Haw. Code R. § 11-451-15 - Remedial action development and selection

(a) Purpose and goal. The purpose of the remedial action selection process is to select remedial actions that eliminate, reduce, prevent, minimize, mitigate, or control risks to public health or welfare, the environment, or natural resources. The goal of the process is to select remedial actions that provide for efficient, cost effective, and long-term reliable solutions which are protective of public health or welfare, the environment, or natural resources.

(b) Developing remedial action alternatives. Alternatives shall be developed that protect public health or welfare, the environment, or natural resources by recycling waste or by eliminating, reducing or controlling risks posed by a site. The number and type of alternatives to be analyzed shall be determined at each site, taking into account the scope, characteristics, and complexity of the site problem that is being addressed. As appropriate, in developing the alternatives, the department shall establish or require to be established acceptable cleanup levels that are protective of public health or welfare, the environment. or natural resources by considering the following;

(1) Applicable requirements, if available;

(2) For systemic toxicants, acceptable cleanup levels shall represent concentration levels to which the human population, including sensitive subgroups, may be exposed without adverse effect during a lifetime or part of a lifetime, incorporating an adequate margin of safety;

(3) For known or suspected carcinogens, acceptable cleanup levels are generally concentration levels that represent an excess upper bound lifetime cancer risk to an individual of between 10^-6and 10^-6 using information on the relationship between dose and response. The 10^-6 risk level shall be used as the point of departure for determining acceptable cleanup levels for alternatives when chemical specific state or federal requirements are not available or are not sufficiently protective because of the presence of multiple contaminants at a site or multiple pathways of exposure;

(4) the findings of the natural resource assessment conducted to address impacts to ecological receptors.

(c) Threshold criteria for remedial action alternatives. Based on available information, the department shall not consider or require to be considered, those remedial action alternatives which:

(1) Fail to protect public health or welfare, the environment, or natural resources; or

(2) Fail to meet applicable requirements.

(d) Presumptive remedial actions. The department, to the extent practicable, shall identify, or require to be identified, and select presumptive remedial actions to address sites where the contamination present can be treated, contained, or disposed of in a manner which has proved successful at similar sites with similar contamination. The development and selection of presumptive remedial actions may be based on analyses conducted for other similar sites with similar contamination, with only limited data collection and analysis required for the site under consideration.

(e) Source control actions. For source control actions, the department shall develop or require to be developed:

(1) One or more alternatives, as determined appropriate by the department, in which treatment that reduces the toxicity, mobility, or volume of the hazardous substances, pollutants, or contaminants is a principal element. As appropriate, the range shall include an alternative that removes or destroys hazardous substances, pollutants, or contaminants to the maximum extent feasible, eliminating or minimizing to the degree possible, the need for long-term management. The department shall develop or require to be developed, as appropriate, other alternatives which at a minimum, treat the principal threats posed by the site but vary in the degree of treatment employed and the quantities and characteristics or the treatment residuals and untreated waste that must be managed; and

(2) One or more alternatives that involve little or no treatment, but provide protection of public health or welfare, the environment, or natural resources primarily by preventing or controlling exposure to hazardous substances, pollutants, or contaminants, through engineering controls, for example, containment, and, as necessary, institutional controls to protect public health or welfare, the environment, or natural resources and to assure continued effectiveness of the response action.

(f) Ground-water remedial actions. For ground-water remedial actions, the department shall develop or require to be developed a limited number of remedial alternatives that attain site-specific remediation levels within different restoration time periods utilizing one or more different technologies.

(g) Analysis of remedial action alternatives. A detailed analysis shall be conducted on those remedial action alternatives which meet the threshold criteria described in subsection (c). The detailed analysis consists of an assessment of individual alternatives against each of the three evaluation criteria described in paragraphs (1),(2), and (3), and a comparative analysis that focuses upon the performance of each alternative against these criteria.

(1) Effectiveness. The effectiveness criterion focuses on the degree to which an alternative reduces toxicity, mobility, or volume through treatment; minimizes residual risks and affords long-term reliable protection; complies with applicable requirements; minimizes short-term impacts and how quickly it achieves protection. Alternatives providing significantly less effectiveness than other more promising alternatives may be eliminated.

(2) Implementability. The implementability criterion focuses on the technical feasibility and availability of the technologies each alternative would employ and the administrative feasibility of implementing the alternative. Alternatives that are technically or administratively infeasible or that would require equipment, specialists, or facilities that are not available within a reasonable period of time may be eliminated from further consideration. The implementability criterion also includes the level of community acceptance of the remedial action.

(3) Cost. The cost criterion considers cost of construction and the cost to operate and maintain the equipment. Costs that are excessive compared to the overall effectiveness of other alternatives may be considered as one of several factors used to eliminate alternatives. Alternatives providing effectiveness and implementability similar to that of another alternative by employing a similar method of treatment or engineering control, but at greater cost, may be eliminated.

(h) Draft response action memorandum. The department shall prepare for public comment a draft response action memorandum. The purpose of the draft response action memorandum is to document and make available for public comment the department's preliminary remedy selection decision. The draft response action memorandum shall summarize the site conditions discovered, the problems posed by the release or threat of release, the remedial alternatives analyzed by the department or other party, a preferred remedial action alternative and the technical aspects of the selected remedy. The content and level of detail will vary depending on the scope of the remedial action.

(i) Public participation activities. After the draft response action memorandum is prepared, the department shall conduct, or require to be conducted if appropriate, the following public participation activities:

(1) Publish a notice of availability, pursuant to chapter 91, HRS, of the draft response action memorandum in a newspaper which is printed and issued at least twice weekly in the county affected by the proposed response action, and if appropriate, as determined by the department, in a newspaper of general circulation in the state; and

(2) Make the draft response action memorandum and supporting analysis available in the administrative record required under section 11-451-20, for public inspection and copying prior to the commencement of any remedial action.

(3) Provide a reasonable opportunity, not less than 30 calendar days, for submission of written and oral comments on the draft response action memorandum and the supporting analysis including the remedial investigation;

(4) Upon timely request and at the discretion of the department, extend the public comment period;

(5) Hold a public meeting, if the department determines that there is sufficient public interest; and

(6) Prepare a transcript, recording or minutes of any public meeting held and make such transcript, recording or minutes available to the public.

(j) If after publication of the draft response action memorandum and prior to the selection by the department of the final response, new information is made available that fundamentally changes the basic features of the remedy with respect to scope, performance, or cost, such that the remedy fundamentally differs from the original proposal in the draft response action memorandum and the supporting analysis and information, the department shall:

(1) Include a discussion in the final response action memorandum of the fundamental changes and reasons for such changes, if the department determines such changes could be reasonably anticipated by the public based on the alternatives and other information available in the draft response action memorandum or the supporting analysis and information in the administrative record; or

(2) Seek additional public comment on a revised draft response action memorandum, when the department determines the fundamental changes could not have been reasonably anticipated by the public based on the information available in the initial draft response action memorandum or the supporting analysis and information in the administrative record. The department shall, prior to adoption of the selected remedy in the response action memorandum, issue a revised draft response action memorandum, which shall include a discussion of the fundamental changes and the reasons for such changes, in accordance with the public participation requirements described in paragraphs (1) through (6).

(k) Based upon the public comments on the draft response action memorandum, the department shall reassess whether the initial determination was appropriate, make a final decision on the remedial action, and document the decision in the response action memorandum, for inclusion in an administrative record, as described in section 11-451-19.

(l) After the response action memorandum is finalized, the department shall or require another to make the response action memorandum and supporting analysis available for public inspection and copying, in the affected county, prior to the commencement of any response action.

Notes

Haw. Code R. § 11-451-15

[Eff. AUG 17 1995] (Auth: HRS §§ 128D-4, 128D-7, 1280-14) (Imp: HRS §§ 1280-4, 128D-7, 128D-14)