Cleaning up contaminated property is about to get easier By PATRICIA J. SERIE and J. DANIEL BALLBACH EnviroIssues and Landau Associates Complex. Confusing. Not fair. Expensive. Are these the words you associate with cleaning up contaminated property? All are true, especially the first time you face a cleanup. But cleanup can be done and there are some success stories. Cleanup professionals in the regulatory and private sectors have learned a lot. Also, changes are being made to the Washington State site cleanup law, the Model Toxics Control Act (MTCA). These changes will make cleanups go faster, cost less and be more flexible in determining cleanup levels, while still maintaining protection of human health and the environment. Who's making the changes? The Washington Department of Ecology formed a Policy Advisory Committee (PAC) in mid-1995 to study the cleanup law and regulation as directed by the Legislature. Members of the MTCA PAC included small and large businesses, environmental interest groups, state agencies, cities, counties and the financial community. In December 1996, the PAC presented the Legislature, Ecology and the Governor with consensus recommendations on ways to improve and change the cleanup process. The Legislature and Governor approved the legislative recommendations and Ecology is now in the process of writing these and other recommendations into rules. Will the changes really impact you? The intent of the MTCA PAC recommendations is to make the regulations easier for everyone trying to clean up their property. By clarifying the intent of requirements through easier-to-understand guidance and ensuring that disputes between Ecology and property owners are resolved fairly, the changes being made will impact everyone involved in a cleanup. When will these changes apply? Ecology is moving through the rulemaking process at an accelerated pace. Agency staff are writing new rules, issuing guidance and researching new standards. Ecology is continuing to consult with an external advisory group, made up primarily of members of the MTCA PAC, to ensure that the intent of its recommendations are maintained. Draft rules will be completed by November 1997 and a public comment period held. It is expected that the changes will be final by mid-1998. Consideration of site-specific issues One major change being made which increases flexibility will allow you to consider site-specific issues, such as groundwater and soil characteristics, frequency of contact with soil, and assumptions about who is being exposed, in setting cleanup standards. Ecology will allow unique characteristics at your site to shape the cleanup standards which would otherwise be set by default parameters. In order for Ecology to consider site-specific information, it must meet requirements for quality which will justify the request for site-specific cleanup levels. Remedy selection becomes easier Completing a cleanup requires selecting a remedy which will best suit your property. A long-time complaint about MTCA has been the confusing process of how to select a remedy. That is about to change. Ecology is making changes to the regulations which will include an understandable process for quantitatively and qualitatively balancing factors of cost, practicality, time frame and public concerns. Contamination you didn't cause Ecology has had a policy of nonenforcement against owners of property that overlie a contaminated groundwater plume, but are not the source of contamination. It was not officially an exemption from liability nor did it protect owners from suits by other parties who paid for cleanup. The MTCA PAC recommended that a statutory exemption from liability be created. This "plume clause" will provide qualifying property owners exclusion from liability relating to cleanup costs. Added certainty in risk assessment MTCA does not define cleanup standards which in all cases protect ecological receptors. The MTCA PAC sought to change this in its recommendation to Ecology to create a clear ecological risk assessment process to protect ecological resources. Ecology is in the process of creating the cleanup standards, integrating them with current cleanup standards for human health, and choosing pilot sites to ensure that the new standards function as anticipated. Dispute resolution We all know that disagreements arise, even among the best of friends. How those disagreements are resolved is important to maintaining trust and good relationships. Ecology is providing guidance to its site managers on ways to clarify communication with property owners, access information about other sites and obtain peer review. Ecology is also planning to provide increased mentoring and training to site managers. This should go a long way to resolving disputes before they become contentious or delay cleanup. If an agreement is not reached through informal discussions, the new changes will allow a neutral third party to assist in the dispute if agreed to by all the parties. Changes for petroleum cleanup Good news -- one important change has already been made. Based on the recommendation of the MTCA PAC, an interim policy was issued in January allowing more flexibility in determining how much soil at a contaminated petroleum site must be cleaned up. A new risk-based approach allows the use of surrogates to represent certain fractions of petroleum compounds in setting cleanup levels. Under the surrogate approach, a cleanup level for total petroleum hydrocarbons (TPH) is based on the range of all the constituents of the petroleum mixture. A permanent TPH cleanup approach is still in development. Solutions for brownfields The MTCA PAC made a recommendation to the Legislature which identified ways to improve cleanup of large areas of contamination, commonly known as brownfields. This recommendation included identifying model remedies for common categories of facilities, types of contamination, types of media and geographic areas; identifying options for addressing areawide cleanups involving multiple land owners; and allowing for greater use of prospective purchaser agreements. This should help areas such as the Duwamish industrial area expedite cleanups and redevelopment. Free technical assistance The PAC reaffirmed the importance of independent cleanups under MTCA, where you can complete your cleanup without Ecology oversight. For those of you who need some assistance, however, Ecology has committed to providing at least three hours of free technical assistance for independent cleanups. Ecology can review site-specific work products and provide written determinations. These determinations will be non-binding, but will provide useful feedback. If you need more than three hours of assistance, Ecology will recover its costs for the extra hours. This highlights just some of the important changes being made to MTCA. There were over 25 general recommendations made by the MTCA PAC, some with numerous elements. To find out more about these other recommendations, the process for rule-making, and the specific rule and regulatory changes being made to MTCA, you can visit the Ecology web page or call Dawn Hooper at (360) 407-7182. We encourage you to follow the rule-making process through the external advisory group meetings, review draft rule language and participate by commenting on draft rules. Implementing the PAC's changes means big changes in MTCA, and there are ample opportunities to understand and affect how those changes take place. Patricia J. Serie is president of EnviroIssues Inc. in Seattle. J. Daniel Ballbach is chief operating officer of Landau Associates Inc. in Edmonds.