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Science, Law & the Environment Emerging Topics in Environmental Law

Ecology Begins Work on MTCA Model Remedies: What Can Washington Learn From Other Jurisdictions?

Posted in Cleanup & Superfund, Emerging Policy

In 2013, the Washington Legislature passed SSB 5296, which amended the Model Toxics Control Act in a number of ways. One of those amendments directed Ecology to adopt “model remedies,” defined as “a set of technologies, procedures, and monitoring protocols identified by [Ecology] for use in routine types of clean-up projects at facilities that have common features and lower risk to human health and the environment.” The intent behind this amendment to MTCA was to streamline and accelerate the selection of remedies at “routine” sites. In theory, the use of a model remedy at such sites would allow a party performing a cleanup to avoid preparation of a feasibility study for the site, which could result in lower costs and faster time frames in remediating some sites (if you are interested, the selection process is outlined at WAC 173-340-360). In addition SSB 5296 authorized Ecology to waive its collection of costs associated with providing opinions on model remedy sites, which could result in a modest cost saving for parties performing cleanups by enrolling in the Voluntary Cleanup Program.

Ecology was given a November 1, 2016 deadline to submit a report to the governor and “appropriate legislative committees” on the status of the development of model remedies, including the number and types of model remedies that Ecology has identified, the number of remedies proposed by “qualified individuals,” and the reasons why Ecology accepted or rejected those proposals. Also, perhaps in an overly ambitious way, SSB 5296 directs Ecology to report on the success of model remedies in accelerating cleanups, in terms of jobs created, acres of land restored, and the number of sites successfully remediated.

When SSB 5296 became law, I was cautiously optimistic that these amendments to MTCA could give Ecology the tools necessary to streamline the clean up process at many sites statewide. If I had to guess, I’d say that 60-70% of the listed cleanup sites in the state are gas stations, maybe 10-20% are dry cleaners, and the rest are either unique, relatively small, industrial sites, or part of larger, complex sites. In my experience, the average time to remediate a typical gas station where there are groundwater impacts is measured in decades, and often involves costly monitoring of the site for years after the source of the impacts to groundwater are removed. The same is true of dry cleaning sites. We recently began working on one such site that was discovered back in 1997, where over $1 million has been spent to-date, and, despite those expenditures, the property is not close to being cleaned up. Reducing the time needed between site discovery and implementation of a remedy by streamlining the site characterization and remedy selection process will go a long way to shortening these time frames, and I’m firmly convinced that expediting cleanup of these types of site will be a positive driver of redevelopment and economic growth.

So, I was excited when Ecology released a draft document in December outlining seven model remedies for petroleum contaminated sites. Then, earlier this week, Ecology set up a website with information about the public comment process on this draft document. To briefly summarize, the seven model remedies address sites that meet the following criteria:

  1. Sites anywhere in Washington.
  2. Sites where the only impacted media is soil. So, if the site impacts groundwater, surface water, sediments, or indoor air, these model remedies are not applicable.
  3. Sites that are only contaminated by petroleum hydrocarbons, such as gasoline, diesel, or heavy oil and related constituents (presumably compounds such as benzene, but the draft document is not clear on this point).
  4. Sites where emergency or interim actions are not required or already have been performed.
  5. Sites that meet the exemption criteria for a terrestrial ecological evaluation found in WAC 173-340-7491 (think urban or paved sites).
  6. Sites where soil removal is the selected remedial action.

Notably, the draft guidance does not allow application of these model remedies at sites where petroleum is detected in groundwater (even if well below cleanup levels), and also does not apply at sites where soil contamination may extend below the water table. In Washington–particularly in Western Washington–it is rare that a site does not have shallow groundwater presentĀ  (I can think of two that I’ve run across in the past few years). So, even though petroleum contaminated sites comprise the vast majority of cleanup sites in the state, this guidance will likely apply to just a few of those sites.

I’m hopeful that these remedies are just the first of a number to be developed by Ecology, and that theseĀ  types of sites were chosen because they are probably the easiest ones to develop model remedies for. But, given the prevalence of shallow groundwater in the state–particularly in the western part–to be truly useful, we need model remedies that include sites where groundwater is impacted.

The good news is that other jurisdictions have taken steps to develop approaches that we can learn from. For instance, in 2012, California’s State Water Resources Control Board adopted its Policy for Low-Threat Underground Storage Tank Case Closure, which recognizes the diminishing returns on investment in remediating petroleum contaminated sites, the need to apply limited resources in a more efficient manner, and the ability of petroleum-contaminated sites to naturally attenuate over time once source material is removed from the site. California’s low-threat policy relies on a number of studies that looked at how UST sites naturally attenuate, and allows for the regulatory closure of petroleum contaminated sites that meet a number of general criteria. Notably, the policy does apply to groundwater contamination where the site is in an area served by a public water system (which means that there is no need to rely on well water for human consumption), where petroleum is the only hazardous substance released, the releases have been stopped, and where free product has been removed to the maximum extent practical. If those conditions (and a few others) are met, the site can be closed using natural attenuation of groundwater as a remedy, provided that the plume does not exceed size and concentration requirements.

Presumptive or model remedies in other jurisdictions are not limited to petroleum-contaminated sites. Over twenty years ago, EPA went to the effort to develop presumptive remedies for CERCLA sites, including adopting a policy for treatment of groundwater. I am sure there are other examples from other jurisdictions, and would invite those of you that are aware of these examples to post them in the comments below.

Overall, I remain encouraged by Ecology’s efforts in response to SSB 5296, but hope that, as we build momentum in discussing and evaluating model remedies in Washington, we do so with an eye on groundwater and in a way that captures real cost and time savings by learning from the experience of those that have remediated hundreds of sites throughout Washington.