Cleaning Up the Cleanup Rule – Previewing Possible Changes to MTCA Regulations

Gus Winkes*

For the first time in nearly 20 years, the Department of Ecology (Ecology) is undertaking substantial revisions to the Cleanup Rule, which governs contaminated site cleanups under the Model Toxics Control Act (MTCA).^[1] This article provides a brief overview of Ecology’s rulemaking process and draft preliminary changes considered to date by the MTCA Stakeholder and Tribal Advisory Group (STAG).^[2] Ecology intends to propose rule amendments in the summer of 2021.^[3] 

Shortly after MTCA was passed, Ecology recognized that MTCA provides a “basic framework for a toxics cleanup program” and that “how hazardous substances will . . . be cleaned up and how well . . . depend[s] largely on how the law [is] implemented.”^[4] Over 13,000 contaminated sites have been identified by the Toxics Cleanup Program,^[5] and a little more than half have been cleaned up.^[6]

In the current rulemaking, Ecology is addressing the Cleanup Rule’s “processes and procedures.” A second rulemaking, which may not start until 2022 or later, will focus on cleanup standards. A final rulemaking will address a variety of topics deferred or identified in the first and second rulemakings.

To solicit feedback for the rulemaking, Ecology convened the MTCA STAG. The members represent a range of viewpoints. Constituents include the regulated community, local governments and municipalities, tribes, community organizations, environmental non-profits, consultants, and attorneys. The STAG website contains rulemaking resources,^[7] including preliminary draft rule changes. Several common themes have emerged in STAG interactions, including:

• Whether proposed changes are more appropriate for rule or for guidance
• How to balance cleanup practicability with the tendency to increase requirements 
• How to provide clarity without unduly limiting flexibility
• The extent to which procedures for independent cleanups and formal cleanups (i.e., sites under consent decrees or orders) should differ
• Timing and form of public notices
• How to ensure equitable cleanups for populations with disproportionate health burdens.

Preliminary changes shared so far have centered primarily on Part III of the Cleanup Rule (Site Reports and Cleanup Decisions), including site discovery and reporting, initial investigations, site hazard assessments and rankings, site listing and de-listing, and the remedial investigation/feasibility study (RI/FS) and remedy selection process. Public notice issues,^[8] Ecology’s programmatic planning,^[9] and other rule provisions and topics have received attention as well. The preliminary proposals include some changes that reflect existing practices and some that would break new ground.     

Site Hazard Assessment/Ranking and the Hazardous Sites List. Ecology is required to establish a site “hazard ranking system” and maintain a Hazardous Sites List.^[10] Ecology actually maintains multiple site lists,^[11] and has added only ranked sites to the Hazardous Sites List (about 2,000 sites). Hazard rankings are based on the relative potential threat of each site and help Ecology prioritize cleanups.^[12]  

Ecology is considering changes to WAC 173-340-310 (Initial Investigation), -320 (Site Hazard Assessment), and -330 (Hazard Ranking and the Hazardous Sites List) to expedite the ranking process and address planning challenges for Ecology.^[13] Changes would include the elimination of a specified ranking method in favor of general ranking guidelines, allowing Ecology to develop a flexible framework outside of the rule.  To this end, Ecology has been working on a prototype Site Hazard Assessment and Ranking Process Tool.^[14] Finally, Ecology would consolidate all sites requiring cleanup into a single Contaminated Sites List.

Site Discovery and Reporting, Initial Investigations, and Underground Storage Tank Releases. For site discovery and reporting,^[15] minor changes would include, as examples, a reorganization of WAC 173-340-300 (Site Discovery and Reporting) and a shorter reporting deadline for quick cleanups. For initial investigations,^[16] additional changes would further define investigation scope and procedures and would extend deadlines to encourage rapid cleanups in some circumstances (e.g., soil-only impacts). For sites with underground storage tank releases,^[17] possible changes to interim action requirements in WAC 173-340-450 (Releases from Underground Storage Tanks) would impose a deadline for commencing free product removal and would add monitoring and reporting requirements.

RI/FS and Remedy Selection Provisions. To clarify the RI/FS and remedy selection process, Ecology is contemplating structural modifications to WAC 173-340-350 (Remedial Investigation and Feasibility Study), -360 (Requirements for Cleanup Actions), and -370 (Expectations for Cleanup Actions).^[18] These would separate “performance and reporting requirements,” set out specific FS steps, reorganize cleanup action requirements, and detail RI/FS report content. They would also require remedy alternatives to be evaluated against cleanup expectations and “non-conformance” to be documented. 

Environmental Justice.  Some of the most significant changes are likely to stem from Ecology’s efforts to ensure that cleanups are equitable for communities facing disproportionate human health risks.  Related changes would appear in the site hazard assessment and ranking process, the RI/FS and remedy selection phases, and MTCA funding decisions. Remedial investigations would need to evaluate how a “highly impacted community” is affected by a site, using a cumulative impacts assessment and considering human health, social, cultural, and economic effects. Feasibility studies would need to evaluate the “degree to which [cleanup alternatives] equitably distribute[] . . . benefits and burdens between any highly impacted and other communities affected by the site.”^[19] Changes also would include a new cleanup “expectation” that “inequitable distribution[s]” would be “mitigated in consultation with highly impacted communities.”^[20]   

Disproportionate Cost Analysis (DCA).  The DCA framework is intended to select cleanups that are “permanent solutions to the maximum extent practicable”^[21] by comparing the permanence of cleanup alternatives and their incremental costs and benefits. Ecology and stakeholders have expressed concerns with how DCAs are conducted. Changes would include step-by-step instructions, a more explicit analytical framework, more detailed cleanup cost categories, and limits on discount rates for cost estimates.^[22]

Other Changes. Numerous other topics, such as vapor intrusion and the resilience of cleanups to climate change effects, are being considered as well. Additional information is located on the MTCA STAG website and via the links above. 

The author welcomes input on preliminary rule changes and can be contacted as provided below.  Attorneys and their clients should also look for opportunities to engage other STAG members and to make use of the public comment time at STAG meetings.  

* Gus Winkes is an attorney at Beveridge & Diamond, PC in Seattle, WA. He focuses his practice on contaminated site cleanup and litigation under CERCLA and state Superfund statutes. He is the deputy for Beveridge & Diamond’s CERCLA, Brownfields, and Subsurface Contamination practice group. He can be reached at awinkes@bdlaw.com.

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[1] Washington Dep’t of Ecology, Proposal Statement of Inquiry AO#18-09 (Dec. 20, 2018, 3:48 PM), https://ecology.wa.gov/DOE/files/fe/fef79f34-4328-44cc-8ed4-146013ac1228.pdf.

[2] The article’s author is a STAG member. The article is not being written on behalf of Ecology or the STAG, and the views expressed in the article are the author’s own. 

[3] Washington Dep’t of Ecology, Chapter 173-340 rulemaking webpage, https://ecology.wa.gov/Regulations-Permits/Laws-rules-rulemaking/Rulemaking/WAC-173-340 (last visited Nov. 15, 2020).

[4] Washington Dep’t of Ecology, Model Toxics Control Act Annual Report 1990, Ecology Publication no. 90-47, 2 https://fortress.wa.gov/ecy/publications/documents/9047.pdf.

[5] Washington Dep’t of Ecology, Cleanup and Tank Search, https://apps.ecology.wa.gov/cleanupsearch/reports/cleanup/all (last visited Nov. 15, 2020).

[6] Washington Dep’t of Ecology, Cleanup and Tank Search – No Further Action Sites, https://apps.ecology.wa.gov/cleanupsearch/reports/cleanup/nfa (last visited Nov. 15, 2020).

[7] Washington Dep’t of Ecology, Updating the MTCA Cleanup Rule: Stakeholder & Tribal Advisory Group (STAG), https://www.ezview.wa.gov/site/alias__1988/37514/overview.aspx (last visited Nov. 15, 2020).

[8] Washington Dep’t of Ecology, Public Involvement for Cleanup Site (summary for Rule Team discussion on 12/19/2019), https://www.ezview.wa.gov/Portals/_1988/Documents/Documents/MTCAPublicInvolvementSummary_01-30-2020.pdf.

[9] Washington Dep’t of Ecology, MTCA Cleanup Rulemaking Chapter 173-340 WAC Preliminary Draft Section 340 (Feb. 25, 2020), https://www.ezview.wa.gov/Portals/_1988/Documents/Documents/Section%20340_PreliminaryDraftRuleForSTAGReview_Distr_02-25-2020.pdf.

[10] RCW 70A.305.030(2)(b), (5)(a).

[11] Washington Dep’t of Ecology, Site Register & Contaminated Sites Lists, https://ecology.wa.gov/Regulations-Permits/Guidance-technical-assistance/Site-Register-lists-and-data (last visited Nov. 15, 2020).

[12] Washington Dep’t of Ecology, Washington Ranking Method 90-14 (April 1990, revised April 1992, further revision 2007), https://fortress.wa.gov/ecy/publications/documents/90014.pdf.

[13] Washington Dep’t of Ecology, MTCA Cleanup Rulemaking Chapter 173-340 WAC Preliminary Draft Sections 310 through 330 (Nov. 8, 2019), https://www.ezview.wa.gov/Portals/_1988/Documents/Documents/II_SHA_Listing_PreliminaryDraftRuleDistributedForSTAGReview11-08-2019.pdf.   

[14] Memorandum from Clint Stanovsky, Cleanup Rulemaking Lead, & Eileen Webb, Environmental Remediation Coordinator, Stakeholder & Tribal Advisory Group (STAG), MTCA Cleanup Rule Update (Nov. 12, 2019), https://www.ezview.wa.gov/Portals/_1988/Documents/Documents/FinalDraftMemoForSTAGreSHARP_Tool_2019.pdf.

[15] Washington Dep’t of Ecology, MTCA Cleanup Rulemaking Chapter 173-340 Preliminary Draft Section 300 (Jan. 16, 2020), https://www.ezview.wa.gov/Portals/_1988/Documents/Documents/Section300_PreliminaryDraftRuleForSTAGReview_Distr_01-17-2020.pdf.

[16] Washington Dep’t of Ecology, MTCA Cleanup Rulemaking Chapter 173-340 Preliminary Draft Section 310 through 330 (Nov. 8, 2019), https://www.ezview.wa.gov/Portals/_1988/Documents/Documents/II_SHA_Listing_PreliminaryDraftRuleDistributedForSTAGReview11-08-2019.pdf.

[17] Washington Dep’t of Ecology, MTCA Cleanup Rulemaking Chapter 173-340 Preliminary Draft Section 450 (Jan. 16, 2020), https://www.ezview.wa.gov/Portals/_1988/Documents/Documents/Section450_PreliminaryDraftRuleForSTAGReview_Distr_01-17-2020.pdf.

[18] Washington Dep’t of Ecology, MTCA Cleanup Rulemaking Chapter 173-340 WAC Preliminary Draft Sections 350, 360, and 370 (May 28, 2020), https://www.ezview.wa.gov/Portals/_1988/Documents/Documents/Sections%20350%20360%20%20370%20-%20Preliminary%20Draft%20Rule%20for%20STAG%20Review%20-%20Final%20PDF.pdf.

[19] Id. at 25–27, 62, 67, 91, 100–101.

[20] Id. at 26, 76, 98, 101.

[21] RCW 70A.305.030(1)(b).

[22] Washington Dep’t of Ecology, MTCA Cleanup Rulemaking Chapter 173-340 WAC Preliminary Draft Sections 350, 360, and 370, at 27-31 (May 28, 2020), https://www.ezview.wa.gov/Portals/_1988/Documents/Documents/Sections%20350%20360%20%20370%20-%20Preliminary%20Draft%20Rule%20for%20STAG%20Review%20-%20Final%20PDF.pdf.