Under the The Department of Ecology's ("Ecology") Voluntary Cleanup Program (VCP), Ecology provides informal consultative services (technical advice and assistance) to persons who conduct independent property cleanups under the Model Toxics Control Act (MTCA), chapter 70.105D RCW. These services include conducting reviews of proposed or completed cleanups and providing written opinions on whether those remedial actions meet the applicable regulatory requirements. These reviews are known as "technical opinion letters", the best known of which is the "No Further Action Letter" or "NFA".
In August, 2005, Ecology first sought input from a group of environmental lawyers and consultants on a revised suite of six "boilerplate" technical opinion letters designed to "to improve the clarity and transparency of those letters". Ecology later met with a smaller group of environmental lawyers on a more focused set of issues. Such letters are often key to real estate transactions and transfer of business operations on properties where environmental cleanups have been at issue. Of particular concern has been an Ecology restatement and potential limitation on the type of cleanups which will qualify for "No Further Action" status if, in Ecology's opinion, further cleanup activities may be necessary on the property or as part of a cleanup "site" of which the property is a part. Ecology has provided a web update on such letters, as well as a Focus Sheet and downloadable copies of the current boilerplate language.
In 2005, we took the lead in voicing concern about the additional intepretive burdens caused by the new letter language, and recommended that Ecology consult directly with members of the lending and development communities in order to better understand what is needed in to faciliate the successful transfer of properties and businesses and to assure financeability on a predictible basis. Ecology personnel left the meeting indicating that such meetings will occur and that the current boilerplate language may be revised in response to our comments. As follow up, further, specific language revisions were discussed, and in January, 2007, Ecology issued new draft letters for review and comment. If you would like to further discuss the meetings, the new drafts, and/or the ongoing impact of the Ecology effort, please do not hesitate to call or email for further detail or suggestions.
