WA Updates

February 28, 2019

Proposed Legislation:  Changes to MTCA’s Voluntary Cleanup Program

For years, Washington’s program for independent site cleanups has been working through a backlog of contaminated sites, particularly in areas of the state where redevelopment interest is high. This year, with HB 1290 in the House, and its companion bill, SB 5285 in the Senate, the Washington legislature is proposing a few tweaks to the Department of Ecology’s Voluntary Cleanup Program (VCP). Similar to the considerations motivating the 2017 law giving authority to the Pollution Liability Insurance Agency to oversee cleanup and provide opinion letters for qualifying petroleum-contaminated sites, the proposed tweaks to the VCP are intended to provide additional administrative options for faster cleanups. The legislation contains several other policy goals, including increased access to affordable housing through brownfield redevelopment. The legislation was sought by Ecology.

The proposed legislation is largely a re-packaging of existing authority. However, new components include:

  • An “expedited process” for Ecology review of submissions in the VCP, including NFA letter requests.
  • Clarification of Ecology’s ability to recover costs for administering the VCP, including the “expedited process” alternative.
  • A voluntary cleanup account for handling funds collected under the “expedited process” program.
  • Criteria for when Ecology may waive VCP fees, including, for example, when a “model remedy” is properly deployed at the site, when the site is “used for affordable housing,” and based on the applicant’s “ability to pay.”
  • Measures, including property liens, which would prevent “windfalls” if Ecology waives costs.

The bills’ sponsors have indicated that they would like to see Ecology implement the new program expeditiously. The bills would authorize Ecology to “implement the cost waiver and expedited process … through interpretive guidance pending adoption of rules.” If the bills become law, it could provide an attractive option for entities stalled in or contemplating the VCP and may promote the cleanup of properties that otherwise would remain underutilized. – Author: Gus Winkes

February 25, 2019

Ecology Updates Permits Regulating Atlantic Salmon Farming until Ban Takes Effect in 2022

Last year, the Washington Legislature passed a bill that phased out Atlantic salmon net-pen farming in Washington’s marine waters by 2022. This follows the failure of a commercial net pen in Washington waters where an estimated 243,000 to 263,000 Atlantic salmon escaped. Until then, fish farmers are required to have water quality permits to operate the farms. The Washington State Department of Ecology (“Ecology”) recently updated the draft water quality permits required for fish farming. As part of the update, Ecology added new requirements farmers must follow, such as, increasing underwater video monitoring of net pens; conducting inspections to assess structural integrity of the net pens; submitting inspection reports certified by a qualified marine engineer to Ecology; improving net cleaning and maintenance procedures to prevent biofouling and fish escape; requiring the permittee to develop site-specific response plans in the event of a fish release, and to conduct and participate in preparedness training; requiring improved maintenance of the net pens; and maintaining contact information to notify area tribes in the event of a fish release.

Public comment closes on February 25, 2019. Ecology’s public notice can be found here, and fish numbers can be found here. – Author: Kirstin Gruver

February 20, 2019

Port of Ridgefield Sues Railroad, Takes Nothing Under MTCA

Earlier this month, a federal district court issued a decision allocating cleanup costs at a contaminated site in Clark County, Washington. The opinion illustrates several challenges with fairly apportioning response costs and also demonstrates important strategic maneuvering that often occurs among responsible parties, regulatory agencies, and public officials at complex sites.

For an overview of the decision in Port of Ridgefield v. Union Pac. Railroad Co., No. cv-14-6024-RBL (W.D. Wash. Feb. 7, 2019), see the full news alert here. – Authors: Tracy Williams, Gus Winkes

February 14, 2019

EPA Halts Washington State Plan to Regulate Temperatures at Federal Dams

The U.S. Environmental Protection Agency (EPA) pulled back permits for federal dams on the Snake and Columbia Rivers that were under review by the Washington State Department of Ecology (Ecology). Ecology hoped to use their review as a chance to enforce temperature regulations on the dams. These regulations were intended to cool water temperatures linked to killing salmon in the rivers by requiring federal dams to regulate the temperature of water in dams and ensure they do not exceed the state temperature limit of sixty-eight degrees. 

The EPA, however, announced that it was pulling the draft permits under Ecology review, effectively stopping the state’s attempt at enforcing temperature requirements under Washington water quality standards. Ecology still hopes to require temperature regulations at dams, and asked the EPA to explain its decision. The EPA’s Region 10 spokesperson stated that the draft permits needed further internal review, and that Ecology’s permit review will be reinitiated after EPA completes its internal review. 

For more information, see the February 6 update below. – Author: Lucy Infeld

February 6, 2019

New Temperature Regulations Proposed for Federal Dams in Columbia and Snake Rivers 

According to a report published by the U.S. EPA, temperatures in portions of the Columbia and Snake rivers have increased by almost thirty-five degrees Fahrenheit since 1960. The EPA believes that climate change and dams are responsible for the change in temperature, which can become so high in the summer months that they kill migrating salmon. Currently, Washington State has an uppermost temperature limit of sixty-eight degrees in state water. However, federal dams have not had to comply with this state-based requirement. 

The threat of rising water temperatures to salmon and Orcas throughout the Northwest, as well as several lawsuits by non-profits and citizen groups, have pushed the Washington State Department of Ecology (Ecology) to take a more active role in the regulation of dams and requirements for water temperature. On January 30, 2019, in response to EPA’s report, Ecology initiated a public comment period on proposed temperature regulations for federal dams. 

While Ecology believes that this new regulation would benefit salmon, it does not provide clear guidance or specifics on how dam operators would comply with the new temperature requirements. Additionally, climate change causes a greater problem for dam operators who are already working to moderate temperatures. Experts at NOAA and within the industry question how much more can be done in the face of climate change. 

Public comment closes on February 19, 2019. Ecology’s public notice can be found here. – Author: Lucy Infeld

January 29, 2019

Washington Adopts Rules to Implement California’s Auto Emissions Standards 

The Washington State Department of Ecology has updated its rules to match revisions to California’s motor vehicle emission standards for greenhouse gases (GHGs) approved by the California Air Resources Board (CARB) on September 28, 2018. These changes include: (1) clarifying that automobile makers who want to sell cars and light-duty trucks in California (and by extension in Washington) for model years 2021 through 2025 would need to meet the existing standards agreed to by California, the federal government, and automakers in 2012; and (2) updated requirements for onboard diagnostic systems to match CARB’s 2015 rulemaking in Section 1968.2 and Section 1968.5. Ecology’s Rulemaking web page is available here. – Author: David Weber