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(continued)

(c) Plan development. The department shall develop the plan, or work with the potentially liable person to develop the plan. If a plan already exists for a facility, the department shall consider whether the existing plan is still appropriate or whether the plan should be amended. For example, a plan originally developed to address a remedial investigation/feasibility study may need to be amended to address implementation phases.

(d) Plans required. As part of requiring or conducting a remedial action, except emergency actions, at any site that has been assigned a hazard ranking score, the department shall ensure that a public participation plan is developed and implemented. The department may also require the development of a public participation plan as part of an agreed order (see WAC 173-340-530) or consent decree (see WAC 173-340-520) for facilities that have not been assigned a hazard ranking score.

(e) If the variables proposed to be modified in a site-specific risk assessment or alternative reasonable maximum exposure scenario may affect the significant public concerns regarding future land uses and exposure scenarios, then the department shall assure appropriate public involvement and comment opportunities will occur as identified in the public participation plan.

(f) Plan as part of order or decree. A potentially liable person will ordinarily be required to submit a proposed public participation plan as part of its request for an agreed order or a consent decree. If a plan already exists for the facility, the potentially liable person may either resubmit the existing plan with any proposed amendments or submit an entirely new proposed plan. The proposed plan may be revised during the course of discussions or negotiations on the agreed order (see WAC 173-340-530) or consent decree (see WAC 173-340-520).

The final public participation plan may become part of the agreed order or consent decree.

(g) Contents. The public participation plan shall include the following:

(i) Applicable public notice requirements and how these will be met, including: When public notice will occur; the length of the comment periods accompanying each notice; the potentially affected vicinity and any other areas to be provided notice, to the extent known.

(ii) Information repositories. The plan should identify at least one location where the public can review information about the remedial action. Multiple locations may be appropriate.

(iii) Methods of identifying the public's concerns. Such methods may include: Interviews; questionnaires; meetings; contacts with community groups or other organizations that have an interest in the site; establishing citizen advisory groups for sites; or obtaining advice from the appropriate regional citizens' advisory committee.

(iv) Methods of addressing the public's concerns and conveying information to the public. These may include any of the methods listed in subsection (6) of this section.

(v) Coordination of public participation requirements. The plan should identify any public participation requirements of other applicable federal, state or local laws, and address how such requirements can be coordinated. For example, if Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) applies to the proposed action, the plan should explain how CERCLA and this chapter's public comment periods will be coordinated.

(vi) Amendments to the plan. The plan should outline the process for amending the plan. Any amendments must be approved by the department.

(vii) Citizen technical advisor: A statement indicating the availability of the department's citizen technical advisor for providing technical assistance to citizens on issues related to the investigation and cleanup of the site.

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

(h) Implementation. The department shall retain approval authority over the actions taken by a potentially liable person to implement the plan.

(10) Consent decrees. In addition to any other applicable public participation requirements, the following shall be required for consent decrees.

(a) Public participation plan. A plan meeting the requirements of subsection (9) of this section shall be developed when required by subsection (9)(d) of this section.

(b) Notice of negotiations. When the department decides to proceed with negotiations it shall place a notice in the Site Register advising the public that negotiations have begun. This notice shall include the name of the facility, a general description of the subject of the consent decree and the deadlines for negotiations.

(c) Notice of proposed decree. The department shall provide or require public notice of proposed consent decree. The notice may be combined with notice of other documents under this chapter, such as a cleanup action plan, or under other laws. The notice shall briefly:

(i) Identify and generally describe the facility;

(ii) Identify the person(s) who are parties to the consent decree;

(iii) Generally describe the remedial action proposed in the proposed consent decree, including institutional controls and permit exemptions authorized under RCW 70.105D.090;

(iv) Indicate the date, place, and time of the public hearing on the proposed consent decree. Where a public hearing is not planned, indicate that a public hearing will only be held if at least ten persons request one and the procedures for requesting a public hearing; and

(v) Invite the public to comment at the public hearing (if applicable) or in writing. The public comment period shall run for at least thirty days from the date of the issuance of the notice.

(d) Public hearing. The department shall hold a public hearing on the proposed consent decree for the purpose of providing the public with an opportunity to comment whenever ten or more persons request a public hearing or whenever the department determines a public hearing is necessary.

(e) Revisions. If the state and the potentially liable person agree to substantial changes to the proposed consent decree, the department shall provide additional public notice and opportunity to comment.

(f) Extensions. The department shall publish in the next Site Register the extension of deadlines for designated high priority sites.

(11) Agreed orders. In addition to any other applicable public participation requirements, the following shall be required for agreed orders under WAC 173-340-530.

(a) Public participation plan. A plan meeting the requirements of subsection (9) of this section shall be developed when required by subsection (9)(d) of this section.

(b) Notice of discussions. When the department decides to proceed with discussions it shall place a notice in the Site Register advising the public that discussions have commenced. This notice shall include the name of the facility, a general description of the subject of the order and the deadlines for discussions.

(c) Notice of agreed orders. Public notice shall be provided by the department for any agreed order. For all agreed orders, notice shall be mailed no later than three days after the issuance of the agreed order. For all agreed orders, the comment period shall be at least thirty days. The agreed order may be effective before the comment period is over, unless the department determines it is in the public interest to complete the public comment period before the effective date of the agreed order. The department may determine that it is in the public interest to provide public notice before the effective date of any agreed order or to hold a public meeting or hearing on the agreed order. Notice of agreed orders shall briefly:

(i) Identify and generally describe the facility;

(ii) Identify the person(s) who are parties to the agreed order;

(iii) Generally describe the remedial action proposed in the proposed agreed order, including institutional controls and permit exemptions authorized under RCW 70.105D.090; and

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

(d) Revisions. If the department and the potentially liable person agree to substantial changes to the proposed agreed order, the department shall provide additional public notice and opportunity to comment.

(e) Extensions. The department shall publish in the next Site Register the extension of deadlines for designated high priority sites.

(12) Enforcement orders. In addition to any other applicable public participation requirements, the department shall provide public notice of all enforcement orders. Except in the case of emergencies, notice shall be mailed no later than three days after the date of the issuance of the order. In emergencies, notice shall be mailed no later than ten days after the issuance of the order.

(a) Contents of notice. All notices shall briefly:

(i) Identify and generally describe the facility;

(ii) Identify the person(s) who are parties to the order;

(iii) Generally describe the terms of the proposed order, including institutional controls and permit exemptions authorized under RCW 70.105D.090; and

(iv) Invite the public to comment on the proposed order.

(b) The department may amend the order on the basis of public comments. The department shall provide additional public notice and opportunity to comment if the order is substantially changed.

(13) Remedial investigation/feasibility study. In addition to any other applicable public participation requirements, the following shall be required during a remedial investigation/feasibility study.

(a) Scoping. When the department elects to perform a remedial investigation/feasibility study, the department shall provide public notice and an opportunity to comment on the scope of the remedial investigation/feasibility study.

(b) Extensions. The department shall publish in the next Site Register the extension of deadlines for designated high priority sites.

(c) Report. The department shall provide or require public notice of remedial investigation/feasibility study reports prepared under WAC 173-340-350. This public notice may be combined with public notice of the draft cleanup action plan. At a minimum, public notice shall briefly:

(i) Describe the site and remedial investigation/feasibility study results;

(ii) If available, identify the department's proposed cleanup action and provide an explanation for its selection;

(iii) Invite public comment on the report. The public comment period shall extend for at least thirty days from the date of mailing of the notice.

(14) Selection of cleanup actions. In addition to any other applicable public participation requirements, the department shall:

(a) Provide a notice of availability of draft or final cleanup action plans and a brief description of the proposed or selected alternative in the Site Register;

(b) Provide public notice of the draft cleanup action plan. A notice of a draft cleanup plan may be combined with notice on the remedial investigation/feasibility study. Notice of a draft cleanup action plan may be combined with notice on a draft consent decree or on an order. At a minimum, public notice shall briefly:

(i) Describe the site;

(ii) Identify the department's proposed cleanup action and provide an explanation for its selection;

(iii) Invite public comment on the draft cleanup action plan. The public comment period shall run for at least thirty days from the date of publication of the public notice.

(c) Whenever the cleanup action plan proposes a restrictive covenant as part of the draft cleanup plan, provide notice to and seek comments from the city or county department with land use planning authority for real property subject to the restrictive covenant. The purpose of this notification is to solicit comment on whether the proposed restrictive covenant is consistent with any current or proposed land use plans.

(15) Cleanup action implementation. In addition to any other applicable public participation requirements, the following shall be required during cleanup action implementation.

(a) Public notice and opportunity to comment on any plans prepared under WAC 173-340-400 that represent a substantial change from the cleanup action plan.

(b) When the department conducts a cleanup action, public notice and an opportunity to comment shall be provided on the engineering design report and notice shall be given in the Site Register.

(16) Routine cleanup and interim actions. In addition to any other applicable public participation requirements, the following will be required for routine cleanup actions and interim actions.

(a) Public notice shall be provided for any proposed routine cleanup or interim actions. This public notice shall be combined with public notice of an order or settlement whenever practicable.

(b) At a minimum, public notice shall briefly:

(i) Describe the site;

(ii) Identify the proposed action, including institutional controls and the permit exemptions authorized under RCW 70.105D.090;

(iii) Identify the likely or planned schedule for the action;

(iv) Reference any planning documents prepared for the action;

(v) Identify department staff who may be contacted for further information; and

(vi) Invite public comment on the routine cleanup or interim action. The public comment period shall extend for at least thirty days from the date of the mailing of notice.

(17) Public participation grants. RCW 70.105D.070(4) requires funds be allocated for public participation grants to persons, including groups who may be adversely affected by a release or threatened release of a hazardous substance. Persons interested in applying for such grants are encouraged to contact the department to learn about available funding, grant application procedures and deadlines. See chapter 173-321 WAC for additional information on public participation grants.

(18) Technical assistance. There is created within the department a citizen technical advisor office to provide independent technical assistance to citizens concerning the Model Toxics Control Act and remedial actions occurring under the act. This office will be established upon the effective date of this rule revision and continue for three years. Before the end of the three-year period, the department will work with citizen and business representatives to evaluate the effectiveness of this office and to determine whether the office should continue. The costs of this office shall be recovered by the department as provided for in WAC 173-340-550.



[Statutory Authority: Chapter 70.105D RCW. 01-05-024 (Order 97-09A), § 173-340-600, filed 2/12/01, effective 8/15/01; 90-08-086, § 173-340-600, filed 4/3/90, effective 5/4/90.]




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173-340-610
Regional citizens' advisory committees.
(1) The department shall establish regional citizens' advisory committees as part of a public participation program. The regional citizens' advisory committees are intended to promote meaningful and effective public involvement in the department's remedial action program under chapter 70.105D RCW. The committees will advise the department as to the concerns of citizens locally and regionally regarding the remedial actions within each committee's region, with emphasis on issues that affect the region as a whole, rather than site-specific concerns.

(2) Location. There shall be a regional citizens' advisory committee representing each geographic region of the state served by a regional office of the department.

(3) Membership. At any time, each committee shall have no fewer than five and no more than twelve members. The director shall, no later than July 1, 1990, appoint five members to each committee to represent citizens' interests in the region. These members shall serve three-year terms that may be renewed at the director's discretion. These members should represent citizen interests in the region.

(a) The director may appoint up to seven additional members to represent communities that may be affected by the remedial actions within each region. These members shall serve two-year terms that may be renewed at the director's discretion.

(b) At no time shall more than twenty-five percent of the membership of any committee consist of persons who are elected or appointed public officials or their representatives.

(c) The department shall advise the public as to whether any vacancies exist on the committees, and shall accept applications from interested citizens.

(d) The following persons shall not be eligible to serve on any committee:

(i) Persons whom the department has found are potentially liable persons under WAC 173-340-500 with regard to any facility that is currently the subject of department investigative, remedial or enforcement actions, not including compliance monitoring;

(ii) Agents or employees of such potentially liable persons as described in (d)(i) of this subsection; and

(iii) Agents or employees of the department.

(e) A member shall refrain from participating in a committee matter if that member for any reason cannot act fairly and in the public interest with regard to that matter.

(f) The director may dismiss a member for cause in accordance with the terms of the regional citizens' advisory committee charter.

(4) Meetings. The committees shall meet at least twice a year at the regional offices or elsewhere as agreed upon by a committee and the department. Appropriate department staff may attend these meetings. The department shall brief the committees on the program's major planned and ongoing activities for the year.

(a) The department and the committees may agree to additional meetings.

(b) Each committee will designate one of its members to serve as chair. The committee chairs shall meet every year with the program manager or his/her designee.

(c) All committee meetings shall be open to the public. The department shall inform the public of committee meetings.

(5) Resources allocated to the committees.

(a) The department shall determine, after consulting with the committees, the amount of staff time and other department resources that shall be available to the committees for each biennium.

(b) The department shall designate staff to work with the committees.

(c) Members shall be reimbursed for travel expenses (as provided for in chapter 43.03 RCW) for any meetings approved by the department.

(6) Responsibilities. The committees are directed to:

(a) Meet at least twice annually;

(b) Inform citizens within each region as to the existence of the committees and their availability as a resource;

(c) Review the department's biennial program priorities, and advise the department of citizen concerns regarding the program priorities;

(d) Advise the department of community concerns about the cleanup program's activities and develop proposals for addressing these concerns. Committees may use issues at specific sites as a foundation for understanding regional issues;

(e) Annually prepare a brief report to the department describing:

(i) Major citizen concerns that have been brought to the committee's attention during the past year;

(ii) Any committee proposals or recommendations to address these concerns;

(iii) The committee's plans for the coming year; and

(iv) Any other information or issues which the committee believes appropriate for inclusion.

(f) The committees are encouraged to work with the department and the public to develop additional committee goals or responsibilities.



[Statutory Authority: Chapter 70.105D RCW. 01-05-024 (Order 97-09A), § 173-340-610, filed 2/12/01, effective 8/15/01; 90-08-086, § 173-340-610, filed 4/3/90, effective 5/4/90.]




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173-340-700
Overview of cleanup standards.
(1) Purpose. This section provides an overview of the methods for establishing cleanup standards that apply to a release or threatened release of a hazardous substance at a site. If there are any inconsistencies between this section and any specifically referenced section, the referenced section shall govern.

(2) Explanation of term "cleanup level." A cleanup level is the concentration of a hazardous substance in soil, water, air or sediment that is determined to be protective of human health and the environment under specified exposure conditions. Cleanup levels, in combination with points of compliance, typically define the area or volume of soil, water, air or sediment at a site that must be addressed by the cleanup action.

(3) Explanation of term "cleanup standards." Cleanup standards consist of the following:

(a) Cleanup levels for hazardous substances present at the site;

(b) The location where these cleanup levels must be met (point of compliance); and

(c) Other regulatory requirements that apply to the site because of the type of action and/or location of the site ("applicable state and federal laws").

(4) Relationship between cleanup standards and cleanup actions.

(a) Cleanup standards are identified for the particular hazardous substances at a site and the specific areas or pathways, such as land or water, where humans and the environment can become exposed to these substances. This part provides uniform methods statewide for identifying cleanup standards and requires that all cleanups under the act meet these standards. The actual degree of cleanup may vary from site to site and will be determined by the cleanup action alternative selected under WAC 173-340-350 through 173-340-390.

(b) For most sites, there are several cleanup technologies or combinations of cleanup technologies ("cleanup action alternatives") that may be used to comply with cleanup standards at individual sites. Other parts of this rule govern the process for planning and deciding on the cleanup action to be taken at a site. This may include establishing "remediation levels," or the concentrations of hazardous substances above which a particular cleanup technology will be applied. See WAC 173-340-350 through173-340-390 . WAC 173-340-355 contains detailed information on establishing remediation levels. WAC 173-340-410 specifies the monitoring required to ensure that the remedy is effective.

(c) Where a cleanup action involves containment of soils with hazardous substances above cleanup levels, the cleanup action may be determined to comply with cleanup standards, provided the compliance monitoring program is designed to ensure the long-term integrity of the containment system, and the other requirements for containment in this chapter are met.

(5) Methods for setting cleanup levels. The first step in setting cleanup levels is to identify the nature of the contamination, the potentially contaminated media, the current and potential pathways of exposure, the current and potential receptors, and the current and potential land and resource uses. A conceptual site model may be developed as part of this scoping process. Cleanup levels may then be established for each media. Both the conceptual site model and cleanup levels may be refined as additional information is collected during the remedial investigation/feasibility study. See WAC 173-340-708(3) for additional information on how to determine current and potential future land and resource uses for the conceptual site model. These rules provide three approaches for establishing cleanup levels:

(a) Method A: ARARs and Tables. On some sites, the cleanup action may be routine (WAC 173-340-200) or may involve relatively few hazardous substances. Under Method A, cleanup levels at these sites are set at concentrations at least as stringent as concentrations specified in applicable state and federal laws (ARARs) and Tables 720-1, 740-1, and 745-1 of this chapter.

Method A cleanup levels for hazardous substances that are deemed indicator hazardous substances at the site under WAC 173-340-708(2) and are not addressed under applicable state and federal laws or Tables 720-1, 740-1, and 745-1 must be established at concentrations which do not exceed the natural background concentration or the practical quantitation limit, whichever is higher.

For soil contamination, the potential impact of hazardous substances on terrestrial ecological receptors must be evaluated under WAC 173-340-7490 through 173-340-7494. Specifically, either an exclusion must be established for the site under WAC 173-340-7491 or a terrestrial ecological evaluation must be conducted under WAC 173-340-7492 or 173-340-7493. The terrestrial ecological evaluation may result in a more stringent Method A soil cleanup level than is required to protect human health.

Except where institutional controls are required by WAC 173-340-440(4), site cleanups that achieve Method A cleanup levels may be used without future restrictions on the property due to residual levels of contamination.

(b) Method B: Universal method. Method B is the universal method for determining cleanup levels for all media at all sites. Under Method B, cleanup levels for individual hazardous substances are established using applicable state and federal laws and the risk equations and other requirements specified in WAC 173-340-720 through 173-340-760.

Method B is divided into two tiers: Standard and modified. Standard Method B uses generic default assumptions to calculate cleanup levels. Modified Method B provides for the use of chemical-specific or site-specific information to change selected default assumptions, within the limitations allowed in WAC 173-340-708. Modified Method B may be used to establish cleanup levels.

Modified Method B may also be used in a quantitative risk assessment to help assess the protectiveness of a remedy by modifying input parameters as described in WAC 173-340-720 through 173-340-750 or by using other modifications that meet the requirements of WAC 173-340-702 and 173-340-708. See WAC 173-340-355 and 173-340-357 for more information on remediation levels and quantitative risk assessment.

For individual carcinogens, both standard and modified Method B cleanup levels are based upon the upper bound of the estimated excess lifetime cancer risk of one in one million (1 x 10-6).

For individual noncarcinogenic substances, both standard and modified Method B cleanup levels are set at concentrations which are anticipated to result in no acute or chronic toxic effects on human health (that is, hazard quotient of one (1) or less) and no significant adverse effects on the propagation of aquatic and terrestrial organisms.

Where a hazardous waste site involves multiple hazardous substances and/or multiple pathways of exposure, then standard and modified Method B cleanup levels for individual substances must be adjusted downward for additive health effects in accordance with the procedures in WAC 173-340-708 if the total excess lifetime cancer risk for a site exceeds one in one hundred thousand (1 x 10-5) or the hazard index for substances with similar noncarcinogenic toxic effects exceeds one (1).

For soil contamination, the potential impact of hazardous substances on terrestrial ecological receptors must be evaluated under WAC 173-340-7490 through 173-340-7494. Specifically, either an exclusion must be established for the site under WAC 173-340-7491 or a terrestrial ecological evaluation must be conducted under WAC 173-340-7492 or 173-340-7493. The terrestrial ecological evaluation may result in a more stringent Method B soil cleanup level for the site than is required to protect human health.

Except where institutional controls are required by WAC 173-340-440(4), site cleanups that achieve Method B cleanup levels may be used without future restrictions on the property due to residual levels of contamination.

(c) Method C: Conditional method. Compliance with cleanup levels developed under Method A or B may be impossible to achieve or may cause greater environmental harm. In those situations, Method C cleanup levels for individual hazardous substances may be established for surface water, ground water, and air. Method C industrial soil and air cleanup levels may also be established at industrial properties that meet the criteria in WAC 173-340-745.

Under Method C, cleanup levels for individual hazardous substances are established using applicable state and federal laws and the risk equations and other requirements specified in WAC 173-340-720 through 173-340-760. Method C is divided into two tiers: Standard and modified. Standard Method C uses generic default assumptions to calculate cleanup levels. Modified Method C provides for the use of chemical-specific or site-specific information to change selected default assumptions, within the limitations allowed in WAC 173-340-708. Modified Method C may be used to establish cleanup levels.

Modified Method C may also be used in a quantitative risk assessment to help assess the protectiveness of a remedy by modifying input parameters as described in WAC 173-340-720 through 173-340-750 or by using other modifications that meet the requirements of WAC 173-340-702 and 173-340-708. See WAC 173-340-355 and 173-340-357 for more information on remediation levels and quantitative risk assessment.

For individual carcinogens, both standard and modified Method C cleanup levels are based upon the upper bound of the estimated lifetime cancer risk of one in one hundred thousand (1 x 10-5).

For individual noncarcinogenic substances, both standard and modified Method C cleanup levels are set at concentrations which are anticipated to result in no acute or chronic toxic effects on human health (that is, hazard quotient of one (1) or less) and no significant adverse effects on the protection and propagation of aquatic and terrestrial organisms.

Where a hazardous waste site involves multiple hazardous substances and/or multiple pathways of exposure, then both standard and modified Method C cleanup levels for individual substances must be adjusted downward for additive health effects in accordance with the procedures in WAC 173-340-708 if the total excess lifetime cancer risk for a site exceeds one in one hundred thousand (1 x 10-5) or the hazard index for substances with similar noncarcinogenic toxic effects exceeds one (1).

For soil contamination, the potential impact of hazardous substances on terrestrial ecological receptors must be evaluated under WAC 173-340-7490 through 173-340-7494. Specifically, either an exclusion must be established for the site under WAC 173-340-7491 or a terrestrial ecological evaluation must be conducted under WAC 173-340-7492 or 173-340-7493. The terrestrial ecological evaluation may result in a more stringent Method C soil cleanup level for the site than is required to protect human health.

Site cleanups establishing Method C cleanup levels must have restrictions placed on the property (institutional controls) to ensure future protection of human health and the environment.

(6) Requirements for setting cleanup levels. Several requirements apply to cleanups under any of the three methods. Some of these requirements, such as the identification of applicable state and federal laws, describe analyses used along with Methods A, B or C in order to set cleanup levels for particular substances at a site. Others describe the technical procedures to be used.

(a) Applicable state and federal laws. RCW 70.105D.030 (2)(d) requires the cleanup standards in these rules to be "at least as stringent as all applicable state and federal laws." In addition to establishing minimum requirements for cleanup standards, applicable state and federal laws may also impose certain technical and procedural requirements for performing cleanup actions. These requirements are described in WAC 173-340-710 and are similar to the "ARAR" (applicable, relevant and appropriate requirements) approach of the federal superfund law. Sites that are cleaned up under an order or decree may be exempt from obtaining a permit under certain other laws but they must still meet the substantive requirements of these other laws. (See WAC 173-340-710(9).)

(b) Cross-media contamination. In some situations, migration of hazardous substances from one medium may cause contamination in a second media. For example, the release of hazardous substances in soil may cause ground water contamination. Under Methods A, B, and C, cleanup levels must be established at concentrations that prevent violations of cleanup levels for other media.

(c) Risk assessment procedures. The analyses performed under Methods B and C use several default assumptions for defining cleanup levels for carcinogens and noncarcinogens. The individual default assumptions and procedures for modifying these assumptions based on site-specific information are specified in WAC 173-340-708 and 173-340-720 through 173-340-750. WAC 173-340-708 also provides rules for use of indicator hazardous substances. The standards for review of new scientific information are described in WAC 173-340-702 (14), (15) and (16).

(d) Natural background and analytical considerations. In some cases, cleanup levels calculated using the methods specified in this chapter are less than natural background levels or levels that can be reliably measured. In those situations, the cleanup level shall be established at a concentration equal to the practical quantitation limit or natural background concentration, whichever is higher. See WAC 173-340-707 and 173-340-709 for additional information.

(7) Procedures for demonstrating compliance with cleanup standards. Setting cleanup standards also involves being able to demonstrate that they have been met. This involves specifying where on the site the cleanup levels must be met ("points of compliance"), how long it takes for a site to meet cleanup levels ("restoration time frame"), and conducting sufficient monitoring to demonstrate that the cleanup standards have been met and will continue to be met in the future. The provisions for establishing points of compliance are in WAC 173-340-720 through173-340-750 . The provisions for establishing restoration time frames are in WAC 173-340-360. The compliance monitoring plan prepared under WAC 173-340-410 specifies precisely how these are measured for each site. At sites where remediation levels are used, the compliance monitoring plan will also need to describe the performance monitoring to be conducted to demonstrate the remediation levels have been achieved.

(8) Specific procedures for setting cleanup levels at petroleum contaminated sites. In addition to the other requirements in this section, this chapter provides for the following specific procedures to establish cleanup levels at sites where there has been a release of total petroleum hydrocarbons (TPH) and hazardous substances associated with a release of TPH.

(a) For soil contamination, the potential impact of TPH on terrestrial ecological receptors must be evaluated under WAC 173-340-7490 through 173-340-7494. Specifically, either an exclusion must be established for the site under WAC 173-340-7491 or a terrestrial ecological evaluation must be conducted under WAC 173-340-7492 or 173-340-7493. The terrestrial ecological evaluation may result in a more stringent soil cleanup level than is required to protect human health.

(b) It is necessary to analyze for and evaluate certain carcinogenic and noncarcinogenic hazardous substances that may be associated with a release of TPH. These are identified in Table 830-1. In cases where the cleanup level for one or more of these associated hazardous substances is exceeded but the TPH cleanup level is not, the cleanup level shall be based on the associated hazardous substance.

(i) Method A. Method A may be used to establish cleanup levels for TPH and associated hazardous substances at qualifying sites (see WAC 173-340-704). At these sites, the presence, location and concentration of TPH may be established by using the NWTPH method described under Method 6 (see WAC 173-340-830 (3)(a)(vi)). The NWTPH method is a simplified, and relatively inexpensive, analytical method for evaluating TPH. Method A cleanup levels have been determined for four common petroleum mixtures: Gasoline range organics (GRO), diesel range organics (DRO), heavy oils, and electrical insulating mineral oil, as well as many hazardous substances that may be associated with the TPH. A site owner may decide to use Method A for some substances or media and Method B or C for others, depending upon site conditions and qualifications.

(ii) Method B and Method C tiered approach. This chapter provides for a three-tiered approach for establishing Method B and Method C cleanup levels at sites that involve a release of TPH. These tiers are not required to be approached sequentially (that is, the process may be started at any tier). The tiered process allows one to calculate different cleanup levels for TPH and associated hazardous substances using progressively more complex and site-specific information, and also allows for basing the cleanup levels on the presence or absence of exposure pathways, determined as part of the conceptual site model. In establishing a TPH cleanup level using the tiered process, it is still necessary to comply with other requirements and procedures under WAC 173-340-700 through 173-340-750.

(A) Conceptual site model. The first step in setting Method B or C cleanup levels for TPH is to identify the nature of the contamination, the potentially contaminated media, the current and potential pathways of exposure, the current and potential receptors, and the current and potential land and resource uses. A conceptual site model should be developed as part of this scoping process. See WAC 173-340-708(3) for additional information on how to determine current and potential future land and resource uses for the conceptual site model.

(B) General description of the three tiers.

(I) Tier 1 consists of the standard Method B and Method C formulas and requirements under WAC 173-340-720 through173-340-750 for each applicable pathway identified by the conceptual site model, including specific requirements set forth in those sections for petroleum mixtures.

(II) Tier 2 consists of the site-specific use of modified Method B and Method C formulas and requirements under WAC 173-340-720 through 173-340-750 for each applicable exposure pathway identified by the conceptual site model; and inclusion and development of additional, site-specific exposure pathways not addressed in Method A or Tier 1.

(III) Tier 3 consists of the site-specific use of standard or modified Method B and Method C formulas and requirements for each applicable exposure pathway identified by the conceptual site model and the use of new scientific information to establish a cleanup level as provided under WAC 173-340-702 (14), (15) and (16). It is considered a more complex evaluation in terms of technical sophistication (such as the use of new fate and transport models), data needs, cost and time.

(IV) A single tier may be used for all exposure pathways or more than one tier may be used when there are multiple exposure pathways.

(C) Fractionated approach. Method B and Method C cleanup levels for TPH are determined using the fractionated analytical approach for petroleum as described under Method 6 (see WAC 173-340-830 (3)(a)(vi)). This approach divides the TPH mixture into equivalent carbon numbers. Use of the fractionated approach requires testing or knowledge to define product composition as described under subsection (8)(b)(ii)(D) of this section ("Determination of product composition"). Cleanup levels are then calculated using reference doses that have been determined by the department for each fraction. Cleanup levels also need to consider the measured or predicted ability of the fractions to migrate from one medium to other media. Where multiple pathways of exposure for a particular medium are identified in the conceptual site model, the most stringent of the concentrations calculated for the various pathways becomes the cleanup level. For example, for soil contamination, if the direct contact and leaching pathways are potential exposure pathways, then a soil concentration would be calculated for each pathway and the lowest calculated concentration would become the cleanup level.

(D) Determination of product composition. Product composition may be determined by analyzing each sample in accordance with the VPH/EPH method described under Method 6 (see WAC 173-340-830 (3)(a)(vi)). Alternatively, product composition may be determined by one of the following methods:

(I) Correlation. Where WTPH or NWTPH methods described in Method 6 are used to collect and analyze the presence, location and concentration of TPH, knowledge of the fraction-specific composition of the petroleum released at the site may be based on analysis and correlation of a portion of the site samples with both the VPH/EPH and WTPH/NWTPH methods.

(II) Retrofitting. Where WTPH or NWTPH methods were used to collect and analyze the presence, location and concentration of TPH before the effective date of this provision, knowledge of the fraction-specific composition of the petroleum released at the site may be based on the fraction-specific composition assumptions used by the department to calculate Method A cleanup levels, which the department shall publish in guidance. If the identity of the petroleum product released at the site is not known, or is a mixture of products, retrofitting under this provision shall be based on the composition that yields the lowest TPH cleanup level.

(E) Consultation with the department. Because of the complexity of the development of site-specific Method B and Method C petroleum cleanup levels using the second or third tiers described above, or the use of correlated or retrofitted data, persons planning on using these methods are encouraged to contact the department to obtain appropriate technical guidance.



[Statutory Authority: Chapter 70.105D RCW. 01-05-024 (Order 97-09A), § 173-340-700, filed 2/12/01, effective 8/15/01; 96-04-010 (Order 94-37), § 173-340-700, filed 1/26/96, effective 2/26/96; 91-04-019, § 173-340-700, filed 1/28/91, effective 2/28/91; 90-08-086, § 173-340-700, filed 4/3/90, effective 5/4/90.]




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173-340-702
General policies.
(1) Purpose. This section defines the general policies and principles that shall be followed when establishing and implementing cleanup standards. This section shall be used in combination with other sections of this chapter.

(2) Policy on expediting cleanups. Establishing cleanup standards and selecting an appropriate cleanup action involves many technical and public policy decisions. This chapter is intended to constrain the range of decisions made on individual sites to promote expeditious cleanups.

(3) Goal for cleanups. The Model Toxics Control Act contains policies that state, in part, each person has a fundamental and inalienable right to a healthful environment and it is essential that sites be cleaned up well. Consistent with these policies, cleanup standards and cleanup actions selected under this chapter shall be established that provide conservative estimates of human health and environmental risks that protect susceptible individuals as well as the general population.

(4) Current and potential site and resource uses. Cleanup standards and cleanup actions selected under this chapter shall be established that protect human health and the environment for current and potential future site and resource uses.

(5) Presumption for cleanup actions. Cleanup actions that achieve cleanup levels at the applicable point of compliance under Methods A, B, or C (as applicable) and comply with applicable state and federal laws shall be presumed to be protective of human health and the environment.

(6) Cost considerations. Except as provided for in applicable state and federal laws, cost shall not be a factor in determining what cleanup level is protective of human health and the environment. In addition, where specifically provided for in this chapter, cost may be appropriate for certain other determinations related to cleanup standards such as point of compliance. Cost shall, however, be considered when selecting an appropriate cleanup action.

(7) Cleanup action alternatives. At most sites, there is more than one hazardous substance and more than one pathway for hazardous substances to get into the environment. For many sites there is more than one method of cleanup (cleanup action component) that could address each of these. When evaluating cleanup action alternatives it is appropriate to consider a representative range of cleanup action components that could address each of these as well as different combinations of these components to accomplish the overall site cleanup.

(8) Cross-media impacts. The cleanup of a particular medium at a site will often affect other media at the site. These cross-media impacts shall be considered when establishing cleanup standards and selecting a cleanup action. Cleanup actions conducted under this chapter shall use appropriate engineering controls or other measures to minimize these cross-media impacts.

(9) Relationship between cleanup levels and cleanup actions. In general, cleanup levels must be met throughout a site before the site will be considered clean. A cleanup action that leaves hazardous substances on a site in excess of cleanup levels may be acceptable as long as the cleanup action complies with WAC 173-340-350 through 173-340-390. However, these rules are intended to promote thorough cleanups rather than long-term partial cleanups or containment measures.

(10) Relationship to federal cleanup law. When evaluating cleanup actions performed under the federal cleanup law, the department shall consider WAC 173-340-350, 173-340-355, 173-340-357, 173-340-360, 173-340-410, 173-340-420, 173-340-440, 173-340-450, 173-340-700 through 173-340-760, and 173-340-830 to be legally applicable requirements under Section 121(d) of the Federal Cleanup Law.

(11) Reviewing and updating cleanup standards. The department shall review and, as appropriate, update WAC 173-340-700 through 173-340-760 at least once every five years.

(12) Applicability of new cleanup levels.

(a) For cleanup actions conducted by the department, or under an order or decree, the department shall determine the cleanup level that applies to a release based on the rules in effect under this chapter at the time the department issues a final cleanup action plan for that release.

(b) In reviewing the adequacy of independent remedial actions, the department shall determine the cleanup level that applies to a release based on the rules in effect at the time the final cleanup action for that release began or in effect when the department reviews the cleanup action, whichever is less stringent.

(c) A release cleaned up under the cleanup levels determined in (a) or (b) of this subsection shall not be subject to further cleanup action due solely to subsequent amendments to the provisions in this chapter on cleanup levels, unless the department determines, on a case-by-case basis, that the previous cleanup action is no longer sufficiently protective of human health and the environment.

(d) Nothing in this subsection constitutes a settlement or release of liability under the Model Toxics Control Act.

(13) Institutional controls. Institutional controls shall be required whenever any of the circumstances identified in WAC 173-340-440(4) are present at a site.

(14) Burden of proof. Any person responsible for undertaking a cleanup action under this chapter who proposes to:

(a) Use a reasonable maximum exposure scenario other than the default provided for each medium;

(b) Use assumptions other than the default values provided for in this chapter;

(c) Establish a cleanup level under Method C; or

(d) Use a conditional point of compliance, shall have the burden of demonstrating to the department that requirements in this chapter have been met to ensure protection of human health and the environment. The department shall only approve of such proposals when it determines that this burden of proof is met.

(15) New scientific information. The department shall consider new scientific information when establishing cleanup levels and remediation levels for individual sites. In making a determination on how to use this new information, the department shall, as appropriate, consult with the science advisory board, the department of health, and the United States Environmental Protection Agency. Any proposal to use new scientific information shall meet the quality of information requirements in subsection (16) of this section. To minimize delay in cleanups, any proposal to use new scientific information should be introduced as early in the cleanupprocess as possible. Proposals to use new scientific information may be considered up to the time of issuance of the final cleanup action plan governing the cleanup action for a site unless triggered as part of a periodic review under WAC 173-340-420 or through a reopener under RCW 70.105D.040 (4)(c). (continued)