Section 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 groundwater 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 in or knowledge of the facility.

(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. WSR 01-05-024 (Order 97-09A), § 173-340-600, filed 2/12/01, effective 8/15/01; WSR 90-08-086, § 173-340-600, filed 4/3/90, effective 5/4/90.]

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

Rules

173-340-720,173-340-545,173-340-440,173-340-310,173-340-340,173-340-320,173-340-330,173-340-400,173-340-140,173-340-300,173-340-520,173-340-530,173-340-140,173-340-545,173-340-515,173-340-530,173-340-520,173-340-530,173-340-520,173-340-530,173-340-350,173-340-400,173-321,173-340-550,