Current through Register Vol. 24-06, March 15, 2024
(1)
Purpose. The purpose of
independent remedial action grants is to provide funding to local governments
that investigate and clean up hazardous waste sites independently under the
voluntary cleanup program. The grants are intended to encourage and expedite
independent remedial action and to lessen the impact of the cost of such action
on ratepayers and taxpayers.
(2)
Types of grants. The department may provide the following types of
independent remedial action grants:
(a)
Post-cleanup reimbursement grant. Under this grant, the department
may reimburse the recipient after the department has issued a no further action
determination for the hazardous waste site or property under the voluntary
cleanup program.
(b)
Periodic
reimbursement grant. Under this grant, the department may reimburse the
recipient periodically during the investigation and the cleanup of a hazardous
waste site or property under the voluntary cleanup program.
(3)
Project
eligibility. For the purposes of these grants, a project consists of
independent remedial actions at a single hazardous waste site. A project may
extend over more than one biennium. To be eligible for a grant, the 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 or have an ownership interest in the
hazardous waste site;
(c) For
post-cleanup reimbursement grants, the applicant must have completed
independent remedial actions at the hazardous waste site or property and
received a no further action determination for the site or property under the
voluntary cleanup program;
(d) For
periodic reimbursement grants, the applicant must:
(i) Enroll the hazardous waste site in the
voluntary cleanup program before entering into a grant agreement for the
site;
(ii) Conduct independent
remedial actions at the hazardous waste site or property in accordance with
work plans authorized by the department under the voluntary cleanup program;
and
(iii) Have necessary access to
conduct independent remedial actions at the hazardous waste site or obtain such
access in accordance with a schedule in the grant agreement.
(4)
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
redevelopment 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.
(5)
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. To be
considered for inclusion in the department's budget for remedial action grants
and loans, project proposals 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. 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 (3)
of this section; and
(ii) Funding
priority under subsection (4) 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 (4) of this section;
(ii) Cost eligibility under subsections (6)
and (7) of this section;
(iii)
Allowable funding under subsections (8) and (9) 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.
(6)
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 independent 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;
(v) Operation and maintenance or monitoring
of a cleanup action component for up to one year after construction completion
of the component; and
(vi)
Development of independent remedial action plans or reports submitted to the
department for review under the voluntary cleanup program.
(b)
Ineligible costs. Ineligible
costs for an independent 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
voluntary cleanup program or the grant agreement;
(iii) Retroactive costs, except as provided
under subsection (7) of this section;
(iv) Cost of technical consultations provided
by the department under the voluntary cleanup program, including reviews of
reimbursement requests;
(v) Natural
resource damage assessment and restoration costs and liability for natural
resource damages under
chapter
70.105D RCW or the
federal cleanup law;
(vi) Site
development and mitigation costs not required as part of a remedial
action;
(vii) 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
(viii) In-kind contributions.
(7)
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 within five years before
the date of the completed grant application; and
(b) Costs incurred during the period of a
prior grant agreement that have not been reimbursed by the
department.
(8)
Limit on eligible costs for a project. The eligible costs for a
project may not exceed six hundred thousand dollars.
(9)
Funding of eligible costs.
(a)
Department share. Except as
otherwise provided in this subsection, the department may only fund up to fifty
percent of the eligible costs.
(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 a total of ninety percent of the eligible costs if
the director or designee determines the additional funding would:
(A) Prevent or mitigate unfair economic
hardship imposed by the 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.
(10)
Reimbursement of eligible
costs.
(a)
Post-cleanup
reimbursement grants. For post-cleanup reimbursement grants, the
department may reimburse the recipient for eligible costs only after the
department has issued a no further action determination for the hazardous waste
site or property under the voluntary cleanup program.
(b)
Periodic reimbursement
grants. For periodic reimbursement grants, the department may reimburse
the recipient for eligible costs in accordance with the following terms and
conditions.
(i)
Remedial action work
plans. The recipient must submit independent remedial action work plans
to the department for review and authorization under the voluntary cleanup
program.
(ii)
Periodic
reimbursement of remedial actions. The department may reimburse the
recipient no more frequently than quarterly for the following:
(A) The development of independent remedial
action work plans and reports;
(B)
Independent remedial actions performed in accordance with a work plan
authorized by the department in writing; and
(C) Any other independent remedial actions
authorized by the department in writing.
(iii)
Performance guarantee for
periodic reimbursement. The department may withhold twenty percent of
each periodic reimbursement payment as security for the recipient's completion
of remedial actions at the hazardous waste site or property. Any funds withheld
by the department may be paid to the recipient when the department issues a no
further action determination for the hazardous waste site or
property.
(iv)
Post-cleanup
reimbursement of retroactive costs. The department may reimburse the
recipient for the retroactive costs specified in subsection (7)(a) of this
section, but only after the department has issued a no further action
determination for the hazardous waste site or property.
(11)
Administration of
multiple grants. The department may provide independent remedial action
grants to a local government for more than one project under a single grant
agreement.