April 16, 2003

Dear Representatives:

The purpose of this letter is to provide you with basic issues and information related to SSB 5787, the fill bill.

The bill disregards present adopted state regulatory definition of clean fill.

The bill will not result in protection of waters of the state.

The bill will make the process more expensive, more difficult, and guarantee appeals and litigation.
Dropping the bill and using the existing state regulation will limit costs, given business certainty and fully protect our communities and water replacing what will be a very complex process subject to challenge with a very simple process that would be much more challenge proof.

One of the most important issues relates to the assumed or implied lack of guidelines for clean fill. There is in fact a clear definition for clean fill that has been extensively considered by the Department of Ecology (Ecology), subject to public hearing and adopted into State regulation.

Here is how Ecology staff described the existing state wide policy in a recent email:

" I am guessing that the topic you are interested in is soils related (because of the referral from Pete Kmet.) Ecology promulgated a new solid waste rule (Chapter 173-350 WAC) which became effective this last February. It is applicable to most types of solid waste handling except municipal solid waste landfills. The new rule provides a definition of clean and contaminated soils that is revised from the previous rule ( Chapter 173-304 WAC.) The definition is not concentration-based but relies on a performance standard such that "clean soils" do not have a negative impact on the site where they are placed. Essentially, this means that soils placed at a site should be as clean or cleaner than existing conditions. The definition of clean or contaminated relies on two other terms: "contaminant" and "natural background". You can access the rule at this web address: http://www.ecy.wa.gov/biblio/wac173350.html."

The Legislature should vigorously defend this state wide policy (especially in a 401 certification context) and the anti-degradation principle that it represents rather than considering special interest legislation such as SSB 5787 that fundamentally weakens existing law and regulation. SSB 5787, seriously undermines the above state wide definition of clean fill, the anti-degradation principle and allows the Port and Ecology to reverse a decision of the Pollution Control Hearings Board which blocked them from using a polluters entitlement definition of clean fill for the third runway project. The present law as stated in 173-350 WAC, addresses the concerns raised by the Port and business by providing regulatory certainty, and the concerns raised by communities and environmental groups by adequately protecting our communities and Waters of the State. It also addresses the concerns the Pollution Control Hearings Board had with the SeaTac Airport 401 Certification fill standards which they found insufficient to protect Waters of the State.

If you compare the section of the SeaTac Airport 401 certification for the project on fill standards, the portion of the PCHB decision on fill standards and the standard (which you should be strongly and publicly supporting) for clean fill as given in the above citation, even a quick casual read makes connecting the dots unavoidable. The existing State regulatory definition for clean fill provides adequate protection for communities and Waters of the State, SSB 5787 does not.

In simplest of terms; Use of the SPLP method to allow elevated concentrations of contaminants to be placed in waters of the state is bad. Protection of waters of the state by limiting fill quality to natural background with a provision that imported fill should be as clean or cleaner than existing soils (as stated in the existing solid waste rule) is good. It is clear from testimony in the PCHB 401 Certification appeal that the reason that the Port of Seattle has proposed and is pushing SSB 5787 is so they have a mechanism to justify increasing contaminants over background concentrations in fill they are transporting in vast quantities to southwest King County.

The bill has been described by Ray Hellwig, Northwest Regional Director for Ecology as an additional tool for Ecology in making 401 determinations. My position is that a bill or analytical method that allows Ecology any further discretion in this way is simply throwing fuel on the fire in a burning building. There are two recent major Ecology 401 Certification decisions as evidence of this, the Battle Mountain Gold decision which was argued by the Washington Environmental Council, and the SeaTac Airport 401 Certification decision which was argued by the communities and organizations surrounding the SeaTac Airport. In both cases, in spite evidence to the contrary, Ecology issued certifications that would almost certainly have resulted in water quality standards being violated. A result which was only avoided after intervention of environmentally concerned organizations and the PCHB. It should be noted Ecology removed the senior staff in charge of both projects after he refused to issue what he called "indefensible" 401 certifications, yet another example of how the agency practices "discretion." The PCHB in their decisions in both of these major cases made it clear that they agreed with the replaced Ecology senior staff, that the 401 Certifications as issued by Ecology were in fact indefensible.

The Model Toxics Control Act Science Advisory Board had very serious doubts about allowing the use of the SPLP method in MTCA. The SAB only agreed to its use for a very limited number of metals after more than a year of research, review, and the addition of limits of the methods use. This included placing the use of the method in specific regulatory construction to provide a protective framework for its use. Not only does the bill not do this, but (as should be obvious) a much higher standard needs to apply to 401 Certification determinations than what applies to contaminated site determinations. In one case you are after the fact trying to limit the harm from a contaminated site, in the other you are trying proactively to assure that such harm never occurs, hence the application of the anti-degradation principle as cited in the solid waste rule above.

Ecology management also noted in internal emails that it is currently unknown how to apply statistical tests to the use of SPLP as a fill screening tool for water quality certification purposes. In other words how many samples do you take per unit of fill and what statistical analysis is applied to establish to a degree of reasonable assurance (the 401 required standard) that water quality standards will not be violated is unknown!

This is a significant issue even if you assume that all SPLP screened fill sources are homogenous. That is that the sample particle size(s), organic content, chemical content, buffering potential and other critical characteristics are uniform throughout the fill, numerous samples would still be necessary for this purpose. The reason that this is critical is that even for the very few metals the SAB approved the use of the SPLP method for can, with changes in the above variables, result in significant variance in analytical results. According to Dr. Bruce Woods at EPA just one of these variables, differing particle size(s), can introduce an error factor of 45% before the sample even gets to the lab. An additional significant problem is that the SPLP method is only designed to provide average leachate concentrations, not peak concentrations. In other words to take a test that predicts average concentrations and use it to predict to a degree of reasonable assurance (the legal standard a 401 certification is required to meet) surface water quality standards will be protected you would have to compare the test results to something stricter than the groundwater or surface water standards. That is because the 401 certification would have to be protective of the peak concentrations of leachate from fill, not an average which would in fact allow the standards to be violated. Bottom line is the bill allows (and retroactively OKs) the use of the SPLP method even though Ecology admits that there is no scientifically established protocol and statistical analytical methods for using the SPLP method in this technical and legal context!

Science aside, there is only one reason that the Port of Seattle wants this bill pushed through. So they can use the SPLP method to get away with dumping fill at the airport with higher concentrations of contaminants than what is present in the existing natural soils. There is also a single significant reason Ecology management is backing the bill over staff objections. In situations like Battle Mountain Gold and SeaTac Airport it is one more tool to get them to yes when the answer should clearly be no. If this were not the case, given Ecology's adoption of the use of the SPLP method in an existing 401 Certification and their backing of using it in other 401 Certifications they would already have the required peer reviewed and approved statistical analytical methods in place that address the concerns in the previous paragraph. Instead, they have yet to even consider them. This is clear evidence of what in fact happened. That is the Port and Ecology used the SPLP method in this context because it got them the result they wanted. There was never any consideration of the scientific validity of the use of this method or how to apply the method in a valid way. In fact Ecology's position on this issue is so weak that they did not even provide any expert testimony in the SeaTac 401 Certification appeal to the PCHB, but instead relied on the Port's experts to support the Ecology brief. It is also a matter of record as to how the SPLP was inserted into the 401 certification after public comment had closed. It was the result of a contact from Port of Seattle counsel to Ecology counsel with no technical staff review, no public comment, and no consideration of how the new addition would meet the primary requirement. That is that to a degree of reasonable assurance the 401 certification and its conditions will not allow violation of water quality standards. Under these conditions opposing the bill is not only prudent, but necessary.

For the Legislature to adopt (retroactively) the TCLP/SPLP methods without the scientific validity of its use in the context of 401 certification decisions and peer reviewed procedures in place for how it will be applied is simply insupportable. It is insupportable based on science, it is insupportable based on policy, it is insupportable given the valid concerns of our states impacted communities and environmental organizations concerned about our Waters of the State

Patting Ecology on the back for the bad decision they made on clean fill in the SeaTac 401, acquiescing to their use of TCLP/SPLP when scientifically valid methods and procedures for this use are not only not in place but have not even been drafted yet and counting on Ecology's decision making skills to limit any bad effects of this ill thought out bill does not strike me as a well thought out or productive policy on the part of the Legislature.

In figuring out solutions to math problems it is well known that you must balance both sides of equation. What this bill proposes is that the result from a SPLP method analysis (x) must equal or be lower than the water quality standard. The only problem is that there are many uncertainties in the method. As previously noted by Ecology's top expert on the SPLP method the result is only an average short term (over three but under twenty years) leachate concentration not a peak concentration. Protecting water quality under federal law requires protecting against the peak concentration not a short term calculated average. In order to correct for this short coming in the SPLP method (if it is used as dictated in SSB 5787), the result has to be compared to a number correspondingly lower than the water quality standard. For each short coming or error factor in the method there must be a corresponding reduction in the value that the SPLP method result is compared against. Any other approach is not just bad science but does not work even from a simple math perspective.

According to the Port's expert analysis as provided to Ecology the only way that laboratories can meet the required limits of detection even absent the considerations in the previous paragraph is by using extra clean lab glass ware and extra pure (not stock lab grade) reagents (acids required in the SPLP method). Although not mentioned by the Port the same issue would apply to sample collection as well, extremely clean sample techniques would also be required, as specified in existing Environmental Protection Agency protocol. The problem is that this greatly increases the cost of sampling and analysis, a substantial concern when the volume of fill and number of samples required are considered.

There is a simple, cheap solution. Use the existing definition as already adopted into state law. Existing sampling data or limited new data can establish background for the existing site where fill is to be transported to. Once that is known simple, cheap and quick total recoverable metals tests are sufficient to demonstrate that existing conditions are not being exceeded. The receiving communities know they are being protected, project proponents have the certainty of knowing what standard they must meet and any potential challenge is limited as there can be little question as to the validity of the test method which have been used at thousands of sites in Washington State alone.

On the other hand you can pass this SSB 55787 which will increase uncertainty, increase administrative appeals and litigation. This will leave our communities in fear that they have been sold out and are in danger of being contaminated by those wanting to push through large projects and that their only option is to oppose and appeal such projects.

Greg Wingard