WSR 09-05-028



[ Order 08-07 -- Filed February 10, 2009, 2:21 p.m. ]

     Subject of Possible Rule Making: The department of ecology is proposing to update the Model Toxics Control Act (MTCA) cleanup regulation (chapter 173-340 WAC) and certain portions of the sediment management standards (SMS) (chapter 173-204 WAC). These rules govern the cleanup of contaminated sites in Washington. Issues being considered by ecology include:

Revisions to establish clear policies and align MTCA and SMS requirements for sediments.
Updating cleanup standards to reflect new scientific information and recent changes to state and federal regulations. Issues include, but are not limited to: Policies and methods to address the vapor intrusion pathway, fish consumption rates for high exposure groups, cleanup levels for lead-contaminated soils and revisions to Method A cleanup levels.
Revising the rule to address implementation concerns identified since the 2001 MTCA rule amendment. Issues include, but are not limited to: Clarifying and streamlining procedures for establishing cleanup standards and selecting cleanup actions; and adding procedures for issuing property-specific opinions under ecology's voluntary cleanup program.
Revising the rule to incorporate new statutory requirements enacted since the 2001 MTCA rule amendments, including: The Uniform Environmental Covenants Act (passed in 2007 as SB 5421).
     More detail on potential rule making issues is available on the ecology web site described below.

     Statutes Authorizing the Agency to Adopt Rules on this Subject: The MTCA, chapter 70.105D RCW.

     Reasons Why Rules on this Subject may be Needed and What They Might Accomplish: According to the MTCA statute, chapter 70.105D RCW, ecology must publish and periodically update minimum cleanup standards. The cleanup regulation specifying these standards, chapter 173-340 WAC, must be reviewed and, as appropriate, updated at least once every five years. Significant changes were made to the rule in 2001 and more targeted amendments added in 2007. Since these amendments, changes have emerged in the body of scientific information used to set cleanup standards. Ecology believes it is appropriate to consider updates so that cleanup decisions continue to be based on the best available science. In addition, certain parts of the regulation need updating to reflect new state and federal laws. Ecology is using this opportunity to consider whether the 2001 amendments in practice have worked as envisioned when promulgated. If not, then ecology will consider options for clarifying or revising those provisions.

     Other Federal and State Agencies that Regulate this Subject and the Process Coordinating the Rule with These Agencies: Establishing state cleanup standards is a unique responsibility assigned to the department of ecology in chapter 70.105D RCW. The United States Environmental Protection Agency oversees cleanup actions conducted under the federal superfund program and will be consulted during this rule-making process. The Agency for Toxics Substances and Disease Registry and the Washington department of health are responsible for evaluating human health hazards at contaminated sites and will be consulted during the rule-making process. Tribal nations have lands or usual and accustomed fishing areas on or adjacent to cleanup sites and will be consulted during the rule-making process.

     Process for Developing New Rule: This rule-making process will result in an amendment to an existing rule. Ecology plans to provide several options for interested people and organizations to participate in the rule-making process, including informal information sessions about the issues and options being considered. Once ecology formally proposes rule amendments, people will have an opportunity to comment on the proposed amendments. At least two public hearings will be conducted. Additionally, the proposed amendments will be posted on the ecology web site and provided to interested persons.

     Interested parties can participate in the decision to adopt the new rule and formulation of the proposed rule before publication. Ecology recognizes that public involvement is key to this rule-making effort. One of our goals is to provide interested persons the opportunity to contribute to the rule development process in an informed and meaningful way. To do this we will be creating and maintaining a web page with background on the issues being analyzed, options being considered, opportunities to provide input, and contact information. Interested persons are invited to visit the web site. Go to (click on Toxics Cleanup then on In Progress: MTCA Cleanup Regulation Update). For more information contact: Martha Hankins, Policy and Technical Support, Toxics Cleanup Program, Washington Department of Ecology, (360) 407-6864 or send e-mail to

February 10, 2009

James J. Pendowski

Program Manager

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