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WAC 173-322A-320

Oversight remedial action grants.

(1) Purpose. The purpose of oversight remedial action grants is to provide funding to local governments that investigate and clean up hazardous waste sites under an order or decree. The grants are intended to encourage and expedite remedial action and to lessen the impact of the cost of such action on ratepayers and taxpayers.
(2) Project eligibility. For the purposes of this grant, a project consists of remedial actions conducted under one or more orders or decrees at a single hazardous waste site. A project may extend over more than one biennium. To be eligible for a grant, a project must meet all of the following requirements:
(a) The applicant must be a local government;
(b) The applicant must be a potentially liable person, potentially responsible party, or prospective purchaser at the hazardous waste site;
(c) The project must meet one of the following criteria:
(i) The applicant is required to conduct remedial actions at the hazardous waste site under an order or decree; or
(ii) A person other than the applicant is required to conduct remedial actions at the hazardous waste site under an order or decree and the applicant has:
(A) Signed the order or decree; and
(B) Entered into a written agreement with the other person to reimburse the person for a portion of the remedial action costs incurred under the order or decree;
(d) If the order or decree is issued under the federal cleanup law, it must be signed or acknowledged in writing by the department as a sufficient basis for funding under this chapter; and
(e) The project must be included in the department's ten-year financing plan required under RCW 70.105D.030(5).
(3) Funding priority. The department will prioritize eligible projects for funding or limit funding for eligible projects based on the priorities in WAC 173-322A-210 and the following factors:
(a) The threat posed by the hazardous waste site to human health and the environment;
(b) Whether the applicant is a prospective purchaser of a brownfield property within a redevelopment opportunity zone;
(c) The land reuse potential of the hazardous waste site;
(d) Whether the hazardous waste site is located within a highly impacted community;
(e) The readiness of the applicant to start and complete the work to be funded by the grant and the performance of the applicant under prior grant agreements;
(f) The ability of the grant to expedite the cleanup of the hazardous waste site;
(g) The ability of the grant to leverage other public or private funding for the cleanup and reuse of the hazardous waste site;
(h) The distribution of grants throughout the state and to various types and sizes of local governments; and
(i) Other factors as determined and published by the department.
(4) Application process.
(a) Project solicitation. Biennially, the department will solicit project proposals from local governments to develop its budget and update its ten-year financing plan for remedial action grants and loans. The department may update its ten-year financing plan as needed during the biennium. Project proposals must be submitted on forms provided by the department and include sufficient information to make the determinations in (c) of this subsection. For multibiennial projects, proposals must be updated biennially. To be considered for inclusion in the department's budget for remedial action grants and loans, project proposals and updates should be submitted by the dates published by the department.
(b) Application submittal. Applications must be submitted on forms provided by the department and include sufficient information to make the determinations in (c) and (d) of this subsection. For multibiennial projects, an application must be submitted before each biennium for which additional funds are requested. Completed applications should be submitted by the dates published by the department.
(c) Project evaluation and ranking. Project proposals and applications will be reviewed by the department for completeness and evaluated to determine:
(i) Project eligibility under subsection (2) of this section; and
(ii) Funding priority under subsection (3) of this section.
(d) Agreement development. The department will make funding decisions only after funds have been appropriated. After deciding to fund an eligible project, the department will negotiate with the applicant the scope of work and budget for the grant and develop the agreement. The department will consider:
(i) Funding priority under subsection (3) of this section;
(ii) Cost eligibility under subsections (5) and (6) of this section;
(iii) Allowable funding under subsections (7) and (8) of this section; and
(iv) Availability of state funds and other funding sources.
(e) Fund management. The department may adjust funding levels or fund additional eligible projects during a biennium if additional funds should become available.
(5) Cost eligibility. To be eligible for funding, a project cost must be eligible under this subsection and the terms of the grant agreement and be approved by the department.
(a) Eligible costs. Eligible costs for an oversight remedial action grant include, but are not limited to, reasonable costs for the following:
(i) Emergency or interim actions;
(ii) Remedial investigations;
(iii) Feasibility studies and selection of the remedy;
(iv) Engineering design and construction of the selected remedy; and
(v) Operation and maintenance or monitoring of a cleanup action component for up to one year after construction completion of the component.
(b) Ineligible costs. Ineligible costs for an oversight remedial action grant include, but are not limited to, the following:
(i) The cost of developing the grant application or negotiating the grant agreement;
(ii) The cost of dispute resolution under the order or decree or the grant agreement;
(iii) The costs incurred under an order or decree by a potentially liable person, potentially responsible party, or prospective purchaser other than the recipient, except as provided under subsection (2)(c)(iii) of this section;
(iv) Retroactive costs, except as provided under subsection (6) of this section;
(v) The remedial action costs of the department or the U.S. Environmental Protection Agency reasonably attributable to the administration of an order or decree for remedial action at the hazardous waste site, including reviews of reimbursement requests;
(vi) Natural resource damage assessment and restoration costs and liability for natural resource damages under chapter 70.105D RCW or the federal cleanup law;
(vii) Site development and mitigation costs not required as part of a remedial action;
(viii) Legal costs including, but not limited to, the cost of seeking client advice, pursuing cost recovery, contribution, or insurance claims, participating in administrative hearings, pursuing penalties or civil or criminal actions against persons, penalties incurred by the recipient, defending actions taken against the recipient, and any attorney fees incurred by the recipient; and
(ix) In-kind contributions.
(6) Retroactive cost eligibility. The following retroactive costs are eligible for reimbursement if they are also eligible under subsection (5) of this section:
(a) Costs incurred under the order or decree between the effective date of the order or decree and the agreement signature date;
(b) Costs incurred under the order or decree during the period of a prior grant agreement that have not been reimbursed by the department;
(c) Costs incurred negotiating the order or decree, provided that the costs are not legal costs and were incurred within:
(i) Sixty days after starting negotiations for an order; or
(ii) One hundred twenty days after starting negotiations for a decree; and
(d) Costs incurred before the effective date of the order or decree conducting independent remedial actions, provided that:
(i) The actions are:
(A) Conducted within five years before the start of negotiations for the order or decree;
(B) Consistent with the remedial actions required under the order or decree;
(C) Compliant with the substantive requirements of chapter 173-340 WAC; and
(D) Incorporated as part of the order or decree; and
(ii) Costs incurred before the start of negotiations for the order or decree do not exceed six hundred thousand dollars.
(7) Funding of eligible costs.
(a) Department share. The department may fund up to fifty percent of the eligible costs. Except for extended grant agreements, the department may fund a higher percentage of the eligible costs as follows.
(i) The department may fund up to an additional twenty-five percent of the eligible costs if the applicant is:
(A) An economically disadvantaged county, city, or town; or
(B) A special purpose district with a hazardous waste site located within an economically disadvantaged county, city, or town.
(ii) The department may fund up to an additional fifteen percent of the eligible costs if the applicant uses innovative technology.
(iii) The department may fund up to a total of ninety percent of the eligible costs if the eligible costs for the project are less than five million dollars and the director or designee determines the additional funding would:
(A) Prevent or mitigate unfair economic hardship imposed by cleanup liability;
(B) Create new substantial economic development, public recreational opportunities, or habitat restoration opportunities that would not otherwise occur; or
(C) Create an opportunity for acquisition and redevelopment of brownfield property under RCW 70.105D.040(5) that would not otherwise occur.
(b) Recipient share. The recipient shall fund the percentage of the eligible costs not funded by the department under (a) of this subsection. The recipient may not use in-kind contributions to meet this requirement.
(8) Cash management of grants.
(a) The department may not allocate more funds for a project each biennium than are estimated to be necessary to complete the scope of work for that biennium. The biennial scope of work must be approved by the department.
(b) The department may not allocate more funds for a project unless the local government has demonstrated to the department that funds awarded during the previous biennium have been substantially expended or contracts have been entered into to substantially expend the funds.
(9) Administration of multiple grants. Except for extended grant agreements, the department may provide oversight remedial action grants to a local government for more than one project under a single grant agreement.
(10) Extended grant agreements.
(a) Project eligibility. The department may provide an oversight remedial action grant to a local government for a hazardous waste site under an extended grant agreement if, in addition to meeting the eligibility requirements in subsection (2) of this section, the project extends over multiple biennia and the eligible costs for the project exceed twenty million dollars.
(b) Agreement duration. The initial duration of an extended grant agreement may not exceed ten years. The department may extend the duration of the agreement upon finding substantial progress has been made on remedial actions at the site.
(c) Department share. Under an extended grant agreement, the department may not fund more than fifty percent of the eligible costs.
[Statutory Authority: Chapter 70.105D RCW. WSR 14-18-060 (Order 13-09), ยง 173-322A-320, filed 8/29/14, effective 9/29/14.]
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