Current through Register Vol. 24-06, March 15, 2024
(1)
Purpose. The purpose of
oversight remedial action grants is to provide funding to local governments
that investigate and clean up hazardous waste sites under an order or decree.
The grants are intended to encourage and expedite remedial action and to lessen
the impact of the cost of such action on ratepayers and taxpayers.
(2)
Project eligibility. For the
purposes of this grant, a project consists of remedial actions conducted under
one or more orders or decrees at a single hazardous waste site. A project may
extend over more than one biennium. To be eligible for a grant, a project must
meet all of the following requirements:
(a)
The applicant must be a local government;
(b) The applicant must be a potentially
liable person, potentially responsible party, or prospective purchaser at the
hazardous waste site;
(c) The
project must meet one of the following criteria:
(i) The applicant is required to conduct
remedial actions at the hazardous waste site under an order or decree;
or
(ii) A person other than the
applicant is required to conduct remedial actions at the hazardous waste site
under an order or decree and the applicant has:
(A) Signed the order or decree; and
(B) Entered into a written agreement with the
other person to reimburse the person for a portion of the remedial action costs
incurred under the order or decree;
(d) If the order or decree is issued under
the federal cleanup law, it must be signed or acknowledged in writing by the
department as a sufficient basis for funding under this chapter; and
(e) The project must be included in the
department's ten-year financing plan required under
RCW
70.105D.030(5).
(3)
Funding priority.
The department will prioritize eligible projects for funding or limit funding
for eligible projects based on the priorities in WAC
173-322A-210 and the following
factors:
(a) The threat posed by the hazardous
waste site to human health and the environment;
(b) Whether the applicant is a prospective
purchaser of a brownfield property within a redevelopment opportunity
zone;
(c) The land reuse potential
of the hazardous waste site;
(d)
Whether the hazardous waste site is located within a highly impacted
community;
(e) The readiness of the
applicant to start and complete the work to be funded by the grant and the
performance of the applicant under prior grant agreements;
(f) The ability of the grant to expedite the
cleanup of the hazardous waste site;
(g) The ability of the grant to leverage
other public or private funding for the cleanup and reuse of the hazardous
waste site;
(h) The distribution of
grants throughout the state and to various types and sizes of local
governments; and
(i) Other factors
as determined and published by the department.
(4)
Application process.
(a)
Project solicitation.
Biennially, the department will solicit project proposals from local
governments to develop its budget and update its ten-year financing plan for
remedial action grants and loans. The department may update its ten-year
financing plan as needed during the biennium. Project proposals must be
submitted on forms provided by the department and include sufficient
information to make the determinations in (c) of this subsection. For
multibiennial projects, proposals must be updated biennially. To be considered
for inclusion in the department's budget for remedial action grants and loans,
project proposals and updates should be submitted by the dates published by the
department.
(b)
Application
submittal. Applications must be submitted on forms provided by the
department and include sufficient information to make the determinations in (c)
and (d) of this subsection. For multibiennial projects, an application must be
submitted before each biennium for which additional funds are requested.
Completed applications should be submitted by the dates published by the
department.
(c)
Project
evaluation and ranking. Project proposals and applications will be
reviewed by the department for completeness and evaluated to determine:
(i) Project eligibility under subsection (2)
of this section; and
(ii) Funding
priority under subsection (3) of this section.
(d)
Agreement development. The
department will make funding decisions only after funds have been appropriated.
After deciding to fund an eligible project, the department will negotiate with
the applicant the scope of work and budget for the grant and develop the
agreement. The department will consider:
(i)
Funding priority under subsection (3) of this section;
(ii) Cost eligibility under subsections (5)
and (6) of this section;
(iii)
Allowable funding under subsections (7) and (8) of this section; and
(iv) Availability of state funds and other
funding sources.
(e)
Fund management. The department may adjust funding levels or fund
additional eligible projects during a biennium if additional funds should
become available.
(5)
Cost eligibility. To be eligible for funding, a project cost must
be eligible under this subsection and the terms of the grant agreement and be
approved by the department.
(a)
Eligible
costs. Eligible costs for an oversight remedial action grant include,
but are not limited to, reasonable costs for the following:
(i) Emergency or interim actions;
(ii) Remedial investigations;
(iii) Feasibility studies and selection of
the remedy;
(iv) Engineering design
and construction of the selected remedy; and
(v) Operation and maintenance or monitoring
of a cleanup action component for up to one year after construction completion
of the component.
(b)
Ineligible costs. Ineligible costs for an oversight remedial
action grant include, but are not limited to, the following:
(i) The cost of developing the grant
application or negotiating the grant agreement;
(ii) The cost of dispute resolution under the
order or decree or the grant agreement;
(iii) The costs incurred under an order or
decree by a potentially liable person, potentially responsible party, or
prospective purchaser other than the recipient, except as provided under
subsection (2)(c)(iii) of this section;
(iv) Retroactive costs, except as provided
under subsection (6) of this section;
(v) The remedial action costs of the
department or the U.S. Environmental Protection Agency reasonably attributable
to the administration of an order or decree for remedial action at the
hazardous waste site, including reviews of reimbursement requests;
(vi) Natural resource damage assessment and
restoration costs and liability for natural resource damages under
chapter
70.105D RCW or the
federal cleanup law;
(vii) Site
development and mitigation costs not required as part of a remedial
action;
(viii) Legal costs
including, but not limited to, the cost of seeking client advice, pursuing cost
recovery, contribution, or insurance claims, participating in administrative
hearings, pursuing penalties or civil or criminal actions against persons,
penalties incurred by the recipient, defending actions taken against the
recipient, and any attorney fees incurred by the recipient; and
(ix) In-kind contributions.
(6)
Retroactive
cost eligibility. The following retroactive costs are eligible for
reimbursement if they are also eligible under subsection (5) of this section:
(a) Costs incurred under the order or decree
between the effective date of the order or decree and the agreement signature
date;
(b) Costs incurred under the
order or decree during the period of a prior grant agreement that have not been
reimbursed by the department;
(c)
Costs incurred negotiating the order or decree, provided that the costs are not
legal costs and were incurred within:
(i)
Sixty days after starting negotiations for an order; or
(ii) One hundred twenty days after starting
negotiations for a decree; and
(d) Costs incurred before the effective date
of the order or decree conducting independent remedial actions, provided that:
(i) The actions are:
(A) Conducted within five years before the
start of negotiations for the order or decree;
(B) Consistent with the remedial actions
required under the order or decree;
(C) Compliant with the substantive
requirements of chapter 173-340 WAC; and
(D) Incorporated as part of the order or
decree; and
(ii) Costs
incurred before the start of negotiations for the order or decree do not exceed
six hundred thousand dollars.
(7)
Funding of eligible costs.
(a)
Department share. The
department may fund up to fifty percent of the eligible costs. Except for
extended grant agreements, the department may fund a higher percentage of the
eligible costs as follows.
(i) The department
may fund up to an additional twenty-five percent of the eligible costs if the
applicant is:
(A) An economically
disadvantaged county, city, or town; or
(B) A special purpose district with a
hazardous waste site located within an economically disadvantaged county, city,
or town.
(ii) The
department may fund up to an additional fifteen percent of the eligible costs
if the applicant uses innovative technology.
(iii) The department may fund up to a total
of ninety percent of the eligible costs if the eligible costs for the project
are less than five million dollars and the director or designee determines the
additional funding would:
(A) Prevent or
mitigate unfair economic hardship imposed by cleanup liability;
(B) Create new substantial economic
development, public recreational opportunities, or habitat restoration
opportunities that would not otherwise occur; or
(C) Create an opportunity for acquisition and
redevelopment of brownfield property under
RCW
70.105D.040(5) that would
not otherwise occur.
(b)
Recipient share. The
recipient shall fund the percentage of the eligible costs not funded by the
department under (a) of this subsection. The recipient may not use in-kind
contributions to meet this requirement.
(8)
Cash management of grants.
(a) The department may not allocate more
funds for a project each biennium than are estimated to be necessary to
complete the scope of work for that biennium. The biennial scope of work must
be approved by the department.
(b)
The department may not allocate more funds for a project unless the local
government has demonstrated to the department that funds awarded during the
previous biennium have been substantially expended or contracts have been
entered into to substantially expend the funds.
(9)
Administration of multiple
grants. Except for extended grant agreements, the department may provide
oversight remedial action grants to a local government for more than one
project under a single grant agreement.
(10)
Extended grant agreements.
(a)
Project eligibility. The
department may provide an oversight remedial action grant to a local government
for a hazardous waste site under an extended grant agreement if, in addition to
meeting the eligibility requirements in subsection (2) of this section, the
project extends over multiple biennia and the eligible costs for the project
exceed twenty million dollars.
(b)
Agreement duration. The initial duration of an extended grant
agreement may not exceed ten years. The department may extend the duration of
the agreement upon finding substantial progress has been made on remedial
actions at the site.
(c)
Department share. Under an extended grant agreement, the
department may not fund more than fifty percent of the eligible
costs.