Section 173-340-360. Selection of cleanup actions.

(1) Purpose.

This section describes the minimum requirements and procedures for selecting cleanup actions. This section is intended to be used in conjunction with the administrative principles for the overall cleanup process in WAC 173-340-130; the requirements and procedures in WAC 173-340-350 through 173-340-357 and WAC 173-340-370 through 173-340-390; and the cleanup standards defined in WAC 173-340-700 through 173-340-760.

(2) Minimum requirements for cleanup actions. All cleanup actions shall meet the following requirements. Because cleanup actions will often involve the use of several cleanup action components at a single site, the overall cleanup action shall meet the requirements of this section. The department recognizes that some of the requirements contain flexibility and will require the use of professional judgment in determining how to apply them at particular sites.

(a) Threshold requirements. The cleanup action shall:

(i) Protect human health and the environment;

(ii) Comply with cleanup standards (see WAC 173-340-700 through 173-340-760);

(iii) Comply with applicable state and federal laws (see WAC 173-340-710); and

(iv) Provide for compliance monitoring (see WAC 173-340-410 and 173-340-720 through 173-340-760).

(b) Other requirements. When selecting from cleanup action alternatives that fulfill the threshold requirements, the selected action shall:

(i) Use permanent solutions to the maximum extent practicable (see subsection (3) of this section);

(ii) Provide for a reasonable restoration time frame (see subsection (4) of this section); and

(iii) Consider public concerns (see WAC 173-340-600).

(c) Groundwater cleanup actions.

(i) Permanent groundwater cleanup actions. A permanent cleanup action shall be used to achieve the cleanup levels for groundwater in WAC 173-340-720 at the standard point(s) of compliance (see WAC 173-340-720(8)) where a permanent cleanup action is practicable or determined by the department to be in the public interest.

(ii) Nonpermanent groundwater cleanup actions. Where a permanent cleanup action is not required under (c)(i) of this subsection, the following measures shall be taken:

(A) Treatment or removal of the source of the release shall be conducted for liquid wastes, areas contaminated with high concentrations of hazardous substances, highly mobile hazardous substances, or hazardous substances that cannot be reliably contained. This includes removal free product consisting of petroleum and other light nonaqueous phase liquid (LNAPL) from the groundwater using normally accepted engineering practices. Source containment may be appropriate when the free product consists of a dense nonaqueous phase liquid (DNAPL) that cannot be recovered after reasonable efforts have been made.

(B) Groundwater containment, including barriers or hydraulic control through groundwater pumping, or both, shall be implemented to the maximum extent practicable to avoid lateral and vertical expansion of the groundwater volume affected by the hazardous substance.

(d) Cleanup actions for soils at current or potential future residential areas and for soils at schools and child care centers. For current or potential future residential areas and for schools and child care centers, soils with hazardous substance concentrations that exceed soil cleanup levels must be treated, removed, or contained. Property qualifies as a current or potential residential area if:

(i) The property is currently used for residential use; or

(ii) The property has a potential to serve as a future residential area based on the consideration of zoning, statutory and regulatory restrictions, comprehensive plans, historical use, adjacent land uses, and other relevant factors.

(e) Institutional controls.

(i) Cleanup actions shall use institutional controls and financial assurances when required under WAC 173-340-440.

(ii) Cleanup actions that use institutional controls shall meet each of the minimum requirements specified in this section, just as any other cleanup action. Institutional controls should demonstrably reduce risks to ensure a protective remedy. This demonstration should be based on a quantitative scientific analysis where appropriate.

(iii) In addition to meeting each of the minimum requirements specified in this section, cleanup actions shall not rely primarily on institutional controls and monitoring where it is technically possible to implement a more permanent cleanup action for all or a portion of the site.

(f) Releases and migration. Cleanup actions shall prevent or minimize present and future releases and migration of hazardous substances in the environment.

(g) Dilution and dispersion. Cleanup actions shall not rely primarily on dilution and dispersion unless the incremental costs of any active remedial measures over the costs of dilution and dispersion grossly exceed the incremental degree of benefits of active remedial measures over the benefits of dilution and dispersion.

(h) Remediation levels. Cleanup actions that use remediation levels shall meet each of the minimum requirements specified in this section, just as any other cleanup action.

(i) Selection of a cleanup action alternative that uses remediation levels requires, in part, a determination that a more permanent cleanup action is not practicable, based on the disproportionate cost analysis (see subsections (2)(b)(i) and (3) of this section).

(ii) Selection of a cleanup action alternative that uses remediation levels also requires a determination that the alternative meets each of the other minimum requirements specified in this section, including a determination that the alternative is protective of human health and the environment.

(3) Determining whether a cleanup action uses permanent solutions to the maximum extent practicable.

(a) Purpose. This subsection describes the requirements and procedures for determining whether a cleanup action uses permanent solutions to the maximum extent practicable, as required under subsection (2)(b)(i) of this section. A determination that a cleanup action meets this one requirement does not mean that the other minimum requirements specified in subsection (2) of this section have been met. To select a cleanup action for a site, a cleanup action must meet each of the minimum requirements specified in subsection (2) of this section.

(b) General requirements. When selecting a cleanup action, preference shall be given to permanent solutions to the maximum extent practicable. To determine whether a cleanup action uses permanent solutions to the maximum extent practicable, the disproportionate cost analysis specified in (e) of this subsection shall be used. The analysis shall compare the costs and benefits of the cleanup action alternatives evaluated in the feasibility study. The costs and benefits to be compared are the evaluation criteria identified in (f) of this subsection.

(c) Permanent cleanup action defined. A permanent cleanup action or permanent solution is defined in WAC 173-340-200.

(d) Selection of a permanent cleanup action. A disproportionate cost analysis shall not be required if the department and the potentially liable persons agree to a permanent cleanup action that will be identified by the department as the proposed cleanup action in the draft cleanup action plan.

(e) Disproportionate cost analysis.

(i) Test. Costs are disproportionate to benefits if the incremental costs of the alternative over that of a lower cost alternative exceed the incremental degree of benefits achieved by the alternative over that of the other lower cost alternative.

(ii) Procedure.

(A) The alternatives evaluated in the feasibility study shall be ranked from most to least permanent, based on the evaluation of the alternatives under (f) of this subsection and the definition of permanent solution in (c) of this subsection.

(B) The most practicable permanent solution evaluated in the feasibility study shall be the baseline cleanup action alternative against which cleanup action alternatives are compared. If no permanent solution has been evaluated in the feasibility study, the cleanup action alternative evaluated in the feasibility study that provides the greatest degree of permanence shall be the baseline cleanup action alternative.

(C) The comparison of benefits and costs may be quantitative, but will often be qualitative and require the use of best professional judgment. In particular, the department has the discretion to favor or disfavor qualitative benefits and use that information in selecting a cleanup action. Where two or more alternatives are equal in benefits, the department shall select the less costly alternative provided the requirements of subsection (2) of this section are met.

(f) Evaluation criteria. The following criteria shall be used to evaluate and compare each cleanup action alternative when conducting a disproportionate cost analysis under (e) of this subsection to determine whether a cleanup action is permanent to the maximum extent practicable.

(i) Protectiveness. Overall protectiveness of human health and the environment, including the degree to which existing risks are reduced, time required to reduce risk at the facility and attain cleanup standards, on-site and offsite risks resulting from implementing the alternative, and improvement of the overall environmental quality.

(ii) Permanence. The degree to which the alternative permanently reduces the toxicity, mobility or volume of hazardous substances, including the adequacy of the alternative in destroying the hazardous substances, the reduction or elimination of hazardous substance releases and sources of releases, the degree of irreversibility of waste treatment process, and the characteristics and quantity of treatment residuals generated.

(iii) Cost. The cost to implement the alternative, including the cost of construction, the net present value of any long-term costs, and agency oversight costs that are cost recoverable. Long-term costs include operation and maintenance costs, monitoring costs, equipment replacement costs, and the cost of maintaining institutional controls. Cost estimates for treatment technologies shall describe pretreatment, analytical, labor, and waste management costs. The design life of the cleanup action shall be estimated and the cost of replacement or repair of major elements shall be included in the cost estimate.

(iv) Effectiveness over the long term. Long-term effectiveness includes the degree of certainty that the alternative will be successful, the reliability of the alternative during the period of time hazardous substances are expected to remain on-site at concentrations that exceed cleanup levels, the magnitude of residual risk with the alternative in place, and the effectiveness of controls required to manage treatment residues or remaining wastes. The following types of cleanup action components may be used as a guide, in descending order, when assessing the relative degree of long-term effectiveness: Reuse or recycling; destruction or detoxification; immobilization or solidification; on-site or offsite disposal in an engineered, lined and monitored facility; on-site isolation or containment with attendant engineering controls; and institutional controls and monitoring.

(v) Management of short-term risks. The risk to human health and the environment associated with the alternative during construction and implementation, and the effectiveness of measures that will be taken to manage such risks.

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

(vii) Consideration of public concerns. Whether the community has concerns regarding the alternative and, if so, the extent to which the alternative addresses those concerns. This process includes concerns from individuals, community groups, local governments, tribes, federal and state agencies, or any other organization that may have an interest in or knowledge of the site.

(4) Determining whether a cleanup action provides for a reasonable restoration time frame.

(a) Purpose. This subsection describes the requirements and procedures for determining whether a cleanup action provides for a reasonable restoration time frame, as required under subsection (2)(b)(ii) of this section. A determination that a cleanup action meets this one requirement does not mean that the other minimum requirements specified in subsection (2) of this section have been met. To select a cleanup action for a site, a cleanup action must meet each of the minimum requirements specified in subsection (2) of this section.

(b) Factors. To determine whether a cleanup action provides for a reasonable restoration time frame, the factors to be considered include the following:

(i) Potential risks posed by the site to human health and the environment;

(ii) Practicability of achieving a shorter restoration time frame;

(iii) Current use of the site, surrounding areas, and associated resources that are, or may be, affected by releases from the site;

(iv) Potential future use of the site, surrounding areas, and associated resources that are, or may be, affected by releases from the site;

(v) Availability of alternative water supplies;

(vi) Likely effectiveness and reliability of institutional controls;

(vii) Ability to control and monitor migration of hazardous substances from the site;

(viii) Toxicity of the hazardous substances at the site; and

(ix) Natural processes that reduce concentrations of hazardous substances and have been documented to occur at the site or under similar site conditions.

(c) A longer period of time may be used for the restoration time frame for a site to achieve cleanup levels at the point of compliance if the cleanup action selected has a greater degree of long-term effectiveness than on-site or offsite disposal, isolation, or containment options.

(d) When area background concentrations (see WAC 173-340-200 for definition) would result in recontamination of the site to levels that exceed cleanup levels, that portion of the cleanup action which addresses cleanup below area background concentrations may be delayed until the offsite sources of hazardous substances are controlled. In these cases the remedial action shall be considered an interim action until cleanup levels are attained.

(e) Where cleanup levels determined under Method C in WAC 173-340-706 are below technically possible concentrations, concentrations that are technically possible to achieve shall be met within a reasonable time frame considering the factors in subsection (b) of this section. In these cases the remedial action shall be considered an interim action until cleanup levels are attained.

(f) Extending the restoration time frame shall not be used as a substitute for active remedial measures, when such actions are practicable.

[Statutory Authority: Chapter 70.105D RCW. WSR 01-05-024 (Order 97-09A), § 173-340-360, filed 2/12/01, effective 8/15/01; WSR 91-04-019, § 173-340-360, filed 1/28/91, effective 2/28/91; WSR 90-08-086, § 173-340-360, filed 4/3/90, effective 5/4/90.]

Chapter 70.105D RCW. WSR 01-05-024 (Order 97-09A), § 173-340-360, filed 2/12/01, effective 8/15/01; WSR 91-04-019, § 173-340-360, filed 1/28/91, effective 2/28/91; WSR 90-08-086, § 173-340-360, filed 4/3/90, effective 5/4/90.

Rules

173-340-130,173-340-350,173-340-357,173-340-370,173-340-390,173-340-700,173-340-760,173-340-700,173-340-760,173-340-710,173-340-410,173-340-720,173-340-760,173-340-600,173-340-720,173-340-720,173-340-440,173-340-200,173-340-200,173-340-706,