10. Application of the Model Toxics Control Act

The Area-Wide Soil Contamination Task Force was chartered, in part, to recommend alternatives to traditional ways of addressing soil contaminated with low-to-moderate levels of arsenic and lead under MTCA. The Task Force debated MTCA and its application to area-wide soil contamination extensively, and over the course of discussions raised many questions as to how the Task Force's recommendations could be reconciled with the MTCA statute and Ecology's current MTCA regulations and policies. In an effort to find agreement, the Task Force identified a number of objectives to guide the MTCA discussions. The group then agreed to address the objectives collectively; that is, to accept and attempt to meet all of them, even if as individuals they did not value each objective equally. The objectives the Task Force worked to meet are:

• Areas characterized as having area-wide soil contamination are neither "MTCA-free zones" nor "MTCA-everywhere zones"; a viable alternate approach is needed consistent with the current MTCA statute;
  
• Predictability/certainty about what is expected of property owners where area-wide soil contamination is present;
  
• Predictability/certainty about what Ecology will do where area-wide soil contamination is present;
  
• Minimal financial impacts on innocent property owners affected by area-wide soil contamination;
  
• Minimal adverse impacts on property transactions;
  
• Providing a streamlined way for property owners to get as much certainty about their property's status as they desire; and
  
• Providing incentives for property owners to implement Task Force recommendations.

The Task Force also identified a number of elements of the current MTCA regulations and policies, as well as other mechanisms, which might be used to meet these objectives. These elements are:

• Zones or regulatory definitions of area-wide soil contamination instead of property-specific listings;
  
• Rulemaking to revise the MTCA regulations and other administrative action to revise MTCA policies;
  
• Conditional No Further Action letters or other "comfort" letters or documents from Ecology;
  
• Model actions or standard protocols for protection measures and/or sampling;
  
• Enforcement forbearance policies;
  
• Independent cleanup models;
  
• Self-certification models;
  
• Delivery of services recommended by the Task Force, such as technical assistance and sampling assistance (e.g., with an XRF machine); and
  
• Real estate disclosure and other market-based models to distribute information.

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Recommendations

From their discussions of these objectives and elements, the Task Force makes six recommendations relative to MTCA.

• Ecology should provide as much predictability and certainty as possible in how MTCA will be applied to properties affected by area-wide soil contamination. In general, this will mean using regulations instead of policies to implement Task Force recommendations on MTCA.
  
• Avoid listing individual properties affected by area-wide soil contamination and instead identify and describe area-wide soil contamination zones.
  
• Establish in regulation a new enforcement forbearance policy available where property owners choose to implement Task Force recommendations at residential and commercial properties within area-wide soil contamination zones. To complement this policy, establish a standard checklist that can be used to document property status and the applicability of enforcement forbearance. Announce the new regulations and checklist when area-wide soil contamination zones are first described.
  
• Where property owners choose not to implement Task Force recommendations, they would remain under the current MTCA system, which includes a policy under which Ecology in general forbears from taking enforcement actions at residential properties.
  
• Where properties are sampled and concentrations of arsenic and lead are below cleanup levels, provide a streamlined process to reflect that properties are clean.
  
• The traditional MTCA approach remains available to property owners who want to use it to address area-wide soil contamination and to Ecology where property is affected by other than area-wide soil contamination.

Use Regulations to Provide Predictability
The Task Force believes that predictability and certainty with respect to what is expected of property owners and how Ecology will apply MTCA at properties affected by area-wide soil contamination are very important. In implementing Task Force recommendations relative to MTCA, Ecology should choose methods that provide the most predictability and certainty possible given the circumstances. In general, the Task Force believes that this will be achieved by Ecology using regulations rather than policies to implement Task Force recommendations relative to MTCA. Regulations provide a greater degree of certainty than policies because they cannot be changed as easily. In addition, the formal administrative process associated with enacting regulations will provide the benefit of opportunities for public review and comment on Ecology's approaches to implementing Task Force recommendations relative to MTCA and on any subsequent modifications to these approaches that Ecology might propose.

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Avoid Listing Individual Properties
Ecology should avoid individual property listings for properties affected by area-wide soil contamination. Instead, Ecology should use an area-wide soil contamination zone approach. The process of identifying area-wide soil contamination zones could involve mapping areas using community or regional boundary lines, shaded geographic area designations, and/or property category descriptions to locate areas likely to have elevated levels of lead or arsenic, or could involve using narrative descriptions (or regulatory definitions) of area-wide soil contamination. Given the differences in the types of data available on area-wide soil contamination, it might be appropriate to use different approaches in different areas. For example, where there have already been mapping efforts to identify area-wide soil contamination, such as the mapping efforts associated with the Tacoma and Everett smelter plumes, maps may be the most appropriate way to identify area-wide soil contamination zones. Where less mapping has been undertaken, or where it is more difficult to map potentially affected areas, such as in historical apple and pear growing areas, a narrative description or regulatory definition of area-wide soil contamination, potentially based on the Task Force property evaluation flowchart, may be most appropriate.

The Task Force reiterates that one of the key elements of responding to area-wide soil contamination is to give individuals the information and technical and financial support they need to understand the potential risks associated with area-wide soil contamination and take steps to address it consistent with their own lifestyles, property uses, and values. Consistent with this approach, the Task Force recommends that the Agencies' efforts to conduct broad-based education and awareness-building activities and to support individuals who choose to take action to address the potential for elevated levels of arsenic and lead in soil at their properties be focused within area-wide soil contamination zones. These activities are discussed in detail earlier in this report and include:

• Targeted outreach and informational materials for parents, educators, and others who care for children; for home gardeners; and for adults who have frequent contact with soil because of their work (e.g., construction and underground utility workers).
  
• Support for qualitative evaluations and, where appropriate, support for soil testing to help individuals make decisions about when and how to protect people from exposure to arsenic and lead in soil.
  
• Support for implementation of individual protection measures, such as frequently washing hands with soap and water and removing soil from home-grown fruits and vegetables, to minimize the potential for ingestion or inhalation of contaminated soil.
  
• Assistance with identification and implementation of additional protection measures, such as covering bare soil, particularly in areas where children routinely play.

The Task Force emphasizes that regardless of the method used to identify and describe area-wide soil contamination zones, care should be taken in identifying and describing area-wide soil contamination zones to avoid misinterpretation of the zones and other unintended consequences. For example, if maps are used, Ecology should make clear that because of the variability in the distribution of area-wide soil contamination, zones will not precisely distinguish contaminated from uncontaminated areas. Many properties within mapped zones may, if sampled, be shown to have concentrations of arsenic and lead that are below MTCA cleanup levels.

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Enforcement Forbearance
Within area-wide soil contamination zones, property owners who choose to take actions consistent with Task Force recommendations should receive the benefits of enforcement forbearance specific to area-wide soil contamination. Enforcement forbearance should be established in regulation rather than merely in a policy document, and it should make clear that Ecology will, in the exercise of its enforcement discretion, generally not pursue enforcement actions against landowners and tenants who maintain their property in a way that is consistent with the Task Force recommendations. As precedent, Ecology should consider the current residential forbearance policy and the former "plume policy" (now codified in the MTCA statute), which described Ecology's enforcement discretion relative to owners of properties affected by contaminated ground water from other sources.

To assist property owners in obtaining the benefits of enforcement forbearance, Ecology should create a checklist that property owners can use to track their implementation of Task Force recommendations. This checklist should be based on the Task Force's qualitative property evaluation checklist, and should list the Task Force recommendations by property type. The Task Force believes that use of these checklists will complement existing real estate disclosure requirements and, over time, may prompt market action to encourage property owners to maintain their properties in ways that are consistent with Task Force recommendations. To facilitate this market action, and to encourage buyers and sellers to rely on completed checklists, Ecology should require that landowners who choose to use the checklist complete it truthfully and accurately.

The Task Force does not recommend that property owners be required to submit completed checklists to Ecology or any other agency. As with the implementation of the Task Force recommendations at specific properties in general, use of the checklist should remain strictly voluntary on the part of the property owner. Both the new enforcement forbearance rule and the checklist should be made available electronically and should be incorporated into the broad-based education and awareness-building activities described earlier in this report. In particular, education and outreach should target financial institutions and real estate professionals who may encounter these documents during property transactions. The Task Force emphasizes that to reduce the potential for unintended, adverse reactions to identifying and describing area-wide soil contamination zones, the new enforcement forbearance policy and checklist should be made available and announced when zones are first described. It is critical to provide property owners who may be affected by area-wide soil contamination with information about effective, practical, and affordable steps they can take (i.e., solutions) and about what to expect from Ecology when they receive information describing the area-wide soil contamination problem.

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Property Owners Who Choose Not to Implement Task Force Recommendations
Property owners who choose not to implement Task Force recommendations will continue to be covered by the current MTCA regulations and existing Ecology policies and practices related to enforcement forbearance, such as current policies describing Ecology's intention to, in general, forbear from taking enforcement action against residential homeowners and, in certain circumstances, other property owners. The Task Force notes that many of its recommendations are consistent with the types of practices already followed by many property owners. This is particularly the case for commercial properties, where the Task Force recommends maintaining good soil cover through buildings, parking lots, and other structures. The Task Force expects that most commercial property owners are already taking actions consistent with Task Force recommendations and, therefore, will likely be covered by the additional enforcement forbearance recommended in this report.

Streamlined System to Reflect Where Properties are Clean
Ecology should create a streamlined system to recognize property owners who choose to sample their properties and discover that concentrations of arsenic and lead in soil are below MTCA cleanup levels. It is recommended that this system be made available electronically and through other means. Guidance on sampling is included in the toolbox of materials recommended by the Task Force.

Traditional MTCA Process Remains Available
Finally, the Task Force recognizes that there will be some circumstances in which the traditional MTCA approach is appropriate, either because a property owner wants to use the traditional MTCA process or because Ecology determines that site-specific conditions warrant use of the traditional MTCA process. These situations may include:

• Properties where contaminants other than arsenic and lead are found.
  
• Properties where there is ground water contamination.
  
• Properties where arsenic or lead are found at high levels.
  
• Properties where the owner has implemented what would traditionally be considered a final remedy under MTCA and therefore desires a settlement or other traditional MTCA liability assurance.

Ecology should monitor, in an informal way, circumstances within area-wide soil contamination zones where the traditional MTCA approach is used. This information should be used to refine application of MTCA within area-wide soil contamination zones over time. For example, Ecology might consider establishing a model remedy under MTCA if owners of commercial properties are routinely adding institutional controls to implementation of the Task Force recommendations, thereby creating a remedy that would likely be considered a final remedy under MTCA that deserves formal recognition.

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