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(continued)
(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 that presents technical guidance and regulatory requirements to assure effective operations under both normal and emergency conditions. The operation and maintenance plan shall include the following elements, as appropriate:
(i) Name and phone number of the responsible individuals;
(ii) Process description and operating principles;
(iii) Design criteria and operating parameters and limits;
(iv) General operating procedures, including startup, normal operations, operation at less than design loading, shutdown, and emergency or contingency procedures;
(v) A discussion of the detailed operation of individual treatment units, including a description of various controls, recommended operating parameters, safety features, and any other relevant information;
(vi) Procedures and sample forms for collection and management of operating and maintenance records;
(vii) Spare part inventory, addresses of suppliers of spare parts, equipment warranties, and appropriate equipment catalogues;
(viii) Equipment maintenance schedules incorporating manufacturers recommendations;
(ix) Contingency procedures for spills, releases, and personnel accidents;
(x) A compliance monitoring plan prepared under WAC 173-340-410 describing monitoring to be performed during operation and maintenance, and a sampling and analysis plan meeting the requirements of WAC 173-340-820;
(xi) Description of procedures which ensure that the safety and health requirements of WAC 173-340-810 are met, including specification of contaminant action levels and contingency plans, as appropriate;
(xii) 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) Permits. Permits and approvals and any substantive requirements for exempted permits, if required for construction or to otherwise implement the cleanup action, shall be identified and where possible, resolved before, or during, the design phase to avoid delays during construction and implementation of the cleanup action.
(6) Construction. Construction of the cleanup action shall be conducted in accordance with the construction plans and specifications, and other plans prepared under this section.
(a) Department inspections.
(i) The department may perform site inspections and construction oversight. The department may require that construction activities be halted at a site if construction or any supporting activities are not consistent with approved plans; are not in compliance with environmental regulations or accepted construction procedures; or endanger human health or the environment.
(ii) The department may conduct a formal inspection of the site following construction and an initial operational shake down period to ensure satisfactory completion of the construction. If such an inspection is performed, the construction documentation report and engineer's opinion specified in (b)(ii) of this subsection shall be available before the inspection.
(b) Construction documentation.
(i) Except as provided for in (b)(iii) of this subsection, all aspects of construction shall be performed under the oversight of a professional engineer registered in the state of Washington or a qualified technician under the direct supervision of a professional engineer registered in the state of Washington or as otherwise provided for in RCW 18.43.130. During construction, detailed records shall be kept of all aspects of the work performed including construction techniques and materials used, items installed, and tests and measurements performed.
(ii) As built reports. At the completion of construction the engineer responsible for the oversight of construction shall prepare as built drawings and a report documenting all aspects of facility construction. The report shall also contain an opinion from the engineer, based on testing results and inspections, as to whether the cleanup action has been constructed in substantial compliance with the plans and specifications and related documents.
(iii) For leaking underground storage tanks, the construction oversight and documentation report may be conducted by an underground storage tank provider certified under chapter 173-360 WAC. Removal of above ground abandoned drums, tanks and similar above ground containers and associated minor soil contamination may be overseen and documented by an experienced environmental professional. In other appropriate cases the department may authorize departure from the requirements of this subsection.
(c) Financial assurance and institutional control documentation. As part of the as-built documentation for the site cleanup, where the following information has not already been submitted under an order or decree or as part of another previously submitted document, the following information shall be included in the as-built report:
(i) For sites requiring financial assurance, a copy of the financial assurance document and any procedures for periodic adjustment to the value of the financial assurance mechanism;
(ii) For sites using institutional controls as part of the cleanup action, copies of recorded deed restrictions (with proof of recording) and other documents establishing these institutional controls.
(d) Plan modifications. Changes in the design or construction of the cleanup action performed under an order or decree shall be approved by the department.
(7) Opportunity for public comment. If the department determines that any plans prepared under this section represent a substantial change from the cleanup action plan, the department shall provide public notice and opportunity for comment under WAC 173-340-600.
(8) Plans and reports. Plans or reports prepared under this section and under an order or decree shall be submitted to the department for review and approval. For independent remedial actions, the plans and reports shall be submitted as required under WAC 173-340-515.
(9) Requirements for managing waste generated by site cleanup. Any waste contaminated by a hazardous substance generated during cleanup activities and requiring 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. 01-05-024 (Order 97-09A), § 173-340-400, filed 2/12/01, effective 8/15/01; 90-08-086, § 173-340-400, filed 4/3/90, effective 5/4/90.]
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173-340-410
Compliance monitoring requirements.
(1) Purpose. There are three types of compliance monitoring: Protection, performance, and confirmational 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 conducted under this chapter. Unless otherwise directed by the department, a compliance monitoring plan shall be prepared.
Plans prepared under this section and under an order or decree shall be submitted to the department for review and approval. Protection monitoring may be addressed in the safety and health plan. Performance and confirmational monitoring may be addressed in separate plans or may be combined with other plans or submittals, such as those in WAC 173-340-400 and 173-340-820.
(3) Contents of a monitoring plan. Compliance monitoring plans may include monitoring for chemical constituents, biological testing, and physical parameters as appropriate for the site. Where the cleanup action includes engineered controls or institutional controls, the monitoring may need to include not only measurements but also documentation of observations on the performance of these controls. Long-term monitoring shall be required if on-site disposal, isolation, or containment is the selected cleanup action for a site or a portion of a site. Such measures shall be required until residual hazardous substance concentrations no longer exceed site cleanup levels established under WAC 173-340-700 through 173-340-760. Compliance monitoring plans shall be specific for the media being tested and shall contain the following elements:
(a) A sampling and analysis plan meeting the requirements of WAC 173-340-820 which shall explain in the statement of objectives how the purposes of subsection (1) of this section are met;
(b) Data analysis and evaluation procedures used, to demonstrate and confirm compliance and justification for these procedures, including:
(i) A description of any statistical method to be employed; or
(ii) If sufficient data is not available before writing the plan to propose a reliable statistical method to demonstrate and confirm compliance, a contingency plan proposing one or more reliable statistical methods to demonstrate and confirm compliance, and the conditions under which the methods would be used at the facility; and
(c) Other information as required by the department.
[Statutory Authority: Chapter 70.105D RCW. 01-05-024 (Order 97-09A), § 173-340-410, filed 2/12/01, effective 8/15/01; 90-08-086, § 173-340-410, filed 4/3/90, effective 5/4/90.]
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173-340-420
Periodic review.
(1) Purpose. A periodic review consists of a review by the department of post-cleanup site conditions and monitoring data to assure that human health and the environment are being protected.
(2) Applicability. The department shall conduct periodic reviews of a site whenever the department conducts a cleanup action; whenever the department approves a cleanup action under an order, agreed order or consent decree; or, as resources permit, whenever the department issues a no further action opinion; and one of the following conditions exists, at the site:
(a) Where an institutional control and/or financial assurance is required as part of the cleanup action;
(b) Where the cleanup level is based on a practical quantitation limit as provided for under WAC 173-340-707; and
(c) Where, in the department's judgment, modifications to the default equations or assumptions using site-specific information would significantly increase the concentration of hazardous substances remaining at the site after cleanup or the uncertainty in the ecological evaluation or the reliability of the cleanup action is such that additional review is necessary to assure long-term protection of human health and the environment.
(3) General requirements. If a periodic review is required under subsection (2) of this section, a review shall be conducted by the department at least every five years after the initiation of a cleanup action. The department may require potentially liable persons to submit information required by the department to conduct a periodic review.
(4) Review criteria. When evaluating whether human health and the environment are being protected, the factors the department shall consider include:
(a) The effectiveness of ongoing or completed cleanup actions, including the effectiveness of engineered controls and institutional controls in limiting exposure to hazardous substances remaining at the site;
(b) New scientific information for individual hazardous substances or mixtures present at the site;
(c) New applicable state and federal laws for hazardous substances present at the site;
(d) Current and projected site and resource uses;
(e) The availability and practicability of more permanent remedies; and
(f) The availability of improved analytical techniques to evaluate compliance with cleanup levels.
(5) Notice and public comment. The department shall publish a notice of all periodic reviews in the Site Register and provide an opportunity for public comment. The department shall also notify all potentially liable persons known to the department of the results of the periodic review.
(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 in accordance with WAC 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 under this chapter.
[Statutory Authority: Chapter 70.105D RCW. 01-05-024 (Order 97-09A), § 173-340-420, filed 2/12/01, effective 8/15/01; 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.]
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173-340-430
Interim actions.
(1) Purpose. An interim action is distinguished from a cleanup action in that an interim action only partially addresses the cleanup of a site. (Note: An interim action may constitute the cleanup action for a site if the interim action is subsequently shown to comply with WAC 173-340-350 through 173-340-390.) An interim action is:
(a) A remedial action that is technically necessary to reduce a threat to human health or the environment by eliminating or substantially reducing one or more pathways for exposure to a hazardous substance at a facility;
(b) A remedial action that corrects a problem that may become substantially worse or cost substantially more to address if the remedial action is delayed; or
(c) A remedial action needed to provide for completion of a site hazard assessment, remedial investigation/feasibility study or design of a cleanup action.
Example. A site is identified where oil-based wood preservative has leaked from a tank and is puddled on the ground and is floating on the water table. 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 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.
Interim actions may:
(a) Achieve cleanup standards for a portion of the site;
(b) Provide a partial cleanup, that is, clean up hazardous substances from all or part of the site, but not achieve cleanup standards; or
(c) Provide a partial cleanup of hazardous substances and not achieve cleanup standards, but provide information on how to achieve cleanup standards for a cleanup. For example, demonstration of an unproven cleanup technology.
(3) Relationship to the cleanup action.
(a) If the cleanup action is known, the interim action shall be consistent with the cleanup action.
(b) If the cleanup action is not known, the interim action shall not foreclose reasonable alternatives for the cleanup action. This is not meant to preclude the destruction or removal of hazardous substances.
(4) Timing.
(a) Interim actions may occur anytime during the cleanup process. Interim actions shall not be used to delay or supplant the cleanup process. An interim action may be done before or in conjunction with a site hazard assessment and hazard ranking. However, sufficient technical information must be available regarding the facility to ensure the interim action is appropriate and warranted.
(b) Interim actions shall be followed by additional remedial actions unless compliance with cleanup standards has been confirmed at the site.
(c) The department shall set appropriate deadlines commensurate with the actions taken for completion of the interim action.
(5) Administrative options. Interim cleanup actions may be conducted under any of the procedures described in WAC 173-340-510 and 173-340-515.
(6) Public participation. Public participation will be accomplished in a manner consistent with WAC 173-340-600.
(7) Submittal requirements. Unless otherwise directed by the department and except for independent remedial actions, emergency remedial actions, and underground storage tank releases being addressed under WAC 173-340-450, a report shall be prepared before conducting an interim action. Reports prepared under an order or decree shall be submitted to the department for review and approval. Reports for independent remedial actions shall be submitted as required by WAC 173-340-515. Reports shall be of a scope and detail commensurate with the work performed and site-specific characteristics, and shall include, as appropriate:
(a) A description of the interim action and how it will meet the criteria identified in subsections (1), (2) and (3) of this section;
(b) Information from the applicable subsections of the remedial investigation/feasibility study of WAC 173-340-350, 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.
(8) Construction. Construction of the interim action shall be in conformance with WAC 173-340-400(7).
[Statutory Authority: Chapter 70.105D RCW. 01-05-024 (Order 97-09A), § 173-340-430, filed 2/12/01, effective 8/15/01; 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.]
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173-340-440
Institutional controls.
(1) Purpose. Institutional controls are measures undertaken to limit or prohibit activities that may interfere with the integrity of an interim action or cleanup action or that may result in exposure to hazardous substances at a site. Institutional controls may include:
(a) Physical measures such as fences;
(b) Use restrictions such as limitations on the use of property or resources; or requirements that cleanup action occur if existing structures or pavement are disturbed or removed;
(c) Maintenance requirements for engineered controls such as the inspection and repair of monitoring wells, treatment systems, caps or 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 means containment and/or treatment systems that are designed and constructed to prevent or limit the movement of, or the exposure to, hazardous substances. See the definition of engineered controls in WAC 173-340-200 for examples of engineered controls.
(3) Applicability. This section applies to remedial actions being conducted at sites under any of the administrative options in WAC 173-340-510 and 173-340-515.
(4) Circumstances required. Institutional controls shall be required to assure both the continued protection of human health and the environment and the integrity of an interim action or cleanup action in the following circumstances:
(a) The cleanup level is established using Method A or B and hazardous substances remain at the site at concentrations that exceed the applicable cleanup level;
(b) The cleanup level is established using Method C;
(c) An industrial soil cleanup level is established under WAC 173-340-745;
(d) A ground water cleanup level that exceeds the potable ground water cleanup level is established using a site-specific risk assessment under WAC 173-340-720 (6)(c) and institutional controls are required under WAC 173-340-720 (6)(c)(iii);
(e) A conditional point of compliance is established as the basis for measuring compliance at the site;
(f) Any time an institutional control is required under WAC 173-340-7490 through 173-340-7494; or
(g) Where the department determines such controls are required to assure the continued protection of human health and the environment or the integrity of the interim or cleanup action.
(5) Minimum requirements. 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 that include restrictive covenants or other legal and/or administrative mechanisms. The use of legal or administrative mechanisms that do not include restrictive covenants is intended to apply to situations where the release has affected properties near the source of the release not owned by a person potentially liable under the act. A potentially liable person must make a good faith effort to obtain a restrictive covenant before using other legal or administrative mechanisms. Examples of such mechanisms include zoning overlays, placing notices in local zoning or building department records or state lands records, public notices and educational mailings.
(9) Restrictive covenants. Where required, the restrictive covenant shall:
(a) Prohibit activities on the site that may interfere with a cleanup action, operation and maintenance, monitoring, or other measures necessary to assure the integrity of the cleanup action and continued protection of human health and the environment;
(b) Prohibit activities that may result in the release of a hazardous substance that was contained as a part of the cleanup action;
(c) Require notice to the department of the owner's intent to convey any interest in the site. No conveyance of title, easement, lease, or other interest in the property shall be consummated by the property owner without adequate and complete provision for the continued operation, maintenance and monitoring of the cleanup action, and for continued compliance with this subsection;
(d) Require the land owner to restrict leases to uses and activities consistent with the restrictive covenant and notify all lessees of the restrictions on the use of the property. This requirement applies only to restrictive covenants imposed after February 1, 1996;
(e) Require the owner to include in any instrument conveying any interest in any portion of the property, notice of the restrictive covenant under this section;
(f) Require notice and approval by the department of any proposal to use the site in a manner that is inconsistent with the restrictive covenant. If the department, after public notice and comment approves the proposed change, the restrictive covenant shall be amended to reflect the change; and
(g) Grant the department and its designated representatives the right to enter the property at reasonable times for the purpose of evaluating compliance with the cleanup action plan and other required plans, including the right to take samples, inspect any remedial actions taken at the site, and to inspect records.
(10) Local government notification. Before a restrictive covenant being established under this chapter, the department shall notify and seek comment from a city or county department with land use planning authority for real property subject to the restrictive covenant. Once a restrictive covenant has been executed, this same department shall be notified and sent a copy of the restrictive covenant. For independent cleanups reviewed by the department under WAC 173-340-515 that use restrictive covenants, the person conducting the cleanup shall be responsible for these notifications.
(11) Financial assurances. The department shall, as appropriate, require financial assurance mechanisms at sites where the cleanup action selected includes engineered and/or institutional controls. It is presumed that financial assurance mechanisms will be required unless the PLP can demonstrate that sufficient financial resources are available and in place to provide for the long-term effectiveness of engineered and institutional controls adopted. Financial assurances shall be of sufficient amount to cover all costs associated with the operation and maintenance of the cleanup action, including institutional controls, compliance monitoring, and corrective measures.
(a) Mechanisms. Financial assurance mechanisms may include one or more of the following: A trust fund, a surety bond, a letter of credit, financial test, guarantee, standby trust fund, government bond rating test, government financial test, government guarantee, government fund, or financial assurance mechanisms required under another law (for example, requirements for solid waste landfills or treatment, storage, and disposal facilities) that meets the requirements of this section.
(b) Exemption from requirement. The department shall not require financial assurances if persons conducting the cleanup can demonstrate that requiring financial assurances will result in the PLPs for the site having insufficient funds to conduct the cleanup or being forced into bankruptcy or similar financial hardship.
(12) Removal of restrictions. If the conditions at the site requiring an institutional control under subsection (4) of this section no longer exist, then the owner may submit a request to the department that the restrictive covenant or other restrictions be eliminated. The restrictive covenant or other restrictions shall be removed, if the department, after public notice and opportunity for comment, concurs.
[Statutory Authority: Chapter 70.105D RCW. 01-05-024 (Order 97-09A), § 173-340-440, filed 2/12/01, effective 8/15/01; 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.]
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173-340-450
Releases from underground storage tanks.
(1) Purpose. The purpose of this section is to set forth the requirements for addressing releases that may pose a threat to human health or the environment from an underground storage tank (UST) regulated under chapter 90.76 RCW.
(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 that may pose a threat to human health or the environment.
(2) Initial response. Within twenty-four hours of 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 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 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) 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
(C) Any other tests required by the department; and
(v) Investigate for the presence of free product.
(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:
(a) Conduct free product removal to the maximum extent practicable and in a manner 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;
(b) Properly treat, discharge, or dispose of 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
(c) Handle all flammable products safely to prevent fires and explosions.
(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 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.
(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 remedial investigation and feasibility study will depend on the informational needs at the site. UST owners and operators shall conduct a 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 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 remedial investigation/feasibility study to the department as soon as practicable. The information may be included with other reports submitted under this section.
(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 173-340-760 and the requirements for the selection of cleanup actions in WAC 173-340-350 through173-340-390 .
(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. 01-05-024 (Order 97-09A), § 173-340-450, filed 2/12/01, effective 8/15/01; 91-04-019, § 173-340-450, filed 1/28/91, effective 2/28/91.]
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173-340-500
Determination of status as a potentially liable person.
(1) Status letter. The department shall issue a potentially liable person status letter to any person it believes to be potentially liable as provided for in RCW 70.105D.020(8), unless an emergency requires otherwise. Persons will be notified when the department has credible evidence of their potential liability under RCW 70.105D.040 and when the department is ready to proceed with remedial action except for emergencies and initial investigations. The status letter shall be sent by certified mail, return receipt requested, or by personal service.
(2) Contents of letter. The status letter shall provide:
(a) The name of the person the department believes to be potentially liable;
(b) A general description of the location of the facility;
(c) The basis for the department's belief that the person has a relationship to the facility;
(d) The basis for the department's belief that a release or threatened release of a hazardous substance has occurred at the facility and that the release or threatened release poses a threat to human health or the environment;
(e) An indication of the department's intentions regarding enforcement or other actions at the facility; and
(f) The names of other persons to whom the department has sent a status letter.
(3) Opportunity to comment. Any comments shall be submitted in writing to the department within thirty days from the date of receipt by the potentially liable person of the status letter unless the department provides an extension.
(4) Determination of status. If after reviewing any comments submitted, the department concludes that credible evidence supports a finding of potential liability, then the department shall issue a determination of potentially liable person status.
(5) Voluntary waiver. Persons may accept status as a potentially liable person at any time through a voluntary waiver of their right to notice and comment.
(6) Additional potentially liable persons. The department reserves the right to notify additional potentially liable persons at any time, and as resources permit, will facilitate potentially liable persons' efforts to identify additional potentially liable persons. The department shall notify in writing, all persons who previously received a status letter for the facility whenever additional status letters have been sent.
[Statutory Authority: Chapter 70.105D RCW. 90-08-086, § 173-340-500, filed 4/3/90, effective 5/4/90.]
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173-340-510
Administrative options for remedial actions.
(1) Policy. It is the responsibility of each and every liable person to conduct remedial action so that sites are cleaned up well and expeditiously where a release or threatened release of a hazardous substance requires remedial action. Potentially liable persons are encouraged to initiate discussions and negotiations with the department and the office of the attorney general that may lead to an agreement on the remedial action to be conducted with the state of Washington. The department may provide informal advice and assistance on the development of proposals for remedial action, as provided by WAC 173-340-515. Any approval by the department or the state of remedial action shall occur by one of the means described in subsections (2) and (3) of this section.
(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 before the department takes remedial actions for which the recovery of public funds can be sought under RCW 70.105D.050(3).
[Statutory Authority: Chapter 70.105D RCW. 01-05-024 (Order 97-09A), § 173-340-510, filed 2/12/01, effective 8/15/01; 90-08-086, § 173-340-510, filed 4/3/90, effective 5/4/90.]
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173-340-515
Independent remedial actions.
(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) Except for the requirement of a restrictive covenant under WAC 173-340-440, where documents are required under this chapter, the documents prepared need not be the same in title or format; however, the documents must still contain sufficient information to serve the same purpose. The scope and level of detail in these documents may vary from site to site depending on the site-specific conditions and the complexity of the remedial action.
(4) Reports to the department.
(a) 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 enough information to determine if the independent remedial action meets the substantive requirements of this chapter including, the results of all site investigations, cleanup actions and compliance monitoring planned or under-way. If a restrictive covenant is used, it must be included in the report and it must meet the requirements specified in WAC 173-340-440(9). The department may require additional reports on the work conducted. (continued)