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

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

(b) A Contaminated Site Register and, if requested, site-specific electronic alerts of changes to site information; and

(c) For ecology-conducted and ecology-supervised remedial actions, early planning and development of site-specific public participation plans, public notice of proposed actions, and public meetings or hearings.

(2) Public notice. Whenever public notice of a proposed action is required under this chapter, ecology will provide or require at least the following notice and opportunity to comment.

(a) Notification methods.

(i) Website. Ecology will make the proposed action publicly available on ecology's website under subsection (5) of this section;

(ii) Electronic alert. If requested, ecology will alert a person electronically of the proposed action's availability under subsection (6) of this section;

(iii) Contaminated Site Register. Ecology will provide notice of the proposed action's availability in the Contaminated Site Register under subsection (7) of this section.

(iv) Persons requesting notice. Written notice must be sent to persons who have made a timely request of ecology. A request for notice is timely if received before or during the public comment period for the current phase of remedial action at the site. However, the receipt of a request for notice does not require ecology to extend the comment period associated with the notice. Ecology may use an electronic alert under subsection (6) of this section to satisfy this requirement.

(v) Persons residing within potentially affected vicinity. Written notice must be sent to persons residing within the potentially affected vicinity of the proposed action. The potentially affected vicinity includes all property within and contiguous to the site and any other area that ecology determines to be directly affected by the proposed action.

(vi) Appropriate news media. Written notice of the proposed action must be sent to any news media that ecology determines to be appropriate. Ecology may consider how a news medium compares with the newspaper of largest circulation in terms of: Audience reached; timeliness; adequacy in conveying the particular information in the notice; cost; or other relevant factors.

(vii) Newspaper publication. If required under chapter 70A.305 RCW or by ecology, written notice of the proposed action must be published in the newspaper of largest circulation in the city or county of the proposed action, by one or more of the following methods: Display ad; legal notice; or any other appropriate format, as determined by ecology.

(b) Comment opportunity.

(i) Comment periods. A public notice must indicate the public comment period on the proposed action. Unless otherwise specified in this chapter, the public comment period must be at least 30 days. Ecology may extend the public comment period, as appropriate.

(ii) Public meetings. During any comment period announced by a public notice issued under this chapter, if 10 or more persons request a public meeting on the subject of the public notice, ecology will hold a public meeting for the purpose of receiving comments.

(c) Consolidating notice and comment opportunities. Whenever reasonable, ecology will consolidate public notice required under this chapter with notice and comment opportunities required under other laws and regulations.

(d) Site-specific risk assessment. For public notices describing cleanup plans that use site-specific risk assessment or would restrict future site or resource use, the public notice must specifically identify the restrictions and invite comments on these elements of the cleanup plan. This notice must also include a statement indicating the availability of public participation grants.

(3) Additional opportunities. To promote effective and meaningful public participation, ecology may provide or require public participation opportunities in addition to those specifically required under this chapter. In making this determination, 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 site;

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

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

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

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

(h) Any other factors as determined by ecology.

(4) Additional 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;

(d) Publications;

(e) Personal contact by ecology employees;

(f) Posting signs at the site;

(g) Notice in the Contaminated Site Register;

(h) Notice through the internet;

(i) Any other methods as determined by ecology.

(5) Site-specific information on website. For sites on the contaminated sites list and the no further action sites list, ecology will make at least the following site-specific information publicly available on ecology's website:

(a) The date ecology or PLIA discovered or received notice of the release or, if this date is not known, the earliest date of administrative activity in ecology's site database;

(b) The site's current listing and remedial action status identified under WAC 173-340-330;

(d) Any initial investigation report prepared under WAC 173-340-310;

(e) For ecology-conducted or ecology-supervised remedial actions:

(i) Any proposed action requiring public notice under this chapter; and

(ii) Any final cleanup action plan issued under WAC 173-340-380;

(f) For independent remedial actions:

(i) Any independent investigation, interim action, or cleanup action report required under WAC 173-340-515(4) and received by ecology; and

(ii) The results of any ecology review of an independent remedial action, including any written opinion issued by ecology under WAC 173-340-515(5);

(g) Whether institutional controls are currently required, and any document implementing, amending, or removing an institutional control under WAC 173-340-440;

(h) Whether periodic reviews are currently required, and any periodic review report prepared under WAC 173-340-420;

(i) Instructions on how to sign up for the site-specific electronic alerts provided by ecology under subsection (6) of this section; and

(j) Any other information ecology considers appropriate for inclusion.

(6) Site-specific electronic alerts. For sites on the contaminated sites list and the no further action sites list, ecology will provide a person, if requested, a site-specific electronic alert when the site information specified in subsection (5) of this section is added or changed on ecology's website.

(a) Method. Ecology will establish the means for providing the site-specific electronic alerts.

(b) Instructions. Ecology will provide instructions on how to sign up for the site-specific electronic alerts on ecology's website under subsection (5) of this section and in any public notice required under this chapter.

(7) Contaminated Site Register. Ecology will maintain and regularly publish a Contaminated Site Register.

(a) Publication. Ecology will establish the method for publishing the Contaminated Site Register, which may include making it publicly available on ecology's website, electronically distributing it to interested persons, or any other method deemed appropriate by ecology.

(b) Content. Ecology will include notice of the following in the Contaminated Site Register:

(i) The availability of any legislative report required under chapter 70A.305 RCW related to remedial action;

(ii) Any rule-making notice requiring publication in the Washington State Register under chapter 34.05 RCW related to remedial action;

(iii) The availability of any ecology publication related to remedial action, including any new, revised, or rescinded interpretive or policy statement requiring notice in the Washington State Register under RCW 34.05.230;

(iv) Any proposed substantive change to the site hazard assessment and ranking process developed under WAC 173-340-320(2);

(v) Any update to ecology's strategic plans or performance assessments required under WAC 173-340-340 (1) and (3);

(vi) Any additional resource allocation factors specified by the legislature or ecology under WAC 173-340-340 (2)(d);

(vii) Any proposed model remedy developed under WAC 173-340-390(2);

(viii) Any change to the program support cost multiplier calculated under WAC 173-340-550 (2)(c);

(ix) Any change to the list of ecology-approved sampling and analysis methods maintained under WAC 173-340-830 (4)(a);

(x) Any initial investigation determination under WAC 173-340-310(6) resulting in the listing of a site on either the contaminated sites list or the no further action sites list. The notice must include instructions on how to sign up for electronic alerts about the site under subsection (6) of this section;

(xi) For ecology-conducted or ecology-supervised remedial actions:

(A) Any initiation of a negotiation for a consent decree under WAC 173-340-520 or a discussion for an agreed order under WAC 173-340-530;

(B) Any proposed action requiring public notice under this chapter, including any related public meeting or hearing; and

(xii) For independent remedial actions:

(A) Any notice of a planned independent interim action or cleanup action submitted to ecology in anticipation of a private right of action under WAC 173-340-545 (3)(a); and

(B) Any proposed area-wide groundwater conditional point of compliance under WAC 173-340-720 (8)(d)(iii)(D); and

(xiii) Any other notice that ecology considers appropriate for inclusion.

(8) Evaluation of public participation needs. For ecology-conducted and ecology-supervised remedial actions, ecology will evaluate public participation needs at the site. The evaluation must include an identification of the potentially affected vicinity for the remedial action. For sites where site-specific risk assessment is used, 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. A public participation plan is intended to encourage a coordinated and effective public involvement tailored to the public's needs at a site, and facilitate equitable participation by the public. The scope of the plan must be commensurate with:

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

(ii) The level of public concern regarding the threats; and

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

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

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

(i) If a plan already exists for 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.

(ii) Unless otherwise directed by ecology, a potentially liable person 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 plan as part of its request. If a plan already exists for the 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 on the agreed order or negotiations on the consent decree. The final plan may become part of the agreed order or consent decree.

(d) Contents. A public participation plan 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

(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;

(iv) Methods of addressing the public's concerns and conveying information to the public. These may include any of the methods listed in subsection (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 the federal cleanup law applies to the proposed action, the plan should explain how 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 ecology; and

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

(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, then ecology will assure appropriate public involvement and comment opportunities will occur as identified in the public participation plan.

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

(10) 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. Ecology will develop, or require the development of, a public participation plan in accordance with subsection (9) of this section.

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

(c) Public notice of proposed decree. 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 consolidated with public notice of other documents under this chapter, such as a cleanup action plan, or notice required under other laws.

(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 of a proposed consent decree must briefly:

(A) Identify and generally describe the site;

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

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

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

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

(iii) Comment opportunity. Ecology will provide the public at least 30 days from the date the notice is issued to comment on the proposed consent decree.

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

(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 a proposed consent decree, ecology will provide or require additional public notice of the proposed changes in accordance with subsection (2) of this section.

(11) Agreed orders. Ecology will provide or require the following notice and comment opportunities for an agreed order under WAC 173-340-530.

(a) Public participation plan. Ecology will develop, or require the development of, a public participation plan in accordance with subsection (9) of this section.

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

(c) Public notice of proposed order. 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 ecology issues the agreed order. Unless ecology determines that it is not in the public interest, an agreed order may become effective before the comment period ends.

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

(A) Identify and generally describe the site;

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

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

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

(iii) Comment opportunity. Ecology will provide the public at least 30 days from the date the notice is issued to comment on a proposed agreed order.

(iv) Public hearing. Ecology may hold a public meeting or hearing on a proposed agreed order if it determines that it is in the public interest.

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

(12) 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) Public participation plan. Ecology will develop a public participation plan in accordance with subsection (9) of this section.

(b) Public notice of proposed order. Ecology will provide public notice of a proposed enforcement order in accordance with subsection (2) of this section. The public notice may be consolidated with notice of other documents under this chapter, such as a cleanup action plan, or under other laws.

(i) Timing. Ecology will provide notice of a proposed enforcement order before or concurrent with the issuance of the order.

(A) Except in emergencies, ecology will provide the notice no later than three days after ecology issues the enforcement order.

(B) In emergencies, ecology will provide the notice no later than 10 days after ecology issues the enforcement order.

(ii) Contents. Notice of a proposed enforcement order must briefly:

(A) Identify and generally describe the site;

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

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

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

(iii) Comment opportunity. Ecology will provide the public at least 30 days from the date ecology issues the notice to comment on a proposed enforcement order.

(c) Public notice of substantial changes to proposed order. Ecology may amend the enforcement order based on public comments. 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. 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) 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) Public notice of report. Ecology will provide or require public notice of a remedial investigation and/or feasibility study report in accordance with subsection (2) of this section. The public notice may be consolidated with public notice of a draft cleanup action plan. 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:

(A) Describe the site;

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

(D) Invite public comment on the report.

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

(14) Selection of cleanup actions. 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.

(a) Public notice of draft cleanup action plan. When issuing a draft cleanup action plan, ecology will provide or require public notice of the plan in accordance with subsection (2) of this section. The public notice may be consolidated with public notice of a remedial investigation/feasibility study report or a proposed order or decree.

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

(A) Describe the site;

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

(ii) Comment opportunity. Ecology will provide the public at least 30 days from the date the notice is issued to comment on a proposed cleanup action.

(b) Notice of final cleanup action plan. When issuing a final cleanup action plan, ecology will:

(i) Make the plan publicly available on ecology's website under subsection (5) of this section;

(ii) If requested, notify a person electronically of the plan's availability under subsection (6) of this section; and

(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. 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.

(a) Public notice of engineering design report. For ecology-conducted remedial actions, ecology will provide public notice of an engineering design report 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 report.

(b) Public notice of plans implementing cleanup action. Ecology will provide or require public notice 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.

(16) Interim actions. 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 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 ecology staff who may be contacted for further information; and

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

(b) Comment opportunity. Ecology will provide the public at least 30 days from the date 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.

(18) Periodic reviews. For ecology-conducted and ecology-supervised remedial actions, ecology will provide public notice of a periodic review report prepared under WAC 173-340-420. 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 a periodic review.

(19) Institutional controls. For ecology-conducted and ecology-supervised remedial actions, before amending or removing an institutional control required under WAC 173-340-440, ecology will provide or require public notice on the proposal 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 proposal.

(20) Independent remedial actions.

(a) For independent remedial actions, ecology will notify the public of the following using the methods specified in subsections (5) and (6) of this section:

(i) Any change to the site's listing or remedial action status identified under WAC 173-340-330;

(ii) Any change to the site's hazard rankings identified under WAC 173-340-320;

(iii) Any initial investigation report prepared under WAC 173-340-310;

(iv) Any independent investigation, interim action, or cleanup action report required under WAC 173-340-515(4) and received by ecology;

(v) The results of any ecology review of an independent remedial action, including any written opinion issued by ecology under WAC 173-340-515(5);

(vi) Any periodic review report prepared under WAC 173-340-420; and

(vii) Any document implementing, amending, or removing an institutional control under WAC 173-340-440.

(b) Ecology will provide notice of the following independent remedial actions in the Contaminated Site Register under subsection (7) of this section:

(i) Any notice of a planned independent interim action or cleanup action submitted to ecology in anticipation of a private right of action under WAC 173-340-545 (3)(a); and

(ii) Any proposed area-wide groundwater conditional point of compliance under WAC 173-340-720 (8)(d)(iii)(D).

(c) For independent remedial actions, ecology may provide public notice of any proposed action for which public notice is required under this chapter for an ecology-conducted or ecology-supervised remedial action.

(21) Public participation grants. RCW 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 ecology to learn about available funding, grant application procedures and deadlines. See chapter 173-321 WAC for additional information on public participation grants.

(22) Other requirements. The following sections of this chapter specify additional requirements for providing notice or opportunity to comment.

(a) WAC 173-340-310 (6)(e)(vi) contains focused notice requirements for emergency or interim actions required by ecology as a result of an initial investigation.

(b) WAC 173-340-320 (2)(b) contains notice and comment requirements for developing and updating the site hazard assessment and ranking process.

(c) WAC 173-340-330 (9)(a) and 173-340-335 (5)(a) contain requirements for making the contaminated sites list and the no further action sites list publicly available.

(d) WAC 173-340-340 (4)(a) contains requirements for making ecology's strategic plans and performance assessments publicly available.

(e) WAC 173-340-390 (2)(c) contains notice and comment requirements for developing model remedies.

(f) WAC 173-340-440(10) contains local government consultation requirements for proposing institutional controls.

(g) WAC 173-340-545(3) contains public notice requirements for private rights of action.

(h) WAC 173-340-720 (6)(c)(A) contains focused notice and comment requirements for establishing site-specific nonpotable groundwater cleanup levels.

(i) WAC 173-340-720 (8)(d) contains focused notice and comment requirements for establishing off-property conditional points of compliance.

PDFWAC 173-340-600

Public notification and participation.