Reducing Risk and Uncertainty: A PCE Site, a Model Remedy, and an NFA

No Further Action (NFA) determinations are Washington state’s sought-after finish line for regulatory closure of contaminated sites. An NFA is often the stepping stone for a property owner to secure financing for development of their property and alleviate concerns that their property won’t be put to productive use. NFAs are not easy to get—particularly for former dry cleaner sites, where perchloroethylene (PCE; a dry-cleaning solvent) is a common culprit that can keep a property in regulatory limbo and cause cleanup timelines to be counted in years.

Not a Typical Cleanup: Applying a Model Remedy at a Chlorinated Solvent Site

Aspect had a recent success story where we helped a client achieve an NFA by pursuing site closure through Ecology’s Initial Investigations program using a Model Remedy approach. The premise of this approach is that if you can completely address or clean up a release upon discovery, then you may be able to request an NFA at the initial investigation/reporting stage, thereby circumventing the Voluntary Cleanup Program process.

Identifying and excavating the contaminated soil from inside the store led to a successful No Further Action determination for the Site.

Identifying and excavating the contaminated soil from inside the store led to a successful No Further Action determination for the Site.

The project site, located in Kent, was a former dry cleaner with PCE impacts limited to shallow soil around the dry-cleaning machine. Following Aspect’s Phase I/II ESA investigation as part of a pending property transaction, we implemented a cleanup action after our client purchased the property. The space inside the store was limited, and the excavation was surgical. Confirmation soil sample results following the excavation were below Model Toxics Control Act (MTCA) Method A cleanup levels. Instead of entering the VCP and facing delays with Ecology’s backlog of VCP sites, we instead reported the release to Ecology within the framework of a Remedial Investigation and Cleanup Action Report, with the completed excavation and off-site disposal of contaminated soil presented as a model remedy.

Reducing Risk and Uncertainty

After follow up discussion and negotiation with Ecology’s Initial Investigations coordinator, the site recently received an NFA. Though there may not be many PCE-impacted sites where the contamination is limited to shallow soil, it pays to know the options if this is the case. Model remedies are more commonly applied to petroleum-impacted sites. However, because Aspect was on the lookout and understood the regulatory framework for achieving closure, we were able to help our client significantly reduce risk and uncertainty when weighing prospective property purchases.

The Model Remedy approach is a strategy that Aspect has used on several sites with success and, under the right set of circumstances, can be an efficient regulatory pathway for property owners seeking an NFA.

Contact Eric Marhofer or Doug Hillman to learn more.

An Alternative Approach for Petroleum-Site Cleanups

With around 3,000 historical leaking underground petroleum storage tanks (USTs) and systems across Washington state, petroleum cleanup is a big issue for business owners, homeowners, and regulators. The traditional leaking UST cleanup process is typically counted in years and often stymied by the lack of available regulatory staff to handle the large volume of sites efficiently. 

To help remedy this, the state’s Pollution Liability Agency (PLIA) created a new cleanup route--the Petroleum Technical Assistance Program (PTAP)--beginning in January 2018. The PTAP program offers applicants the potential of lower cost associated with regulatory oversight and a commitment to faster turnaround times for opinions on their UST sites. Thanks to a 2017 change in state law, PLIA now has the statutory authority to provide technical oversight and write opinions--something only Ecology previously had--on UST sites, thus giving site owners and operators a new alternative to the state’s traditional Voluntary Cleanup Program (VCP) process.

With over a decade of petroleum site cleanup experience, Aspect’s Senior Engineer Eric Marhofer gives a primer on the potential PTAP has for UST owners.

What does the new PTAP Program Mean for Site Owners? 

The nuance of PLIA’s approach is to work more collaboratively with site owners--for example, they plan to hold an intake meeting at the outset upon enrollment to review the site status with the applicant and set achievable milestones. PLIA is looking to provide more certainty upfront, and quicker, more pragmatic opinions and responses throughout the process. The goal is to efficiently move sites toward a “No Further Action” determination and, ultimately, allow the owner to return their site to a business asset instead of a liability. 

Additionally, the PTAP may work more seamlessly for site owners already working in cooperation with PLIA through their Commercial Reinsurance and/or Loan and Grant programs.

There’s a number of PLIA financing and insurance options available to help UST owners and operators move their sites towards closure.

What’s the Process?

PLIA is looking to offer a streamlined application and approval process, a one-time flat fee of $7,500 for service (vs. hourly billing for review and opinions in the VCP), an intake meeting with senior technical staff to review your Site (which does not typically happen in the VCP), and faster turn-around times for written opinions (a goal of 45 days versus 90+ days with Ecology).  

PTAP’s Program begins accepting applications January 2, 2018.

Are there any risks?

Depending on how much regulatory oversight is anticipated, a flat-fee of $7,500 may not make sense for some sites. However, for more complex sites that may need multiple opinions over the life of the investigation and cleanup, that fee will likely represent a good value. 
There are also certain factors site owners will want to consider when determining whether their site qualifies for PTAP. For example, there can be no impacts to sediment or surface water and there can be no co-mingled, non-petroleum contamination. Additionally, sites facing litigation may not qualify. If the site is disqualified for one or more reasons after enrollment in PTAP, it is unclear whether the enrollment fee is refundable.

PTAP eligibility criteria.

PLIA also expects actionable steps to be taken on the part of the applicant/owners to move forward with investigations and cleanups once accepted to the program.  In other words, PLIA will not be a safe harbor for Sites to enroll to avoid Ecology enforcement but not take any actions to investigate or clean up their site.  Sites may be disqualified from the program for inactivity and the enrollment fee may not be refundable.  

Learn more here: http://plia.wa.gov/ptap/ or contact Eric at emarhofer@aspectconsulting.com.