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(continued) ter do not constitute an exercise of statutory authority within the meaning of section (4)(b)(1) of the Occupational Safety and Health Act.
(7) Cleanup study report. Each person performing a cleanup action to meet the intent of this chapter shall submit a cleanup study report to the department for review and written approval of a cleanup decision prior to implementation of the cleanup action. The sediment cleanup study report shall include the results of cleanup study site investigations conducted pursuant to subsection (4) of this section, and preferred and alternate cleanup action proposals based on the results of the approved cleanup study plan.
(8) Sampling access. In cases where the person(s) responsible for cleanup is not able to secure access to sample sediments on lands subject to a cleanup study plan approved by the department, the department may facilitate negotiations or other proceedings to secure access to the lands. Requests for department facilitation of land access for sampling shall be submitted to the department in writing by the person(s) responsible for the cleanup action study plan.
[Statutory Authority: RCW 90.48.220. 96-02-058, § 173-204-560, filed 12/29/95, effective 1/29/96. Statutory Authority: Chapters 43.21C, 70.105D, 90.48, 90.52, 90.54 and 90.70 RCW. 91-08-019 (Order 90-41), § 173-204-560, filed 3/27/91, effective 4/27/91.]
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173-204-570
Sediment cleanup standards.
(1) Applicability and purpose. This section establishes the sediment cleanup standards requirements for cleanup actions required under authority of chapter 90.48 and/or 70.105D RCW, and/or this chapter, and describes the process to determine site-specific cleanup standards.
(2) Cleanup objective. The sediment cleanup objective shall be to eliminate adverse effects on biological resources and significant health threats to humans from sediment contamination. The sediment cleanup objective for all cleanup actions shall be the sediment quality standards as defined in WAC 173-204-320 through 173-204-340, as applicable. The sediment cleanup objective identifies sediments that have no acute or chronic adverse effects on biological resources, and which correspond to no significant health risk to humans, as defined in this chapter.
(3) Minimum cleanup level. The minimum cleanup level is the maximum allowed chemical concentration and level of biological effects permissible at the cleanup site to be achieved by year ten after completion of the active cleanup action.
(a) The minimum cleanup levels criteria of WAC 173-204-520 shall be used in evaluation of cleanup alternatives per the procedures of WAC 173-204-560, and selection of a site cleanup standard(s) per the procedures of this section.
(b) The Puget Sound marine sediment minimum cleanup level is established by the following:
(i) Sediments with chemical concentrations at or below the chemical criteria of Table III shall be determined to meet the minimum cleanup level, except as provided in (b)(iv) of this subsection; and
(ii) Sediments with chemical concentrations that are higher than the chemical criteria of Table III shall be determined to exceed the minimum cleanup level, except as provided in (b)(iii) of this subsection; and
(iii) Sediments with biological effects that do not exceed the levels of WAC 173-204-520(3) shall be determined to meet the minimum cleanup level; and
(iv) Sediments with biological effects that exceed the levels of WAC 173-204-520(3) shall be determined to exceed the minimum cleanup level; and
(v) Sediments which exceed the sediment minimum cleanup level human health criteria or the other toxic, radioactive, biological, or deleterious substances criteria or the nonanthropogenically affected criteria of WAC 173-204-520 as determined by the department, shall be determined to exceed the minimum cleanup level.
(4) Sediment cleanup standard. The sediment cleanup standards are established on a site-specific basis within an allowable range of contamination. The lower end of the range is the sediment cleanup objective as defined in subsection (2) of this section. The upper end of the range is the minimum cleanup level as defined in subsection (3) of this section. The site specific cleanup standards shall be as close as practicable to the cleanup objective but in no case shall exceed the minimum cleanup level. For any given cleanup action, either a site-specific sediment cleanup standard shall be defined, or multiple site unit sediment cleanup standards shall be defined. In all cases, the cleanup standards shall be defined in consideration of the net environmental effects (including the potential for natural recovery of the sediments over time), cost and engineering feasibility of different cleanup alternatives, as determined through the cleanup study plan and report standards of WAC 173-204-560.
(5) All cleanup standards must ensure protection of human health and the environment, and must meet all legally applicable federal, state, and local requirements.
[Statutory Authority: Chapters 43.21C, 70.105D, 90.48, 90.52, 90.54 and 90.70 RCW. 91-08-019 (Order 90-41), § 173-204-570, filed 3/27/91, effective 4/27/91.]
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173-204-580
Cleanup action decision.
(1) Each person performing a cleanup action to meet the intent of this chapter shall comply with the standards of WAC 173-204-560(7), Cleanup study report. Except for cleanups conducted under chapter 70.105D RCW, the department shall review each cleanup study report and issue a written approval of one or more of the cleanup action alternatives described in the cleanup study report, or issue a written disapproval of all alternatives described in the cleanup study report. The department's approval of one or more cleanup study report cleanup action alternatives shall constitute the cleanup decision and shall be referenced in one or more permit or administrative authorities established under chapter 90.48 or 70.105D RCW, Section 401 of the federal Clean Water Act, chapter 173-225 WAC, establishment of implementation procedures of application for certification, or other administrative authorities available to the department. The department may approve the cleanup alternative recommended in the cleanup study report, may approve a different alternative discussed in the report, or may approve an alternative(s) with appropriate conditions. The department's disapproval of all cleanup study report cleanup action alternatives shall be issued by certified mail, return receipt requested, to the cleanup action proponent(s). The procedures for department review of the cleanup study report and selection of a cleanup action under chapter 70.105D RCW shall be in accordance with the procedures of chapter 173-340 WAC.
(2) All cleanup actions conducted under this chapter shall meet the following requirements:
(a) Receive department review and written approval of the preferred and/or alternate cleanup actions and necessary sediment recovery zones proposed in the cleanup study report prior to implementing a cleanup action(s);
(b) Achieve a degree of cleanup that is protective of human health and the environment;
(c) Achieve compliance with applicable state, federal, and local laws;
(d) Achieve compliance with site cleanup standards;
(e) Achieve compliance with sediment source control requirements pursuant to WAC 173-204-400 through 173-204-420, if necessary;
(f) Provide for landowner review of the cleanup study plan and report, and consider public concerns raised during review of the draft cleanup report; and
(g) Provide adequate monitoring to ensure the effectiveness of the cleanup action.
(3) Cleanup time frame.
(a) The cleanup action selected shall provide for a reasonable time frame for completion of the cleanup action, based on consideration of the following factors:
(i) Potential risks posed by the site to biological resources and human health;
(ii) Practicability of achieving the site cleanup standards in less than a ten-year period;
(iii) Current use of the site, surrounding areas, and associated resources that are, or may be, affected by the site contamination;
(iv) Potential future use of the site, surrounding areas, and associated resources that are, or may be, affected by the site contamination;
(v) Likely effectiveness and reliability of institutional controls;
(vi) Degree of, and ability to control and monitor, migration of contamination from the site; and
(vii) Natural recovery processes which are expected to occur at the site that will reduce concentrations of contaminants.
(b) The department may authorize cleanup time frames that exceed the ten-year period used in deriving the site cleanup standards of WAC 173-204-570(4) where cleanup actions are not practicable to accomplish within a ten-year period.
(4) In evaluating cleanup action alternatives, the department shall consider:
(a) The net environmental effects of the alternatives, including consideration of residual effects, recovery rates, and any adverse effects of cleanup construction or disposal activities;
(b) The relative cost-effectiveness of the alternatives in achieving the approved site cleanup standards; and
(c) The technical effectiveness and reliability of the alternatives.
(5) Public participation. The department shall provide opportunity for public review and comment on all cleanup action study plans, reports, and decisions reviewed and approved by the department, for cleanup actions conducted under this chapter.
(6) Land access. In cases where the person(s) responsible for cleanup is not able to secure access to lands subject to a cleanup action decision made pursuant to this section, the department may facilitate negotiations or other proceedings to secure access to the lands. Requests for department facilitation of land access shall be submitted to the department in writing by the person(s) named in the cleanup action approval.
[Statutory Authority: Chapters 43.21C, 70.105D, 90.48, 90.52, 90.54 and 90.70 RCW. 91-08-019 (Order 90-41), § 173-204-580, filed 3/27/91, effective 4/27/91.]
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173-204-590
Sediment recovery zones.
(1) The purpose of this section is to set forth the requirements for establishment and monitoring of sediment recovery zones to meet the intent of sediment quality dilution zones authorized pursuant to RCW 90.48.520. The standards of this section are applicable to cleanup action decisions made pursuant to WAC 173-204-580 where selected actions leave in place marine, low salinity, or freshwater sediments that exceed the applicable sediment quality standards of WAC 173-204-320 through 173-204-340.
(2) General requirements. Authorization of a sediment recovery zone by the department shall require compliance with the following general requirements:
(a) The sediment recovery zone shall be determined by application of the department's sediment recovery zone computer models "CORMIX," "PLUMES," and/or "WASP," or an alternate sediment recovery zone model(s) approved by the department under WAC 173-204-130(4) as limited by the standards of this section and the department's best professional judgment.
(b) The department shall provide specific authorization for a sediment recovery zone within the written approval of the cleanup study report and cleanup decision required under WAC 173-204-580.
(c) The time period during which a sediment recovery zone is authorized by the department shall be so stated in the department's written approval of the cleanup study report and cleanup decision.
(d) The department's written sediment recovery zone authorization shall identify the legal location and landowners of property proposed as a sediment recovery zone.
(e) Operational terms and conditions for the authorized sediment recovery zone pursuant to subsection (5) of this section shall be maintained at all times.
(f) Where cleanup is not practicable pursuant to the analysis under WAC 173-204-570(4), sediment recovery zones may be authorized for periods in excess of ten years.
(3) A sediment recovery zone authorization issued by the department under the authority of chapter 90.48 or 70.105D RCW, or other administrative means available to the department, does not constitute authorization to trespass on lands not owned by the applicant. These requirements do not address, and in no way alter, the legal rights, responsibilities, or liabilities of the permittee or landowner of the sediment recovery zone for any applicable requirements of proprietary, real estate, tort, and/or other laws not directly expressed as a requirement of this chapter.
(4) Prior to authorization, the department shall make a reasonable effort to identify and notify all landowners affected by the proposed sediment recovery zone. The department shall issue a sediment recovery zone notification letter to any person it believes to be a potentially affected landowner and other parties determined appropriate by the department. The notification letter shall be sent by certified mail, return receipt requested, or by personal service. The notification letter shall provide:
(a) The name of the person the department believes to be the affected landowner; and
(b) The names of other affected landowners to whom the department has sent a proposed sediment recovery zone notification letter; and
(c) The name of the sediment recovery zone applicant; and
(d) A general description of the proposed sediment recovery zone including the chemical(s) of concern by name and concentration, and the area of affected sediment; and
(e) The determination of the department concerning whether the proposed sediment recovery zone application meets the standards of this section; and
(f) The intention of the department whether to authorize the proposed sediment recovery zone; and
(g) Notification that the affected landowner may comment on the proposed sediment recovery zone. Any landowner comments shall be submitted in writing to the department within thirty days from the date of receipt of the notification letter, unless the department provides an extension.
(5) As determined necessary by the department, operational terms and conditions for the sediment recovery zone may include completion and submittal to the department of discharge effluent and/or receiving water column and/or sediment chemical monitoring studies and/or bioassays to evaluate ongoing water quality, sediment quality, and biological conditions within and adjacent to the proposed or authorized sediment recovery zone.
(6) The department shall review all data or studies conducted in accordance with a sediment recovery zone authorization to ensure compliance with the terms and conditions of the authorization and the standards of this section. Whenever, in the opinion of the department, the operational terms and conditions of a sediment recovery zone or the standards of this section are violated or there is a potential to violate the sediment recovery zone authorization or the standards of this section, or new information or a reexamination of existing information indicates the sediment recovery zone is no longer appropriate, the department may at its discretion:
(a) Require additional chemical or biological monitoring as necessary;
(b) Revise the sediment recovery zone authorization as necessary to meet the standards of this section;
(c) Require active contaminated sediment maintenance actions including additional cleanup in accordance with the standards of WAC 173-204-500 through 173-204-580; and/or
(d) Withdraw the department's authorization of the sediment recovery zone.
[Statutory Authority: RCW 90.48.220. 96-02-058, § 173-204-590, filed 12/29/95, effective 1/29/96. Statutory Authority: Chapters 43.21C, 70.105D, 90.48, 90.52, 90.54 and 90.70 RCW. 91-08-019 (Order 90-41), § 173-204-590, filed 3/27/91, effective 4/27/91.]
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173-204-600
Sampling and testing plan standards.
(1) Applicability. These standards apply to:
(a) Any person who samples sediments to determine compliance with this chapter;
(b) Any person who makes application to the department for authorization of a sediment impact zone under the standards of WAC 173-204-400 through 173-204-420; and
(c) Any person who samples sediments consistent with cleanup action plans approved and cleanup actions conducted under this chapter.
(2) All applicable persons shall at a minimum, develop, keep, and abide by a sediment sampling and testing plan. The sampling and testing plan shall be available for inspection at the request of the department. Sediment sampling and testing plans shall identify sampling dates, sample types, sample depths, sample composites, sample locations, sample positioning methods, sampling personnel, sampling equipment and methods, a description of methods of chemical analysis and biological testing, and quality assurance/quality control procedures.
(3) Sediment sampling locations and procedures and testing protocols and interpretations shall be those included in the Puget Sound protocols as amended and/or other methods approved by the department.
(4) The department reserves the right to revise these sampling and testing protocols when:
(a) The Puget Sound protocols are modified or updated per the approval of the department; or
(b) The department determines the Puget Sound protocols are not applicable to, or appropriate for analysis of sediment chemical contamination in any given case.
[Statutory Authority: Chapters 43.21C, 70.105D, 90.48, 90.52, 90.54 and 90.70 RCW. 91-08-019 (Order 90-41), § 173-204-600, filed 3/27/91, effective 4/27/91.]
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173-204-610
Records management.
(1) Applicability. These standards apply to:
(a) Any person who samples sediments to determine compliance with this chapter;
(b) Any person who makes application to the department for authorization of a sediment impact zone under the standards of WAC 173-204-400 through 173-204-420.
(2) All applicable persons shall keep sediment sampling and testing records as follows:
(a) Sediment sampling and testing plans which identify sampling dates, sample types, sample composites, sample locations, sample depths, sample positioning method, sampling personnel, sampling equipment and methods, quality assurance/quality control plans, and sampling procedures.
(b) Sediment removal records which identify removal dates, dredging contractor/equipment, volume of sediment removed, analytical data generated during the sediment removal process, and sediment disposal location(s).
(c) Records and results of sediment analyses conducted in accordance with this chapter, or as required under activities authorized under chapter 173-225 WAC, establishment of implementation procedures of application for certification.
(d) Records and results of inspections conducted as required under chapter 173-225 WAC, establishment of implementation procedures of application for certification.
(e) Sediment treatment records.
(f) Sediment onsite capping records.
(g) Sediment disposal records which identify sediment disposal location(s), onsite operating records, sediment volumes, disposal site property owner(s), and the chemical/biological nature of effluent discharges from the disposal location including the name, location, and quality of the receiving water.
(3) All sediment records as required under subsection (2) of this section must be furnished upon request, and made available at all reasonable times for inspection, by any officer, employee, or representative of the department who is designated by the director.
(4) All sediment records as required in this section shall be maintained for a period not less than ten years after the issuance, modification, or renewal of the applicable permit, or administrative order, or certification, or cleanup site delisting under WAC 173-204-540(6), whichever is greater.
[Statutory Authority: Chapters 43.21C, 70.105D, 90.48, 90.52, 90.54 and 90.70 RCW. 91-08-019 (Order 90-41), § 173-204-610, filed 3/27/91, effective 4/27/91.]
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173-204-620
Severability.
If any provision of this chapter or its application to any person or circumstance is held invalid, the remainder of this chapter or the application of the provision to other persons or circumstances shall not be affected.
[Statutory Authority: Chapters 43.21C, 70.105D, 90.48, 90.52, 90.54 and 90.70 RCW. 91-08-019 (Order 90-41), § 173-204-620, filed 3/27/91, effective 4/27/91.]