August 26, 1999

Dear Interested Persons:

Earlier this summer, the Department of Ecology distributed draft amendments to the Sediment Management Standards (SMS) rule for review by the SMS Implementation Committee. We received numerous comments on the draft revisions. The purpose of this letter is to summarize some of the broad issues and concerns raised in the various comments and briefly describe the steps that Ecology intends to take in addressing those concerns.

Concerns Associated with the June 1999 Draft Rule Amendments

Ecology has received written comments on the draft rule amendments from approximately 20 individuals and organizations (copies of individual comments are enclosed). In addition, the Department received many comments and suggestions at the SMS Implementation Committee meetings held in June and July. In general, the comments are well thought out and raise a number of issues and concerns. Broad areas of concern include:

• Schedule: A number of individual and organizations criticized Ecology for rushing to propose rule amendments when many unresolved issues remain. Ecology received several comments requesting that the rulemaking process be delayed until these issues are resolved. However, others expressed frustration that Ecology had not published rule amendments for formal public review and comment.

• Regulatory Integration: A number of individuals expressed the opinion that the draft rule amendments are not well coordinated with other requirements. Of particular concern were the following:

• Model Toxic Control Act Rule Amendments: Several individuals and organizations expressed concerns that the SMS cleanup provisions duplicate and are not consistent with the new MTCA cleanup regulation which establishes the primary requirements for cleanup in Washington.

Of particular concern were 1) no provisions for independent cleanups, 2) integrating requirements for sites that include both land and sediment components, 3) remedy selection requirements, 4) definition of "contaminated sediments and 5) governance issues associated with including the SMS rule as part of the State's water quality standards.

• Endangered Species Act (ESA): Several individuals criticized Ecology for not developing a strategy for complying with the requirements for consultation under Section 7 of the ESA. They expressed concerns that if the final rule is unacceptable to the United States Fish and Wildlife Service and the National Marine Fisheries Service (Services), Ecology would be required to re-propose the SMS rule amendments. The Services expressed concerns regarding several contaminants and rule provisions.

• Clean Water Act: There were significant concerns regarding the lack of clarity on 1) how sediment standards will be implemented under various Clean Water Act programs (e.g. TMDL program), and 2) the process for EPA review of rule amendments.

• Degree of Flexibility: The Department received a wide range of comments on the issue of regulatory flexibility. Numerous individuals and organizations recommended that Ecology place the chemical criteria/biological criteria and human health equations into guidance documents. Others expressed concerns that the use of narrative standards and/or risk-based equations provided too much flexibility and/or discretion for Ecology or persons responsible for cleanup and source control activities.

• Level of Protection: Ecology received a wide range of comments on the level of protection provided by the current rule and the draft rule amendments. A number of individuals expressed the opinion that the current standards provide an appropriate level of protection and questioned the need to establish lower standards. Others questioned whether the draft rule amendments provided an adequate level of protection for subsistence fishing and salmon.

• Scientific Defensibility: A number of individuals and organizations expressed opinions on the scientific rationale for various rule provisions. Frequently mentioned issues include 1) use of microtox and oyster AETs, 2) methods for quantifying the relationship between contamination levels in sediment and fish tissue, 3) selection of fish consumption rates and 4) application of Puget Sound criteria to other marine sediments.

• Compliance with the Administrative Procedures Act: Several individuals and organizations questioned whether Ecology has adequately complied with provisions of the Administrative Procedures Act.

• Implementation Issues: Several individuals and organizations urged Ecology to more closely examine the impacts and implications of the draft rule amendments. Several comments noted that Ecology has failed to produce case studies that demonstrate how the various rule changes would be implemented.

We are now in the process of reviewing and evaluating these comments. We hope to schedule meetings with individuals to discuss their comments and recommendations for addressing key concerns.

Next Steps

When Ecology distributed the draft amendments in June 1999, we intended to move to formal proposal in late September. However, based on the large number of remaining concerns, we have decided that additional time will be needed to revise the rule and address key concerns. In many of the written comments, people indicated an interest and willingness to meet to discuss the draft rule amendments. Consequently, during the month of September, we hope to meet with members of the SMS Implementation Committee and other interested individuals to discuss their rule comments and rule amendment ideas. We will be contacting individuals in early September regarding these meetings. Areas where we intend to focus attention include the following:

• MTCA/SMS Coordination: Comments on the draft rule identify a number of remaining concerns on this issue. Ecology believes these concerns have merit and is willing to address the consolidation of elements of the MTCA and SMS cleanup processes.

• Endangered Species Act Consultation: Ecology will continue to work with EPA and the Services on early consultation and preparation of a biological assessment in order to identify and address ESA concerns prior to final rule adoption. A significant number of comments emphasized the need to provide greater certainty on this process before entering formal rulemaking.

• Clean Water Act Implementation: Ecology recognizes that many of the concerns associated with the SMS rule revisions are directly related to uncertainties on how the revised rule (as well as the current rule) will be implemented under the TMDL program and the process that EPA will use to review final amendments. As with ESA issues, we intend to work with EPA and other interested groups to resolve these issues prior to entering the formal rulemaking process.

• New and Updated Standards: Ecology believes that it is important to continue to move forward on updating the marine standards, establishing an evaluation framework for freshwater sediments and completing human health amendments. However, we also recognize that we will need to address the scientific and implementation concerns raised by stakeholders prior to proposing rule amendments.

Based on the discussions at these small group meetings, Ecology intends to prepare a revised rule plan and schedule. We intend to discuss various options for proceeding at the September 22, 1999, SMS Implementation Committee meeting.

In closing, we appreciate the time and effort that people have put into reviewing and providing comments on the draft rule amendments. We hope to have the opportunity to discuss those comments in greater detail in the coming months.

Sincerely,

James J. Pendowski, Program Manager

Toxic Cleanup Program

JJP:lt

Enclosures