Kan. Admin. Regs. § 28-71-11

Current through Register Vol. 44, No. 2, January 9, 2025

Section 28-71-11 - Remedial standards and remedial actions

(a) All remedial alternatives performed by the voluntary party and approved by the secretary shall attain a degree of cleanup, control, or both, of contaminants that ensures protection of human health and the environment.

(b) All remedial actions to restore the environment to conditions before its altered state shall be considered by the department if protection of human health and the environment is maintained and the movement of contaminants is controlled.

(c) The voluntary party shall propose any one of the following approaches to determine cleanup levels for the property:

(1) Comparison to background levels;

(2) comparison to department-established risk-based levels;

(3) comparison to a site-specific, risk-based quantitative analysis conducted by the voluntary party or the department, based on formulas, exposure parameters, and land-use scenarios; or

(4) other risk analysis methods approved by the secretary.

(d) Responsibility for reviewing and approving the approach and final selection of cleanup levels for property subject to the voluntary agreement shall rest with the secretary.

(1) The selection of cleanup levels shall be based on the present and proposed future uses of the property and surrounding properties.

(2) Land use shall include two general categories: residential property and nonresidential property.

(3) Multiple media, exposure pathways, and contaminants shall be taken into account during the determination of cleanup levels.

(4) Existing and applicable federal or state standards shall be considered by the department during the determination of cleanup levels.

(e) Secretary-approved controls, including the controls specified in K.A.R. 28-71-10, may be required by the department to ensure continued protection of human health and the environment.

(1) Approved controls for property subject to the voluntary agreement shall not be proposed as a substitute for evaluating remedial actions that would otherwise be technically and economically practicable.

(2) Approved controls for property subject to the voluntary agreement shall be considered as remedial actions.

(f) Soil cleanup levels and the depths to which the cleanup levels shall apply shall be based on human exposure, the present and proposed uses of the property, the depth of the contamination, and the potential impact to groundwater, surface water, or both, and any other risks posed by the soil contamination to human health and the environment.

(g) Soil and groundwater property-specific cleanup levels may be determined by the secretary for contaminants for which there is insufficient toxicological evidence to support a regulatory standard for risk-based cleanup levels or for nontoxic contaminants for which cleanup is required as a result of other undesirable characteristics of those contaminants. The soil levels shall be based on the following:

(1) The ability of the impacted soil to support vegetation representative of unimpacted properties in the vicinity of property subject to the voluntary agreement; and

(2) the potential of the contaminant to impact and degrade groundwater, surface water, or both, through infiltration or runoff.

(h) If there are multiple contaminants in the soil, the cleanup level of each contaminant shall not allow the cumulative risks posed by the contaminants to exceed a cancer risk level of 1x10^-4, one in 10,000, or a hazard index value of 1.0.

(i) Soil cleanup levels shall ensure that migration of contaminants in the soil shall not cause the cleanup levels established for groundwater, surface water, or both, to be exceeded.

(j) Groundwater cleanup levels shall be based on the actual and most probable use of the groundwater considering present and future uses. The most probable use of the groundwater is for a potable water source, unless demonstrated otherwise by the voluntary party and approved by the secretary.

(k) Groundwater potentially or actually used as a potable water source and impacted by the site contamination shall require maximum protection in determining cleanup levels.

(l) Remedial action to restore contaminated groundwater shall, at a minimum, prevent additional degradation and migration.

(m)When the need for cleanup of a contaminant can be predicated on characteristics of that contaminant other than toxicity, including the contribution of an undesirable taste or odor, or both, the site-specific cleanup levels as determined by the department or secondary maximum contaminant levels (MCLs) may be used as cleanup levels for contaminants for which insufficient toxicological evidence has been gathered to support a regulatory standard for risk-based cleanup levels or nontoxic contaminants. These levels shall be based on the aesthetic quality and usability of the groundwater, surface water, or both, for the present and proposed future use.

(n) Surface water cleanup levels shall meet the Kansas surface water quality standards, as specified in K.A.R. 28-16-28e.

Kan. Admin. Regs. § 28-71-11

Authorized by K.S.A. 65-34,163; implementing K.S.A. 2016 Supp. 65-34,167 and K.S.A. 2016 Supp. 6534,168; effective June 26, 1998; amended by Kansas Register Volume 36, No. 37; effective 9/29/2017.