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.