MTCA: A Citizens’ Initiative Shaped by Agency Action
The Model Toxics Control Act (MTCA) has been cleaning up contaminated sites in Washington State for 30 years. On December 10, 2019, Beveridge & Diamond and the Environmental Law Institute will be hosting a seminar (MTCA 30) to celebrate the success and examine the future of the state’s cleanup statute with some of the state’s leading experts. In advance of the seminar, B&D is publishing a series of articles focused on MTCA.
Building the MTCA Framework
MTCA went into effect in March 1989. The law was the result of Initiative 97 during the 1988 election cycle. According to the initiative’s supporters, the law would create a “toxic cleanup program which will make our environment cleaner and safer, for today and tomorrow.” While the statute provides a general cleanup framework, standards for liability, and a mechanism to raise public funding, the nuts and bolts of contaminated site cleanups were left to the discretion of the Department of Ecology (Ecology) to implement through rulemaking and other agency actions.
Throughout the years, Ecology has completed several substantive rulemakings giving shape to MTCA’s basic directives to identify, inventory, rank, investigate, and remediate contaminated sites. The hundreds of pages of regulations have been supplemented by voluminous policies, procedures, and memoranda, as well as by agency practices and priorities.
Although key features of the cleanup program are fixed by statute, MTCA’s implementing regulations are fundamental to the achievements and limitations of the citizens’ initiative. The critical importance of the MTCA rules in shaping site cleanups is reflected in the extensive rulemaking activities over the last 30 years.
Early MTCA Rulemakings
After the passage of Initiative 97, Ecology Director Chris Gregoire invited representatives from different interest groups to work with Ecology staff to develop new rules for implementation of the initiative. This process is known as “negotiated rulemaking.” Though contemplated by the Washington Administrative Procedure Act, it was an uncommon and innovative approach.
Ecology divided the initial rulemaking process into two parts: process and cleanup standards. The first negotiations revolved around the process sections of the MTCA rules. Ecology appointed an advisory committee consisting largely of attorneys and interested parties representing the various groups who had participated in the Initiative 97 campaign (both for and against). Over the course of a year, the committee held numerous meetings to hash out the details. The process parts of the MTCA rules were adopted in early 1990, including standards for reporting releases of a hazardous substance, performing initial site investigations, assessing and ranking site hazards, establishing requirements for interim actions, remedial investigations/feasibility studies and cleanup action plans, and setting out monitoring requirements. The regulation also included public participation provisions and procedures for enforcement orders and agreed orders.
Next, Ecology began writing the cleanup standards. The agency appointed a new advisory committee and broadened its membership to include consultants and others with technical backgrounds. The committee also held a series of meetings to address the details of the rule. Ecology adopted the cleanup standards parts of the MTCA rules in 1991.
Another round of rulemaking occurred in the mid-1990s after the Washington Legislature passed SB 6123 in 1994, which defined industrial property cleanup standards and agreed orders. In response, Ecology implemented rules in 1996 addressing agreed orders, amending cleanup standards, providing unrestricted land use soil cleanup standards, and providing soil cleanup standards for industrial properties.
In 1995, the Legislature passed HB 1810, which established the MTCA Policy Advisory Committee (PAC). The Legislature tasked the PAC with studying and evaluating how MTCA was working. The PAC submitted its final report and recommendations to the Legislature in December 1996. As a result of the PAC recommendations, Ecology adopted comprehensive amendments to the MTCA rules in 2001, making revisions to requirements for site identification and listing, remedial investigations and remedy selection, cleanup standards, performance and compliance monitoring, and public notice and participation.
Then, in 2007, following the settlement of a related lawsuit against Ecology and petitions from environmental groups, the agency amended cleanup standards for dioxins/furans, polycyclic aromatic hydrocarbons, and polychlorinated biphenyls.
A subsequent rulemaking effort with a broad focus was aborted in 2010 in response to an executive order issued by then-Governor Chris Gregoire to address budgetary concerns in the midst of an economic recession.
Current MTCA Rulemaking
In 2018, Ecology announced that it would undertake a multi-year process to update the existing MTCA regulations, which were last amended substantially in 2001. In light of the scale of the rulemaking, as with previous efforts, Ecology is planning to complete the updates in phases. The first phase, which is underway now, is focusing on administrative and procedural components of the MTCA regulations. The second phase will address cleanup standards, which are one of the most complicated and, at times, controversial facets of contaminated site cleanups. The third phase is the least well defined but is intended to cover issues that are identified or that could not be addressed during the first two phases.
In contrast to early MTCA rulemaking efforts, the current updates will not be informed by a “negotiated rulemaking.” Instead, Ecology has convened a Stakeholder and Tribal Advisory Group to provide initial input on proposed changes to the current regulatory scheme before putting final proposed amendments out formally for public comment.
Looking to the Future, Drawing on the Past
The lofty aspirations of the citizens’ initiative are reflected in MTCA’s policy declarations:
Every person has a fundamental and inalienable right to a healthful environment, and each person has a responsibility to preserve and enhance that right. The beneficial stewardship of the land, air, and waters of the state is a solemn obligation of the present generation for the benefit of future generations.
When MTCA was enacted, many optimistic observers anticipated that the state’s contaminated sites would be addressed within a decade or two. While MTCA’s track record is impressive, thousands of sites have not been fully remediated, and hundreds of new sites are added to the contaminated site list every year. In comparing the rulemaking records of years past and more recent comments on the existing MTCA regulations, the thematic similarities are striking. Many of the challenges and controversies associated with cleanups remain the same. How clean is clean? What risks should drive cleanups? Should costs be considered in setting cleanup actions and, if so, how? As we look back at MTCA’s first 30 years and embark on a series of regulatory changes that will shape contaminated site management in our state for decades, taking a clear-eyed look at what has and has not worked is vital to ensuring a strong and effective cleanup program.
Beveridge & Diamond’s Superfund, Site Remediation, and Natural Resources Damages practice group assists clients in litigation and allocation of CERCLA sites, including complex, large-scale sites. We counsel clients on developing case law and requirements under CERCLA and state-equivalent hazardous waste laws. For more information, please contact the authors.
 MTCA was not the first law in Washington to require cleanup of hazardous waste sites. It replaced a law that had been enacted in 1987.
 Ecology recognized this issue soon after MTCA was passed: “When Washington voters passed the Model Toxics Control Act as Initiative 97 in 1988, they provided Ecology not with a pre-packaged solution for hazardous waste cleanup, but rather the basic framework for a toxics cleanup program. The backbone of the Model Toxics Control Act – how hazardous substances will actually be cleaned up and how well it will work – would depend largely on how the law was implemented.”