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Science, Law & the Environment Emerging Topics in Environmental Law

Update on Ecology Rulemaking Suspension

Posted in Cleanup & Superfund, Rule Making, Water Quality

My November 18th post had some early details on Governor Gregoire’s suspension of rulemaking for 2011. The Department of Ecology has evaluated its existing rulemaking activities and issued an updated list of rules that will continue in 2011 and rules that will be suspended until 2012.

This list is more expansive than the original November 18th list, but builds on that list’s theme of continuing rules mandated by federal law or required to receive continued federal funding. Some rulemaking activity continues due to stakeholder input, and other rules, particularly the Sediment Management Standards (“SMS”), are being updated due to human health concerns. This latter rule is of particular interest to me because of my contaminated sediments and land practice.

I’ve been following the updates to the SMS along with updates to the Model Toxics Control Act (“MTCA”) regulations. Ecology issued a list of issue summaries a bit more than a year ago, and was proceeding to address these issues through updating of both the MTCA and SMS regulations. Updating these two sets of regulations at the same time made a fair amount of sense because these regulations deal with similar issues, namely remediation of contaminated lands and sediments, but do so in different ways, creating potential confusion for the regulated community and agency staff attempting to implement these regulations. To address this confusion, Ecology formed a MTCA/SMS Advisory Group to deal with these differences, which has been meeting on a semi-regular basis over the last year.

It appears that this effort is being suspended because Ecology has chosen not to continue the MTCA regulation updates. The portions of the SMS that are continuing to be worked on by Ecology areĀ  related only to adding regulations to the SMS under which human health-based cleanup levels can be developed. Right now, only MTCA contains this framework, and the SMS’s risk framework is limited to protection of ecological health. Although this is an issue outside of Ecology’s command because of the nature of Governor Gregoire’s executive order, I’m a bit disappointed to see this piecemeal approach adopted by Ecology because it won’t address the discrepancies between MTCA and the SMS such as the ones highlighted by Ecology in this issue paper.