October 30, 2020

Volume X, Number 304

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Washington Launches Expedited Voluntary Cleanup Program

 Washington's Department of Ecology (Ecology) is now accepting applications for its new Expedited Voluntary Cleanup Program (VCP) under the Model Toxics Control Act. For the right site, the highly anticipated expedited VCP offers responsible parties and developers the promise of faster and more predictable cleanups. The program offers an attractive option for parties with funding and a commitment to moving a cleanup along without cutting corners. However, not all sites will be eligible for the expedited VCP, and the procedural rigor of the program may lead some parties to seek other cleanup pathways.  

The expedited VCP is the product of 2019 legislation intended to address backlogs for cleanup sites in the “standard” VCP. Parties in the VCP may receive technical assistance and a no further action (NFA) determination at the end of the site cleanup process. For the time being, the expedited VCP will be managed through just-released interpretive guidance. Ecology expects to initiate related rulemaking in 2021.

The guidance includes a host of requirements and expectations that parties considering the expedited VCP option should review closely. Parties unprepared to meet these standards may find their sites terminated from the program. Given the narrow eligibility criteria and rigid guidelines for the expedited VCP, Ecology also recommends that interested parties complete a free, one-hour consultation with Ecology staff before submitting an application for the new program. 

Several important aspects of the expedited VCP are highlighted below. 

Threshold Eligibility Requirements

To qualify for the expedited VCP, an applicant must (1) have a current ownership interest in the contaminated property; (2) operate the facility being cleaned up; or (3) have a contractual right to purchase, redevelop, or reuse the property. 

Ecology may also reject applications to the program for “general” or “site-specific” reasons, including, for example:

  • The project qualifies for the Pollution Liability Insurance Agency’s technical assistance program;

  • The project overlaps with cleanup projects conducted or supervised by Ecology;

  • The applicant has a record of not meeting expectations for site cleanups, including outstanding or late payments for agency charges; or

  • The site involves a “significant or immediate threat” to public health and the environment; comingled contaminants and potential for off-property migration; contaminated sediments; or “significant public interest,” all of which may indicate that the site is appropriate for an Ecology-supervised cleanup.

Application Components

Unlike the standard VCP, applicants to the expedited VCP must submit a Remedial Investigation (RI) or equivalent report that complies with Ecology’s Remedial Investigation Checklist. Having an RI report in hand will allow Ecology to evaluate site-specific eligibility issues and to move the site efficiently through the rest of the cleanup process, including selection of cleanup standards and evaluation of cleanup alternatives.

Among other requirements, applicants must also submit environmental data to Ecology’s electronic information management system, provide documentation of any previous remedial or interim actions taken at the site, and provide a project schedule.

Cost Considerations

When it comes to costs, the expedited VCP has a few unique features and is likely to be more expensive than the standard VCP. Under the standard process, parties pay only a portion of Ecology’s costs. For the expedited VCP, parties will bear the full cost of the process. Ecology charges “an increased hourly rate” for the expedited VCP process, which Ecology will review annually.

Performance Expectations

Two expected benefits of the expedited VCP are relatively quick turnaround times for Ecology opinions on cleanup submittals and the availability of Ecology staff to issue those opinions. With some exceptions, Ecology is aiming for 90-day review times for the initial RI report and subsequent opinion requests.[1] Ecology has also committed to “providing clear, timely, concise, and consistent communications regarding scheduling, responses to questions, and target dates for opinion letters.”

In return, parties in the expedited VCP should be prepared to provide Ecology with quarterly progress reports to document cleanup status, to produce timely, complete, and high-quality technical reports, and to keep electronic data submissions up to date. In addition, transparency, regular and responsive communications, and “flexibility during the cleanup process, such as interim deliverables,” are also essential for keeping cleanups moving ahead.

The message in the guidance is that Ecology will take these commitments seriously. If a party in the expedited VCP does not meet expectations, Ecology may terminate their participation in the program.

Sites may exit the expedited VCP for other reasons too, and parties are free to withdraw from the program at any time. Ecology may also move sites into an Ecology-supervised pathway pending receipt of new information.

Conclusion

The expedited VCP represents a potentially powerful tool for moving eligible sites efficiently toward an NFA determination and facilitating the redevelopment of contaminated sites. While the degree of cleanup required remains the same, the process improvements of the new program may encourage committed parties to kick start cleanups that have stalled. Finally, as the economic situation is adversely impacting public budget projections, the self-funding program may also help keep cleanups on track during the downturn.

[1] The exceptions include cleanup actions with institutional controls, which have special procedural requirements, and requests to remove a site from the Hazardous Sites List, which involves public notice. 

© 2020 Beveridge & Diamond PC National Law Review, Volume X, Number 196
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About this Author

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
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
William J. Enoch Environmental Litigation Attorney Beveridge & Diamond Seattle, WA
Associate

William J. Enoch combines his life-long interest in environmental issues with his dedication to helping others.

His practice focuses on cases involving the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Model Toxics Control Act (MTCA), Washington’s state law-equivalent to CERCLA.

Will clerked in the Washington State Court of Appeals prior to joining Beveridge & Diamond. At the court, Will wrote prehearing memoranda across a variety of legal topics, including complex issues involving civil procedure and environmental law.

...

206-620-3032
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