Model Remedies Under Washington’s Model Toxic Control Act – A Modest First Step for Impacted Soil Sites

In December 2014, the Washington Department of Ecology (“Ecology”) issued a white paper discussing the status of its work toward developing “model remedies.”  In 2013, the Washington Legislature directed Ecology to establish these model remedies and the 2014 white paper discusses seven draft model remedies developed for sites with petroleum contaminated soil.

Model remedies are cleanup actions that are determined in advance to meet regulatory requirements if a site meets the eligibility criteria for the remedy.  If a model remedy is used, it is not necessary to conduct either a feasibility study or a disproportionate cost analysis.  Furthermore, if a liable party seeks a “no further action” determination from Ecology, fees for the review are waived.

As might be expected, the model remedies are aggressive and do not provide for risk-based closure. They do address situations where residual soil contamination remains in place subject to recorded restrictive covenants.

However, the draft model remedies outlined in the white paper, while a good first step, are still very limited. First, the model remedies only apply if soil is the impacted media – they do not apply if groundwater, surface water, sediment or indoor air are impacted.   Second, the model remedies also do not apply to sites with contaminated soil below the water table, even if the groundwater is not impacted.

Third, the model remedies also do not apply to sites with contaminated soil when petroleum contamination has been detected in groundwater above the practical quantitation limits.  In other words, even if the groundwater concentrations are below cleanup levels, the model remedies cannot be applied if contaminants are detected in groundwater.

At this time, it is unclear when Ecology will finalize these model remedies or when model remedies for other impacted media will be proposed.