DAR File No. 28519

Environmental Quality, Environmental Response and Remediation

R311-211

Corrective Action Cleanup Standards Policy - UST and CERCLA Sites

NOTICE OF PROPOSED RULE

DAR File No.: 28519
Filed: 02/15/2006, 10:51
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

This change adds references to maximum contaminant limits (MCLs) or other cleanup standards for soil, in addition to the present references to water and air quality standards, allows the Solid and Hazardous Waste Control Board to establish alternative cleanup levels for soil on a case-by-case basis taking into consideration Sections R311-211-3 and R311-211-4. The Division of Environmental Response and Remediation (DERR) was directed by the Administrative Rules Review Committee to place cleanup standards with actual numeric values in rule and clarify the requirements for establishing the cleanup standards and receiving a "No Further Action determination" at the end of cleanup. Previously, cleanup levels were established through internal guidance documents, and as cleanup numbers changed they were not subject to public comment. Section R311-211-6 is added to codify the cleanup standards and specify the process to achieve a "No Further Action determination." Section R311-211-6 incorporates by reference the Initial Screening Levels and Tier 1 Screening Criteria tables, which provide the numeric values to be used in evaluating sites for cleanup and "No Further Action determination." Placing these standards in rule gives the regulated public an opportunity to comment on the process. Section R311-211-7, Interim Policy, is removed, as it is no longer necessary with the addition of Section R311-211-6.

Summary of the rule or change:

The changes add references to maximum contaminant limits (MCL) or other cleanup standards for soil, in addition to present references to water and air quality standards. It also adds Section R311-211-6 to codify cleanup standards for cleanups of releases from Underground Storage Tank sites. It establishes consistent cleanup standards and clarifies requirements for establishing cleanup standards and receiving a "No Further Action determination" at the end of cleanup. It incorporates by reference the Initial Screening Levels table and the Tier 1 Screening Criteria table to be used in evaluating sites for cleanup and "No Further Action determination." It also deletes Section R311-211-7.

State statutory or constitutional authorization for this rule:

Sections 19-6-105, 19-6-106, and 19-6-403

Adds "Initial Screening Levels" table dated November 1, 2005, and "Tier 1 Screening Criteria" table dated November 1, 2005

Anticipated cost or savings to:

the state budget:

None--The cleanup standards that were previously used as guidance are now being referenced in rule with a few minor changes. The net cost to implement the rule will be negligible because the cleanup standards in rule are very comparable to the cleanup standards formerly used as guidance.

local governments:

None--The cleanup standards that were previously used as guidance are now being referenced in rule with a few minor changes. The net cost to implement the rule will be negligible because the cleanup standards in rule are very comparable to the cleanup standards formerly used as guidance.

other persons:

None--The cleanup standards that were previously used as guidance are now being referenced in rule with a few minor changes. The net cost to implement the rule will be negligible because the cleanup standards in rule are very comparable to the cleanup standards formerly used as guidance.

Compliance costs for affected persons:

None--The cleanup standards that were previously used as guidance are now being referenced in rule with a few minor changes. The net cost to implement the rule will be negligible because the cleanup standards in rule are very comparable to the cleanup standards formerly used as guidance.

Comments by the department head on the fiscal impact the rule may have on businesses:

It is not anticipated that the rule change will have a fiscal impact on businesses because the change puts into rule the cleanup standards and evaluation processes that are already in place. The procedures for site evaluation and cleanup will remain essentially the same, so the effect on businesses should be minimal. Dianne R. Nielson, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Direct questions regarding this rule to:

Gary Astin at the above address, by phone at 801-536-4103, by FAX at 801-359-8853, or by Internet E-mail at gastin@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

03/31/2006

Interested persons may attend a public hearing regarding this rule:

3/28/2006 at 2:00 PM, Department of Environmental Quality, 168 N 1950 W, Room 201, Salt Lake City, UT

This rule may become effective on:

05/15/2006

Authorized by:

Dianne R. Nielson, Executive Director

RULE TEXT

R311. Environmental Quality, Environmental Response and Remediation.

R311-211. Corrective Action Clean[-]up Standards Policy - UST and CERCLA Sites.

R311-211-3. Clean[-]up Standards Evaluation Criteria.

Subsequent to source elimination, clean[-]up standards for remaining contamination which may include numerical, technology-based or risk-based standards or any combination of those standards, shall be determined on a case-by-case basis, taking into consideration the following criteria:

(a) The impact or potential impact of the contamination on the public health;

(b) The impact or potential impact of the contamination on the environment;

(c) Economic considerations and cost effectiveness of clean[-]up options; and

(d) The technology available for use in clean[-]up.

R311-211-4. Prevention of Further Degradation.

In determining background concentrations, clean[-]up standards, and significance levels, levels of contamination in ground water, surface water, soils or air will not be allowed to degrade beyond the existing contamination levels determined through appropriate monitoring or the use of other data accepted by the Board or the Executive Secretary as representative.

R311-211-5. Clean[-]up Standards.

(a) The following shall be the minimum standards to be met for any clean[-]up of regulated substances, hazardous material, and hazardous substances at a UST or CERCLA facility in Utah:

(1) for water-related corrective action, the Maximum Contaminant Limits (MCL[']s) established under the federal Safe Drinking Water Act or other applicable water classifications and standards; and

(2) for air-related corrective action, the appropriate air quality standards established under the Federal Clean Air Act.

(3) Other standards as determined applicable by the Board may be utilized.

(b) Clean[-]up levels below the MCL[']s or other applicable water, soil, or air quality standards may be established by the Board on a case-by-case basis taking into consideration R311-211-3 and R311-211-4.

(c) In the case of contamination above the MCL or other applicable water, soil, or air quality standards, if, after evaluation of all alternatives, it is determined that applicable minimum standards cannot reasonably be achieved, clean[-]up levels above these minimum standards may be established on a case-by-case basis utilizing R311-211-3 and R311-211-4. In assessing the evaluation criteria, the following factors shall be considered:

(1) quantity of materials released;

(2) mobility, persistence, and toxicity of materials released;

(3) exposure pathways;

(4) extent of contamination and its relationship to present and potential surface and ground water locations and uses;

(5) type and levels of background contamination; and

(6) other relevant standards and factors as determined appropriate by the Board.

R311-211-6. UST Facility Cleanup Standards.

(a) This rule incorporates by reference the Initial Screening Levels table dated November 1, 2005. The table lists initial screening levels for UST sites.

(b) If the Executive Secretary determines that a release from an underground storage tank has occurred, the Executive Secretary shall evaluate whether the contamination at the site exceeds Initial Screening Levels for the contaminants released. The Executive Secretary may require owners and operators to submit any information that the Executive Secretary believes will assist in making this evaluation.

(c) If all contaminants are below initial screening levels, the Executive Secretary shall evaluate the site for No Further Action determination.

(d) This rule incorporates by reference the Tier 1 Screening Criteria table dated November 1, 2005. The table lists cleanup criteria for UST sites. Tier 1 screening levels are only applicable when the following site conditions are met:

(1) No buildings, property boundaries or utility lines are located within 30 horizontal feet of the highest measured concentration of any contaminant that is greater than the initial screening levels but less than or equal to the Tier 1 screening levels in the tables referred to in subparagraphs (a) and (d) above, respectively, and;

(2) No water wells or surface water are located within 500 horizontal feet of the highest measured concentration of any contaminant that is greater than the initial screening levels but less than or equal to the Tier 1 screening levels in the tables referred to in subparagraphs (a) and (d) above, respectively.

(e) If any contaminants from a release are above the Initial Screening Levels, the Executive Secretary shall require owners and operators to submit all relevant information required to evaluate the site using the Tier 1 Screening Criteria.

(1) If all Tier 1 Screening Criteria have been met, the Executive Secretary shall evaluate the site for No Further Action determination.

(2) If any of the Tier 1 Screening Criteria have not been met owners and operators shall proceed as described below.

(i) Owners and operators shall conduct a site investigation to provide complete information to the Executive Secretary regarding the factors outlined in R311-211-5(c) and 40 CFR Part 280.

(ii) When the site investigation is complete, owners and operators may propose for the evaluation and approval of the Executive Secretary site-specific cleanup standards based upon an analysis of the factors outlined in R311-211-5(c). Alternatively, the owners and operators may propose for the approval of the Executive Secretary the Initial Screening Levels established in R311-211-6(a) as the site-specific cleanup standards.

(iii) A partial corrective action approach may be approved by the Executive Secretary prior to completing the site investigation. However, if corrective action is implemented in separate phases, the Executive Secretary will not make a No Further Action determination until all factors outlined in R311-211-5(c) are evaluated.

(iv) Owners and operators may then propose and conduct corrective action approved by the Executive Secretary to attempt to reach the approved site-specific cleanup standards. If the owners and operators demonstrate that the approved site-specific cleanup standards have been met and maintained based upon sampling at intervals and for a period of time approved by the Executive Secretary, the Executive Secretary shall evaluate the site for No Further Action determination.

(v) If the owners and operators do not make progress toward reaching site-specific cleanup standards after conducting the approved corrective action, the Executive Secretary may require the owners and operators to submit an amended corrective action plan or an amended site-specific cleanup standards proposal and analysis of the factors outlined in R311-211-5(c) for the Executive Secretary's approval. The Executive Secretary may also require further investigation to fully define the extend and degree of the contamination if the passage of time or other factors creates the possibility that existing data may no longer be reliable.

R311-211-[6]7. Significance Level.

(a) Where contamination is identified that is below applicable MCL[']s, water classification standards, or air quality standards or where applicable standards do not exist for either the parameter in question or the environmental media in which the contamination is found, the clean[-]up standard shall be established using R311-211-3 and will be set between background and the observed level of contamination. Should it be determined that the observed level of contamination will be allowed to remain, this becomes the significance level.

(b) At any time, should continued monitoring identify contamination above the significance level, the criteria of R311-211-3 will be reapplied in connection with R311-211-4 to re-evaluate the need for corrective action and determine an appropriate clean[-]up standard.

[R311-211-7. Interim Policy.

This will serve as an interim rule until the Board chooses to modify it or a federal policy, regulation, or statute applicable to corrective action clean-up levels is established. At the time a federal policy is promulgated this rule will be reviewed for consistency with the federal action and will be modified as appropriate and in accordance with applicable state law.

]KEY: petroleum, underground storage tanks

Date of Enactment or Last Substantive Amendment: [September 16, 1996]2006

Notice of Continuation: March 6, 2002

Authorizing, and Implemented or Interpreted Law: 19-6-105; 19-6-106; 19-6-403

ADDITIONAL INFORMATION

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For questions regarding the content or application of this rule, please contact Gary Astin at the above address, by phone at 801-536-4103, by FAX at 801-359-8853, or by Internet E-mail at gastin@utah.gov

For questions about the rulemaking process, please contact the Division of Administrative Rules (801-538-3764). Please Note: The Division of Administrative Rules is NOT able to answer questions about the content or application of these administrative rules.