health and the environment.

(2) Development of model remedies.((The department may, from time to time, identify))Ecology may establish model remedies for common categories of ((facilities))sites, types of ((contamination))hazardous substances, types of media, and geographic areas. ((In identifying a model remedy, the department shall identify the circumstances for which application of the model remedy meets the requirements under WAC 173-340-360. The department shall provide an opportunity for the public to review and comment on any proposed model remedies.

(4) Public notice and participation. Where a model remedy is proposed as the cleanup action or as a portion of the cleanup action, the cleanup action plan is still subject to the same public notice and participation requirements in this chapter as any other cleanup action.))When establishing a model remedy, ecology will:

PART ((IV))4 - SITE CLEANUP AND MONITORING

(1) Purpose. Unless otherwise directed by the department, cleanup actions shall comply with this section except for emergencies or interim actions. The purpose of this section is to ensure that the cleanup action is designed, constructed, and operated in a manner that is consistent with:

(a) The cleanup action plan;

(b) Accepted engineering practices; and

(c) The requirements specified in WAC 173-340-360.

(2) Administrative options. A cleanup action may be conducted under any of the ((procedures))administrative options for remedial action described in WAC 173-340-510 ((and 173-340-515)).

(3) Public participation. During cleanup action implementation, public participation shall be accomplished in a manner consistent with the requirements of WAC 173-340-600.

(4) Plans describing the cleanup action. Design, construction, and operation of the cleanup action shall be consistent with the purposes of this section and shall consider relevant information provided by the remedial investigation/feasibility study. For most cleanups, to ensure this is done it will be necessary to prepare the engineering documents described in this section. The scope and level of detail in these documents may vary from site to site depending on the site-specific conditions and nature and complexity of the proposed cleanup action. In many cases, such as routine cleanups and cleanups at leaking underground storage tanks, it is appropriate to combine the information in these various documents into one report to avoid unnecessary duplication. Where the information is contained in other documents it may be appropriate to incorporate those documents by reference to avoid duplication. Any document prepared in order to implement a cleanup may be used to satisfy these requirements provided they contain the required information. In addition, for facilities on the national priorities list the plans prepared for the cleanup action shall also comply with federal requirements.

(a) Engineering design report. The engineering design report shall include sufficient information for the development and review of construction plans and specifications. It shall document engineering concepts and design criteria used for design of the cleanup action. The following information shall be included in the engineering design report, as appropriate:

(i) Goals of the cleanup action including specific cleanup or performance requirements;

(ii) General information on the facility including a summary of information in the remedial investigation/feasibility study updated as necessary to reflect the current conditions;

(iii) Identification of who will own, operate, and maintain the cleanup action during and following construction;

(iv) Facility maps showing existing site conditions and proposed location of the cleanup action;

(v) Characteristics, quantity, and location of materials to be treated or otherwise managed, including groundwater containing hazardous substances;

(vi) A schedule for final design and construction;

(vii) A description and conceptual plan of the actions, treatment units, facilities, and processes required to implement the cleanup action including flow diagrams;

(viii) Engineering justification for design and operation parameters, including:

(A) Design criteria, assumptions and calculations for all components of the cleanup action;

(B) Expected treatment, destruction, immobilization, or containment efficiencies and documentation on how that degree of effectiveness is determined; and

(C) Demonstration that the cleanup action will achieve compliance with cleanup requirements by citing pilot or treatability test data, results from similar operations, or scientific evidence from the literature;

(ix) Design features for control of hazardous materials spills and accidental discharges (for example, containment structures, leak detection devices, run-on and runoff controls);

(x) Design features to assure long-term safety of workers and local residences (for example, hazardous substances monitoring devices, pressure valves, bypass systems, safety cutoffs);

(xi) A discussion of methods for management or disposal of any treatment residual and other waste materials containing hazardous substances generated as a result of the cleanup action;

(xii) Facility specific characteristics that may affect design, construction, or operation of the selected cleanup action, including:

(A) Relationship of the proposed cleanup action to existing facility operations;

(B) Probability of flooding, probability of seismic activity, temperature extremes, local planning and development issues; and

(C) Soil characteristics and groundwater system characteristics;

(xiii) A general description of construction testing that will be used to demonstrate adequate quality control;

(xiv) A general description of compliance monitoring that will be performed during and after construction to meet the requirements of WAC 173-340-410;

(xv) A general description of construction procedures proposed to assure that the safety and health requirements of WAC 173-340-810 are met;

(xvi) Any information not provided in the remedial investigation/feasibility study needed to fulfill the applicable requirements of the State Environmental Policy Act (chapter 43.21C RCW);

(xvii) Any additional information needed to address the applicable state, federal and local requirements including the substantive requirements for any exempted permits; and property access issues which need to be resolved to implement the cleanup action;

(xviii) For sites requiring financial assurance and where not already incorporated into the order or decree or other previously submitted document, preliminary cost calculations and financial information describing the basis for the amount and form of financial assurance and, a draft financial assurance document;

(xix) For sites using institutional controls as part of the cleanup action and where not already incorporated into the order or decree or other previously submitted documents, copies of draft restrictive covenants and/or other draft documents establishing these institutional controls; and

(xx) Other information as required by the department.

(b) Construction plans and specifications. Construction plans and specifications shall detail the cleanup actions to be performed. The plans and specifications shall be prepared in conformance with currently accepted engineering practices and techniques and shall include the following information as applicable:

(i) A general description of the work to be performed and a summary of the engineering design criteria from the engineering design report;

(ii) General location map and existing facility conditions map;

(iii) A copy of any permits and approvals;

(iv) Detailed plans, procedures and material specifications necessary for construction of the cleanup action;

(v) Specific quality control tests to be performed to document the construction, including specifications for the testing or reference to specific testing methods, frequency of testing, acceptable results, and other documentation methods;

(vi) Startup procedures and criteria to demonstrate the cleanup action is prepared for routine operation;

(vii) Additional information to address applicable state, federal, and local requirements including the substantive requirements for any exempted permits;

(viii) A compliance monitoring plan prepared under WAC 173-340-410 describing monitoring to be performed during construction, and a sampling and analysis plan meeting the requirements of WAC 173-340-820;

(ix) Provisions to assure safety and health requirements of WAC 173-340-810 are met; ((and))

(x) An inadvertent discovery plan meeting the requirements in WAC 173-340-815; and

(xi) Other information as required by the department.

(c) Operation and maintenance plan. An operation and maintenance plan that presents technical guidance and regulatory requirements to assure effective operations under both normal and emergency conditions. The operation and maintenance plan shall include the following elements, as appropriate:

(i) Name and phone number of the responsible individuals;

(ii) Process description and operating principles;

(iii) Design criteria and operating parameters and limits;

(iv) General operating procedures, including startup, normal operations, operation at less than design loading, shutdown, and emergency or contingency procedures;

(v) A discussion of the detailed operation of individual treatment units, including a description of various controls, recommended operating parameters, safety features, and any other relevant information;

(vi) Procedures and sample forms for collection and management of operating and maintenance records;

(vii) Spare part inventory, addresses of suppliers of spare parts, equipment warranties, and appropriate equipment catalogues;

(viii) Equipment maintenance schedules incorporating manufacturers recommendations;

(ix) Contingency procedures for spills, releases, and personnel accidents;

(x) A compliance monitoring plan prepared under WAC 173-340-410 describing monitoring to be performed during operation and maintenance, and a sampling and analysis plan meeting the requirements of WAC 173-340-820;

(xi) Description of procedures which ensure that the safety and health requirements of WAC 173-340-810 are met, including specification of contaminant action levels and contingency plans, as appropriate;

(xii) An inadvertent discovery plan meeting the requirements in WAC 173-340-815;

(xiii) Procedures for the maintenance of the facility after completion of the cleanup action, including provisions for removal of unneeded appurtenances, and the maintenance of covers, caps, containment structures, and monitoring devices; and

(((xiii)))(xiv) Other information as required by the department.

(5) Permits. Permits and approvals and any substantive requirements for exempted permits, if required for construction or to otherwise implement the cleanup action, shall be identified and where possible, resolved before, or during, the design phase to avoid delays during construction and implementation of the cleanup action.

(6) Construction. Construction of the cleanup action shall be conducted in accordance with the construction plans and specifications, and other plans prepared under this section.

(a) Department inspections.

(i) The department may perform site inspections and construction oversight. The department may require that construction activities be halted at a site if construction or any supporting activities are not consistent with approved plans; are not in compliance with environmental regulations or accepted construction procedures; or endanger human health or the environment.

(ii) The department may conduct a formal inspection of the site following construction and an initial operational shake down period to ensure satisfactory completion of the construction. If such an inspection is performed, the construction documentation report and engineer's opinion specified in (b)(ii) of this subsection shall be available before the inspection.

(b) Construction documentation.

(i) Except as provided for in (b)(iii) of this subsection, all aspects of construction shall be performed under the oversight of a professional engineer registered in the state of Washington or a qualified technician under the direct supervision of a professional engineer registered in the state of Washington or as otherwise provided for in RCW 18.43.130. During construction, detailed records shall be kept of all aspects of the work performed including construction techniques and materials used, items installed, and tests and measurements performed.

(ii) As built reports. At the completion of construction the engineer responsible for the oversight of construction shall prepare as built drawings and a report documenting all aspects of facility construction. The report shall also contain an opinion from the engineer, based on testing results and inspections, as to whether the cleanup action has been constructed in substantial compliance with the plans and specifications and related documents.

(iii) For leaking underground storage tanks, the construction oversight and documentation report may be conducted by an underground storage tank provider certified under chapter ((173-360))173-360A WAC. Removal of above ground abandoned drums, tanks and similar above ground containers and associated minor soil contamination may be overseen and documented by an experienced environmental professional. In other appropriate cases the department may authorize departure from the requirements of this subsection.

(c) Financial assurance and institutional control documentation. As part of the as-built documentation for the site cleanup, where the following information has not already been submitted under an order or decree or as part of another previously submitted document, the following information shall be included in the as-built report:

(i) For sites requiring financial assurance, a copy of the financial assurance document and any procedures for periodic adjustment to the value of the financial assurance mechanism;

(ii) For sites using institutional controls as part of the cleanup action, copies of recorded deed restrictions (with proof of recording) and other documents establishing these institutional controls.

(d) Plan modifications. Changes in the design or construction of the cleanup action performed under an order or decree shall be approved by the department.

(7) ((Opportunity for public comment. If the department determines that any plans prepared under this section represent a substantial change from the cleanup action plan, the department shall provide public notice and opportunity for comment under WAC 173-340-600.))Public participation.

(8) Plans and reports. Plans or reports prepared under this section and under an order or decree shall be submitted to the department for review and approval. For independent remedial actions, the plans and reports shall be submitted as required under WAC 173-340-515.

(9) Requirements for managing waste generated by site cleanup. Any waste contaminated by a hazardous substance generated during cleanup activities and requiring offsite treatment, storage or disposal, shall be transported to a facility permitted or approved to handle these wastes.

(1) Purpose. There are three types of compliance monitoring: Protection, performance, and ((confirmational))confirmation monitoring. The purposes of these three types of compliance monitoring and evaluation of the data are to:

(a) Protection monitoring. Confirm that human health and the environment are adequately protected during construction and the operation and maintenance period of an interim action or cleanup action as described in the health and safety ((and health)) plan;

(b) Performance monitoring. Confirm that the interim action or cleanup action has attained cleanup standards and, if appropriate, remediation levels or other performance standards such as construction quality control measurements or monitoring necessary to demonstrate compliance with a permit or, where a permit exemption applies, the substantive requirements of other laws;

(c) ((Confirmational))Confirmation monitoring. Confirm the long-term effectiveness of the interim action or cleanup action once cleanup standards and, if appropriate, remediation levels or other performance standards have been attained.

(2) General requirements. Compliance monitoring shall be required for all cleanup actions, and may be required for interim and emergency actions conducted under this chapter. Unless otherwise directed by the department, a compliance monitoring plan shall be prepared.

Plans prepared under this section and under an order or decree shall be submitted to the department for review and approval. Protection monitoring may be addressed in the health and safety ((and health)) plan. Performance and ((confirmational))confirmation monitoring may be addressed in separate plans or may be combined with other plans or submittals, such as those in WAC 173-340-400 and 173-340-820.

(3) Contents of a monitoring plan. Compliance monitoring plans may include monitoring for chemical constituents, biological testing, and physical parameters as appropriate for the site. Where the cleanup action includes engineered controls or institutional controls, the monitoring may need to include not only measurements but also documentation of observations on the performance of these controls. Long-term monitoring shall be required if on-site disposal, isolation, or containment is the selected cleanup action for a site or a portion of a site. Such measures shall be required until residual hazardous substance concentrations no longer exceed site cleanup levels established under ((WAC 173-340-700 through 173-340-760))Part 7 of this chapter. Compliance monitoring plans shall be specific for the media being tested and shall contain the following elements:

(a) A sampling and analysis plan meeting the requirements of WAC 173-340-820 which shall explain in the statement of objectives how the purposes of subsection (1) of this section are met;

(b) Data analysis and evaluation procedures used, to demonstrate and confirm compliance and justification for these procedures, including:

(i) A description of any statistical method to be employed; or

(ii) If sufficient data is not available before writing the plan to propose a reliable statistical method to demonstrate and confirm compliance, a contingency plan proposing one or more reliable statistical methods to demonstrate and confirm compliance, and the conditions under which the methods would be used at the facility; and

(c) Other information as required by the department.

(1) Purpose. A periodic review consists of a review by the department of post-cleanup site conditions and monitoring data to assure that human health and the environment are being protected.

(2) Applicability. The department shall conduct periodic reviews of a site whenever the department conducts a cleanup action; whenever the department approves a cleanup action under an order, agreed order or consent decree; or, as resources permit, whenever the department issues a no further action opinion; and one of the following conditions exists, at the site:

(a) Where an institutional control and/or financial assurance is required as part of the cleanup action;

(b) Where the cleanup level is based on a practical quantitation limit as provided for under WAC 173-340-707; and

(c) Where, in the department's judgment, modifications to the default equations or assumptions using site-specific information would significantly increase the concentration of hazardous substances remaining at the site after cleanup or the uncertainty in the ecological evaluation or the reliability of the cleanup action is such that additional review is necessary to assure long-term protection of human health and the environment.

(3) General requirements. If a periodic review is required under subsection (2) of this section, a review shall be conducted by the department at least every five years after the initiation of a cleanup action. The department may require potentially liable persons to submit information required by the department to conduct a periodic review.

(4) Review criteria. When evaluating whether human health and the environment are being protected, the factors the department shall consider include:

(a) The effectiveness of ongoing or completed cleanup actions, including the effectiveness of engineered controls and institutional controls in limiting exposure to hazardous substances remaining at the site;

(b) New scientific information for individual hazardous substances or mixtures present at the site;

(c) New applicable state and federal laws for hazardous substances present at the site;

(d) Current and projected site and resource uses;

(e) The availability and practicability of more permanent remedies; and

(f) The availability of improved analytical techniques to evaluate compliance with cleanup levels.

(5) ((Notice and public comment. The department shall publish a notice of all periodic reviews in the Site Register and provide an opportunity for public comment. The department shall also notify all potentially liable persons known to the department of the results of the periodic review.))Public participation or notification.

(6) Determination of whether amendment of the cleanup action plan required.For an ecology-conducted or an ecology-supervised remedial action, when the department determines that substantial changes in the cleanup action are necessary to protect human health and the environment at the site, a revised cleanup action plan shall be prepared. The department shall provide ((opportunities for public review and comment on))or require public notice of the draft cleanup action plan in accordance with WAC 173-340-380 and 173-340-600(14).

(7) Determination of whether future periodic reviews required. In conducting a periodic review under this section, the department shall determine whether additional reviews are necessary, taking into consideration the factors in subsection (4) of this section. Sites with institutional controls shall remain subject to periodic reviews as long as the institutional controls are required under this chapter.

(1) Purpose. An interim action is distinguished from a cleanup action in that an interim action only partially addresses the cleanup of a site. (Note: An interim action may constitute the cleanup action for a site if the interim action is subsequently shown to comply with WAC 173-340-350 through 173-340-390.) An interim action is:

(a) A remedial action that is technically necessary to reduce a threat to human health or the environment by eliminating or substantially reducing one or more pathways for exposure to a hazardous substance at a facility;

(b) A remedial action that corrects a problem that may become substantially worse or cost substantially more to address if the remedial action is delayed; or

(c) A remedial action needed to provide for completion of a site hazard assessment, remedial investigation/feasibility study or design of a cleanup action.

Example. A site is identified where oil-based wood preservative has leaked from a tank and is puddled on the ground and is floating on the water table. Runoff from adjacent properties passes through the site. Neighborhood children have been seen on the site. In this case, several interim actions would be appropriate before fully defining the extent of the distribution of hazardous substances at the site and selecting a cleanup action. These interim actions might consist of removing the tank, fencing the site, rerouting runoff, and removing the product puddled on the ground and floating on the water table. Further studies would then determine what additional soil and groundwater cleanup would be needed.

(2) General requirements.

Interim actions may:

(a) Achieve cleanup standards for a portion of the site;

(b) Provide a partial cleanup, that is, clean up hazardous substances from all or part of the site, but not achieve cleanup standards; or

(c) Provide a partial cleanup of hazardous substances and not achieve cleanup standards, but provide information on how to achieve cleanup standards for a cleanup. For example, demonstration of an unproven cleanup technology.

(3) Relationship to the cleanup action.

(a) If the cleanup action is known, the interim action shall be consistent with the cleanup action.

(b) If the cleanup action is not known, the interim action shall not foreclose reasonable alternatives for the cleanup action. This is not meant to preclude the destruction or removal of hazardous substances.

(4) Timing.

(a) Interim actions may occur anytime during the cleanup process. Interim actions shall not be used to delay or supplant the cleanup process. An interim action may be done before or in conjunction with a site hazard assessment and hazard ranking. However, sufficient technical information must be available regarding the facility to ensure the interim action is appropriate and warranted.

(b) Interim actions shall be followed by additional remedial actions unless compliance with cleanup standards has been confirmed at the site.

(c) The department shall set appropriate deadlines commensurate with the actions taken for completion of the interim action.

(5) Administrative options. Interim cleanup actions may be conducted under any of the ((procedures))administrative options for remedial action described in WAC 173-340-510 ((and 173-340-515)).

(6) Public participation or notification.((Public participation will be accomplished in a manner consistent with WAC 173-340-600.))

(7) Submittal requirements. Unless otherwise directed by the department and except for independent remedial actions, emergency remedial actions, and underground storage tank releases being addressed under WAC 173-340-450, a report shall be prepared before conducting an interim action. Reports prepared under an order or decree shall be submitted to the department for review and approval. Reports for independent remedial actions shall be submitted as required by WAC 173-340-515. Reports shall be of a scope and detail commensurate with the work performed and site-specific characteristics, and shall include, as appropriate:

(a) A description of the interim action and how it will meet the criteria identified in subsections (1), (2) and (3) of this section;

(b) Information from the applicable subsections of the remedial investigation/feasibility study of WAC 173-340-350 and 173-340-351, including at a minimum:

(i) A description of existing site conditions and a summary of all available data related to the interim action; and

(ii) Alternative interim actions considered and an explanation why the proposed alternative was selected;

(c) Information from the applicable subsections of the design and construction requirements of WAC 173-340-400; and

(d) A compliance monitoring plan meeting the applicable requirements of WAC 173-340-410;

(e) A ((safety and)) health and safety plan meeting the requirements of WAC 173-340-810; ((and))

(f) An inadvertent discovery plan meeting the requirements in WAC 173-340-815; and

(g) A sampling and analysis plan meeting the requirements of WAC 173-340-820.

(8) Construction. Construction of the interim action shall be in conformance with WAC 173-340-400(7).

(1) Purpose. Institutional controls are measures undertaken to limit or prohibit activities that may interfere with the integrity of an interim action or cleanup action or that may result in exposure to hazardous substances at a site. Institutional controls may include:

(a) Physical measures such as fences;

(b) Use restrictions such as limitations on the use of property or resources; or requirements that cleanup action occur if existing structures or pavement are disturbed or removed;

(c) Maintenance requirements for engineered controls such as the inspection and repair of monitoring wells, treatment systems, caps or groundwater barrier systems;

(d) Educational programs such as signs, postings, public notices, health advisories, mailings, and similar measures that educate the public and/or employees about site contamination and ways to limit exposure; and

(e) Financial assurances (see subsection (11) of this section).

(2) Relationship to engineered controls. The term institutional controls refers to nonengineered measures while the term engineered controls means containment and/or treatment systems that are designed and constructed to prevent or limit the movement of, or the exposure to, hazardous substances. See the definition of engineered controls in WAC 173-340-200 for examples of engineered controls.

(3) Applicability. This section applies to remedial actions being conducted at sites under any of the administrative options for remedial action described in WAC 173-340-510 ((and 173-340-515)).

(4) Circumstances required. Institutional controls shall be required to assure both the continued protection of human health and the environment and the integrity of an interim action or cleanup action in the following circumstances:

(a) The cleanup level is established using Method A or B and hazardous substances remain at the site at concentrations that exceed the applicable cleanup level;

(b) The cleanup level is established using Method C;

(c) An industrial soil cleanup level is established under WAC 173-340-745;

(d) A groundwater cleanup level that exceeds the potable groundwater cleanup level is established using a site-specific risk assessment under WAC 173-340-720 (6)(c) and institutional controls are required under WAC 173-340-720 (6)(c)(iii);

(e) A conditional point of compliance is established as the basis for measuring compliance at the site;

(f) Any time an institutional control is required under WAC 173-340-7490 through 173-340-7494; or

(g) Where the department determines such controls are required to assure the continued protection of human health and the environment or the integrity of the interim or cleanup action.

(5) Minimum requirements.A cleanup ((actions that use))action relying on institutional controls ((shall))must meet ((each of)) the ((minimum)) requirements specified in WAC 173-340-360, just as any other cleanup action. To ensure a cleanup action relying on institutional controls is protective, institutional controls should demonstrably reduce risks ((to ensure a protective remedy. This demonstration should be based on a quantitative, scientific analysis where appropriate)).

(6) Requirement for primary reliance.((In addition to meeting each of the minimum requirements))As specified in WAC 173-340-360 (3)(a)(vii), a cleanup ((actions shall))action must not rely primarily on institutional controls and monitoring ((where))at a site, or portion thereof, if it is technically possible to implement a more permanent cleanup action ((for all or a portion of the site)).

(7) Periodic review. The department shall review compliance with institutional control requirements as part of periodic reviews under WAC 173-340-420.

(8) Format.

(a) For properties owned by a person who has been named as a potentially liable person or who has not been named a potentially liable person by the department but meets the criteria in RCW ((70.105D.040))70A.305.040 for being named a potentially liable person, appropriate institutional controls shall be described in a restrictive covenant on the property. The covenant shall be executed by the property owner and recorded with the register of deeds for the county in which the site is located. This restrictive covenant shall run with the land, and be binding on the owner's successors and assigns.

(b) For properties owned by a local, state, or federal government entity, a restrictive covenant may not be required if that entity demonstrates to the department that:

(i) It does not routinely file with the county recording officer records relating to the type of interest in real property that it has in the site; and

(ii) It will implement an effective alternative system to meet the requirements of subsection (9) of this section.

The department shall require the government entity to implement the alternative system as part of the cleanup action plan. If a government entity meets these criteria, and if it subsequently transfers its ownership in any portion of the property, then the government entity must file a restrictive covenant upon transfer if any of the conditions in subsection (4) of this section still exist.

(c) For properties containing hazardous substances where the owner does not meet the criteria in RCW ((70.105D.040))70A.305.040 for being a potentially liable person, the department may approve cleanup actions that include restrictive covenants or other legal and/or administrative mechanisms. The use of legal or administrative mechanisms that do not include restrictive covenants is intended to apply to situations where the release has affected properties near the source of the release not owned by a person potentially liable under the act. A potentially liable person must make a good faith effort to obtain a restrictive covenant before using other legal or administrative mechanisms. Examples of such mechanisms include zoning overlays, placing notices in local zoning or building department records or state lands records, public notices and educational mailings.

(9) Restrictive covenants. Where required, the restrictive covenant shall:

(a) Prohibit activities on the site that may interfere with a cleanup action, operation and maintenance, monitoring, or other measures necessary to assure the integrity of the cleanup action and continued protection of human health and the environment;

(b) Prohibit activities that may result in the release of a hazardous substance that was contained as a part of the cleanup action;

(c) Require notice to the department of the owner's intent to convey any interest in the site. No conveyance of title, easement, lease, or other interest in the property shall be consummated by the property owner without adequate and complete provision for the continued operation, maintenance and monitoring of the cleanup action, and for continued compliance with this subsection;

(d) Require the land owner to restrict leases to uses and activities consistent with the restrictive covenant and notify all lessees of the restrictions on the use of the property. This requirement applies only to restrictive covenants imposed after February 1, 1996;

(e) Require the owner to include in any instrument conveying any interest in any portion of the property, notice of the restrictive covenant under this section;

(f) Require notice and approval by the department of any proposal to use the site in a manner that is inconsistent with the restrictive covenant. If the department, after public notice and comment approves the proposed change, the restrictive covenant shall be amended to reflect the change; and

(g) Grant the department and its designated representatives the right to enter the property at reasonable times for the purpose of evaluating compliance with the cleanup action plan and other required plans, including the right to take samples, inspect any remedial actions taken at the site, and to inspect records.

(10) Local government notification. Before a restrictive covenant being established under this chapter, the department shall notify and seek comment from a city or county department with land use planning authority for real property subject to the restrictive covenant. Once a restrictive covenant has been executed, this same department shall be notified and sent a copy of the restrictive covenant. For independent cleanups reviewed by the department under WAC 173-340-515 that use restrictive covenants, the person conducting the cleanup shall be responsible for these notifications.

(11) Financial assurances. The department shall, as appropriate, require financial assurance mechanisms at sites where the cleanup action selected includes engineered and/or institutional controls. It is presumed that financial assurance mechanisms will be required unless the PLP can demonstrate that sufficient financial resources are available and in place to provide for the long-term effectiveness of engineered and institutional controls adopted. Financial assurances shall be of sufficient amount to cover all costs associated with the operation and maintenance of the cleanup action, including institutional controls, compliance monitoring, and corrective measures.

(a) Mechanisms. Financial assurance mechanisms may include one or more of the following: A trust fund, a surety bond, a letter of credit, financial test, guarantee, standby trust fund, government bond rating test, government financial test, government guarantee, government fund, or financial assurance mechanisms required under another law (for example, requirements for solid waste landfills or treatment, storage, and disposal facilities) that meets the requirements of this section.

(b) Exemption from requirement. The department shall not require financial assurances if persons conducting the cleanup can demonstrate that requiring financial assurances will result in the PLPs for the site having insufficient funds to conduct the cleanup or being forced into bankruptcy or similar financial hardship.

(12) ((Removal of restrictions. If the conditions at the site requiring an institutional control under subsection (4) of this section no longer exist, then the owner may submit a request to the department that the restrictive covenant or other restrictions be eliminated. The restrictive covenant or other restrictions shall be removed, if the department, after public notice and opportunity for comment, concurs.))Amendment or removal of institutional controls.

(((1) Purpose. The purpose of this section is to set forth the requirements for addressing releases that may pose a threat to human health or the environment from an underground storage tank (UST) regulated under chapter 90.76 RCW.

(c) Within ninety days of completion of the cleanup action, submit the results of all investigations, interim and cleanup actions and compliance monitoring not previously submitted to the department.))

PART ((V))5 - ADMINISTRATIVE PROCEDURES FOR REMEDIAL ACTIONS

(1) Status letter. The department shall issue a potentially liable person status letter to any person it believes to be potentially liable as provided for in RCW ((70.105D.020(8)))70A.305.020(26), unless an emergency requires otherwise. Persons will be notified when the department has credible evidence of their potential liability under RCW ((70.105D.040))70A.305.040 and when the department is ready to proceed with remedial action except for emergencies and initial investigations. The status letter shall be sent by certified mail, return receipt requested, or by personal service.

(2) Contents of letter. The status letter shall provide:

(a) The name of the person the department believes to be potentially liable;

(b) A general description of the location of the facility;

(c) The basis for the department's belief that the person has a relationship to the facility;

(d) The basis for the department's belief that a release or threatened release of a hazardous substance has occurred at the facility and that the release or threatened release poses a threat to human health or the environment;

(e) An indication of the department's intentions regarding enforcement or other actions at the facility; and

(f) The names of other persons to whom the department has sent a status letter.

(3) Opportunity to comment. Any comments shall be submitted in writing to the department within ((thirty))30 days from the date of receipt by the potentially liable person of the status letter unless the department provides an extension.

(4) Determination of status. If after reviewing any comments submitted, the department concludes that credible evidence supports a finding of potential liability, then the department shall issue a determination of potentially liable person status.

(5) Voluntary waiver. Persons may accept status as a potentially liable person at any time through a voluntary waiver of their right to notice and comment.

(6) Additional potentially liable persons. The department reserves the right to notify additional potentially liable persons at any time, and as resources permit, will facilitate potentially liable persons' efforts to identify additional potentially liable persons. The department shall notify in writing, all persons who previously received a status letter for the facility whenever additional status letters have been sent.

(((1) Policy. It is the responsibility of each and every liable person to conduct remedial action so that sites are cleaned up well and expeditiously where a release or threatened release of a hazardous substance requires remedial action. Potentially liable persons are encouraged to initiate discussions and negotiations with the department and the office of the attorney general that may lead to an agreement on the remedial action to be conducted with the state of Washington. The department may provide informal advice and assistance on the development of proposals for remedial action, as provided by WAC 173-340-515. Any approval by the department or the state of remedial action shall occur by one of the means described in subsections (2) and (3) of this section.

(4) Department remedial action. Nothing in this chapter shall preclude the department from taking appropriate remedial action on its own at any time. Except for emergency actions and initial investigations, reasonable effort will be made to notify potentially liable persons before the department takes remedial actions for which the recovery of public funds can be sought under RCW 70.105D.050(3).))

(1) Purpose. An independent remedial action is a remedial action conducted without department oversight or approval and not under an order, agreed order or consent decree. This section describes the procedures and requirements for independent remedial actions. See WAC 173-340-545 for additional requirements pertaining to independent remedial actions anticipated to be part of a private right of action.

(2) Applicability. Nothing in this chapter shall preclude potentially liable persons from conducting independent remedial actions at sites not in discussions or negotiations for, or under, an order or decree. However, a potentially liable person may not conduct independent remedial actions after commencing discussions or negotiations for an agreed order or consent decree unless:

(a) Such action does not foreclose or preempt the remedial actions under discussion or negotiation and such action does not foreclose the selection of a cleanup action; or

(b) The potentially liable person has provided reasonable notice to the department and the department does not object to such action.

(3) Standards.

(a) In reviewing independent remedial actions, the department shall determine whether the remedial actions meet the substantive requirements of ((this chapter))the state cleanup law and/or whether further remedial action is necessary at the site. Persons conducting independent remedial actions do so at their own risk, and may be required to take additional remedial actions if the department determines such actions are necessary. In such circumstances, the department reserves all of its rights to take actions authorized by law.

(b) When this chapter requires a consultation with, or an approval or determination by the department, such a consultation, approval or determination is not necessary in order to conduct an independent remedial action. However, independent remedial actions must still meet the substantive requirements of ((this chapter))the state cleanup law.

(c) Except for the requirement of a restrictive covenant under WAC 173-340-440, where documents are required under ((this chapter))the state cleanup law, the documents prepared need not be the same in title or format; however, the documents must still contain sufficient information to serve the same purpose. The scope and level of detail in these documents may vary from site to site depending on the site-specific conditions and the complexity of the remedial action.

(4) Reports to the department.

(a) Applicability and timing.

(ii) Interim actions and cleanup actions. Any person who conducts an independent interim action or cleanup action for a release ((that is)) required to be reported under WAC 173-340-300 ((shall))must submit a written report to the department within ((ninety))90 days of the completion of the action. For the purposes of this ((section, the department will consider))subsection, an interim action or cleanup action is complete if no remedial action other than compliance monitoring has occurred at the site for ((ninety))90 days. ((This does not preclude earlier reporting of such actions or reporting of site investigations.))

(iii) Releases from regulated UST systems. For releases from UST systems regulated under chapter 173-360A WAC, see WAC 173-340-450 for additional requirements for reporting independent remedial actions ((for releases from underground storage tanks)).

(b) ((The))Content. An independent remedial action report ((shall))must include the information in WAC 173-340-300(((2)))(3) if not already reported, and enough information to determine if the ((independent)) remedial action meets the substantive requirements of ((this chapter))the state cleanup law, including((,)) the results of all site investigations, feasibility studies, interim actions, cleanup actions, and compliance monitoring planned or ((under-way))under way. Previously reported information may be summarized and referenced to avoid unnecessary duplication. The report must comply with the requirements in WAC 173-340-840. If a restrictive covenant is used, it must be included in the report and it must meet the requirements specified in WAC 173-340-440(9). The department may require additional reports on the work conducted.

(c) Initial investigation. If the independent investigation, interim action, or cleanup action is completed within ((ninety))90 days of release discovery, ((a single written report may be submitted on both the release and the action taken. The report shall contain the information specified in provision (b) of this subsection and shall be submitted within ninety days of completion of the remedial action))the department may defer completing any needed initial investigation of the release to enable review of the independent remedial action and report in accordance with WAC 173-340-310 (5)(b).

(d) Notification. The department ((shall publish in the Site Register a notice of all reports on))will notify the public of an independent investigation, interim ((actions and))action, or cleanup ((actions))action report received under this section((. If deemed necessary, the department shall also conduct an initial investigation under WAC 173-340-310))in accordance with WAC 173-340-600(20).

(e) Liability. Neither submission of information on an independent remedial action nor any response by the department shall release the person submitting the report or any other person from liability. The department reserves all rights to pursue any subsequent action it deems appropriate.

(5) Technical consultations. The department may provide informal advice and assistance (technical consultations) on the administrative and technical requirements of ((this chapter))the state cleanup law to persons conducting or otherwise interested in an independent remedial action. Such advice or assistance is advisory only and not binding on the department. This advice may include written opinions. These written opinions shall be limited to whether the independent remedial actions or proposals for those actions meet the substantive requirements of ((this chapter))the state cleanup law and/or whether the department believes further remedial action is necessary at the ((facility))site.

(a) Upon completing the review of an independent remedial action report or proposal that is voluntarily submitted for the department's review and opinion, the department will:

(((a)))(i) Provide a written opinion regarding the remedial actions performed or proposed at the site;

(((b)))(ii) Provide a written opinion regarding the remedial actions performed at the site and remove the site ((or a portion of the site)) from the ((hazardous))contaminated sites list if the department has sufficient information to show that the independent remedial actions are appropriate to characterize and address contamination at the site, as ((provided for))specified in WAC 173-340-330 (((4)(b)))(5); or

(((c)))(iii) Provide a written opinion describing the deficiencies with the remedial action or proposal for a remedial action at the site.

(b) It is the department's policy, in conducting reviews under this subsection, to promote independent remedial actions by delisting sites ((or portions of sites)) whenever petitions and supporting documents show that the actions taken are appropriate to characterize and address the contamination at the site.

(6) Cost of technical consultations. For information on the payment of remedial action costs, see WAC 173-340-550(6).

(1) Procedures for consent decrees initiated by potentially liable persons. To request a consent decree a person shall submit a letter to the department and office of the attorney general via certified mail, return receipt requested, or by personal delivery.

(a) Request. The letter shall describe, based on available information:

(i) The proposed remedial action, including the schedule for the work;

(ii) Information which demonstrates that the settlement will lead to a more expeditious cleanup, be consistent with cleanup standards if the remedial action is a cleanup action, and be consistent with any previous orders;

(iii) The facility, including location and boundaries;

(iv) The environmental problems to be addressed including a description of the releases at the facility and the potential impact of those releases to human health and the environment;

(v) A summary of the relevant historical use or conditions at the facility;

(vi) The date on which the potentially liable person will be ready to submit a detailed proposal;

(vii) Any special scheduling considerations for implementing the remedial actions;

(viii) Names of other persons who the person has reason to believe may be potentially liable persons at the facility; and

(ix) A proposed public participation plan. This proposed plan shall be commensurate with the nature of the proposal and site and shall include the elements listed in WAC 173-340-600(8).

(b) The letter may include:

(i) A waiver of the procedural requirements of WAC 173-340-500 and acceptance, for purposes of settlement, of potentially liable person status.

(ii) The contents of detailed proposal under (g) of this subsection.

(c) A prospective purchaser consent decree is a particular type of consent decree entered into with a person not currently liable for remedial action at the site who proposes to purchase, redevelop, or reuse the site. RCW ((70.105D.040))70A.305.040(5) contains specific statutory requirements for this type of decree. In addition to the information in (a) and (b) of this subsection, a request for a prospective purchaser consent decree shall include:

(i) Identification of all persons proposing to enter into the consent decree and information which demonstrates that those persons are not currently liable for remedial action at the site;

(ii) Information which demonstrates that the settlement will yield substantial new resources to facilitate cleanup;

(iii) A general description of the proposed continued use or redevelopment or reuse of the site, including the proposed schedule for purchase, redevelopment, or reuse; and

(iv) Information describing whether and how the proposed settlement will provide a substantial public benefit.

(d) Recognizing that the steps of the cleanup process may be combined and may vary by site, the information in the request shall be at the level of detail appropriate to the steps in the process for which the consent decree is requested. For example, a request for a consent decree for a remedial investigation/feasibility study should generally include the level of information needed for a site hazard assessment, if not already done by the department, so that the department and the public can evaluate the proposed scope of work and relative priority of the site.

(e) The department may waive part of the letter requirements of (a) of this subsection if the requirements have already been met.

(f) Response. The department shall respond to the request within ((sixty))60 days, unless the department needs additional time to determine potentially liable person status under WAC 173-340-500. This determination will be based in part on a preliminary finding by the department that any resulting consent decree would be in accordance with RCW ((70.105D.040))70A.305.040 (4)(a). The department may:

(i) Request additional information;

(ii) Accept the request and require the person to submit a detailed written proposal by a specified date; or

(iii) Provide written reasons for denying the request.

(g) Contents of detailed proposal. The proposal shall contain:

(i) A proposed technical scope of work describing the remedial action to be conducted;

(ii) The data, studies, or any other information upon which the settlement proposal is based;

(iii) A statement describing the potentially liable person's ability to conduct or finance the remedial action as described in the proposed scope of work;

(iv) A schedule for proposed negotiations and implementation of the proposed remedial actions; and

(v) Any additional information requested by the department.

(h) In addition to the information in (g) of this subsection, the detailed proposal for a prospective purchaser consent decree shall include the following:

(i) Information showing a legal commitment to purchase, redevelop or reuse the site;

(ii) A detailed description including a plan of the proposed continued use, redevelopment, or reuse of the site, including, if necessary, an updated schedule for purchase, redevelopment or reuse;

(iii) Information which demonstrates that the redevelopment or reuse of the site is not likely to contribute to the existing or threatened releases at the site, interfere with remedial actions that may be needed at the site, or increase health risks to persons at or in the vicinity of the site; and

(iv) If the requestor does not propose to conduct the entire cleanup of the site, available information about potentially liable persons who are expected to conduct the remainder of the cleanup.

(i) The department and the office of the attorney general shall determine whether the proposal provides a sufficient basis for negotiations, and shall deliver to the potentially liable person within ((sixty))60 days following receipt of their proposal a written notice indicating whether or not the proposal is sufficient to proceed with negotiations.

(j) Prepayment agreement. Unless otherwise determined by the department, any person who requests a prospective purchaser agreement and receives a notice accepting the request under (f) of this subsection shall enter into a prepayment agreement with the department consistent with WAC 173-340-550(7) before negotiations will begin.

(k) Time limits for negotiations. The department shall set the time period and starting date for negotiations. The department and the office of the attorney general shall then negotiate with those potentially liable persons who have received a notice under (f) of this subsection that their proposal was sufficient to proceed with negotiations. Negotiations may address one or more phases of remedial action. ((The length of the negotiation period specified by the department shall be no less than that proposed by the potentially liable person provided it does not conflict with the deadlines established under WAC 173-340-140.))

(l) Enforcement stay. For consent decrees that are not prospective purchaser agreements, unless an emergency exists, the department will stay any enforcement action under chapter ((70.105D))70A.305 RCW, but the duration of such stay shall not exceed ((one hundred twenty))120 days from the date negotiations begin. The department can withdraw from negotiations if it determines that:

(i) Reasonable progress is not being made toward a consent decree acceptable to the department; or

(ii) The proposal is inappropriate based on new information or changed circumstances.

The department may begin an enforcement action after notifying the potentially liable person, in writing, of its intent to withdraw from negotiations.

(2) Procedures for consent decrees initiated by the department. When the department believes that a consent decree will be a more expeditious method to achieve remedial action at a facility, it may initiate the procedures set forth in this subsection by sending a letter to the potentially liable person. The letter shall be sent via certified mail, return receipt requested, or by personal service.

(a) The letters may be delivered with potentially liable person status letters issued under WAC 173-340-500. The period for negotiation shall not commence until the ((thirty-day))30-day comment period required by WAC 173-340-500 has expired or the person expressly waives the procedural requirements of WAC 173-340-500.

(b) Contents of letter. The letter shall:

(i) Inform potentially liable person(s) that the department and the attorney general want to begin negotiations which may lead to a consent decree providing for remedial action;

(ii) Propose a draft consent decree and scope of work;

(iii) Define the negotiation process and schedule which shall not exceed ((ninety))90 days;

(iv) Reference the department's finding under WAC 173-340-500;

(v) Request a written statement of the potentially liable person's willingness to proceed with the negotiation process defined in the letter; and

(vi) Request the names of other persons whom the person has reason to believe may be potentially liable persons at the facility.

(c) The letter may request the potentially liable person to respond, in writing, to the proposed draft consent decree and scope of work before beginning the negotiation phase.

(d) Negotiations. The department and the office of the attorney general shall negotiate with potentially liable persons who have indicated to the department a willingness to proceed with the negotiations. The negotiation time frame shall begin from the date the potentially liable person receives the letter under (a) of this subsection unless modified by the department. Negotiations may address one or more phases of remedial action.

(e) Enforcement stay. Unless an emergency exists, the department will stay any enforcement action under chapter ((70.105D))70A.305 RCW, but the duration of the stay shall not exceed ((ninety))90 days from the date negotiations begin. The department can withdraw from negotiations if it determines that:

(i) Reasonable progress is not being made toward a consent decree acceptable to the department; or

(ii) The proposal is inappropriate based on new information or changed circumstances. The department may commence with enforcement action after notifying the potentially liable person, in writing, of its intent to withdraw from negotiations.

(f) Deadline extensions. The department may, at its discretion, extend the deadline for negotiations established in (b) of this subsection, provided the extension does not exceed ((thirty))30 days.

(3) Filing a decree. After satisfying the public comment and hearing requirements, the department shall determine whether the proposed settlement negotiated under subsection (1) or (2) of this section, is more expeditious and consistent with cleanup standards established and in compliance with any order issued by the department relevant to the remedial action. After making the requisite findings, the department shall forward the proposed consent decree with the findings required by RCW ((70.105D.040))70A.305.040(4), to the office of the attorney general. If agreed to by the office of the attorney general, the consent decree will be filed by that office with the appropriate superior court or the federal court having jurisdiction over the matter.

(1) Purpose. Agreed orders may be used for all remedial actions. An agreed order means that the potentially liable person agrees to perform remedial actions at the site in accordance with the provisions of the agreed order and that the department will not take additional enforcement action against the potentially liable person to require those remedial actions specified in the agreed order so long as the potentially liable person complies with the provisions of the order. Since an agreed order is not a settlement, an agreed order shall not provide for mixed funding, a covenant not to sue, or protection from claims for contribution. The department may require additional remedial actions should it deem such actions necessary.

(2) Procedures for agreed orders initiated by a potentially liable person.

(a) To request an agreed order, a person shall submit a letter to the department based on available information, describing:

(i) The proposed remedial action including a schedule for the work;

(ii) The facility, including location and boundaries;

(iii) The environmental problems to be addressed, including the releases at the facility and the potential impact of those releases to human health and the environment;

(iv) A summary of the relevant historical use or conditions at the facility;

(v) Names of other persons whom the person has reason to believe may be potentially liable persons at the facility; and

(vi) A proposed public participation plan. This proposed plan shall be commensurate with the nature of the proposal and site and shall include, at a minimum, the elements listed in WAC 173-340-600(8).

(b) The letter may include a waiver of the procedural requirements of WAC 173-340-500, and acceptance, for purposes of the agreed order, of potentially liable person status.

(c) Recognizing that the basic steps of the cleanup process may be combined and may vary by site, the information in the request shall be at the level of detail appropriate to the step in the process for which the order is requested. For example, a request for an agreed order for a remedial investigation/feasibility study should generally include the level of information needed for a site hazard assessment, so that the department and the public can evaluate the proposed scope of work and relative priority of the site.

(d) The department may waive part of the letter requirements of (a) of this subsection if the requirements have already been met.

(3) Department response to PLP-initiated request. The department shall respond to the request within ((sixty))60 days, unless the department needs additional time to determine potentially liable person status under WAC 173-340-500. The department may:

(a) Request additional information;

(b) Proceed with discussions, if the department believes it is in the public interest to do so; or

(c) Provide written reasons for denying the request.

(4) Procedures for agreed orders initiated by the department. When the department believes that an agreed order is an appropriate method to achieve remedial action at a facility, it may initiate the request for an agreed order.

(5) Duration of discussions. Discussions on the agreed order shall not exceed ((sixty))60 days unless the department decides continued discussions are in the public interest.

(6) Enforcement. Unless an emergency exists, the department will stay any enforcement action under chapter ((70.105D))70A.305 RCW; however, the duration of such stay shall not exceed ((sixty))60 days from the date discussions begin. Furthermore, the department can withdraw from discussions if it determines that:

(a) Reasonable progress is not being made toward an agreed order acceptable to the department; or

(b) The agreed order is inappropriate based on new information or changed circumstances.

The department may begin an enforcement action after notifying the potentially liable person in writing of its intent to withdraw from discussions.

(7) Focus of discussions. The focus of discussions for the agreed order shall ordinarily be the technical scope of work and work schedule. This subsection is not intended to preclude discussion on any item. It is intended to convey the expectation that the scope of work and work schedule will be the primary topics of discussion in developing agreed orders.

(8) Public participation.

(a) When issuing an agreed order, the department shall provide ((appropriate public participation opportunities under))or require public notice in accordance with WAC 173-340-600(11).

(b) If the department and the potentially liable person signing the order agree to substantial changes in the order, the department shall provide ((appropriate))or require additional public notice ((and opportunity to comment))in accordance with WAC 173-340-600(11).

The department may issue an enforcement order requiring remedial action after issuing a notice of potentially liable person status letter under WAC 173-340-500. In emergencies, the notice of potentially liable person status may occur concurrently with the issuance of the order. Unless an emergency requires otherwise, the issuance of a potentially liable person status letter shall precede or take place concurrently with the issuance of an enforcement order. Furthermore, except in an emergency, the department shall issue its determination under WAC 173-340-500(4) before an enforcement order can become effective. Failure to comply with an enforcement order may result in substantial liability for costs and penalties as specified in RCW ((70.105D.050))70A.305.050.

(1) Purpose. A private right of action is a legal claim authorized by RCW ((70.105D.080))70A.305.080 under which a person may recover costs of remedial action from other persons liable under the act. RCW ((70.105D.080))70A.305.080 limits recovery of remedial action costs to those remedial actions that, when evaluated as a whole, are the substantial equivalent of a department-conducted or department-supervised remedial action. The purpose of this section is to facilitate private rights of action and minimize department staff involvement in these actions by providing guidance to potentially liable persons and the court on what remedial actions the department would consider the substantial equivalent of a department-conducted or department-supervised remedial action. In determining substantial equivalence, the department anticipates the requirements in this section will be evaluated as a whole and that a claim would not be disallowed due to omissions that do not diminish the overall effectiveness of the remedial action.

(2) Substantial equivalent. For the purposes of this section, the department considers the following remedial actions to be the substantial equivalent of a department-conducted or department-supervised remedial action.

(a) A remedial action conducted by the department;

(b) A remedial action that has been or is being conducted under an order or decree and the remedial requirements of the order or decree have been satisfied for those portions of the remedial action for which the private right of action is being sought; or

(c) A remedial action that has been conducted as an independent remedial action that includes the following elements:

(i) Information on the site and remedial actions conducted has been reported to the department in accordance with WAC 173-340-300, 173-340-450 and 173-340-515, as applicable;

(ii) The department has not objected to the remedial action being conducted or any such objection has been cured as determined by the court;

(iii) Except for emergency remedial actions, before conducting an interim action or cleanup action, reasonable steps have been taken to provide advance public notice;

(iv) The remedial actions have been conducted substantially equivalent with the technical standards and evaluation criteria described in subsection (4) of this section; and

(v) For facilities where hazardous substances have been disposed of as part of the remedial action, documentation is available indicating where these substances were disposed of and that this disposal was in compliance with applicable state and federal laws. It is not the intent of this provision to require extensive documentation. For example, if the remedial action results in solid wastes being transported offsite for disposal, it would be sufficient to have records indicating the wastes have been disposed of at a permitted solid waste or hazardous waste landfill.

(3) Public notice requirements. This subsection shall be used to determine if reasonable steps have been taken to provide advance public notice under subsection (2)(c)(iii) of this section. These public notice procedures apply only to interim actions or cleanup actions conducted as independent remedial actions after December 25, 1993. The notice may be combined with any notices under another law. For interim actions or cleanup actions conducted as independent remedial actions before December 25, 1993, the department recognizes little or no public notification typically occurred because there were no department-specified requirements other than the reporting requirements in this chapter. For these actions, this chapter contains no other specific public notice requirements or guidance, and the court will need to determine such requirements, if any, on a case-by-case basis. For independent remedial actions consisting of site investigations and studies, it is anticipated that public notice would not normally be done since often these early phases of work are to determine if a release even requires an interim action or cleanup action. For the purposes of this section only, unless the court determines other notice procedures are adequate for the site-specific circumstances, the following constitutes adequate public notice for independent remedial actions and supersedes the requirements in WAC 173-340-600:

(a) Except for emergency remedial actions, written notification has been ((mailed))provided at least ((fifteen))15 days before beginning construction of the interim action or cleanup action to the last known address of the following persons:

(i) The department (which shall publish a summary of the notice in the Contaminated Site Register);

(ii) The local jurisdictional health department/district;

(iii) The town, city or county with land use jurisdiction;

(iv) The land owners identified by the tax assessor at the time the action is begun for that portion of the facility where the interim action or cleanup action is being conducted; and

(v) Persons potentially liable under RCW ((70.105D.040))70A.305.040 known to the person conducting the interim action or cleanup action. In identifying persons potentially liable under RCW ((70.105D.040))70A.305.040 who are to be noticed under this provision, the person conducting the remedial action need only make a reasonable effort to review information currently readily available. Where the interim action or cleanup action is complex, written notification before beginning detailed design is recommended but not required. For emergency remedial actions, written notice should be provided as soon as practicable;

(b) The written notification includes: A brief statement describing the releases being remedied and the interim actions or cleanup actions expected to be conducted; the schedule for these interim actions or cleanup actions; and, for persons potentially liable under RCW ((70.105D.040))70A.305.040 known to the person conducting the interim actions or cleanup actions, a statement that they could be held liable for the costs of remedial actions being conducted; and

(c) Posting a sign at the site at a location visible to the general public indicating what interim actions or cleanup actions are being conducted and identifying a person to contact for more information. Except for emergency remedial actions this sign should be posted not later than the beginning of construction of any interim action or cleanup action and should remain posted for the duration of the construction. For emergency remedial actions posting of a sign should be done as soon as practicable;

(4) Technical standards and evaluation criteria. This subsection shall be used to determine if the remedial actions have been conducted substantially equivalent with the technical standards and evaluation criteria contained in this chapter. For the purposes of this section, remedial actions shall be deemed to comply with subsection (2)(c)(iv) of this section if they have been conducted substantially equivalent with the technical standards and evaluation criteria contained in the following sections, where applicable. Except for a restrictive covenant under WAC 173-340-440, where documents are required by the following sections, the documents prepared need not be the same in title or format. Other documents can be used in place of the documents specified in these sections as long as sufficient information is included in the record to serve the same purpose. When using the following sections to determine substantial equivalence it should be recognized that there are often many alternative methods for cleanup of a facility that would comply with these provisions. When this chapter requires a consultation with, or an approval or determination by the department, such a consultation, approval or determination is not necessary for remedial actions to meet the substantial equivalence requirement under this section; however, the remedial action must still be conducted substantially equivalent with the substantive requirements of those provisions. In applying these sections, reference should be made to the other applicable sections of this chapter, with particular attention to WAC 173-340-130 (Administrative principles), WAC 173-340-200 (Definitions), and WAC 173-340-210 (Usage).

(a) WAC 173-340-350 (Remedial ((investigation/feasibility study))investigation);

(b) WAC 173-340-351 (Feasibility study);

(c) WAC 173-340-355 (Development of cleanup action alternatives that include remediation levels);

(((c)))(d) WAC 173-340-357 (Quantitative risk assessment of cleanup action alternatives);

(((d)))(e) WAC 173-340-360 (((Selection of))Cleanup ((actions))action requirements);

(((e)))(f) WAC 173-340-370 (Cleanup action expectations);

(g) WAC 173-340-380 (Cleanup action plan);

(((f)))(h) WAC 173-340-400 (Cleanup action((s))implementation);

(((g)))(i) WAC 173-340-410 (Compliance monitoring requirements);

(((h)))(j) WAC 173-340-430 (Interim actions);

(((i)))(k) WAC 173-340-440 (Institutional controls);

(((j)))(l) WAC 173-340-450 (Releases from regulated underground storage ((tanks))tank systems);

(((k)))(m) WAC 173-340-700 through 173-340-760 (Cleanup standards); and

(((l)))(n) WAC 173-340-810 through 173-340-850 (General provisions).

(1) Policy. RCW ((70.105D.050))70A.305.050(3) requires that the state seek to recover the amounts spent by the department for investigative and remedial actions and orders. It is the department's intention to recover those costs which are reasonably attributable to individual sites. Timing of cost recovery for individual sites will be considered on a case-by-case basis, however, the department may demand, and generally requires, payment of costs as they are incurred.

(2) Costs. Each person who is liable under chapter ((70.105D))70A.305 RCW is liable for remedial action costs incurred by the department. Remedial action costs are costs reasonably attributable to the site and may include costs of direct activities, support costs of direct activities, and interest charges for delayed payments. The department may send its request for payment to all potentially liable persons who are under an order or decree for the remedial action costs at the site. The department shall charge an hourly rate based on direct staff costs plus support costs. It is the department's intention that the resulting hourly rate charged be less than the hourly rate typically charged by a comparably sized consulting firm providing similar services. The department shall use the following formula for computing hourly rates:

Hourly Rate = DSC + DSC(ASCM) + DSC(PSCM), where:

DSC = Direct Staff Costs defined in (a) of this subsection.

ASCM = Agency Support Cost Multiplier defined in (b) of this subsection.

PSCM = Program Support Cost Multiplier defined in (c) of this subsection.

(a) Costs of direct activities are direct staff costs and other direct costs. Direct staff costs (DSC) are the costs of hours worked directly on a contaminated site, including salaries, retirement plan benefits, Social Security benefits, health care benefits, leave and holiday benefits, and other benefits required by law to be paid to, or on behalf of, employees. Other direct costs are costs incurred as a direct result of department staff working on a contaminated site including, for example, costs of: Travel related to the site, printing and publishing of documents about the site, purchase or rental of equipment used for the site, and contracted work for the site.

(b) Agency support costs are the costs of facilities, communications, personnel, fiscal, and other statewide and agency-wide services. The agency support cost multiplier (ASCM) used shall be the agency indirect rate approved by the agency's federal cognizant agency (which, as of July 1, 1993, was the United States Department of the Interior) for each fiscal year.

(c) Program support costs are the costs of administrative time spent by site managers and other staff who work directly on sites and a portion of the cost of management, clerical, policy, computer, financial, ((citizen technical advisor,)) and other support provided by other program staff to site managers and other staff who work directly on sites. Other activities of the toxics cleanup program not included in program support costs include, for example, community relations not related to a specific site, policy development, and a portion of the cost of nonsite management, clerical, policy, computer, financial, and other support staff. The program support cost multiplier (PSCM) used shall be calculated by dividing actual program support costs by the direct staff costs of all hours charged to site related work. This multiplier shall be evaluated at least biennially and any changes published in at least two publications of the Contaminated Site Register. The calculation and source documents used in any revision shall be audited by either the state auditor's office or a private accounting firm. Audit results shall be available for public review. This multiplier shall not exceed 1.0 (one).

(3) Request for payment. When the department requests payment of remedial action costs it shall provide an itemized statement documenting the costs incurred.

(4) Interest charges. A charge of ((twelve))12 percent interest (annual percentage rate, compounded monthly) shall accrue on all remedial action costs not paid within ((ninety))90 days of the billing date, or within another longer time period designated by the department.

(5) Natural resource damages. Nothing in this section shall affect the authority of the department and the office of attorney general to recover natural resource damages.

(6) Independent remedial actions.

(a) The department may collect, from persons requesting a site-specific technical consultation under WAC 173-340-515, the costs incurred by the department in providing such advice and assistance.

(b) For situations where the department has decided to collect its costs, a refundable deposit of a reasonable amount will be required. The department's hourly costs shall be determined based on the method in ((WAC 173-340-550(2)))subsection (2) of this section.

(c) The department's Toxics Cleanup Program manager or designee may make a discretionary, nonappealable decision on whether a person is eligible for a waiver of fees based on that person's ability to pay.

(d) The department shall waive collection of its costs, where appropriate, in providing technical assistance in support of an appropriate level of public participation or where the department's time in responding to the request is de minimis.

(7) Prepayment of costs.

(a) Persons potentially liable under this chapter or seeking a prospective purchaser agreement may request the department's oversight of remedial actions through a prepayment agreement. The purpose of such an agreement is to enable department oversight of remedial actions at lower priority sites. The department shall make a determination that such an agreement is in the public interest. A prepayment agreement requires a person to pay the department's remedial action costs, in advance, allowing the department to increase staff for the unanticipated workload. Agreements may cover one or more facilities. Whether the department can respond favorably to a request for a prepayment agreement will depend, in part, on the department and attorney general receiving authorization for the staffing necessary to implement the agreement. Persons interested in such an agreement are encouraged to contact the department early on to informally discuss the potential for using such an agreement at a facility.

(b) Prepayment agreements do not replace an order or decree but are preliminary to or work in conjunction with such documents. Persons entering into a prepayment agreement shall enter into good faith negotiations on an agreed order or consent decree governing remedial actions at the facility in accordance with the procedures described in WAC 173-340-520(1) or 173-340-530(2). Failure to successfully conclude such negotiations may result in the department withdrawing from the prepayment agreement or initiating enforcement action.

(1) Introduction. Under RCW ((70.105D.070 (2)(d)(xi)))70A.305.190 (4)(a)(v), the department may provide public funds from the ((state))model toxics control capital account to a potentially liable person for the purpose of assisting with the payment of remedial action costs regardless of when incurred. This assistance can be provided in the form of a loan or a contribution, in cash or in kind. Any funding decision under this section is solely the responsibility of the director.

(2) Applicability and request.

(a) Mixed funding shall be provided only to potentially liable persons whom the department has found to be eligible and who have entered into a consent decree with the department under the requirements of this chapter.

(b) The consent decree shall identify remedial action tasks to be addressed by the mixed funding, costs to be borne by the potentially liable person, costs to be borne by the ((state))model toxics control capital account and terms of the agreement. In the case of loans, the consent decree shall also define any terms and conditions under which the potentially liable person receiving mixed funding has agreed to reimburse the ((state))model toxics control capital account.

(c) The potentially liable person shall submit sufficient documentation to support its request for mixed funding.

(3) Eligibility and mixed funding criteria. The director shall make a determination, based upon specific criteria whether a proposal is eligible for funding. The only circumstances under which mixed funding can be approved by the department are when the funding will achieve both:

(a) A substantially more expeditious or enhanced cleanup than would otherwise occur; and

(b) The prevention or mitigation of unfair economic hardship. In considering this criterion the department shall consider the extent to which mixed funding will either:

(i) Prevent or mitigate unfair economic hardship faced by the potentially liable person if the remedial action plan were to be implemented without public funding; or

(ii) Achieve greater fairness with respect to the payment of remedial action costs between the potentially liable person entering into a consent decree with the department and any nonsettling potentially liable persons.

(4) Funding decision. The department may have informal discussions on mixed funding. If a potentially liable person is found to be eligible for mixed funding, the director shall make a determination regarding the amount of funding to be provided, if any. This shall be determined at the discretion of the director and is not subject to review. A determination of eligibility is not a funding commitment. Actual funding will depend on the availability of funds.

(5) The department may recover the amount of public funding spent on investigations and remedial actions from potentially liable persons who have not entered into a consent decree under this chapter. For purposes of such cost recovery action, the amount in mixed funding attributed to the site shall be considered as remedial action costs paid by the department.

PART ((VI))6 - PUBLIC PARTICIPATION AND TRIBAL ENGAGEMENT

(1) Purpose. Public participation is an integral part of ((the department's))ecology's responsibilities under chapter 70A.305 RCW, the Model Toxics Control Act. ((The department's))Ecology's goal is to provide the public with timely information and meaningful opportunities for participation that are commensurate with each site. ((The department))Ecology will meet this goal through a public participation program that includes:

((The))(a) Site-specific information on ecology's website;

(c) For ecology-conducted and ecology-supervised remedial actions, early planning and development of ((a)) site-specific public participation ((plan; the provision of))plans, public ((notices; a site register;))notice of proposed actions, and public meetings or hearings((; and the participation of regional citizens' advisory committees.

(2) Other requirements. In addition to the requirements in this section, other sections of this chapter contain specific notice requirements that must also be followed. See WAC 173-340-720 for notice requirements on an off-property conditional point of compliance and cleanup levels for groundwater flowing into nearby surface water; WAC 173-340-545 for public notice requirements for private rights of action; WAC 173-340-440 for local government notification requirements for restrictive covenants; and WAC 173-340-310 for public notice requirements for emergency or interim actions required by the department as a result of an initial investigation)).

(3) ((Criteria. In order))Additional opportunities. To promote effective and meaningful public participation, ((the department may determine that))ecology may provide or require public participation opportunities in addition to those specifically required ((by chapter 70.105D RCW, or))under this chapter((, are appropriate and should be provided)). In making this determination, ((the department))ecology may consider:

(a) Known or potential risks to human health and the environment that could be avoided or reduced by providing information to the public;

(b) Public concerns about the ((facility))site;

(c) The need to contact the public in order to gather information about the ((facility))site;

(d) The extent to which the public's opportunity to affect subsequent ((departmental))ecology decisions at the ((facility))site may be limited or foreclosed ((in the future));

(e) The need to prevent disclosure of confidential, unverified, or enforcement-sensitive information;

(f) The routine nature of the contemplated remedial action; ((and))

(g) Interest in expediting remedial action at the site; and

(h) Any other factors as determined by ((the department))ecology.

(4) ((Public notice. Whenever public notice is required by chapter 70.105D RCW, the department shall, at a minimum, provide or require notice as described in this section except as specified for the biennial report in WAC 173-340-340.

(6)))Additional methods.((In addition to "public notice" required by chapter 70.105D RCW, or this chapter, the department may use any of the following methods))To provide information to the public, ecology may use or require any of the following methods in addition to those specifically required under this chapter:

(a) Press releases;

(b) Fact sheets;

(c) Public meetings and transcription of such meetings;

(d) Publications;

(e) Personal contact by ((department))ecology employees;

(f) Posting signs at the ((facility))site;

(g) Notice in the Contaminated Site Register;

(h) Notice through the internet;

(i) Any other methods as determined by ((the department))ecology.

(7) Contaminated Site Register.((The department shall regularly publish, make available electronically, and maintain a publication called the Site Register, which provides notice of the following:

(q) Any other notice that the department considers appropriate for inclusion.))Ecology will maintain and regularly publish a Contaminated Site Register.

(8) Evaluation of public participation needs.((As part of requiring or conducting a remedial action at any facility, the department shall))For ecology-conducted and ecology-supervised remedial actions, ecology will evaluate public participation needs at the ((facility))site. The evaluation ((shall))must include an identification of the potentially affected vicinity for the remedial action. For sites where site-specific risk assessment is used, ((the department shall))ecology will also evaluate public interest in the site, significant public concerns regarding future site use, and public values to be addressed through the public participation plan.

(9) Public participation plans.For ecology-conducted and ecology-supervised remedial actions, except emergency remedial actions, ecology will ensure that a public participation plan is developed and implemented.

(a) Purpose and scope.((The))A public participation ((plans required by this section are))plan is intended to encourage a coordinated and effective public involvement tailored to the public's needs at a ((particular facility))site, and facilitate equitable participation by the public. The scope of ((a))the plan ((shall))must be commensurate with ((the nature of the proposed remedial actions; the level of public concern; and the risks posed by the facility)):

(iii) The nature of the proposed remedial actions to address the threats.

(b) Early planning encouraged. In order to develop an appropriate plan, ((the department))ecology or a potentially liable person or prospective purchaser (if submitting a plan to ((the department))ecology) should engage in an early planning process to assess the public participation needs at the ((facility))site, including the needs of vulnerable populations and overburdened communities. This process may include identifying and conferring with individuals, community groups, indigenous peoples, local governments, ((tribes,)) public agencies, or any other organizations that may have an interest in or knowledge of the ((facility))site.

(c) ((Plan))Development.((The department shall))Ecology will develop the plan, or work with ((the))a potentially liable person or prospective purchaser to develop the plan.

(i) If a plan already exists for ((a facility, the department shall))the site, ecology will consider whether the existing plan is still appropriate or whether the plan should be amended. For example, a plan originally developed to address a remedial investigation/feasibility study may need to be amended to address implementation phases.

(((d) Plans required. As part of requiring or conducting a remedial action, except emergency actions, at any site that has been assigned a hazard ranking score, the department shall ensure that a public participation plan is developed and implemented. The department may also require the development of a public participation plan as part of an agreed order (see WAC 173-340-530) or consent decree (see WAC 173-340-520) for facilities that have not been assigned a hazard ranking score.

(f) Plan as part of order or decree.))(ii) Unless otherwise directed by ecology, a potentially liable person ((will ordinarily be required to))or prospective purchaser requesting an agreed order under WAC 173-340-530 or a consent decree under WAC 173-340-520 must submit a proposed ((public participation)) plan as part of its request ((for an agreed order or a consent decree)). If a plan already exists for the ((facility))site, the potentially liable person or prospective purchaser may either resubmit the existing plan with any proposed amendments or submit an entirely new proposed plan. The proposed plan may be revised during the course of discussions ((or negotiations)) on the agreed order (((see WAC 173-340-530))) or negotiations on the consent decree (((see WAC 173-340-520))). The final ((public participation)) plan may become part of the agreed order or consent decree.

(((g)))(d)Contents.((The))A public participation plan ((shall))must include the following:

(i) Applicable public notice requirements and how these will be met, including:

(A) When public notice will occur;

(B) The length of the comment periods accompanying each notice; and

(C) The potentially affected vicinity and any other areas to be provided notice, to the extent known((.));

(ii) Information repositories. The plan should identify at least one location where the public can review information about the remedial action. Multiple locations may be appropriate((.));

(iii) Methods of identifying the public's concerns. Such methods may include((:))interviews((;)), questionnaires((;)), meetings((;)), contacts with community groups or other organizations that have an interest in the site((;)), or establishing citizen advisory groups for sites; ((or obtaining advice from the appropriate regional citizens' advisory committee.))

(iv) Methods of addressing the public's concerns and conveying information to the public. These may include any of the methods listed in subsection (((6)))(4) of this section((.));

(v) Coordination of public participation requirements. The plan should identify any public participation requirements of other applicable federal, state or local laws, and address how such requirements can be coordinated. For example, if ((Comprehensive Environmental Response, Compensation and Liability Act (CERCLA)))the federal cleanup law applies to the proposed action, the plan should explain how ((CERCLA))the federal cleanup law and this chapter's public comment periods will be coordinated((.));

(vi) Amendments to the plan. The plan should outline the process for amending the plan. Any amendments must be approved by ((the department.

(viii)))ecology; and

(vii) Any other elements that ((the department))ecology determines to be appropriate for inclusion in the final public participation plan.

(((h)))(e) Site-specific risk assessment. If the variables proposed to be modified in a site-specific risk assessment or alternative reasonable maximum exposure scenario may affect the significant public concerns regarding future land uses and exposure scenarios, ecology will assure appropriate public involvement and comment opportunities will occur as identified in the plan.

(f)Implementation.((The department shall))Ecology retains approval authority over the actions taken by a potentially liable person or prospective purchaser to implement the plan.

(10) Consent decrees.((In addition to any other applicable public participation requirements, the following shall be required for consent decrees.))Ecology will provide or require the following notice and comment opportunities when negotiating a consent decree under WAC 173-340-520.

(a) Public participation plan.((A plan meeting the requirements of subsection (9) of this section shall be developed when required by))Ecology will develop, or require the development of, a public participation plan in accordance with subsection (9)(((d))) of this section.

(b) Notice of negotiations. When ((the department))ecology decides to proceed with negotiations ((it shall place a notice))for a consent decree, ecology will notify the public in the Contaminated Site Register((advising the public that negotiations have begun)). This notice ((shall))must include the name of the ((facility))site, a general description of the subject of the ((consent)) decree, and the deadlines for negotiations.

(c) Public notice of proposed decree.((The department shall))Ecology will provide or require public notice of a proposed consent decree in accordance with subsection (2) of this section. The public notice may be ((combined))consolidated with public notice of other documents under this chapter, such as a cleanup action plan, or notice required under other laws.

((The))(i) Timing. The public must be provided with notice and an opportunity to comment on a proposed consent decree before ecology agrees to a settlement.

(ii) Content. Notice ((shall))of a proposed consent decree must briefly:

(((i)))(A) Identify and generally describe the ((facility))site;

(((ii)))(B) Identify the ((person(s)))persons who are parties to the consent decree;

(((iii)))(C) Generally describe the remedial action proposed in the proposed consent decree, including institutional controls and permit exemptions authorized under RCW ((70.105D.090))70A.305.090;

(((iv)))(D) Indicate the ((date,)) place, date, and time of ((the))any planned public hearing on the proposed consent decree. ((Where))If a public hearing is not planned, specify the procedures for requesting one and indicate that ecology will only hold a public hearing ((will only be held)) if at least ((ten))10 persons request one ((and the procedures for requesting a public hearing)); and

(((v)))(E) Invite the public to comment at ((the))a public hearing (if applicable) or in writing.

((The public comment period shall run for))(iii) Comment opportunity. Ecology will provide the public at least ((thirty))30 days from the date ((of the issuance of)) the notice is issued to comment on the proposed consent decree.

(((d)))(iv)Public hearing.((The department shall))Ecology will hold a public hearing on the proposed consent decree for the purpose of providing the public with an opportunity to comment whenever ((ten))10 or more persons request a public hearing or whenever ((the department))ecology determines a public hearing is necessary.

(((e) Revisions.))(d) Public notice of substantial changes to proposed decree. If the state and the potentially liable person or prospective purchaser agree to substantial changes to ((the))a proposed consent decree, ((the department shall))ecology will provide or require additional public notice ((and opportunity to comment))of the proposed changes in accordance with subsection (2) of this section.

(((f) Extensions. The department shall publish in the next Site Register the extension of deadlines for designated high priority sites.))

(11) Agreed orders.((In addition to any other applicable public participation requirements, the following shall be required for))Ecology will provide or require the following notice and comment opportunities for an agreed order((s)) under WAC 173-340-530.

(a) Public participation plan.((A plan meeting the requirements of subsection (9) of this section shall be developed when required by))Ecology will develop, or require the development of, a public participation plan in accordance with subsection (9)(((d))) of this section.

(b) Notice of discussions. When ((the department))ecology decides to proceed with discussions ((it shall place a notice))for an agreed order, ecology will notify the public in the Contaminated Site Register((advising the public that discussions have commenced)). This notice ((shall))must include the name of the ((facility))site, a general description of the subject of the order, and the deadlines for discussions.

(c) Public notice of ((agreed orders))proposed order.((Public notice shall be provided by the department for any agreed order. For all agreed orders, notice shall be mailed))Ecology will provide or require public notice of a proposed agreed order in accordance with subsection (2) of this section. The public notice may be consolidated with public notice of other documents under this chapter, such as a cleanup action plan, or notice required under other laws.

(i) Timing. Ecology will provide or require notice of a proposed agreed order before or concurrent with the issuance of the agreed order. The notice must be provided no later than three days after ((the issuance of))ecology issues the agreed order. ((For all agreed orders, the comment period shall be at least thirty days. The))Unless ecology determines that it is not in the public interest, an agreed order may ((be))become effective before the comment period ((is over, unless the department determines it is in the public interest to complete the public comment period before the effective date of the agreed order. The department may determine that it is in the public interest to provide public notice before the effective date of any agreed order or to hold a public meeting or hearing on the agreed order))ends.

(ii) Content. Notice of a proposed agreed ((orders shall))order must briefly:

(((i)))(A) Identify and generally describe the ((facility))site;

(((ii)))(B) Identify the ((person(s)))persons who are parties to the agreed order;

(((iii)))(C) Generally describe the remedial action proposed in the proposed agreed order, including institutional controls and permit exemptions authorized under RCW ((70.105D.090))70A.305.090; and

(((iv)))(D) Invite the public to comment on the proposed agreed order.

(d) ((Revisions.))Public notice of substantial changes to proposed order. If ((the department))ecology and the potentially liable person or prospective purchaser agree to substantial changes to ((the))a proposed agreed order, ((the department shall))ecology will provide or require additional public notice ((and opportunity to comment))of the proposed changes in accordance with subsection (2) of this section.

(((e) Extensions. The department shall publish in the next Site Register the extension of deadlines for designated high priority sites.))

(12) Enforcement orders.((In addition to any other applicable public participation requirements, the department shall provide public notice of all enforcement orders.))Ecology will provide the public with the following notice and comment opportunities when preparing an enforcement order under WAC 173-340-540.

(A) Except in ((the case of)) emergencies, ecology will provide the notice ((shall be mailed)) no later than three days after ((the date of the issuance of))ecology issues the enforcement order.

(B) In emergencies, ecology will provide the notice ((shall be mailed)) no later than ((ten))10 days after ((the issuance of))ecology issues the enforcement order.

(((a)))(ii)Contents ((of notice)).((All notices shall))Notice of a proposed enforcement order must briefly:

(((i)))(A) Identify and generally describe the ((facility))site;

(((ii)))(B) Identify the ((person(s)))persons who are parties to the enforcement order;

(((iii)))(C) Generally describe the terms of the proposed enforcement order, including institutional controls and permit exemptions authorized under RCW ((70.105D.090))70A.305.090; and

(((iv)))(D) Invite the public to comment on the proposed enforcement order.

(((b) The department))(c) Public notice of substantial changes to proposed order. Ecology may amend the enforcement order ((on the basis of))based on public comments. ((The department shall provide additional public notice and opportunity to comment if the order is substantially changed.))If ecology substantially changes the enforcement order, ecology will provide additional public notice of the proposed changes in accordance with subsection (2) of this section.

(13) Remedial investigation/feasibility study.((In addition to any other applicable public participation requirements, the following shall be required during a remedial investigation/feasibility study.))For ecology-conducted and ecology-supervised remedial actions, ecology will require or provide the public with the following notice and comment opportunities during a remedial investigation and/or feasibility study conducted under WAC 173-340-350 and/or 173-340-351.

(a) ((Scoping. When the department elects to perform a remedial investigation/feasibility study, the department shall provide public notice and an opportunity to comment on the scope of the remedial investigation/feasibility study.))Public notice of work plan. For ecology-conducted remedial actions, ecology will provide public notice of a remedial investigation work plan in accordance with subsection (2) of this section. Ecology will provide the public at least 30 days from the date ecology issues the notice to comment on the plan.

(b) ((Extensions. The department shall publish in the next Site Register the extension of deadlines for designated high priority sites.

(c)))Public notice of report.((The department shall))Ecology will provide or require public notice of a remedial ((investigation/feasibility study reports prepared under WAC 173-340-350. This))investigation and/or feasibility study report in accordance with subsection (2) of this section. The public notice may be ((combined))consolidated with public notice of ((the))a draft cleanup action plan. ((At a minimum, public notice shall))When deciding whether to consolidate public notice, ecology will consider the factors in subsection (3) of this section.

(i) Content. Notice of a remedial investigation and/or feasibility study report must briefly:

(((i)))(A) Describe the site ((and));

(B) Describe the remedial ((investigation/feasibility))investigation and/or feasibility study results;

(((ii)))(C) If available, identify ((the department's))ecology's proposed cleanup action and provide an explanation for its selection; and

(((iii)))(D) Invite public comment on the report.

((The public comment period shall extend for))(ii) Comment opportunity. Ecology will provide the public at least ((thirty))30 days from the date ((of mailing of)) the notice is issued to comment on a remedial investigation and/or feasibility study report.

(14) Selection of cleanup actions.((In addition to any other applicable public participation requirements, the department shall:

(b) Provide public notice of the draft cleanup action plan. A notice of a draft cleanup plan may be combined with notice on the remedial investigation/feasibility study. Notice of a draft cleanup action plan may be combined with notice on a draft consent decree or on an order. At a minimum, public notice shall))For ecology-conducted and ecology-supervised remedial actions, ecology will require or provide the public with the following notice and comment opportunities when selecting a cleanup action under WAC 173-340-380.

(i) Content. Notice of a draft cleanup action plan must briefly:

(((i)))(A) Describe the site;

(((ii)))(B) Identify ((the department's))ecology's proposed cleanup action, including any model remedy, and provide an explanation for its selection; and

(((iii)))(C) Invite public comment on the ((draft))proposed cleanup action ((plan)).

((The public comment period shall run for))(ii) Comment opportunity. Ecology will provide the public at least ((thirty))30 days from the date ((of publication of the public notice.

(c) Whenever the cleanup action plan proposes a restrictive covenant as part of the draft cleanup plan, provide notice to and seek comments from the city or county department with land use planning authority for real property subject to the restrictive covenant. The purpose of this notification is to solicit comment on whether the proposed restrictive covenant is consistent with any current or proposed land use plans))the notice is issued to comment on a proposed cleanup action.

(iii) Provide notice of the plan's availability and a brief description of the selected cleanup action in the Contaminated Site Register under subsection (7) of this section.

(15) Cleanup action implementation.((In addition to any other applicable public participation requirements, the following shall be required during cleanup action implementation.

(a)))For ecology-conducted and ecology-supervised remedial actions, ecology will require or provide the public with the following notice and comment opportunities during cleanup action implementation under WAC 173-340-400.

(b) Public notice of plans implementing cleanup action. Ecology will provide or require public notice ((and opportunity to comment)) on any plans prepared under WAC 173-340-400 that represent a substantial change from the cleanup action plan. The public notice must be provided in accordance with subsection (2) of this section. Ecology will provide the public at least 30 days from the date the notice is issued to comment on the plan.

(((b) When the department conducts a cleanup action, public notice and an opportunity to comment shall be provided on the engineering design report and notice shall be given in the Site Register.))

(16) ((Routine cleanup and))Interim actions.((In addition to any other applicable public participation requirements, the following will be required for routine cleanup actions and interim actions.

(b) At a minimum, public notice shall))For ecology-conducted and ecology-supervised remedial actions, ecology will provide or require public notice of a draft interim action plan prepared under WAC 173-340-430. The public notice must be provided in accordance with subsection (2) of this section. The public notice may be consolidated with public notice of a proposed order or decree.

(a) Content. Notice of a draft interim action plan must briefly:

(i) Describe the site;

(ii) Identify the proposed interim action, including institutional controls and the permit exemptions authorized under RCW ((70.105D.090))70A.305.090;

(iii) Identify the likely or planned schedule for the proposed interim action;

(iv) Reference any planning documents prepared for the proposed interim action;

(v) Identify ((department))ecology staff who may be contacted for further information; and

(vi) Invite public comment on the ((routine cleanup or))proposed interim action.

((The public comment period shall extend for))(b) Comment opportunity. Ecology will provide the public at least ((thirty))30 days from the date ((of the mailing of))the notice is issued to comment on a proposed interim action.

(17) Removing sites from contaminated sites list. For ecology-conducted and ecology-supervised remedial actions, ecology will provide public notice before removing a site from the contaminated sites list under WAC 173-340-330. The public notice must be provided in accordance with subsection (2) of this section. Ecology will provide the public at least 30 days from the date ecology issues the notice to comment on the proposed removal from the contaminated sites list.

(21)Public participation grants. RCW ((70.105D.070(4)))70A.305.180(4) requires funds be allocated for public participation grants to persons, including groups who may be adversely affected by a release or threatened release of a hazardous substance. Persons interested in applying for such grants are encouraged to contact ((the department))ecology to learn about available funding, grant application procedures and deadlines. See chapter 173-321 WAC for additional information on public participation grants.

(((18) Technical assistance. There is created within the department a citizen technical advisor office to provide independent technical assistance to citizens concerning the Model Toxics Control Act and remedial actions occurring under the act. This office will be established upon the effective date of this rule revision and continue for three years. Before the end of the three-year period, the department will work with citizen and business representatives to evaluate the effectiveness of this office and to determine whether the office should continue. The costs of this office shall be recovered by the department as provided for in WAC 173-340-550.))(22) Other requirements. The following sections of this chapter specify additional requirements for providing notice or opportunity to comment.

(1) Purpose. Tribal engagement is an integral part of ecology's responsibilities under chapter 70A.305 RCW, the Model Toxics Control Act. Ecology's goal is to provide Indian tribes with timely information, effective communication, continuous opportunities for collaboration and, when necessary, government-to-government consultation, as appropriate for each site.

(2) Applicability. This section applies to ecology-conducted and ecology-supervised remedial actions affecting Indian tribes' rights or interests.

(3) Tribal engagement plan.

(a) Ecology will develop a site tribal engagement plan that identifies Indian tribes that may be adversely affected by the site, opportunities for government-to-government collaboration and consultation, and protocols for communication.

(b) Ecology encourages early planning and engagement. Ecology will seek to engage affected Indian tribes before initiating a remedial investigation or an interim action at a site.

(4) Relationship with public participation. Engagement of Indian tribes under this section must be in addition to and independent of any public participation process under this chapter or applicable laws.

PART ((VII))7 - CLEANUP STANDARDS

(1) Purpose. This section provides an overview of the methods for establishing cleanup standards that apply to a release or threatened release of a hazardous substance at a site. If there are any inconsistencies between this section and any specifically referenced section, the referenced section shall govern.

(2) Explanation of term "cleanup level." A cleanup level is the concentration of a hazardous substance in soil, water, air or sediment that is determined to be protective of human health and the environment under specified exposure conditions. Cleanup levels, in combination with points of compliance, typically define the area or volume of soil, water, air or sediment at a site that must be addressed by the cleanup action.

(3) Explanation of term "cleanup standards." Cleanup standards consist of the following:

(a) Cleanup levels for hazardous substances present at the site;

(b) The location where these cleanup levels must be met (point of compliance); and

(c) Other regulatory requirements that apply to the site because of the type of action and/or location of the site ("applicable state and federal laws").

(4) Relationship between cleanup standards and cleanup actions.

(a) Cleanup standards are identified for the particular hazardous substances at a site and the specific areas or pathways, such as land or water, where humans and the environment can become exposed to these substances. ((This))Part 7 of this chapter provides uniform methods statewide for identifying cleanup standards and requires that all cleanups under the act meet these standards. The actual degree of cleanup may vary from site to site and will be determined by the cleanup action alternative selected under WAC 173-340-350 through 173-340-390.

(b) For most sites, there are several cleanup technologies or combinations of cleanup technologies ("cleanup action alternatives") that may be used to comply with cleanup standards at individual sites. Other parts of this ((rule))chapter govern the process for planning and deciding on the cleanup action to be taken at a site. This may include establishing "remediation levels," or the concentrations of hazardous substances above which a particular cleanup technology will be applied. See WAC 173-340-350 through 173-340-390. WAC 173-340-355 contains detailed information on establishing remediation levels. WAC 173-340-410 specifies the monitoring required to ensure that the remedy is effective.

(c) Where a cleanup action involves containment of soils with hazardous substances above cleanup levels, the cleanup action may be determined to comply with cleanup standards, provided the compliance monitoring program is designed to ensure the long-term integrity of the containment system, and the other requirements for containment in this chapter are met.

(5) Methods for setting cleanup levels. The first step in setting cleanup levels is to identify the nature of the contamination, the potentially contaminated media, the current and potential pathways of exposure, the current and potential receptors, and the current and potential land and resource uses. A conceptual site model may be developed as part of this scoping process. Cleanup levels may then be established for each media. Both the conceptual site model and cleanup levels may be refined as additional information is collected during the remedial investigation/feasibility study. See WAC 173-340-708(3) for additional information on how to determine current and potential future land and resource uses for the conceptual site model. These rules provide three approaches for establishing cleanup levels:

(a) Method A: ARARs and Tables. On some sites, the cleanup action may be routine (WAC 173-340-200) or may involve relatively few hazardous substances. Under Method A, cleanup levels at these sites are set at concentrations at least as stringent as concentrations specified in applicable state and federal laws (ARARs) and Tables 720-1, 740-1, and 745-1 of this chapter.

Method A cleanup levels for hazardous substances that are deemed indicator hazardous substances at the site under WAC 173-340-708(2) and are not addressed under applicable state and federal laws or Tables 720-1, 740-1, and 745-1 must be established at concentrations which do not exceed the natural background concentration or the practical quantitation limit, whichever is higher.

For soil contamination, the potential impact of hazardous substances on terrestrial ecological receptors must be evaluated under WAC 173-340-7490 through 173-340-7494. Specifically, either an exclusion must be established for the site under WAC 173-340-7491 or a terrestrial ecological evaluation must be conducted under WAC 173-340-7492 or 173-340-7493. The terrestrial ecological evaluation may result in a more stringent Method A soil cleanup level than is required to protect human health.

Except where institutional controls are required by WAC 173-340-440(4), site cleanups that achieve Method A cleanup levels may be used without future restrictions on the property due to residual levels of contamination.

(b) Method B: Universal method. Method B is the universal method for determining cleanup levels for all media at all sites. Under Method B, cleanup levels for individual hazardous substances are established using applicable state and federal laws and the risk equations and other requirements specified in WAC 173-340-720 through 173-340-760.

Method B is divided into two tiers: Standard and modified. Standard Method B uses generic default assumptions to calculate cleanup levels. Modified Method B provides for the use of chemical-specific or site-specific information to change selected default assumptions, within the limitations allowed in WAC 173-340-708. Modified Method B may be used to establish cleanup levels.

Modified Method B may also be used in a quantitative risk assessment to help assess the protectiveness of a remedy by modifying input parameters as described in WAC 173-340-720 through 173-340-750 or by using other modifications that meet the requirements of WAC 173-340-702 and 173-340-708. See WAC 173-340-355 and 173-340-357 for more information on remediation levels and quantitative risk assessment.

For individual carcinogens, both standard and modified Method B cleanup levels are based upon the upper bound of the estimated excess lifetime cancer risk of one in ((one million))1,000,000 (1 × 10-6).

For individual noncarcinogenic substances, both standard and modified Method B cleanup levels are set at concentrations which are anticipated to result in no acute or chronic toxic effects on human health (that is, hazard quotient of one (((1))) or less) and no significant adverse effects on the propagation of aquatic and terrestrial organisms.

Where a ((hazardous waste)) site involves multiple hazardous substances and/or multiple pathways of exposure, then standard and modified Method B cleanup levels for individual substances must be adjusted downward for additive health effects in accordance with the procedures in WAC 173-340-708 if the total excess lifetime cancer risk for a site exceeds one in ((one hundred thousand))100,000 (1 × 10-5) or the hazard index for substances with similar noncarcinogenic toxic effects exceeds one (((1))).

For soil contamination, the potential impact of hazardous substances on terrestrial ecological receptors must be evaluated under WAC 173-340-7490 through 173-340-7494. Specifically, either an exclusion must be established for the site under WAC 173-340-7491 or a terrestrial ecological evaluation must be conducted under WAC 173-340-7492 or 173-340-7493. The terrestrial ecological evaluation may result in a more stringent Method B soil cleanup level for the site than is required to protect human health.

Except where institutional controls are required by WAC 173-340-440(4), site cleanups that achieve Method B cleanup levels may be used without future restrictions on the property due to residual levels of contamination.

(c) Method C: Conditional method. Compliance with cleanup levels developed under Method A or B may be impossible to achieve or may cause greater environmental harm. In those situations, Method C cleanup levels for individual hazardous substances may be established for surface water, groundwater, and air. Method C industrial soil and air cleanup levels may also be established at industrial properties that meet the criteria in WAC 173-340-745.

Under Method C, cleanup levels for individual hazardous substances are established using applicable state and federal laws and the risk equations and other requirements specified in WAC 173-340-720 through 173-340-760. Method C is divided into two tiers: Standard and modified. Standard Method C uses generic default assumptions to calculate cleanup levels. Modified Method C provides for the use of chemical-specific or site-specific information to change selected default assumptions, within the limitations allowed in WAC 173-340-708. Modified Method C may be used to establish cleanup levels.

Modified Method C may also be used in a quantitative risk assessment to help assess the protectiveness of a remedy by modifying input parameters as described in WAC 173-340-720 through 173-340-750 or by using other modifications that meet the requirements of WAC 173-340-702 and 173-340-708. See WAC 173-340-355 and 173-340-357 for more information on remediation levels and quantitative risk assessment.

For individual carcinogens, both standard and modified Method C cleanup levels are based upon the upper bound of the estimated lifetime cancer risk of one in ((one hundred thousand))100,000 (1 × 10-5).

For individual noncarcinogenic substances, both standard and modified Method C cleanup levels are set at concentrations which are anticipated to result in no acute or chronic toxic effects on human health (that is, hazard quotient of one (((1))) or less) and no significant adverse effects on the protection and propagation of aquatic and terrestrial organisms.

Where a ((hazardous waste)) site involves multiple hazardous substances and/or multiple pathways of exposure, then both standard and modified Method C cleanup levels for individual substances must be adjusted downward for additive health effects in accordance with the procedures in WAC 173-340-708 if the total excess lifetime cancer risk for a site exceeds one in ((one hundred thousand))100,000 (1 × 10-5) or the hazard index for substances with similar noncarcinogenic toxic effects exceeds one (((1))).

For soil contamination, the potential impact of hazardous substances on terrestrial ecological receptors must be evaluated under WAC 173-340-7490 through 173-340-7494. Specifically, either an exclusion must be established for the site under WAC 173-340-7491 or a terrestrial ecological evaluation must be conducted under WAC 173-340-7492 or 173-340-7493. The terrestrial ecological evaluation may result in a more stringent Method C soil cleanup level for the site than is required to protect human health.

Site cleanups establishing Method C cleanup levels must have restrictions placed on the property (institutional controls) to ensure future protection of human health and the environment.

(6) Requirements for setting cleanup levels. Several requirements apply to cleanups under any of the three methods. Some of these requirements, such as the identification of applicable state and federal laws, describe analyses used along with Methods A, B or C in order to set cleanup levels for particular substances at a site. Others describe the technical procedures to be used.

(a) Applicable state and federal laws. RCW ((70.105D.030 (2)(d)))70A.305.030 (2)(e) requires the cleanup standards in these rules to be "at least as stringent as all applicable state and federal laws." In addition to establishing minimum requirements for cleanup standards, applicable state and federal laws may also impose certain technical and procedural requirements for performing cleanup actions. These requirements are described in WAC 173-340-710 and are similar to the "ARAR" (applicable, relevant and appropriate requirements) approach of the federal superfund law. Sites that are cleaned up under an order or decree may be exempt from obtaining a permit under certain other laws but they must still meet the substantive requirements of these other laws. (See WAC 173-340-710(9).)

(b) Cross-media contamination. In some situations, migration of hazardous substances from one medium may cause contamination in a second media. For example, the release of hazardous substances in soil may cause groundwater contamination. Under Methods A, B, and C, cleanup levels must be established at concentrations that prevent violations of cleanup levels for other media.

(c) Risk assessment procedures. The analyses performed under Methods B and C use several default assumptions for defining cleanup levels for carcinogens and noncarcinogens. The individual default assumptions and procedures for modifying these assumptions based on site-specific information are specified in WAC 173-340-708 and 173-340-720 through 173-340-750. WAC 173-340-708 also provides rules for use of indicator hazardous substances. The standards for review of new scientific information are described in WAC 173-340-702 (14), (15) and (16).

(d) Natural background and analytical considerations. In some cases, cleanup levels calculated using the methods specified in this chapter are less than natural background levels or levels that can be reliably measured. In those situations, the cleanup level shall be established at a concentration equal to the practical quantitation limit or natural background concentration, whichever is higher. See WAC 173-340-707 and 173-340-709 for additional information.

(7) Procedures for demonstrating compliance with cleanup standards. Setting cleanup standards also involves being able to demonstrate that they have been met. This involves specifying where on the site the cleanup levels must be met ("points of compliance"), how long it takes for a site to meet cleanup levels ("restoration time frame"), and conducting sufficient monitoring to demonstrate that the cleanup standards have been met and will continue to be met in the future. The provisions for establishing points of compliance are in WAC 173-340-720 through 173-340-750. The provisions for establishing restoration time frames are in WAC 173-340-360. The compliance monitoring plan prepared under WAC 173-340-410 specifies precisely how these are measured for each site. At sites where remediation levels are used, the compliance monitoring plan will also need to describe the performance monitoring to be conducted to demonstrate the remediation levels have been achieved.

(8) Specific procedures for setting cleanup levels at petroleum contaminated sites. In addition to the other requirements in this section, this chapter provides for the following specific procedures to establish cleanup levels at sites where there has been a release of total petroleum hydrocarbons (TPH) and hazardous substances associated with a release of TPH.

(a) For soil contamination, the potential impact of TPH on terrestrial ecological receptors must be evaluated under WAC 173-340-7490 through 173-340-7494. Specifically, either an exclusion must be established for the site under WAC 173-340-7491 or a terrestrial ecological evaluation must be conducted under WAC 173-340-7492 or 173-340-7493. The terrestrial ecological evaluation may result in a more stringent soil cleanup level than is required to protect human health.

(b) It is necessary to analyze for and evaluate certain carcinogenic and noncarcinogenic hazardous substances that may be associated with a release of TPH. These are identified in Table 830-1. In cases where the cleanup level for one or more of these associated hazardous substances is exceeded but the TPH cleanup level is not, the cleanup level shall be based on the associated hazardous substance.

(i) Method A. Method A may be used to establish cleanup levels for TPH and associated hazardous substances at qualifying sites (see WAC 173-340-704). At these sites, the presence, location and concentration of TPH may be established by using the NWTPH method described ((under Method 6 (see WAC 173-340-830 (3)(a)(vi))))in the "Analytical Methods for Petroleum Hydrocarbons," publication number 97-602, dated June 1997. The NWTPH method is a simplified, and relatively inexpensive, analytical method for evaluating TPH. Method A cleanup levels have been determined for four common petroleum mixtures: Gasoline range organics (GRO), diesel range organics (DRO), heavy oils, and electrical insulating mineral oil, as well as many hazardous substances that may be associated with the TPH. A site owner may decide to use Method A for some substances or media and Method B or C for others, depending upon site conditions and qualifications.

(ii) Method B and Method C tiered approach. This chapter provides for a three-tiered approach for establishing Method B and Method C cleanup levels at sites that involve a release of TPH. These tiers are not required to be approached sequentially (that is, the process may be started at any tier). The tiered process allows one to calculate different cleanup levels for TPH and associated hazardous substances using progressively more complex and site-specific information, and also allows for basing the cleanup levels on the presence or absence of exposure pathways, determined as part of the conceptual site model. In establishing a TPH cleanup level using the tiered process, it is still necessary to comply with other requirements and procedures under WAC 173-340-700 through 173-340-750.

(A) Conceptual site model. The first step in setting Method B or C cleanup levels for TPH is to identify the nature of the contamination, the potentially contaminated media, the current and potential pathways of exposure, the current and potential receptors, and the current and potential land and resource uses. A conceptual site model should be developed as part of this scoping process. See WAC 173-340-708(3) for additional information on how to determine current and potential future land and resource uses for the conceptual site model.

(B) General description of the three tiers.

(I) Tier 1 consists of the standard Method B and Method C formulas and requirements under WAC 173-340-720 through 173-340-750 for each applicable pathway identified by the conceptual site model, including specific requirements set forth in those sections for petroleum mixtures.

(II) Tier 2 consists of the site-specific use of modified Method B and Method C formulas and requirements under WAC 173-340-720 through 173-340-750 for each applicable exposure pathway identified by the conceptual site model; and inclusion and development of additional, site-specific exposure pathways not addressed in Method A or Tier 1.

(III) Tier 3 consists of the site-specific use of standard or modified Method B and Method C formulas and requirements for each applicable exposure pathway identified by the conceptual site model and the use of new scientific information to establish a cleanup level as provided under WAC 173-340-702 (14), (15) and (16). It is considered a more complex evaluation in terms of technical sophistication (such as the use of new fate and transport models), data needs, cost and time.

(IV) A single tier may be used for all exposure pathways or more than one tier may be used when there are multiple exposure pathways.

(C) Fractionated approach. Method B and Method C cleanup levels for TPH are determined using the fractionated analytical approach for petroleum as described ((under Method 6 (see WAC 173-340-830 (3)(a)(vi))))in the "Analytical Methods for Petroleum Hydrocarbons," publication number 97-602, dated June 1997. This approach divides the TPH mixture into equivalent carbon numbers. Use of the fractionated approach requires testing or knowledge to define product composition as described under subsection (8)(b)(ii)(D) of this section ("Determination of product composition"). Cleanup levels are then calculated using reference doses that have been determined by the department for each fraction. Cleanup levels also need to consider the measured or predicted ability of the fractions to migrate from one medium to other media. Where multiple pathways of exposure for a particular medium are identified in the conceptual site model, the most stringent of the concentrations calculated for the various pathways becomes the cleanup level. For example, for soil contamination, if the direct contact and leaching pathways are potential exposure pathways, then a soil concentration would be calculated for each pathway and the lowest calculated concentration would become the cleanup level.

(D) Determination of product composition. Product composition may be determined by analyzing each sample in accordance with the VPH/EPH method described ((under Method 6 (see WAC 173-340-830 (3)(a)(vi))))in the "Analytical Methods for Petroleum Hydrocarbons," publication number 97-602, dated June 1997. Alternatively, product composition may be determined by one of the following methods:

(I) Correlation. Where WTPH or NWTPH methods described in Method 6 are used to collect and analyze the presence, location and concentration of TPH, knowledge of the fraction-specific composition of the petroleum released at the site may be based on analysis and correlation of a portion of the site samples with both the VPH/EPH and WTPH/NWTPH methods.

(II) Retrofitting. Where WTPH or NWTPH methods were used to collect and analyze the presence, location and concentration of TPH before the effective date of this provision, knowledge of the fraction-specific composition of the petroleum released at the site may be based on the fraction-specific composition assumptions used by the department to calculate Method A cleanup levels, which the department shall publish in guidance. If the identity of the petroleum product released at the site is not known, or is a mixture of products, retrofitting under this provision shall be based on the composition that yields the lowest TPH cleanup level.

(E) Consultation with the department. Because of the complexity of the development of site-specific Method B and Method C petroleum cleanup levels using the second or third tiers described above, or the use of correlated or retrofitted data, persons planning on using these methods are encouraged to contact the department to obtain appropriate technical guidance.

(1) Purpose. This section defines the general policies and principles that shall be followed when establishing and implementing cleanup standards. This section shall be used in combination with other sections of this chapter.

(2) Policy on expediting cleanups. Establishing cleanup standards and selecting an appropriate cleanup action involves many technical and public policy decisions. This chapter is intended to constrain the range of decisions made on individual sites to promote expeditious cleanups.

(3) Goal for cleanups. The Model Toxics Control Act contains policies that state, in part, each person has a fundamental and inalienable right to a healthful environment and it is essential that sites be cleaned up well. Consistent with these policies, cleanup standards and cleanup actions selected under this chapter shall be established that provide conservative estimates of human health and environmental risks that protect susceptible individuals as well as the general population.

(4) Current and potential site and resource uses. Cleanup standards and cleanup actions selected under this chapter shall be established that protect human health and the environment for current and potential future site and resource uses.

(5) Presumption for cleanup actions. Cleanup actions that achieve cleanup levels at the applicable point of compliance under Methods A, B, or C (as applicable) and comply with applicable state and federal laws shall be presumed to be protective of human health and the environment.

(6) Cost considerations. Except as provided for in applicable state and federal laws, cost shall not be a factor in determining what cleanup level is protective of human health and the environment. In addition, where specifically provided for in this chapter, cost may be appropriate for certain other determinations related to cleanup standards such as point of compliance. Cost shall, however, be considered when selecting an appropriate cleanup action.

(7) Cleanup action alternatives. At most sites, there is more than one hazardous substance and more than one pathway for hazardous substances to get into the environment. For many sites there is more than one method of cleanup (cleanup action component) that could address each of these. When evaluating cleanup action alternatives it is appropriate to consider a representative range of cleanup action components that could address each of these as well as different combinations of these components to accomplish the overall site cleanup.

(8) Cross-media impacts. The cleanup of a particular medium at a site will often affect other media at the site. These cross-media impacts shall be considered when establishing cleanup standards and selecting a cleanup action. Cleanup actions conducted under this chapter shall use appropriate engineering controls or other measures to minimize these cross-media impacts.

(9) Relationship between cleanup levels and cleanup actions. In general, cleanup levels must be met throughout a site before the site will be considered clean. A cleanup action that leaves hazardous substances on a site in excess of cleanup levels may be acceptable as long as the cleanup action complies with WAC 173-340-350 through 173-340-390. However, these rules are intended to promote thorough cleanups rather than long-term partial cleanups or containment measures.

(10) Relationship to federal cleanup law. When evaluating cleanup actions performed under the federal cleanup law, the department shall consider WAC 173-340-350, 173-340-351, 173-340-355, 173-340-357, 173-340-360, 173-340-370, 173-340-410, 173-340-420, 173-340-440, 173-340-450, 173-340-700 through 173-340-760, and 173-340-830 to be legally applicable requirements under Section 121(d) of the federal cleanup law.

(11) Reviewing and updating cleanup standards. The department shall review and, as appropriate, update ((WAC 173-340-700 through 173-340-760))Part 7 of this chapter at least once every five years.

(12) Applicability of new cleanup levels.

(a) For cleanup actions conducted by the department, or under an order or decree, the department shall determine the cleanup level that applies to a release based on the rules in effect under this chapter at the time the department issues a final cleanup action plan for that release.

(b) In reviewing the adequacy of independent remedial actions, the department shall determine the cleanup level that applies to a release based on the rules in effect at the time the final cleanup action for that release began or in effect when the department reviews the cleanup action, whichever is less stringent.

(c) A release cleaned up under the cleanup levels determined in (a) or (b) of this subsection shall not be subject to further cleanup action due solely to subsequent amendments to the provisions in this chapter on cleanup levels, unless the department determines, on a case-by-case basis, that the previous cleanup action is no longer sufficiently protective of human health and the environment.

(d) Nothing in this subsection constitutes a settlement or release of liability under the Model Toxics Control Act.

(13) Institutional controls. Institutional controls shall be required whenever any of the circumstances identified in WAC 173-340-440(4) are present at a site.

(14) Burden of proof. Any person responsible for undertaking a cleanup action under this chapter who proposes to:

(a) Use a reasonable maximum exposure scenario other than the default provided for each medium;

(b) Use assumptions other than the default values provided for in this chapter;

(c) Establish a cleanup level under Method C; or

(d) Use a conditional point of compliance, shall have the burden of demonstrating to the department that requirements in this chapter have been met to ensure protection of human health and the environment. The department shall only approve of such proposals when it determines that this burden of proof is met.

(15) New scientific information. The department shall consider new scientific information when establishing cleanup levels and remediation levels for individual sites. In making a determination on how to use this new information, the department shall, as appropriate, consult with the science advisory board, the department of health, and the United States Environmental Protection Agency. Any proposal to use new scientific information shall meet the quality of information requirements in subsection (16) of this section. To minimize delay in cleanups, any proposal to use new scientific information should be introduced as early in the cleanup process as possible. Proposals to use new scientific information may be considered up to the time of issuance of the final cleanup action plan governing the cleanup action for a site unless triggered as part of a periodic review under WAC 173-340-420 or through a reopener under RCW ((70.105D.040))70A.305.040 (4)(c).

(16) Criteria for quality of information.

(a) The intent of this subsection is to establish minimum criteria to be considered when evaluating information used by or submitted to the department proposing to modify the default methods or assumptions specified in this chapter or proposing methods or assumptions not specified in this chapter for calculating cleanup levels and remediation levels. This subsection does not establish a burden of proof or alter the burden of proof provided for elsewhere in this chapter.

(b) When deciding whether to approve or require modifications to the default methods or assumptions specified in this chapter for establishing cleanup levels and remediation levels or when deciding whether to approve or require alternative or additional methods or assumptions, the department shall consider information submitted by all interested persons and the quality of that information. When evaluating the quality of the information the department shall consider the following factors, as appropriate for the type of information submitted:

(i) Whether the information is based on a theory or technique that has widespread acceptance within the relevant scientific community;

(ii) Whether the information was derived using standard testing methods or other widely accepted scientific methods;

(iii) Whether a review of relevant available information, both in support of and not in support of the proposed modification, has been provided along with the rationale explaining the reasons for the proposed modification;

(iv) Whether the assumptions used in applying the information to the facility are valid and would ensure the proposed modification would err on behalf of protection of human health and the environment;

(v) Whether the information adequately addresses populations that are more highly exposed than the population as a whole and are reasonably likely to be present at the site; and

(vi) Whether adequate quality assurance and quality control procedures have been used, any significant anomalies are adequately explained, the limitations of the information are identified, and the known or potential rate of error is acceptable.

(1) Applicability. Method A may be used to establish cleanup levels at sites that have few hazardous substances and that meet one of the following criteria:

(a) Sites undergoing a routine cleanup action as defined in WAC 173-340-200; or

(b) Sites where numerical standards are available in this chapter or applicable state and federal laws for all indicator hazardous substances in the media for which the Method A cleanup level is being used.

(2) Procedures. Method A cleanup levels shall be established in accordance with the procedures in WAC 173-340-720 through 173-340-760. Method A cleanup levels shall be at least as stringent as all of the following:

(a) Concentrations of individual hazardous substances listed in Tables 720-1, 740-1, or 745-1 in this chapter;

(b) Concentrations of individual hazardous substances established under applicable state and federal laws;

(c) Concentrations that result in no significant adverse effects on the protection and propagation of terrestrial ecological receptors using the procedures specified in WAC 173-340-7490 through ((173-340-7493))173-340-7494, unless it is demonstrated under those sections that establishing a soil concentration is unnecessary; and

(d) For individual hazardous substances deemed indicator hazardous substances for the medium of concern under WAC 173-340-708(2) and not addressed under (a) and (b) of this subsection, concentrations that do not exceed natural background levels or the practical quantitation limit, whichever is higher, for the substance in question.

(3) More stringent cleanup levels. The department may establish Method A cleanup levels more stringent than those required by subsection (2) of this section, when based on a site-specific evaluation, the department determines that such levels are necessary to protect human health and the environment. Any imposition of more stringent requirements under this provision shall comply with WAC 173-340-702 and 173-340-708.

(4) Remediation levels. Under Method A, the Method B formulas may be modified for the purpose of using a human health risk assessment to evaluate the protectiveness of a remedy. WAC 173-340-708 (3) and (10) describe the adjustments that can be made to the Method B formulas. Also see WAC 173-340-355 and 173-340-357 for more detailed information on remediation levels and quantitative risk assessment.

(5) Inconsistencies. If there are any inconsistencies between this section and any specifically referenced sections, the referenced section shall govern.

(1) Applicable state and federal laws.

All cleanup actions conducted under this chapter shall comply with applicable state and federal laws. For purposes of this chapter, the term "applicable state and federal laws" shall include legally applicable requirements and those requirements that the department determines, based on consideration of the criteria in subsection (4) of this section, are relevant and appropriate requirements.

(2) Department determination. The person conducting a cleanup action shall identify all applicable state and federal laws. The department shall make the final interpretation on whether these requirements have been correctly identified and are legally applicable or relevant and appropriate.

(3) Legally applicable requirements. Legally applicable requirements include those cleanup standards, standards of control, and other environmental protection requirements, criteria, or limitations adopted under state or federal law that specifically address a hazardous substance, cleanup action, location or other circumstances at the site.

(4) Relevant and appropriate requirements. Relevant and appropriate requirements include those cleanup standards, standards of control, and other environmental requirements, criteria, or limitations established under state or federal law that, while not legally applicable to the hazardous substance, cleanup action, location, or other circumstance at a site, address problems or situations sufficiently similar to those encountered at the site that their use is well suited to the particular site. WAC 173-340-710 through 173-340-760 identifies several requirements the department shall consider relevant and appropriate for establishing cleanup standards. For other regulatory requirements, the following criteria shall be evaluated, where pertinent, to determine whether such requirements are relevant and appropriate for a particular hazardous substance, remedial action, or site:

(a) Whether the purpose for which the statute or regulations under which the requirement was created is similar to the purpose of the cleanup action;

(b) Whether the media regulated or affected by the requirement is similar to the media contaminated or affected at the site;

(c) Whether the hazardous substance regulated by the requirement is similar to the hazardous substance found at the site;

(d) Whether the entities or interests affected or protected by the requirement are similar to the entities or interests affected by the site;

(e) Whether the actions or activities regulated by the requirement are similar to the cleanup action contemplated at the site;

(f) Whether any variance, waiver, or exemption to the requirements are available for the circumstances of the site;

(g) Whether the type of place regulated is similar to the site;

(h) Whether the type and size of structure or site regulated is similar to the type and size of structure or site affected by the release or contemplated by the cleanup action; and

(i) Whether any consideration of use or potential use of affected resources in the requirement is similar to the use or potential use of the resources affected by the site or contemplated cleanup action.

(5) Variances. For purposes of this chapter, a regulatory variance or waiver provision included in an applicable state and federal law shall be considered potentially applicable to interim actions and cleanup actions and the department may determine that a particular regulatory variance or waiver is appropriate if the substantive conditions for such a regulatory variance or waiver are met. In all such cases, interim actions and cleanup actions shall be protective of human health and the environment.

(6) New requirements. The department shall consider new applicable state and federal laws as part of the periodic review under WAC 173-340-420. Cleanup actions shall be evaluated in light of these new requirements to determine whether the cleanup action is still protective of human health and the environment.

(7) Selection of cleanup actions. To demonstrate compliance with WAC 173-340-350 through 173-340-390, cleanup actions shall comply with all applicable state and federal laws in addition to the other requirements of this chapter. The following, which is not a complete list, are selected applications of specific applicable state and federal laws to cleanup actions.

(a) Water discharge requirements. Hazardous substances that are directly or indirectly released or proposed to be released to waters of the state shall be provided with all known, available and reasonable methods of treatment consistent with the requirements of chapters 90.48 and 90.54 RCW and the regulations that implement those statutes.

(b) Air emission requirements. Best available control technologies consistent with the requirements of chapter 70.94 RCW and the regulations that implement this statute shall be applied to releases of hazardous substances to the air resulting from cleanup actions at a site.

(c) Solid waste landfill closure requirements. For solid waste landfills, the solid waste closure requirements in chapter 173-304 WAC shall be minimum requirements for cleanup actions conducted under this chapter. In addition, when the department determines that the closure requirements in chapters 173-351 or 173-303 WAC are legally applicable or relevant and appropriate requirements, the more stringent closure requirements under those laws shall also apply to cleanup actions conducted under this chapter.

(d) Sediment management requirements. Sediment cleanup actions conducted under this chapter shall comply with the sediment cleanup standards in chapter 173-204 WAC. In addition, a remedial investigation/feasibility study conducted under WAC 173-340-350 and 173-340-351 shall also comply with the cleanup study plan requirements under chapter 173-204 WAC. The process for selecting sediment cleanup actions under this chapter shall comply with the requirements in WAC 173-340-350 through 173-340-390.

(8) Interim actions. Interim actions conducted under this chapter shall comply with legally applicable requirements. The department may also determine, based on the criteria in subsection (3) of this section, that other requirements, criteria, or limitations are relevant and appropriate for interim actions.

(9) Permits and exemptions.

(a) Independent remedial actions must obtain permits required by other federal, state and local laws.

(b) Under RCW ((70.105D.090))70A.305.090, remedial actions conducted under a consent decree, order, or agreed order, and the department when it conducts a remedial action are exempt from the procedural requirements of certain laws. This exemption shall not apply if the department determines that the exemption would result in loss of approval from a federal agency necessary for the state to administer any federal law. This exemption applies to the following laws:

(i) Chapter ((70.94))70A.15 RCW;

(ii) Chapter ((70.95))70A.205 RCW;

(iii) Chapter ((70.105))70A.300 RCW;

(iv) Chapter ((75.20))77.55 RCW;

(v) Chapter 90.48 RCW;

(vi) Chapter 90.58 RCW; and

(vii) Any laws requiring or authorizing local government permits or approvals for the remedial action.

(c) Remedial actions exempt from procedural requirements under (a) and (b) of this subsection still must comply with the substantive requirements of these laws.

(d) The department shall ensure compliance with substantive requirements and provide an opportunity for comment by the public and by the state agencies and local governments that would otherwise implement these laws as follows:

(i) Before proposing any substantive requirements, the department or potentially liable persons, if directed to do so by the department, shall consult with the state agencies and local governments to identify potential permits and to obtain written documentation from the consulted agencies regarding the substantive requirements for permits exempted under RCW ((70.105D.090))70A.305.090.

(ii) The permit exemptions and the substantive requirements, to the extent they are known, shall be identified by the department in the order, decree, or if the cleanup is being conducted by the department, in the work plan prepared by the department.

(iii) A public notice of the order, decree or work plan shall be issued in accordance with WAC 173-340-600. The notice shall specifically identify the permits exempted under RCW ((70.105D.090))70A.305.090 and seek comment on the substantive requirements proposed to be applied to the remedial action. This notice shall be ((mailed))provided to the state agencies and local governments that would otherwise implement these permits. This notice shall also be ((mailed))provided to the same individuals that the state agencies and local government have identified that would normally be ((mailed))provided notice to if a permit was being issued.

(iv) Substantive requirements, to the extent known and identified by the state agencies and local governments before issuing the order, decree or work plan and those identified by the state agencies and local government during the public comment period shall be incorporated into the order, decree or work plan if approved by the department.

(e) It shall be the continuing obligation of persons conducting remedial actions to determine whether additional permits or approvals or substantive requirements are required. In the event that either the person conducting the remedial action or the department becomes aware of additional permits or approvals or substantive requirements that apply to the remedial action, they shall promptly notify the other party of this knowledge. The department, or the potentially liable person at the department's request, shall consult with the state or local agency on these additional requirements. The department shall make the final determination on the application of any additional substantive requirements at the site.

(1) General considerations.

(a) Groundwater cleanup levels shall be based on estimates of the highest beneficial use and the reasonable maximum exposure expected to occur under both current and potential future site use conditions. The department has determined that at most sites use of groundwater as a source of drinking water is the beneficial use requiring the highest quality of groundwater and that exposure to hazardous substances through ingestion of drinking water and other domestic uses represents the reasonable maximum exposure. Unless a site qualifies under subsection (2) of this section for a different groundwater beneficial use, groundwater cleanup levels shall be established using this presumed exposure scenario and be established in accordance with subsection (3), (4) or (5) of this section. If the site qualifies for a different groundwater beneficial use, groundwater cleanup levels shall be established under subsection (6) of this section.

(b) In the event of a release of a hazardous substance at a site, a cleanup action complying with this chapter shall be conducted to address all areas where the concentration of the hazardous substance in groundwater exceeds cleanup levels.

(c) Groundwater cleanup levels shall be established at concentrations that do not directly or indirectly cause violations of surface water, sediments, soil, or air cleanup standards established under this chapter or other applicable state and federal laws. A site that qualifies for a Method C groundwater cleanup level under this section does not necessarily qualify for a Method C cleanup level in other media. Each medium must be evaluated separately using the criteria applicable to that medium.

(d) The department may require more stringent cleanup levels than specified in this section where necessary to protect other beneficial uses or otherwise protect human health and the environment. Any imposition of more stringent requirements under this provision shall comply with WAC 173-340-702 and 173-340-708. The following are examples of situations that may require more stringent cleanup levels:

(i) Concentrations that are necessary to protect sensitive subgroups;

(ii) Concentrations that eliminate or minimize the potential for food chain contamination;

(iii) Concentrations that eliminate or minimize the potential for damage to soils or biota in the soils which could impair the use of the soil for agricultural or silvicultural purposes;

(iv) Concentrations that eliminate or minimize the potential for the accumulation of vapors in buildings or other structures to concentrations which pose a threat to human health or the environment; and

(v) Concentrations that protect nearby surface waters.

(2) Potable groundwater defined. Groundwater shall be classified as potable to protect drinking water beneficial uses unless the following can be demonstrated:

(a) The groundwater does not serve as a current source of drinking water;

(b) The groundwater is not a potential future source of drinking water for any of the following reasons:

(i) The groundwater is present in insufficient quantity to yield greater than 0.5 gallon per minute on a sustainable basis to a well constructed in compliance with chapter 173-160 WAC and in accordance with normal domestic water well construction practices for the area in which the site is located;

(ii) The groundwater contains natural background concentrations of organic or inorganic constituents that make use of the water as a drinking water source not practicable. Groundwater containing total dissolved solids at concentrations greater than 10,000 mg/l shall normally be considered to have fulfilled this requirement; (NOTE: The total dissolved solids concentration provided here is an example. There may be other situations where high natural background levels also meet this requirement.) or

(iii) The groundwater is situated at a great depth or location that makes recovery of water for drinking water purposes technically impossible; and

(c) The department determines it is unlikely that hazardous substances will be transported from the contaminated groundwater to groundwater that is a current or potential future source of drinking water, as defined in (a) and (b) of this subsection, at concentrations which exceed groundwater quality criteria published in chapter 173-200 WAC.

In making a determination under this provision, the department shall consider site-specific factors including:

(i) The extent of affected groundwater;

(ii) The distance to existing water supply wells;

(iii) The likelihood of interconnection between the contaminated groundwater and groundwater that is a current or potential future source of drinking water due to well construction practices in the area of the state where the site is located;

(iv) The physical and chemical characteristics of the hazardous substance;

(v) The hydrogeologic characteristics of the site;

(vi) The presence of discontinuities in the affected geologic stratum; and

(vii) The degree of confidence in any predictive modeling performed.

(d) Even if groundwater is classified as a potential future source of drinking water under (b) of this subsection, the department recognizes that there may be sites where there is an extremely low probability that the groundwater will be used for that purpose because of the site's proximity to surface water that is not suitable as a domestic water supply. An example of this situation would be shallow groundwaters in close proximity to marine waters such as on Harbor Island in Seattle. At such sites, the department may allow groundwater to be classified as nonpotable for the purposes of this section if each of the following conditions can be demonstrated. These determinations must be for reasons other than that the groundwater or surface water has been contaminated by a release of a hazardous substance at the site.

(i) The conditions specified in (a) and (c) of this subsection are met;

(ii) There are known or projected points of entry of the groundwater into the surface water;

(iii) The surface water is not classified as a suitable domestic water supply source under chapter 173-201A WAC; and

(iv) The groundwater is sufficiently hydraulically connected to the surface water that the groundwater is not practicable to use as a drinking water source.

(3) Method A cleanup levels for potable groundwater.

(a) Applicability. Method A groundwater cleanup levels may only be used at sites qualifying under WAC 173-340-704(1).

(b) General requirements. Method A cleanup levels shall be at least as stringent as all of the following:

(i) Concentrations listed in Table 720-1 and compliance with the corresponding footnotes;

(ii) Concentrations established under applicable state and federal laws, including the following requirements:

(A) Maximum contaminant levels established under the Safe Drinking Water Act and published in 40 C.F.R. 141;

(B) Maximum contaminant level goals for noncarcinogens established under the Safe Drinking Water Act and published in 40 C.F.R. 141;

(C) Maximum contaminant levels established by the state board of health and published in chapter 246-290 WAC.

(iii) For hazardous substances deemed indicator hazardous substances for groundwater under WAC 173-340-708(2) and for which there is no value in Table 720-1 or applicable state and federal laws, concentrations that do not exceed natural background or the practical quantitation limit, subject to the limitations in this chapter.

(iv) Protection of surface water beneficial uses. Concentrations established in accordance with the methods specified in WAC 173-340-730 for protecting surface water beneficial uses, unless it can be demonstrated that the hazardous substances are not likely to reach surface water. This demonstration must be based on factors other than implementation of a cleanup action at the site.

(4) Method B cleanup levels for potable groundwater.

(a) Applicability. Method B potable groundwater cleanup levels consist of standard and modified cleanup levels determined using the procedures in this subsection. Either standard or modified Method B groundwater cleanup levels based on drinking water beneficial uses may be used at any site.

(b) Standard Method B potable groundwater cleanup levels. Where the groundwater cleanup level is based on a drinking water beneficial use, standard Method B cleanup levels shall be at least as stringent as all of the following:

(i) Applicable state and federal laws. Concentrations established under applicable state and federal laws, including the requirements in subsection (3)(b)(ii) of this section;

(ii) Protection of surface water beneficial uses. Concentrations established in accordance with the methods specified in WAC 173-340-730 for protecting surface water beneficial uses, unless it can be demonstrated that the hazardous substances are not likely to reach surface water. This demonstration must be based on factors other than implementation of a cleanup action at the site.

(iii) Human health protection. For hazardous substances for which sufficiently protective, health-based criteria or standards have not been established under applicable state and federal laws, those concentrations which protect human health as determined by the following methods:

(A) Noncarcinogens. Concentrations that are estimated to result in no acute or chronic toxic effects on human health as determined using Equation 720-1.

(B) Carcinogens. For known or suspected carcinogens, concentrations for which the upper bound on the estimated excess cancer risk is less than or equal to one in ((one million))1,000,000 (1 × 10-6) as determined using Equation 720-2.