Making MTCA clearer and more flexible

By SHERRIE MINNICK
Department of Ecology

The Washington State Department of Ecology is currently working on revising the rules governing cleanup of contaminated sites under the Model Toxics Control Act. Among other things, these revisions are intended to:

• Increase flexibility for users;

• Add ecological standards to protect the environment;

• Clarify criteria for remedy selection;

• Make petroleum cleanups more flexible.

The revisions are expected to be available for public review and comment this fall.

Benefactors of this new cleanup law will include liable parties, environmental consultants, citizens -- and of course, the environment, which includes Washington's air, soil, water, plants and wildlife.

Almost 10 years ago, voters of the state of Washington passed the Model Toxics Control Act (MTCA). For its time, MTCA contained one of the nation's most comprehensive sets of hazardous waste cleanup standards. It answered the complex question "How clean is clean?"

Since its passage, MTCA has been amended several times. However, none of the amendments has been as ambitious as its current revamping.

The 1995 Legislature adopted ESHB 1810, which directed Ecology to establish a policy advisory committee (PAC) to develop consensus recommendations to improve MTCA. The 22-member committee consisted of representatives of the environment/general public, business, state/local government (including Ecology) and environmental consulting.

Over an 18-month period, the PAC met and worked on developing cleanup law recommendations. In December 1997, the committee presented its recommendations to the Legislature.

Last February, Ecology issued a discussion draft that incorporated PAC recommendations into the MTCA rules. Since then, Ecology has been actively working with an external advisory group and other interested parties to resolve remaining issues in the rule amendments. In June, Ecology hired Landau Associates and Enviroissues, two environmental consulting firms, to facilitate the discussions and help the parties reach agreement.

Basically, there are four unresolved issues between Ecology and interested groups:

• Cleanup Standards and Risk Assessment

• Remedy Selection

• Ecological Risk Assessment

• Petroleum Cleanups

Cleanup standards and risk sssessment

How risk assessments should be used in setting site-specific cleanup standards is one of the key technical issues still being discussed. The key issue here is when the assumptions made in conducting site-specific risk calculations can be changed. For example, certain common assumptions that are made in risk assessments include: how much a person near a contaminated site weighs, how much water they drink, and how long they have been exposed to the contamination. The current regulations provide conservative default assumptions for assessing risks.

Pete Kmet, an Ecology engineer charged with drafting many of the rule revisions, notes the complexity of these revisions.

"An important part of the PAC recommendations was to provide the 'ground rules' for when certain assumptions used in risk assessments can be changed and what level of information is needed to justify the change," Kmet said. "This is important because even small changes in assumptions, such as how long a person lives in a house built on a site, could dramatically affect the cleanup standard."

Business groups support changing the rules to make it easier to conduct site-specific risk assessments, which might result in less stringent cleanup standards. Environmental and citizen representatives, on the otherhand, have expressed concern about the new revisions. Many feel that it may end up in a numbers game that average citizens would have difficulty understanding.

Remedy selection

Determining how contamination should be cleaned up or contained at contaminated sites is never easy. This was the subject of considerable discussion by the PAC and ultimately lead to a recommendation to clarify and streamline the rules that govern selection of remedies.

Lynn Coleman, an Ecology engineer specializing in treatment technologies, notes, "At many larger sites of environmental contamination, it is not practical to restore a site to a truly 'clean' status. Cleanups at these sites have focused on removing or treating the most contaminated areas and capping or 'containing' the less contaminated areas. These rule revisions are intended to provide clearer guidance on how these decisions are made."

Discussions have focused on how much weight to give the costs of cleanup in the decision process. Business representatives want to make sure that costs of particular cleanup actions do not out-weigh the benefits. Environmental and citizen representatives have expressed concern with this approach, fearing that a key element of the MTCA citizen initiative, to clean up sites permanently to minimize future impacts, will be weakened by this approach.

Ecological risk sssessment

While the original MTCA rules governing cleanup addressed human health concerns in detail, ecological concerns -- such as impacts to wildlife -- were only superficially addressed. The PAC recognized this and directed Ecology to prepare amendments to the cleanup rules assuring ecological impacts are adequately protected by soil cleanup standards.

Dr. Nigel Blakley, the principle Ecology staff scientist working on the revisions, in consultation with the MTCA Science Advisory Board, said, "A key objective in preparing these revisions has been to focus on sites with greater ecological value. These revisions are also intended to standardize several of the ecological risk assessment protocols so we can get on with cleanup at these sites, knowing they are protective of the environment too."

Business representatives have expressed concerns that the revisions would complicate cleanups by requiring too many sites do detailed ecological risk assessments. Environmental and citizen representatives feel that under the proposed rule, too many sites would avoid having to assess environmental effects when setting soil cleanup standards.

Petroleum cleanups

Petroleum contamination remains the most common source of contamination in the state with over 5,000 leaking underground storage tank sites reported to Ecology. With this scope of financial impact, it is no surprise this is a key issue in the rule revisions.

The PAC reviewed this issue and recommended that Ecology amend its rules to more clearly define how site owners can develop acceptable site-specific petroleum cleanup standards.

Steve Robb, the Ecology staff scientist charged with coordinating this effort through a group called the Policy Oversight Group or POG -- a spin-off from the Duwamish Coalition -- says, "The difficulty with petroleum contamination is that it is a complex mixture of chemicals with limited data on human health and ecological effects. A major part of our effort has been coming up with an approach that is scientifically defensible yet is straight forward enough that it will be useable."

Petroleum industry representatives have been pressing Ecology to adopt less stringent cleanup polices for petroleum sites, because they believe petroleum contamination poses less of a threat to human-health and the environment than other forms of contamination.

Environmental and citizen representatives remain skeptical of this approach particularly after seeing the petroleum cleanup standards proposed for the Arco site cleanup on Harbor Island.

It is Ecology's goal to resolve these issues and have a draft rule available to the public this fall. Workshops will be held prior to the public comment period to provide the public with information about the rule changes. Public hearings will be held during the public comment period to give the public an opportunity to comment more specifically on the proposed changes.

The goal is to finalize the changes early next year. Then the three-year process will be complete!

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