In the State of Washington, the owner of contaminated property has the option to perform a cleanup independently and request technical assistance and opinions from Washington’s Department of Ecology (“Ecology”) regarding the sufficiency of the cleanup. This process is called the Voluntary Cleanup Program (“VCP”). As will be discussed below, it is important to note that the VCP does not settle a property owner’s liability with the State of Washington or provide protection from third party contribution claims.
A property is eligible for the VCP unless Ecology: (a) is supervising the cleanup of the property under an existing order or decree, (b) is negotiating an order or decree for the cleanup of the property, or (c) determines that the property is too complex to be managed under the VCP, which is designed for simpler sites and more routine cleanups.
When determining the complexity of a cleanup, Ecology considers several factors, such as whether the property involves:
- Significant or immediate threats to human health or the environment.
- Multiple releases that have commingled.
- Media other than soil or groundwater.
- Multiple parcels of real property.
- Unreasonable restoration timeframes.
- Significant public interests.
According to Ecology, the following types of sites are typically too complex to be managed under the VCP: landfill sites, sediment sites, and sites involving area-wide groundwater contamination.
Assuming a property meets the eligibility requirements for the VCP, the property owner should weigh the potential benefits and limitations of the VCP before applying to Ecology:
- Control and flexibility: Unlike cleanups conducted under Ecology’s supervision, the property owner controls (i) the scope of the cleanup (this may be important if the property owner intends to clean up only a portion of the property); (ii) the schedule of your cleanup (this may be important if the property owner intends to sell or redevelop the contaminated property); and (iii) the nature and extent of Ecology’s involvement, and therefore the property owner’s costs (for example, the owner can determine whether to request opinions throughout the cleanup process or only when the cleanup has been completed).
- Opinion on cleanup: Unlike cleanups conducted strictly independently, the property owner can obtain opinions from Ecology regarding the sufficiency of the cleanup. Such opinions may facilitate various property transactions. For example, the opinions may help the property owner sell or redevelop its property or obtain loans where the property is used as collateral. The benefit of such opinions is derived from Ecology’s role as:
- Regulatory agency: As the agency charged with enforcing the state cleanup law, Ecology can provide an opinion that is authoritative and meaningful.
For example, a lending institution may ask that you obtain a No Further Action (NFA) opinion from Ecology before providing you a loan where the contaminated property is used as collateral.
- Neutral third party: As the agency charged with protecting human health and the environment, Ecology can provide an opinion that is objective and impartial.
For example, both a buyer and seller can agree to defer to Ecology’s opinion on whether further action is necessary at the hazardous waste site.
The VCP does have certain limitations:
- Opinion does not settle liability with the state: Liable persons are strictly liable, jointly and severally, for all remedial action costs and for all natural resource damages resulting from the release or releases of hazardous substances at the site. An opinion from Ecology does not:
- Change the boundaries of the site.
- Resolve or alter a person’s liability to the state.
- Protect liable persons from contribution claims by third parties.
To settle liability with the state and obtain protection from contribution claims, a person must enter into a consent decree with Ecology.
- Opinion does not determine substantial equivalence: An opinion does not determine whether the independent remedial action performed at the site is the substantial equivalent of an Ecology-conducted or Ecology-supervised remedial action. Such determinations are made by a court.
Determining whether to apply for the VCP is an important decision, and Ecology encourages property owners to request a free consultation with Ecology before formally applying to the program.
If you have questions regarding the Voluntary Cleanup Program or environmental law or compliance matters in general, please contact Josh Pope or one of the attorneys in MPBA’s Environmental Law Department.