The following comments on the revised MTCA rule are submitted on behalf of Washington Environmental Council. WEC is an umbrella organization representing over 90 member organizations and 3000 individuals. WEC has been actively involved in MTCA since its inception, and appreciates the oppertunity to provide comment on its revision.
Note: WEC concerns and recommendations are in bold face
WEC supports some of the modifications of the MTCA as set forth in WSR 99-22-077, especially those that truly clarify the original Act.
Beyond these clarifications, WEC has concerns which include the following:
A. Potential for arbitrary weakening of default equations for site specific cleanup
(WSR pg. 130). WAC 173-340-420 periodic review: when required, periodic reviews shall be conducted by the department at least every 5 years after the initiation of a cleanup action.
periodic reviews required at the following sites:
... (d) Where , in the departments judgment, modifications to the default equations or assumptions using site-specific information would significantly increase the concentration of hazardous substances remaining at a site after cleanup or the uncertainty in the ecological evaluation or the reliability of the cleanup action is such that additional follow up review is necessary to assure long-term protection of human health and the environment.
[WEC comment: If in the departments judgment, such modifications using site specific information might threaten human health or the environment, why would it be approved in the first place?]
[WEC comment: In Section 1.6.1 of MTCA Proposed Rule Amendments DEIS, Site-Specific Risk Assessment, pg. 13 states "If inappropriate changes are made to risk assumptions, there is a potential for underestimating the risk to human health..... Based on Ecology's experience with use of site-specific risk assessment under the current rule, increased use of Site Specific Risk Assessment can result in more delays and increased concentrations of contamination remaining at sites after cleanup".]
B. Inadequate independent cleanup actions
WSR pg. 136:
173-340-515 Independent Remedial Actions ....without department
oversight or approval...
(4) (a) Reports
Any person who conducts an independent interim action.
shall submit a written report to the department within 90 days of completion of the action.
(3) Standards (a)
in reviewing independent remedial actions, the department shall determine whether the
...actions meet ...the requirements and/or whether further remedial action is necessary.
Allowing carte blanch independent cleanup authority would appear very risky to the potentially
libel person taking the independent action, and causes a potential loss of time and resources. ]
[WEC recommends that the Department require notification of a contaminated site, and approve independent action based on 1) the nature of site and contamination and 2) the knowledge and experience of the potentially libel person before authorizing independent action.]
WSR pg. 136 notes:
(5) technical consultations: Upon ...review of an independent remedial action the department my provide opinion; remove the site or portion of the site from hazardous sites list, and describe deficiencies of remedial action.
[WEC comment: although there is a mechanism to de-list successful independent remedial actions, There appears no mechanism set in place for the department to act to cleanup the contaminated area if the independent plan was inadequate.]
C. Potential misuse of the concept of "cleanup level"
WSR pg. 148:
Part VII Clean Up Standards
Introduction of concept of "cleanup level": concentration of hazardous substance determined to be protective of human health and the environment: i.e., leave residual contamination up to point that meets risk factors for human health.
"remedial levels": concentration of hazardous substance above which a cleanup technique will be applied.
are remedial levels the same as cleanup levels? what is the reason for introducing
remedial levels in addition to the concept of cleanup levels?
Introduction of the concept of "cleanup level" admits the possibility that contaminated soil meeting MTCA cleanup levels may be termed "clean soil" and used as clean soil.]
WEC Recommends that a definition be provided for cleanup level soil, as well as true clean soil. The distinction between the defined "cleanup level soil" and true clean soil should be incorporated throughout this rule to avoid misconception.
D. Continuity of cleanup through changes of land ownership or right of way
[WEC comment: Although a "prospective purchase consent decree" is described, (WSR pg. 137) no section appear to require a prospective purchaser to submit such a decree; i.e.; the site may change hands before a contaminated area has been reported to the agency, and the new owner may not have site information, or ignore that information. Further, no apparent provision is provided to prevent relatively small contaminated sites from being disturbed by large scale construction, which may allow pathways to contaminated material to inadvertently be created. This is especially true if a site qualifies for exclusion from a Terrestrial Ecological Evaluation via reason of WAC 173-340-7491]
E. Inappropriate exclusions from Terrestrial Ecological Evaluation
WSR pg. 197:
WAC 173-340-7491 Exclusions from a Terrestrial Ecological Evaluation:
section (a). soil contaminated with hazardous substance is located six feet below ground surface
[WEC comment: No stipulation is provided for defining the ground fill placed above the hazardous substance, which may be in fact contaminated soil meeting MTCA Method A cleanup levels. Adding contaminated material as fill is not in the spirit of the original MTCA act.]
Section (c) Where the site conditions are related or connected to undeveloped land in the following manner:
(I) less than 1.5 acres of exposed land contaminated with toxics not listed in (ii)
(ii) less than 0.25 acres of exposed land contaminated with certain toxics
[WEC comment: (c) appears to allow unrestricted land use, regardless of the concentration of toxics at the location. What is the scientific basis for this? ]
F. Department Filtering of information in the public process
WSR pg. 143:
173-340-600 Public Notice and Participation
WSR pg. 145: Public participation plans:
"The department shall determine if the variables proposed to be modified in a site- specific risk assessment or alternative reasonable maximum exposure scenario may affect the significant public concerns regarding future land use and exposure scenarios. If the department finds that those concerns may be affected, then ecology shall assure appropriate public involvement and comment opportunities will occur as identified in the public participation plan".
WEC comment: Because such variable modification may be of primary concern to the public, such modification should be part of the information available to the public for comment. Department "filtering" of what the public may or should be concerned with defeats the purpose and spirit of the public participation process.
G. Potential recycling of hazardous materials in inappropriate ways.
(WSR pg. 117):
WAC 173-340-350 Remedial investigation and feasibility study
(8) Procedures for conducing a feasibility study
(c) contents of a feasibility study
(i) general requirements
(C) (WSR pg. 119):
"Each alternative may consist of one or more cleanup action components, including but not limited to, components that reuse or recycle the hazardous substances, destroy or ......"
[ WEC recommends MTCA state explicitly that hazardous substances may not be recycled into commercial or domestic products, other than the actual product present in the contaminated waste]
H. Inadequate protection of non- endangered species wildlife.
WSR pg. 196:
Terrestrial Ecological Evaluation
(3) Goal: The goal of the terrestrial ecological evaluation process if the protection of ... receptors from significant adverse effects. For species protected under the Endangered Species act or other ....laws that extend protection to individuals of a species, a significant adverse effect means an impact that would significantly disrupt normal behavior patterns ...... For all other species, significant adverse effects are effects that impair reproduction, growth, or survival.
Failure to protect individuals of a non -endangered species provide impetus for that species to become endangered.
I. Degraded aesthetics for petroleum cleanups.
Section 1.6.2 of MTCA Proposed Rule Amendments DEIS, Petroleum Cleanups, notes: several method A values for petroleum related substances are higher, so three will be higher contamination. Although values are "expected" to be protective of human health and the environment, some taste and odor impacts to water and odor impacts to soil could result.
use of ASTM risk based corrective action model, will likely result in higher levels of petroleum contamination, so taste and odor may be impacted
[WEC comment: Such aesthetic degradation of resources is contrary to the spirit of the original MTCA Rule.]
Chair, Pollution and Health Committee
Washington Environmental Council
CC Dave Mann, President , WEC