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(continued)
(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 the department'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).
[Statutory Authority: Chapter 70.105D RCW. 01-05-024 (Order 97-09A), § 173-340-515, filed 2/12/01, effective 8/15/01.]
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173-340-520
Consent decrees.
(1) Procedures for consent decrees initiated by potentially liable persons. To request a consent decree a person shall submit a letter to the department and office of the attorney general via certified mail, return receipt requested, or by personal delivery.
(a) Request. The letter shall describe, based on available information:
(i) The proposed remedial action, including the schedule for the work;
(ii) Information which demonstrates that the settlement will lead to a more expeditious cleanup, be consistent with cleanup standards if the remedial action is a cleanup action, and be consistent with any previous orders;
(iii) The facility, including location and boundaries;
(iv) The environmental problems to be addressed including a description of the releases at the facility and the potential impact of those releases to human health and the environment;
(v) A summary of the relevant historical use or conditions at the facility;
(vi) The date on which the potentially liable person will be ready to submit a detailed proposal;
(vii) Any special scheduling considerations for implementing the remedial actions;
(viii) Names of other persons who the person has reason to believe may be potentially liable persons at the facility; and
(ix) A proposed public participation plan. This proposed plan shall be commensurate with the nature of the proposal and site and shall include the elements listed in WAC 173-340-600(8).
(b) The letter may include:
(i) A waiver of the procedural requirements of WAC 173-340-500 and acceptance, for purposes of settlement, of potentially liable person status.
(ii) The contents of detailed proposal under (g) of this subsection.
(c) A prospective purchaser consent decree is a particular type of consent decree entered into with a person not currently liable for remedial action at the site who proposes to purchase, redevelop, or reuse the site. RCW 70.105D.040(5) contains specific statutory requirements for this type of decree. In addition to the information in (a) and (b) of this subsection, a request for a prospective purchaser consent decree shall include:
(i) Identification of all persons proposing to enter into the consent decree and information which demonstrates that those persons are not currently liable for remedial action at the site;
(ii) Information which demonstrates that the settlement will yield substantial new resources to facilitate cleanup;
(iii) A general description of the proposed continued use or redevelopment or reuse of the site, including the proposed schedule for purchase, redevelopment, or reuse; and
(iv) Information describing whether and how the proposed settlement will provide a substantial public benefit.
(d) Recognizing that the steps of the cleanup process may be combined and may vary by site, the information in the request shall be at the level of detail appropriate to the steps in the process for which the consent decree is requested. For example, a request for a consent decree for a remedial investigation/feasibility study should generally include the level of information needed for a site hazard assessment, if not already done by the department, so that the department and the public can evaluate the proposed scope of work and relative priority of the site.
(e) The department may waive part of the letter requirements of (a) of this subsection if the requirements have already been met.
(f) Response. The department shall respond to the request within sixty 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.
(g) Contents of detailed proposal. The proposal shall contain:
(i) A proposed technical scope of work describing the remedial action to be conducted;
(ii) The data, studies, or any other information upon which the settlement proposal is based;
(iii) A statement describing the potentially liable person's ability to conduct or finance the remedial action as described in the proposed scope of work;
(iv) A schedule for proposed negotiations and implementation of the proposed remedial actions; and
(v) Any additional information requested by the department.
(h) In addition to the information in (g) of this subsection, the detailed proposal for a prospective purchaser consent decree shall include the following:
(i) Information showing a legal commitment to purchase, redevelop or reuse the site;
(ii) A detailed description including a plan of the proposed continued use, redevelopment, or reuse of the site, including, if necessary, an updated schedule for purchase, redevelopment or reuse;
(iii) Information which demonstrates that the redevelopment or reuse of the site is not likely to contribute to the existing or threatened releases at the site, interfere with remedial actions that may be needed at the site, or increase health risks to persons at or in the vicinity of the site; and
(iv) If the requestor does not propose to conduct the entire cleanup of the site, available information about potentially liable persons who are expected to conduct the remainder of the cleanup.
(i) The department and the office of the attorney general shall determine whether the proposal provides a sufficient basis for negotiations, and shall deliver to the potentially liable person within sixty days following receipt of their proposal a written notice indicating whether or not the proposal is sufficient to proceed with negotiations.
(j) Prepayment agreement. Unless otherwise determined by the department, any person who requests a prospective purchaser agreement and receives a notice accepting the request under (f) of this subsection shall enter into a prepayment agreement with the department consistent with WAC 173-340-550(7) before negotiations will begin.
(k) Time limits for negotiations. The department shall set the time period and starting date for negotiations. The department and the office of the attorney general shall then negotiate with those potentially liable persons who have received a notice under (f) of this subsection that their proposal was sufficient to proceed with negotiations. Negotiations may address one or more phases of remedial action. The length of the negotiation period specified by the department shall be no less than that proposed by the potentially liable person provided it does not conflict with the deadlines established under WAC 173-340-140.
(l) Enforcement stay. For consent decrees that are not prospective purchaser agreements, unless an emergency exists, the department will stay any enforcement action under chapter 70.105D 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 begin an enforcement action after notifying the potentially liable person, in writing, of its intent to withdraw from negotiations.
(2) Procedures for consent decrees initiated by the department. When the department believes that a consent decree will be a more expeditious method to achieve remedial action at a facility, it may initiate the procedures set forth in this subsection by sending a letter to the potentially liable person. The letter shall be sent via certified mail, return receipt requested, or by personal service.
(a) The letters may be delivered with potentially liable person status letters issued under WAC 173-340-500. The period for negotiation shall not commence until the thirty-day 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 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. 01-05-024 (Order 97-09A), § 173-340-520, filed 2/12/01, effective 8/15/01; 90-08-086, § 173-340-520, filed 4/3/90, effective 5/4/90.]
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173-340-530
Agreed orders.
(1) Purpose. Agreed orders may be used for all remedial actions. An agreed order means that the potentially liable person agrees to perform remedial actions at the site in accordance with the provisions of the agreed order and that the department will not take additional enforcement action against the potentially liable person to require those remedial actions specified in the agreed order so long as the potentially liable person complies with the provisions of the order. Since an agreed order is not a settlement, an agreed order shall not provide for mixed funding, a covenant not to sue, or protection from claims for contribution. The department may require additional remedial actions should it deem such actions necessary.
(2) Procedures for agreed orders initiated by a potentially liable person.
(a) To request an agreed order, a person shall submit a letter to the department based on available information, describing:
(i) The proposed remedial action including a schedule for the work;
(ii) The facility, including location and boundaries;
(iii) The environmental problems to be addressed, including the releases at the facility and the potential impact of those releases to human health and the environment;
(iv) A summary of the relevant historical use or conditions at the facility;
(v) Names of other persons whom the person has reason to believe may be potentially liable persons at the facility; and
(vi) A proposed public participation plan. This proposed plan shall be commensurate with the nature of the proposal and site and shall include, at a minimum, the elements listed in WAC 173-340-600(8).
(b) The letter may include a waiver of the procedural requirements of WAC 173-340-500, and acceptance, for purposes of the agreed order, of potentially liable person status.
(c) Recognizing that the basic steps of the cleanup process may be combined and may vary by site, the information in the request shall be at the level of detail appropriate to the step in the process for which the order is requested. For example, a request for an agreed order for a remedial investigation/feasibility study should generally include the level of information needed for a site hazard assessment, so that the department and the public can evaluate the proposed scope of work and relative priority of the site.
(d) The department may waive part of the letter requirements of (a) of this subsection if the requirements have already been met.
(3) Department response to PLP-initiated request. The department shall respond to the request within sixty 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 begin an enforcement action after notifying the potentially liable person in writing of its intent to withdraw from discussions.
(7) Focus of discussions. The focus of discussions for the agreed order shall ordinarily be the technical scope of work and work schedule. This subsection is not intended to preclude discussion on any item. It is intended to convey the expectation that the scope of work and work schedule will be the primary topics of discussion in developing agreed orders.
(8) Public participation.
(a) When issuing an agreed order, the department shall provide appropriate public participation opportunities under WAC 173-340-600.
(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. 01-05-024 (Order 97-09A), § 173-340-530, filed 2/12/01, effective 8/15/01; 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.]
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173-340-540
Enforcement orders.
The department may issue an enforcement order requiring remedial action after issuing a notice of potentially liable person status letter under WAC 173-340-500. In emergencies, the notice of potentially liable person status may occur concurrently with the issuance of the order. Unless an emergency requires otherwise, the issuance of a potentially liable person status letter shall precede or take place concurrently with the issuance of an enforcement order. Furthermore, except in an emergency, the department shall issue its determination under WAC 173-340-500(4) before an enforcement order can become effective. Failure to comply with an enforcement order may result in substantial liability for costs and penalties as specified in RCW 70.105D.050.
[Statutory Authority: Chapter 70.105D RCW. 90-08-086, § 173-340-540, filed 4/3/90, effective 5/4/90.]
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173-340-545
Private rights of action.
(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).
[Statutory Authority: Chapter 70.105D RCW. 01-05-024 (Order 97-09A), § 173-340-545, filed 2/12/01, effective 8/15/01.]
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173-340-550
Payment of remedial action costs.
(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 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.
PSCM = Program Support Cost Multiplier defined in (c) of this subsection.
(a) Costs of direct activities are direct staff costs and other direct costs. Direct staff costs (DSC) are the costs of hours worked directly on a contaminated site, including salaries, retirement plan benefits, Social Security benefits, health care benefits, leave and holiday benefits, and other benefits required by law to be paid to, or on behalf of, employees. Other direct costs are costs incurred as a direct result of department staff working on a contaminated site including, for example, costs of: Travel related to the site, printing and publishing of documents about the site, purchase or rental of equipment used for the site, and contracted work for the site.
(b) Agency support costs are the costs of facilities, communications, personnel, fiscal, and other statewide and agency-wide services. The agency support cost multiplier (ASCM) used shall be the agency indirect rate approved by the agency's federal cognizant agency (which, as of July 1, 1993, was the United States Department of the Interior) for each fiscal year.
(c) Program support costs are the costs of administrative time spent by site managers and other staff who work directly on sites and a portion of the cost of management, clerical, policy, computer, financial, citizen technical advisor, and other support provided by other program staff to site managers and other staff who work directly on sites. Other activities of the toxics cleanup program not included in program support costs include, for example, community relations not related to a specific site, policy development, and a portion of the cost of nonsite management, clerical, policy, computer, financial, and other support staff. The program support cost multiplier (PSCM) used shall be calculated by dividing actual program support costs by the direct staff costs of all hours charged to site related work. This multiplier shall be evaluated at least biennially and any changes published in at least two publications of the Site Register. The calculation and source documents used in any revision shall be audited by either the state auditor's office or a private accounting firm. Audit results shall be available for public review. This multiplier shall not exceed 1.0 (one).
(3) Request for payment. When the department requests payment of remedial action costs it shall provide an itemized statement documenting the costs incurred.
(4) Interest charges. A charge of twelve 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) Natural resource damages. Nothing in this section shall affect the authority of the department and the office of attorney general to recover natural resource damages.
(6) Independent remedial actions.
(a) The department may collect, from persons requesting a site-specific technical consultation under WAC 173-340-515, the costs incurred by the department in providing such advice and assistance.
(b) For situations where the department has decided to collect its costs, a refundable deposit of a reasonable amount will be required. The department's hourly costs shall be determined based on the method in WAC 173-340-550(2).
(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: Chapter 70.105D RCW. 01-05-024 (Order 97-09A), § 173-340-550, filed 2/12/01, effective 8/15/01. 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.]
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173-340-560
Mixed funding.
(1) Introduction. Under RCW 70.105D.070 (2)(d)(xi), the department may provide public funds from the state toxics control account to a potentially liable person for the purpose of assisting with the payment of remedial action costs regardless of when incurred. This assistance can be provided in the form of a loan or a contribution, in cash or in kind. Any funding decision under this section is solely the responsibility of the director.
(2) Applicability and request.
(a) Mixed funding shall be provided only to potentially liable persons whom the department has found to be eligible and who have entered into a consent decree with the department under the requirements of this chapter.
(b) The consent decree shall identify remedial action tasks to be addressed by the mixed funding, costs to be borne by the potentially liable person, costs to be borne by the state toxics control account and terms of the agreement. In the case of loans, the consent decree shall also define any terms and conditions under which the potentially liable person receiving mixed funding has agreed to reimburse the state toxics control account.
(c) The potentially liable person shall submit sufficient documentation to support its request for mixed funding.
(3) Eligibility and mixed funding criteria. The director shall make a determination, based upon specific criteria whether a proposal is eligible for funding. The only circumstances under which mixed funding can be approved by the department are when the funding will achieve both:
(a) A substantially more expeditious or enhanced cleanup than would otherwise occur; and
(b) The prevention or mitigation of unfair economic hardship. In considering this criterion the department shall consider the extent to which mixed funding will either:
(i) Prevent or mitigate unfair economic hardship faced by the potentially liable person if the remedial action plan were to be implemented without public funding; or
(ii) Achieve greater fairness with respect to the payment of remedial action costs between the potentially liable person entering into a consent decree with the department and any nonsettling potentially liable persons.
(4) Funding decision. The department may have informal discussions on mixed funding. If a potentially liable person is found to be eligible for mixed funding, the director shall make a determination regarding the amount of funding to be provided, if any. This shall be determined at the discretion of the director and is not subject to review. A determination of eligibility is not a funding commitment. Actual funding will depend on the availability of funds.
(5) The department may recover the amount of public funding spent on investigations and remedial actions from potentially liable persons who have not entered into a consent decree under this chapter. For purposes of such cost recovery action, the amount in mixed funding attributed to the site shall be considered as remedial action costs paid by the department.
[Statutory Authority: Chapter 70.105D RCW. 90-08-086, § 173-340-560, filed 4/3/90, effective 5/4/90.]
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173-340-600
Public notice and participation.
(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 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.
(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 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 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 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.
(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.
(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) Notice through the internet;
(i) Any other methods as determined by the department.
(7) Site Register. The department shall regularly publish, make available electronically, and maintain a publication called the Site Register, 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 remedial investigation/feasibility study;
(g) Availability of 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) 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;
(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 considers appropriate for inclusion.
(8) Evaluation. As part of requiring or conducting a remedial action at any facility, the department shall evaluate public participation needs at the facility. 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.
(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 inor knowledge of the facility. (continued)