October 22, 2019

Washington’s Voluntary Cleanup Program

Connie Sue Martin

In 1997, Washington’s Department of Ecology (Ecology) rolled out its Voluntary Cleanup Program, which allows individuals who conduct independent cleanups to request informal advice and assistance from Ecology and receive a written opinion on the sufficiency of completed cleanups under the Model Toxics Control Act (MTCA), RCW 70.105D et seq. and its implementing regulations, Chapter 173-340 WAC.

An NFA letter—an opinion from Ecology that “no further action” will be required at the site— often provides enough assurance for a lending institution to finance real property sales and development, or for potential buyers to enter into real estate transactions. Importantly, however, an NFA letter does not resolve environmental liability to the state, nor provide protection from contribution actions. Under MTCA, that can only be achieved through the entry of a consent decree in a court of competent jurisdiction. See RCW 70.105D.040(4)(a) through (f).

Instructions for applying for the Voluntary Cleanup Program (VCP) may be found here at Ecology’s VCP website. In a nutshell, to request a written opinion on a planned or completed independent remedial action the applicant must submit an Agency Determination Checklist (to demonstrate that a site qualifies for the VCP), a VCP Application Form, a signed VCP Agreement, a Request for Opinion Form, an Independent Remedial Action Plan or Report (which must include: (1) two complete hard copies of the plan or report and all lab reports, (2) an electronic copy (in .pdf format) of the plan or report, and (3) all data required by Ecology Policy 840 that have been submitted to Ecology’s Environmental Information Management (EIM) System database), and a Terrestrial Ecological Evaluation Form.

The applicant is required to pay all costs incurred by Ecology staff or attorneys providing the requested opinion. Hourly rates range from $100 to $200, obviously much less than rates charged in the private sector. Ecology sends an invoice each month that includes a summary of its costs, payments received, staff involved, and time spent. Payment is required within 30 days after the invoice date; late payments may result in the withholding of requested opinions, or the ceasing of work on the project.

Ecology encourages the use of model remedies. Sites using model remedies are accepted into the VCP and the cost of reviewing completed cleanups using such remedies is waived. Model remedies are standardized methods for cleaning up routine contamination at sites that pose lower risks to people and the environment. Information about model remedies Ecology has developed is available here at Ecology’s MTCA model remedies page.

Ecology’s VCP has been wildly popular in western Washington. More than 5,000 applications were submitted for VCP enrollment between 1997 and 2015. As of December 2015, 56 percent of the VCP cleanups were in the Northwest Region (which includes Seattle and King County, Washington’s most populous county), 35 percent were in the Southwest Region (which includes Pierce County, Washington’s second most populous county), 5 percent were in the Central Region, and 4 percent were in the Eastern Region.

Participation in the VCP is driven by redevelopment: The number of new VCP applications fluctuates with real estate demands, redevelopment needs, and construction season.

Unfortunately, the popularity of the program has also been its Achilles’ heel. At the same time as participation was increasing, Ecology staff numbers were down and the agency had a limited ability to rehire because of revenue constraints. As a result, VCP sites were not moving through the program, threatening development projects and real estate transactions.

Ecology tried to address the problem in several ways:

  • In June 2016 it required that plans and reports submitted to Ecology for review include information specified in checklists, or they would be returned without processing.
  • In August 2016 Ecology announced that new complex sites would not be eligible for the VCP, and complex sites already in the program would be handled on a case-by-case basis, with some participants with complex sites being encouraged to leave the VCP program and enter into the formal cleanup program.
  • In December 2016 Ecology instituted two different wait lists, one for existing VCP projects where no site manager is assigned, and a second for new VCP applications. It is not possible to “get in line” and reserve a slot on the wait list for when a project is ready for an opinion—Ecology will not accept applications if written opinions or technical assistance are not requested at the time of application.
  • Existing VCP participants with complex sites were urged to leave the program and proceed under a formal cleanup. Sites where there has been no action for an extended period of time were required to take action, submit a plan for action, or risk being kicked out of the program until a written opinion or technical assistance is requested.

In addition, legislation was adopted in late 2017 that allows a different state agency, the Pollution Liability Insurance Agency (PLIA), to issue NFA opinions for cleanup of simple petroleum sites. PLIA provides a government funding model to help owners and operators meet their financial responsibility and environmental cleanup requirements for underground tanks. Funding for the PLIA comes from reinsurance premiums, heating oil dealer fees, and fees for advice and technical assistance.

As of January 2018, PLIA’s Petroleum Technical Assistance Program (PTAP) is authorized to provide technical assistance and NFA opinion letters for voluntary cleanup of simple, low- and medium-risk sites where petroleum is the only contaminant. Fifty-two sites that had been formally enrolled in the VCP were transferred to PLIA for evaluation for NFA opinions.

Despite Ecology’s efforts, as of December 2018 there were still more than 800 contaminated sites enrolled in the VCP, and about 150 of those remained on waitlists. Environmental attorneys and consultants, real estate developers, and construction contractors most impacted by the VCP backlog asked Ecology why it could not simply employ a “pay-to-play” model that allows the expediting of VCP review by paying increased fees, as some municipalities do.

Ecology took a hard look at the issue, and with the support of the Associate General Contractors of Washington (AGC-WA) and NAIOP, the Commercial Real Estate Development Association, drafted legislation to allow Ecology to expedite review and opinions under the VCP, financed with fees and costs collected from individuals seeking such review––an unusual collaboration between the regulated community and the regulator.

The legislation passed both houses unanimously, and on April 24, 2019, the governor signed Substitute House Bill 1290 into law. By July 1, 2020, assuming funding is secured, Ecology will offer an expedited review process in the VCP and dedicate up to two Ecology employees to that process. Ecology will establish entry conditions and fee structures in interpretative guidance until permanent rules are adopted.

Those requesting expedited reviews must pay all of Ecology’s costs and provide cleanup schedules, and expedited review fees will be deposited into the new Voluntary Cleanup Account. After the first biennium, expedited review staff will be entirely fee-supported.

Expedited review will allow for cleanup of properties under the tight acquisition and construction timelines that are inherent in the real estate development industry. Ecology believes that it will also, over time, eliminate the backlog of projects awaiting review.

In addition, under either the expedited or the standard process, Ecology will waive its VCP review costs when affordable housing is built on the cleaned-up property (Ecology may require property use to be restricted when costs are waived.) The waiver is intended to encourage the development of more affordable housing in communities that have been impacted by contamination.

Connie Sue Martin

Connie Sue Martin is an environmental attorney in Schwabe Williamson & Wyatt’s Seattle, Washington, office and leads the firm’s Indian Law practice. She is ETAB’s Year-in-Review vice chair. As a member of the AGC-WA’s Environment Committee (which she now chairs), Martin worked to pass the recent legislation that allows for expedited review of cleanups in Washington’s VCP. She received her JD, summa cum laude, from Seattle University School of Law, an MA in psychology (human and animal cognition) from the University of Hawaii, and a BS in psychology from The Ohio State University.