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New Changes to the Model Toxics Control Act: Addition of Model Remedies, new Brownfields Options, and new Funding Sources

Posted in Cleanup & Superfund, Rule Making, Uncategorized

Right at the end of the last legislative session, the State Legislature passed Substitute Senate Bill 5296, amending Washington’s Model Toxics Control Act, RCW Chapter 70.105D. These amendments are the first significant amendments to MTCA in a while, and hopefully will encourage redevelopment of brownfields in Washington State.

Here are what I’d consider the four major parts of these amendments:

1) Prospective Purchasers: For the first time in MTCA’s almost 25-year history, the statute now contains the term “prospective purchaser.” Prospective purchasers are parties that are knowingly buying contaminated property–and want certainty in the form of direction from regulators on the cleanup needed for the property. Other states have very robust prospective purchaser programs, and the net effect of those programs is to encourage brownfield redevelopment and cleanup in the context of real estate transactions. The amendments specifically allow prospective purchasers to enter into agreements with Ecology regarding site cleanup. It will likely take some time for Ecology to develop this program, but it is a significant step towards freeing up the logjams that are typical in brownfield transactions.

2) Brownfield Redevelopment: Related to brownfield redevelopment, SSB 5296 creates a new brownfield redevelopment trust find that is a new funding source for redevelopment of brownfield properties in redevelopment zones, defined as specific geographic areas that meet criteria defined in the amendments and where local governments are integrating cleanup with local land use planning. The amendments authorize cities, counties, or port districts to establish a “Brownfield Renewal Authority” (“BRA”) to oversee and implement cleanups in a redevelopment zone. A BRA will be considered a separate legal entity, governed by a board of directors, and having powers of local governments, including the ability to issue bonds.

3) Model Remedies: SSB 5296 directs Ecology to develop model remedies for routine cleanups through rulemaking. This rulemaking will take a few years, but is also an example of how the changes to MTCA should encourage remediation of brownfields because it will provide parties that are remediating routine sites more certainty on the scope and requirements of that remediation.

4) Funding Changes: Finally, the amendments establish a new account for MTCA funds. Some of that account is dedicated to the development of model remedies and other methods that will significantly reduce time to complete a remedial action. Other portions of that account are dedicated to stormwater management as well as grants to local governments for long-term cleanups.

Many of these changes appear at first blush to benefit local governments and municipalities. But, there is significant benefit to private parties in the form of increased certainty in brownfield remediation, and the new MTCA account potentially makes funds available to private parties, in addition to municipalities. The effectiveness of these amendments will depend on how these amendments are implemented. If local governments do indeed implement BRAs and take steps to implement brownfield redevelopment zones, we could see significant progress in the remediation of legacy sites in Washington. That implementation will require close coordination between municipalities and private parties. One prime candidate in my mind is the Duwamish River Superfund Site–with the Port of Seattle taking the lead to establish a BRA that is aimed at upland source control and cleanup of legacy sites along the river. We’ll see how things go over the next few years, but I’m optimistic that these amendments will translate to a more pragmatic and efficient approach to cleanup of brownfields in Washington.