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10. SEPA and MTCA

Chapter Contents
10.1. Integration of SEPA and MTCA
10.1.1. Review Process
10.1.2. MTCA Interim Actions

 

In 1988, citizens passed Initiative 97, creating the Model Toxics Control Act (MTCA) [Chapter 70.105D RCW and Chapter 173-340 WAC]. MTCA gives the Department of Ecology the authority to order cleanups at contaminated sites and established a tax on hazardous substances sold in the state. These funds pay for cleanup and pollution prevention activities.

A remedial action conducted under a consent decree, order, or agreed order is exempt from the procedural requirements of many state and local permits. However, the Department of Ecology must ensure compliance with the substantive requirements of these permits.

10.1 Integration of SEPA and MTCA

An amendment to SEPA in 1994 directed the integration of the review requirements of MTCA and SEPA [RCW 43.21C.036]. To meet this directive, several sections were added to the SEPA Rules in 1995 that contain procedures to combine the MTCA and SEPA processes to reduce duplication and improve public participation. These changes:

  • Encourage concurrent review and comment periods for SEPA and MTCA actions;

  • Encourage combined documents for SEPA and MTCA actions; and

  • Allow the use of expanded scoping prior to making a SEPA threshold determination.

WAC 197-11-250 through 268 apply to interim and final hazardous site cleanup activities conducted by the Department of Ecology, or by a potentially liable party under an order, agreed order, or decree. They do not apply to independent cleanup actions (which are reviewed under the normal SEPA process). If the Department of Ecology is not SEPA lead agency (see criteria below), the SEPA/MTCA integration procedures are used to the extent practicable [WAC 197-11-250(4)].

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10.1.1 Review Process

The following briefly outlines the process for combining the procedural requirements of SEPA and MTCA. For additional information see WAC 197-11-250 through 268.

  • Identify the lead agency [WAC 197-11-253]: Identify the SEPA lead agency after the potentially liable party (PLP) has been identified and prior to issuing an order, agreed order, or consent decree. The Department of Ecology will normally be lead agency unless the PLP is a public agency, or the remedial action is part of a larger proposal.

  • Conduct early review [WAC 197-11-256]: Prior to conducting a remedial investigation/feasibility study (RI/FS), the lead agency considers available information and makes a preliminary determination of the probable adverse environmental impacts. Any additional studies needed under SEPA should be identified at this point so the studies can be combined with the RI/FS.

  • Perform early scoping [WAC 197-11-256]: If the lead agency determines during the early review process that additional information is needed to identify probable impacts, the public is invited to comment on the proposed study areas. This early scoping will typically be combined with the public review process for the order, consent decree, or agreed order for the RI/FS.

  • Make threshold determination/complete environmental review:  

     

    • If the lead agency determines the remedial action will not have a probable significant adverse environmental impact, a determination of nonsignificance (DNS) is issued [WAC 197-11-259]. The DNS must be issued no earlier than the RI/FS and no later than the draft cleanup action plan. If there is a comment period on the DNS (see criteria in WAC 197-11-340(2)(a)), then the comment period on the DNS must be combined with the comment period on the MTCA document
    • If the lead agency determines that a significant adverse environmental impact is likely a determination of significance (DS) [WAC 197-11-262] is issued and the preparation of an environmental impact statement (EIS) is begun. If the early scoping process was used, then no additional SEPA scoping is required. The draft EIS may be issued no earlier than the issuance of the RI/FS and no later than the issuance of the draft cleanup action plan. The EIS may be combined with the RI/FS using the procedures in WAC 197-11-262(4).

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10.1.2 MTCA Interim Actions

In some cases, an interim action [WAC 197-11-268] is needed before the final remedial action occurs. SEPA environmental review is required for these interim actions unless the action meets the criteria for an emergency under SEPA. If a DNS is issued, it may be combined with the public notice for the interim action.

If a DS is issued and early scoping was used, no additional scoping is needed. If early scoping was not used, then a scoping notice with a minimum 21-day comment period is required. The final EIS must be issued no later than the issuance of the interim action report or the issuance of an order, agreed order, or decree.

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