2E2SSB 5296

This analysis was prepared by non-partisan legislative staff for the use of legislative members in their deliberations. This analysis is not a part of the legislation nor does it constitute a statement of legislative intent.

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Synopsis as Enacted

Brief Description: Concerning the model toxics control act.

Sponsors: Senate Committee on Ways & Means (originally sponsored by Senators Ericksen, Baumgartner, Rivers, Bailey, Delvin and Honeyford).

Senate Committee on Energy, Environment & Telecommunications

Senate Committee on Ways & Means

House Committee on Environment

Background: The state Model Toxics Control Act (MTCA) is carried out by the Department of Ecology (DOE) to ensure that the vast majority of sites at which hazardous substances were released are cleaned up. MTCA is funded by a 0.7 percent tax on the wholesale value of hazardous substances, cost recovery from remedial actions, mixed waste fees, and to a lesser extent fines, penalties, and other charges. The State Toxic Control Account (SCTA) receives 47 percent of the revenue obtained from the hazardous substance tax (HST), while the Local Toxic Control Account (LTCA) receives 53 percent.

DOE is responsible to investigate, conduct remedial actions, enforce actions to protect human health, and provide technical and administrative assistance. DOE must prioritize funding to clean up hazardous waste sites and prevent future hazardous waste sites. Hazardous waste sites are ranked by considering the amount and type of contamination, the risk that contamination will spread, and routes of exposure. Sites are considered a higher priority when the contamination threatens drinking water supplies, exists in high quantity or over a large area, is toxic to animals or fish, may affect a body of water, or affects public health.

SCTA and LTCA provide funding for activities such as state programs for hazardous and solid waste planning, management, and enforcement; financial assistance for local hazardous and solid waste programs; and assistance for potentially liable persons to pay for remedial actions under certain circumstances. DOE must use LTCA funds for grants and loans to local governments with a prioritized order beginning with remedial actions, hazardous waste plans and programs, solid waste plans and programs, cleanup of methamphetamine production sites, and cleanup and disposal of hazardous substances from abandoned or derelict vessels.

When partnering with local communities and liable parties for cleanup, DOE may alter grant-matching requirements to incentivize local governments to expedite cleanups when funding would mitigate unfair economic hardship imposed by the cleanup liability; create new substantial economic development, public recreational, or habitat restoration opportunities; or create an opportunity for acquisition and redevelopment of vacant, orphaned, or abandoned property that would not otherwise occur.

Liable parties must clean up sites contaminated with hazardous materials. DOE uses several methods to assist potentially liable persons to clean up hazardous waste sites such as the voluntary clean-up program, consent decrees, and agreed orders.

The Attorney General may agree to a settlement with a potentially liable person when a proposed settlement would lead to a more expeditious cleanup. In addition, to promote cleanup or site reuse, the Attorney General may agree to a settlement with a person who is not liable for cleanup but proposes to clean up, redevelop, or reuse the site when the settlement will bring new resources to facilitate the cleanup. Priority must be given to settlements that will provide a substantial public benefit which include vacant or abandoned manufacturing or industrial facilities.

DOE must prepare a ten-year financing report every two years. The report must identify long-term remedial action project costs, track expenses, and project future needs. Additionally, DOE must project the remedial action need, cost, revenue, and recommended working capital reserve estimate to the next biennium's long-term remedial action needs from both SCTA and LTCA.

Summary: State and Local Toxics Control Accounts. The percentage of HST revenues to be deposited into STCA and LTCA is revised. The percentage to STCA is changed from 47 percent to 56 percent, and to LTCA from 53 percent to 44 percent.

New uses of state toxic control account funds are added, including the following:

The use local toxic control account funds are prioritized for:

Environmental Legacy Stewardship Account (ELSA). The ELSA is created. Once $140 million of the HST is distributed to STCA and LTCA, the remainder collected must be deposited into ELSA. A one-time transfer of $45 million is made from each the STCA and LTCA to ELSA. ELSA funds may be used for performance and outcome-based projects, model remedies, and procedures that result in reductions in the time to complete:

Model Remedies. DOE must:

Brownfield Redevelopment Trust Fund (Trust Fund). The trust fund is created only for remediation and clean-up activities within a designated redevelopment opportunity zone. The trust fund may receive legislative appropriations, voluntary contributions made to specific zones or brownfield redevelopment authorities, and receipts from settlements or court orders that direct payment to the trust fund for specific zones. The trust fund must be credited with all investment income earned by the trust fund. The local government establishing the redevelopment opportunity zone must be the beneficiary of the subaccount.

All expenditures from the trust must be used for remediation and cleanup of properties and facilities consistent with a plan approved by DOE. The expenditures must meet eligibility requirements for remedial action grants. DOE must provide a biennial report on each subaccount activity.

When DOE determines that all remedial actions are complete and payments are made from the trust fund, any remaining monies must be transferred to STCA. If DOE determines that substantial progress has not been made within six years wherein deposits were made into the trust fund account, or the brownfield renewal authority is not a viable entity, then all remaining funds must be transferred to STCA.

Redevelopment Opportunity Zone. A city, county, or port district may designate a redevelopment opportunity zone when it adopts a resolution determining the following:

Port districts must additionally own at least 50 percent of the upland property, or have property owners consent to be included in the zone. The city or county must approve the redevelopment opportunity zone designation. Designated redevelopment opportunity zones have priority for available grant funds when the demand exceeds the amount of available funding.

Brownfield Renewal Authority (Authority). A city, county, or port district may establish an authority for implementing cleanup and reuse of properties within a redevelopment opportunity zone. Any combination of cities, counties, and port districts may establish an authority through an interlocal agreement. The authority must be governed by a board of directors who are determined by resolution or interlocal agreement. The authority must be a municipal corporation. DOE may require an authority to dissolve, if it determines that substantial progress for remedial actions was not made within six years of establishment of the authority. All assets, except remaining funds from the trust account transfer to STCA, and liabilities transfer to the city, town, or port district establishing the authority.

Settlement Agreements. The primary purpose of a settlement agreement is to promote the cleanup and reuse of brownfield property. The Attorney General and DOE may give priority to settlements that provide a substantial public benefit to the reuse of brownfield properties including cleanup and reuse of property that provides access to the public, new or improved public recreational opportunities, and preservation of historic properties. Alternatively, DOE may issue an agreed order to a prospective purchaser of a property within a redevelopment opportunity zone that stays enforcement of remedial actions, as long as the prospective purchaser complies with the order.

Funds from STCA may be used to assist prospective purchasers to pay for remediation at sites within a redevelopment opportunity zone, when the amount and terms are established in a settlement agreement and when DOE finds that the funding provides for a substantially more expeditious or enhanced cleanup with public benefits.

Extended Grant Agreements. DOE may use extended grant agreements with local governments to address cleanup at facilities where it is expected to take multiple biennia and the cost exceeds $20 million. The initial agreement may not exceed ten years and may not provide more than 50 percent of the total eligible cleanup costs. DOE may not allocate future funding to an extended grant agreement unless the local government shows that the funds awarded during the previous biennium were substantially expended.

Ten-Year Financing Plan and Report. DOE must:

Radioactive Mixed Waste Account. The Radioactive Mixed Waste Account is created for use by DOE to regulate facilities that treat, store, or dispose of mixed waste or mixed radioactive waste. STCA funds used for radioactive mixed waste are transferred to the new account.

Reports. Every second odd-numbered year, DOE must report on progress made in cleaning up hazardous waste sites to the Legislature and the public. DOE must track requests from reviews of planned and completed independent remedial actions; set performance measures for timely request responses; and submit a report to the Legislature and Governor on meeting the performance measures and recommendations for improving performance and staffing needs.

Votes on Final Passage:




Second Special Session








July 1, 2013

Contingent (Section 16)