Original Notice.

Preproposal statement of inquiry was filed as WSR 97-10-092.

Title of Rule: Chapter 173-340 WAC, Model Toxics Control Act; chapter 173-321 WAC, Public participation grants; and chapter 173-322 WAC, Remedial action grants.

Purpose: Implement changes recommended by the Policy Advisory Committee in its December 1996 report to the legislature and ecology; comply with other laws and the governor's executive order on regulatory reform.

Statutory Authority for Adoption: Chapter 70.105D RCW.

Statute Being Implemented: Chapter 70.105D RCW.

Summary: Amend the rules for the Model Toxics Control Act, public participation grants, and remedial action grants to reduce confusion experienced by constituents wanting to cleanup contaminated property.

Reasons Supporting Proposal: Clarify, strengthen, and apply new methodologies and science that will create a more effective rule that is protective of human health and the environment.

Name of Agency Personnel Responsible for Drafting: Trish Akana, Olympia, (360) 407-7230; Implementation and Enforcement: Toxics Cleanup Program, state-wide, (360) 407-6000.

Name of Proponent: Washington State Department of Ecology, governmental.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: The rules will increase flexibility in varying parameters to define cleanup levels and remediation levels; defines objectives and framework for regulations on ecological risk assessment; clarifies remedy selection and streamlines the process; encourage cleanups through various approaches to area-wide contamination; allow early public involvement and technical assistance to communities; streamline the grants procedures; and replace interim guidance on total petroleum hydrocarbons.

Proposal Changes the Following Existing Rules: The liable party could propose site-specific exposure assumptions; citizens will be assured of early notice and more effective participation in site cleanup decisions affecting the community's quality of life; if there are soil-based ecological resources on or nearby the site, the liable party can more easily evaluate the need for an ecological risk assessment; emphasis is added on evaluating the cost and reliability of institutional controls as part of remedy selection; area-wide solutions to contamination offer alternatives that will speed cleanup and expedite redevelopment; and if the site contains petroleum contamination, a new approach will be available to more accurately reflect the characteristics and risks of the contamination within the existing cleanup methods.

A small business economic impact statement has been prepared under chapter 19.85 RCW.

     Draft Revisions to the Model Toxics Control Act, Chapter 173-340 WAC

     Background: More than 8,119 sites in Washington are suspected or confirmed of being contaminated with hazardous substances. A variety of actions caused this contamination including accidental spills or releases, illegal dumping and waste handling practices that were once thought to be safe. To ensure these sites are cleaned up, Washington voters passed the Model Toxics Control Act (MTCA) in November 1988. This statute, subsequently codified as chapter 70.105D RCW, vested the Department of Ecology with the basic authority to oversee the cleanup of sites contaminated with hazardous waste. Specifically, the MTCA statute granted ecology the power to:

     (a) Investigate, provide for investigating, or require potentially liable persons to investigate any releases or threatened releases of hazardous substances, including but not limited to inspecting, sampling, or testing to determine the nature or extent of any release or threatened release...;

     (b) Conduct, provide for conducting, or require potentially liable persons to conduct remedial actions (including investigations under (a) of this subsection) to remedy releases or threatened releases of hazardous substances... In conducting, providing for, or requiring remedial action, the department shall give preference to permanent solutions to the maximum extent practicable...;

     (e) Classify substances as hazardous substances...;

     (g) Enforce the application of permanent and effective institutional controls that are necessary for a remedial action to be protective of human health and the environment;

     (h) Require holders to conduct remedial actions necessary to abate an imminent or substantial endangerment...;

     (i) Provide informal advice and assistance to persons regarding the administrative and technical requirements of this chapter...; and

     (j) Take any other actions necessary to carry out the provisions of this chapter, including the power to adopt rules under chapter 34.05 RCW.

     RCW 70.105D.030(1).

     With regard to rule making, the MTCA further directed ecology to:

     Publish and periodically update minimum cleanup standards for remedial actions at least as stringent as the cleanup standards under section 121 of the federal cleanup law, 42 U.S.C. 9621 and at least as stringent as all applicable state and federal laws, including health-based standards under state and federal law.

     RCW 70.105D.030 (2)(e).

     Ecology regulations implementing [the] MTCA - adopted in the early 1990s - have been very effective in moving sites through cleanup. As of October 1999, 45% of the more than 8,119 contaminated sites require no further action; the cleanup is in progress at 36% of the sites; and cleanup is pending at 19% of the sites. One measure of the progress achieved towards cleaning up sites is the more than 7 million pounds of toxic contaminants that were treated, removed, recycled or contained in 1998.¹

     Despite this success, certain aspects of the regulation are controversial. In response, the 1995 legislature adopted ESHB 1810 which directed ecology to establish a Policy Advisory Committee "to provide advice to the legislature and the department on administrative and legislative actions to more effectively implement the model toxics control act." (Sec. 1, HB 1810). The law specifically directed the Policy Advisory Committee to consider substantive regulatory changes in the following areas:

     (1) Use of site-specific risk assessments.

     (2) Evaluation of ecological cleanup standards and the need to establish and adopt levels to protect the environment.

     (3) Delivery of enhanced technical assistance to liable persons thereby helping small business and others with the cleanup process.

     (4) Methods to enhance public participation.

     (5) Greater assurance about the quality of independent cleanups.

     (6) Greater assurance of the successful use of institutional and engineering controls to protect people and the environment from hazardous substances left at a site.

     (7) Increased initiatives to clean up area-wide sites that are commonly known as brownfields to reenter the market as productive, useable, tax-revenue generating and economically restored property.

     (8) More understandable and usable regulations that reflect how cleanups are conducted under [the] MTCA.

     (9) More options for addressing and resolving disputes between ecology and liable persons.

     (10) Development of a short- and long-term strategy for dealing with the most prevalent contaminant, petroleum.

     The Policy Advisory Committee submitted its final report on December 15, 1996. The final report contains numerous recommendations for regulatory changes to the act. Throughout its work, the Policy Advisory Committee clearly expected that its recommendations would form the basis of an ecology proposal to amend the current MTCA rule.

     The Proposed Regulatory Revisions. The department is directed by the Model Toxics Control Act to provide grants to persons who may be adversely affected by a release or threatened release of hazardous substance and to not-for-profit public interest groups. These grants are to be used to facilitate public participation in the investigation and remediation of a release or threatened release of a hazardous substance and to facilitate public participation in the implementation of the state's solid and hazardous waste management priorities. The purpose of chapter 173-321 WAC is to set forth eligibility criteria and funding requirements for ecology to follow in providing these grants. Because proposed amendments to this chapter do not affect small (or large) businesses, the proposed changes to this chapter will not have a disproportionate affect on small businesses.

     The department is also proposing amendments to chapter 173-322 WAC. This chapter provides the department direction and authority to provide remedial action grants and loans to local governments for the purpose of addressing remedial actions. Because proposed amendments to this chapter do not affect small (or large) businesses, the proposed changes to this chapter will not have a disproportionate affect on small businesses.

     After receiving the Policy Advisory Committee's report in December 1996, ecology began a three-year negotiated rule-making effort to craft revisions to the rules (chapter 173-340 WAC). This effort included the formation of an external advisory group and extensive discussions with stakeholders. In addition, a separate advisory group met to review the cleanup standards for sites contaminated with petroleum products. Ecology partnered with the Duwamish Coalition's Total Petroleum Hydrocarbon (TPH) Project Oversight Group to develop a methodology for setting site-specific, risk-based cleanup levels at petroleum-contaminated sites. The result was the development of rules that will replace the department's interim TPH guidance. In addition, the agency worked extensively with its Science Advisory Board (SAB) to update the science for analyzing cross-media effects of contamination. Throughout this effort ecology worked to keep interested parties abreast of potential changes under consideration. Thus, the proposed amendments to the MTCA rule reflect the input of individuals both within and outside the department. In June 1998, the department employed the services of a professional mediator to go between constituents and ecology staff and facilitate solutions to outstanding issues.

     While touching nearly every section of the current rule, the proposed amendments fall into three main categories. First, many of the proposed amendments simply revise current regulatory language to clarify existing cleanup requirements. State government has long recognized that some administrative rules are difficult to understand. The governor sought to address this problem by requiring agencies to review their regulations to ensure they were understandable to regulated parties. (Executive Order on regulatory improvement, No. 97-02.)

     Ecology's review of the MTCA rule revealed that certain sections were less than clear. For example, the proposed amendments include language to better explain development of remediation levels and the remedy selection process. Current ecology policy recognizes and uses the concept of "remediation level" or "action level" (which is different from "cleanup level") during the remedy selection process. However, the concept is not defined and many PLPs are unaware of it. The proposed amendments would formally incorporate and recognize the role of "remediation levels" or "action levels" in the remedy selection process. The proposed amendments would also further explain the remedy selection process: (1) How to scope the feasibility study in order to narrow the focus of alternatives to be evaluated; (2) the criteria used to determine the minimum cleanup requirements, and; (3) the criteria used to determine the alternative that is "permanent to the maximum extent practicable." These types of changes would not establish new or alter current regulatory requirements. Rather, they make existing MTCA requirements more understandable to potentially liable persons (PLPs), lending institutions, ecology staff, and other interested parties.

     The second category of proposed changes incorporate current ecology policy and guidance into the rule. Since adoption of the original MTCA rule, the department has made many policy decisions and issued many guidance documents on how to implement the rule. For example, current ecology policy on statistical methods for determining compliance is incorporated into the rule, as is ecology's current policy on delisting of sites. Another example where ecology policy has been included in the proposed rule amendments concerns prospective purchaser consent decrees and the 1997 legislative change in criteria.

     The final category of proposed amendments would significantly change parts of the MTCA rules. These changes affect the process used to determine the remediation activity(s) and what ecology will accept as a protective remedy, affecting both PLPs and ecology. Examples of these changes include:

•	The proposed amendments clarify the use of a quantitative risk assessment in evaluating alternatives being considered during the feasibility study and in establishing cleanup levels (within specified constraints). Currently, ecology uses mostly qualitative assessment of the residual risk. While the effect of using quantitative risk assessment will depend on site specific circumstances, ecology generally anticipates higher levels of residual contamination. The amendments include a process for assessing risk to terrestrial ecological receptors and quantitatively estimating cross media effects of contamination in determining cleanup levels.
•	The proposed amendments place more emphasis on ensuring the effectiveness of institutional controls. Institutional controls are measures at contaminated sites to ensure that the actual use to which such a site is put after cleanup is compatible with the level of cleanup completed. The proposal places added emphasis on ensuring that adequate funding is available to cover long-term site costs through financial assurances. This change should result in better long-term effectiveness (over the coming decades) of nonpermanent site remedies.
•	The proposed amendments authorize ecology to develop model remedies as resources allow. This was recognized as an important measure for small business (see section on mitigation measures). Ecology anticipates that model remedies could be developed for common categories of facilities, types of contamination, types of media, or specific geographic areas. The availability of model remedies will encourage site cleanups for two reasons. First, PLPs could reduce the upfront costs of preparing feasibility studies. Second, PLPs would have more certainty of regulatory approval of an independent remediation.
•	The proposed rule adds some new, and changes some existing, cleanup/contamination standards for various contaminants. For example, Method A cleanup levels for groundwater and soil would include standards for MTBE and Naphthalene. The Method A groundwater cleanup levels for some petroleum constituents, such as ethylbenzene, lead, toluene and xylenes, are proposed to be less stringent. For soil, the Method A values for petroleum constituents, such as benzene, ethylbenzene, toluene and xylenes, will become more stringent.

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

     Each rule proposed by ecology in response to legislative mandates must comply with the Administrative Procedure Act (RCW 34.05.328) and the Regulatory Fairness Act (chapter 19.85 RCW).

     The Regulatory Fairness Act (act)² requires state agencies to prepare a small business economic impact statement (SBEIS) prior to proposing to amend or adopt a regulation. The impetus for the legislation was a concern that regulatory mandates could "threaten the very existence of some small businesses." (RCW 19.85.011.) The act defines a small business as "any business entity, including a sole proprietorship, corporation, partnership, or other legal entity, that is owned and operated independently from all other businesses, that has the purpose of making a profit, and that has fifty or fewer employees." (RCW 19.85.020.)

     Ecology used the following process to determine whether it should provide regulatory relief to small businesses in the proposed rule.

Step I	Determine the categories of businesses affected by the proposed regulations
Step II	Determine the range of employment for each category of business
Step III	Determine the "more than minor" cost threshold for each category of business
Step IV	Determine whether the estimated cost exceeds the "more than minor" cost threshold for each category of business
Step V	Determine whether the proposed regulations impose a disproportionate cost burden on small businesses
Step VI	Determine whether regulatory relief for small businesses is legal and feasible
Step VII	Describe the regulatory relief provided to small businesses
Step VIII	Miscellaneous SBEIS requirements

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

     Step I: What Businesses are Affected by the Proposed Regulation? The proposed rule is somewhat unusual in that it does not directly regulate a specific category of businesses. Rather, it regulates the cleanup of contaminated land. An affected business is one that has in the past or will in the future, knowingly or unknowingly generates or arranges for disposal of hazardous substances or owns or operates a facility where hazardous substances have been released into the environment. Thus, virtually all businesses in the state could fall under this regulation. However, for most business or industrial categories, only a subset of entities will have a release that poses a threat to human health or the environment [that] will be affected by the proposed rule amendments.³

     Ecology used its integrated site information system (ISIS) to identify the types of businesses that commonly have hazardous waste contamination problems and would be affected by the proposed rule. (Sites listed in the ISIS database have known or suspected hazardous waste contamination.) Through this effort, ecology identified twelve categories of businesses (identified by standard industrial code or SIC) with high numbers of contaminated sites:

     Metal Mining

     Miscellaneous Wood Products

     Natural Gas Production and Distribution

     Petroleum Refining

     Petroleum Asphalt

     Miscellaneous Petroleum Products

     Electroplating

     Agricultural Chemicals

     Sanitary Sewage and Refuse Systems

     Scrap Metal and Waste

     Gasoline Service Stations

     Automotive

     While many businesses affected by the proposed rule fall outside these twelve categories, ecology believes they cover a sufficient range of activities to determine whether the proposed rule would impose disproportionate costs on small businesses.

     Step II: What is the Employment Profile of Businesses Affected by the Proposed Regulation? To determine the employment profiles of businesses potentially affected by the proposed amendments, ecology turned to reports issued by the U.S. Department of Commerce.⁴ Table 1 presents state employment for each identified category of business. Most business categories have many more employers with fewer than fifty employees than those with more than fifty employees. However, since all but one category includes businesses with both more than fifty and less than fifty employees, the proposed regulation clearly has the potential to impose disproportionate costs on small businesses.

     Step III: What are the "more than minor" Cost Thresholds for Businesses Affected by the Proposed Regulation? An SBEIS is required whenever a regulation imposes "more than minor" costs on a regulated business. The "more than minor" threshold ranges from $50 to $300 depending on what standard industrial code (SIC) category the business falls into.⁵ Given the number and range of businesses potentially affected by the proposed regulations, this SBEIS uses $50 as the benchmark between minor and "more than minor" costs.

     Step IV: Do the Costs Imposed by the Proposed Rule Exceed the "more than minor" Cost Threshold? When calculating the cost of proposed amendments to existing regulations, it is very important to separate out and ignore the cost of the current regulations. While important to the liable parties, the costs of complying with the current requirements are not relevant to this analysis. The only cost issue for the SBEIS analysis is how much more or less businesses will pay to comply with the amended rule.

     The wide scope of the proposed amendments to the rules implementing the Model Toxics Control Act will increase costs for some businesses and decrease costs for others. For example, the proposed changes to the Method "A" soil cleanup standards could increase costs for sites contaminated with benzene and lower the cleanup cost for sites with heating oil contamination. Similarly, if a person chooses to revise the default input parameters for calculating soil ingestion cleanup levels for sites contaminated with petroleum mixtures, then the revised parameters could raise or lower costs. The proposed amendments would make other changes that will raise cleanup costs at certain sites. Specifically, the addition of dermal and vapor exposure pathways when using site-specific risk assessments to develop soil cleanup standards may increase costs at sites that choose this option. Still other proposed changes could decrease cost such as the provisions expanding the use of quantitative risk assessment when selecting the cleanup remedy.

SIC Code	Industry	Total Number of Establishments		Number of Establishments by employment-size		Total Number of Employees
				1 to 49	50+
10	Metal Mining		28	27	1	351
249	Miscellaneous Wood Products		94	82	12	1750
287/5191	Agricultural Chemicals		29/398	25/387	4/11	799/4216
291	Petroleum Refining		9	4	5	1719
295	Petroleum Asphalt		17	13	4	554
299	Miscellaneous Petroleum Products		4	4	0	63
347	Electroplating		79	73	6	1429
492	Natural Gas Production and Distribution		43	35	8	1791
495	Sanitary Sewerage and Refuse Systems		150	136	14	9489
5093	Scrap Metal and Waste		188	180	8	2141
554	Gasoline Service Stations		1448	1443	5	12330
753	Automotive Repair		3082	3076	6	14594

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

     The estimated change in cleanup costs brought about by the proposed amendments will vary substantially among businesses both within and between industrial categories. Usually only a subset of businesses in any given category will have contributed to a contamination problem and therefore face cleanup costs. Moreover, the actual cleanup costs depend on many factors: The quantity and toxicity of chemicals used by the business; the type of ground underlying the contamination (e.g., rock, sand, silt or clay); the proximity of the contaminated land to residential areas; and, whether the contaminated land overlays an aquifer.

     Another factor affecting business costs is whether the contamination was caused by more than one entity. In such cases, the cleanup costs can often be spread among several PLPs. Despite these factors, any business responsible for cleaning up even a small portion of a small area of low toxicity contamination will virtually always exceed the "more than minor" cost threshold. Therefore, ecology concludes that the proposed regulatory amendments will increase costs by more than the "more than minor" $50 cost threshold.

     To provide an example of the likely cost impact of the proposed rule amendments on businesses, ecology considered their effect on gasoline refueling stations. Gasoline station owners where releases to the environment have occurred can choose one of two types of cleanup processes: Method A or Method B. Those choosing Method A may experience slightly higher costs under the proposed rule. The proposal would lower residual soil cleanup levels for several contaminants (e.g., gasoline, ethylbenzene and xylenes). Therefore, dependent on soil type and the extent of contaminates released to the environment, the consequence of this change may be that gas station owners would have to treat in-place or remove and haul away additional soil. This is also dependent on the remedy that will ultimately be selected. If additional contaminated soil needs to be removed, cleanup costs will be slightly higher.

     The change in cost to gas station owners choosing Method B type cleanup will be less certain. The proposed rule amendments will increase the amount of precleanup planning, evaluating and testing. However, by basing the cleanup on site-specific parameters (e.g., the proximity of the site to people and ground water) the proposed rule would afford gas station owners the opportunity to lower the amount of soil removed and thereby reduce costs. Thus, the department did not predict the overall effect of the proposed rule amendments on gas station owners choosing Method B type of cleanup. Under the current rules, most gas station owners have chosen to follow a Method A type cleanup process. Given the potential for the proposed rule amendments to decrease the cost of Method B cleanups, the department expects that the number of gas stations choosing Method B will slightly increase under the proposed rule.

     Step V: Does the Proposed Regulation Impose a Disproportionate Cost Burden on Small Businesses? To determine whether the proposed rule will disproportionately affect small businesses, the act requires a comparison of "the cost of compliance for small business with the cost of compliance for the ten percent of [the largest] businesses... using one or more of the following as a basis for comparing costs:

     (a) Cost per employee;

     (b) Cost per hour of labor; or

     (c) Cost per $100 of sales." (RCW 19.85.040)

     Of the alternative ways to compare costs, the preferable approach is "cost per $100 of sales." By providing a measure of the effect of the proposed rule on the profits of affected businesses, this approach best indicates the likelihood that the businesses will continue (or fail). Thus, this approach most directly addresses the legislature's concern of whether a proposed rule "...threaten[s] the very existence of some small businesses."

     As stated above, the costs to clean up contaminated sites to MTCA standards are large and may vary widely depending on specific site and business circumstances. A small business economic impact statement prepared for the existing MTCA cleanup regulations found that "the draft regulation does have a disproportional impact on small business."⁶ For example, small businesses in the electric, gas and sanitary services industry faced costs up to one hundred times the cleanup costs (relative to sales) as their larger counterparts. The principal finding of that analysis was that cleanup costs are proportional to business size - larger businesses have a larger sales base over which to spread regulatory costs.

     In this rule revision, more sophisticated methods are available to make risk assessment and risk management decisions, but these methods may not be as readily used by small business as large business because they are more complex and technical. As a result, ecology concludes that small businesses are more likely to face disproportionately higher costs than large businesses.

     Step VI: Is Regulatory Relief for Small Businesses Legal and Feasible? When an agency finds disproportionate cost impacts, the act requires the agency to reduce the costs imposed by the rule on small businesses "where legal and feasible in meeting the stated objectives of the statutes upon which the rule is based" (RCW 19.85.030). Therefore, the next logical question is, can ecology provide relief?

     The statute from which ecology derives its authority to issue these regulations describe overarching goals rather than specific regulatory requirements:

•	Each person has a fundamental and inalienable right to a healthful environment, and each person has a responsibility to preserve and enhance that right. The beneficial stewardship of the land, air, and waters of the state is a solemn obligation of the present generation for the benefit of future generations. (RCW 70.105D.010)
•	It is in the public's interest to efficiently use our finite land base, to integrate our land use planning policies with our cleanup policies, and to clean up and reuse contaminated industrial properties in order to minimize industrial development pressures on undeveloped land and to make clean land available for future social use. (RCW 70.105D.010)
•	...the purpose of this chapter [is] to identify, eliminate, or minimize any threat or potential threat posed by hazardous substances to human health or the environment. (RCW 70.105D.020(21))
•	In conducting, providing for, or requiring remedial action, the department shall give preference to permanent solutions to the maximum extent practicable and shall provide for or require adequate monitoring to ensure the effectiveness of the remedial action. (RCW 70.105D.030 (1)(b))

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

     Step VII: The Regulatory Relief Provided to Small Businesses. The act provides some guidance for the provision of small business relief due to disproportionate cost impacts whereby methods to reduce the costs on small businesses may include:

     (a) Reducing, modifying, or eliminating substantive regulatory requirements;

     (b) Simplifying, reducing, or eliminating recordkeeping and reporting requirements;

     (c) Reducing the frequency of inspections;

     (d) Delaying compliance timetables;

     (e) Reducing or modifying fine schedules for noncompliance; or

     (f) Any other mitigation techniques. (RCW 19.85.030)

     After carefully considering these approaches within the underlying statutory objectives, ecology included several elements in the MTCA rules to mitigate economic impacts. Many of these elements continue from the current MTCA rules while a few are new or expand on existing provisions to mitigate small business costs.

     1. The proposed rule explicitly allows that a remediation level that leaves hazardous substances at the site in concentrations above cleanup levels may be considered protective of human health and the environment. Many small businesses have not been aware of this concept that has been allowed under the current rule. Explicitly defining and using it in the rule makes this option more available and "user friendly" to small business.

     2. The proposed amendments would include provisions allowing the establishment of an off-property point of compliance for area-wide groundwater contamination by multiple sites. This provision was specifically requested by the Policy Advisory Committee to address small business concerns.

     3. The proposed amendments expand the types of financial assurance mechanisms that ecology will accept. The current rule requires a trust fund or equivalent mechanism. The change provides more flexibility for businesses to choose an instrument that meets the particular needs of the business. Exceptions from the requirement for financial assurances that will most likely apply to small businesses include where the potentially liable persons for the site will have insufficient funds to conduct the cleanup or where requiring a financial assurance would force a potentially liable person for the site into bankruptcy or similar financial hardship.

     4. Ecology will develop model remedies covering sites with similar types of facilities, types of contamination, types of media, or specific geographic areas. Typically, the type of cleanups for which ecology will develop model remedies will meet the following criteria: a) The site conditions including facilities and contamination that commonly occur; b) the remediation choices are obvious and limited; c) the selected remediation method has been proven capable of achieving the cleanup standards; and, d) ecology has experience with similar remediation efforts at other sites. Gasoline leaking from underground storage tanks is one example of the type of sites for which ecology is likely to develop a model remediation. When developed the streamlined procedures mitigate the economic costs of site remediation.

     5. The proposed amendments include provisions providing for technical consultations and assistance for independent remedial actions. Experience has shown that most cleanups are done independently and that most of these are done by small businesses. Providing specific authorization and a process for technical assistance on these cleanups will primarily benefit small businesses. Ecology can waive fees for the technical assistance based on a person's ability to pay or when costs are de minimis. If the level of consultation a business (small or large) desires for its sites more in-depth or time consuming for ecology staff than that provided without charge, the business will have the option of continuing its consultation by entering into an agreement to reimburse ecology for its costs of providing the business assistance.

     6. Provisions allow the use of site-specific risk assessment in setting cleanup levels, remediation levels, or in making remedial action decisions under [the] MTCA within certain limitations. This may result in an increase or decrease in cleanup levels and/or remediation levels (and subsequently costs) from the existing rule. To assist the small business, ecology has also provided specific procedures for conducting site-specific risk assessments. However, this method is optional and business may still choose to use Method A values rather than following the more complex methodology provided in Method B.

     7. The state toxics control account can be used to help fund remediation efforts. Use of this financial resource is limited to situations where the additional funds will substantially expedite and enhance a remediation activity and prevent or mitigate unfair economic hardship. This funding source will help small business most since they generally have more difficulty raising the necessary funds to complete the remediation actions for which they are liable. Funding needs are evaluated on a case-by-case basis, and financial assistance can range from a partial subsidy to a complete subsidy for cleanup activities. Financial assistance is contingent upon the availability of funds within the model toxics control account.

     8. Ecology can facilitate resource sharing during data collection activities related to monitoring. For example, ecology may be able to facilitate resource sharing among applicants in areas where there are several potentially liable parties in close proximity. Ecology can also provide data available from compliance monitoring programs.

     9. Many sites have multiple sources of contamination or multiple potentially liable persons or both. Because liability under the MTCA is strict joint and several, the agency may choose to pursue one PLP or many PLPs at a site. One department consideration when deciding on which PLP(s) to pursue is the financial resource available for payment of remedial action costs. This flexibility can lessen the burden on small businesses to the extent that multiple parties share cleanup costs for a site.

     10. Ecology has a provision establishing an administrative process for issuing agreed orders that will help to mitigate the impacts of the proposed rule on small businesses. As opposed to a consent decree or a unilateral order, an agreed order may be more desirable to potentially liable parties because of the relatively streamlined process associated with this kind of order (e.g., the assistance of an attorney is not necessarily required). Agreed orders may be used for any type of cleanup action. Because they represent a simplified means of complying with some of the requirements of the cleanup decision process, these legal tools are especially well suited for small businesses.

     11. Interim actions provide a means of economic mitigation for small businesses. Interim cleanup of a site may be required to reduce threats from contamination while a complete investigation is being performed. Interim actions do not completely achieve cleanup standards at a site. This can be used in some situations to spread the costs of remediation over a period of time. However, the interim action must be consistent with the final cleanup action, or, if the cleanup action is not known, the interim action must not eliminate reasonable cleanup alternatives. To the extent that interim actions are taken to address problems before they become worse with time, this provision may also contribute to an overall reduction in the total cleanup cost that may be borne by small businesses.

     12. The proposal for adding a citizen technical advisor within ecology should directly benefit small business by providing an information resource to increase understanding of the Model Toxics Control Act and cleanup issues. The citizen technical advisor may be available to citizens, citizens groups and businesses. The duties of the advisor will include:

•	As time allows, provide technical review of site-specific risk documents at the request of citizens or businesses,
•	As time allows, review documents as requested by citizens or businesses, including background documents as necessary,
•	Answer general questions from the public related to risk assessment, remedial actions, and site cleanup process,
•	Translate technical terminology into nontechnical language, and
•	Reviewing notices to the public relevant to risk and to provide comment on the effectiveness of communication and key risk issues, at the request of citizens or business.

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

     Step VIII: Miscellaneous SBEIS Requirements.

     How did ecology involve affected businesses and other interested parties in the development of the rule? The department's proposal to amend chapter 173-340 WAC began with the legislature's adoption of HB 1810 in 1995. Ecology brought together a twenty-two member Policy Advisory Committee representing diverse views from the legislature, local government, large and small businesses, agriculture, environmental organizations, financial institutions, ports, ecology and the Department of Health. Through their affiliations with larger interest groups, Policy Advisory Committee members carried forward and represented information, interests and objectives of a much larger constituency. The eighteen month PAC process, resulted in a series of recommended changes to current MTCA regulations. These recommendations formed the starting point for ecology's process to develop the proposed regulatory amendments.

     Ecology established an external advisory workgroup to review and advise the agency regarding rule development. The committee members participated in negotiating the proposal. The department also actively sought input from the regulated community, community leaders, environmental organizations and others on its proposals through mass mailings of meeting announcements and documents. Ecology distributed, for public comment, a discussion draft of potential regulatory amendments in December of 1998, and then held two public workshops, one held in Seattle and the other in Spokane, to take informal public comments. Ecology significantly revised the proposed amendment on the basis of the comments received from sixty-seven individuals providing their input.

     1. What are the reporting, recordkeeping, and other compliance requirements? The proposed changes to the Model Toxics Control Act provide for reporting and recordkeeping; the required format that data or information must be submitted to ecology; and the length of time that records must be retained by the site owner/operator. Examples of these changes to sections within the MTCA include:

•	Changes to WAC 173-340-420 requires ecology to conduct periodic reviews of a site whenever ecology conducts a cleanup action plan or approves a cleanup action where in ecology's judgment, modification to the default equations or assumption using site-specific information would significantly increase the concentration of hazardous substances remaining at the site after cleanup. Additionally, ecology would conduct a periodic review at sites where there is uncertainty in the ecological evaluation or where the reliability of the cleanup action requires an assurance that long-term protection of human health and the environment is being achieved. Ecology believes that these requirements would primarily affect larger sites that choose to perform a site-specific risk assessment.
•	Changes to WAC 173-340-440 require institutional controls whenever contaminated soil is left near the ground surface so that plants and animals could be affected by it. The purpose of institutional controls is to limit activities that may interfere with a cleanup taking place or resulting in exposure to hazardous substances at the site.
•	Changes to WAC 173-340-840 will require sampling data to be submitted in both electronic and printed form. Most site owners/operators are currently required to do this now in accordance with department procedures. Therefore, this requirement only clarifies existing agency procedures and should not add additional cost to owner/operators.
•	Changes to WAC 173-340-850 will require site cleanup records to be kept as long as institutional controls are in effect to ensure the remedial action is adequately carried out. Currently, site owners/operators are required to retain records for ten years. Experience has shown that some cleanups continue beyond a ten-year period. The cost of retaining these records for additional time should have minimal impact, since most owner/operator's records are kept for tax or real estate purposes anyway.

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

     Ecology also finds it unlikely that the proposed amendment will result in significantly higher prices. Businesses will be limited in their ability to pass through costs because the proposed amendments only affect a portion of the businesses in most industrial categories. In order to remain competitive, most businesses will have to hold the line on prices. The result is that ecology expects most cleanup expenditures to come out of business profits. Because the effect of the rule varies considerably from site to site, ecology is unable to predict with any certainty the overall effect on business profits.

     One exception to this expectation is for gas stations. The department's experience suggests that most gas stations have had releases from their underground storage tank systems or from overfills; therefore, most gas stations will face cleanup costs at some point. Generally, the cleanup costs range from $10,000 to $100,000. Although the majority of cleanup sites do fall within this cost range, some sites are outside this bracket.

     Ecology's toxics cleanup program generated "typical" cleanup site models after analyzing a group (informal sample) of sites on ecology's leaking underground storage tank list. The proposed rule amendments were applied to the model sites, and the resultant costs were then compared with cleanup costs of the model sites using the existing regulation. The modeling results demonstrate that there will be minimal additional cost caused by the implementation of the proposed rule amendment.

     Assuming a $50,000 cost that is paid for over five years at an 8% rate of interest is an annual cost of $12,500. While the proposed rules may slightly increase this cost, ecology does not expect an increase of more than 20%, or $2,500 per year. Dividing this cost by the 50,000 gallons the typical gas station pumps each month results in an estimated additional per gallon cost of less than $0.01 per gallon. Therefore, the department anticipates that consumers would see minimal increase in the cost of gasoline as a result of the proposed rule.

     3. What professional services is a small business likely to need in order to comply with the requirements of the proposed rule? A small business may need a variety of professional services to comply with the existing rule. The proposed rule should not change the need for a small business to obtain professional services. If the small business would have needed professional services to implement the existing rule, they will likely require professional services to implement the rule after the changes are in effect. In summary, to implement the existing rule or the proposed changes, a business may need to hire an accredited laboratory to extract and analyze samples and a consultant to interpret and report the results. Depending on the findings in the initial report, a business may need a consultant to prepare a remedial investigation and a feasibility study of cleanup alternatives. In this case the business may also have to hire a contractor to perform the actual cleanup. Finally, a business may likely retain legal counsel to help determine liability and to review decrees or orders and the cleanup action plan.

¹ Model Toxics Control Account, 1999 Annual Report, Washington State Department of Ecology, No. 00-09-001.

² The Regulatory Fairness Act is codified in chapter 19.85 RCW.

³ One exception to this general rule is gas stations. Virtually all gas stations have had a release; therefore, almost all businesses in this category are affected.

⁴ United States Department of Commerce, County Business Patterns, 1996, Washington, CBP/96-49, November 1998, Tables 1a, 1b, and 1c.

⁵ Facilitating Regulatory Fairness, Washington State Department of Community, Trade and Economic Development, Washington State Business Assistance Center, 1995.

⁶ "Small Business Economic Impact Statement, Model Toxics Control Act Cleanup Regulation, Chapter 173-340 WAC," Department of Ecology, October 1989.

A copy of the statement may be obtained by writing to Trish Akana, Rules Coordinator, Toxics Cleanup Program, P.O. Box 432, Olympia, WA 98504-7600, phone (360) 407-7230, fax (360) 407-7154.

     The department has determined that the proposed amendments to chapters 173-321 and 173-322 WAC do not affect businesses and, therefore, the changes to those chapters will not have a disproportionate affect on small businesses.

RCW 34.05.328 does not apply to this rule adoption. These rules are significant under RCW 34.05.328 because they adopt new or make significant amendments to a policy or regulatory program. The agency has conducted the additional analysis required under RCW 34.05.328.

Hearing Location: On Wednesday, September 6, 2000, at 6:00 p.m., PDT Pinnacle Room, Mountaineers Building, 300 Third Avenue West, Seattle, WA; and on Thursday, September 7, 2000, at 6:00 p.m., PDT, Second Floor, Eastern Regional Office, Department of Ecology, North 4601 Monroe, Suite 100, Spokane, WA.

Assistance for Persons with Disabilities: Contact agency by August 31, 2000, TDD (360) 407-7551.

Submit Written Comments to: Trish Akana, Rules Coordinator, Toxics Cleanup Program, P.O. Box 47600, Olympia, WA 98504-7600, fax (360) 407-7154, by September 15, 2000.

Date of Intended Adoption: November 22, 2000.

August 1, 2000

Daniel J. Silver

Deputy Director

OTS-3478.1

Unless otherwise defined in this chapter, words and phrases used in this chapter shall be defined according to WAC 173-340-200.

     "Act" means the "Model Toxics Control Act," chapter 70.105D RCW.

     "Agreed order" means an order issued under WAC 173-340-530.

     "Area-wide ground water contamination" means multiple adjacent properties with different ownership affected by hazardous substances from multiple sources that have resulted in commingled plumes of contaminated ground water that are not practicable to address separately.

     "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 cleanup standards, utilizes permanent solutions to the maximum extent practicable, and includes adequate monitoring to ensure the effectiveness of the cleanup action.

     "Consent order" means an order issued under chapter 90.48 or 70.105B RCW.

     "Coordinated water system plan" means a plan for public water systems within a critical water supply service area which identifies the present and future water system concerns and sets forth a means for meeting those concerns in the most efficient manner possible pursuant to chapter 246-293 WAC.

     "Decree" means a consent decree under WAC 173-340-520.      "Consent decree" is synonymous with decree.

     "Department" means the department of ecology.

     "Disposal" means a remedial action which removes hazardous substances from the site and places the hazardous substances in an engineered, regulatory-complaint facility as a final destination.

     "Enforcement order" means an order issued under WAC 173-340-540.

     "Grant agreement" means a binding agreement between the local government and the department that authorizes the transfer of funds to the local government to reimburse it for a portion of expenditures in support of a specified scope of services.

     "Hazard ranking" means the ranking for hazardous waste sites used by the department pursuant to chapter 70.105D RCW.

     "Hazardous substances" means any substances as defined in WAC 173-340-200.

     "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.

     "Independent remedial actions" means remedial actions conducted without department oversight or approval and not under an order or decree.

     "Interim action" means a remedial action conducted under WAC 173-340-430 that partially addresses the cleanup of a site.

     "Local government" means any political subdivision, regional governmental unit, district, municipal or public corporation, including cities, towns, and counties.      The term encompasses but does not refer specifically to the departments within a city, town, or county.

     "Minimum functional standards" means the requirements of chapters 173-304 and 173-351 WAC, the minimum functional standards for solid waste handling.

     "National Priorities List (NPL)" means a list of hazardous waste sites at which the United States Environmental Protection Agency intends to proceed with enforcement or cleanup action.

     "No further action (NFA) determination" means an opinion issued by the department under WAC 173-340-515 (5)(b).

     "Oversight costs" are remedial action costs of the department or the United States Environmental Protection Agency reasonably attributable to the administration of an order or decree for remedial action at a hazardous waste site.

     "Pilot study" means an experiment in remedial action method, with the purpose of testing the suitability of a particular cleanup technology or process for remedial action at a particular site.

     "Potentially liable person (PLP)" means any person whom the department finds, based on credible evidence, to be liable under RCW 70.105D.040.

     "Public water system" means any system, excluding a system serving only one single-family residence and a system with four or fewer connections all of which serve residences on the same farm, providing piped water for human consumption, including any collection, treatment, storage, or distribution facilities under control of the purveyor and used primarily in connection with the system and collection or pretreatment storage facilities not under control of the purveyor but primarily used in connection with such system.

     "Purveyor" means an agency or subdivision of the state or a municipal corporation, firm, company, mutual or cooperative association, institution, partnership, or person or any other entity that owns or operates a public water system, or the authorized agent of such entities.

     "Recycling" means a remedial action which permanently removes hazardous substances from the site and successfully directs the material into a new product suitable for further industrial or consumer use.

     "Remedial action" means any action or expenditure to identify, eliminate, or minimize any threat or potential 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.

     "Remedial design (RD)" means an engineering study during which technical plans and specifications are developed to guide subsequent cleanup action at a hazardous waste site.

     "Remedial investigation/feasibility study (RI/FS)" means a study intended to collect, develop, and evaluate sufficient information regarding a site to enable the selection of a cleanup action.

     "Safe drinking water" means water meeting drinking water quality standards set by chapter 246-290 WAC.

     "Safe drinking water action" means an action by a local government purveyor or other purveyor to provide safe drinking water through public water systems to areas contaminated by or threatened by contamination from hazardous waste sites.

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

     "Site study and remediation" means remedial investigation, feasibility study, pilot study, remedial design, interim action or cleanup action at hazardous waste sites ((at which a local government is a potentially liable person (PLP) identified by the department)).

     "Treatment" means a remedial action which permanently destroys, detoxifies, or recycles hazardous substances.

[Statutory Authority: RCW 43.21A.080.      93-24-047, § 173-322-020, filed 11/23/93, effective 12/24/93.      Statutory Authority: Chapter 70.105D RCW.      90-10-057 (Order 89-45), § 173-322-020, filed 5/1/90, effective 6/1/90.]

(1) Nothing in this chapter shall influence, affect, or modify department programs, regulations, or enforcement of applicable laws relating to hazardous waste investigation and cleanup.

     (2) Nothing in this chapter shall modify the legal settlements and ((enforcement)) orders the department has secured with potentially liable persons for remedial action.      The execution of remedies pursuant to court order or decree shall in no way be contingent upon the availability of grant funding.

     (3) All grants shall be subject to existing accounting and auditing requirements of state laws and regulations applicable to the issuance of grant funds.

[Statutory Authority: RCW 43.21A.080.      93-24-047, § 173-322-030, filed 11/23/93, effective 12/24/93.      Statutory Authority: Chapter 70.105D RCW.      90-10-057 (Order 89-45), § 173-322-030, filed 5/1/90, effective 6/1/90.]

(1) All applicants must be local governments as defined in this chapter.

     (2) Site study and remediation grants.      Eligibility for site study and remediation grants is limited to applicants that meet the following standards:

     (a) The applicant must be a local government ((which)) that is a potentially liable person (PLP) at a hazardous waste site; or owns a site but is not a PLP; or applies for a remediation grant for area-wide ground water contamination.      The local government may be the sole PLP, or there may be other PLPs at the site.

     (b) The local government must meet one of the following standards:

     (i) The department must have required the local government to perform some phase of remedial action, or have approved or reviewed a completed remedial action.      That requirement ((may)), approval or review shall take ((any)) one of the following forms((, hereinafter referred to as "order or decree")):

     (A) A consent decree under chapter 70.105D or 70.105B RCW requiring remedial action at the site; or

     (B) An enforcement order or an agreed order under chapter 70.105D or 70.105B RCW prior to March 1, 1989, requiring remedial action at the site; or

     (C) An enforcement order ((or a)), consent order or consent decree under chapter 90.48 RCW requiring remedial action at the site or an amendment to such an order subsequent to March 1, 1989; or

     (D) An underground storage tank (UST) compliance order; or

     (E) A no further action (NFA) determination issued after completion of an independent remedial action.

     (ii) The local government which is also a potentially responsible party under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) as amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA) must have entered into a decree requiring remedial action at a hazardous waste site with the United States Environmental Protection Agency, provided that such agreement has been signed or acknowledged by the department in writing as a sufficient basis for remedial action grant funding.

     (iii) The local government must have signed an agreement with the department requiring another PLP to perform remedial action at a landfill site and that agreement must take one of the forms specified in (b)(i) of this subsection.      The local government must also have entered into an agreement with that PLP to reimburse the PLP for a portion of incurred remedial action costs with the sole purpose of providing relief to ratepayers and/or taxpayers from some remedial action costs.

     (3) Safe drinking water action grants.      Eligibility for safe drinking water action grants is limited to applicants who meet the following standards:

     (a) The applicant must be a local government purveyor as defined in WAC 173-322-020 or be a local government applying on behalf of a purveyor.

     (b) The subject water system must be in an area determined by the department of ecology to be a hazardous waste site or threatened by contamination from a hazardous waste site.

     (c) The subject water system must exhibit levels of contamination which exceed the primary maximum contaminant levels (MCLs) set by WAC 246-290-310 or EPA standards as determined by the department of health, or exhibit levels of contamination which exceed the standards set by WAC 173-340-700 through 173-340-760 as determined by the department of ecology, or be certified by the state department of health that a contaminant threatens the safety and reliability of a public water system which cannot be remedied solely by operational solutions.      Contaminants must include at least one hazardous substance.      If the contaminant is a nitrate or a trihalomethane, it must be determined to have originated from a hazardous waste site.

     (d) An order or decree must be issued to the identified potentially liable persons requiring that safe drinking water be provided to the contaminated area as part of a remedial action.      The department may waive this requirement if it has determined that no viable potentially liable persons exist, or if public health would be threatened from unreasonable delays associated with the search for potentially liable persons, or the order or decree process.

     (e) If water line extensions are included in the proposed projects, such extensions must be consistent with the coordinated water system plan and growth management plan for the geographic area containing the affected water supplies.

     (f) The applicant must be in substantial compliance, as determined by the department of health, with applicable rules of the Washington state board of health or the department of health, as contained in chapter 246-290 WAC (Public water supplies), chapter 246-292 WAC (Water works operator certification), chapter 246-293 WAC (Water System Coordination Act), and chapter 246-294 WAC (Drinking water operating permits).

     (4) Site hazard assessment grants.      The purpose of site hazard assessment grants is to involve local health districts and departments in assessing the degree of contamination at suspected hazardous waste sites according to WAC 173-340-320.      While enabling local health districts or departments to participate in the scoring and ranking process, the department retains the authority to review and verify the results of a site hazard assessment and to establish the hazard ranking of the site.      Eligibility for site hazard assessment grants is limited to applications that meet the following standards:

     (a) The applicant must be a local health district or department.

     (b) The scope of work for a site hazard assessment must conform to WAC 173-340-320 and prescribed guidelines issued by the department.

     (c) The assessment must be for sites agreed to by the department.

[Statutory Authority: RCW 43.21A.080.      93-24-047, § 173-322-040, filed 11/23/93, effective 12/24/93.      Statutory Authority: Chapter 70.105D RCW.      90-10-057 (Order 89-45), § 173-322-040, filed 5/1/90, effective 6/1/90.]

(1) Costs for site study and remediation.

     (a) Eligible costs include reasonable costs, including sales tax, incurred in performing:

     (i) Remedial investigations((.));

     (ii) Feasibility studies((.));

     (iii) Remedial designs((.));

     (iv) Pilot studies((.));

     (v) Interim actions((.));

     (vi) Landfill closures as required by chapters 173-304 and 173-351 WAC if included in the order or decree for remedial action((, and as limited by WAC 173-322-090.));

     (vii) Other remedial action included in the order or decree for remedial action((.)), or included as part of the independent remedial action for which a no further action (NFA) determination is issued;

     (viii) Capital costs of long-term monitoring systems((.)); and

     (ix) Operating and maintenance costs incurred during the first year of accomplishing the cleanup action after facilities and equipment have been installed or constructed.

     (b) Ineligible costs:

     (i) Retroactive costs except as limited by WAC 173-322-100((.));

     (ii) Legal fees and penalties((.));

     (iii) Oversight costs((.));

     (iv) Operating and maintenance costs after the first year of accomplishing the remedial action((.));

     (v) Operating and maintenance costs of long-term monitoring((.)); and

     (vi) ((Costs incurred in conducting independent remedial actions.

     (vii))) At sites other than landfills, additional ineligible costs will include costs incurred to meet departmental requirements for source control and prevention.

     (2) Costs for safe drinking water actions.

     (a) Eligible costs include reasonable costs, including sales tax, incurred for:

     (i) Water supply source development and replacement, including pumping and storage facilities, source meters, and reasonable appurtenances((.));

     (ii) Transmission lines between major system components, including inter-ties with other water systems((.));

     (iii) Treatment equipment and facilities((.));

     (iv) Distribution lines from major system components to system customers or service connections((.));

     (v) Fire hydrants((.));

     (vi) Service meters((.));

     (vii) Project inspection, engineering, and administration((.));

     (viii) Other costs identified by the state department of health as necessary to provide a system that operates in compliance with federal and state standards, or by the coordinated water system plan as necessary to meet required standards((.));

     (ix) Other costs identified by the department of ecology as necessary to protect a public water system from contamination from a hazardous waste site or to determine the source of such contamination((.));

     (x) Individual service connections, including any fees and charges, provided that property owners substantially participate in financing the cost of such connections((.));

     (xi) Drinking water well abandonment for wells identified by the department as an environmental safety or health hazard according to WAC 173-160-415((.)); and

     (xii) Interim financing where necessary as a prerequisite to local government issuance of revenue bonds.

     (b) Ineligible costs include:

     (i) Legal fees and penalties((.));

     (ii) Ecology oversight costs((.));

     (iii) Operating and maintenance costs((.));

     (iv) Retroactive costs except as limited by WAC 173-322-100;

     (v) Natural resource damage assessment; and

     (vi) Costs for source control or pollution prevention activities at sites other than landfills.

     (3) Costs for site hazard assessments.      Eligible costs include costs for activities performed pursuant to WAC 173-340-320 and enabling local health districts or departments to participate in the department's site ranking and priority-setting process.

     (4) Costs must be eligible under this section and must be approved by the department in order to be eligible for reimbursement.

[Statutory Authority: RCW 43.21A.080.      93-24-047, § 173-322-050, filed 11/23/93, effective 12/24/93.      Statutory Authority: Chapter 70.105D RCW.      90-10-057 (Order 89-45), § 173-322-050, filed 5/1/90, effective 6/1/90.]

(1) Application period.      The department shall determine appropriate application periods.

     (2) Grant applications must:

     (a) Include a commitment by the applicant for local funds to match grant funds according to the requirements of WAC 173-322-090.

     (b) For site study and remediation projects include a scope of work which accomplishes the requirements of an order or decree.

     (c) For safe drinking water action projects, include a scope of work necessary to provide safe drinking water to the area threatened or contaminated.

     (d) For site hazard assessment projects, include a scope of work which conforms to the requirements of WAC 173-340-320(4).

     (e) For independent remedial actions, include a description of the remedial action for which a no further action (NFA) determination was issued and include a copy of the NFA determination document.

[Statutory Authority: RCW 43.21A.080.      93-24-047, § 173-322-060, filed 11/23/93, effective 12/24/93.      Statutory Authority: Chapter 70.105D RCW.      90-10-057 (Order 89-45), § 173-322-060, filed 5/1/90, effective 6/1/90.]

(1) When pending grant applications or anticipated demand for site study and remediation grants exceed the amount of funds available, the department may prioritize applications or limit grant awards based on ((criteria identified in grant guidelines, including)) the following:

     (a) Relative hazard ranking as determined by the department in accordance with WAC 173-340-330 or the United States Environmental Protection Agency's National Priorities List ranking.      Higher ranking sites will receive a higher funding priority.

     (b) Evidence that the grant will expedite cleanup.

     (c) Relative readiness of the applicant to proceed promptly to accomplish the scope of work.

     (2) When pending grant applications or anticipated demand for safe drinking water action grants exceed the amount of funds available, the department may prioritize applications or limit grant awards based on ((criteria identified in grant guidelines, including)) the following:

     (a) Relative risk to human health as jointly determined by the department of ecology, in accordance with WAC 173-340-330, and the department of health, in accordance with WAC 246-290-310.      Sites with greater risk will receive higher funding priority.

     (b) Relative readiness of the applicant to proceed promptly to accomplish the scope of work.

     (c) Ownership of the water system to be extended or improved.      Local government-owned systems will receive higher funding priority than other systems.

     (d) Number of people served by the water system and per capita cost of remediation.

     (3) When pending grant applications or anticipated demand for site hazard assessment grants exceed the amount of funds available, the department may prioritize applications or limit grant awards based on ((criteria identified in grant guidelines, including)) the following:

     (a) Potential public health or environmental threat from the sites.

     (b) Ownership of the sites.      Publicly-owned sites will receive priority over privately-owned sites.

     (c) Relative readiness of the applicant to proceed promptly to accomplish the scope of work.

[Statutory Authority: RCW 43.21A.080.      93-24-047, § 173-322-070, filed 11/23/93, effective 12/24/93.      Statutory Authority: Chapter 70.105D RCW.      90-10-057 (Order 89-45), § 173-322-070, filed 5/1/90, effective 6/1/90.]

(1) Except as otherwise provided in this section, costs eligible for site study and remediation and safe drinking water action grants will be considered for grant funding at up to fifty percent, except ((that local governments that do not qualify as economically disadvantaged shall receive no more than five hundred thousand dollars for the minimum landfill closure requirements of chapter 173-304 WAC)) in the case of site study and remediation grants with eligible costs of over two hundred thousand dollars, local governments who utilize treatment, recycling and/or disposal as part or all of the cleanup action shall be eligible to receive an additional fifteen percent. Independent remedial action grant funds are available only for projects with eligible costs of less than two hundred thousand. The additional fifteen percent funds do not apply to independent remedial actions.

     (2) Costs for site hazard assessments which are eligible under WAC 173-322-050(3) will be considered for grant funding of up to one hundred percent.      ((No grant for site hazard assessment shall exceed two hundred thousand dollars per health district or department per biennium.))

     (3) Costs for area-wide ground water contamination remediation grants will be considered for grant funding of more than fifty percent. Local governments shall be required to obtain partial reimbursement from PLPs. Reasonable measures shall be taken by local governments to maximize reimbursement. The amount of grant funds and how much to pay back will be determined by the department on a case-by-case basis.

     (4) Grant funding for economically disadvantaged local governments.

     (a) In addition to grant funding under subsection (1) of this section, economically disadvantaged local governments may apply for up to twenty-five percent supplemental funding((, not to exceed seventy-five percent of eligible costs)).      This additional funding will be contingent on satisfactory demonstration of extraordinary financial need.

     (b) A local government is considered economically disadvantaged if it is a county, or a local government within a county, which meets both of the following criteria:

     (i) Per capita income, as measured by the latest official estimate of the Washington state office of financial management, is in the lower twenty counties in the state; and

     (ii) It is economically distressed as defined by chapter 43.165 RCW.

     (c) The department will include a list of counties which are economically disadvantaged as defined herein in the guidelines for remedial action grants to be published on a biennial basis.

     (((4))) (5) For applicants eligible for site study and remediation grants, if a decree or order requires a potentially liable person (PLP) other than a local government to conduct remedial action, the financial contribution of that PLP will be deducted from the amount eligible for grant funding to the local government.

     (((5))) (6) For applicants eligible for safe drinking water action grants, funding from either the local government or the PLP may be used to match remedial action grant funds.

     (((6))) (7) As established by the Model Toxics Control Act, chapter 70.105D RCW, and implementing regulations, the potentially liable persons bear financial responsibility for remedial action costs.      The remedial action grant program may not be used to circumvent the PLP responsibility.

[Statutory Authority: RCW 43.21A.080.      93-24-047, § 173-322-090, filed 11/23/93, effective 12/24/93.      Statutory Authority: Chapter 70.105D RCW.      90-10-057 (Order 89-45), § 173-322-090, filed 5/1/90, effective 6/1/90.]

(1) The department will establish reasonable costs for all grants, require applicants to manage projects in a cost effective manner, and ensure that all potentially liable persons (PLPs) assume responsibility for remedial action.

     (2) The department retains the authority to issue grants which reimburse the recipient for less than the maximum percentage allowable under WAC 173-322-090.

     (3) Cap on site funding.      Except for independent remedial actions where a no further action (NFA) determination is issued after cleanup has been completed, after the remedial investigation and feasibility study have been completed and a final remedial action plan has been developed by an eligible applicant, the department and the applicant will establish a final cleanup budget and negotiate a grant agreement.      The grant amount in this agreement will be the final department remedial action grant fund commitment for cleanup at that hazardous waste site.      Grant agreements may be amended, but requests to increase the remedial action grant budget at that site will receive a lower priority than other applications.

     (4) Retroactive funding.      Grant funding of costs already incurred prior to the date of the grant agreement may be allowed to local governments ((PLPs)) where the order or decree with the department, if any, postdates March 1, 1989, and under one or more of the following circumstances:

     (a) If the grant application period is closed when the order or decree becomes effective;

     (b) If the department unreasonably delays the processing of a remedial action grant application;

     (c) If there are inadequate funds in the local toxics control account to cover the entire scope of work required by decree or order; and/or

     (d) If remedial actions not required by decree or order have proceeded, grants for this work may be made if the department later formally includes such work items in a decree or order, or for independent remedial actions conducted no earlier than five years before the date of application if a no further action (NFA) determination is given for that independent remedial action.

     (5) Reimbursement of grant funds.      If the department awards remedial action funds to a local government that successfully pursues a ((successful settlement)) private right of action against a PLP who has not settled with the department or successfully pursues a claim for insurance proceeds, then the department shall be reimbursed for a proportional share of the ((settlement)) moneys received, after the local government's legal fees in pursuing such ((contribution)) actions have been deducted.

     (6) Repayment of grant funds. Where the department provides a remediation grant for area-wide ground water contamination to a local government, the grant amount shall be partially repaid to the department where ownership of property affected by the grant is held by private parties. The terms and amount of repayment will be included in the grant agreement between the local government and the department.

[Statutory Authority: RCW 43.21A.080.      93-24-047, § 173-322-100, filed 11/23/93, effective 12/24/93.      Statutory Authority: Chapter 70.105D RCW.      90-10-057 (Order 89-45), § 173-322-100, filed 5/1/90, effective 6/1/90.]

(1) Local governments will be periodically informed of the availability of remedial action grant funding.

     (2) A grant application package will be sent to all parties expressing interest in remedial action grants and to all local governments that have been required by decree or order to perform remedial actions.      Grant application packages will include grant guidelines and application forms.

     (3) Application must be made within sixty days after the date that a decree or order becomes effective or for independent remedial actions, within sixty days of receipt of a no further action (NFA) determination.

     (4) The department will prepare a guidance manual on a biennial basis to assist grant applicants and to facilitate compliance with this regulation.

     (5) Appropriation and allocation of funds.      Grants will be awarded within the limits of available funds.      The obligation of the department to make grant payments is contingent upon the availability of funds through legislative appropriation and allotment, and such other conditions not reasonably foreseeable by the department rendering performance impossible.      When the grant crosses over bienniums, the obligation of the department is contingent upon the legislative appropriation of funds for the next biennium.

     (6) Remedial action grants shall be used to supplement local government funding and funding from other sources to carry out required remedial action.

     (7) The department may fund all or portions of eligible grant applications.

     (8) To the extent that the Constitution and laws of the state of Washington permit, the grantee shall indemnify and hold the department harmless, from and against, any liability for any or all injuries to persons or property arising from the negligent act or omission of the grantee arising out of a grant contract.

[Statutory Authority: RCW 43.21A.080.      93-24-047, § 173-322-110, filed 11/23/93, effective 12/24/93.      Statutory Authority: Chapter 70.105D RCW.      90-10-057 (Order 89-45), § 173-322-110, filed 5/1/90, effective 6/1/90.]

(((1) Local governments will be periodically informed of the availability of remedial action grant funding.

     (2) A grant application package will be sent to all parties expressing interest in remedial action grants and to all local governments that have been required by decree or order to perform remedial actions.      Grant application packages will include grant guidelines and application forms.

     (3) Application must be made within sixty days after the date that a decree or order becomes effective, or within sixty days of the effective date of this rule for local governments which meet the requirements of WAC 173-322-050, but which have not submitted an application for remedial action grant funding.

     (4) The department will prepare a guidance manual on a biennial basis to assist grant applicants and to facilitate compliance with this regulation.)) The department may award a loan or combination loan and grant to a grant applicant. Loan terms and the repayment provisions of a loan shall be established on a case-by-case basis under an agreement between the local government and the department.

[Statutory Authority: Chapter 70.105D RCW.      90-10-057 (Order 89-45), § 173-322-120, filed 5/1/90, effective 6/1/90.]

OTS-3477.2

AMENDATORY SECTION(Amending Order 89-26, filed 10/17/89, effective 11/17/89)

WAC 173-321-010
Purpose and authority.

(1) The department is directed by the Model Toxics Control Act to provide grants up to ((fifty)) sixty thousand dollars to persons who may be adversely affected by a release or threatened release of a hazardous substance and to not-for-profit public interest groups.      These grants shall be used to facilitate public participation in the investigation and remediation of a release or threatened release of a hazardous substance and to facilitate public participation in the implementation of the state's solid and hazardous waste management priorities.

     (2) The purpose of this chapter is to set forth eligibility criteria and funding requirements for grant projects.

[Statutory Authority: 1989 c 2.      89-21-072 (Order 89-26), § 173-321-010, filed 10/17/89, effective 11/17/89.]

As used in this chapter:

     (1) "Department" means the department of ecology.

     (2) "Director" means the director of the department of ecology or such person authorized to act for the director.

     (3) "Emergency" means an occurrence warranting public participation which occurs after the deadline for grant applications and before the opening of a new grant application period, such as:

     (a) An unforeseen release of a hazardous substance at an existing site or a newly discovered site;

     (b) An unanticipated decision by the department concerning remedial action at a site or publication of a remedial investigation, feasibility study or risk assessment; or

     (c) Discovery of a technical assistance need which could not have been foreseen before the grant application deadline.

     (4) "Emergency grant" means a public participation grant in the hazardous substance release category for an emergency as defined in this section.

     (5) "Expendable personal property" means all tangible personal property other than nonexpendable personal property.

     (((4))) (6) "Facility" means:

     (a) Any building, structure, installation, equipment, pipe or pipeline (including any pipe into a sewer or publicly owned treatment works), well, pit, waste pile, pond, lagoon, impoundment, ditch, landfill, tank, 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.

     (((5))) (7) "Grant applicant" means any person requesting a public participation grant.

     (((6))) (8) "Hazardous substance" means:

     (a) Any dangerous or extremely hazardous waste as defined in RCW 70.105.010 (5) and (6) or any dangerous or extremely hazardous waste designated by rule pursuant to chapter 70.105 RCW;

     (b) Any hazardous substance as defined in RCW 70.105.010(14) or any hazardous substance as defined by rule pursuant to chapter 70.105 RCW;

     (c) Any substance that, on March 1, 1989, is a hazardous substance under 101(14) of the Federal Cleanup Law, 42 U.S.C. Sec. 960(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.      Except that:

     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 laws.

     (((7))) (9) "Hazardous waste management priorities" as defined in RCW 70.105.150 are the priorities in the management of hazardous waste which should be followed in descending order as applicable:

     (a) Waste reduction;

     (b) Waste recycling;

     (c) Physical, chemical, and biological treatment;

     (d) Incineration;

     (e) Solidification/stabilization treatment;

     (f) Landfill.

     (((8))) (10) "Nonexpendable personal property" means tangible personal property having a useful life of more than one year and an acquisition cost of three hundred dollars or more per unit.

     (((9))) (11) "Not-for-profit public interest organization" means any corporation, trust, association, cooperative, or other organization which:

     (a) Is operated primarily for scientific, educational, service, charitable, or similar purposes in the public interest;

     (b) Is not organized primarily for profit; and

     (c) Uses its net proceeds to maintain, improve, and/or expand its operations.

     (((10))) (12) "Owner/operator" means((:

     (a) Any person with any ownership interest in the facility or who exercises any control over the facility; or

     (b) In the case of an abandoned facility, any person who had owned, operated, or exercised control over the facility any time before its abandonment;

     The term does not include:

     (i) An agency of the state or unit of local government which acquired ownership or control involuntarily through bankruptcy, tax delinquency, abandonment, or other circumstances in which the government involuntarily acquires title, unless that agency of the state or unit of local government has caused or contributed to the release or threatened release of hazardous substances from the facility; or

     (ii) A person who, without participation in the management of a facility, holds identification of ownership primarily to protect the person's security interest in the facility)) any person defined as an owner or operator under RCW 70.105D.020(12).

     (((11))) (13) "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.

     (((12))) (14) "Personal property" means property of any kind except real property.      It may be tangible (having physical existence) or intangible (having no physical existence), such as patents, inventions, and copyrights.

     (((13))) (15) "Potentially liable person" means any person whom the department finds, based on credible evidence, to be liable under ((section 4 of the Model Toxics Control Act)) RCW 70.105D.040.      The department shall give notice to any such person and allow an opportunity for comment before making the finding, unless an emergency requires otherwise.

     (((14))) (16) "Real property" means land, land improvements, structures, and appurtenances thereto, excluding moveable machinery and equipment.

     (((15))) (17) "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.

     (((16))) (18) "Remedy, remediation, or remedial action" means any action or expenditure consistent with the purposes of this chapter to identify, eliminate, or minimize any threat or potential 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.

     (((17))) (19) "Solid waste management priorities" as defined in chapter 70.95 RCW are the priorities in the management of solid waste which should be followed in order of descending priority as applicable:

     (a) Waste reduction;

     (b) Recycling with source separation of recyclable materials as the preferred method;

     (c) Energy recovery, incineration, or landfill of separated waste;

     (d) Energy recovery, incineration, or landfill of mixed waste.

[Statutory Authority: 1989 c 2.      89-21-072 (Order 89-26), § 173-321-020, filed 10/17/89, effective 11/17/89.]

(1) Public participation grants may only be awarded to groups of three or more unrelated persons or to not-for-profit public interest organizations.

     (2) All applicants must demonstrate their ability to appropriately administer grant funds.

     (3) Applications for a hazardous substance release grant, including emergency grants, must include information on:

     (a) The nature of the release or threatened release of the hazardous substance;

     (b) The location of the release or threatened release of the hazardous substance;

     (c) How the applicant group may be adversely affected by the release or threatened release of the hazardous substance;

     (d) How the applicant group will promote public participation in the investigation or remediation of the release or threatened release of the hazardous substance;

     (e) A complete project description;

     (f) How the applicant group represents the environmental, health, and economic interests of individuals affected by the release or threatened release of the hazardous substance;

     (g) The applicant group's history and experience, if any, in conducting activities similar to those described in the grant application;

     (h) For emergency grants, a description of why an emergency exists, as defined in WAC 173-321-020(3); and

     (i) Any other information specified by the department as needed to award a grant.

     (4) Applications for a waste management priorities grant must include information on:

     (a) How the applicant group will promote or implement the state solid or hazardous waste management priorities;

     (b) How the applicant group will promote public participation in the grant project described in the application;

     (c) A complete project description;

     (d) The applicant group's history and experience, if any, in conducting activities similar to those described in the grant application;

     (e) Any other information specified by the department as needed to award a grant.

     (5) The following persons or groups of persons shall be ineligible for grant funding:

     (a) Any person potentially liable, as defined under RCW 70.105D.040;

     (b) Local governments including any political subdivision, regional governmental unit, district, municipal or public corporation, including cities, towns, and counties.      The term encompasses but does not refer specifically to the departments within a city, town, or county;

     (c) Federal and state governments, or agencies thereof;

     (d) Federally recognized Indian tribes, as a governing body.      Individual tribe members of three or more persons are eligible to apply for a public participation grant;

     (e) Organizations sustained by public funding;

     (f) Public and private universities; and

     (g) Any organization located outside of Washington state boundaries.

     (6) Grant applications failing to qualify may be resubmitted.

[Statutory Authority: RCW 43.21A.080 and chapter 70.105D RCW.      90-18-065 (Order 90-20), § 173-321-040, filed 9/4/90, effective 10/5/90.      Statutory Authority: 1989 c 2.      89-21-072 (Order 89-26), § 173-321-040, filed 10/17/89, effective 11/17/89.]

(1) Except for emergency grants which will be reviewed and evaluated by the department within twenty working days of receipt of the application, all other grant applications received will be reviewed and evaluated by the department within thirty working days after the close of the regular grant application period.      Incomplete applications will not be evaluated.      Applications will be ranked according to how each application meets the criteria set forth below.      Grants will be awarded, within the limits of available funds, to the highest ranking applications.      The department may fund all or portions of eligible grant applications.

     (2) Priority consideration for public participation grant funding will be given to:

     (a) Applicants requesting a hazardous substance release grant;

     (b) New applicants; and

     (c) Applicants that demonstrate the ability to provide accurate technical information on complex waste management issues.

     (3) General criteria.      All public participation grants will be evaluated against the following criteria:

     (a) The type and extent of the applicant group's past history and experience conducting activities similar to those described in the grant application;

     (b) The group's basic funding, with consideration given to groups with limited resources;

     (c) The group's ability to appropriately manage grant funds;

     (d) Except for emergency grants, if more than one group is interested in the same project, priority consideration will be given to groups who consolidate;

     (e) Availability of funding sources for the project;

     (f) Past performance under a public participation grant;

     (g) The group's ability to define the environmental issue and identify what changes will occur in the problem as a result of the project; and

     (h) Demonstration of the use of Bennett's hierarchy or similar methodology with a focus on outcome and clear commitment to follow through to end results.

     (4) Special criteria.

     (a) Hazardous substance release grants.      Hazardous substance release grants, including emergency grants, will be evaluated against the following criteria:

     (i) The degree to which the applicant group may be adversely or potentially adversely impacted by the release or threatened release of the hazardous substance, including but not limited to adverse or potential adverse impacts to surface and drinking waters, soils, flora or fauna, species diversity, air quality, property values, marketability of agricultural crops, and recreational areas;

     (ii) The degree to which the applicant group represents the environmental, health, and economic interests of individual group members;

     (iii) The degree to which the proposed project will promote public participation in the investigation or remediation of the release or threatened release of the hazardous substance.

     (b) Waste management priorities grants.      Waste management priorities grants will be evaluated against the following criteria:

     (i) The degree to which the proposed public participation activity will promote or implement the state solid or hazardous waste management priorities;

     (ii) The degree to which the proposed project will facilitate public understanding of the state solid and hazardous waste management priorities;

     (iii) The degree to which the proposed public participation activities are consistent with or improve upon existing solid or hazardous waste management plans.

[Statutory Authority: RCW 43.21A.080 and chapter 70.105D RCW.      90-18-065 (Order 90-20), § 173-321-050, filed 9/4/90, effective 10/5/90.      Statutory Authority: 1989 c 2.      89-21-072 (Order 89-26), § 173-321-050, filed 10/17/89, effective 11/17/89.]

(1) Eligible project costs for substance release grants shall include but not be limited to:

     (a) Hiring technical assistants to review and interpret documents;

     (b) Public involvement and public education activities;

     (c) Reviewing specific plans for environmental testing and analysis, reviewing reports summarizing the results of such plans and making recommendations for modifications to such plans.

     (d) Expendable personal property;

     (e) Other public participation activities as determined by the department on a case-by-case basis.

     (2) Eligible project costs for waste management priority grants shall include but not be limited to:

     (a) Assisting in developing and implementing programs that promote or improve state or local solid or hazardous waste management plans;

     (b) Assisting in developing programs or activities that promote and are consistent with the state solid or hazardous waste management priorities;

     (c) Expendable personal property;

     (d) Other public participation activities as determined by the department on a case-by-case basis.

     (3) Ineligible projects and grant costs shall include but not be limited to:

     (a) Independently collecting or analyzing samples at facility sites;

     (b) Hiring attorneys for legal actions against potentially liable persons, facility owners, or the department. Applicants who receive a grant award shall notify the department if legal action is intended or taken on the subject of the grant project or application;

     (c) Legislative lobbying activities;

     (d) Real property;

     (e) Nonexpendable personal property.

[Statutory Authority: 1989 c 2.      89-21-072 (Order 89-26), § 173-321-060, filed 10/17/89, effective 11/17/89.]

(1) The department may fund up to one hundred percent of eligible project costs.

     (2) The maximum grant allowance shall be ((fifty)) sixty thousand dollars.

     (3) Public participation grants may be renewed annually.      A new grant application must be submitted ((each year)) to be evaluated and ranked for additional funding.

     (4) The department reserves the right to refuse funding to any and all applications failing to meet the grant eligibility criteria and may reopen the application period for additional applications.

[Statutory Authority: 1989 c 2.      89-21-072 (Order 89-26), § 173-321-070, filed 10/17/89, effective 11/17/89.]

(1) The department shall establish grant application funding cycles each year.

     (2) Public notice of application funding cycles shall be published state-wide.

     (3) A grant application package will be sent to all persons interested in applying for public participation grants.      Grant application packages will include notice of grant application deadlines, grant guidelines, and application forms.

     (4) Grant applications will be evaluated by the department.      To be funded, applications must include all required elements as outlined in the guidelines.

     (5) The obligation of the department to make grant payments is contingent upon the availability of funds through legislative appropriation, and such other conditions not reasonably foreseeable which may preclude awarding such grants.

     (6) The department, on at least a biennial basis, will determine the amount of funding available for public participation grants and establish an application and funding cycle.      The minimum amount of money available for public participation grants established by the Model Toxics Control Act shall be one percent of the moneys deposited into the state and the local toxics control accounts.

     (7) The department shall not be held responsible for payment of salaries, consultant fees, or other costs related to a contract of the grantee.

     (8) To the extent that the Constitution and laws of the state of Washington permit, the grantee shall indemnify and hold the department harmless, from and against, any liability for any or all injuries to persons or property arising from the negligent act or omission of the grantee arising out of a grant contract.

     (9) All grants under this chapter shall be consistent with ((the provisions of "Financial Guidelines for Grant Management" WDOE 80-6, May 1980, Reprinted March 1982, or such subsequent guidelines)) "Administrative Requirements for Ecology Grants and Loans" WDOE publication No. 91-18, revised July 1995.

[Statutory Authority: 1989 c 2.      89-21-072 (Order 89-26), § 173-321-080, filed 10/17/89, effective 11/17/89.]

OTS-3344.6

AMENDATORY SECTION(Amending WSR 90-08-086, filed 4/3/90, effective 5/4/90)

WAC 173-340-100
Purpose.

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

     The goal of this chapter is to implement the policy declared by chapter 70.105D RCW.      This chapter provides a workable process to accomplish effective and expeditious cleanups in a manner that protects human health and the environment.      This chapter is primarily intended to address releases of hazardous substances caused by past activities although its provisions may be applied to potential and ongoing releases of hazardous substances from current activities.

    

Note:

All materials incorporated by reference in this chapter are available for inspection at the Department of Ecology's Toxics Cleanup Program, 300 Desmond Drive, Lacey, Washington, 98503.

[Statutory Authority: Chapter 70.105D RCW.      90-08-086, § 173-340-100, filed 4/3/90, effective 5/4/90.]

(1) Purpose.      This section provides an overview of the cleanup process that typically will occur at a site where a release of a hazardous substance has been discovered with an emphasis on sites being cleaned up under order or consent decree.      If there are any inconsistencies between this section and any specifically referenced sections, the referenced section shall govern.

     (2) Site discovery.      Site discovery includes:

     (a) Release reporting.      ((A reporting program is established to help identify potential hazardous waste sites.)) An owner((s and)) or operator((s)) who knows of or discovers a release of a hazardous substance due to past activities must report the release to the department ((within ninety days of discovery, under)) as described in WAC 173-340-300.      Most current releases of hazardous substances must be reported to the department under the state's hazardous waste, underground storage tank, or water quality laws. The term "hazardous substance" includes a broad range of substances as defined by chapter 70.105D RCW.

     (b) Initial investigation.      Within ninety days of learning of a hazardous substance release, the department will conduct an initial investigation of the site under WAC 173-340-310.      For sites that may need further remedial action, the department will send an early notice letter ((will be sent)) to the owner ((and)), operator, and other potentially liable persons known to the department, informing them of the department's decision.

     (3) Site priorities.      ((Priorities)) Sites are prioritized for further remedial action ((are set)) by the following process:

     (a) Site hazard assessment.      Based on the results of the initial investigation, a site hazard assessment will be performed if necessary, ((under)) as described in WAC 173-340-320.      The purpose of the site hazard assessment is to gather information to confirm whether a release has occurred and to enable the department to evaluate the relative potential hazard posed by the release.      If the department decides that no further action is required, it will notify the public of that decision through the Site Register.

     (b) Hazardous sites list.      The department will maintain a list of sites ((that require)) known as the "hazardous sites list" where further remedial action is required.      ((Sites will be listed)) The department will add sites to this list after the completion of a site hazard assessment.      Sites placed on the list will be ranked using the department's hazard ranking method.      The department ((may)) will remove a site from the hazardous sites list if the ((cleanup action at the site has achieved the cleanup standards and all remedial actions except confirmational monitoring have been completed.      See)) site meets the requirements for removal described in WAC 173-340-330.

     (c) Biennial program report.      Every even-numbered year, the department will prepare a biennial program report for the legislature.      The hazard ranking, along with other factors, will be used in this report to identify the projects and expenditures recommended for appropriation.      See WAC 173-340-340.

     (4) Detailed site investigations and cleanup decisions.      The following steps will be taken to ensure that the proper method of cleanup is chosen for the site.

     (a) Remedial investigation ((and feasibility study)).      A ((state)) remedial investigation((/feasibility study)) will be performed at ranked sites under WAC 173-340-350.      The ((state)) purpose of the remedial investigation((/feasibility study)) is to collect data and information necessary to define((s)) the extent of ((the problems at the site and evaluates alternative cleanup actions)) contamination and to characterize the site.

     (b) ((Selection of cleanup action.)) Feasibility study. A feasibility study will be conducted at ranked sites under WAC 173-340-350. The purpose of the feasibility study is to develop and evaluate alternative cleanup actions.      The department will evaluate the remedial investigation/feasibility study, establish cleanup levels and the point or points at which they must be complied with in accordance with the procedures provided for in WAC 173-340-700 through 173-340-760 and select a cleanup action that ((will)) protects human health and the environment and ((meet the other)) is based on the remedy selection criteria and requirements ((of)) in WAC ((173-340-360)) 173-340-350 through 173-340-390.      ((At some sites, restrictions on the use of the land and resources ()) WAC 173-340-440 sets forth the circumstances in which institutional controls(())) will be required to ((insure)) ensure continued protection of human health and the environment.      ((See WAC 173-340-440.))

     (c) Cleanup action plan. The cleanup action will be set forth in a draft cleanup action plan that addresses cleanup requirements for hazardous substances at the site.      After public comment on the draft plan, a final cleanup action plan will be issued by the department.      (((See WAC 173-340-700 for additional overview discussion of these requirements.)))

     (5) Site cleanup.      Once the appropriate cleanup action has been selected for the site, the actual cleanup will be performed.

     (a) Cleanup actions.      WAC 173-340-400 describes the design and construction requirements for implementing the cleanup action plan.

     (b) Compliance monitoring and review.      The cleanup action must include compliance monitoring under WAC 173-340-410 and in some cases periodic review under WAC 173-340-420 to ensure the long-term effectiveness of the cleanup action.

     (6) Interim actions.      Under certain conditions it may be appropriate to take early actions at a site ((prior to)) before completing the process described in subsections (2) through (5) of this section.      WAC 173-340-430 describes when it is appropriate to take these early or interim actions and the requirements for such actions.

     (7) Leaking underground storage tanks.      Underground storage tank (UST) owners and underground storage tank operators regulated under chapter 90.76 RCW are required to perform specific actions in addition to what other site owners and operators would do under this chapter.      ((Such additional actions include reporting of a confirmed release within twenty-four hours, follow-up investigation, free product removal and immediate assessment of the threat to human health and the environment at the site.      A written report describing the site and the actions taken must be submitted within ninety days of release confirmation.      Depending on the results of these actions, additional remedial actions may be required.))      WAC 173-340-450 describes ((these and other)) the requirements for leaking underground storage tanks.

     (8) Procedures for conducting remedial actions.

     (a) Remedial action agreements.      The department has authority to take remedial actions or to order persons to conduct remedial actions under WAC 173-340-510 and 173-340-540.      However, the department encourages agreements for investigations and cleanups in appropriate cases.      These agreements can be agreed orders or consent degrees reached under the procedures of WAC 173-340-520 and 173-340-530.

     (b) Independent remedial actions.      Persons may ((decide to perform)) conduct investigations and cleanups without department approval under this chapter.      The department will use the appropriate requirements ((contained herein in its evaluation of)) in this chapter when evaluating the adequacy of any independent remedial action((s performed)).      Except as limited by WAC 173-340-515(2), nothing in this chapter prohibits persons from ((performing)) conducting such actions before the department is ready to act at the site; however, all interim and cleanup actions must be reported to the department under WAC ((173-340-300)) 173-340-515.      Furthermore, independent remedial actions are ((done)) conducted at the potentially liable person's own risk and the department may take or require additional remedial actions at these sites at any time.      (See WAC ((173-340-510)) 173-340-515 and 173-340-545.)

     (((c))) (9) Public participation.      At sites where the department is conducting the cleanup or overseeing the cleanup under an order or decree, the public will receive notice and an opportunity to comment on most of the steps in the cleanup process.      At many sites, a public participation plan will be prepared to provide opportunities for more extensive public involvement in the cleanup process.

     These and other requirements are described in WAC 173-340-600.

[Statutory Authority: Chapter 70.105D RCW.      91-04-019, § 173-340-120, filed 1/28/91, effective 2/28/91; 90-08-086, § 173-340-120, filed 4/3/90, effective 5/4/90.]

(1) Introduction.      The department shall conduct or require remedial actions consistent with the provisions of this section((, as typically defined by the subsequent sections)).

     (2) Information sharing.      It is the policy of the department to make ((available)) information about releases or threatened releases ((with property)) available to owners, operators or other persons with potential liability for a site in order to encourage them to conduct prompt remedial action.      It is also the policy of the department to make the same information available to interested members of the general public so they can follow the progress of site cleanup in the state.

     (3) Information exchange.

     (((a) Technical assistance.)) All persons are encouraged to contact the department and seek assistance on the general administrative and technical requirements of this chapter.      Through its technical consultation program described in WAC 173-340-515, the department may also provide informal advice and assistance to ((potentially liable)) persons conducting or proposing remedial actions at a specific site at any time ((during the development of a remedial action)).      Unless the department is providing formal guidance for the implementation of an order or decree, any comments by the department or its agents are advisory and not commitments or approvals binding on the department.      A person may not represent this advice as an approval of a remedial action.      If the person requesting the advice is seeking binding commitments or approvals, then an order or consent decree shall be used.      ((The department advises persons requiring site-specific legal or technical assistance to hire an attorney or engineering consultant with the appropriate environmental expertise.

     (b) Response to requests.      If the department believes that responding to a request for technical assistance would involve substantial time or resources or would not be in the public interest, the department may decline to provide the requested assistance.      The department shall inform the requester of its response.      The department may require one or more of the following before devoting time to the request:

     (i) A proposed schedule;

     (ii) Payment, in advance, for its costs in responding to the request;

     (iii) Other assurances that the requester is serious about carrying out the provisions of this chapter; or

     (iv) Other information.))

     (4) Scope of public participation.      The department seeks to encourage public participation in all steps of the cleanup process.      The department shall encourage a level of participation appropriate to the conditions at a facility and the level of the public's interest in the site.

     (5) Scope of information.      It is the department's intention that adequate information ((will)) be gathered at a site to enable decisions on appropriate actions.      It is also the department's intention that decisions be made and cleanups proceed expeditiously once adequate information is obtained.      Studies can be performed and submittals made at varying levels of detail appropriate to the conditions at the site.      ((For example, the department might decide that a study of a small site with minimal ground water impacts need not include as detailed an analysis of the ground water flow system as for a study of a geologically more complex site.)) Also, steps in the cleanup process may be combined to facilitate quicker cleanups, where appropriate. Flexibility in the scope of investigations and in combining steps may be particularly appropriate for routine cleanup actions.      Once ((the department has)) adequate information ((it will make cleanup)) has been obtained, decisions shall be made within the framework provided in this chapter and in site-specific orders or decrees.

     (6) ((Combining steps.      Several steps in the cleanup process may be combined into fewer steps, when appropriate.      For example, the department and a potentially liable person may agree that conditions at a site are such that the remedial investigation/feasibility study and remedial design and implementation steps could be combined into a single step.

     (7) Routine cleanup actions.      Flexibility in the scope of investigations and in combining steps may be particularly appropriate for routine cleanup actions.      For example, the department may decide to approve a routine cleanup action based upon a single investigation that includes a site hazard assessment and a simplified state remedial investigation/feasibility study and engineering design plan.

     (a) A cleanup action may be considered routine if the following criteria are met:

     (i) It involves an obvious and limited choice among cleanup methods;

     (ii) It uses a cleanup method that is reliable and has proven capable of accomplishing cleanup standards;

     (iii) Cleanup standards for each hazardous substance addressed by the cleanup are obvious and undisputed, and allow an adequate margin of safety for protection of human health and the environment;

     (iv) The department has experience with similar actions; and

     (v) The action does not require an environmental impact statement.

     (b) Routine cleanup actions consist of or are comparable to one or more of the following remedial actions:

     (i) Cleanup of above-ground structures;

     (ii) Cleanup of below-ground structures;

     (iii) Cleanup of contaminated soils where the action would restore the site to cleanup levels; or

     (iv) Cleanup of solid wastes, including containers.

     (c) Cleanup of ground water will not normally be considered a routine cleanup action.

     (d) A routine cleanup action may be conducted under any of the procedures described in WAC 173-340-510.      However, the department will attempt to ensure that all routine cleanup action decisions are consistent with this chapter.

     (8))) Preparation of documents.      Except for the initial investigation, any of the studies, reports, or plans used in the cleanup process can be prepared by either the department or the potentially liable person.      The department retains all authority to review and verify the documents submitted and to make decisions based on the documents and other relevant information.

     (((9))) (7) Inter-agency coordination.

     (a) If the department is conducting remedial actions or requiring remedial actions under an order or decree, the department shall ensure appropriate local, state, and federal agencies and tribal ((organizations)) governments are kept informed and, as appropriate, involved in the development and implementation of remedial actions.      The department may require a potentially liable person to undertake this responsibility.      If the potentially liable person demonstrates that they are unable to obtain adequate involvement to allow the remedial action to proceed by a particular government agency or tribe, the department shall request the involvement of the agency or tribe.

     (b) The nature and degree of coordination and consultation shall be commensurate with the other agencies and tribes interests and needs at the site.      Interested agencies and tribes shall also be included in the mailing list for public notices under WAC 173-340-600.      To facilitate coordination, it is important ((for the)) that agencies and tribes ((to)) provide specific comments, including the identification of additional information needed or mitigating measures that are necessary or desirable to satisfy their concerns.

     (c) In order to provide for expeditious cleanup actions, all federal, state, ((and)) local agencies, and tribes are encouraged to coordinate when providing notices, holding meetings and hearings, and preparing documents.      Whenever reasonable, the department shall coordinate and combine its activities with other agencies and tribes to minimize the duplication of notices, hearings and preparation of documents, unless otherwise prohibited.

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

     (9) Appeals.      Unless otherwise indicated all department decisions made under this chapter are remedial decisions and may be appealed only as provided for in RCW 70.105D.060.

[Statutory Authority: Chapter 70.105D RCW.      90-08-086, § 173-340-130, filed 4/3/90, effective 5/4/90.]

(1) Purpose.      It is the department's intent to move sites through the cleanup process as expeditiously as possible.      However, the department is limited by the amount of personnel and funds it can expend in any given fiscal year.      This section is intended to establish reasonable deadlines for remedying releases within these constraints.      The ((procedure)) department's process for ranking and setting site priorities is described in WAC 173-340-330 and 173-340-340, respectively.

     (2) Initial investigation. Within ninety days of learning of a release or threatened release of a hazardous substance, the department shall complete an initial investigation under WAC 173-340-310.

     (3) Further investigation. At least twice a year, the department ((will)) shall determine which sites with completed initial investigations are a high priority for further investigation.      At that time, the department ((will)) shall schedule high priority sites for further investigations to ((commence)) begin within six months.      This determination will be based on the best professional judgment of ((department)) departmental staff.      Sites may be scheduled for further investigation at any time if the department determines that the site warrants expedited action.

     (4) Site assessment and ranking. For high priority sites, the department shall complete the site hazard assessment and hazard ranking ((on high priority sites)) within one hundred eighty days of the scheduled start date.      These sites ((will)) shall be identified in the department's Site Register.      Sites not designated as a high priority ((will)) shall be scheduled for future investigations and listed in the biennial report to the legislature (WAC 173-340-340).      The department ((will)) shall conduct at least thirty-five site hazard assessments each fiscal year until the number of sites needing site hazard assessments are reduced below this number.

     (5) Site investigation. Within thirty days of ranking, the department shall designate which sites are a high priority for a ((state)) remedial investigation/feasibility study and which sites are a lower priority where further action can be delayed.      The department shall review these lower priority sites and provide an opportunity for public comment as part of the biennial report to the legislature (WAC 173-340-340).

     (6) Remedial investigation/feasibility study. For all sites designated as a high priority, the ((state)) remedial investigation/feasibility study shall be completed under WAC 173-340-350 within eighteen months of signing the order or decree.      The department may extend the deadline up to twelve months if the circumstances at the site merit a longer time frame.      The department shall provide the public an opportunity to comment on any extension.      The department shall initiate a ((state)) remedial investigation/feasibility study on at least ten sites per fiscal year.

     (7) Cleanup action. The department shall select the cleanup action under WAC 173-340-360 and file a consent decree or issue an order for cleanup action for all designated high priority sites within six months of the completion of the ((state)) remedial investigation/feasibility study.      The department may extend the deadline for up to four months for consent decree and order discussions.      The department shall provide the public with an opportunity to comment on any deadline extension.

     (8) Site schedules. The department ((will)) shall publish site schedules for designated high priority sites in the Site Register ((under)) according to WAC 173-340-600(6).

[Statutory Authority: Chapter 70.105D RCW.      90-08-086, § 173-340-140, filed 4/3/90, effective 5/4/90.]

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

     (("Act" means the same as the "Model Toxics Control Act" and "chapter 70.105D RCW."))

     "Acute toxicity" means the ability of a hazardous substance to cause injury or death to an organism as a result of a short-term exposure to a hazardous substance.

     "Agreed order" means an order issued by the department under WAC 173-340-530 with which the potentially liable person receiving the order agrees to comply.      An agreed order may be used to require or approve any cleanup or other remedial actions but it is not a settlement under RCW 70.105D.040(4) and shall not contain a covenant not to sue, or provide protection from claims for contribution, or provide eligibility for public funding of remedial actions under RCW 70.105D.070 (2)(d)(xi).

     "Aliphatic hydrocarbons" or "aliphatics" means organic compounds that are characterized by a straight, branched, or cyclic (nonbenzene ring) arrangement of carbon atoms. See also "aromatic hydrocarbons."

     "All practicable methods of treatment" means all technologies and/or methods currently available and demonstrated to work under similar site circumstances or through pilot studies, and applicable to the site at reasonable cost.      These include "all known available and reasonable methods of treatment" (AKART) for discharges or potential discharges to waters of the state, and "best available control technologies" for releases of hazardous substances into the air resulting from cleanup actions.

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

     "Area background" means the concentrations of hazardous substances that are consistently present in the environment in the vicinity of a site which are the result of human activities unrelated to releases from that site.

     "Aromatic hydrocarbons" or "aromatics" means organic compounds that are characterized by one or more benzene rings, with or without aliphatic hydrocarbon substitutions of hydrogen atoms on the rings. See also "aliphatic hydrocarbons."

     "Bioconcentration factor" means the ratio of the concentration of a hazardous substance in the tissue of an aquatic organism divided by the hazardous substance concentration in the ambient water in which the organism resides.

     "Carcinogen" means any substance or agent that produces or tends to produce cancer in humans.      For implementation of this chapter, the term carcinogen ((will apply)) applies to substances on the United States Environmental Protection Agency lists of A (known human) and B (probable human) carcinogens, and any substance ((which)) that causes a significant increased incidence of benign or malignant tumors in a single, well conducted animal bioassay, consistent with the weight of evidence approach specified in the United States Environmental Protection Agency's Guidelines for Carcinogen Risk Assessment as set forth in 51 FR 33992 et seq. ((as presently published or as subsequently amended or republished.))

     "Carcinogenic potency factor" or "CPF" means the upper 95th percentile confidence limit of the slope of the dose-response curve and is expressed in units of (mg/kg-day)-1.      When derived from human epidemiological data, the carcinogenic potency factor may be a maximum likelihood estimate.

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

     "Chronic toxicity" means the ability of a hazardous substance to cause injury or death to an organism resulting from repeated or constant exposure to the hazardous substance over an extended period of time.

     "Cleanup" means the implementation of a cleanup action or interim action.

     "Cleanup action" means any remedial action, except interim actions, taken at a site to eliminate, render less toxic, stabilize, contain, immobilize, isolate, treat, destroy, or remove a hazardous substance that complies with WAC ((173-340-360)) 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 ((173-340-360 which)) 173-340-380 that selects the cleanup action and specifies cleanup standards and other requirements for the cleanup action.

     "Cleanup level" means the concentration of a hazardous substance in soil, water, air, or sediment that is determined to be protective of human health and the environment under specified exposure conditions.

     (("Cleanup process" means the process for identifying, investigating, and cleaning up hazardous waste sites under chapter 70.105D RCW.))

     "Cleanup standards" means the standards ((promulgated)) adopted under RCW 70.105D.030 (2)(d).      Establishing cleanup standards requires specification of the following:

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

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

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

     (("Closure site assessment" means a site assessment required for closure of an underground storage tank pursuant to rules adopted under chapter 90.76 RCW.)) "Cohen's method" means the maximum likelihood estimate of the mean and standard deviation accounting for data below the method detection limit or practical quantitation limit using the method described in the following publications:

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

     • Cohen, A.C., 1961. "Tables for maximum likelihood estimates: Singly truncated and singly censored samples." Technometrics. Volume 3, pages 535-541.

     "Compliance monitoring" means a remedial action that consists of monitoring as described in WAC 173-340-410.

     "Conceptual site model" means a conceptual understanding of a site that identifies potential or suspected sources of hazardous substances, types and concentrations of hazardous substances, potentially contaminated media, and actual and potential exposure pathways and receptors. This model is typically initially developed during the scoping of the remedial investigation and further refined as additional information is collected on the site. It is a tool used to assist in making decisions at a site.

     "Conducting land use planning under chapter 36.70A RCW" as used in the definition of "industrial properties," means having adopted a comprehensive plan and development regulations for the site under chapter 36.70A RCW.

     "Containment" means a container, vessel, barrier, or structure, whether natural or constructed, ((which)) that confines a hazardous substance within a defined boundary and prevents or minimizes its release into the environment.

     "Contaminant" means any hazardous substance that does not occur naturally or occurs at greater than natural background levels.

     "Curie" means the measure of radioactivity defined as that quantity of radioactive material which decays at the rate of 3.70 x 10¹⁰ transformations per second.      This decay rate is nearly equivalent to that exhibited by 1 gram of radium in equilibrium with its disintegration products.

     "Day" means calendar day; however, any document due on the weekend or a holiday may be submitted on the first working day after the weekend or holiday.

     "Decree" means consent decree under WAC 173-340-520.      "Consent decree" is synonymous with decree.

     "Degradation by-products" or "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 ecology or the director's designee.

     "Drinking water fraction" means the fraction of drinking water that is obtained or has the potential to be obtained from the site.

     "Engineered controls" means treatment and containment. For examples of engineered controls see WAC 173-340-440.

     "Environment" means any plant, animal, natural resource, surface water (including underlying sediments), ground water, drinking water supply, land surface (including tidelands and shorelands) or subsurface strata, or ambient air within the state of Washington or under the jurisdiction of the state of Washington.

     "Equivalent carbon number" or "EC" means a value assigned to a 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 is quantified as the amount of the agent available at the exchange boundaries (e.g., skin, lungs, gut) and available for absorption.))

     "Exposure parameters" means those parameters used to derive an estimate of the exposure to a hazardous substance.

     "Exposure pathway" means the path a hazardous substance takes or could take from a source to an exposed organism.      An exposure pathway describes the mechanism by which an individual or population is exposed or has the potential to be exposed to hazardous substances at or originating from a site.      Each exposure pathway includes an actual or potential source or release from a source, an exposure point, and an exposure route.      If the exposure point differs from the source of the hazardous substance, the exposure pathway also includes a transport/exposure medium.

     "Facility" means ((any building, structure, installation, equipment, pipe or pipeline (including any pipe into a sewer or publicly owned treatment works), well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, vessel, or aircraft; or any site or area where a hazardous substance, other than a consumer product in consumer use, has been deposited, stored, disposed of, or placed, or otherwise come to be located.)) the same as "site."

     "Federal cleanup law" means the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. 9601 et seq.((, as presently promulgated or as subsequently amended or repromulgated.))

     "Fish diet fraction" means the percentage of the total fish or shellfish in an individual's diet that is obtained or has the potential to be obtained from the site.

     "Food crop" means any domestic plant ((which)) that is produced for the purpose of, or may be used in whole or in part for, consumption by people or livestock.      This shall include nursery, root, or seedstock to be used for the production of food crops.

     "Free product" means a hazardous substance that is present as a nonaqueous phase liquid (that is, liquid not dissolved in water). The term includes both light and dense nonaqueous phase liquid.

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

     "Ground water" means water in a saturated zone or stratum beneath the surface of land or below a surface water.

     "Hazard index" means the sum of two or more hazard quotients for multiple hazardous substances and/or multiple exposure pathways.

     "Hazardous sites list" means the list of hazardous waste sites maintained under WAC 173-340-330.

     "Hazardous substance" means any dangerous or extremely hazardous waste as defined in RCW 70.105.010 (5) and (6), or any dangerous or extremely dangerous waste as designated by rule under chapter 70.105 RCW; any hazardous substance as defined in RCW 70.105.010(14) or any hazardous substance as defined by rule under chapter 70.105 RCW; any substance that, on the effective date of this section, is a hazardous substance under section 101(14) of the federal cleanup law, 42 U.S.C., Sec. 9601(14); petroleum or petroleum products; and any substance or category of substances, including solid waste decomposition products, determined by the director by rule to present a threat to human health or the environment if released into the environment.

     The term hazardous substance does not include any of the following when contained in an underground storage tank from which there is not a release: Crude oil or any fraction thereof or petroleum, if the tank is in compliance with all applicable federal, state, and local law.

     "Hazardous waste site" means any facility where there has been confirmation of a release or threatened release of a hazardous substance that requires remedial action.

     "Hazard quotient" or "HQ" means the ratio of the dose of a single hazardous substance over a specified time period to a reference dose for that hazardous substance derived for a similar exposure period.

     "Health effects assessment summary tables" or "HEAST" means a data base developed by the United States Environmental Protection Agency that provides a summary of information on the toxicity of hazardous substances.

     "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 ground water.

     "Independent remedial actions" means remedial actions conducted without department oversight or approval and not under an order, agreed order, or consent decree.

     "Indicator hazardous substances" means the subset of hazardous substances present at a site selected under WAC 173-340-708 for monitoring and analysis during any phase of remedial action for the purpose of characterizing the site or establishing cleanup requirements for that site.

     "Industrial properties" means properties that are or have been characterized by, or are to be committed to, traditional industrial uses such as processing or manufacturing of materials, marine terminal and transportation areas and facilities, fabrication, assembly, treatment, or distribution of manufactured products, or storage of bulk materials, that are either:

•	Zoned for industrial use by a city or county conducting land use planning under chapter 36.70A RCW (Growth Management Act); or
•	For counties not planning under chapter 36.70A RCW (Growth Management Act) and the cities within them, zoned for industrial use and adjacent to properties currently used or designated for industrial purposes.

     See WAC 173-340-745 for additional criteria to determine if a land use not specifically listed in this definition would meet the requirement of "traditional industrial use" and for evaluating if a land use zoning category meets the requirement of being "zoned for industrial use."

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

     "Initial investigation" means a remedial action that consists of an investigation under WAC 173-340-310 ((to determine that a release or threatened release may have occurred that warrants further action under this chapter)).

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

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

     "Interim action" means a remedial action conducted under WAC 173-340-430 that partially addresses the cleanup of a site.

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

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

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

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

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

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

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

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

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

     "Method detection limit" or "MDL" means the minimum concentration of a compound that can be measured and reported with ninety-nine 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 potentially liable persons from the state toxics control account under WAC 173-340-560.

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

     "Natural attenuation" means a variety of physical, chemical or biological processes that, under favorable conditions, act without human intervention to reduce the mass, toxicity, mobility, volume, or concentration of hazardous substances in the environment. These in situ processes include: Natural biodegradation; dispersion; dilution; sorption; volatilization; and, chemical or biological stabilization, transformation, or destruction of hazardous substances. Natural attenuation is not an active remedial measure.

     "Natural background" means the concentration of hazardous substance consistently present in the environment ((which)) that has not been influenced by localized human activities.      For example, several metals 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 ((metals)) 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 ((use)) distribution of these hazardous substances.      These low concentrations would be considered natural background.      Similarly, concentrations of various radionuclides ((which)) that are present at low concentrations throughout the state due to global distribution of fallout from bomb testing and nuclear accidents would be considered natural background.

     "Natural biodegradation" means in-situ biological processes such as aerobic respiration, anaerobic respiration, and co-metabolism, that occur without 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 the same as "free product."

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

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

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

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

     "Owner or operator" means any person ((with any ownership interest in the facility or who exercises any control over the facility; or in the case of an abandoned facility, any person who had owned, or operated, or exercised control over the facility any time before its abandonment.      The term does not include:

     An agency of the state or unit of local government which acquired ownership or control involuntarily through bankruptcy, tax delinquency, abandonment, or circumstances in which the government involuntarily acquires title.      This exclusion does not apply to an agency of the state or unit of local government which has caused or contributed to the release or threatened release of a hazardous substance from the facility; or

     A person who, without participating in the management of a facility, holds indicia of ownership primarily to protect the person's security interest in the facility)) that meets the definition of this term in RCW 70.105D.020(12).

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

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

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

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

     "Point of compliance" means the point or points where cleanup levels established in accordance with WAC 173-340-720 through 173-340-760 shall be attained. This term includes both standard and conditional points of compliance. A conditional point of compliance is only available for ground water (see WAC 173-340-720(8)) and for soil based on ecological considerations (see WAC 173-340-740 (6)(e) and 173-340-7490(4)).

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

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

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

     "Practicable" means (((except when used in the phrase "permanent to the maximum extent practicable" which is defined in WAC 173-340-360(5)))) capable of being designed, constructed and implemented in a reliable and effective manner including consideration of cost.      When considering cost under this analysis, an alternative shall not be considered practicable if the incremental costs of the alternative ((is substantial and)) are disproportionate to the incremental degree of ((protection)) benefits provided by the alternative over other lower cost alternatives.

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

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

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

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

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

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

     (("Recovery by-products" means any hazardous substance, water, sludge or other materials collected in the free product removal process in response to a release from an underground storage tank.))

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

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

     (("Regional office" means one of the regional offices of the department of ecology.))

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

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

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

     "Remediation level (REL)" means a concentration (or other method of identification) of a hazardous substance in soil, water, air, or sediment above which a particular cleanup action component will be required as part of a cleanup action at a site. Other 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 RCW to identify, eliminate, or minimize any threat posed by hazardous substances to human health or the environment including any investigative and monitoring activities with respect to any release or threatened release of a hazardous substance and any health assessments or health effects studies conducted in order to determine the risk or potential risk to human health.

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

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

     "Routine cleanup action" means a remedial action ((that consists of a cleanup action meeting the requirements in WAC 173-340-130(7))) meeting all of the following criteria:

     • Cleanup standards for each hazardous substance addressed by the cleanup are obvious and undisputed, and allow for an adequate margin of safety for protection of human health and the environment;

     • It involves an obvious and limited choice among cleanup action alternatives and uses an alternative that is reliable, has proven capable of accomplishing cleanup standards, and with which the department has experience;

     • The cleanup action does not require preparation of an environmental impact statement; and

     • The site qualifies under WAC 173-340-7491 for an exclusion from conducting a simplified or site-specific terrestrial ecological evaluation, or if the site qualifies for a simplified ecological evaluation, the evaluation is ended under WAC 173-340-7492(2) or the values in Table 749-2 are used.

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

     • Cleanup of above-ground structures;

     • Cleanup of below-ground structures;

     • Cleanup of contaminated soils where the action would restore the site to cleanup levels; or

     • Cleanup of solid wastes, including containers.

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

     (("Sample mean" means the arithmetic mean or the average of a set of measurements.      The arithmetic mean is defined as the sum of all measurements divided by the number of measurements.))

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

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

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

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

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

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

     "Site" means ((the same as facility.

     "Site characterization report" means a written report describing the site and nature of a release from an underground storage tank, as described in WAC 173-340-450 (4)(b).

     "Site check" means the investigation conducted pursuant to rules adopted under chapter 90.76 RCW in order to confirm a release from an underground storage tank)) any building, structure, installation, equipment, pipe or pipeline (including any pipe into a sewer or publicly owned treatment works), well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, vessel, or aircraft; or any site or area where a hazardous substance, other than a consumer product in consumer use, has been deposited, stored, disposed of, or placed, or otherwise come to be located.

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

     (("Site register" means the public information document described in WAC 173-340-600.))

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

     (("State remedial investigation/feasibility study" means a remedial action that consists of activities performed under WAC 173-340-350 to collect, develop, and evaluate sufficient information regarding a site to enable the selection of a cleanup plan under WAC 173-340-360.

     "Status report" means a written or verbal report on the status of the interim actions taken in response to a release from an underground storage tank, as described in WAC 173-340-450 (4)(b).)) "Soil biota" means invertebrate multicellular animals that live in the soil or in close contact with the soil.

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

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

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

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

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

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

     "Total petroleum hydrocarbons" or "TPH" means any fraction of crude oil that is contained in plant condensate, crankcase motor oil, gasoline, aviation fuels, kerosene, diesel motor fuel, benzol, fuel oil, and other products derived from the refining of crude oil.      For the purposes of this chapter, TPH will generally mean those fractions of the above products that are ((quantified by EPA Methods 8015 or 418.1)) the total of all hydrocarbons quantified by analytical methods NWTPH-Gx; NWTPH-Dx; volatile petroleum hydrocarbons (VPH) for volatile aliphatic and volatile aromatic petroleum fractions; and extractable petroleum hydrocarbons (EPH) for nonvolatile aliphatic and nonvolatile aromatic petroleum fractions, as appropriate, or other test methods approved by the department.

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

     "Underground storage tank" or "UST" means an underground storage tank and connected underground piping as defined in the rules adopted under chapter 90.76 RCW.

     (("Underground storage tank operator" means any underground storage tank operator as defined in the rules adopted under chapter 90.76 RCW.

     "Underground storage tank owner" means any underground storage tank owner as defined in the rules adopted under chapter 90.76 RCW.

     "Underground storage tank release" means a confirmed release from an underground storage tank pursuant to the rules adopted under chapter 90.76 RCW.))

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

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

     "Upper bound on the estimated excess cancer risk of one in one million" means the upper 95th percent confidence limit on the estimated risk of one additional cancer above the background cancer rate per one million individuals.

     "Volatile organic compound" means those carbon-based compounds listed in EPA methods 502.2, 524.2, 551, 601, 602, 603, 624, ((8010, 8015, 8020, 8030, 8240, 502.1, 502.2, 503.1, 524.1, 524.2)) 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.

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

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

[Statutory Authority: Chapter 70.105D RCW.      96-04-010 (Order 94-37), § 173-340-200, filed 1/26/96, effective 2/26/96; 91-04-019, § 173-340-200, filed 1/28/91, effective 2/28/91; 90-08-086, § 173-340-200, filed 4/3/90, effective 5/4/90.]

Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.
AMENDATORY SECTION(Amending WSR 91-04-019, filed 1/28/91, effective 2/28/91)

WAC 173-340-210
Usage.

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

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

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

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

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

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

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

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

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

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

[Statutory Authority: Chapter 70.105D RCW.      91-04-019, § 173-340-210, filed 1/28/91, effective 2/28/91; 90-08-086, § 173-340-210, filed 4/3/90, effective 5/4/90.]

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

     (2) Release report.

     (a) Any owner or operator who has information that a hazardous substance has been released to the environment at the owner or operator's facility and may be a threat to human health or the environment shall report such information to the department ((by June 1, 1990, or for discovery of releases after this date,)) within ninety days of discovery.      Releases from underground storage tanks ((as described in the rules adopted under chapter 90.76 RCW must)) shall be reported by the owner or operator of the underground storage tank within twenty-four hours of release confirmation, in accordance with WAC 173-340-450.      To the extent known, the report shall include:

     (i) The identification and location of the hazardous substance((,));

     (ii) Circumstances of the release and the discovery((,)); and

     (iii) Any remedial actions planned, completed, or underway.      All other persons are encouraged to report such information to the department.

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

     (i) Contamination in a water supply well.

     (ii) Contaminated seeps, sediment or surface water.

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

     (iv) Free product such as petroleum product or other organic liquids on the surface of the ground or in the ground water.

     (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.

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

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

     (a) Application of pesticides and fertilizers for their intended purposes and according to label instructions;

     (b) Lawful and nonnegligent use of hazardous substances by a natural person for personal or domestic purposes;

     (c) A release in accordance with a permit that authorizes the release;

     (d) A release previously reported to the department in fulfillment of a reporting requirement in this chapter or in another law or regulation;

     (e) A release previously reported to the United States Environmental Protection Agency under CERCLA, Section 103(c) (42 U.S.C. Sec. 9603(c));

     (f) Except for releases under subsection (2)(b)(iii) of this section, a release to the air;

     (g) Releases discovered in public water systems regulated by the department of health; or

     (h) A release to a permitted wastewater facility.

     An exemption from ((these)) the notification requirements in this section does not imply a release from liability ((in future actions by the department)) under this chapter.

     (4) Report of independent remedial actions.

     (((a) Report.      Any person who conducts an independent interim action or cleanup action shall submit a written report to the department within ninety days of the completion of the action.      For the purposes of this section, the department will consider an interim action or cleanup action complete if no remedial action other than compliance monitoring has occurred at the site for ninety days.      This is not intended to preclude earlier reporting of such actions.      See WAC 173-340-450 for additional requirements for reporting independent interim actions for releases from underground storage tanks.

     (b) Contents.      The report shall include the information in subsection (2) of this section if not already reported, and results of all site investigations, cleanup actions and compliance monitoring planned or underway.      The department may require additional reports on the work performed.

     (c) Combined reports.      If the independent interim action or cleanup action is completed within ninety days of discovery, a single written report may be submitted on both the release and the action taken.      The reports shall contain the information specified in subsections (2) and (4) of this section and shall be submitted within ninety days of completion of the interim action or cleanup action.

     (d) Notification.      The department shall publish a notice of all reports on independent interim actions and cleanup actions received under this section in the site register.)) See WAC 173-340-515 for additional reporting requirements for independent remedial actions. See WAC 173-340-450 for reporting requirements for independent remedial actions for releases from underground storage tanks.

     (5) Department response.      Within ninety days of ((receipt of)) receiving information under this section, the department shall ((respond)) conduct an initial investigation in accordance with WAC 173-340-310.      ((Receipt of information regarding an independent interim action or cleanup action under subsection (3) or (4) of this section shall not obligate the department to take any action beyond that prescribed in WAC 173-340-310 and subsection (4)(d) of this section.      Neither submission of information on independent interim action and cleanup actions nor any response by the department shall release the person submitting the report or any other person from liability.      The department reserves all rights to pursue any subsequent action it deems appropriate.)) For sites on the hazardous sites list, the department shall, as resources permit, review reports that document independent cleanup actions. The review shall include an evaluation of whether the site qualifies for removal from the hazardous sites list or whether further remedial action is required.

     (6) Other obligations.      Nothing in this section shall eliminate any obligations to comply with reporting requirements that may exist in a permit or under other laws.

[Statutory Authority: Chapter 70.105D RCW.      91-04-019, § 173-340-300, filed 1/28/91, effective 2/28/91; 90-08-086, § 173-340-300, filed 4/3/90, effective 5/4/90.]

(1) Purpose.      An initial investigation is an inspection of a suspected site by the department and documentation of conditions observed during that site inspection. The purpose of the initial investigation is to determine whether ((or not)) a release or threatened release of a hazardous substance may have occurred that warrants further action under this chapter.

     (((a))) (2) Applicability and timing.      Whenever the department receives information and has a reasonable basis to believe that there may be a release or a threatened release of a hazardous substance that may pose a threat to human health or the environment, the department shall conduct an initial investigation within ninety days.

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

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

     (ii))) (b) The release is permitted; or

     (c) The release is exempt from reporting under WAC 173-340-300(3).

     (((2) Contents.      The initial investigation shall include at a minimum: A site visit and documentation of conditions observed.

     (3))) (4) Department deferral to others.      The department may rely on another government agency or a contractor to the department to conduct an initial investigation on its behalf, provided the department determines such an agency or contractor is not suspected to have contributed to the release or threatened release of a hazardous substance and that no conflict of interest exists.

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

     (a) A site hazard assessment is required;

     (b) Emergency remedial action is required;

     (c) Interim action is required; or

     (d) The site requires no further action under this chapter at this time because either:

     (i) There has been no release or threatened release of a hazardous substance; or

     (ii) A release or threatened release of a hazardous substance has occurred, but in the department's judgment, does not pose a threat to human health or the environment; or

     (iii) Action under another authority is appropriate.

     A decision for a particular follow-up action does not preclude the department from requiring some other action in the future based on reevaluation of the site or additional information.

     (((5) Early notice letter.

     (a))) (6) Notification.

     (a) Sites requiring an emergency remedial action or interim action. If the department determines that an emergency remedial action or interim action is required, then notification of the threat to the potentially affected vicinity may be required by the department. The method and nature of the notification shall be determined on a case-by-case basis. Such notification shall be the responsibility of the site owner or operator if required in writing by the department.

     (b) Sites requiring further remedial action. For sites requiring further remedial action under chapter 70.105D RCW, the department ((will)) shall notify the owner, operator, and any potentially liable person known to the department of its decision.      This notification shall be a letter (Early Notice Letter) mailed to the person which includes:

     (i) The basis for the department's decision;

     (ii) Information on the cleanup process provided for in this chapter;

     (iii) A statement that it is the department's policy to work cooperatively with persons to accomplish prompt and effective cleanups;

     (iv) A person or office of the department to contact regarding the contents of the letter; and

     (v) A statement that the letter is not a determination of liability and that cooperating with the department in planning or conducting a remedial action is not an admission of guilt or liability.

     (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 ((notice)) determination of status letter in WAC 173-340-500.

     (((b) The notification shall be a letter mailed to the person which includes:

     (i) The basis for the department's decision;

     (ii) Information on the cleanup process provided for in this chapter;

     (iii) A statement that it is the department's policy to work cooperatively with persons to accomplish prompt and effective cleanups;

     (iv) A person or office of the department to contact regarding the contents of the letter; and

     (v) A statement that the letter is not a determination of liability and that cooperating with the department in planning or conducting a remedial action is not an admission of guilt or liability.))

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

[Statutory Authority: Chapter 70.105D RCW.      90-08-086, § 173-340-310, filed 4/3/90, effective 5/4/90.]

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

     (a) Confirm or rule out that a release or threatened release of a hazardous substance has occurred;

     (b) ((To)) Identify the hazardous substance and provide some information regarding the extent and concentration of the substance;

     (c) Identify site characteristics that could result in the hazardous substance entering and moving through the environment;

     (d) Evaluate the potential for the threat to human health and the environment; and

     (e) Determine the hazard ranking of the site under WAC 173-340-330, if appropriate.

     (2) Timing.      ((Unless otherwise directed by the department)) Generally, a site hazard assessment shall be completed before proceeding to any subsequent phase of remedial action, other than an emergency or interim action.

     (3) Administrative options.      The site hazard assessment may be conducted under any of the procedures described in WAC 173-340-510.

     (4) Scope and content.      A site hazard assessment is an early study to provide preliminary data regarding the relative potential hazard of the site.      A site hazard assessment is not intended to be a detailed site characterization((,)); however, it shall include sufficient sampling, site observations, maps, and other information needed to meet the purposes specified in subsection (1) of this section.      To fulfill this requirement, a site hazard assessment shall include, as appropriate, the following information:

     (a) Identification of hazardous substances, including what was released and is threatened to be released and/or, if known, what products of decomposition, recombination, or chemical reaction are currently present on site, and an estimate of their quantities and concentrations;

     (b) Evidence confirming a release or threatened release of hazardous substances to the environment;

     (c) Description of facilities containing releases, if any, and their condition;

     (d) Identification of the location of all areas where a hazardous substance is known or suspected to be, indicated on a site map;

     (e) Consideration of surface water run-on and run-off and the hazardous substances leaching potential;

     (f) Preliminary characterization of the subsurface and ground water actually or potentially affected by the release, including vertical depth to ground water and distance to nearby wells, bodies of surface water, and drinking water intakes;

     (g) Preliminary evaluation of receptors, including: Human population, food crops, recreation areas, parks, sensitive environments, irrigated areas, and aquatic resources currently or potentially affected by ground water, air, or surface water containing the release of hazardous substances at the site, including distances to these receptors; and

     (h) Any other physical factors which may be significant in estimating the potential or current exposure to sensitive biota.

     (5) Guidance.      The department shall make available guidance for how to conduct a site hazard assessment to meet the requirements of this section. Persons are encouraged to contact the department to obtain a copy of the latest guidance.

     (6) Department decision. Based on the results of the site hazard assessment and other available information about the site, the department shall either determine the site warrants no further action using the criteria in WAC 173-340-310 (5)(d) or proceed with ranking and placing the site on the hazardous sites list under WAC 173-340-330.

     (7) Notification.      The department shall make available the results of the site hazard assessment to the site's owner and operator and any person who has received a potentially liable person status letter under WAC 173-340-500 regarding the site.      If the department finds after a site hazard assessment that the site requires no further action, it shall publish this decision in the Site Register.

[Statutory Authority: Chapter 70.105D RCW.      90-08-086, § 173-340-320, filed 4/3/90, effective 5/4/90.]

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

     (2) Hazard ranking.

     (a) The department shall give a hazard ranking to sites placed on the list ((shall be given a hazard ranking)).      The purpose of hazard ranking is to estimate, based on the information compiled during the site hazard assessment, the relative potential risk posed by the site to human health and the environment.      This assessment considers air, ground water, and surface water migration pathways, human and nonhuman exposure targets, properties of the substances present, and the interaction of these variables.

     (((a))) (b) The department shall evaluate each site on a consistent basis using the procedure described in the "Washington Ranking Method Scoring Manual," ((and all revisions and additions thereto)) publication number 90-14, dated April 1992. The sediment component of a site shall be scored using the procedures described in "Sediment Ranking System," publication number 97-106, dated January 1990, and "Status Report: Technical Basis for SEDRANK Modifications," publication number 97-107, dated June 1991.      The ranking procedure and major amendments to the manual shall be reviewed by the science advisory board established under chapter 70.105D RCW.      Information obtained in the site hazard assessment, plus any additional data specified in ((the manual)) these publications, shall be included in the hazard ranking evaluation.

     (((b))) (3) Site Register. The department shall periodically provide notification of the results of hazard ranking in the Site Register ((established under WAC 173-340-600)).      The department shall make available hazard ranking results for each site to the site owner and operator and any potentially liable person known to the department ((prior to publishing)) before publication in the Site Register.

     (((c))) (4) Reranking. The department may at its discretion re-rank a site if, ((prior to)) before the initiation of state action at the site, the department receives additional information within the scope of the evaluation criteria which indicates that a significant change in rank may result.

     (((3))) (5) Listing.

     (((a))) Sites shall be ranked and placed on the hazardous sites list if, after the completion of a site hazard assessment, the department ((has determined)) determines that further action is required at the site.      The list shall be updated at least once per year.      Placement of a site on the hazardous sites list does not, by itself, imply that persons associated with the site are liable under chapter 70.105D RCW.

     (((b))) (6) Site status. The hazardous sites list shall ((also)) reflect the current status of remedial action at each site.      The department may change a site's status to reflect current conditions.      The status for each site shall be identified as one of the following:

     (((i))) (a) Sites awaiting further remedial action;

     (((ii))) (b) Sites with remedial action in progress;

     (((iii))) (c) Sites where a cleanup action has been conducted but confirmational monitoring is underway;

     (((iv))) (d) Sites with independent remedial actions; or

     (((v))) (e) Other categories established by the department.

     (((4))) (7) Removing sites from the list.

     (a) The department may remove a site from the list only after it has determined that:

     (i) For sites where the selected cleanup action does not include containment, all remedial actions except confirmational monitoring have been completed and compliance with the cleanup standards has been achieved at the site; ((or))

     (ii) The listing was erroneous; or

     (iii) For sites where the selected cleanup action includes containment, if all of the following conditions have been met:

     (A) All construction and operation of remedial actions have been adequately completed and only passive maintenance activities such as monitoring, inspections and periodic repairs remain;

     (B) Sufficient confirmational monitoring has been done to demonstrate that the remedy has effectively contained the hazardous substances of concern at the site;

     (C) All required performance monitoring has been completed;

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

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

     (F) When required under WAC 173-340-440, financial assurances are in place;

     (G) For sites with releases to ground water, it has been demonstrated the site meets ground water cleanup levels at the designated point of compliance.

     (b) A site owner, operator, or potentially liable person may request that a site be removed from the list by submitting a petition to the department.      The petition shall include thorough documentation of all investigations performed, all cleanup actions taken, and ((of)) adequate compliance monitoring to demonstrate to the department's satisfaction that one of the conditions in (a) of this subsection has been met.      The department may require payment of costs incurred, including an advance deposit, for review and verification of the work performed.      The department shall review such petitions; however, the timing of the review shall be at its discretion and as resources may allow.

     (((c))) (8) Record of sites. The department ((will)) shall maintain a record of sites that have been removed from the list under (((a)(i) of this)) subsection (7) of this section. The record shall identify which sites have institutional controls under WAC 173-340-440 and which sites are subject to periodic review under WAC 173-340-420.      This record will be made available to the public upon request.

     (((5))) (9) Relisting of sites.      The department may relist a site ((which)) that has previously been removed if it determines that the site requires further remedial action.

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

[Statutory Authority: Chapter 70.105D RCW.      90-08-086, § 173-340-330, filed 4/3/90, effective 5/4/90.]

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

     (2) Public notice. The department shall provide public notice and a hearing on the proposed plan.      For purposes of this subsection only, public notice shall consist of mailings to all persons who have made a timely request and to the appropriate news media, and publication in the state register.      Notice shall also be provided in the Site Register.      The public comment period on the proposed plan shall run for at least thirty days from the date of the publication in the Site Register.

[Statutory Authority: Chapter 70.105D RCW.      90-08-086, § 173-340-340, filed 4/3/90, effective 5/4/90.]

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

     (2) Timing.      Unless otherwise directed by the department, a ((state)) remedial investigation/feasibility study shall be completed before selecting a cleanup action under WAC ((173-340-360)) 173-340-360 through 173-340-390, except for an emergency or interim action.

     (3) Administrative options.      A ((state)) remedial investigation/feasibility study may be conducted under any of the procedures described in WAC 173-340-510 and 173-340-515.

     (4) Submittal requirements. For a remedial action conducted by the department or under a decree or order, a report shall be prepared at the completion of the remedial investigation/feasibility study. Additionally, the department may require reports to be submitted for discrete elements of the remedial investigation/feasibility study. Reports prepared under this section and under an order or decree shall be submitted to the department for review and approval. See also subsection (7)(c)(iv) of this section for information on the sampling and analysis plan and the safety and health plan. See WAC 173-340-515(4) for submittal requirements for independent remedial actions.

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

     (((5))) (6) Scope.      The scope of a ((state)) remedial investigation/feasibility study ((will depend)) varies from site to site, depending on the informational and analytical needs of the specific facility.      This requires that the process remain flexible((, with the scope of the state remedial investigation/feasibility study varying from site to site)) and be streamlined when possible to avoid the collection and evaluation of unnecessary information so that the cleanup can proceed in a timely manner.      Where information required in subsections (7)(c) and (8)(c) of this section is available in other documents for the site, that information may be incorporated by reference to avoid unnecessary duplication. However, in all cases sufficient information must be collected, developed, and evaluated to enable the selection of a cleanup action under WAC 173-340-360 through 173-340-390.      In addition, for facilities on the federal national priorities list, ((the state)) a remedial investigation/feasibility study shall comply with federal requirements.

     (((6) Contents.)) (7) Procedures for conducting a remedial investigation.

     (a) Purpose. The purpose of the remedial investigation is to collect data necessary to adequately characterize the site for the purpose of developing and evaluating cleanup action alternatives. Site characterization may be conducted in one or more phases to focus sampling efforts and increase the efficiency of the remedial investigation. Site characterization activities may be integrated with the development and evaluation of alternatives in the feasibility study, as appropriate.

     (b) Scoping activities. To focus the collection of data and to assist the department in making the preliminary evaluation required under the State Environmental Policy Act (see WAC 197-11-256), the following scoping activities may be taken before conducting a remedial investigation:

     (i) Assemble and evaluate existing data on the site, including the results of any interim or emergency actions, initial investigations, site hazard assessments, and other site inspections;

     (ii) Develop a preliminary conceptual site model as defined in WAC 173-340-200;

     (iii) Begin to identify likely cleanup levels for the site;

     (iv) Begin to identify likely cleanup action components that may address the releases at the site;

     (v) Consider the type, quality and quantity of data necessary to support selection of a cleanup action; and

     (vi) Begin to identify likely applicable state and federal laws under WAC 173-340-710.

     (c) Content. A ((state)) remedial investigation((/feasibility study)) shall include the following information as appropriate:

     (((a))) (i) General facility information.      General information, including: Project title; name, address, and phone number of project coordinator; legal description of the facility location; dimensions of the facility; present owner and operator; chronological listing of past owners and operators and operational history; and other pertinent information.

     (((b))) (ii) Site conditions map.      An existing site conditions map ((which)) that illustrates relevant current site features such as((:)) property boundaries((;)), proposed facility boundaries((;)), surface topography((;)), surface and subsurface structures((;)), utility lines((;)), well locations((;)), and other pertinent information.

     (((c))) (iii) Field investigations.      Sufficient investigations to characterize the distribution of hazardous substances present at the site, and threat to human health and the environment.      Where applicable to the site, these investigations ((will need to)) shall address the following:

     (((i))) (A) Surface water and sediments.      Investigations of surface water and sediments to characterize significant hydrologic features such as: Surface drainage patterns and quantities, areas of erosion and sediment deposition, surface waters, floodplains, and actual or potential hazardous substance migration routes towards and within these features.      Sufficient surface water and sediment sampling shall be performed to adequately characterize the areal and vertical distribution and concentrations of hazardous substances.      Properties of surface and subsurface sediments ((which)) that are likely to influence the type and rate of hazardous substance migration, or are likely to affect the ability to implement alternative cleanup actions shall be characterized.

     (((ii))) (B) Soils.      Investigations to adequately characterize the areal and vertical distribution and concentrations of hazardous substances in the soil due to the ((facility)) release.      Properties of surface and subsurface soils ((which)) that are likely to influence the type and rate of hazardous substance migration, or which are likely to affect the ability to implement alternative cleanup actions shall be characterized.

     (((iii))) (C) Geology and ground water system characteristics.      Investigations of site geology and hydrogeology to adequately characterize the areal and vertical distribution and concentrations of hazardous substances in the ground water and those features which affect the fate and transport of these hazardous substances.      This shall include, as appropriate, the description, physical properties and distribution of bedrock and unconsolidated materials; ground water flow rate and gradient for affected and potentially affected ground waters; ground water divides; areas of ground water recharge and discharge; location of public and private production wells; and ground water quality data.

     (((iv))) (D) Air.      An evaluation of air quality impacts, including sampling, where appropriate, and information regarding local and regional climatological characteristics which are likely to affect the hazardous substance migration such as((:)) seasonal patterns of rainfall((;)), the magnitude and frequency of significant storm events((;)), temperature extremes((;)), prevailing wind direction((;)), variations in barometric pressure, and wind velocity.

     (((v))) (E) Land use.      Information regarding present and proposed land and resource uses and zoning for the site and potentially affected areas and information characterizing human and ecological populations that are reasonably likely to be exposed or potentially exposed to the ((hazardous substance released from the facility and present and proposed land uses and zoning for the site and potentially affected areas)) release based on such use.

     (((vi) Natural resources and ecology.)) (F) Natural resources and ecological receptors.

     (I) Information to determine the impact or potential impact of the hazardous substance from the facility on ((the)) natural resources and ((ecology of the area such as: Sensitive environment, plant and animal species, and other environmental)) ecological receptors, including any information needed to conduct a terrestrial ecological evaluation, under WAC 173-340-7492 or 173-340-7493, or to establish an exclusion under WAC 173-340-7491.

     (((vii))) (II) Where appropriate, a terrestrial ecological evaluation may be conducted so as to avoid duplicative studies of soil contamination that will be remediated to address other concerns, such as protection of human health. This may be accomplished by evaluating residual threats to the environment after cleanup action alternatives for human health protection have been developed. If this approach is used, the remedial investigation may be phased. Examples of sites where this approach may not be appropriate include: A site contaminated with a hazardous substance that is primarily an ecological concern and will not obviously be addressed by the cleanup action for the protection of human health, such as zinc; or a site where the development of a human health based remedy is expected to be a lengthy process, and postponing the terrestrial ecological evaluation would cause further harm to the environment.

     (III) If it is determined that a simplified or site-specific terrestrial ecological evaluation is not required under WAC 173-340-7491, the basis for this determination shall be included in the remedial investigation report.

     (G) Hazardous substance sources.      A description of and sufficient sampling to define the location, quantity, areal and vertical extent, concentration within and sources of ((waste disposal areas)) releases.      Where relevant, information on the physical and chemical characteristics, and the biological effects of hazardous substances shall be provided.

     (((viii))) (H) Regulatory classifications.      Regulatory designations classifying affected air, surface water and ground water, if any.

     (((d) Risk assessment.      A risk assessment characterizing the current and potential threats to human health and the environment that may be posed by hazardous substances.      This assessment may not be required when the department determines that proposed cleanup standards are obvious and undisputed and allow an adequate margin of safety for protection of human health and the environment.

     (e) Cleanup action alternatives.      An evaluation of alternative cleanup actions that protect human health and the environment by eliminating, reducing, or otherwise controlling risks posed through each exposure pathway and migration route, shall be required.      The number and types of alternatives to be evaluated shall take into account the characteristics and complexity of the facility.      A phased approach for evaluation of alternatives may be required for certain facilities, including an initial screening of alternatives to reduce the number of potential remedies for the final detailed evaluation.      The final evaluation of cleanup action alternatives that pass the initial screening shall be evaluated for compliance with the requirements in WAC 173-340-360.

     (f) Work plans.      A sampling and analysis plan, and a safety and health plan shall be prepared as part of state remedial investigation/feasibility study activities.      These plans shall conform to the requirements specified in this chapter.

     (g))) (iv) Workplans. A safety and health plan and a sampling and analysis plan shall be prepared as part of the remedial investigation/feasibility study. These plans shall conform to the requirements specified in WAC 173-340-810 and 173-340-820.

     (v) Other information. Other information may be required by the department.

     (8) Procedures for conducting a feasibility study.

     (a) Purpose. The purpose of the feasibility study is to develop and evaluate cleanup action alternatives to enable a cleanup action to be selected for the site. If concentrations of hazardous substances do not exceed the cleanup level at a standard point of compliance, no further action is necessary.

     (b) Screening of alternatives. An initial screening of alternatives to reduce the number of alternatives for the final detailed evaluation may be appropriate. The person conducting the feasibility study may initially propose cleanup action alternatives or components to be screened from detailed evaluation. The department shall make the final determination of which alternatives must be evaluated in the feasibility study. The following cleanup action alternatives or components may be eliminated from the feasibility study:

     (i) Alternatives that, based on a preliminary analysis, the department determines so clearly do not meet the minimum requirements specified in WAC 173-340-360 that a more detailed analysis is unnecessary. This includes those alternatives for which costs are clearly disproportionate under WAC 173-340-360 (3)(e); and

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

     (c) Content. A feasibility study shall include the following information as appropriate.

     (i) General requirements.

     (A) The feasibility study shall include cleanup action alternatives that protect human health and the environment by eliminating, reducing, or otherwise controlling risks posed through each exposure pathway and migration route.

     (B) A reasonable number and type of alternatives shall be evaluated, taking into account the characteristics and complexity of the facility, including current site conditions and physical constraints. Alternatives for protection of aquatic ecological receptors, terrestrial ecological receptors and human health shall be developed as appropriate to the site.

     (C) Each alternative may consist of one or more cleanup action components, including, but not limited to, components that reuse or recycle the hazardous substances, destroy or detoxify the hazardous substances, immobilize or solidify the hazardous substances, provide for on-site or off-site disposal of the hazardous substances in an engineered, lined and monitored facility, on-site isolation or containment of the hazardous substances with attendant engineering controls, and institutional controls and monitoring.

     (D) Alternatives may, as appropriate, include remediation levels to define when particular cleanup action components will be used. Alternatives may also include different remediation levels for the same component. For example, alternatives that excavate and treat soils at varying concentrations may be appropriate to evaluate. See WAC 173-340-355 for detailed information on establishing potential remediation levels to be evaluated in the feasibility study.

     (E) If necessary, evaluate the residual threats that would accompany each alternative and determine if remedies that are protective of human health will also be protective of ecological receptors. See subsection (7)(c)(iii)(F) of this section.

     (F) The feasibility study shall include alternatives with the standard point of compliance for each environmental media containing hazardous substances, unless those alternatives have been eliminated under (b) of this subsection, and may include, as appropriate, alternatives with conditional points of compliance.

     (G) Each alternative shall be evaluated on the basis of the requirements and the criteria specified in WAC 173-340-360.

     (H) A preferred cleanup action may be identified in the feasibility study, where appropriate.

     (I) Other information may be required by the department.

     (ii) Permanent alternatives.

     (A) Except as provided in (c)(ii)(B) of this subsection, the feasibility study shall include at least one permanent cleanup action alternative, as defined in WAC 173-340-200, to serve as a baseline against which other alternatives shall be evaluated for the purpose of determining whether the cleanup action selected is permanent to the maximum extent practicable. The most practicable permanent cleanup action alternative shall be included.

     (B) The feasibility study does not need to include a permanent cleanup action alternative under any of the following circumstances:

     (I) Where a model remedy is the selected cleanup action;

     (II) Where a permanent cleanup action alternative is not technically possible; or

     (III) Where the cost of the most practicable permanent cleanup action alternative is so clearly disproportionate that a more detailed analysis is not necessary, as determined through the screening process in (b)(i) of this subsection.

     (9) Additional requirements.

     (a) Cleanup levels. Unless otherwise specified under this chapter, cleanup levels shall be established for hazardous substances in each media and for each pathway where a release has occurred, using WAC 173-340-700 through 173-340-760. These are typically initially established during the scoping of the remedial investigation and may be further refined during the remedial investigation and/or feasibility study.

     (b) Compliance with other laws. The department may require that a remedial investigation/feasibility study include additional information or analyses to comply with the State Environmental Policy Act or other applicable laws. This includes information necessary to make a threshold determination (see WAC 197-11-335(1)), or information necessary to integrate the remedial investigation/feasibility study with an environmental impact statement (see WAC 197-11-262).

     (c) Treatability studies.      The department may require treatability studies as necessary to provide sufficient information to develop and evaluate cleanup action alternatives for a site.

     (((h) Any information needed to fulfill the applicable requirements of the State Environmental Policy Act.

     (i))) (d) Other information ((as)). Other information may be required by the department.

     (((7) In appropriate cases the department may allow departure from the requirements of subsection (6) of this section and will allow information to be incorporated by reference to avoid unnecessary duplication.

     (8) Report.      A report shall be prepared at the completion of the remedial investigation/feasibility study.      Additionally, the department may require reports to be submitted following discrete elements of the remedial investigation/feasibility study.      Reports prepared under this section and under an order or decree shall be submitted to the department for review and approval.))

[Statutory Authority: Chapter 70.105D RCW.      91-04-019, § 173-340-350, filed 1/28/91, effective 2/28/91; 90-08-086, § 173-340-350, filed 4/3/90, effective 5/4/90.]

(1) Purpose. A cleanup action selected for a site will often involve a combination of cleanup action components, such as treatment of some soil contamination and containment of the remainder. Remediation levels are used to identify the concentrations (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 are used at sites where a combination of cleanup action components are used to achieve cleanup levels at the point of compliance (see the example in subsection (3)(a) of this section) and at sites where achieving cleanup levels at the point of compliance is not practicable (see the example in subsection (3)(b) of this section).

     (2) Relationship to cleanup levels and cleanup standards. Remediation levels are not the same as cleanup levels. A cleanup level defines the concentration of hazardous substances above which a contaminated media (e.g., soil) must be remediated in some manner (e.g., treatment, containment, institutional controls). A remediation level, on the other hand, defines the concentration (or other method of identification) of a hazardous substance in a particular media above or below which a particular cleanup action component (e.g., soil treatment or containment) will be used. Remediation levels, by definition, exceed cleanup levels.

     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 off-site disposal all soil that exceeds the cleanup level at the applicable points of compliance.

     A cleanup action that uses remediation levels must meet each of the minimum requirements specified in WAC 173-340-360, including the requirement that all cleanup actions must comply with cleanup standards. Compliance with cleanup standards requires, in part, that cleanup levels are met at the applicable points of compliance. 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) 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 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 cleanup levels at the point of compliance. Assume that the soil cleanup level at a site is 20 ppm. 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. The cleanup action may be determined to comply with the cleanup standard because the cleanup level is met at the applicable point of compliance.

     (b) Example of a site not meeting cleanup levels at the point of compliance. Assume that the soil cleanup level at a site is 20 ppm. 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 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.

     (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 quantitative site-specific risk assessment may be conducted to help determine whether cleanup action alternatives, including those using a remediation level, engineered control and/or institutional control, are protective of 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 may also be used to determine if 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 human health. A quantitative site-specific human health risk assessment may be conducted to help determine whether cleanup action alternatives, including those using a remediation level, engineered control and/or institutional control, are protective of 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).

     (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, engineered control, and/or institutional control.

     (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 remediation levels shall be the same as that used for the cleanup level.

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

     (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.

     (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 the exposure frequency reduced to 0.25 to demonstrate when a cap is protective of the soil ingestion and dermal pathways. This scenario is intended to be a conservative estimate of a child trespasser scenario at a commercial gas station where contaminated soil has been excavated and stockpiled or soil is otherwise accessible. Sites using remediation levels must also use institutional controls to prevent uses that could result in a higher level of exposure and assess the protectiveness for other exposure pathways (e.g., soil vapors and soil to ground water).

     (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. A quantitative site-specific ecological risk assessment may be conducted to help determine whether cleanup action alternatives, including those using a remediation level, engineered control and/or institutional control, are protective of the environment.

[]

(1) Purpose.

     (((a) This section describes the requirements for selecting cleanup actions.      It specifies the criteria for approving cleanup actions, the order of preference for cleanup technologies, policies for permanent solutions, the application of these criteria to particular situations, and the process for making these decisions.      This section is intended to be used in conjunction with the cleanup standards defined in WAC 173-340-700 through 173-340-760 and the administrative principles for the overall cleanup process (WAC 173-340-130).

     (b) Because cleanup actions will often involve the use of several cleanup technologies or methods at a single site, the overall cleanup action shall meet the requirements of this section.

     (2) Threshold requirements.

     All cleanup actions conducted under this chapter shall protect human health and the environment; shall comply with cleanup standards (see WAC 173-340-700 through 173-340-760); shall comply with applicable state and federal laws (see WAC 173-340-710); and shall provide for compliance monitoring (see WAC 173-340-410).

     (3) Other requirements.      In addition, the cleanup action conducted shall:

     (a) Use permanent solutions to the maximum extent practicable (see WAC 173-340-360 (4), (5), (7), and (8));

     (b) Provide for a reasonable restoration time frame (see WAC 173-340-360(6)); and

     (c) Consider public concerns raised during public comment on the draft cleanup action plan (see WAC 173-340-360 (10) through (13)).

     (4) Cleanup technologies.

     (a) Cleanup of hazardous waste sites shall be conducted using technologies which minimize the amount of untreated hazardous substances remaining at a site.      Toward that end, the following technologies for addressing specific hazardous substances or pathways shall be considered in order of descending preference:

     (i) Reuse or recycling;

     (ii) Destruction or detoxification;

     (iii) Separation or volume reduction followed by reuse, recycling, destruction, or detoxification of the residual hazardous substance;

     (iv) Immobilization of hazardous substances;

     (v) On-site or off-site disposal at an engineered facility designed to minimize the future release of hazardous substances and in accordance with applicable state and federal laws;

     (vi) Isolation or containment with attendant engineering controls; and

     (vii) Institutional controls and monitoring.

     (b) A combination of technologies from more than one of the categories under (a) of this subsection may be used at a specific site.      For example, the source of the hazardous substance may be recovered and recycled or destroyed, while containment is used to stop the migration of hazardous substances that have reached the ground water.

     (c) Since cleanup actions will often involve a combination of technologies, cleanup action alternatives shall maximize the use of higher preference technologies.

     (d) Ecology does not expect that one type of technology will be used for all sites.      The adoption of the technology preferences in this subsection is designed to make it more difficult to select a cleanup action with a low preference without careful explanation of why technologies above it have not been used.      As noted in subsection (9) of this section, ecology expects that lower options will be appropriate for some sites.

     (5) Permanent solutions.

     (a) When selecting a cleanup action, preference shall be given to permanent solutions to the maximum extent practicable.

     (b) A permanent solution is one in which cleanup standards can be met without further action being required at the original site or any other site involved with the cleanup action, other than the approved disposal of any residue from preferred treatment technologies under subsection (4)(a)(i) through (iii) of this section.

     (c) In general, technologies which reuse, recycle, destroy, or detoxify hazardous substances will result in permanent solutions if residual hazardous substance concentrations are below cleanup levels established under WAC 173-340-700 through 173-340-760.      Containment of hazardous substances and/or institutional controls alone are not permanent solutions.      Other technologies, such as immobilization of hazardous substances, may provide permanent solutions under some conditions.

     (d) Ecology recognizes that permanent solutions may not be practicable for all sites.      A determination that a cleanup action satisfies the requirement to use permanent solutions to the maximum extent practicable is based upon consideration of a number of factors.      The following criteria shall be used to determine whether a cleanup action is "permanent to the maximum extent practicable":

     (i) Overall protectiveness of human health and the environment including the degree to which existing risks are reduced, time required to reduce risk at the facility and attain cleanup standards, on-site and off-site risks resulting from implementing the alternative, the degree the cleanup action may perform to a higher level than specific standards in WAC 173-340-700 through 173-340-760, and improvement of the overall environmental quality;

     (ii) Long-term effectiveness including degree of certainty that the alternative will be successful, long-term reliability, magnitude of residual risk, and effectiveness of controls required to manage treatment residues or remaining wastes;

     (iii) Short-term effectiveness including protection of human health and the environment during construction and implementation of the alternative, and the degree of risk to human health and the environment prior to attainment of cleanup standards;

     (iv) Permanent reduction of toxicity, mobility and volume of the hazardous substance including adequacy of the alternative in destroying the hazardous substances, reduction or elimination of hazardous substance releases and sources of releases, degree of irreversibility of waste treatment process, and the characteristics and quantity of treatment residuals generated;

     (v) Ability to be implemented including consideration of whether the alternative is technically possible, availability of necessary off-site facilities, services and materials, administrative and regulatory requirements, scheduling, size, complexity, monitoring requirements, access for construction, operations and monitoring, and integration with existing facility operations and other current or potential remedial actions;

     (vi) Cleanup costs.      A cleanup action shall not be considered practicable if the incremental cost of the cleanup action is substantial and disproportionate to the incremental degree of protection it would achieve over a lower preference cleanup action.      When selecting from among two or more cleanup action alternatives which have an equivalent level of preference under subsection (4) of this section, preference may be given to the least cost alternative.      In performing this evaluation, the top three preferences in subsection (4) of this section shall be considered equivalent unless there are overriding public concerns or technical uncertainties;

     (vii) The degree to which community concerns are addressed.

     (e) To ensure a bias toward permanent solutions, cleanup actions conducted under this chapter including consideration of prior actions at the site shall comply with the following requirements:

     (i) The cleanup action shall prevent or minimize present and future releases and migration of hazardous substances in the environment;

     (ii) The cleanup action shall provide for a net reduction in the amount of a hazardous substance being released from the source area;

     (iii) The cleanup action shall not rely primarily on dilution and dispersion of the hazardous substance if active remedial measures are technically possible;

     (iv) A cleanup action relying primarily on institutional controls and monitoring shall not be used where it is technically possible to implement a cleanup action alternative that utilizes a higher preference cleanup technology for all or a portion of the site; and

     (v) A cleanup action involving off-site transport and disposal of hazardous substances without treatment shall not be used if a treatment technology or method exists which will attain cleanup standards and is practicable.

     (6) Restoration time frame.

     (a) The cleanup action selected shall provide for a reasonable restoration time frame.      The factors to be considered when establishing a reasonable restoration time frame shall include:

     (i) Potential risks posed by the site to human health and the environment;

     (ii) Practicability of achieving a shorter restoration time frame;

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

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

     (v) Availability of alternative water supplies;

     (vi) Likely effectiveness and reliability of institutional controls;

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

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

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

     (b) A longer period of time may be used for the restoration time frame for a site to achieve cleanup levels at the point of compliance if higher preference cleanup technologies in accordance with subsections (4) and (5) of this section are selected instead of on-site or off-site disposal, isolation, or containment options.

     (c) When area background concentrations would result in recontamination of the site to levels which exceed cleanup levels, that portion of the cleanup action which addresses cleanup below area background concentrations may be delayed until the off-site sources of hazardous substances are controlled.      In these cases the remedial action shall be considered an interim action until cleanup levels are attained.

     (d) Where cleanup levels determined under method C in WAC 173-340-707 are below technically possible concentrations, concentrations that are technically possible to achieve shall be met within a reasonable time frame considering the factors in (a) of this subsection.      In these cases the remedial action shall be considered an interim action until cleanup levels are attained.

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

     (7) Ground water restoration.

     (a) Ground water treatment to achieve the levels in WAC 173-340-720 throughout the ground water at and beyond the point of compliance shall be required where such treatment is practicable or where such treatment is not practicable, but deemed by the department to be in the public interest.

     (b) When ground water treatment to achieve the cleanup levels at or beyond the point of compliance within an existing ground water plume is not practicable the following measures shall be taken:

     (i) Treatment shall be used to reduce the levels to the maximum extent practicable;

     (ii) Ground water containment, including barriers or hydraulic control through ground water pumping or both, shall be implemented to the maximum extent practicable to avoid lateral and vertical expansion of the ground water volume affected by the hazardous substance;

     (iii) Source control measures shall be implemented to prevent or minimize additional releases to the ground water;

     (iv) Adequate ground water monitoring to demonstrate control and containment of the hazardous substance shall be conducted;

     (v) The potentially liable person shall provide an alternative water supply or treatment for persons with water supplies rendered unusable by the release; and

     (vi) The practicability of achieving ground water cleanup levels by treating the ground water affected by the release shall be reevaluated during the periodic review under WAC 173-340-420.

     (c) Appropriate restrictions on the use of ground water shall be placed under WAC 173-340-440 until cleanup levels established under WAC 173-340-720 are achieved.

     (d) The integrity and continued operation of any treatment or containment system shall be assured in accordance with WAC 173-340-440.

     (8) Containment actions.

     (a) A cleanup action which relies primarily on on-site disposal, isolation, or containment of hazardous substances shall not be conducted if it is practicable to reuse, destroy, or detoxify those substances in a manner that remaining concentrations are below cleanup levels established under WAC 173-340-700 through 173-340-760.

     (b) Long-term monitoring (WAC 173-340-410) and institutional controls (WAC 173-340-440) shall be required if on-site disposal, isolation, or containment is the selected cleanup action for a site or a portion of a site.      Such measures shall be required until residual hazardous substance concentrations no longer exceed site cleanup levels established under WAC 173-340-700 through 173-340-760.

     (c) If the proposed cleanup action involves on-site containment, the draft cleanup action plan shall specify the types, levels, and amounts of hazardous substances remaining on-site and the measures that will be utilized to prevent migration and contact with those substances.

     (9) Expectations.      Ecology has the following expectations for cleanup actions conducted under this chapter.      The department recognizes that there may be sites where these expectations are not appropriate:

     (a) Ecology expects that treatment technologies will be used wherever practicable.      Use of treatment technologies should be emphasized at sites containing liquid wastes, areas contaminated with high concentrations of hazardous substances, highly mobile materials, and/or discrete areas of hazardous substances which lend themselves to treatment;

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

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

     (d) Ecology expects institutional controls, such as water use restrictions and deed restrictions, will be used to supplement engineering controls in order to prevent or limit exposure to hazardous substances and protect the integrity of the cleanup action;

     (e) Ecology expects that cleanup actions will return useable ground waters to their beneficial uses wherever practicable, within a reasonable time frame.      When restoration of ground water to beneficial uses is not practicable, ecology expects to require measures to minimize/prevent further migration, minimize ongoing releases, prevent exposure to contaminated water, and other appropriate measures (see WAC 173-340-360(7));

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

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

     (h) Ecology expects that, for facilities adjacent to a surface water body, active measures will be taken to prevent/minimize releases to surface water via surface runoff and ground water discharges.      Ecology expects that dilution will not be the sole method for demonstrating compliance with cleanup standards; and

     (i) Ecology expects that cleanup actions conducted under this chapter will not result in a significantly greater overall threat to human health and the environment than other alternatives.

     (10) Draft cleanup action plan.      The department shall issue a draft cleanup action plan for cleanup actions conducted by the department or conducted by a potentially liable person under an order or decree.      The level of detail in the draft cleanup action plan shall be commensurate with the complexity of the site and proposed cleanup action.

     (a) The draft cleanup action plan shall include the following:

     (i) A general description of the proposed cleanup action including compliance monitoring;

     (ii) A brief summary of other alternative cleanup actions evaluated in the state remedial investigation/feasibility study or comparable documents;

     (iii) Site cleanup levels and points of compliance for each hazardous substance and for each media of concern;

     (iv) The schedule for implementation of the cleanup action plan including, if known, restoration time frame;

     (v) Required institutional controls and site use restrictions, if any, for the proposed cleanup action;

     (vi) Justification for selecting a cleanup action that uses cleanup technologies that have a lower preference than higher representative cleanup technologies listed in subsection (4)(a) of this section;

     (vii) Applicable state and federal laws for the proposed cleanup action, when these are known at this step in the cleanup process (this does not preclude subsequent identification of applicable state and federal laws);

     (viii) A preliminary determination by the department that the proposed cleanup action will comply with subsections (2) and (3) of this section; and

     (ix) Where the cleanup action involves on-site containment, specification of the types, levels, and amounts of hazardous substances remaining on site and the measures that will be utilized to prevent migration and contact with those substances.

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

     (11) Public participation.      The department will provide public notice and opportunity for comment on the draft cleanup plan as described in WAC 173-340-600.

     (12) Final plan.      Upon completion of the public comment period the department, after review and consideration of the comments received, shall issue a final cleanup action plan and publish its availability in the site register and by other appropriate methods.      If the department determines, following the implementation of the preferred alternative, that the cleanup levels established in the cleanup action plan cannot be achieved, the department shall issue public notice of this determination.

     (13) Federal cleanup sites.      A record of decision or order or consent decree prepared under the Federal Cleanup Law that provides for a cleanup action may be used by the department to meet the requirements of this section provided:

     (a) The cleanup action meets the requirements in subsections (2) and (3) of this section;

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

     (c) An opportunity was provided for the public to comment on the cleanup action.)) 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 cleanup actions shall meet the following requirements. Because cleanup actions will often involve the use of several cleanup action components at a single site, the overall cleanup action shall meet the requirements of this section. The department recognizes that some of the requirements contain flexibility and will require the use of professional judgment in determining how to apply them at particular sites.

     (a) Threshold requirements. The cleanup action shall:

     (i) Protect human health and the environment;

     (ii) Comply with cleanup standards (see WAC 173-340-700 through 173-340-760);

     (iii) Comply with applicable state and federal laws (see WAC 173-340-710); and

     (iv) Provide for compliance monitoring (see WAC 173-340-410 and 173-340-720 through 173-340-760).

     (b) Other requirements. When selecting from cleanup action alternatives that fulfill the threshold requirements, the selected action shall:

     (i) Use permanent solutions to the maximum extent practicable (see subsection (3) of this section);

     (ii) Provide for a reasonable restoration time frame (see subsection (4) of this section); and

     (iii) Consider public concerns (see WAC 173-340-600).

     (c) Ground water cleanup actions.

     (i) Permanent ground water cleanup actions. A permanent cleanup action shall be used to achieve the cleanup levels for ground water in WAC 173-340-720 at the standard point(s) of compliance (see WAC 173-340-720(8)) where a permanent cleanup action is practicable or determined by the department to be in the public interest.

     (ii) Nonpermanent ground water cleanup actions. Where a permanent cleanup action is not required under (c)(i) of this subsection, the following measures shall be taken:

     (A) Treatment or removal of the source of the release shall be conducted for liquid wastes, areas contaminated with high concentrations of hazardous substances, highly mobile hazardous substances, or hazardous substances that cannot be reliably contained. This includes removal of petroleum and other light nonaqueous phase liquid (LNAPL) from the ground water using normally accepted engineering practices. Source containment may be appropriate when a dense nonaqueous phase liquid (DNAPL) cannot be recovered after reasonable efforts have been made.

     (B) Ground water containment, including barriers or hydraulic control through ground water pumping, or both, shall be implemented to the maximum extent practicable to avoid lateral and vertical expansion of the ground water volume affected by the hazardous substance.

     (d) Cleanup actions for soils at current or potential future residential areas and for soils at schools and child care centers. For current or potential future residential areas and for schools and child care centers, soils with hazardous substance concentrations that exceed soil cleanup levels must be treated, removed, or contained. Property qualifies as a current or potential residential area if:

     (i) The property is currently used for residential use; or

     (ii) The property has a potential to serve as a future residential area based on the consideration of zoning, statutory and regulatory restrictions, comprehensive plans, historical use, adjacent land uses, and other relevant factors.

     (e) Institutional controls.

     (i) Cleanup actions shall use institutional controls and financial assurances as required under WAC 173-340-440.

     (ii) Cleanup actions that use institutional controls shall meet each of the minimum requirements specified in this section, just as any other cleanup action. Institutional controls should demonstrably reduce risks to ensure a protective remedy. This demonstration should be based on a quantitative scientific analysis where appropriate.

     (iii) In addition to meeting each of the minimum requirements specified in this section, cleanup actions shall not rely primarily on institutional controls and monitoring where it is technically possible to implement a more permanent cleanup action for all or a portion of the site.

     (f) Releases and migration. Cleanup actions shall prevent or minimize present and future releases and migration of hazardous substances in the environment.

     (g) Dilution and dispersion. Cleanup actions shall not rely primarily on dilution and dispersion unless the incremental costs of any active remedial measures over the costs of dilution and dispersion grossly exceed the incremental degree of benefits of active remedial measures over the benefits of dilution and dispersion.

     (h) Remediation levels. Cleanup actions that use remediation levels shall meet each of the minimum requirements specified in this section, just as any other cleanup action.

     (i) Selection of a cleanup action alternative that uses remediation levels requires, in part, a determination that a more permanent cleanup action is not practicable, based on the disproportionate cost analysis (see subsections (2)(b)(i) and (3) of this section).

     (ii) Selection of a cleanup action alternative that uses remediation levels also requires a determination that the alternative meets each of the other minimum requirements specified in this section, including a determination that the alternative is protective of human health and the environment.

     (3) Determining whether a cleanup action uses permanent solutions to the maximum extent practicable.

     (a) Purpose. This subsection describes the requirements and procedures for determining whether a cleanup action uses permanent solutions to the maximum extent practicable, as required under subsection (2)(b)(i) 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) General requirements. When selecting a cleanup action, preference shall be given to permanent solutions to the maximum extent practicable. To determine whether a cleanup action uses permanent solutions to the maximum extent practicable, the disproportionate cost analysis specified in (e) of this subsection shall be used. The analysis shall compare the costs and benefits of the cleanup action alternatives evaluated in the feasibility study. The costs and benefits to be compared are the evaluation criteria identified in (f) of this subsection.

     (c) Permanent cleanup action defined. A permanent cleanup action or permanent solution is defined in WAC 173-340-200.

     (d) Selection of a permanent cleanup action. A disproportionate cost analysis shall not be required if the department and the potentially liable persons agree to a permanent cleanup action that will be identified by the department as the proposed cleanup action in the draft cleanup action plan.

     (e) Disproportionate cost analysis.

     (i) Test. Costs are disproportionate to benefits if the incremental costs of the alternative over that of a lower cost alternative exceed the incremental degree of benefits achieved by the alternative over that of the lower cost alternative.

     (ii) Procedure.

     (A) The alternatives evaluated in the feasibility study shall be ranked from most to least permanent, based on the evaluation of the alternatives under (f) of this subsection and the definition of permanent solution in (c) of this subsection.

     (B) The most practicable permanent solution evaluated in the feasibility study shall be the baseline cleanup action alternative against which cleanup action alternatives are compared. If no permanent solution has been evaluated in the feasibility study, the cleanup action alternative evaluated in the feasibility study that provides the greatest degree of permanence shall be the baseline cleanup action alternative.

     (C) The comparison of benefits and costs may be quantitative, but will often be qualitative and require the use of best professional judgment. In particular, the department has the discretion to favor or disfavor qualitative benefits and use that information in selecting a cleanup action. Where two or more alternatives are equal in benefits, the department shall select the less costly alternative provided the requirements of subsection (2) of this section are met.

     (f) Evaluation criteria. The following criteria shall be used to evaluate and compare each cleanup action alternative when conducting a disproportionate cost analysis under (e) of this subsection to determine whether a cleanup action is permanent to the maximum extent practicable.

     (i) Protectiveness. Overall protectiveness of human health and the environment, including the degree to which existing risks are reduced, time required to reduce risk at the facility and attain cleanup standards, on-site and off-site risks resulting from implementing the alternative, and improvement of the overall environmental quality.

     (ii) Permanence. The degree to which the alternative permanently reduces the toxicity, mobility or volume of hazardous substances, including the adequacy of the alternative in destroying the hazardous substances, the reduction or elimination of hazardous substance releases and sources of releases, the degree of irreversibility of waste treatment processes, and the characteristics and quantity of treatment residuals generated.

     (iii) Cost. The cost to implement the alternative, including the cost of construction, the net present value of any long-term costs, and agency oversight costs that are cost recoverable. Long-term costs include operation and maintenance costs, monitoring costs, equipment replacement costs, and the cost of maintaining institutional controls. Cost estimates for treatment technologies shall describe pretreatment, analytical, labor, and waste management costs. The design life of the cleanup action shall be estimated and the cost of replacement or repair of major elements shall be included in the cost estimate.

     (iv) Effectiveness over the long term. Long-term effectiveness includes the degree of certainty that the alternative will be successful, the long-term reliability of the alternative ("long-term" means as long as hazardous substances that exceed the cleanup levels are estimated to remain on-site), the magnitude of residual risk with the alternative in place, and the effectiveness of controls required to manage treatment residues or remaining wastes. The following types of cleanup action components may be used as a guide, in descending order, when assessing the relative degree of long-term effectiveness: Reuse or recycling; destruction or detoxification; immobilization or solidification; on-site or off-site disposal in an engineered, lined and monitored facility; on-site isolation or containment with attendant engineering controls; and institutional controls and monitoring.

     (v) Management of short-term risks. The risk to human health and the environment associated with the alternative during construction and implementation, and the effectiveness of measures that will be taken to manage such risks.

     (vi) Technical and administrative implementability. Ability to be implemented including consideration of whether the alternative is technically possible, availability of necessary off-site facilities, services and materials, administrative and regulatory requirements, scheduling, size, complexity, monitoring requirements, access for construction operations and monitoring, and integration with existing facility operations and other current or potential remedial actions.

     (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. This subsection describes the requirements and procedures for determining whether a cleanup action provides for a reasonable restoration time frame, as required under subsection (2)(b)(ii) 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. To determine whether a cleanup action provides for a reasonable restoration time frame, the factors to be considered include the following:

     (i) Potential risks posed by the site to human health and the environment;

     (ii) Practicability of achieving a shorter restoration time frame;

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

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

     (v) Availability of alternative water supplies;

     (vi) Likely effectiveness and reliability of institutional controls;

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

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

     (ix) Natural processes 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 off-site disposal, isolation, or containment options.

     (d) When area background concentrations (see WAC 173-340-200 for definition) would result in recontamination of the site to levels that exceed cleanup levels, that portion of the cleanup action which addresses cleanup below area background concentrations may be delayed until the off-site sources of hazardous substances are controlled. In these cases the remedial action shall be considered an interim action until cleanup levels are attained.

     (e) Where cleanup levels determined under Method C in WAC 173-340-706 are below technically possible concentrations, concentrations that are technically possible to achieve shall be met within a reasonable time frame considering the factors in subsection (b) of this section. In these cases the remedial action shall be considered 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.

[Statutory Authority: Chapter 70.105D RCW.      91-04-019, § 173-340-360, filed 1/28/91, effective 2/28/91; 90-08-086, § 173-340-360, filed 4/3/90, effective 5/4/90.]

The department has the following expectations for the development of cleanup action alternatives under WAC 173-340-350 and the selection of cleanup actions under WAC 173-340-360. The department recognizes that there may be some sites where these expectations are not appropriate.

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

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

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

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

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

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

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

     (a) Source control has been conducted to the maximum extent practicable;

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

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

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

     (8) The department expects that cleanup actions conducted under this chapter will not result in a significantly greater overall threat to human health and the environment than other alternatives.

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(1) Draft 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 level of detail in the draft cleanup action plan shall be commensurate with the complexity of the site and proposed cleanup action.

     (a) The draft cleanup action plan shall include the following:

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

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

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

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

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

     (vi) Institutional controls, if any, required as part of the proposed cleanup action.

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

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

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

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

     (2) Public participation. The department will provide public notice and opportunity for comment on the draft cleanup plan, as required in WAC 173-340-600(13).

     (3) Final cleanup action plan. After review and consideration of the comments received during the public comment period, the department shall issue a final cleanup action plan and publish its availability in the Site Register and by other appropriate methods. If the department determines, following the implementation of the preferred alternative, that the cleanup standards or, where applicable, remediation levels established in the cleanup action plan cannot be achieved, the department shall issue public notice of this determination.

     (4) Federal cleanup sites. For federal cleanup sites, a record of decision or order or consent decree prepared under the federal cleanup law may be used by the department to meet the requirements of this section provided:

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

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

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

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(1) Purpose. The purpose of model remedies is to streamline and accelerate the selection of cleanup actions that protect human health and the environment, with a preference for permanent solutions to the maximum extent practicable.

     (2) Circumstances. The department may, from time to time, identify model remedies for common categories of facilities, types of contamination, types of media, and geographic areas. In identifying a model remedy, the department shall identify the circumstances for which application of the model remedy meets the requirements under WAC 173-340-360.

     (3) Effect. Where a site meets the circumstances identified by the department under subsection (2) of this section, the components of the model remedy may be selected as the cleanup action, or portion of the cleanup action. At such sites, it shall not be necessary to conduct a feasibility study under WAC 173-340-350(8) or a disproportionate cost analysis under WAC 173-340-360(3) for those components or portions of the site to which a model remedy applies.

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((Unless otherwise directed by the department, cleanup actions shall comply with this section except for emergencies or interim actions.))

     (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 ((which)) that is consistent with:

     (a) The cleanup action plan;

     (b) Accepted engineering practices; and

     (c) The requirements ((of)) specified in WAC 173-340-360 (((1) and (2))).

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

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

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

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

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

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

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

     (vi) A schedule for final design and construction;

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

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

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

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

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

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

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

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

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

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

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

     (C) Soil characteristics and ground water system characteristics;

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

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

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

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

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

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

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

     (xx) Other information as required by the department.

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

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

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

     (iii) A copy of any permits and approvals;

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

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

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

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

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

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

     (x) Other information as required by the department.

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

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

     (ii) Process description and operating principles;

     (iii) Design criteria and operating parameters and limits;

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

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

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

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

     (viii) Equipment maintenance schedules incorporating manufacturers recommendations;

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

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

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

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

     (xiii) Other information as required by the department.

     (5) ((In appropriate cases the department may authorize departure from the requirements of subsection (4) of this section, and may allow information to be incorporated by reference to avoid unnecessary duplication.

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

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

     (a) Department inspections.

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

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

     (b) Construction documentation.

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

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

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

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

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

     (ii) For sites using institutional controls as part of the cleanup action, copies of recorded deed restrictions (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.

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

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

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

[Statutory Authority: Chapter 70.105D RCW.      90-08-086, § 173-340-400, filed 4/3/90, effective 5/4/90.]

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

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

     (b) Performance monitoring.      Confirm that the interim action or cleanup action has attained cleanup standards and, 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 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((, performed)) conducted under this chapter. Unless otherwise directed by the department, a compliance monitoring plan shall be prepared.

     (((3) Compliance monitoring plans.      A compliance monitoring plan shall be prepared for all cleanup actions and may be required for interim and emergency actions unless otherwise directed by the department.))      Plans prepared under this section and under an order or decree shall be submitted to the department for review and approval.      Protection monitoring may be addressed in the safety and health plan.      Performance and confirmational monitoring may be addressed in separate plans ((and)) or may be combined with other plans or submittals, such as those in WAC 173-340-400 and 173-340-820.

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

     (a) A sampling and analysis plan meeting the requirements of WAC 173-340-820 which shall explain in the statement of objectives how the purposes of ((WAC 173-340-410(2))) subsection (1) of this section are met;

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

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

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

     (c) Other information as required by the department.

[Statutory Authority: Chapter 70.105D RCW.      90-08-086, § 173-340-410, filed 4/3/90, effective 5/4/90.]

(1) ((If the department selects or approves a cleanup action that results in hazardous substances remaining at a site at concentrations which exceed method A or method B cleanup levels established under WAC 173-340-700 through 173-340-760 or if conditional points of compliance have been established, the department shall review the cleanup action no less frequently than every five years after the initiation of such cleanup action to assure that human health and the environment are being protected.

     (2))) Purpose. A periodic review 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; approves a cleanup action under an order, agreed order or consent decree; or issues a no further action opinion as resources permit; 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 ((shall)) 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 ((higher preference technologies as defined in WAC 173-340-360(4))) more permanent remedies; and

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

     (((3))) (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.

     (((4))) (6) Determination of whether amendment of the cleanup action plan required. When the department determines that substantial changes in the cleanup action are necessary to protect human health and the environment at the site, a revised cleanup action plan shall be prepared.      The department shall provide opportunities for public review and comment on the draft cleanup action plan ((consistent with the requirements)) in accordance with WAC ((173-340-360)) 173-340-380 and 173-340-600.

     (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.

[Statutory Authority: Chapter 70.105D RCW.      91-04-019, § 173-340-420, filed 1/28/91, effective 2/28/91; 90-08-086, § 173-340-420, filed 4/3/90, effective 5/4/90.]

(1) Purpose.      ((The purpose of this section is to describe how certain interim actions can occur prior to the selection and completion of a cleanup action.)) An interim action is distinguished from a cleanup action in that an interim action only partially addresses the cleanup of a site.      An interim action is:

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

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

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

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

     (2) General requirements.

     (((a))) Interim actions may:

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

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

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

     (((b))) (3) Relationship to the cleanup action((:)).

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

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

     (((3))) (4) Timing.

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

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

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

     (((4))) (5) Administrative options.      ((Except as provided in WAC 173-340-530,)) Interim cleanup actions may be conducted under any of the procedures described in WAC 173-340-510 and 173-340-515.

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

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

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

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

     (i) A description of existing site conditions and a summary of all available data related to the interim action; 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 plan meeting the requirements of WAC 173-340-810; and

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

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

[Statutory Authority: Chapter 70.105D RCW.      91-04-019, § 173-340-430, filed 1/28/91, effective 2/28/91; 90-08-086, § 173-340-430, filed 4/3/90, effective 5/4/90.]

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

     (a) Physical measures such as fences;

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

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

     (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 refers to treatment and containment systems. Examples of engineered controls include a layer of clean soil, asphalt or concrete paving or other materials placed over contaminated soils to limit contact with contamination; a ground water flow barrier such as a bentonite slurry trench; ground water gradient control systems such as French drains or pump and treat systems; and vapor control systems.

     (3) Applicability. This section applies to remedial actions being conducted at sites under any of the administrative options 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) ((Where a)) The cleanup ((action results in residual concentrations of)) level is established using Method A or B and hazardous substances ((which exceed method A or method B cleanup levels, as applicable, established under WAC 173-340-700 through 173-340-760)) remain at the site at concentrations that exceed the applicable cleanup level; ((or))

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

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

     (d) A ground water cleanup level is established using a site-specific risk assessment under WAC 173-340-720 (6)(c) and exceeds the potable ground water cleanup level;

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

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

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

     (((2) Institutional controls shall not be used as a substitute for cleanup actions that would otherwise be technically possible.

     (3) Institutional controls include:

     (a) Physical measures, such as fences and signs, to limit activities that may interfere with the cleanup action or result in exposure to hazardous substances at the site; and

     (b) Legal and administrative mechanisms to limit site use or activities and/or to ensure that any physical measures are maintained over time.      Examples of limits on site use activities include restricting the use of a property for industrial or commercial purposes or other specified land uses, or placing restrictions on activities such as disturbing a cap or using the ground water.      Examples of maintenance activities include, inspection and repair of monitoring wells, treatment systems, caps or ground water barrier systems.

     (4))) (5) Minimum requirements. Cleanup actions that use institutional controls shall meet each of the minimum requirements specified in WAC 173-340-360, just as any other cleanup action. 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 specified in WAC 173-340-360, cleanup actions shall not rely primarily on institutional controls and monitoring where 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 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 for being a potentially liable person, the department may approve cleanup actions ((which)) that include restrictive covenants or other legal and/or administrative mechanisms.      The use of legal or administrative mechanisms ((which)) that do not include restrictive covenants is intended to apply to situations where the release has affected properties near the source of the release not owned by a person potentially liable under the act. 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.

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

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

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

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

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

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

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

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

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

     (((7))) (11) Financial assurances.      The department ((may)) shall, as appropriate, require ((the potentially liable person to provide)) financial assurance((s, through a trust fund or equivalent financial)) mechanisms ((approved by the department, sufficient to cover all costs of operation and maintenance including compliance monitoring and undertaking appropriate corrective measures.      It is the department's expectation that such assurances will be required wherever the cleanup action includes containment and in other appropriate circumstances)) 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, local government bond rating test, local government financial test, local government guarantee, local government fund, or financial assurance mechanisms required under another law (for example, requirements for solid waste landfills or treatment, storage, and disposal facilities) that meets the requirements of this section.

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

     (((8))) (12) Removal of restrictions.      If the ((residual hazardous substances remaining at the site are subsequently reduced in concentration such that the method A or method B cleanup levels, as applicable, established under WAC 173-340-700 through 173-340-760 are met without a conditional point of compliance)) 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.

[Statutory Authority: Chapter 70.105D RCW.      96-04-010 (Order 94-37), § 173-340-440, filed 1/26/96, effective 2/26/96; 91-04-019, § 173-340-440, filed 1/28/91, effective 2/28/91.]

(1) Purpose.      The purpose of this section is to set forth the requirements for addressing releases ((which)) that may pose a threat to human health or the environment from ((USTs defined)) an underground storage tank (UST) regulated under chapter 90.76 RCW ((and rules adopted therein, including heating oil USTs of greater than 1,100 gallons capacity)).

     (a) Releases from USTs exempted under chapter 90.76 RCW and rules adopted therein are still subject to all other requirements of this chapter.

     (b) Unless the department requires otherwise, UST owners and UST operators regulated under chapter 90.76 RCW shall comply with the requirements in this section after confirmation of an UST release ((which)) that may pose a threat to human health or the environment.

     (2) Initial response.      Within twenty-four hours of ((the)) confirmation of an UST release, the UST owner or the UST operator shall perform the following actions:

     (a) Report the UST release to the department and other authorities with jurisdiction, in accordance with rules adopted under chapter 90.76 RCW and any other applicable law;

     (b) Remove as much of the hazardous substance from the UST as is possible and necessary to prevent further release to the environment;

     (c) Eliminate or reduce any fire, explosion or vapor hazards in such a way as to minimize any release of hazardous substances to surface water and ground water; and

     (d) Visually inspect any aboveground releases or exposed belowground releases and prevent the hazardous substance from spreading into surrounding soils, ground water and surface water.

     (3) Interim actions.

     (a) As soon as possible but no later than twenty days following confirmation of an UST release, the UST owner or the UST operator shall perform the following interim actions:

     (i) Continue to monitor and mitigate any additional fire and safety hazards posed by vapors or free product ((which)) that may have migrated from the UST into structures in the vicinity of the site, such as sewers or basements;

     (ii) Reduce the threat to human health and the environment posed by contaminated soils that are excavated or discovered as a result of investigation or cleanup activities.      Treatment, storage and disposal of soils must be carried out in compliance with all applicable federal, state and local requirements;

     (iii) Test for hazardous substances in the environment where they are most likely to be present.      Such testing shall be done in accordance with a sampling and analysis plan prepared under WAC 173-340-820.      The sample types, sample locations, and measurement methods shall be based on the nature of the stored substance, type of subsurface soils, depth to ground water and other factors as appropriate for identifying the presence and source of the release.      If contaminated soil is found in contact with the ground water or soil contamination appears to extend below the lowest soil sampling depth, then testing shall include the installation of ground water monitoring wells to test for the presence of possible ground water contamination.      Information gathered for the site check or closure site assessment conducted ((pursuant to)) under rules adopted under chapter 90.76 RCW, which sufficiently characterizes the releases at the site, may be substituted for the testing required under this paragraph;

     (iv) The testing performed under (a)(iii) of this subsection shall use the analytical methods specified in WAC 173-340-830 and include, at a minimum, the following:

     (A) ((Benzene, toluene, ethylbenzene, xylene, lead, and total petroleum hydrocarbons where leaded gasoline may be present;

     (B) Benzene, toluene, ethylbenzene, xylene and total petroleum hydrocarbons where unleaded gasoline may be present;

     (C) Total petroleum hydrocarbons and other appropriate indicator hazardous substances where any petroleum product other than gasoline may be present;

     (D))) For petroleum product releases, the concentration(s) of hazardous substances potentially present at the site, as appropriate for the type of petroleum product(s) released. The minimum testing requirements are specified in table 830-1.

     (B) The hazardous substance stored and any likely decomposition by-products where a hazardous substance other than petroleum may be present; and

     (((E))) (C) Any other tests required by the department; and

     (v) Investigate for the presence of free product.

     (((b))) (4) Free product removal.      At sites where investigations indicate free product is present, the UST owner or the UST operator shall conduct, as soon as possible after discovery, an interim action to remove the free product while continuing, as necessary, any other actions required under this section.      To accomplish this the UST owner or UST operator shall:

     (((i))) (a) Conduct free product removal to the maximum extent practicable and in a manner ((which)) that minimizes the spread of hazardous substances, by using recovery and disposal techniques appropriate to the hydrogeologic conditions at the site.      The objective of free product removal system must be, at a minimum, to stop the free product migration;

     (((ii))) (b) Properly treat, discharge, or dispose of ((recovery by-products)) any hazardous substance, water, sludge or any other materials collected in the free product removal process in compliance with all applicable local, state, and federal regulations and permits; and

     (((iii))) (c) Handle all flammable products safely to prevent fires and explosions.

     (((4))) (5) Reporting requirements.      The following reports are required to be submitted to the department:

     (a) Status report.      Within twenty days after an UST release, the UST owner or UST operator shall submit a status report to the department.      The status report shall identify if known, the types, amounts, and locations of hazardous substances released, how the release occurred, evidence confirming the release, actions taken under subsections (2) and (3) of this section, any planned remedial actions, and any results of work done up to the time of the report.      This report may be provided verbally to the department.

     (b) Site characterization reports.      Within ninety days after release confirmation, unless directed to do otherwise by the department, the UST owner or UST operator shall submit a report to the department about the site and nature of the release.      This report shall be submitted to the department in writing and may be combined with the twenty-day status report, if the information required is available at that time.      The site characterization report shall include, at a minimum, the following information:

     (i) The information required for the status report under (a) of this subsection;

     (ii) A site conditions map indicating approximate boundaries of the property, all areas where hazardous substances are known or suspected to be located, and sampling locations.      This map may consist of a sketch of the site at a scale sufficient to illustrate this information;

     (iii) Available data regarding surrounding populations, surface and ground water quality, use and approximate location of wells potentially affected by the release, subsurface soil conditions, depth to ground water, direction of ground water flow, proximity to and potential for affecting surface water, locations of sewers and other potential conduits for vapor or free product migration, surrounding land use, and proximity to sensitive environments;

     (iv) Results of tests for hazardous substances performed under subsection (3)(a)(iii) and (iv) of this section;

     (v) Results of the free product investigation required under subsection (3)(a)(v) of this section;

     (vi) Results of all completed site investigations, interim actions and cleanup actions and a description of any remaining investigations, cleanup actions and compliance monitoring ((which)) that are planned or underway; and

     (vii) Information on the free product removal efforts at sites where investigations indicate free product is present.      This shall include, at a minimum, the following information:

     (A) Name of the person responsible for implementing the free product removal measures;

     (B) The estimated quantity, type, and thickness of free product observed or measured in wells, boreholes and excavations;

     (C) The type of free product recovery system used;

     (D) The location of any on-site or off-site discharge during the recovery operation;

     (E) The type of treatment applied to, and the effluent quality expected from, any discharge;

     (F) The steps taken and planned to obtain necessary permits for any discharge;

     (G) Disposition of recovered free product; and

     (viii) Any other information required by the department.

     (((5) State)) (6) Remedial investigation and feasibility study.

     (a) If the initial cleanup actions taken at an UST site do not achieve cleanup levels throughout the site, a remedial investigation and feasibility study may need to be conducted in accordance with WAC 173-340-350. The scope of a ((state)) remedial investigation and feasibility study ((under this chapter)) will depend on the informational needs at ((a specific site and will vary from site to site to avoid the collection of unnecessary information.      For sites with UST releases, a state remedial investigation and feasibility study must at a minimum address the elements in WAC 173-340-350 (6)(a), (b), (c)(ii), (c)(iii), (c)(v) through (c)(vii) and (e).      The department may require additional information when needed to select a cleanup action)) the site.      UST owners and operators shall conduct a ((state)) remedial investigation and feasibility study for sites where the following conditions exist:

     (i) There is evidence that the release has caused hazardous substances to be present in the ground water in excess of the ground water standards ((promulgated)) adopted under chapter 90.48 RCW or cleanup levels in WAC 173-340-720 (Table 720-1);

     (ii) Free product is found; or

     (iii) Where otherwise required by the department.

     (b) UST owners and UST operators shall submit the information collected for the ((state)) remedial investigation/feasibility study to the department as soon as practicable.      The information may be included with other reports submitted under this section.

     (((6))) (c) If the department determines, based on the results of the remedial investigation/feasibility study or other information, that additional remedial action is required, the department may require the UST owner or the UST operator to submit engineering documents as described in WAC 173-340-400.

     (7) Cleanup actions. Unless directed to do otherwise by the department, cleanup actions performed by UST owners or UST operators shall comply with the cleanup standards((,)) described in WAC 173-340-700 through ((173-340-750)) 173-340-760 and the requirements for the selection of cleanup actions((,)) in WAC ((173-340-360)) 173-340-350 through 173-340-390.

     (8) Independent cleanup actions.      In addition to work performed under subsections (2) through (5), and (7) of this section, UST owners or UST operators performing independent cleanup actions shall:

     (a) Notify the department of their intention to begin cleanup.      This can be included with other reports under this section;

     (b) Comply with any conditions imposed by the department to assure adequate protection of human health and the environment; and

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

[Statutory Authority: Chapter 70.105D RCW.      91-04-019, § 173-340-450, filed 1/28/91, effective 2/28/91.]

(1) Policy.      It is the responsibility of each and every liable person to conduct remedial action so that sites are cleaned up well and expeditiously where a release or threatened release of a hazardous substance requires remedial action.      Potentially liable persons are encouraged to initiate discussions and negotiations with the department and the office of the attorney general ((which)) that may lead to an agreement on the remedial action to be conducted with the state of Washington.      The department may provide informal advice and assistance on the development of proposals for remedial action, as provided by WAC ((173-340-130)) 173-340-515.      Any approval by the department or the state of remedial action shall occur by one of the means described in subsections (2) and (3) of this section.

     (2) Actions initiated by the potentially liable person.      Potentially liable persons may initiate a remedial action, as follows:

     (a) A person may initiate negotiations for a consent decree by submitting a letter under WAC 173-340-520(1).

     (b) A person may request an agreed order by submitting a letter under WAC 173-340-530.

     (3) Action initiated by the department.      The department may initiate remedial action by:

     (a) Issuing a letter inviting negotiations on a consent decree under WAC 173-340-520(2); or

     (b) Requesting an agreed order under WAC 173-340-530; or

     (c) Issuing an enforcement order under WAC 173-340-540.

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

     (((5) Independent remedial action.      Nothing in this chapter shall preclude potentially liable persons from taking independent remedial action without oversight or approval from the department at sites not in discussions or negotiations for, or under, an order or decree.      A potentially liable person may not take independent remedial actions after commencing discussions or negotiations for an agreed order or consent decree unless:

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

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

     The department will use the appropriate requirements contained herein to evaluate the adequacy of any independent remedial action performed.      Persons performing independent remedial actions do so at their own risk and may be required to take additional remedial actions if the department deems such actions necessary.      In such circumstances, the department reserves all of its rights to take actions authorized by law.))

[Statutory Authority: Chapter 70.105D RCW.      90-08-086, § 173-340-510, filed 4/3/90, effective 5/4/90.]

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

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

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

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

     (3) Standards.

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

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

     (c) If a restrictive covenant is used, it must meet the requirements specified in WAC 173-340-440(9). When specific documents are required in WAC 173-340-350, 173-340-355, 173-340-357, 173-340-360, 173-340-380, 173-340-400, 173-340-410, 173-340-430, 173-340-450, 173-340-700 through 173-340-760, and 173-340-810 through 173-340-850, the documents prepared for independent remedial actions need not be the same in title or format. Other documents can be used in place of the documents specified in these sections as long as sufficient information is included to serve the same purpose.

     (4) Reports to the department.

     (a) Any person who conducts an independent interim action or cleanup action for a release that is required to be reported under WAC 173-340-300 shall submit a written report to the department within ninety days of the completion of the action. For the purposes of this section, the department will consider an interim action or cleanup action complete if no remedial action other than compliance monitoring has occurred at the site for ninety days. This does not preclude earlier reporting of such actions or reporting of site investigations. See WAC 173-340-450 for additional requirements for reporting independent remedial actions for releases from underground storage tanks.

     (b) The report shall include the information in WAC 173-340-300(2) if not already reported, and the results of all site investigations, cleanup actions and compliance monitoring planned or under-way. The department may require additional reports on the work conducted.

     (c) If the independent interim action or cleanup action is completed within ninety days of discovery, a single written report may be submitted on both the release and the action taken. The report shall contain the information specified in provision (b) of this subsection and shall be submitted within ninety days of completion of the remedial action.

     (d) The department shall publish in the Site Register a notice of all reports on independent interim actions and cleanup actions received under this section. If deemed necessary, the department shall also conduct an initial investigation under WAC 173-340-310. Neither submission of information on an independent remedial action nor any response by the department shall release the person submitting the report or any other person from liability. The department reserves all rights to pursue any subsequent action it deems appropriate.

     (5) Technical consultations. The department may provide informal advice and assistance (technical consultations) on the administrative and technical requirements of this chapter to persons conducting or otherwise interested in an independent remedial action. Such advice or assistance is advisory only and not binding on the department. This advice may include written opinions. These written opinions shall be limited to whether the independent remedial actions or proposals for those actions meet the substantive requirements of this chapter and/or whether the department believes further remedial action is necessary at the facility. Upon completing the review of an independent remedial action report or proposal that is voluntarily submitted for ecology's review and opinion, the department will:

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

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

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

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

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

[]

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

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

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

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

     (iii) The facility, including location and boundaries;

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

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

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

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

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

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

     (b) The letter may include:

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

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

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

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

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

     (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 ((state)) remedial investigation/feasibility study should generally include the level of information needed for a site hazard assessment, if not already done by the department, so that the department and the public can evaluate the proposed scope of work and relative priority of the site.

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

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

     (i) Request additional information;

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

     (iii) Provide written reasons for denying the request.

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

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

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

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

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

     (v) Any additional information requested by the department.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

     (b) Contents of letter.      The letter shall:

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

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

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

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

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

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

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

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

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

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

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

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

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

[Statutory Authority: Chapter 70.105D RCW.      90-08-086, § 173-340-520, filed 4/3/90, effective 5/4/90.]

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

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

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

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

     (ii) The facility, including location and boundaries;

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

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

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

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

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

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

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

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

     (a) Request additional information;

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

     (c) Provide written reasons for denying the request.

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

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

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

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

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

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

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

     (((6))) (8) Public participation.

     (a) When issuing an agreed order, the department shall provide appropriate public participation opportunities under WAC 173-340-600.      ((If the agreed order is for a routine cleanup action and any person requests judicial review, then the applicable consent decree procedures under WAC 173-340-520 will be initiated.

     (7) Revisions.)) (b) If the department and the potentially liable person signing the order agree to substantial changes in the order, the department shall provide appropriate additional public notice and opportunity to comment.

[Statutory Authority: Chapter 70.105D RCW.      96-04-010 (Order 94-37), § 173-340-530, filed 1/26/96, effective 2/26/96; 90-08-086, § 173-340-530, filed 4/3/90, effective 5/4/90.]

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

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

     (a) A remedial action conducted by the department;

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

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

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

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

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

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

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

     (3) Public notice requirements. This subsection shall be used to determine if reasonable steps have been taken to provide 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 at least fifteen days before beginning construction of the interim action or cleanup action to the last known address of the following persons:

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

     (ii) The local jurisdictional health department/district;

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

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

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

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

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

     (4) Technical standards and evaluation criteria. This subsection shall be used to determine if the remedial actions have been conducted substantially equivalent with the technical standards and evaluation criteria contained in this chapter. For the purposes of this section, remedial actions shall be deemed to comply with subsection (2)(c)(iv) of this section if they have been conducted substantially equivalent with the technical standards and evaluation criteria contained in the following sections, where applicable. Except for a restrictive covenant under WAC 173-340-440, where documents are required by the following sections, the documents prepared need not be the same in title or format. Other documents can be used in place of the documents specified in these sections as long as sufficient information is included in the record to serve the same purpose. When using 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);

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

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

     (d) WAC 173-340-360 (Selection of cleanup actions);

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

     (f) WAC 173-340-400 (Cleanup actions);

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

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

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

     (j) WAC 173-340-450 (Releases from underground storage tanks);

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

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

[]

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

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

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

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

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

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

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

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

     (c) Program support costs are the costs of administrative time spent by site managers and other staff who work directly on sites and a portion of the cost of management, clerical, policy, computer, financial, 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 Site Register.      The calculation and source documents used in any revision shall be audited by either the state auditor's office or a private accounting firm.      Audit results shall be available for public review.      This multiplier shall not exceed 1.0 (one).

     (d) The citizen technical advisor cost multiplier is based on the direct costs and agency support costs associated with the citizen technical advisor office within the department.

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

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

     (5) ((Private rights of action.      The purpose of this subsection is to facilitate private rights of action and minimize department staff involvement in these actions by providing guidance to potentially liable persons and the court on what remedial actions the department would consider the substantial equivalent of a department-conducted or department-supervised remedial action.      In determining substantial equivalence, the department anticipates the requirements in this section will be evaluated as a whole and that a claim would not be disallowed due to omissions that do not diminish the overall effectiveness of the remedial action.      For the purposes of this section, the department would consider the following remedial actions to be the substantial equivalent of a department-conducted or department-supervised remedial action.

     (a) A remedial action conducted by the department;

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

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

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

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

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

     (A) Except for emergency remedial actions, written notification has been mailed at least fifteen days prior to beginning construction of the interim action or cleanup action to the last known address of the following persons: The department which shall publish a summary of the notice in the Site Register; the local jurisdictional health department/district; the town, city or county with land use jurisdiction; the land owners identified by the tax assessor at the time the action is commenced for that portion of the facility where the interim action or cleanup action is being conducted; and persons potentially liable under RCW 70.105D.040 known to the person conducting the interim action or cleanup action.      In identifying other potentially liable persons who are to be noticed under this provision, the person doing the remedial action need only make a reasonable effort to review information currently readily available.      Where the interim action or cleanup action is complex, notification prior to beginning detailed design is recommended but not required.      For emergency remedial actions, written notice should be provided as soon as practicable;

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

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

     (iv) The remedial actions have been conducted substantially equivalent with the technical standards and evaluation criteria contained in the following sections, where applicable.      Where documents are required by the following sections, the documents prepared need not be the same in title or format.      Other documents can be used in place of the documents specified in these sections as long as sufficient information is included in the record to serve the same purpose.      When using these sections to determine substantial equivalence it should be recognized that there are often many alternative methods for cleanup of a facility that would comply with these provisions.      In applying these sections, reference should be made to the other applicable sections of this chapter, with particular attention to WAC 173-340-130 (Administrative principles), WAC 173-340-200 (Definitions) and WAC 173-340-210 (Usage):

     (A) WAC 173-340-350 (State remedial investigation and feasibility study);

     (B) WAC 173-340-360 (Selection of cleanup actions);

     (C) WAC 173-340-400 (Cleanup actions);

     (D) WAC 173-340-410 (Compliance monitoring requirements);

     (E) WAC 173-340-430 (Interim actions);

     (F) WAC 173-340-440 (Institutional controls);

     (G) WAC 173-340-450 (Releases from underground storage tanks);

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

     (I) WAC 173-340-810 through WAC 173-340-850 (General provisions); and

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

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

     (((7))) (6) Independent remedial actions.

     (a) ((The department has established a mechanism to recover the direct and support costs associated with the review and evaluation of independent remedial action reports submitted under WAC 173-340-300(4).      This enables the department to evaluate independent cleanups and facilitates the return of property to productive use.      Participation in this program is voluntary, and ecology will recover only the costs of review under the independent remedial action program from those persons requesting the department's review of an independent remedial action report.      Ecology shall recover its costs of providing the review of independent remedial action reports, including:

     (i) Providing a written determination regarding the adequacy of the remedial actions performed at a site;

     (ii) Providing a written determination regarding the adequacy of the remedial actions performed at a site and removing sites or portions of sites from the hazardous sites list if the department has sufficient information to show that the independent remedial efforts are appropriate to characterize and address contamination at the site, as provided for in WAC 173-340-330 (4)(b); or

     (iii) Providing a written determination describing the deficiencies with the report or remedial action conducted at the site.

     (b) The mechanism used to recover ecology's costs shall be evaluated in June 1994, and, if necessary, adjusted.      The mechanism used to recover ecology's costs of review shall be evaluated every other year thereafter.

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

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

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

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

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

     (7) Prepayment of costs.

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

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

[Statutory Authority: RCW 70.105D.030 (1)(f), 70.105D.040(2) and SB 5404.      93-24-064, § 173-340-550, filed 11/24/93, effective 12/25/93.      Statutory Authority: Chapter 70.105D RCW.      90-08-086, § 173-340-550, filed 4/3/90, effective 5/4/90.]

(1) Purpose.      Public participation is an integral part of the department's responsibilities under the Model Toxics Control Act.      The department's goal is to provide the public with timely information and meaningful opportunities for participation ((which)) that are commensurate with each site.      The department will meet this goal through a public participation program that includes: The early planning and development of a site-specific public participation plan; the provision of public notices; a site register; public meetings or hearings; and the participation of regional citizens' advisory committees.

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

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

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

     (b) Public concerns about the facility;

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

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

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

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

     (g) Any other factors as determined by the department.

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

     (a) Request for notice.      Notice shall be mailed to persons who have made a timely request.      A request for notice is timely if received ((prior to)) before or during the public comment period for the current phase of remedial action at the facility.      However, the receipt of a request for notice shall not require the department to extend the comment period associated with the notice.

     (b) Mail.      Notice shall be mailed to persons who reside within the potentially affected vicinity of the proposed action.      The potentially affected vicinity shall include all property ((adjoining)) within and contiguous to the site and any other area that the department determines to be directly affected by the proposed action.

     (c) Newspaper publication.      Notice of the proposed action shall be published in the newspaper of largest circulation in the city or county of the proposed action, by one or more of the following methods: Display ad; legal notice; or any other appropriate format, as determined by the department.

     (d) Other news media.      Notice of the proposed action shall be mailed to any other news media ((which)) that the department determines to be appropriate.      The department may consider how a medium compares with the newspaper of largest circulation in terms of: Audience reached; timeliness; adequacy in conveying the particular information in the notice; cost; or other relevant factors.

     (e) Comment periods.      All public notices shall indicate the public comment period on the proposed action.      Unless stated otherwise, comment periods shall be for thirty days at a minimum. The department may extend the public comment period, as appropriate.

     (f) Combining public comment requirements.      Whenever reasonable, the department shall consolidate public notice and opportunities for public comment under this chapter with public notice and comment requirements under other laws and regulations.

     (((4))) (g) Site-specific risk assessment. For public notices describing cleanup plans that use site-specific risk assessment or would restrict future site or resource use, the public notice shall specifically identify the restrictions and invite comments on these elements of the cleanup plan. This notice shall also include a statement indicating the availability of public participation grants and of the department's Citizen Technical Advisor for providing technical assistance to citizens on site-specific risk assessment and other issues related to site remediation.

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

     (((5))) (6) Additional methods.      In addition to "public notice" required by chapter 70.105D RCW, or this chapter, the department may use any of the following methods to provide information to the public:

     (a) Press releases;

     (b) Fact sheets;

     (c) Public meetings;

     (d) Publications;

     (e) Personal contact by department employees;

     (f) Posting signs at the facility;

     (g) Notice in the Site Register;

     (h) Any other methods as determined by the department.

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

     (a) Determinations of no further action under WAC 173-340-320;

     (b) Results of site hazard rankings;

     (c) Availability of annual and biennial reports;

     (d) Issuance of enforcement orders, agreed orders, or proposed consent decrees;

     (e) Public meetings or hearings;

     (f) Scoping notice of department-conducted ((state)) remedial investigation/feasibility study;

     (g) Availability of ((state)) remedial investigation/feasibility study reports and draft and final cleanup plans;

     (h) Change in site status or placing sites on or removing sites from the hazardous sites list under WAC 173-340-330;

     (i) Availability of engineering design reports under WAC 173-340-400;

     (j) Schedules developed under WAC 173-340-140;

     (k) Reports of independent cleanup actions received under WAC 173-340-300;

     (l) ((Commencement)) Beginning of negotiations or discussions under WAC 173-340-520 and 173-340-530;

     (m) Deadline extensions or missed deadlines under WAC 173-340-140; ((and))

     (n) A summary of any notices received under WAC 173-340-545 for cleanup actions and interim actions being conducted where a private right of action is anticipated;

     (o) A list of available department publications, including guidance, technical reports and policies pertinent to remedial actions;

     (p) The results of department review of reports on independent remedial actions submitted under WAC 173-340-515; and

     (q) Any other notice that the department ((deems)) considers appropriate for inclusion.

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

     (((8))) (9) Public participation plans.

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

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

     (c) Plan development.      The department shall develop the plan, or work with the potentially liable person to develop the plan.      If a plan already exists for a facility, the department shall consider whether the existing plan is still appropriate or whether the plan should be amended.      For example, a plan originally developed to address a ((state)) remedial investigation/feasibility study may need to be amended to address implementation phases.

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

     (e) The department shall determine if the variables proposed to be modified in a site-specific risk assessment or alternative reasonable maximum exposure scenario may affect the significant public concerns regarding future land uses and exposure scenarios. If the department finds that those concerns may be affected, then ecology shall assure appropriate public involvement and comment opportunities will occur as identified in the public participation plan.

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

     The final public participation plan may become part of the agreed order or consent decree.

     (((f))) (g) Contents.      The public participation plan shall include the following:

     (i) Applicable public notice requirements and how these will be met, including: When public notice will occur; the length of the comment periods accompanying each notice; the potentially affected vicinity and any other areas to be provided notice, to the extent known.

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

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

     (iv) Methods of addressing the public's concerns and conveying information to the public.      These may include any of the methods listed in subsection (((5))) (6) of this section.

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

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

     (vii) Citizen technical advisor: A statement indicating the availability of the department's citizen technical advisor for providing technical assistance to citizens on issues related to the investigation and cleanup of the site.

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

     (((g))) (h) Implementation.      The department shall retain approval authority over the actions taken by a potentially liable person to implement the plan.

     (((9))) (10) Consent decrees.      In addition to any other applicable public participation requirements, the following shall be required for consent decrees.

     (a) Public participation plan. A ((public participation)) plan ((which meets)) meeting the requirements of subsection (((8))) (9) of this section shall be developed when required by subsection (((8))) (9)(d) of this section.

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

     (c) Notice of proposed decree.      The department shall provide or require public notice of proposed consent decree.      The notice may be combined with notice of other documents under this chapter, such as a cleanup action plan, or under other laws.      The notice shall briefly:

     (i) Identify and generally describe the facility;

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

     (iii) Generally describe the remedial action proposed in the proposed consent decree, including substantive permit requirements and institutional controls;

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

     (v) Invite the public to comment at the public hearing (if applicable) or in writing.      The public comment period shall run for at least thirty days from the date of the issuance of the notice.

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

     (e) Revisions.      If the state and the potentially liable person agree to substantial changes to the proposed consent decree, the department shall provide additional public notice and opportunity to comment.

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

     (((10))) (11) Agreed orders.      In addition to any other applicable public participation requirements, the following shall be required for agreed orders under WAC 173-340-530.

     (a) Public participation plan.      A plan meeting the requirements of subsection (((8))) (9) of this section shall be developed when required by subsection (((8))) (9)(d) of this section.

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

     (c) Notice of agreed orders.      Public notice shall be provided by the department for any agreed order.      For all agreed orders, notice shall be mailed no later than three days after the issuance of the agreed order.      For all agreed orders ((covering a state remedial investigation/feasibility study)), the comment period shall be at least thirty days ((and shall be completed before the agreed order becomes effective)).      ((For other agreed orders,)) The agreed order may be effective before the comment period is over, unless the department determines it is in the public interest to complete the public comment period ((prior to)) before the effective date of the agreed order.      The department may determine that it is in the public interest to provide public notice ((prior to)) before the effective date of any agreed order or to hold a public meeting or hearing on the agreed order.      ((This)) Notice of agreed orders shall briefly:

     (i) Identify and generally describe the facility;

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

     (iii) Generally describe the remedial action proposed in the proposed agreed order, including substantive permit requirements and institutional controls; and

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

     (d) Revisions.      If the department and the potentially liable person agree to substantial changes to the proposed agreed order, the department shall provide additional public notice and opportunity to comment.

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

     (((11))) (12) Enforcement orders.      In addition to any other applicable public participation requirements, the department shall provide public notice of all enforcement orders.      Except in the case of emergencies, notice shall be mailed no later than three days after the date of the issuance of the order.      In emergencies, notice shall be mailed no later than ten days after the issuance of the order.

     (a) Contents of notice.      All notices shall briefly:

     (i) Identify and generally describe the facility;

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

     (iii) Generally describe the terms of the proposed order, including substantive permit requirements and institutional controls; and

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

     (b) The department may amend the order on the basis of public comments.      The department shall provide additional public notice and opportunity to comment if the order is substantially changed.

     (((12) State)) (13) Remedial investigation/feasibility study.      In addition to any other applicable public participation requirements, the following shall be required during a ((state)) remedial investigation/feasibility study.

     (a) Scoping.      When the department elects to perform a ((state)) remedial investigation/feasibility study, the department shall provide public notice and an opportunity to comment on the scope of the ((state)) remedial investigation/feasibility study ((will be provided)).

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

     (c) Report.      The department shall provide or require public notice of ((state)) remedial investigation/feasibility study reports prepared under WAC 173-340-350.      This public notice may be combined with public notice of the draft cleanup action plan.      At a minimum, public notice shall briefly:

     (i) Describe the site and ((state)) remedial investigation/feasibility study results;

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

     (iii) Invite public comment on the report.      The public comment period shall extend for at least thirty days from the date of mailing of the notice.

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

     (a) Provide a notice of availability of draft or final cleanup action plans and a brief description of the proposed or selected alternative in the Site Register;

     (b) Provide public notice of the draft cleanup action plan.      A notice of a draft cleanup plan may be combined with notice on the ((state)) remedial investigation/feasibility study.      Notice of a draft cleanup action plan may be combined with notice on a draft consent decree or on an order.      At a minimum, public notice shall briefly:

     (i) Describe the site;

     (ii) Identify the department's proposed cleanup action and provide an explanation for its selection;

     (iii) Invite public comment on the draft cleanup action plan.      The public comment period shall run for at least thirty days from the date of ((issuance)) publication of the public notice.

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

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

     (a) Public notice and opportunity to comment on any plans prepared under WAC 173-340-400 that represent a substantial change from the cleanup action plan.

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

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

     (a) Public notice shall be provided for any proposed routine cleanup or interim actions ((under WAC 173-340-130 or 173-340-430)).      This public notice shall be combined with public notice of an order or settlement whenever practicable.

     (b) At a minimum, public notice shall briefly:

     (i) Describe the site;

     (ii) Identify the proposed action, including proposed permit exemptions and institutional controls;

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

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

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

     (vi) Invite public comment on the routine cleanup or interim action.      The public comment period shall extend for at least thirty days from the date of the mailing of notice.

     (17) Public participation grants. RCW 70.105D.070(4) requires funds be allocated for public participation grants to persons, including groups who may be adversely affected by a release or threatened release of a hazardous substance. Persons interested in applying for such grants are encouraged to contact the department to learn about available funding, grant application procedures and deadlines. 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.

[Statutory Authority: Chapter 70.105D RCW.      90-08-086, § 173-340-600, filed 4/3/90, effective 5/4/90.]

(1) The department shall establish regional citizens' advisory committees as part of a public participation program.      The regional citizens' advisory committees are intended to promote meaningful and effective public involvement in the department's remedial action program under chapter 70.105D RCW.      The committees will advise the department as to the concerns of citizens locally and regionally regarding the remedial actions within each committee's region, with emphasis on issues that affect the region as a whole, rather than site-specific concerns.

     (2) Location.      There shall be a regional citizens' advisory committee representing each geographic region of the state served by a regional office of the department.

     (3) Membership.      At any time, each committee shall have no fewer than five and no more than twelve members.      The director shall, no later than July 1, 1990, appoint five members to each committee to represent citizens' interests in the region.      These members shall serve three-year terms that may be renewed at the director's discretion.      These members should represent citizen interests in the region.

     (a) The director may appoint up to seven additional members to represent communities that may be affected by the remedial actions within each region.      These members shall serve two-year terms that may be renewed at the director's discretion.

     (b) At no time shall more than twenty-five percent of the membership of any committee consist of persons who are elected or appointed public officials or their representatives.

     (c) The department shall advise the public as to whether any vacancies exist on the committees, and shall accept applications from interested citizens.

     (d) The following persons shall not be eligible to serve on any committee:

     (i) Persons whom the department has found are potentially liable persons under WAC 173-340-500 with regard to any facility that is currently the subject of department investigative, remedial or enforcement actions, not including compliance monitoring;

     (ii) Agents or employees of such potentially liable persons as described in (d)(i) of this subsection; and

     (iii) Agents or employees of the department.

     (e) A member shall refrain from participating in a committee matter if that member for any reason cannot act fairly and in the public interest with regard to that matter.

     (f) The director may dismiss a member for cause in accordance with the terms of the regional citizens' advisory committee charter.

     (4) Meetings.      The committees shall meet at least twice a year at the regional offices or elsewhere as agreed upon by a committee and the department.      Appropriate department staff may attend these meetings.      The department shall brief the committees on the program's major planned and ongoing activities for the year.

     (a) The department and the committees may agree to additional meetings.

     (b) Each committee will designate one of its members to serve as chair.      The committee chairs shall meet every year with the program manager or his/her designee.

     (c) All committee meetings shall be open to the public.      The department shall inform the public of committee meetings.

     (5) Resources ((to be)) allocated to the committees.

     (a) The department shall determine, after consulting with the committees, the amount of staff time and other department resources that shall be available to the committees for each biennium.

     (b) The department shall designate staff to work with the committees.

     (c) Members shall be reimbursed for travel expenses (as provided for in chapter 43.03 RCW) for any meetings approved by the department.

     (6) Responsibilities.      The committees are directed to:

     (a) Meet at least twice annually;

     (b) Inform citizens within each region as to the existence of the committees and their availability as a resource;

     (c) Review the department's biennial program priorities, and advise the department of citizen concerns regarding the program priorities;

     (d) Advise the department ((on a timely basis of citizen concerns regarding investigative or remedial activities within each region, and where possible, suggest ways in which the department can address those concerns)) of community concerns about the cleanup program's activities and develop proposals for addressing these concerns. Committees may use issues at specific sites as a foundation for understanding regional issues;

     (e) Annually prepare a brief report to the department describing:

     (i) Major citizen concerns that have been brought to the committee's attention during the past year;

     (ii) Any committee proposals or recommendations to address these concerns;

     (iii) The committee's plans for the coming year; and

     (iv) Any other information or issues which the committee believes appropriate for inclusion.

     (((7))) (f) The committees are encouraged to work with the department and the public to develop additional committee goals or responsibilities.

[Statutory Authority: Chapter 70.105D RCW.      90-08-086, § 173-340-610, filed 4/3/90, effective 5/4/90.]

(1) Purpose.      This section provides an overview of the methods for establishing cleanup standards that apply to a release or threatened release of a hazardous substance at a site.      If there are any inconsistencies between this section and any specifically referenced section, the referenced section shall govern.

     (2) ((Cleanup standards versus selection of cleanup actions.)) Explanation of term "cleanup level." A cleanup level is the concentration of a hazardous substance in soil, water, air or sediment that is determined to be protective of human health and the environment under specified exposure conditions. Cleanup levels, in combination with points of compliance, typically define the area or volume of soil, water, air or sediment at a site that must be addressed by the cleanup action.

     (3) Explanation of term "cleanup standards." Cleanup standards consist of the following:

     (a) Cleanup levels for hazardous substances present at the site;

     (b) The location where these cleanup levels must be met (point of compliance); and

     (c) Other regulatory requirements that apply to the site because of the type of action and/or location of the site ("applicable state and federal laws").

     (4) Relationship between cleanup standards and cleanup 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 provides uniform methods state-wide for identifying cleanup standards and requires that all cleanups under the act meet these standards.      The actual degree of cleanup may vary from site to site and will be determined by the cleanup action alternative selected under WAC ((173-340-360)) 173-340-350 through 173-340-390.      ((Establishing cleanup standards for individual sites requires the specification of the following:

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

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

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

     (b) For most sites, there are several cleanup technologies or combinations of cleanup technologies ("cleanup action alternatives") that may be used to comply with cleanup standards at individual sites.      Other parts of this rule govern the process for planning and deciding on the cleanup action to be taken at a site.      ((For example,)) This may include establishing "remediation levels" or the concentrations of hazardous substances above which a particular cleanup technology will be applied. See WAC 173-340-350 (((State remedial investigation and feasibility study) (RI/FS) specifies the studies that are prepared to define the nature and extent of contamination ("RI") and to identify and evaluate cleanup action alternatives ("FS").      WAC 173-340-360 (Selection of cleanup actions) specifies the criteria for selecting the preferred alternative)) through 173-340-390. WAC 173-340-355 contains detailed information on establishing remediation levels.      WAC 173-340-410 specifies the monitoring required to ((assure)) ensure that the remedy is effective.

     (c) ((The department recognizes that cleanup actions selected under WAC 173-340-360 may involve)) Where a cleanup action involves containment of soils with hazardous substances((.      In these cases)) above cleanup levels, the cleanup action may be determined to comply with cleanup standards, provided the compliance monitoring program is designed to ensure the long-term integrity of the containment system, and the other requirements for containment ((technologies in WAC 173-340-360(8))) in this chapter are met.

     (((3) Three basic methods for establishing cleanup levels.)) (5) Methods for setting cleanup levels. The first step in setting cleanup levels is to 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.      These rules provide three approaches for establishing cleanup levels:

     (a) Method A: ARARs and Tables.      On some sites, the cleanup action may be routine (WAC ((173-340-130)) 173-340-200) or may involve relatively few hazardous substances.      Under Method A, cleanup levels ((for hazardous substances are established)) at these sites are set at concentrations at least as stringent as concentrations specified in applicable state and federal laws and Tables ((1, 2, or 3)) 720-1, 740-1, and 745-1 of this chapter.

     Method A cleanup levels for hazardous substances not addressed under applicable state and federal laws or Tables ((1, 2, or 3)) 720-1, 740-1, and 745-1 are established at concentrations which do not exceed the natural background concentration or the practical quantitation limit for the substance in question.

     For soil contamination, the Method A cleanup level must not result in any significant adverse effects on the protection and propagation of terrestrial ecological receptors. This determination must be made in accordance with the requirements and procedures specified in 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. If the Method A cleanup level is not protective of terrestrial ecological receptors, then a Method B or Method C soil cleanup level, as appropriate for the site, must be established.

     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: ((Standard)) Universal method.      Method B is the ((standard)) universal method for determining cleanup levels for ((ground water, surface water, soil, and air)) all media at all sites.      Under Method B, cleanup levels for individual hazardous substances are established using applicable state and federal laws ((or)) and the risk equations and other requirements specified in WAC 173-340-720 through ((173-340-750)) 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 x 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 ((and the environment)) (that is, hazard quotient of one (1) or less) and no significant adverse effects on the propagation of aquatic and terrestrial organisms.

     Where a hazardous waste site involves multiple hazardous substances and/or multiple pathways of exposure, then standard and modified Method B cleanup levels for individual substances must be ((modified)) adjusted downward for additive health effects in accordance with the procedures in WAC 173-340-708((.      Under this method,)) if the total excess lifetime cancer risk for a site ((shall not)) exceeds one in one hundred thousand (1 x 10^-5) ((and)) or the hazard index for substances with similar noncarcinogenic toxic effects ((shall not)) exceeds one (1).

     For soil contamination, the Method B cleanup level must not result in any significant adverse effects on the protection and propagation of terrestrial ecological receptors. This determination must be made in accordance with the requirements and procedures specified in 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 ((the)) Method A or B may be impossible to achieve or may cause greater environmental harm.      In those situations, Method C cleanup levels for individual hazardous substances may be established ((on the basis of applicable state and federal laws and a site-specific risk assessment)) for surface water, ground water, and air.      Method C industrial soil and air cleanup levels may also be established at industrial properties ((which)) that meet the criteria in WAC 173-340-745.

     Under Method C, cleanup levels for individual hazardous substances are established using applicable state and federal laws and the risk equations and other requirements specified in WAC 173-340-720 through 173-340-760. 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 (1 x 10^-5).

     For individual noncarcinogenic substances, both standard and modified Method C cleanup levels are set at concentrations which are anticipated to result in no acute or chronic toxic effects on human health (that is, hazard quotient of one (1) or less) and no significant adverse effects on the protection and propagation of aquatic and terrestrial organisms.

     Where a hazardous waste site involves multiple hazardous substances and/or multiple pathways of exposure, then both standard and modified Method C cleanup levels for individual substances must be ((modified)) adjusted downward for additive health effects in accordance with the procedures in WAC 173-340-708((.      Under this method,)) if the total excess lifetime cancer risk for a site ((shall not)) exceeds one in one hundred thousand (1 x 10^-5) ((and)) or the hazard index for substances with similar noncarcinogenic toxic effects ((shall not)) exceeds one (1).

     (((4) Additional)) For soil contamination, the Method C cleanup level must not result in any significant adverse effects on the protection and propagation of terrestrial ecological receptors. This determination must be made in accordance with the requirements and procedures specified in 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 ((basic)) methods.      Some of these requirements, such as the identification of applicable state and federal laws, describe analyses used along with Methods A, B or C in order to set cleanup levels for particular substances at a site.      Others describe the technical procedures to be used.

     (a) Applicable state and federal laws.      RCW 70.105D.030 (2)(d) requires the cleanup standards in these rules to be "at least as stringent as all applicable state and federal laws." In addition to establishing minimum requirements for cleanup standards, applicable state and federal laws may also impose certain technical and procedural requirements for performing cleanup actions.      These requirements are described in WAC 173-340-710 and are similar to the "ARAR" (applicable, relevant and appropriate requirements) approach of the federal superfund law. Sites that are cleaned up under an order or decree may be exempt from obtaining a permit under certain other laws but they must still meet the substantive requirements of these other laws. (See WAC 173-340-710(9).)

     (b) Cross-media contamination.      In some situations, migration of hazardous substances from one medium may cause contamination in a second media.      For example, the release of hazardous substances in soil may cause ground water contamination.      Under Methods A, B, and C, cleanup levels must be established at concentrations ((which)) that prevent violations of cleanup levels for other media ((following implementation of the cleanup action)).

     (c) Risk assessment procedures.      The analyses performed under Methods B and C use several factors for defining cleanup levels for carcinogens and noncarcinogens.      The individual factors and procedures for modifying these factors based on ((new scientific)) site-specific information are specified in WAC 173-340-708 and 173-340-720 through 173-340-750.      WAC 173-340-708 also provides rules for use of indicator hazardous substances. The standards for review of new scientific information are described in WAC 173-340-702 (14), (15) and (16).

     (d) Natural background and analytical considerations.      ((Cleanup levels shall not exceed concentrations established under methods A, B, or C except where the natural background concentration is greater than the cleanup level established under those methods.      In such)) In some cases, cleanup levels calculated using the methods specified in this chapter are less than natural background levels or levels that can be reliably measured. In those situations, the cleanup level shall be established at a concentration equal to the practical quantitation limit or natural background concentration, whichever is higher. See WAC 173-340-707 and 173-340-709 for additional information.

     (((5) Threshold criteria for all cleanup actions.      WAC 173-340-360 specifies that all cleanup actions conducted under this chapter shall protect human health and the environment, comply with cleanup standards and applicable state and federal laws, and provide for compliance monitoring.      These are the threshold criteria and all cleanup actions must meet these criteria regardless of other factors such as cost or technical limitations.

     (6) Measuring compliance.)) (7) Procedures for demonstrating compliance with cleanup standards.      Setting cleanup standards also involves being able to demonstrate that they have been met.      This involves specifying where on the site the cleanup levels must be met ("points of compliance"), how long it takes for a site to meet cleanup levels ("restoration time frame"), and conducting sufficient monitoring to demonstrate that the cleanup standards have been met and will continue to be met in the future.      The provisions for establishing points of compliance are in WAC 173-340-720 through 173-340-750.      The provisions for establishing restoration time frames are in WAC 173-340-360.      The compliance monitoring plan prepared under WAC 173-340-410 specifies precisely how these are measured for each site.      ((Where cleanup levels are below the practical quantitation limit, compliance with cleanup standards will be based upon the practical quantitation limit.

     (7) Administrative principles for cleanup standards.

     (a) Remedial actions under this chapter shall be conducted in a manner that is consistent with this section.      This section shall be used in combination with WAC 173-340-130, the more specific sections in Part VII of this chapter and WAC 173-340-360.

     (b) Establishing cleanup standards and selecting an appropriate cleanup action involves many technical and public policy decisions.      This chapter is intended to constrain the range of decisions needed to be made on individual sites to promote expeditious cleanups.

     (c) The act contains policies which state, in part, each person has a fundamental and inalienable right to a healthful environment and it is essential that sites be cleaned up well.      Consistent with these policies, cleanup standards under this chapter shall be established which provide conservative estimates of human health and environmental risks which protect susceptible individuals as well as the general population.

     (d) Cleanup standards under this chapter shall be established which protect human health and the environment for current and potential future site and resource uses.

     (e) Cleanup actions that achieve cleanup levels under methods A, B or C (as applicable) and comply with applicable state and federal laws shall be presumed to be protective of human health and the environment.

     (f) Except as provided for in applicable state and federal laws, cost shall not be a factor in determining what cleanup level is protective of human health and the environment.      In addition, where specifically provided for in this chapter, cost may be appropriate for certain other determinations related to cleanup standards such as point of compliance.      Cost shall, however, be considered when selecting an appropriate cleanup action.

     (g) At most sites, there is more than one hazardous substance and more than one pathway for hazardous substances to get into the environment.      For many sites there is more than one technology that could address each of these.      When evaluating cleanup action alternatives it is appropriate to consider a representative range of technologies that could address each of these as well as different combinations of these technologies to accomplish the overall site cleanup.

     (h) The cleanup of a particular media of a site will often affect other media at the site.      These cross-media impacts shall be considered when establishing cleanup standards and selecting a cleanup action.      Cleanup actions conducted under this chapter shall use appropriate engineering controls or other measures to minimize these cross-media impacts.

     (i) In general, cleanup levels must be met throughout a site before the site will be considered to be clean.      A remedy that leaves hazardous substances on a site in excess of cleanup levels may qualify as a cleanup action as long as the remedy is protective of human health and the environment, meets cleanup levels at specified points of compliance, complies with applicable state and federal laws, provides for adequate monitoring, and incorporates appropriate institutional controls.      However, these rules are intended to promote thorough cleanups rather than long-term partial cleanups or containment measures.)) At sites where remediation levels are used, the compliance monitoring plan will also need to describe the performance monitoring to be conducted to demonstrate the remediation levels have been achieved.

     (8) Specific procedures for setting cleanup levels at petroleum contaminated sites. In addition to the other requirements in this section, this chapter provides for the following specific procedures to establish cleanup levels at sites where there has been a release of total petroleum hydrocarbons (TPH) and hazardous substances associated with a release of TPH.

     (a) For soil contamination, the soil cleanup level must not result in any significant adverse effects on the protection and propagation of terrestrial ecological receptors. This determination must be made in accordance with the requirements and procedures specified in 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. If the Method A cleanup level is not protective of terrestrial ecological receptors, then a Method B or Method C soil cleanup level, as appropriate for the site, must be established.

     (b) It is necessary to analyze for and evaluate certain carcinogenic and noncarcinogenic hazardous substances that may be associated with a release of TPH. These are identified in Table 830-1. In cases where the cleanup level for one or more of these associated hazardous substances is exceeded but the TPH cleanup level is not, the cleanup level shall be based on the associated hazardous substance.

     (i) Method A. Method A may be used to establish cleanup levels for TPH and associated hazardous substances at qualifying sites (see WAC 173-340-704). At these sites, the presence, location and concentration of TPH may be established by using the NWTPH method described under Method 7 (see WAC 173-340-830 (3)(a)(vii)). The NWTPH method is a simplified, and relatively inexpensive, analytical method for evaluating TPH. Method A cleanup levels have been determined for four common petroleum mixtures: Gasoline range organics (GRO), diesel range organics (DRO), heavy oils, and electrical insulating mineral oil, as well as many hazardous substances that may be associated with the TPH. A site owner may decide to use Method A for some substances or media and Method B or C for others, depending upon site conditions and qualifications.

     (ii) Method B and Method C tiered approach. This chapter provides for a three-tiered approach for establishing Method B and Method C cleanup levels at sites that involve a release of TPH. These tiers are not required to be approached sequentially (that is, the process may be started at any tier). The tiered process allows one to calculate different cleanup levels for TPH and associated hazardous substances using progressively more complex and site-specific information, and also allows for basing the cleanup levels on the presence or absence of exposure pathways, determined as part of the conceptual site model. In establishing a TPH cleanup level using the tiered process, it is still necessary to comply with other requirements and procedures under WAC 173-340-700 through 173-340-760.

     (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.

     (B) General description of the three tiers.

     (I) Tier 1 consists of the standard Method B and Method C formulas and requirements under WAC 173-340-720 through 173-340-750 for each applicable pathway identified by the conceptual site model, including specific requirements set forth in those sections for petroleum mixtures.

     (II) Tier 2 consists of the site-specific use of modified Method B and Method C formulas and requirements under WAC 173-340-720 through 173-340-750 for each applicable exposure pathway identified by the conceptual site model; and inclusion and development of additional, site-specific exposure pathways not addressed in Method A or Tier 1. Consideration of current and future site uses may be considered in establishing remediation levels.

     (III) Tier 3 consists of the site-specific use of standard or modified Method B and Method C formulas and requirements for each applicable exposure pathway identified by the conceptual site model and the use of new scientific information to establish a cleanup level as provided under WAC 173-340-702 (14), (15) and (16). It is considered a more complex evaluation in terms of technical sophistication (such as the use of new fate and transport models), data needs, cost and time. Consideration of current and future site uses may be considered in establishing remediation levels.

     (IV) A single tier may be used for all exposure pathways or more than one tier may be used when there are multiple exposure pathways.

     (C) Fractionated approach. Method B and Method C cleanup levels for TPH are determined using the fractionated analytical approach for petroleum as described under Method 7 (see WAC 173-340-830 (3)(a)(vii)). This approach divides the TPH mixture into equivalent carbon numbers. Use of the fractionated approach requires testing or knowledge to define product composition as described under subsection (8)(b)(ii)(D) of this section ("Determination of product composition"). For direct contact with contaminated media, cleanup levels are calculated using reference doses that have been determined by the department for each fraction. Cleanup levels can also be calculated based on the measured or predicted ability of the fractions to migrate from one medium to other media. The most conservative of the calculated cleanup levels are to be used, depending on the results of the conceptual site model.

     (D) Determination of product composition. Product composition may be determined by analyzing each sample in accordance with the VPH/EPH method described under Method 7 (see WAC 173-340-830 (3)(a)(vii)). Alternatively, product composition may be determined by one of the following methods:

     (I) Correlation. Where WTPH or NWTPH methods described in Method 7 are used to collect and analyze the presence, location and concentration of TPH, knowledge of the fraction-specific composition of the petroleum released at the site may be based on analysis and correlation of a portion of the site samples with both the VPH/EPH and WTPH/NWTPH methods.

     (II) Retrofitting. Where WTPH or NWTPH methods were used to collect and analyze the presence, location and concentration of TPH before the effective date of this provision, knowledge of the fraction-specific composition of the petroleum released at the site may be based on the fraction-specific composition assumptions used by the department to calculate Method A cleanup levels, which the department shall publish in guidance. If the identity of the petroleum product released at the site is not known, or is a mixture of products, retrofitting under this provision shall be based on the composition that yields the lowest TPH cleanup level.

     (E) Consultation with the department. Because of the complexity of the development of site-specific Method B and Method C petroleum cleanup levels using the second or third tiers described above, or the use of correlated or retrofitted data, persons planning on using these methods are encouraged to contact the department to obtain appropriate technical guidance.

[Statutory Authority: Chapter 70.105D RCW.      96-04-010 (Order 94-37), § 173-340-700, filed 1/26/96, effective 2/26/96; 91-04-019, § 173-340-700, filed 1/28/91, effective 2/28/91; 90-08-086, § 173-340-700, filed 4/3/90, effective 5/4/90.]

(1) Purpose.      This section defines the general policies and principles that ((the department)) shall ((utilize to ensure that cleanup standards under this chapter are established and implemented in a scientifically and technically sound manner)) be followed when establishing and implementing cleanup standards. This section shall be used in combination with other sections of this chapter.

     (2) Policy on expediting cleanups. Establishing cleanup standards and selecting an appropriate cleanup action involves many technical and public policy decisions. This chapter is intended to constrain the range of decisions made on individual sites to promote expeditious cleanups.

     (3) Goal for cleanups. The Model Toxics Control Act contains policies that state, in part, each person has a fundamental and inalienable right to a healthful environment and it is essential that sites be cleaned up well. Consistent with these policies, cleanup standards and cleanup actions selected under this chapter shall be established that provide conservative estimates of human health and environmental risks that protect susceptible individuals as well as the general population.

     (4) Current and potential site and resource uses. Cleanup standards and cleanup actions selected under this chapter shall be established that protect human health and the environment for current and potential future site and resource uses.

     (5) Presumption for cleanup actions. Cleanup actions that achieve cleanup levels at the applicable point of compliance under Methods A, B, or C (as applicable) and comply with applicable state and federal laws shall be presumed to be protective of human health and the environment.

     (6) Cost considerations. Except as provided for in applicable state and federal laws, cost shall not be a factor in determining what cleanup level is protective of human health and the environment. In addition, where specifically provided for in this chapter, cost may be appropriate for certain other determinations related to cleanup standards such as point of compliance. Cost shall, however, be considered when selecting an appropriate cleanup action.

     (7) Cleanup 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.

     (((2))) (10) Relationship to federal cleanup law.      When evaluating cleanup actions performed under the federal cleanup law, the department shall consider WAC 173-340-350, 173-340-355, 173-340-357, 173-340-360 ((and)), 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 ((a)) legally applicable requirements under Section 121(d) of the Federal Cleanup Law.

     (((3) Regulation update.)) (11) Reviewing and updating cleanup standards.      The department shall review and, as appropriate, update WAC 173-340-700 through 173-340-760 ((no less frequently than)) at least once every five years.

     (((4))) (12) Applicability of new cleanup levels.

     (a) For cleanup actions conducted by the department, or under an order or decree, the department shall determine the cleanup level that applies to a release based on the rules in effect under this chapter at the time the department issues a final cleanup action plan for that release.

     (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 ((under WAC 173-340-440)) shall be required whenever ((a cleanup action results in residual concentrations of hazardous substances which exceed method A or method B cleanup levels, as applicable, or conditional points of compliance are approved by the department under WAC 173-340-720 through 173-340-760.      Institutional controls shall also be required when cleanup levels are established under WAC 173-340-745)) any of the circumstances identified in WAC 173-340-440(4) are present at a site.

     (((5))) (14) Burden of proof.      Any person responsible for undertaking a cleanup action under this chapter who proposes to:

     (a) Use a reasonable maximum exposure scenario other than the default provided for each medium;

     (b) Use assumptions other than the default values provided for in this chapter;

     (c) Establish a cleanup level under Method C; or

     (d) Use a conditional point of compliance, shall have the burden of demonstrating to the department that requirements in this ((part)) chapter have been met to ((assure)) ensure protection of human health and the environment.      The department shall only approve ((cleanup levels under method C or conditional points of compliance)) of such proposals when it determines that ((that the person undertaking the cleanup actions met)) this burden of proof is met.

     (((6))) (15) New scientific information.      The department shall consider new scientific information when establishing cleanup levels and remediation levels for individual sites.      In making a determination on how to use this new information, the department shall, as appropriate, consult with the science advisory board, the department of health, and the United States Environmental Protection Agency. Any proposal to use new scientific information shall meet the quality of information requirements in subsection (16) of this section. To minimize delay in cleanups, any proposal to use new scientific information should be introduced as early in the cleanup process as possible. Proposals to use new scientific information may be considered up to the time of issuance of the final cleanup action plan governing the cleanup action for a site unless triggered as part of a periodic review under WAC 173-340-420 or through a reopener under RCW 70.105D.040 (4)(c).

     (16) Criteria for quality of information.

     (a) The intent of this subsection is to establish minimum criteria to be considered when evaluating information used by or submitted to the department proposing to modify the 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 factors, the department shall consider information submitted by all interested persons and the quality of that information. When evaluating the quality of the information the department shall consider the following factors, as appropriate for the type of information submitted:

     (i) Whether the information is based on a theory or technique that has widespread acceptance within the relevant scientific community;

     (ii) Whether the information was derived using standard testing methods or other widely accepted scientific methods;

     (iii) Whether a review of relevant available information, both in support of and not in support of the proposed modification, has been provided along with the rationale explaining the reasons for the proposed modification;

     (iv) Whether the assumptions used in applying the information to the facility are valid and would ensure the proposed modification would err on behalf of protection of human health and the environment;

     (v) Whether the information adequately addresses populations that are more highly exposed than the population as a whole and are reasonably likely to be present at the site; and

     (vi) Whether adequate quality assurance and quality control procedures have been used, any significant anomalies are adequately explained, the limitations of the information are identified, and the known or potential rate of error is acceptable.

[Statutory Authority: Chapter 70.105D RCW.      91-04-019, § 173-340-702, filed 1/28/91, effective 2/28/91.]

(1) Applicability. Method A may be used to establish cleanup levels at the following types of sites:

     (a) Sites undergoing routine cleanup actions as defined in WAC ((173-340-130)) 173-340-200; or

     (b) Sites where numerical standards are available in this chapter or applicable state and federal laws for all indicator hazardous substances in ((all)) the media ((of concern)) for which the Method A cleanup level is being used.

     (c) In addition, sites using Method A must meet the following conditions:

     (i) The site has few hazardous substances; and

     (ii) For establishing soil cleanup levels only, the site qualifies under WAC 173-340-7491 for an exclusion from conducting a simplified or site-specific terrestrial ecological evaluation, or it can be demonstrated using a terrestrial ecological evaluation under WAC 173-340-7492 or 173-340-7493 that the Method A soil cleanup levels are ecologically protective for the site.

     (2) Procedures. Method A cleanup levels shall be established in accordance with the procedures in WAC 173-340-720 through 173-340-760.      Method A cleanup levels shall be at least as stringent as all of the following:

     (a) Concentrations of individual hazardous substances listed in ((the)) Tables ((in WAC 173-340-720, 173-340-740, or 173-340-745)) 720-1, 740-1, or 745-1 in this chapter;

     (b) Concentrations of individual hazardous substances established under applicable state and federal laws; and

     (c) For individual hazardous substances deemed indicator hazardous substances for the medium of concern under WAC 173-340-708(2) and not addressed under (a) and (b) of this subsection, concentrations that do not exceed natural background levels or the practical quantitation limit for the substance in question.

     (3) More stringent cleanup levels. The department may establish Method A cleanup levels more stringent than those required by subsection (2) of this section, when based on a site-specific evaluation, the department determines that such levels are necessary to protect human health and the environment. Any imposition of more stringent requirements under this provision shall comply with WAC 173-340-702 and 173-340-708.

     (4) ((Caution on misusing method A tables.      Method A tables have been developed for specific purposes.      They are intended to provide conservative cleanup levels for sites undergoing routine cleanup actions or those sites with relatively few hazardous substances.      The tables may not be appropriate for defining cleanup levels at other sites.      For these reasons, the values in these tables should not automatically be used to define cleanup levels that must be met for financial, real estate, insurance coverage or placement, or similar transactions or purposes.      Exceedances of the values in these tables do not necessarily trigger requirements for cleanup action under this chapter.)) Remediation levels. Under Method A, the Method B formulas may be modified for the purpose of using a human health risk assessment to 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.

[Statutory Authority: Chapter 70.105D RCW.      91-04-019, § 173-340-704, filed 1/28/91, effective 2/28/91.]

(1) Applicability. Method B is applicable to all sites.      It shall be used to develop cleanup levels unless one or more of the conditions for using Method A or Method C are demonstrated to exist and the person conducting the cleanup action elects to ((utilize)) use that method.

     (2) Cleanup levels. Method B consists of two approaches, standard and modified. Standard Method B uses default formulas, assumptions, and procedures to develop cleanup levels. Under modified Method B chemical-specific or site-specific information may be used to change certain assumptions to calculate different cleanup levels. When the term "Method B" is used in this chapter, it means both standard and modified Method B. Method B cleanup levels shall be established in accordance with the procedures in WAC 173-340-720 through 173-340-760.      Method B cleanup levels shall be at least as stringent as all of the following:

     (a) Concentrations of individual hazardous substances established under applicable state and federal laws;

     (b) Concentrations ((which)) that are estimated to result in no adverse effects on the protection and propagation of aquatic ((and terrestrial)) life, and no significant adverse effects on terrestrial ecological receptors using the procedures specified in WAC 173-340-7490 through 173-340-7494;

     (c) For hazardous substances for which sufficiently protective, health-based criteria or standards have not been established under applicable state and federal laws, those concentrations which protect human health ((and the environment)) as determined by the following methods:

     (i) Concentrations ((which)) that are estimated to result in no acute or chronic toxic effects on human health as determined using a hazard quotient of one (1) and the procedures specified in WAC 173-340-720 through 173-340-760;

     (ii) For known or suspected carcinogens, concentrations for which the upper bound on the estimated excess cancer risk is less than or equal to one in one million (1 x 10^-6) as determined using the procedures specified in WAC 173-340-720 through 173-340-760; and

     (iii) Concentrations ((which)) that eliminate or minimize the potential for food chain contamination((; and)) as necessary to protect human health.

     (3) More stringent cleanup levels. The department may establish Method B cleanup levels that are more stringent than those required by subsection (2) of this section, when based upon a site-specific evaluation, the department determines that such levels are necessary to protect human health and the environment. Any imposition of more stringent requirements under this provision shall comply with WAC 173-340-702 and 173-340-708.

     (4) Multiple hazardous substances or pathways. Concentrations of individual hazardous substances established under subsections (2) and (3) of this section, including those based on applicable state and federal laws, shall be adjusted downward to take into account exposure to multiple hazardous substances and/or exposure resulting from more than one pathway of exposure.      These adjustments need to be made only if, without these adjustments, the hazard index would exceed one (1) or the total excess cancer risk would exceed one in one hundred thousand (1 x 10^-5). These adjustments shall be made in accordance with the procedures in WAC 173-340-708 (5) and (6).      In making these adjustments, the hazard index shall not exceed one (1) and the total excess cancer risk shall not exceed one in one hundred thousand (1 x 10^-5).      ((These overall limits on the hazard index and total excess cancer risk shall also apply to sites where there is exposure to a single hazardous substance by one exposure pathway, including cleanup levels based on applicable state and federal laws.))

     (5) Adjustments to cleanup levels based on applicable laws. Where a cleanup level is based on an applicable state or federal law, and the level of risk upon which the applicable state and federal law is based exceeds an excess cancer risk of one in one hundred thousand (1 x 10^-5) or a hazard index of one (1), the cleanup level must be adjusted downward so that the total excess cancer risk and hazard index at the site does not exceed the limits established in subsection (4) of this section.

     (6) Limitation on adjustments. Cleanup levels determined using Method B, including cleanup levels adjusted under subsections (4) and (5) of this section, shall not be set at levels below the practical quantitation limit or natural background. See WAC 173-340-707 and 173-340-709 for additional requirements on practical quantitation limits and natural background.

     (7) Remediation levels. Method B formulas may be modified for the purpose of using a human health risk assessment to 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.

     (8) Inconsistencies. If there are any inconsistencies between this section and any specifically referenced sections, the referenced section shall govern.

[Statutory Authority: Chapter 70.105D RCW.      91-04-019, § 173-340-705, filed 1/28/91, effective 2/28/91.]

(1) Applicability. Method C cleanup levels represent concentrations ((which)) that are protective of human health and the environment for specified site uses and conditions.      A site (or portion of a site) that qualifies for a Method C cleanup level for one medium does not necessarily qualify for a Method C cleanup level in other media.      Each medium must be evaluated separately using the criteria applicable to that medium. Method C cleanup levels may be used in the following situations:

     (a) For surface water, ground water and air, Method C cleanup levels may be established where the person conducting the cleanup action can demonstrate that such levels comply with applicable state and federal laws, that all practicable methods of treatment are ((utilized)) used, that institutional controls are implemented in accordance with WAC 173-340-440, and that one or more of the following conditions exist:

     (i) Where Method A or B cleanup levels are below area background concentrations, Method C cleanup levels may be established at concentrations that are equal to area background concentrations, but in no case greater than concentrations specified in subsection (2) of this section; ((or))

     (ii) Where attainment of Method A or B cleanup levels has the potential for creating a significantly greater overall threat to human health or the environment than attainment of Method C cleanup levels established under this chapter, Method C cleanup levels may be established at concentrations ((which)) that minimize those overall threats, but in no case greater than concentrations specified in subsection (2) of this section.      Factors that shall be considered in making this determination include:

     (A) Results of a site-specific risk assessment;

     (B) Duration of threats;

     (C) Reversibility of threats;

     (D) Magnitude of threats; and

     (E) Nature of affected population.

     (iii) Where Method A or B cleanup levels are below technically possible concentrations, Method C cleanup levels may be established at the technically possible concentrations, but in no case greater than levels specified in subsection (2) of this section.

     (b) ((For soil cleanup levels only,)) Method C soil cleanup levels may ((also)) only be established where the person conducting the cleanup action can demonstrate that the area under consideration is an industrial property and meets the criteria for establishing industrial soil cleanup levels under WAC 173-340-745.

     (c) Method C air cleanup levels may also be established for facilities qualifying as industrial property under WAC 173-340-745 and for utility vaults and manholes. (See WAC 173-340-750.)

     (2) Cleanup levels. Method C consists of two approaches, standard and modified. Standard Method C uses default formulas, assumptions, and procedures to develop cleanup levels. Under modified Method C, chemical-specific or site-specific information may be used to change certain assumptions to calculate different cleanup levels. When the term "Method C" is used in this chapter, it means both standard and modified Method C. Method C cleanup levels shall be established in accordance with the procedures in WAC 173-340-720 through 173-340-760.      Method C cleanup levels shall be at least as stringent as all of the following:

     (a) Concentrations established under applicable state and federal laws;

     (b) Concentrations ((which)) that are estimated to result in no significant adverse effects on the protection and propagation of aquatic ((and terrestrial)) life, and no significant adverse effects on wildlife using the procedures specified in WAC 173-340-7490 through 173-340-7494;

     (c) For hazardous substances for which sufficiently protective, health-based criteria or standards have not been established under applicable state and federal laws, those concentrations which are protective of human health ((and the environment)) as determined by the following methods:

     (i) Concentrations ((which)) that are estimated to result in no significant adverse acute or chronic toxic effects on human health as estimated using a hazard quotient of one (1) and the procedures defined in WAC 173-340-720 through 173-340-760;

     (ii) For known or suspected carcinogens, concentrations for which the upper bound on the estimated excess cancer risk is less than or equal to one in one hundred thousand (1 x 10^-5) as determined using the procedures defined in WAC 173-340-720 through 173-340-760; and

     (iii) Concentrations ((which)) that eliminate or minimize the potential for food chain contamination as necessary to protect human health.

     (3) More stringent cleanup levels. The department may establish Method C cleanup levels that are more stringent than those required by subsection (2) of this section when based upon a site-specific evaluation, the department determines that such levels are necessary to protect human health and the environment. Any imposition of more stringent requirements under this provision shall comply with WAC 173-340-702 and 173-340-708.

     (4) Multiple hazardous substances or pathways. Concentrations of individual hazardous substances established under subsections (2) and (3) of this section, including those based on applicable state and federal laws, shall be adjusted downward to take into account exposure to multiple hazardous substances and/or exposure resulting from more than one pathway of exposure.      These adjustments need to be made only if, without these adjustments, the hazard index would exceed one (1) or the total excess cancer risk would exceed one in one hundred thousand (1 x 10^-5). These adjustments shall be made in accordance with WAC 173-340-708 (5) and (6).      In making these adjustments, the hazard index shall not exceed one and the total excess cancer risk shall not exceed one in one hundred thousand (1 x 10^-5).      ((These overall limits on the hazard index and total excess cancer risk shall also apply to sites where there is exposure to a single hazardous substance by one exposure pathway, including cleanup levels based on applicable state and federal laws.))

     (5) Adjustments to cleanup levels based on applicable laws. When a cleanup level is based on an applicable state or federal law and the level of risk upon which the applicable law is based exceeds an excess cancer risk of one in one hundred thousand (1 x 10^-5) or a hazard index of one (1), the cleanup level must be adjusted downward so that the total excess cancer risk does not exceed one in one hundred thousand (1 x 10^-5) and the hazard index does not exceed one (1) at the site.

     (6) Limitation on adjustments. Cleanup levels determined using Method C, including cleanup levels adjusted under subsections (4) and (5) of this section, shall not be set at levels below the practical quantitation limit or natural background. See WAC 173-340-707 and 173-340-709 for additional requirements on practical quantitation limits and natural background.

     (7) Remediation levels. Method C formulas may be modified for the purpose of using a human health risk assessment to evaluate the protectiveness of a remedy. WAC 173-340-708 (3) and (10) describe the adjustments that can be made to the Method C formulas. Also see WAC 173-340-355 and 173-340-357 for more detailed information on remediation levels and quantitative risk assessment.

     (8) Inconsistencies. If there are any inconsistencies between this subsection and any specifically referenced sections, the referenced section shall govern.

[Statutory Authority: Chapter 70.105D RCW.      96-04-010 (Order 94-37), § 173-340-706, filed 1/26/96, effective 2/26/96; 91-04-019, § 173-340-706, filed 1/28/91, effective 2/28/91.]

(1) Purpose.      This section defines the risk assessment framework that ((the department will utilize)) shall be used to establish cleanup levels, and remediation levels using a quantitative risk assessment, under this chapter. As used in this section, cleanup levels and remediation levels means the human health risk assessment component of these levels. This chapter defines certain default values and methods to be used in calculating cleanup levels and remediation levels. This section allows varying from these default values and methods under certain circumstances. When deciding whether to approve alternate values and methods the department shall ensure that the use of alternative values and methods will not significantly delay site cleanups.

     (2) Selection of indicator hazardous substances.

     (a) When defining cleanup requirements at a site that is contaminated with a large number of hazardous substances, the department may eliminate from consideration those hazardous substances that contribute a small percentage of the overall threat to human health and the environment.      The remaining hazardous substances shall serve as indicator hazardous substances for purposes of defining site cleanup requirements.

     (b) If the department considers this approach appropriate for a particular site, the factors evaluated when eliminating individual hazardous substances from further consideration shall include:

     (i) The toxicological characteristics of the hazardous substance that influence its ability to adversely affect human health or the environment relative to the concentration of the hazardous substance at the site;

     (ii) The chemical and physical characteristics of the hazardous substance which govern its tendency to persist in the environment;

     (iii) The chemical and physical characteristics of the hazardous substance which govern its tendency to move into and through environmental media;

     (iv) The natural background concentrations of the hazardous substance;

     (v) The thoroughness of testing for the hazardous substance at the site;

     (vi) The frequency that the hazardous substance has been detected at the site; and

     (vii) Degradation by-products of the hazardous substance.

     (c) When the department determines that the use of indicator hazardous substances is appropriate for a particular site, it may also require biological testing to address potential toxic effects associated with hazardous substances eliminated from consideration under this subsection.

     (3) Reasonable maximum exposure.

     (a) Cleanup levels and remediation levels shall be based on estimates of current and future resource uses and reasonable maximum exposures expected to occur under both current and potential future site use conditions, as specified further in this chapter.

     (b) The reasonable maximum exposure is defined as the highest exposure that is reasonably expected to occur at a site under current and potential future site use.      WAC 173-340-720 through 173-340-760 define the reasonable maximum exposures for ground water, surface water, soil, and air.      These reasonable maximum exposures will apply to most sites where individuals or groups of individuals are or could be exposed to hazardous substances.      For example, the reasonable maximum exposure for most ground water is defined as exposure to hazardous substances in drinking water and other domestic uses.

     (c) Persons performing cleanup actions under this chapter may ((utilize)) use the evaluation criteria in WAC 173-340-720 through 173-340-760, where allowed in those sections, to demonstrate that the reasonable maximum exposure scenarios specified in those sections are not appropriate for cleanup levels for a particular site.      For example, the criteria in WAC 173-340-720(2) could be used to demonstrate that the reasonable maximum exposure for ground water beneath a site does not need to be based on drinking water use. The use of an alternate exposure scenario shall be documented by the person performing the cleanup action.      Documentation for the use of alternate exposure scenarios under this provision shall be based on the results of investigations performed in accordance with WAC 173-340-350.

     (d) Persons performing cleanup actions under this chapter may also use alternate reasonable maximum exposure scenarios to help assess the protectiveness to human health of a cleanup action alternative that incorporates remediation levels and uses engineered controls and/or institutional controls to limit exposure to the contamination remaining on the site.

     (i) An alternate reasonable maximum exposure scenario shall reflect the highest exposure that is reasonably expected to occur under current and potential future site exposure considering, among other appropriate factors, the potential for institutional controls to fail and the extent of the time period of failure under these scenarios and the land uses at the site.

     (ii) Land uses other than residential and industrial, such as agricultural, recreational, and commercial, shall not be used as the basis for a reasonable maximum exposure scenario for the purpose of establishing a cleanup level. However, these land uses may be used as the basis for an alternate reasonable maximum exposure scenario for the purpose of developing a remediation level. For example, if a cap (with appropriate institutional controls) is the proposed cleanup action at a commercial site, the reasonable maximum exposure scenario for assessing the protectiveness of the cap with regard to direct soil contact could be changed from a child living on the site to a construction or maintenance worker and child trespasser scenario.

     (iii) The department expects that in evaluating the protectiveness of a remedy, many types of commercial sites may, where appropriate, qualify for alternative exposure scenarios under this provision since contaminated soil at these sites is typically characterized by a cover of buildings, pavement, and landscaped areas. Examples of these types of sites include:

     (A) Commercial properties in a location removed from single family homes, duplexes or subdivided individual lots;

     (B) Private and public recreational facilities where access to these facilities is physically controlled (e.g., a private golf course to which access is restricted by fencing);

     (C) Urban residential sites (e.g., upper-story residential units over ground floor commercial businesses);

     (D) Offices, restaurants, and other facilities primarily devoted to support administrative functions of a commercial/industrial nature (e.g., an employee credit union or cafeteria in a large office or industrial complex).

     (e) A conceptual site model may be used to identify when individuals or groups of individuals may be exposed to hazardous substances through more than one exposure pathway.      For example, a person may be exposed to hazardous substances from a site by drinking contaminated ground water, eating contaminated fish, and breathing contaminated air.      At sites where the same individuals or groups of individuals are or could be consistently exposed through more than one pathway, the reasonable maximum exposure shall represent the total exposure through all of those pathways.      At such sites, the cleanup levels and remediation levels derived for individual pathways under WAC 173-340-720 through 173-340-760 and WAC 173-340-350 through 173-340-390 shall be adjusted downward to take into account multiple exposure pathways.

     (4) Cleanup levels for individual hazardous substances.      Cleanup levels for individual hazardous substances will generally be based on a combination of requirements in applicable state and federal laws and risk assessment.

     (5) Multiple hazardous substances.

     (a) Cleanup levels for individual hazardous substances established under Methods B and C and remediation levels shall be adjusted downward to take into account exposure to multiple hazardous substances.      This adjustment needs to be made only if, without this adjustment, the hazard index would exceed one (1) or the total excess cancer risk would exceed one in one hundred thousand (1 x 10^-5).

     (b) Adverse effects resulting from exposure to two or more hazardous substances with similar types of toxic response are assumed to be additive unless scientific evidence is available to demonstrate otherwise. (((b))) Cancer risks resulting from exposure to two or more carcinogens are assumed to be additive unless scientific evidence is available to demonstrate otherwise.

     (c) For noncarcinogens, for purposes of establishing cleanup levels ((for noncarcinogens)) under Methods B and C, and for remediation levels, the health threats resulting from exposure to two or more hazardous substances with similar types of toxic response may be apportioned between those hazardous substances in any combination as long as the hazard index does not exceed one (1).

     (d) For carcinogens, for purposes of establishing cleanup levels ((for carcinogens)) under Methods B and C, and for remediation levels, the cancer risks resulting from exposure to multiple hazardous substances may be apportioned between hazardous substances in any combination as long as the total excess cancer risk does not exceed one in one hundred thousand (1 x 10^-5).

     (e) The department may require biological testing to assess the potential interactive effects associated with chemical mixtures.

     (f) When making adjustments to cleanup levels and remediation levels for multiple hazardous substances, the concentration for individual hazardous substances shall not be adjusted downward to less than the practical quantitation limit or natural background.

     (6) Multiple pathways of exposure.

     (a) Estimated doses of individual hazardous substances resulting from more than one pathway of exposure are assumed to be additive unless scientific evidence is available to demonstrate otherwise.

     (b) Cleanup levels and remediation levels based on one pathway of exposure shall be adjusted downward to take into account exposures from more than one exposure pathway.      The number of exposure pathways considered at a given site shall be based on the reasonable maximum exposure scenario as defined in WAC 173-340-708(3). This adjustment needs to be made only if exposure through multiple pathways is likely to occur at a site and, without the adjustment, the hazard index would exceed one (1) or the total excess cancer risk would exceed one in one hundred thousand (1 x 10^-5).

     (c) For noncarcinogens, for purposes of establishing cleanup levels ((for noncarcinogens)) under Methods B and C, and remediation levels, the health threats associated with exposure via multiple pathways may be apportioned between exposure pathways in any combination as long as the hazard index does not exceed one (1).

     (d) For carcinogens, for purposes of establishing cleanup levels ((for carcinogens)) under Methods B and C, and for remediation levels, the cancer risks associated with exposure via multiple pathways may be apportioned between exposure pathways in any combination as long as the total excess cancer risk does not exceed one in one hundred thousand (1 x 10^-5).

     (e) When making adjustments to cleanup levels and remediation levels for multiple pathways of exposure, the concentration for individual hazardous substances shall not be adjusted downward to less than the practical quantitation limit or natural background.

     (7) Reference doses.

     (a) The chronic reference dose/reference concentration and the developmental reference dose/reference concentration shall be used to establish cleanup levels and remediation levels under this chapter.      Cleanup levels and remediation levels shall be established using the value which results in the most protective concentration.

     (b) Inhalation reference doses/reference concentration shall be used in WAC 173-340-750.      Where the inhalation reference dose/reference concentration is reported as a concentration in air, that value shall be converted to a corresponding inhaled intake (mg/kg-day) using a human body weight of 70 kg and an inhalation rate of 20 m³/day, and take into account, where available, the respiratory deposition and absorption characteristics of the gases and inhaled particles.

     (c) A subchronic reference dose/reference concentration may be ((utilized)) used to evaluate potential noncarcinogenic effects resulting from exposure to hazardous substances over short periods of time.      This value may be used in place of the chronic reference dose/reference concentration where it can be demonstrated that a particular hazardous substance will degrade to negligible concentrations during the exposure period.

     (d) For purposes of establishing cleanup levels and remediation levels for hazardous substances under this chapter, a reference dose/reference concentration established by the United States Environmental Protection Agency and available through the "integrated risk information system" (IRIS) data base shall be used. If a reference dose/reference concentration is not available through the IRIS data base, a reference dose/reference concentration from the U.S. EPA Health Effects Assessment Summary Table ("HEAST") database or, if more appropriate, the National Center for Environmental Assessment ("NCEA") shall be used.

     (e) If a reference dose/reference concentration is available through IRIS, HEAST, or the NCEA, it shall be used unless the department determines that there is clear and convincing scientific data which demonstrates that the use of this value is inappropriate.

     (((e))) (f) If a reference dose/reference concentration for hazardous substances including petroleum fractions and petroleum constituents is not available through ((the "integrated risk information system")) IRIS, HEAST or the NCEA or is demonstrated to be inappropriate under (((d))) (e) of this subsection, a reference dose/reference concentration shall be established ((utilizing)) on a case-by-case basis using the methods described in Risk Assessment Guidance for Superfund((.)), Human Health Evaluation Manual, Part A((.))      (October 1989((.))).

     (((f))) (g) In estimating a reference dose/reference concentration for a hazardous substance under (e) or (f) of this subsection, the department shall, as appropriate, consult with the science advisory board, the department of health, and the United States Environmental Protection Agency and may, as appropriate, consult with other qualified persons. Scientific data supporting such a change shall be subject to the requirements under WAC 173-340-702 (14), (15) and (16). Once the department has established a reference dose/reference concentration for a hazardous substance under this provision, the department is not required to consult again for the same hazardous substance.

     (((g))) (h) Where a reference dose/reference concentration other than those established under (d) or (g) of this subsection is used to establish a cleanup level or remediation level at individual sites, the department shall summarize the scientific rationale for the use of those values in the cleanup action plan.      The department shall provide the opportunity for public review and comment on this value in accordance with the requirements of WAC ((173-340-360)) 173-340-380 and 173-340-600.

     (8) Carcinogenic potency factor.

     (a) For purposes of establishing cleanup levels and remediation levels for hazardous substances under this chapter, a carcinogenic potency factor established by the United States Environmental Protection Agency and available through the (("integrated risk information system")) IRIS data base shall be used. If a carcinogenic potency factor is not available from the IRIS data base, a carcinogenic potency factor from HEAST or, if more appropriate, from the NCEA shall be used.

     (b) If a carcinogenic potency factor is available from the IRIS, HEAST or the NCEA, it shall be used unless the department determines that there is clear and convincing scientific data which demonstrates that the use of this value is inappropriate.

     (((b))) (c) If a carcinogenic potency factor is not available through ((the "integrated risk information system")) IRIS, HEAST or the NCEA or is demonstrated to be inappropriate under (((a))) (b) of this subsection, one of the following methods shall be ((utilized)) used to establish a carcinogenic potency factor:

     (i) The carcinogenic potency factor may be derived from appropriate human epidemiology data on a case-by-case basis; or

     (ii) The carcinogenic potency factor may be derived from animal bioassay data using the following procedures:

     (A) All ((carcinogenesis)) carcinogenicity bioassays shall be reviewed and data of appropriate quality shall be used for establishing the carcinogenic potency factor.

     (B) The linearized multistage extrapolation model shall be ((utilized)) used to estimate the slope of the dose-response curve unless the department determines that there is clear and convincing scientific data which demonstrates that the use of an alternate extrapolation model is more appropriate;

     (C) All doses shall be adjusted to give an average daily dose over the study duration; and

     (D) An interspecies scaling factor shall be used to take into account differences between animals and humans.      For oral carcinogenic toxicity values this scaling factor shall be based on the assumption that milligrams per surface area is an equivalent dose between species unless the department determines there is clear and convincing scientific data which demonstrates that an alternate procedure is more appropriate.      The slope of the dose response curve for the test species shall be multiplied by this scaling factor in order to obtain the carcinogenic potency factor, except where such scaling factors are incorporated into the extrapolation model under (B) of this subsection.      The procedure to derive a human equivalent concentration of inhaled particles and gases shall take into account, where available, the respiratory deposition and absorption characteristics of the gases and inhaled particles. Where adequate pharmacokinetic and metabolism studies are available, data from these studies may be ((utilized)) used to adjust the interspecies scaling factor.

     (((c))) (d) When assessing the potential carcinogenic risk of mixtures of chlorinated dibenzo-p-dioxins (CDD) and chlorinated dibenzofurans (CDF) either of the following methods shall be used unless the department determines that there is clear and convincing scientific data which demonstrates that the use of these methods is inappropriate:

     (i) The entire mixture is assumed to be as toxic as 2, 3, 7, 8 CDD or 2, 3, 7, 8 CDF, as applicable; or

     (ii) The toxicity equivalency factors and methodology described in: EPA. 1989. "Interim procedures for estimating risks associated with exposure to mixtures of chlorinated dibenzo-p-dioxins and dibenzofurans (CDDs and CDFs) and 1989 update", USEPA, Risk Assessment Forum, Washington, D.C., publication number EPA/625/3-89/016.

     (e) When assessing the potential carcinogenic risk of mixtures of polycyclic aromatic hydrocarbons, either of the following methods shall be used unless the department determines that there is clear and convincing scientific data which demonstrates that the use of these methods is inappropriate:

     (i) The entire mixture is assumed to be as toxic as benzo(a)pyrene; or

     (ii) The toxicity equivalency factors and methodology described in "CalEPA. 1994. Benzo(a)pyrene as a toxic air contaminant. Part B: Health Assessment." Published by the Office of Environmental Health Hazard Assessment, California Environmental Protection Agency, Berkeley, CA. When using this methodology, at a minimum, the following compounds shall be analyzed for and included in the calculations: Benzo[a]pyrene, Benz[a]anthracene, Benzo[b]fluoranthene, Benzo[k]fluoranthene, Chrysene, Dibenz[a,h]anthracene, Indeno[1,2,3cd]pyrene. The department may require additional compounds from the CalEPA list to be included in the methodology should site testing data or information from other comparable sites or waste types indicate the additional compounds are potentially present at the site. NOTE: Many of the polycyclic aromatic hydrocarbons on the CalEPA list are found primarily in air emissions from combustion sources and may not be present in the soil or water at contaminated sites. Users should consult with the department for information on the need to test for these additional compounds.

     (f) In estimating a carcinogenic potency factor for a hazardous substance under (((b))) (c) of this subsection, the department shall, as appropriate, consult with the science advisory board, the department of health, and the United States Environmental Protection Agency and may, as appropriate, consult with other qualified persons. Scientific data supporting such a change shall be subject to the requirements under WAC 173-340-702 (14), (15) and (16). Once the department has established a carcinogenic potency factor for a hazardous substance under this provision, the department is not required to consult again for the same hazardous substance.

     (((d))) (g) Where a carcinogenic potency factor other than that established under (a), (d) and (e) of this subsection is used to establish cleanup levels or remediation levels at individual sites, the department shall summarize the scientific rationale for the use of that value in the cleanup action plan.      The department shall provide the opportunity for public review and comment on this value in accordance with the requirements of WAC ((173-340-360)) 173-340-380 and 173-340-600.

     (9) Bioconcentration factors.

     (a) For purposes of establishing cleanup levels and remediation levels for a hazardous substance under WAC 173-340-730, a bioconcentration factor established by the United States Environmental Protection Agency and ((utilized)) used to establish the ambient water quality criterion for that substance under section 304 of the Clean Water Act shall be used. These values shall be used unless the department determines that there is ((clear and convincing)) adequate scientific data which demonstrates that the use of an alternate value is more appropriate. If the department determines that a bioconcentration factor is appropriate for a specific hazardous substance and no such factor has been established by USEPA, then other appropriate EPA documents, literature sources or empirical information may be used to determine a bioconcentration factor.

     (b) When ((utilizing)) using a bioconcentration factor other than that ((utilized)) used to establish the ambient water quality criterion, the department shall, as appropriate, consult with the science advisory board, the department of health, and the United States Environmental Protection Agency. Scientific data supporting such a value shall be subject to the requirements under WAC 173-340-702 (14), (15) and (16). Once the department has established a bioconcentration factor for a hazardous substance under this provision, the department is not required to consult again for the same hazardous substance.

     (c) Where a bioconcentration factor other than that established under (a) of this subsection is used to establish cleanup levels or remediation levels at individual sites, the department shall summarize the scientific rationale for the use of that factor in the draft cleanup action plan.      The department shall provide the opportunity for public review and comment on the value in accordance with the requirements of WAC ((173-340-360)) 173-340-380 and 173-340-600.

     (10) Exposure parameters.

     (a) As a matter of policy, the department has defined in WAC 173-340-720 through 173-340-760 the default values for exposure parameters to be used when establishing cleanup levels and remediation levels under this chapter.      ((With the exception of the parameters identified)) Except as provided for in (b) and (c) of this subsection and in WAC 173-340-720 through 173-340-760, these ((parameters)) default values shall not be ((modified)) changed for individual hazardous substances or sites ((in a manner which results in a less stringent cleanup level.      The scientific and technical basis for these parameters shall be reviewed when updating this chapter under WAC 173-340-704(3).

     (b) The department may approve the use of values other than those specified in WAC 173-340-720 through 173-340-760 where there is clear and convincing scientific data which demonstrates that one or more of the following parameters should be modified for an individual hazardous substance or site:

     (i) Gastrointestinal absorption rate;

     (ii) Inhalation correction factor;

     (iii) Bioconcentration factor; or

     (iv) Inhalation absorption rate)).

     (((c))) (b) Exposure parameters that are primarily a function of the exposed population characteristics (such as body weight and lifetime) and those that are primarily a function of human behavior that cannot be controlled through an engineered or institutional control (such as: Fish consumption rate; soil ingestion rate; drinking water ingestion rate; and breathing rate) are not expected to vary on a site-by-site basis. The default values for these exposure parameters shall not be changed when calculating cleanup levels. For remediation levels the default values for these exposure parameters may only be changed when an alternate reasonable maximum exposure scenario is used, as provided for in WAC 173-340-708 (3)(d), that reflects a different exposed population such as using an adult instead of a child exposure scenario. Other exposure parameters may be changed only as follows:

     (i) For calculation of cleanup levels, the types of exposure parameters that may be changed are those that are:

     (A) Primarily a function of reliably measurable characteristics of the hazardous substance, soil, hydrologic or hydrogeologic conditions at the site; and

     (B) Are not dependent on the success of engineered controls or institutional controls for controlling exposure of persons to the hazardous substances at the site.

     The default values for these exposure parameters may be changed where there is adequate scientific data to demonstrate that use of an alternative or additional value would be more appropriate for the conditions present at the site. Examples of exposure parameters for which the default values may be changed under this provision are as follows: Contaminant leaching and transport variables (such as the soil organic carbon content, aquifer permeability and soil sorption coefficient); inhalation correction factor; fish bioconcentration factor; soil gastrointestinal absorption fraction; and inhalation absorption percentage.

     (ii) For calculation of remediation levels, in addition to the exposure parameters that may be changed under (b)(i) of this subsection, the types of exposure parameters that may be changed from the default values are those where a demonstration can be made that the proposed cleanup action uses engineered controls and/or institutional controls that can be successfully relied on, for the reasonably foreseeable future, to control contaminant mobility and/or exposure to the contamination remaining on the site. In general, exposure parameters that may be changed under this provision are those that define the exposure frequency, exposure duration and exposure time. The default values for these exposure parameters may be changed where there is adequate scientific data to demonstrate that use of an alternative or additional value would be more appropriate for the conditions present at the site. Examples of exposure parameters for which the default value may be changed under this provision are as follows: Infiltration rate; frequency of soil contact; duration of soil exposure; duration of drinking water exposure; duration of air exposure; drinking water fraction; and fish diet fraction.

     (c) When the modifications provided for in (b) of this subsection result in significantly higher values for cleanup levels or remediation levels than would be calculated using the default values for exposure parameters, the risk from other potentially relevant pathways of exposure shall be addressed under the procedures provided for in WAC 173-340-720 through 173-340-760. For exposure pathways and parameters for which default values are not specified in this chapter, the framework provided for by this subsection, along with the quality of information requirements in WAC 173-340-702, shall be used to establish appropriate or additional assumptions for these parameters and pathways.

     (d) Where the department approves the use of exposure parameters other than those established under WAC 173-340-720 through 173-340-760 ((are used to establish cleanup levels)) to establish cleanup levels or remediation levels at individual sites, the department shall summarize the scientific rationale for the use of those parameters in the cleanup action plan.      The department shall provide the opportunity for public review and comment on those values in accordance with the requirements of WAC ((173-340-360)) 173-340-380 and 173-340-600. Scientific data supporting such a change shall be subject to the requirements under WAC 173-340-702 (14), (15) and (16).

     (11) ((Methods for defining background concentrations.

     (a) Sampling of hazardous substances in background areas may be conducted to distinguish site-related concentration from nonsite related concentrations of hazardous substances or to support the development of a method C cleanup level under the provisions of WAC 173-340-706.      For purposes of this chapter, two types of background may be determined, natural background and area background concentrations.

     (b) For purposes of defining background concentrations, samples shall be collected from areas that have the same basic characteristics as the medium of concern at the site, have not been influenced by releases from the site and, in the case of natural background concentrations, have not been influenced by releases from other localized human activities.

     (c) The statistical method used to evaluate available data shall be appropriate for the distribution of each hazardous substance.      If the distribution of the hazardous substance data is inappropriate for statistical methods based on a normal distribution, then the data may be transformed.      If the distributions of individual hazardous substances differ, more than one statistical method may be required at a site.      In general, appropriate statistical methods include the following:

     (i) A tolerance interval procedure in which an interval for each hazardous substance is established from the distribution of background data and the cleanup level of each hazardous substance is compared to the lower tolerance limit; and

     (ii) Other statistical methods proposed by the person undertaking the cleanup action and approved by the department.

     (d) If a tolerance interval approach is used to evaluate natural background data, the tolerance interval shall have a coverage of ninety-five percent and a tolerance coefficient of ninety-five percent.      When determining natural background concentrations, sample size of ten or more background soil samples shall be required.      When determining area background concentrations, a sample size of twenty or more soil samples shall be required.      The number of samples for other media shall be sufficient to provide a representative measure of background concentrations and shall be determined on a case-by-case basis.

     (e) For purposes of estimating background concentrations, values below the method detection limit shall be assigned a value equal to one-half of the method detection limit.      Measurements above the method detection limit, but below the practical quantitation limit shall be assigned a value equal to the method detection limit.      The department may approve the use of alternate statistical procedures for handling data below the method detection limit or practical quantitation limit.      Alternate statistical procedures may include probit analysis and regression analysis.

     (12) Significant figures.      Risk assessment results shall be presented using one significant figure.)) Probabilistic risk assessment. Probabilistic risk assessment methods may be used under this chapter only on an informational basis for evaluating alternative remedies. Such methods shall not be used to replace cleanup standards and remediation levels derived using deterministic methods under this chapter until the department has adopted rules describing adequate technical protocols and policies for the use of probabilistic risk assessment under this chapter.

[Statutory Authority: Chapter 70.105D RCW.      91-04-019, § 173-340-708, filed 1/28/91, effective 2/28/91.]

Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.
NEW SECTION
WAC 173-340-709
Methods for defining background concentrations.

(1) Purpose. Sampling of hazardous substances in background areas may be conducted to distinguish site-related concentration from nonsite related concentrations of hazardous substances or to support the development of a Method C cleanup level under the provisions of WAC 173-340-706. For purposes of this chapter, two types of background may be determined, natural background and area background concentrations, as defined in WAC 173-340-200.

     (2) Background concentrations. For purposes of defining background concentrations, samples shall be collected from areas that have the same basic characteristics as the medium of concern at the site, have not been influenced by releases from the site and, in the case of natural background concentrations, have not been influenced by releases from other localized human activities.

     (3) Statistical analysis.

     (a) The statistical methods used to evaluate data sets shall be appropriate for the distribution of each hazardous substance. More than one statistical method may be required at a site.

     (b) Background sampling data shall be assumed to be lognormally distributed unless it can be demonstrated that another distribution is more appropriate.

     (c) For lognormally distributed data sets, background shall be defined as the true upper 90th percentile or four times the true 50th percentile, whichever is lower.

     (d) For normally distributed data sets, background shall be defined as the true upper 80th percentile or four times the true 50th percentile, whichever is lower.

     (e) Other statistical methods may be used if approved by the department.

     (4) Sample size. When determining natural background concentrations for soil, a sample size of ten or more background soil samples shall be required. When determining area background concentrations for soil, a sample size of twenty or more soil samples shall be required. The number of samples for other media shall be sufficient to provide a representative measure of background concentrations and shall be determined on a case-by-case basis.

     (5) Procedures. For the purposes of estimating background concentrations, the following procedures shall be used for measurements below the practical quantitation limit:

     (a) Measurements below the method detection limit shall be assigned a value equal to one-half of the method detection limit.

     (b) Measurements above the method detection limit, but below the practical quantitation limit shall be assigned a value equal to the method detection limit.

     (c) The department may approve the use of alternate statistical procedures for handling data below the method detection limit or practical quantitation limit.

[]

(1) Applicable state and federal laws.

     (((a))) 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 (((3))) (4) of this section, are relevant and appropriate requirements.

     (((b))) (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.

     (((2))) (3) Legally applicable requirements.      Legally applicable requirements include those cleanup standards, standards of control, and other environmental protection requirements, criteria, or limitations ((promulgated)) adopted under state or federal law that specifically address a hazardous substance, cleanup action, location or other circumstances at the site.

     (((3))) (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.

     (((4))) (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.

     (((5))) (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.

     (((6))) (7) Selection of cleanup actions.      To demonstrate compliance with WAC ((173-340-360)) 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 ((which)) 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 ((that)) 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 ((state)) remedial investigation/feasibility study conducted under WAC 173-340-350 shall also comply with the cleanup study plan requirements under chapter 173-204 WAC.      The process for selecting sediment cleanup actions under this chapter shall comply with the requirements in WAC ((173-340-360)) 173-340-350 through 173-340-390.

     (((7))) (8) Interim actions.      Interim actions conducted under this chapter shall comply with legally applicable requirements.      The department may also determine, based on the criteria in subsection (3) of this section, that other requirements, criteria, or limitations are relevant and appropriate for interim actions.

     (9) Permits and exemptions.

     (a) Independent remedial actions must obtain permits required by other federal, state and local laws.

     (b) Under RCW 70.105D.090, remedial actions conducted under a consent decree, order, or agreed order, and the department when it conducts a remedial action are exempt from the procedural requirements of certain laws. This exemption shall not apply if the department determines that the exemption would result in loss of approval from a federal agency necessary for the state to administer any federal law. This exemption applies to the following laws:

     (i) Chapter 70.94 RCW;

     (ii) Chapter 70.95 RCW;

     (iii) Chapter 70.105 RCW;

     (iv) Chapter 75.20 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.

     (ii) The permits proposed for exemption 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 proposed for exemption and seek comment on these exemptions. This notice shall be mailed to the state agencies and local governments that would otherwise implement these permits. This notice shall also be mailed to the same individuals that the state agencies and local government have identified that would normally be mailed notice to if a permit was being issued.

     (iv) Substantive requirements, to the extent known and identified by the state agencies and local governments before issuing the order, decree or work plan and those identified by the state agencies and local government during the public comment period shall be incorporated into the order, decree or work plan if approved by the department.

     (e) It shall be the continuing obligation of persons conducting remedial actions to determine whether additional permits or approvals or substantive requirements are required. In the event that either the person conducting the remedial action or the department becomes aware of additional permits or approvals or substantive requirements that apply to the remedial action, they shall promptly notify the other party of this knowledge. The department, or the potentially liable person at the department's request, shall consult with the state or local agency on these additional requirements. The department shall make the final determination on the application of any additional substantive requirements at the site.

[Statutory Authority: Chapter 70.105D RCW.      91-04-019, § 173-340-710, filed 1/28/91, effective 2/28/91.]

(1) General considerations.

     (a) Ground water 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 ((for)) at most sites use of ground water as a source of drinking water is the beneficial use requiring the highest quality of ground water and that exposure to hazardous substances ((via)) 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 ground water beneficial use, ground water 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 ground water beneficial use, ground water 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, ((treatment, removal, or containment measures)) a cleanup action complying with this chapter shall be conducted to ((reduce)) address all areas where the concentration of the hazardous substance in ground water ((to a concentration consistent with this use unless the following can be demonstrated:)) exceeds cleanup levels.

     (((i))) (c) Ground water 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 ground water 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 ground water defined. Ground water shall be classified as potable to protect drinking water beneficial uses unless the following can be demonstrated:

     (a) The ground water does not serve as a current source of drinking water;

     (((ii))) (b) The ground water is not a potential future source of drinking water for any of the following reasons:

     (((A))) (i) The ground water 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;

     (((B))) (ii) The ground water contains natural background concentrations of organic or inorganic constituents ((which)) that make use of the water ((for)) as a drinking water source not practicable.      Ground water 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

     (((C))) (iii) The ground water is situated at a great depth or location ((which)) that makes recovery of water for drinking water purposes technically impossible; and

     (((iii))) (c) The department determines it is unlikely that hazardous substances will be transported from the contaminated ground water to ground water that is a current or potential future source of drinking water, as defined in (a)(((ii))) and (b) of this subsection, at concentrations which exceed ground water quality criteria published in chapter 173-200 WAC((; or

     (iv) More stringent concentrations are necessary to protect human health or the environment)).

     (((b))) In making a determination under (((a)(iii) of)) this ((subsection)) provision, the department shall consider site-specific factors including:

     (i) The extent of affected ground water;

     (ii) The distance to existing water supply wells;

     (iii) The likelihood of interconnection between the contaminated ground water and ground water 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.

     (((c) The department recognizes that there may be sites where there is an extremely low probability that ground water classified as potential future source of drinking water under (b) of this subsection will actually be used for that purpose (i.e., the shallow ground waters on Harbor Island).      At such sites, the department may approve ground water cleanup levels that are based on protecting beneficial uses of adjacent surface water if the person undertaking the cleanup action can demonstrate all of the following:

     (i) There are known or projected points of entry of the ground water into the surface water;

     (ii) The surface water is not classified as a suitable domestic water supply source under chapter 173-201 WAC;

     (iii) Ground water flows into surface waters will result in no exceedances of surface water cleanup levels at the point of entry or at any downstream location where it is reasonable to believe that hazardous substances may accumulate;

     (iv) The cleanup action includes institutional controls that will prevent the use of contaminated ground water at any point between the source of hazardous substances and the point(s) of entry of the ground water into the surface water; and

     (v) The department determines it is unlikely that hazardous substances will be transported from the contaminated ground water to ground water that is a current or potential future source of drinking water, as defined in (b) of this subsection, at concentrations which exceed ground water quality criteria published in chapter 173-200 WAC.

     (d) Where more stringent cleanup levels are necessary to protect beneficial uses of ground water other than drinking water, the cleanup level shall be established by the department under methods B or C as appropriate.

     (e) Releases of hazardous substances to ground waters of the state shall 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.

     (2) Method A cleanup levels.

     (a) Where the ground water is a current or potential future source of drinking water,)) (d) Even if ground water 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 ground water 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 ground waters in close proximity to marine waters such as on Harbor Island in Seattle. At such sites, the department may allow ground water 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 ground water 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 ground water 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 ground water is sufficiently hydraulically connected to the surface water that the ground water is not practicable to use as a drinking water source.

     (3) Method A cleanup levels for potable ground water.

     (a) Applicability. Method A ground water 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 ((1:)) 720-1 and compliance with the corresponding footnotes;

((Table 1

Method A Cleanup Levels - Ground Water^a

a	Caution on misusing method A tables. Method A tables have been developed for specific purposes. They are intended to provide conservative cleanup levels for sites undergoing routine cleanup actions or those sites with relatively few hazardous substances. The tables may not be appropriate for defining cleanup levels at other sites. For these reasons, the values in these tables should not automatically be used to define cleanup levels that must be met for financial, real estate, insurance coverage or placement, or similar transactions or purposes. Exceedances of the values in these tables do not necessarily trigger requirements for cleanup action under this chapter.
b	Arsenic. Cleanup level based on background concentrations for state of Washington.
c	Benzene. Cleanup level based on applicable state and federal law.
d	Cadmium. Cleanup level based on applicable state and federal law and concentration derived using procedures in subsection (3)(a)(ii)(A) of this section and a hazard quotient of 0.2.
e	Chromium (Total). Cleanup level based on applicable state and federal law.
f	DDT. Cleanup levels based on concentration derived using procedures in subsection (3)(a)(ii)(B) of this section.
g	1,2 Dichloroethane. Cleanup level based on applicable state and federal law.
h	Ethylbenzene. Cleanup level based on applicable state and federal law and prevention of adverse aesthetic characteristics.
i	Ethylene dibromide. Cleanup level based on concentration derived using procedures in subsection (3)(a)(ii)(B) of this section and modified based on analytical considerations.
j	Gross Alpha Particle Activity, excluding uranium. Cleanup level based on applicable state and federal law.
k	Gross Beta Particle Activity, including gamma activity. Cleanup level based on applicable state and federal law.
l	Lead. Cleanup level based on applicable state and federal law and prevention of unacceptable blood lead levels.
m	Lindane. Cleanup level based on concentration derived using procedures in subsection (3)(a)(ii)(B) of this section.
n	Methylene chloride. Cleanup level based on concentration derived using the procedures in subsection (3)(a)(ii)(B) of this section.
o	Mercury. Cleanup level based on applicable state and federal law.
p	PAHs (carcinogenic). Cleanup level based on concentration derived using procedures in subsection (3)(a)(ii)(B) of this section and modified based on analytical considerations.
q	PCB mixtures. Cleanup level based on concentration derived using procedures in subsection (3)(a)(ii)(B) of this section and modified based on analytical considerations.
r	Radium 226 and 228. Cleanup level based on applicable state and federal law.
s	Radium 226. Cleanup level based on applicable state and federal law.
t	Tetrachloroethylene. Cleanup level based on applicable state and federal law.
u	Toluene. Cleanup level based on applicable state and federal law and prevention of adverse aesthetic characteristics.
v	Total Petroleum Hydrocarbons. Cleanup level based on prevention of adverse aesthetic characteristics.
w	1,1,1 Trichloroethane. Cleanup level based on applicable state and federal law.
x	Trichloroethylene. Cleanup level based on applicable state and federal law.
y	Vinyl chloride. Cleanup level based on concentration derived using procedures in subsection (3)(a)(ii)(B) of this section and modified based on analytical considerations.
z	Xylenes. Cleanup level based on applicable state and federal law and prevention of adverse aesthetic characteristics; and))

     (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((, as amended));

     (B) Maximum contaminant level goals for noncarcinogens established under the Safe Drinking Water Act and published in 40 C.F.R. 141((, as amended));

     (C) ((Secondary maximum contaminant levels established under the Safe Drinking Water Act and published in 40 C.F.R. 143, as amended; and

     (D))) Maximum contaminant levels established by the state board of health and published in chapter ((248-54 WAC, as amended)) 246-290 WAC.

     (((b) The department may establish method A cleanup levels more stringent than those required by (a) of this subsection when, based upon site-specific evaluations, the department determines that such levels are necessary to protect human health and the environment.

     (c) Cleanup levels to protect beneficial uses of ground water other than drinking water shall be established by the department under methods B or C, as appropriate.

     (3))) (iii) For hazardous substances deemed indicator hazardous substances for ground water 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.

     (4) Method B cleanup levels for potable ground water.

     (a) Applicability. Method B potable ground water cleanup levels consist of standard and modified cleanup levels determined using the procedures in this subsection. Either standard or modified Method B ground water cleanup levels based on drinking water beneficial uses may be used at any site.

     (b) Standard Method B potable ground water cleanup levels. Where the ground water ((is a current or potential future source of)) 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 (((2)(a))) (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 ((which)) that are estimated to result in no acute or chronic toxic effects on human health as determined using ((the following equation and standard exposure assumptions:)) Equation 720-1.

[Equation 720-1]
Ground water cleanup level =           (ug/l)		RfD x ABW x UCF x HQ DWIR x INH x DWF
Where:
RfD =	Reference dose as specified in WAC 173-340-708(7) (mg/kg-day)
ABW =	Average body weight during the period of exposure (16 kg)
UCF =	Unit conversion factor (1,000 ug/mg)
HQ =	Hazard quotient (1) (unitless)
DWIR =	Drinking water ingestion rate (1.0 liter/day)
INH =	Inhalation correction factor ((as defined in WAC 173-340-720(7);)) (use value of 2 for volatile organic compounds and 1 for all other substances [unitless])
DWF =	Drinking water fraction (1.0) (unitless)

     (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 ((1 in 1,000,000)) one in one million (1 x 10^-6) as determined using ((the following equation and standard exposure assumptions:)) Equation 720-2.

[Equation 720-2]
Ground water cleanup level =           (ug/l)		RISK x ABW x LIFE x UCF CPF x DWIR x DUR x INH x DWF
Where:
RISK =	Acceptable cancer risk level (1 in 1,000,000) (unitless)
ABW =	Average body weight during the period of exposure (70 kg)
LIFE =	Lifetime (75 years)
UCF =	Unit conversion factor (1,000 ug/mg)
CPF =	Carcinogenic potency factor as specified in WAC 173-340-708(8) (kg-day/mg)
DWIR =	Drinking water ingestion rate (2.0 liters/day)
DUR =	Duration of exposure (30 years)
INH =	Inhalation correction factor ((as defined in WAC 173-340-720(7);)) (use value of 2 for volatile organic compounds and 1 for all other substances [unitless])
DWF =	Drinking water fraction (1.0) (unitless)

     (((b) The department may establish method B cleanup levels that are more stringent than those required by subsection (3)(a) of this section, when, based on site-specific evaluations, the department determines such levels are necessary to protect human health and the environment.      This may include the following:

     (i) Concentrations which are necessary to protect sensitive sub-groups;

     (ii) Concentrations which eliminate or minimize the potential for food chain contamination;

     (iii) Concentrations which 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 which 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 which protect nearby surface waters.      In general, these will be based on attaining surface water cleanup levels in the surface water as close as technically possible to the point or points where the ground water flows into the surface water.

     (c) Method B cleanup levels to protect beneficial uses of ground water other than drinking water shall be established by the department on a case-by-case basis.

     (4))) (C) Petroleum mixtures. For noncarcinogenic effects of petroleum mixtures, a total petroleum hydrocarbon cleanup level shall be calculated taking into account the additive effects of the petroleum fractions and volatile organic compounds present in the petroleum mixture. Equation 720-3 shall be used for this calculation. Cleanup levels for other noncarcinogens and known or suspected carcinogens within the petroleum mixture shall be calculated using Equations 720-1 and 720-2. See Table 830-1 for the analyses required for various petroleum products to use this method. A total petroleum hydrocarbon cleanup level for petroleum mixtures derived using Equation 720-3 shall be adjusted when necessary so that biological degradation of the petroleum does not result in exceedances of the maximum contaminant levels in chapter 246-290 WAC.

[Equation 720-3]

     (5) Method C cleanup levels for potable ground water.

     (a) ((Method C cleanup levels may be approved by the department if the person undertaking the cleanup action can demonstrate that such levels are consistent with applicable state and federal laws, that all practicable methods of treatment have been utilized, that institutional controls are implemented in accordance with WAC 173-340-440, and that one or more of the conditions in WAC 173-340-706(1) exist.

     (b) Where the ground water is a current or potential future source of drinking water as defined in subsection (1)(a) of this section, method C cleanup levels for ground water shall be at least as stringent as all of the following:

     (i) Concentrations established under applicable state and federal laws, including the requirements in subsection (2)(a)(ii) of this section;

     (ii) For hazardous substances for which sufficiently protective, health-based standards or criteria have not been established under applicable state and federal laws, those concentrations that protect human health as determined using the following methods:

     (A) Concentrations which are estimated to result in no significant acute or chronic toxic effects on human health and are estimated in accordance with WAC 173-340-720 (3)(a)(ii)(A) except that the average body weight shall be 70 kg and the drinking water intake rate shall be 2 liters/day;

     (B) Concentrations for which the upper bound on the estimated excess cancer risk is less than or equal to 1 in 100,000 and are estimated in accordance with WAC 173-340-720 (3)(a)(ii)(B);

     (c) The department may establish method C cleanup levels that are more stringent than those required by (b) of this subsection when, based on a site-specific evaluation, the department determines such levels are necessary to protect human health and the environment.      This may include consideration of those factors listed in subsection (3)(b) of this section.

     (d) Method C cleanup levels that protect beneficial uses of ground water other than drinking water shall be established by the department on a case-by-case basis.

     (5) Multiple hazardous substances/multiple pathways of exposure.)) Applicability. Method C potable ground water cleanup levels consist of standard and modified cleanup levels as described in this subsection.

     The department may approve of both standard and modified Method C ground water cleanup levels based on drinking water beneficial uses only at sites qualifying under WAC 173-340-706(1).

     (b) Standard Method C potable ground water cleanup levels. Where the ground water cleanup level is based on a drinking water beneficial use and the site qualifies for a Method C ground water cleanup level, the standard Method C cleanup levels for ground water 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 standards or criteria have not been established under applicable state and federal laws, those concentrations that protect human health as determined using the following methods:

     (A) Noncarcinogens. Concentrations that are estimated to result in no significant acute or chronic toxic effects on human health and are estimated using Equation 720-1, except that the average body weight shall be 70 kg and the drinking water intake rate shall be 2 liters/day;

     (B) Carcinogens. Concentrations for which the upper bound on the estimated excess cancer risk is less than or equal to one in one hundred thousand (1 x 10^-5), using Equation 720-2;

     (C) Petroleum mixtures. Cleanup levels for petroleum mixtures shall be determined as specified in subsection (4)(b)(ii)(C) of this section except that the average body weight shall be 70 kg and the drinking water rate shall be 2 liters/day.

     (c) Modified Method C potable ground water cleanup levels. Modified Method C ground water cleanup levels for drinking water beneficial uses are standard Method C ground water cleanup levels modified with chemical-specific or site-specific data. The same limitations and adjustments specified for modified Method B in subsection (4)(c) of this section apply to modified Method C ground water cleanup levels.

     (d) Using Modified Method C to evaluate ground water remediation levels. In addition to the adjustments allowed under (c) of this subsection, other adjustments to the reasonable maximum exposure scenario or default exposure assumptions are allowed when using a quantitative site-specific risk assessment to evaluate the protectiveness of a remedy. See WAC 173-340-355, 173-340-357, and 173-340-708 (3)(d) and (10)(b).

     (6) Cleanup levels for nonpotable ground water.

     (a) Applicability. Ground water cleanup levels may be established under this subsection only if the contaminated ground water is not classified as potable under subsection (2) of this section.

     (b) Requirements. Cleanup levels shall be established in accordance with either of the following:

     (i) The methods specified in subsections (3), (4) or (5) of this section, as applicable, for protection of drinking water beneficial uses; or

     (ii) A site-specific risk assessment as provided for under (c) of this subsection for protection of other ground water beneficial uses.

     (c) Site-specific risk assessment.

     (i) Method B site-specific ground water cleanup levels. Where a site-specific risk assessment is used to establish a Method B ground water cleanup level under (b)(ii) of this subsection, the risk assessment shall conform to the requirements in WAC 173-340-702 and 173-340-708. The risk assessment shall evaluate all potential exposure pathways and ground water uses at the site, including potential impacts to persons engaged in site development or utility construction and maintenance activities. The risk assessment shall demonstrate the following:

     (A) The cleanup levels will meet any applicable state and federal laws (drinking water standards are not applicable to these sites);

     (B) The cleanup levels will result in no significant acute or chronic toxic effects on human health as demonstrated by not exceeding a hazard quotient of one (1) for individual hazardous substances;

     (C) The cleanup levels will result in an upper bound on the estimated excess cancer risk that is less than or equal to one in one million (1 x 10^-6) for individual hazardous substances;

     (D) For organic hazardous substances and petroleum products, the cleanup levels comply with the limitation on free product in subsection (7)(d) of this section;

     (E) The cleanup levels will not exceed the surface water cleanup levels derived under WAC 173-340-730 at the ground water point of compliance or exceed the surface water or sediment quality standards at any point downstream, 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; and

     (F) Where it is demonstrated that hazardous substances are not likely to reach surface water, the use of a ground water cleanup level less stringent than a surface water cleanup level will not pose a threat to surface water through pathways that could result in ground water affected by the site entering surface water (such as use of the water for irrigation or discharges from foundation drains or utility corridors).

     (ii) Method C site-specific ground water cleanup levels.

     (A) Applicability. The department may approve of a site-specific Method C ground water cleanup level derived under (b)(ii) of this subsection only at sites qualifying under WAC 173-340-706(1).

     (B) Requirements. Where a site-specific risk assessment is used to establish a Method C ground water cleanup level under (b)(ii) of this subsection, the site-specific risk assessment shall comply with the requirements in (c)(i) of this subsection except that the level of risk for individual carcinogens shall be one in one hundred thousand (1 x 10^-5).

     (iii) Limitations on the use of site-specific risk assessment. If the site-specific risk assessment results in a Method B or Method C ground water cleanup level that exceeds the applicable potable ground water cleanup level derived under (b)(i) of this subsection, then the potable ground water cleanup level shall be used unless the following conditions are met:

     (A) All potentially affected property owners, local governments, tribes and water purveyors with jurisdiction in the area potentially affected by the ground water contamination have been mailed a notice of the proposal and provided an opportunity to comment. The notice shall specifically ask for information on existing and planned uses of the ground water. The notice shall be in addition to any notice provided under WAC 173-340-600. In determining whether it is appropriate to use a cleanup level less stringent than the potable ground water cleanup level, the department will give greater weight to information based on an adopted or pending plan or similar preexisting document.

     (B) The cleanup action includes institutional controls complying with WAC 173-340-440 that will prevent the use of contaminated ground water for drinking water purposes at any point between the source of hazardous substances and the point(s) of entry of ground water into the surface water.

     (7) Adjustments to cleanup levels.

     (a) Total site risk adjustments. Ground water cleanup levels for individual hazardous substances developed in accordance with subsection((s (3) and)) (4), (5) or (6) of this section, including those based on applicable state and federal laws, shall be adjusted downward to take into account exposure to multiple hazardous substances and/or exposure resulting from more than one pathway of exposure.      These adjustments need to be made only if, without these adjustments, the hazard index would exceed one (1) or the total excess cancer risk would exceed one in one hundred thousand (1 x 10^-5). These adjustments shall be made in accordance with the procedures in WAC 173-340-708 (5) and (6).      In making these adjustments, the hazard index shall not exceed one (1) and the total excess cancer risk shall not exceed one in one hundred thousand (1 x 10^-5).

     (b) ((The overall limits on the hazard index and total excess cancer risk shall also apply to sites where there is exposure to a single hazardous substance by one exposure pathway, including cleanup levels based on applicable state and federal laws.

     (6))) Adjustments to applicable state and federal laws. Where a cleanup level developed under subsection (3), (4), (5), or (6) of this section is based on an applicable state or federal law and the level of risk upon which the standard is based exceeds an excess cancer risk of one in one hundred thousand (1 x 10^-5) or a hazard index of one (1), the cleanup level shall be adjusted downward so that the total excess cancer risk does not exceed one in one hundred thousand (1 x 10^-5) and the hazard index does not exceed one (1) at the site.

     (c) Natural background and PQL considerations. Cleanup levels determined under subsection (3), (4), (5), or (6) of this section, including cleanup levels adjusted under subsection (7)(a) and (b) of this section, shall not be set at levels below the practical quantitation limit or natural background concentrations. See WAC 173-340-707 and 173-340-709 for additional requirements pertaining to practical quantitation limits and natural background.

     (d) Free product limitation. For organic hazardous substances and total petroleum hydrocarbons, the cleanup level determined under subsection (3), (4), (5), or (6) shall not exceed a concentration that would result in free product being present in or on the ground water. Physical observations of ground water at or above the cleanup level, such as the lack of a film, sheen, or discoloration of the ground water or lack of sludge or emulsion in the ground water, may be used to determine compliance with this requirement.

     (8) Point of compliance.

     (a) Point of compliance defined. For ground water, the point of compliance is the point or points where the ground water cleanup levels established under subsection((s (2),)) (3), (4), ((and)) (5), or (6) of this section must be attained for a site to be in compliance with the cleanup standards.      Ground water cleanup levels shall be attained in all ground waters from the point of compliance to the outer boundary of the hazardous substance plume.

     (b) Standard point of compliance for all sites. The standard point of compliance shall be established throughout the site from the uppermost level of the saturated zone extending vertically to the lowest most depth which could potentially be affected by the site.

     (c) ((Where hazardous substances remain on-site as part of the cleanup action,)) Conditional point of compliance. Where it can be demonstrated under WAC 173-340-350 through 173-340-390 that it is not practicable to meet the cleanup level throughout the site within a reasonable restoration time frame, the department may approve a conditional point of compliance ((which)) that shall be as close as practicable to the source of hazardous substances, and except as provided under (d) of this subsection, not to exceed the property boundary.      Where a conditional point of compliance is proposed, the person responsible for undertaking the cleanup action shall demonstrate that all practicable methods of treatment are to be ((utilized)) used in the site cleanup.

     (d) ((At sites where the affected ground water flows into nearby surface water, the cleanup level may be based on protection of the surface water.      At these sites)) Off-property conditional point of compliance. A conditional point of compliance shall not exceed the property boundary except in the three situations described below. In each of these three situations the person responsible for undertaking the cleanup action shall demonstrate that, in addition to making the demonstration required by (c) of this subsection, the following requirements are met:

     (i) Sites abutting surface water. Where the ground water cleanup level is based on protection of surface water beneficial uses under subsection (3), (4), (5), or (6) of this section, and the property containing the source of contamination directly abuts the surface water, the department may approve a conditional point of compliance that is located within the surface water as close as technically possible to the point or points where ground water flows into the surface water((.      Conditional points of compliance may be approved only if the following requirements are met)) subject to the following conditions:

     (((i))) (A) It has been demonstrated that the contaminated ground water is entering the surface water and will continue to enter the surface water even after implementation of the selected cleanup action;

     (B) It has been demonstrated under WAC 173-340-350 through 173-340-390 that it is not practicable to meet the cleanup level at a point within the ground water before entering the surface water, within a reasonable restoration time frame;

     (C) Use of a ((dilution)) mixing zone under WAC ((173-201-035)) 173-201A-100 to demonstrate compliance with surface water cleanup levels shall not be allowed;

     (((ii))) (D) Ground water discharges shall be provided with all known available and reasonable methods of treatment ((prior to release)) before being released into surface waters;

     (((iii))) (E) Ground water discharges shall not result in violations of sediment quality values published in chapter 173-204 WAC; ((and

     (iv))) (F) Ground water and surface water monitoring shall be ((performed to estimate contaminant flux rates and to address)) conducted to assess the long-term performance of the selected cleanup action including potential bioaccumulation problems resulting from surface water concentrations below method detection limits((.

     (7) Inhalation correction factors.

     (a) The inhalation correction factor is an adjustment factor which takes into account exposure to hazardous substances which are volatilized and inhaled during showering and other domestic activities.      When available, hazardous substance-specific information shall be used to estimate these values.

     (b) Where hazardous substance-specific information is not available, inhalation correction factors shall be one of the following:

     (i) For volatile organic hazardous substances, 2; or

     (ii) Other hazardous substances, 1.

     (c) Where separate toxicity factors (reference doses and carcinogenic potency factors) are available for inhalation and oral exposures, the health hazards associated with the inhalation of hazardous substances in ground water during showering and other domestic activities may be evaluated separately from the health hazards associated with ingestion of drinking water.      In these cases, the ground water cleanup level based on ingestion of drinking water shall be modified to take into account multiple exposure pathways in accordance with WAC 173-340-708(6).

     (8))); and

     (G) Before approving the conditional point of compliance, a notice of the proposal shall be mailed to the natural resource trustees, the Washington state department of natural resources and the United States Army Corps of Engineers. The notice shall be in addition to any notice provided under WAC 173-340-600 and invite comments on the proposal.

     (ii) Sites near, but not abutting, surface water. Where the ground water cleanup level is based on protection of surface water beneficial uses under subsection (3), (4), (5), or (6) of this section and the property that is the source of the contamination is located near, but does not directly abut, a surface water body, the department may approve a conditional point of compliance that is located as close as practicable to the source, not to exceed the point or points where the ground water flows into the surface water.

     For a conditional point of compliance to be approved under this provision the conditions specified in (d)(i) of this section must be met and the affected property owners between the source of contamination and the surface water body must agree to the use of the conditional point of compliance. Also, if the contamination has not reached the surface water, the conditional point of compliance cannot extend beyond the extent of ground water contamination at the time the department approves the conditional point of compliance.

     (iii) Area-wide conditional point of compliance. As part of remedy selection, the department may approve an area-wide conditional point of compliance to address an area-wide ground water contamination problem. The area-wide conditional point(s) of compliance shall be as close as practicable to each source of hazardous substances, not to exceed the extent of ground water contamination at the time the department approves an area-wide conditional point of compliance.

     This provision may be applied only at areas that are affected by hazardous substances released from multiple sources that have resulted in commingled plumes of contaminated ground water that are not practicable to address separately. A site may have more than one area-wide conditional point of compliance to address multiple sources and types of contaminants. An area-wide conditional point of compliance may be approved under this provision only if all of the following conditions have been met:

     (A) The person conducting the cleanup action has complied with WAC 173-340-350 through 173-340-390, including a demonstration that it is not practicable to meet a point of compliance throughout the ground water contamination within a reasonable restoration time frame;

     (B) A plan has been developed for implementation of the cleanup action, including a description of how any necessary access to the affected properties will be obtained;

     (C) If the contaminated ground water is considered to be potable under WAC 173-340-720(2), current developments in the area encompassed by the area-wide conditional point of compliance and any other areas potentially affected by the ground water contamination are served by a public water system that obtains its water from an offsite source and it can be demonstrated that the water system has sufficient capacity to serve future development in these areas. This demonstration may be made by obtaining a written statement to this effect from the water system operator;

     (D) All property owners, tribes, local governments, and water purveyors with jurisdiction in the area potentially affected by the ground water contamination, have been mailed a notice of the proposal to establish an area-wide conditional point of compliance and provided an opportunity to comment. The notice shall specifically ask for information on existing and planned uses of the ground water. The notice shall be in addition to any notice provided under WAC 173-340-600. The department will give greater weight to information based on an adopted or pending plan or similar preexisting document. When the department is providing technical assistance under WAC 173-340-515, the department shall also provide notice and an opportunity to comment to the public through the Site Register before issuing a written opinion.

     (E) Other conditions as determined by the department on a case-by-case basis.

     (e) Monitoring wells and surface water compliance.

     (i) The department may require or approve the use of upland monitoring wells located between the surface water and the source of contamination to establish compliance where a conditional point of compliance has been established under subsection (8)(d)(i) or (ii) of this section.

     (ii) Where such monitoring wells are used, the department should consider an estimate of natural attenuation between the monitoring well and the point or points where ground water flows into the surface water in evaluating whether compliance has been achieved.

     (iii) When evaluating how much, if any, natural attenuation will occur, the department shall consider site-specific factors including:

     (A) Whether the ground water could reach the surface water in ways that would not provide for natural attenuation within the ground water flow system (such as short circuiting through high permeability zones, utility corridors or foundation drains); and

     (B) Whether changes to the ground water chemistry due to natural attenuation processes would cause an exceedance of surface water or sediment quality standards.

     (9) Compliance monitoring.

     (a) When ground water cleanup levels have been established at a site, sampling of the ground water shall be conducted to determine if compliance with the ground water cleanup levels has been achieved. Compliance with ground water cleanup levels shall be determined by ((analyses of)) analysis of ground water samples representative of the ground water. Surface water analysis, bioassays or other biomonitoring methods may also be required where the ground water cleanup level is based on protection of surface water. Sampling and analytical procedures shall be defined in a compliance monitoring plan prepared under WAC 173-340-410. The sample design shall provide data that are representative of the site.

     (b) Analyses shall be conducted on unfiltered ground water samples, unless it can be demonstrated that a filtered sample provides a more representative measure of ground water quality.      Ecology expects that filtering will generally be acceptable for iron and manganese and other naturally occurring inorganic substances where:

     (i) A properly constructed monitoring well cannot be sufficiently developed to provide low turbidity water samples;

     (ii) Due to the natural background concentration of hazardous substances in the aquifer material, unfiltered samples would not provide a representative measure of ground water quality; and

     (iii) Filtering is performed in the field with all practicable measures taken to avoid exposing the ground water sample to the ambient air ((prior to)) before filtering.

     (((iv) Ecology expects that filtering will generally be allowed for hazardous substances such as iron and manganese.

     (b) Sampling and analytical procedures shall be defined in a compliance monitoring plan prepared under WAC 173-340-410.      The sample design shall provide data which are representative of the site.))

     (c) The data analysis and evaluation procedures used to evaluate compliance with ground water cleanup levels shall be defined in a compliance monitoring plan prepared under WAC 173-340-410.      These procedures shall meet the following general requirements:

     (i) Methods of data analysis shall be consistent with the sampling design;

     (ii) When cleanup levels are based on requirements specified in applicable state and federal laws, the procedures for evaluating compliance that are specified in those requirements shall be ((utilized)) used to evaluate compliance with cleanup levels unless those procedures conflict with the intent of this section;

     (iii) Where procedures for evaluating compliance are not specified in an applicable state and federal law, statistical methods used shall be appropriate for the distribution of sampling data for each hazardous substance.      ((If the distribution of sampling data for a hazardous substance is inappropriate for statistical methods based on a normal distribution, then the data may be transformed.))      If the distributions for hazardous substances differ, more than one statistical method may be required;

     (iv) Compliance with ground water cleanup levels shall be determined for each ground water monitoring well or other monitoring points such as a spring;

     (v) The data analysis procedures identified in the compliance monitoring plan shall specify the statistical parameters to be used to determine compliance with ground water cleanup levels.

     (A) For ((clean)) cleanup levels based on short-term or acute toxic effects on human health or the environment, an upper percentile concentration shall be used to evaluate compliance with ground water cleanup levels.

     (B) For cleanup levels based on chronic or carcinogenic threats, the true mean concentration shall be used to evaluate compliance with ground water cleanup levels ((unless there are large variations in concentrations relative to the mean concentration or a large percentage of concentrations below the detection limit;)).

     (vi) When active ground water restoration is performed, or containment technologies are used that incorporate active pumping of ground water, compliance with ground water cleanup levels shall be determined when the ground water characteristics at the site are no longer influenced by the cleanup action.

     (d) ((Appropriate statistical methods include the following:

     (i) A procedure in which a confidence interval for each hazardous substance is established from ground water sampling data and the ground water cleanup level is compared to the upper confidence interval; and)) When data analysis procedures for evaluating compliance are not specified in an applicable state or federal law, the following procedures shall be used:

     (i) A confidence interval approach that meets the following requirements:

     (A) The upper one-sided ninety-five percent confidence limit on the true mean ground water concentration shall be less than the ground water cleanup level. For lognormally distributed data, the upper one-sided ninety-five percent confidence limit shall be calculated using Land's method; and

     (B) Data shall be assumed to be lognormally distributed unless this assumption is rejected by a statistical test. If a lognormal distribution is inappropriate, data shall be assumed to be normally distributed unless this assumption is rejected by a statistical test. The W test, D'Agostino's test, or, censored probability plots, as appropriate for the data, shall be the statistical methods used to determine whether the data is lognormally or normally distributed.

     (ii) Evaluations conducted under subsection (10)(c)(v)(A) of this subsection may use a parametric test for percentiles based on tolerance intervals to test the proportion of ground water samples having concentrations less than the ground water cleanup level. When using this method, the true proportion of samples that exceed the ground water cleanup level shall be less than ninety percent. Statistical tests shall be performed with a Type I error level of 0.05; or

     (iii) Other statistical methods approved by the department.

     (e) ((If a confidence interval approach is used to evaluate compliance with a ground water cleanup level, the decision rule is a one-tailed test of the null hypothesis that the true ground water concentration exceeds the ground water cleanup level.      Compliance with a ground water cleanup level shall be determined using the following criteria:)) All data analysis methods used, including those specified in state or federal law, must meet the following requirements:

     (i) ((The upper confidence limit on the true ground water concentration shall be less than the ground water cleanup level.      Statistical tests shall be performed at a Type I error level of 0.05;

     (ii))) No single sample concentration shall be greater than two times the ground water cleanup level. Higher exceedances to control false positive error rates at five percent may be approved by the department when the cleanup level is based on background concentrations; and

     (((iii))) (ii) Less than ten percent of the sample concentrations shall exceed the ground water cleanup level during a representative sampling period. Higher exceedances to control false positive error rates at five percent may be approved by the department when the cleanup level is based on background concentrations; and

     (f) ((If a method to test the proportion of ground water samples is used to evaluate compliance with a ground water cleanup level, compliance shall be determined using the following criteria:

     (i) The true proportion of samples that exceed the ground water cleanup level shall be less than fifty percent.      Statistical tests shall be performed with a Type I error level of 0.05; and

     (ii) No single sample concentration shall be greater than two times the ground water cleanup level; and

     (iii) Less than ten percent of the sample concentrations shall exceed the ground water cleanup level during a representative sampling period.

     (g) For purposes of demonstrating)) When using statistical methods to demonstrate compliance with ground water cleanup levels, the following procedures shall be used for measurements below the practical quantitation limit:

     (i) Measurements below the method detection limit shall be assigned a value equal to one-half the method detection limit when not more than fifteen percent of the measurements are below the practical quantitation limit.

     (ii) Measurements above the method detection limit but below the practical quantitation limit shall be assigned a value equal to the method detection limit when not more than fifteen percent of the measurements are below the practical quantitation limit.

     (iii) When between fifteen and fifty percent of the measurements are below the practical quantitation limit and the data are assumed to be lognormally or normally distributed, Cohen's method shall be used to calculate a corrected mean and standard deviation for use in calculating an upper confidence limit on the true mean ground water concentration.

     (iv) If more than fifty percent of the measurements are below the practical quantitation limit, the largest value in the data set shall be used in place of an upper confidence limit on the true mean ground water calculation.

     (v) If a hazardous substance or petroleum fraction has never been detected in any sample at a site and these substances are not suspected of being present at the site based on site history and other knowledge, that hazardous substance or petroleum fraction may be excluded from the statistical analysis.

     (vi) The department may approve alternate statistical procedures for handling nondetected values or values below the practical quantitation limit.      ((Alternate procedures may include probit analysis and regression analysis.))

[Statutory Authority: Chapter 70.105D RCW.      91-04-019, § 173-340-720, filed 1/28/91, effective 2/28/91.]

Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.
AMENDATORY SECTION(Amending WSR 91-04-019, filed 1/28/91, effective 2/28/91)

WAC 173-340-730
Surface water cleanup standards.

(1) General considerations.

     (a) Surface water 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 classification and the highest beneficial use of a surface water body ((shall be)), determined in accordance with chapter ((173-201)) 173-201A WAC, ((as amended.)) shall be used to establish the reasonable maximum exposure for that water body. Surface water cleanup levels shall use this presumed exposure scenario and shall be established in accordance with this section.

     (b) In the event of a release of a hazardous substance to surface water from a site, ((treatment, removal, or containment measures)) a cleanup action that complies with this chapter shall be conducted to ((reduce the level of hazardous substances in surface water to concentrations consistent with uses specified under this section and chapter 173-201 WAC, as amended)) address all areas of the site where the concentration of the hazardous substances in the surface water exceeds cleanup levels.

     (((b))) (c) Surface water cleanup levels established under this section apply to those surface waters of the state affected or potentially affected by releases of hazardous substances from sites addressed under this chapter.      Ecology does not expect that cleanup standards will be applied to storm water runoff that is in the process of being conveyed to a treatment system.

     (((c) Releases of hazardous substances to)) (d) Surface water((s of the state)) cleanup levels shall be established at concentrations that do not directly or indirectly cause violations of ground water, soil, sediment, or air cleanup standards established under this chapter or other applicable state and federal laws. A site that qualifies for a Method C surface water 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.

     (e) 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.

     (2) Method A surface water cleanup levels.

     (a) Applicability. Method A surface water cleanup levels may only be used at sites that qualify under WAC 173-340-704(1).

     (b) General requirements. Method A surface water cleanup levels shall be at least as stringent as all of the following:

     (i) Concentrations established under applicable state and federal laws, including the following requirements:

     (((i))) (A) All water quality criteria published in the water quality standards for surface waters of the state of Washington, chapter 173-201A WAC, as amended;

     (((ii))) (B) Water quality criteria based on the protection of aquatic organisms (acute and chronic criteria) and human health published ((pursuant to)) under section 304 of the Clean Water Act.

     (((b) The department may establish method A cleanup levels that are more stringent than those required under subsection (2)(a) of this section, when, based on site-specific evaluations, the department determines that such levels are necessary to protect human health and the environment.)) (C) National toxics rule (40 C.F.R. Part 131);

     (ii) For surface waters that are classified as suitable for use as a domestic water supply under chapter 173-201A (excluding marine waters), concentrations derived using the methods specified in WAC 173-340-720 for drinking water beneficial uses; and

     (iii) For a hazardous substance deemed an indicator hazardous substance for surface water under WAC 173-340-708(2) and for which there is no value in applicable state and federal laws, a concentration that does not exceed the natural background concentration or the practical quantitation limit, subject to the limitations in this chapter.

     (3) Method B surface water cleanup levels.

     (a) Applicability. Method B surface water cleanup levels consist of standard and modified cleanup levels as described in this subsection. Either standard or modified Method B surface water cleanup levels may be used at any site.

     (b) Standard Method B surface water cleanup levels. Standard Method B cleanup levels for surface waters 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 following requirements:

     (A) All water quality criteria published in the water quality standards for surface waters of the state of Washington, chapter ((173-201)) 173-201A WAC((, as amended; and));

     (B) Water quality criteria based on the protection of aquatic organisms (acute and chronic criteria) and human health published ((pursuant to)) under section 304 of the Clean Water Act unless it can be demonstrated that such criteria are not relevant and appropriate for a specific surface water body or hazardous substance((.)); and

     (C) National toxics rule (40 C.F.R. Part 131);

     (ii) Environmental effects. For hazardous substances for which environmental effects-based concentrations have not been established under applicable state or federal laws, concentrations ((which)) that are estimated to result in no adverse effects on the protection and propagation of wildlife, fish, and other aquatic life. Whole effluent toxicity testing using the protocols described in chapter 173-205 WAC may be used to make this demonstration for fish and aquatic life;

     (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)) that protect human health as determined by the following methods:

     (A) Noncarcinogens. For surface waters ((which)) that support or have the potential to support fish or shellfish populations, concentrations which are ((anticipated)) estimated to result in no acute or chronic toxic effects on human health as determined using ((the following)) Equation((s and standard exposure assumptions:)) 730-1.

[Equation 730-1]
Surface water cleanup level =           (ug/l)		RfD x ABW x UCF1 x UCF2 x HQ BCF x FCR x FDF
Where:
RfD =	Reference dose as specified in WAC 173-340-708(7) (mg/kg-day)
ABW =	Average body weight during the exposure period (70 kg)
UCF1 =	Unit conversion factor (1,000 ug/mg)
UCF2 =	Unit conversion factor (1,000 grams/liter)
BCF =	((Fish)) Bioconcentration factor as defined in WAC 173-340-708(9) (((unitless))) (liters/kilogram)
FCR =	Fish consumption rate (54 grams/day)
FDF =	Fish diet fraction (0.5) (unitless)
HQ =	Hazard ((Index)) quotient (1) (unitless)

     (B) Carcinogens. For surface waters which support or have the potential to support fish or shellfish populations, concentrations ((which)) that are ((anticipated)) estimated to result in an excess cancer risk less than or equal to ((1 in 1,000,000)) one in one million (1 x 10^-6) as determined using ((the following)) Equation ((and standard exposure assumptions:)) 730-2.

[Equation 730-2]
Surface water cleanup level =           (ug/l)		RISK x ABW x LIFE x UCF1 x UCF2 CPF x BCF x FCR x FDF x DUR
Where:
CPF =	Carcinogenic potency factor as specified in WAC 173-340-708(8) (kg-day/mg)
RISK =	Acceptable cancer risk level (1 in 1,000,000) (unitless)
ABW =	Average body weight during the exposure period (70 kg)
LIFE =	Lifetime (75 years)
UCF1 =	Unit conversion factor (1,000 ug/mg)
UCF2 =	Unit conversion factor (1,000 grams/liter)
BCF =	((Fish)) Bioconcentration factor as defined in WAC 173-340-708(9) (((unitless))) (liters/kilogram)
FCR =	Fish consumption rate (54 grams/day)
FDF =	Fish diet fraction (0.5) (unitless)
DUR =	Duration of exposure (30 years)((;))

     (C) Petroleum mixtures. For noncarcinogenic effects of petroleum mixtures, a total petroleum hydrocarbon cleanup level shall be calculated using Equation 730-1 and by taking into account the additive effects of the petroleum fractions and volatile hazardous substances present in the petroleum mixture. As an alternative to this calculation, the total petroleum hydrocarbon cleanup levels in Table 720-1 may be used. Cleanup levels for other noncarcinogens and known or suspected carcinogens within the petroleum mixture shall be calculated using Equations 730-1 and 730-2. See Table 830-1 for the analyses required for various petroleum products to use this method; and

     (iv) Drinking water considerations. For surface waters ((which represent a source or potential future source of drinking water)) that are classified as suitable for use as a domestic water supply under chapter 173-201A WAC, concentrations ((which are anticipated to result in no adverse impacts on human health as established in accordance with)) derived using the methods specified in WAC 173-340-720(((3))) for drinking water beneficial uses.

     (c) Modified Method B surface water cleanup levels. Modified Method B surface water cleanup levels are standard Method B surface water cleanup levels modified with chemical-specific or site-specific data. When making these adjustments, the resultant cleanup levels shall meet applicable state and federal laws and health risk levels required for standard Method B surface water cleanup levels. Changes to exposure assumptions must comply with WAC 173-340-708(10). The following adjustments may be made to the default assumptions in the standard Method B equations to derive modified Method B surface water cleanup levels:

     (i) Adjustments to the reference dose and cancer potency factor may be made if the requirements in WAC 173-340-708 (7) and (8) are met;

     (ii) Adjustments to the bioconcentration factor may be made if the requirements in WAC 173-340-708(9) are met;

     (iii) Where a numeric environmental effects-based water quality standard does not exist, bioassays that use methods other than those specified in chapter 173-205 WAC may be approved by the department to establish concentrations for the protection of fish and other aquatic life;

     (iv) The toxicity equivalency factor procedures described in WAC 173-340-708(8) may be used for assessing the potential carcinogenic risk of mixtures of chlorinated dibenzo-p-dioxins, chlorinated dibenzofurans and polycyclic aromatic hydrocarbons; and

     (v) Modifications incorporating new science as provided for in WAC 173-340-702 (14), (15) and (16).

     (d) Using modified Method B to evaluate surface water remediation levels. In addition to the adjustments allowed under subsection (3)(c) of this section, adjustments to the reasonable maximum exposure scenario or default exposure assumptions are allowed when using a quantitative site-specific risk assessment to evaluate the protectiveness of a remedy. See WAC 173-340-355, 173-340-357, and 173-340-708 (3)(d) and (10)(b).

     (((b) The department may establish method B cleanup levels more stringent than those required by subsection (3)(a) of this section, when, based on site-specific evaluations, the department determines that such levels are necessary to protect human health and the environment.))

     (4) Method C surface water cleanup levels.

     (a) Applicability. Method C surface water cleanup levels consist of standard and modified cleanup levels as described in this subsection. Either standard or modified Method C cleanup levels may be approved by the department if the person undertaking the cleanup action can demonstrate that such levels are consistent with applicable state and federal laws, that all practicable methods of treatment have been ((utilized)) used, that institutional controls are implemented in accordance with WAC 173-340-440, and that one or more of the conditions in WAC 173-340-706(1) exist.

     (b) Standard Method C surface water cleanup levels. Method C cleanup levels for surface waters 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 identified in subsection (3)(((a))) (b)(i) of this section;

     (ii) Environmental effects. For hazardous substances for which an environmental effects based concentration has not been established under applicable state or federal laws, those concentrations which are estimated to result in no significant adverse effects on the protection and propagation of wildlife, fish and other aquatic life. Whole effluent toxicity testing using the protocols described in chapter 173-205 WAC may be used to make this demonstration for fish and aquatic life;

     (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 ((and the environment)) as determined by the following methods:

     (A) Noncarcinogens. For surface waters ((which)) that support or have the potential to support fish or shellfish populations, concentrations ((which)) that are estimated to result in no significant acute or chronic toxic effects on human health ((or the environment)) and are estimated in accordance with ((WAC 173-340-730 (3)(a)(iii)(A))) Equation 730-1 except that the fish diet fraction shall be twenty percent (0.2);

     (B) Carcinogens. For surface waters ((which)) that support or have the potential to support fish or shellfish populations, concentrations for which the upper bound on the estimated excess cancer risk is less than or equal to ((1 in 100,000)) one in one hundred thousand (1 x 10^-5) and are estimated in accordance with ((WAC 173-340-730 (3)(a)(iii)(B))) Equation 730-2 except that the fish diet fraction shall be twenty percent (0.2);

     (C) Petroleum mixtures. Cleanup levels for petroleum mixtures shall be calculated as specified in subsection (3)(b)(iii)(C) of this section, except that the fish diet fraction shall be twenty percent (0.2); and

     (iv) Drinking water considerations. For surface waters ((which represent a source or potential future source of drinking water)) that are classified as suitable for use as a domestic water supply under chapter 173-201A WAC, concentrations ((which are estimated to result in no adverse impacts on human health and are established in accordance with)) derived using the methods specified for drinking water beneficial uses in WAC 173-340-720(((4); and

     (c) The department may establish method C cleanup levels that are more stringent than those required by (b) of this subsection when, based on site-specific evaluations, the department determines that such levels are necessary to protect human health and the environment)).

     (c) Modified Method C surface water cleanup levels. Modified Method C surface water cleanup levels are standard Method C surface water cleanup levels modified with chemical-specific or site-specific data. The same limitations and adjustments specified for modified Method B in subsection (3)(c) of this section apply to modified Method C surface water cleanup levels.

     (d) Using modified Method C to evaluate surface water remediation levels. In addition to the adjustments allowed under subsection (4)(c) of this section, adjustments to the reasonable maximum exposure scenario or default exposure assumptions are allowed when using a quantitative site-specific risk assessment to evaluate the protectiveness of a remedy. See WAC 173-340-355, 173-340-357, and 173-340-708 (3)(d) and (10)(b).

     (5) ((Multiple hazardous substances/multiple pathways of exposure.)) Adjustments to cleanup levels.

     (a) Total site risk adjustments. Surface water cleanup levels for individual hazardous substances developed in accordance with subsections (3) and (4) of this section, including those based on applicable state and federal laws, shall be adjusted downward to take into account exposure to multiple hazardous substances and/or exposure resulting from more than one pathway of exposure.      These adjustments need to be made only if, without these adjustments, the hazard index would exceed one (1) and the total excess cancer risk would exceed one in one hundred thousand (1 x 10^-5). These adjustments shall be made in accordance with the procedures specified in WAC 173-340-708 (5) and (6).      In making these adjustments, the hazard index shall not exceed one (1) and the total excess cancer risk shall not exceed one in one hundred thousand (1 x 10^-5).

     (b) ((These overall limits on the hazard index and total excess cancer risk shall also apply to sites where there is exposure to a single hazardous substance by one exposure pathway, including cleanup levels based on applicable state and federal laws.)) Adjustments to applicable state and federal laws. Where a cleanup level developed under subsection (2), (3) or (4) of this section is based on an applicable state or federal law and the level of risk upon which the standard is based exceeds an excess cancer risk of one in one hundred thousand (1 x 10^-5) or a hazard index of one (1), the cleanup level shall be adjusted downward so that the total excess cancer risk does not exceed one in one hundred thousand (1 x 10^-5) and the hazard index does not exceed one (1) at the site.

     (c) Natural background and PQL considerations. Cleanup levels determined under subsections (2), (3) and (4) of this section, including cleanup levels adjusted under subsection (5)(a) and (b) of this subsection, shall not be set at levels below the practical quantitation limit or natural background concentration. See WAC 173-340-707 and 173-340-709 for additional requirements pertaining to practical quantitation limits and natural background concentrations.

     (d) Free product limitation. For organic hazardous substances and petroleum hydrocarbons, the cleanup level shall not exceed a concentration that would result in free product being present in or on the surface water. Physical observations of surface water at or above the cleanup level, such as the lack of a film, sheen, discoloration, sludge or emulsion in the surface water or adjoining shoreline, may be used to determine compliance with this requirement.

     (6) Point of compliance.

     (a) The point of compliance for the surface water cleanup levels shall be the point or points at which hazardous substances are released to surface waters of the state unless the department has authorized a ((dilution)) mixing zone in accordance with chapter 173-201A WAC ((173-201-035)).

     (b) Where hazardous substances are released to the surface water as a result of ground water flows, no ((dilution)) mixing zone shall be allowed to demonstrate compliance with surface water cleanup levels.      See WAC 173-340-720 (((6))) (8)(d) for additional requirements for sites where contaminated ground water is flowing into surface water.

     (7) Compliance monitoring.

     (a) When surface water cleanup levels have been established at a site, sampling of the surface water shall be conducted to determine if compliance with the surface water cleanup levels has been achieved. Sampling and analytical procedures shall be defined in a compliance monitoring plan prepared under WAC 173-340-410.      The sample design shall provide data which are representative of the site.

     (b) The data analysis and evaluation procedures used to evaluate compliance with surface water cleanup levels shall be defined in a compliance monitoring plan prepared under WAC 173-340-410.

     (c) Compliance with surface water cleanup standards shall be determined by analyses of unfiltered surface water samples, unless it can be demonstrated that a filtered sample provides a more representative measure of surface water quality.

     (d) When surface water cleanup levels are based on requirements specified in applicable state and federal laws, the procedures for evaluating compliance that are specified in those requirements shall be ((utilized)) used to evaluate compliance with surface water cleanup levels unless ((these)) those procedures conflict with the intent of this section.

     (e) Where procedures for evaluating compliance are not specified in an applicable state and federal law, compliance with surface water cleanup levels shall be evaluated using procedures approved by the department. Where statistical methods are used to evaluate compliance, the statistical methods ((used to evaluate compliance with surface water cleanup levels)) shall be appropriate for the distribution of the hazardous substance sampling data.      If the distribution of the hazardous substance sampling data is inappropriate for statistical methods based on a normal distribution, then the data may be transformed.      If the distributions of individual hazardous substances differ, more than one statistical method may be required.

     (f) ((For purposes of demonstrating compliance, measurements below the method detection limit shall be assigned a value equal to one-half of the method detection limit.      Measurements above the method detection limit but below the practical quantitation limit shall generally be assigned a value equal to the method detection limit.      The department may approve alternate statistical procedures for handling nondetected values or values below the practical quantitation limit.      Alternate statistical procedures may include probit analysis and regression analysis.

     (g))) Sampling and analysis of fish tissue ((or)), shellfish, or other aquatic organisms and sediments may be required to supplement water column sampling during compliance monitoring.

[Statutory Authority: Chapter 70.105D RCW.      91-04-019, § 173-340-730, filed 1/28/91, effective 2/28/91.]

Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.
AMENDATORY SECTION(Amending Order 94-37, filed 1/26/96, effective 2/26/96)

WAC 173-340-740
Unrestricted land use soil cleanup standards.