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Voluntary Cleanup Program

The Services

The Process:
For answers to frequently asked questions about how to an request opinion, click above.

Just the Forms:
To just download the form for requesting an opinion,  click above.

Just the Opinion Letters:
To view the letters Ecology uses to provide opinions, click above.

This page provides answers to frequently asked questions about the services you may request under the Voluntary Cleanup Program (VCP), including: 


Overview

What services can Ecology provide under the VCP?


Ecology can provide you with the following services under the VCP:

  1. Technical Assistance. Ecology can provide you with technical assistance before or during the investigation or cleanup of a hazardous waste site.  Such assistance may include, for example:

    • Identifying applicable requirements.
    • Applying the requirements at the site.
    • Identifying potential cleanup alternatives.

  2. Written Opinions. Ecology can provide you with written opinions on your proposed or completed cleanup.  Those opinions will generally address the following issues:

    • Does the cleanup meet the requirements of the law?
    • Is further cleanup necessary?

    Ecology can also provide you with separate written opinions on your pre-cleanup actions, such as your investigation of the site and your analysis of cleanup alternatives.

See RCW 70.105D.030(1)(i) and WAC 173-340-515(5).

What issues will Ecology not address under the VCP?


Ecology will not address the following issues under the VCP:

  1. Liability.  Ecology will not determine who is, or who is not, potentially liable to the state under MTCA.  Such determinations are usually made by Ecology when it supervises the cleanup under an order or decree.

  2. Allocation of Liability.  Ecology will not allocate financial responsibility among liable persons.

  3. Substantial Equivalence of Remedial Actions.  Ecology will not determine whether your independent remedial action is the substantial equivalent of an Ecology-conducted or Ecology-supervised remedial action. Such determinations are made by a court, not by Ecology. See RCW 70.105D.080.

  4. Heating oil sites.  Ecology will no longer accept heating oil sites into VCP. It was determined that the review of independent remedial actions at heating oil sites can be more efficiently conducted under the Pollution Liability Insurance Agency’s (PLIA’s) Heating Oil Technical Assistance Program (HOTAP).  For more information, please contact PLIA at pliamail@plia.wa.gov or 1-800-822-3905.

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Types of Opinions

On what types of remedial actions will Ecology provide opinions?


As illustrated below, Ecology will provide opinions on the following types of remedial actions:

  1. Pre-cleanup actions, including both remedial investigations of the Site and feasibility studies of cleanup action alternatives for the Site.

  2. Cleanup actions, including both Property cleanups (cleanup of one or more parcels of real property within a Site) and Site cleanups.

Ecology will always categorize your cleanup as either a Site cleanup or a Property cleanup.


Flowchart


Does Ecology provide opinions on proposed remedial actions?


YES.  Ecology provides opinions on proposed remedial actions, including:

  1. Remedial investigation work plans.

  2. Cleanup action plans for either Property cleanups or Site cleanups.

Does Ecology use boilerplate letters to provide opinions?


The answer to this question depends on the type of remedial action:

  1. Pre-cleanup actions. Ecology does not currently use boilerplate letters to provide opinions on pre-cleanups actions.

  2. Cleanup actions. Ecology does use boilerplate letters to provide opinions on cleanup actions. To view those letters, go to the following VCP web page: Just the Opinion Letters.

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Opinions on Property Cleanups

What is a Property cleanup?


The “Site” is defined by the nature and extent of contamination associated with one or more releases of hazardous substances.  The releases, and therefore the Site, may affect more than one parcel of real property.

A “Property cleanup” is a cleanup that addresses one or more, but not all, parcels of real property affected by the release or releases of hazardous substances at the Site. 

The “Property” is the parcel or parcels of real property affected by the Site and addressed by your cleanup.

For guidance on how to define the “Property” for the purposes of obtaining an opinion on your property-specific cleanup, see Chapter 3 of the Guidelines for Property Cleanups.

On what issue will Ecology provide an opinion?

    For Property cleanups, Ecology provides opinions on the following two issues:
     
  1. Is further remedial action under MTCA necessary at the Property to clean up contamination associated with the Site? This is the primary issue addressed by Ecology in the opinion letter.  Ecology’s opinion depends on whether your cleanup of the Property meets the substantive requirements of MTCA.

  2. Is further remedial action still necessary elsewhere at the Site? Ecology also provides an opinion on this issue because the Property constitutes only a portion of the Site.  Ecology’s opinion is based on whether the remaining portions of the Site have already been cleaned up.  Even if Ecology determines that no further action is necessary at the Property, further action may still be necessary elsewhere at the Site.

To provide an opinion, Ecology must determine whether the remedial action performed meets the substantive requirements of MTCA, Chapter 70.105D RCW, and its implementing regulations, Chapter 173-340 WAC.

What opinions will Ecology provide on that issue?

  1. No Further Action (NFA) opinion. Ecology will provide this opinion if no further remedial action under MTCA is necessary at the Property to clean up contamination associated with the Site.

  2. Further Action (FA) opinion. Ecology will provide this opinion if further remedial action under MTCA is necessary at the Property to clean up contamination associated with the Site.

    For example, Ecology will provide you with a Further Action opinion if you do not adequately address all the contamination associated with the Site on the Property or you only address:

    • Some of the hazardous substances on the Property.
    • Some of the affected media on the Property.
    • Some of the pathways of exposure.
    • Portions of the Property.

What does a Property NFA opinion mean?


A Property NFA opinion means:

  1. That the cleanup achieved Site cleanup standards within the Property.

  2. That unless the cleanup is permanent, post-cleanup remedial action may be necessary to maintain compliance with Site cleanup standards within the Property.  Those actions may include:

    • Compliance with institutional controls, as executed by an environmental covenant.
    • Operation and maintenance of engineered controls.
    • Monitoring to confirm compliance.

  3. That further remedial action is still necessary elsewhere at the Site to achieve Site cleanup standards.

  4. That the Site will remain listed on the Hazardous Sites List (if listed), and the Property will remain listed as part of the Site.

However, the opinion does not:

  1. Change the boundaries of the Site.  See RCW 70.105D.020.

  2. Change or settle liability with the state.  See RCW 70.105D.040.

  3. Provide protection from contribution claims.  See RCW 70.105D.040.

  4. Constitute a determination that the independent cleanup is the “substantial equivalent” of an Ecology-supervised cleanup.  See RCW 70.105D.080.

  5. Make local governments eligible to receive remedial action grants.  Local governments must clean up the entire Site, not just a Property located within the Site, to receive funding.  See WAC 173-322-080.

What actions are necessary to qualify for a Property NFA opinion?

 

To issue a Property NFA opinion, Ecology must determine that no further remedial action under MTCA is necessary at the Property to clean up the contamination associated with the Site.

For guidance what you need to do to clean up a Property located within a Site, see Chapter 4 of the Guidelines for Property Cleanups.

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Opinions on Site Cleanups

What is a Site cleanup?


The “Site” is defined by the nature and extent of contamination associated with one or more releases of hazardous substances.  The releases, and therefore the Site, may affect more than one parcel of real property.

A “Site cleanup” is a cleanup that addresses all of the parcels of real property affected by the release or releases of hazardous substances at the Site. 

On what issue will Ecology provide an opinion?


Ecology will provide an opinion on the following issue:

Is further remedial action under MTCA necessary to clean up contamination at the Site?

To provide an opinion, Ecology must determine whether the remedial action performed meets the substantive requirements of MTCA, Chapter 70.105D RCW, and its implementing regulations, Chapter 173-340 WAC.

What opinions will Ecology provide on that issue?


For a Site cleanup, Ecology will provide one of the following three opinions:

  1. Further Action (FA).

  2. Partial Sufficiency (PS).

  3. No Further Action (NFA).

What does a Site PS opinion mean?


A Site Partial Sufficiency (PS) opinion means:

  1. That the cleanup achieved one or more, but not all, Site cleanup standards.

  2. That unless the cleanup is permanent, that post-cleanup remedial actions may be necessary to maintain compliance with the standards achieved at the Site.  Those actions may include:

    • Compliance with institutional controls, as executed by an environmental covenant.
    • Operation and maintenance of engineered controls.
    • Monitoring to confirm compliance.

  3. That further remedial action is necessary to achieve all Site cleanup standards.

  4. That the Site will remain listed on the Hazardous Sites List (HSL), if listed.

However, the opinion does not:

  1. Change or settle liability with the state. See RCW 70.105D.040.
    Provide protection from contribution claims. See RCW 70.105D.040.

  2. Constitute a determination that the independent cleanup is the “substantial equivalent” of an Ecology-supervised cleanup. See RCW 70.105D.080.

  3. Make local governments eligible to receive remedial action grants. Local governments must clean up the entire Site, not just part of a Site, to receive funding. See WAC 173-322-080.

What does a Site NFA opinion mean?


A Site NFA opinion means:

  1. That the cleanup achieved all Site cleanup standards (for all substances in all media).

  2. That unless the cleanup is permanent, post-cleanup remedial actions may be necessary to maintain compliance with those standards.  Those actions may include:

    • Compliance with institutional controls, as executed by an environmental covenant.
    • Operation and maintenance of engineered controls.
    • Monitoring to confirm compliance.

  3. That Ecology will initiate the process for de-listing the Site from the Hazardous Sites List, if listed.

  4. That local governments are eligible to receive remedial action grants under Chapter 173-322 WAC.

However, the opinion does not:

  1. Settle liability with the state.  See RCW 70.105D.040.

  2. Provide protection from contribution claims.  See RCW 70.105D.040.

  3. Constitute a determination that the independent cleanup is the “substantial equivalent” of an Ecology-supervised cleanup.  See RCW 70.105D.080.

What actions are necessary to qualify for a Site NFA opinion?


To issue a Site NFA opinion, Ecology must determine that no further remedial action under MTCA is necessary to characterize and address the contamination at the Site.   

For guidance on determining what remedial action is necessary under MTCA to qualify for a Site NFA opinion, please refer to the following VCP web page: The Requirements.

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Limitations of Opinions

Do opinions apply to more than one site?


NO.  While a parcel of real property can be affected by more than one hazardous waste site, an opinion only applies to the site described in the opinion letter.  The opinion does not apply to any other site.

However, Ecology will usually notify you in the opinion whether the parcel or parcels of real property affected by the Site are known to be affected by other hazardous waste sites.

Do opinions resolve a person’s liability to the state or protect a liable person from third-party? contribution claims?


NO.  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 hazardous waste site.

Ecology’s opinions do 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 under RCW 70.105D.040(4).

Do opinions address the issue of whether the remedial action is the “substantial equivalent” of an Ecology-conducted or Ecology-supervised remedial action?


NO.  To recover remedial action costs from other liable persons under MTCA, one must demonstrate to the court that the action is the substantial equivalent of an Ecology-conducted or Ecology-supervised action.  See RCW 70.105D.080.

Ecology’s opinions do not address this issue.  Please be advised of the following: 

  1. First, the determination is made by the court, not by Ecology.  While Ecology has provided guidance in WAC 173-340-545, the court must make its own determination.

  2. Second, the fact that the remedial action meets the substantive requirements of MTCA does not necessarily mean that the remedial action is the substantial equivalent of an Ecology-conducted or Ecology-supervised remedial action.

  3. Third, Ecology site managers will not be able to testify as to whether the remedial action is the substantial equivalent of an Ecology-conducted or Ecology-supervised remedial action.  Site managers will only be able to testify as to their personal knowledge regarding the site and their determinations made under the VCP regarding whether the remedial action meets substantive requirements of MTCA.

May Ecology be held liable for any act or omission in providing opinions?


NO.  The state, Ecology, and its officers and employees are immune from all liability, and no cause of action of any nature may arise from any act or omission in providing opinions.  See RCW 70.105D.030(1)(i).

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De-listing of Sites

What is the “Hazardous Sites List (HSL)”?


The “Hazardous Sites List (HSL)” is the list of hazardous waste sites that Ecology has determined require further remedial action and ranked based on a site hazard assessment (SHA). 

What must Ecology determine before de-listing the Site?


Ecology must determine that no further remedial action under MTCA is necessary at the Site. 

Note: If Ecology only determines that no further action under MTCA is necessary at a Property located within the Site, then the Site will remain listed on the Hazardous Sites List and the Property will remain listed as part of the Site.

Will Ecology issue the NFA opinion before de-listing the Site?


YES.  Ecology will issue the NFA opinion before de-listing the Site. 

Do I need to request that the Site be de-listed?


NO.  You do not need to request that the Site be de-listed.  Ecology will initiate the process for de-listing the Site after issuing the NFA opinion.

Will Ecology charge me for the cost of de-listing the Site?


NO.  Ecology will not charge you for the cost of de-listing the Site under the VCP.

What must Ecology do to de-list the Site?


To de-list the Site, Ecology must provide the public with the following:

  1. Notice. Ecology must provide the public with notice as follows:

    • Publish notice in Site Register.
    • Publish notice in newspaper of largest circulation in the city or county that the Site is located.
    • Mail notice to persons who have requested such notice.
    • Mail notice to persons who reside within the potentially affected vicinity of the site, including all parcels located within the Site; all parcels contiguous to the Site; and any other area determined by Ecology to be directly affected by de-listing the Site.

    The notice will include a fact sheet explaining why Ecology is proposing to de-list the Site and what, if any, issues might be of continued concern to the public. 

  2. Opportunity to Comment. Ecology must provide the public an opportunity to comment on the proposal to de-list the Site.  The public comment period must be at least thirty (30) calendar days.

See WAC 173-340-330(10) and 173-340-600(4), (7)(h); Toxics Cleanup Program Policy 330B.

As part of the de-listing process, may the public review and comment on the NFA opinion?


YES.  As part of the de-listing process, the public may review and comment on the NFA opinion because the decision to de-list the Site is based on the NFA opinion.

May Ecology rescind the NFA opinion based on public comment?


YES.  Ecology may rescind the NFA opinion based on public comment received during the de-listing process for the Site.  More specifically, Ecology may rescind the opinion if it decides, based on the information provided by the public, that further remedial action is still necessary under MTCA at the Site.  See RCW 70.105D.030(1)(i) and WAC 173-340-515(3)(a) and (5).

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Periodic Review of Cleanups

When are periodic reviews of independent cleanups necessary?


Periodic reviews of independent cleanups are necessary if Ecology:

  • Issues an opinion on the sufficiency of the independent cleanup under the VCP, and
  • Requires institutional controls (environmental covenants) as a condition of the opinion.

Ecology may require institutional controls as a condition of the following types of opinions:

  • No Further Action (NFA) opinion for the Site.
  • Partial Sufficiency opinion for the Site.
  • No Further Action (NFA) opinion for a Property located within the Site.

Periodic reviews may also be necessary in other circumstances.

See RCW 70.105D.030(6) and WAC 173-340-420

How often must the reviews be conducted?


Periodic reviews of independent cleanups must be conducted at least once every five years after an environmental covenant is recorded.  See RCW 70.105D.030(6) and WAC 173-340-420. 

Who will conduct the reviews?


Ecology will conduct periodic reviews of independent cleanups.

Will Ecology charge me for the cost of conducting the reviews?


NO.  Ecology will not charge you for the cost of conducting the periodic reviews under the VCP.

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Rescinding of Opinions

May Ecology rescind opinions?


YES.  Opinions are advisory only and not binding on Ecology.  Ecology reserves all rights under MTCA, including the right to:

  • Require additional or different remedial actions at the Site should it determine such actions are necessary to protect human health and the environment.
  • Issue orders requiring such remedial actions.

Ecology also reserves all rights regarding the injury to, destruction of, or loss of natural resources resulting from the release or threatened release of hazardous substances at the Site.

See RCW 70.105D.030(1)(i) and WAC 173-340-515(3)(a) and (5).  

Why may Ecology rescind opinions?


Ecology may rescind an opinion if it determines that additional or different remedial action is necessary to protect human health and the environment.  Accordingly, Ecology may rescind an opinion if it determines:

  1. That the information upon which the opinion is based is materially false or misleading.

  2. That the opinion does not accurately reflect current site conditions and is therefore misleading or inaccurate. That determination may be based on new information or review of existing information.

    For example, Ecology may rescind an opinion if the opinion was based on a determination that ground water was not contaminated, and Ecology subsequently discovers, based on new information, that the ground water is contaminated. 

  3. That post-cleanup requirements have been violated.

    For example, Ecology may rescind an opinion if: 

    • The opinion is based on compliance with an Ecology-approved environmental covenant and that covenant is violated.
    • The opinion is based on compliance with an Ecology-approved long-term operation and maintenance plan for engineered controls, and that plan is violated.
    • The opinion is based on compliance with an Ecology-approved confirmational monitoring plan, and that plan is violated.
    •  
  4. That post-cleanup site conditions are not protective of human health and the environment. 

    For example, Ecology may rescind an opinion if it determines that a non-permanent cleanup is not protective of human health and the environment based on a periodic review of post-cleanup site conditions.  For example, as part of that review, Ecology may determine that engineered and institutional controls are not effective in limiting exposure to the contamination remaining at the site.

See RCW 70.105D.030(1)(i) and WAC 173-340-515(3)(a) and (5).

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This page last updated July 31, 2017