ACEC of Washington recently had the opportunity to comment on very concerning proposed changes to the Department of Ecology’s solid waste rules. ACEC comments are available below. These proposed changes are directed to wastes that contain contaminants in concentrations below what is currently regulated as hazardous waste and all the way down to naturally occurring background levels.  The proposed rule also changes from a risk based standard to an “anti-degradation” standard which is highly limiting as to where soils can be deposited. 

Collectively, it is ACEC’s position that these changes will be ambiguous, highly litigious, largely unnecessary, unduly impact development, and, most importantly, create a legal risk for professional engineers that necessitate large increases in project costs.  These costs would result from significant “preventative testing” that would become a legal necessity to make sure sites (both the donor site and the done site) are fully characterized with regards to even exceedingly low concentrations of potential contaminants.  This is because professional engineers will have no alternative to protect against any breach of their duty of care. 

The expected cost for testing of a single sample for all regulated contaminants at the proposed low levels is approximately $3,000 per sample.  Moreover, it is also clear that multiple samples would need to be taken at each site to accurately and sufficiently characterize a site’s contamination profile.

The full proposed Department of Ecology rule changes can be viewed here.

In conjunction with numerous other interested parties, ACEC provided its comments to the Department in early February. ACEC’s comments were directed at the Department’s statutory authority to enter into rulemaking.