August 5, 2021

Volume XI, Number 217

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Washington Department of Ecology Proposes Model Remedy to Address Legacy Contamination from Orchards

Lead arsenate, a pesticide that was used regularly in orchards until the 1940s, has contributed to lead and arsenic contamination in large swaths (over 100,000 acres) of Central and Eastern Washington. Some former orchards have been converted to new uses, including residential neighborhoods, schools, and parks. To address exposure concerns and facilitate cleanup, the Department of Ecology (Ecology) has proposed a model remedy under the Model Toxics Control Act. The agency is requesting comments on the proposed remedy until June 7, 2021.

Ecology’s proposed model remedy is intended to be scalable – suitable for larger areas as well as small projects where soil is disturbed, such as during landscaping and home construction. Ecology also assumes that the remedy will address organic pesticides, such as DDT, that may be associated with historical agricultural practices as well. The remedy would include several options – excavation and removal, mixing contaminated soil with clean fill, capping in place, and consolidating the contaminated material and then capping it. For the capping-based remedies, institutional controls, such as an environmental covenant, would have to be maintained. The proposed remedy lists factors that affect which options would be appropriate. 

Ecology has identified likely impacted areas in its “Dirt Alert Map.” Ecology is requiring that properties within these areas be sampled when their use changes. If contamination is discovered, it must be reported to Ecology within 90 days. Parties that own contaminated parcels may be liable for cleaning them up. 

Model remedies are intended to expedite site cleanups and regulatory closures. They avoid the need to develop site-specific remedies and, when used, feasibility studies are not required. Ecology may also waive fees when reviewing requests for No Further Action determinations.  However, model remedies only apply when sites meet specific criteria – some initial site characterization is necessary to determine site eligibility. Parties also must decide whether to perform the cleanup independently or as part of Ecology’s Voluntary Cleanup Program. A model remedy could help to achieve site closure during the initial investigation phase before the site is placed on Ecology’s Confirmed and Suspected Contaminated Sites List.  

Along with the proposed model remedy, Ecology has also released several publications to highlight and educate the public on related issues, including the health effects of exposuresworker safety issues, sampling requirements, real estate transactions, and development projects

© 2021 Beveridge & Diamond PC National Law Review, Volume XI, Number 140
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About this Author

Loren R. Dunn Environmental Litigation & Regulation Attorney Beveridge & Diamond Seattle, WA
Principal

Loren represents regional and national companies at locations throughout the country in environmental regulation and litigation issues.

Loren’s environmental projects have involved hazardous waste and large multi-party toxics cleanup sites, including marine and freshwater sediment sites, landfills, and natural resource damages claims. He has also conducted extensive work obtaining permits for key facility operations. He has particularly deep knowledge of the following industries: manufactured gas facilities, regulated utilities, smelters and metals refineries, pesticide sites, and...

206-315-4810
Rachel K. Roberts Land Use Attorney Beveridge & Diamond Seattle, WA
Associate

Rachel Roberts helps clients resolve complex matters involving contaminated sites, land use, and water rights.

Rachel’s practice focuses on contaminated site remediation under CERCLA and state laws, as well as water rights disputes and federal land use issues. Rachel helps clients steer complex and long-running cases to a successful resolution. She also enjoys helping clients navigate challenging regulatory environments.

Prior to joining Beveridge & Diamond, Rachel served as a Trial Attorney for U.S. Department of Justice’s Natural Resources Section of the Environment and...

206-315-4814
Tracy Y. Williams Environmental Attorney Beveridge & Diamond Seattle, WA
Associate

Tracy Williams advises clients on compliance with federal and state environmental laws, with an emphasis on site remediation.

She has over ten years of experience with MTCA, CERCLA, and CWA matters – identifying cost-effective compliance solutions, assisting clients with due diligence processes, determining liability and addressing insurance issues, and negotiating settlements.

Tracy represents manufacturers, non-profit entities, and individual clients in both federal and state courts throughout Washington State. She negotiates with state and federal...

206-315-4820
David C. Weber Air & Climate Change Attorney Beveridge & Diamond Seattle, WA
Office Managing Principal

David C. Weber is the Managing Principal and co-founder of Beveridge & Diamond’s Seattle office. 

He also serves as the co-chair of the firm’s Air and Climate Change group. Dave focuses his practice on environmental litigation and compliance counseling, including air and water quality regulation, hazardous waste handling and remediation, and contaminated site cleanups under federal and state laws.

A cornerstone of Dave's practice is advising clients on national air quality and climate change issues. He represents businesses in connection with enforcement proceedings,...

206-315-4811
Augustus E. Winkes Environmental Attorney Beveridge & Diamond Seattle, WA
Associate

 

Augustus E. Winkes focuses his practice on contaminated site cleanup and litigation under CERCLA and state Superfund statutes. He is the deputy for the firm’s CERCLA, Brownfields, and Subsurface Contamination practice group.

He also advises clients on regulatory compliance and defends enforcement actions under federal and state hazardous waste, water quality, air quality, and climate change laws, and he has experience in natural resource management matters.

Mr. Winkes also serves on the Stakeholder and Tribal Advisory Group tasked with providing...

206-315-4813
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