WAC 173-322-070   Oversight remedial action grants.  (1) Purpose. The purpose of the oversight remedial action grant program is to provide funding to local governments that conduct remedial actions 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) Applicant eligibility. Except as provided under subsection (3) of this section, to be eligible for an oversight remedial action grant, the applicant must meet the following requirements:

     (a) The applicant must be a local government, as defined in WAC 173-322-020;

     (b) The applicant must be a potentially liable person or a potentially responsible party at the hazardous waste site; and

     (c) The applicant must meet one of the following criteria:

     (i) The applicant is required by the department to conduct remedial action under an order or decree issued under chapter 70.105D RCW;

     (ii) The applicant is required by the U.S. Environmental Protection Agency to conduct remedial action under an order or decree issued under the federal cleanup law and the order or decree has been signed or acknowledged in writing by the department as a sufficient basis for remedial action grant funding; or

     (iii) The applicant has signed an order or decree issued under chapter 70.105D RCW requiring a potentially liable person (PLP) other than the applicant to conduct remedial action at a landfill site and the applicant has entered into an agreement with the PLP to reimburse the PLP for a portion of the remedial action costs incurred under the order or decree for the sole purpose of providing relief to ratepayers and/or taxpayers from remedial action costs.

     (3) Retroactive applicant eligibility. To be eligible to receive an oversight remedial action grant for an order issued under the federal cleanup law before the effective date of the 2005 amendments to this chapter, the applicant must meet the following requirements:

     (a) The applicant must be a local government, as defined in WAC 173-322-020;

     (b) The applicant was required by the U.S. Environmental Protection Agency to conduct remedial action under an order issued under the federal cleanup law;

     (c) The order has been signed or acknowledged in writing by the department as a sufficient basis for remedial action grant funding; and

     (d) The applicant must submit to the department a grant application within six months after the effective date of the 2005 amendments to this chapter.

     (4) Application process.

     (a) Submittal. Except as provided under subsection (3) of this section, the application for an oversight remedial action grant must be submitted to the department within sixty days of the effective date of the order or decree.

     (b) Content. The grant application must be completed on forms provided by the department and include the following:

     (i) Sufficient evidence to demonstrate compliance with the eligibility requirements in subsection (2) of this section;

     (ii) A description of the history of the site, the current status of the site, and the remedial actions to be performed at the site under the order or decree;

     (iii) A description of the environmental benefits of the project;

     (iv) A copy of the order or decree;

     (v) A copy of the scope of work which accomplishes the requirements of the order or decree;

     (vi) A budget for the scope of work;

     (vii) A description of all current or potential sources of funding including, but not limited to, other grants or loans and proceeds from contribution or insurance claims;

     (viii) A commitment by the applicant to provide the required matching funds and a description of the sources of those funds; and

     (ix) If the applicant claims the use of innovative technology under subsection (7)(c)(i) of this section, a justification for the claim.

     (5) Application evaluation and prioritization.

     (a) The grant application will be evaluated by the department for completeness and adequacy. After the application has been completed, the department and the applicant will negotiate the scope of work and budget for the grant. The department will consider cost eligibility and other sources of funding when negotiating the scope of work and budget for the grant.

     (b) When pending grant applications or anticipated demand for oversight remedial action grants exceed the amount of funds available, the department may prioritize applications or limit grant awards based on the following:

     (i) Relative hazard ranking as determined by the department in accordance with WAC 173-340-330 or the U.S. Environmental Protection Agency's National Priorities List ranking. Higher ranking sites will receive a higher funding priority;

     (ii) Evidence that the grant will expedite cleanup;

     (iii) Relative readiness of the applicant to proceed promptly to accomplish the scope of work.

     (6) Cost eligibility. Costs must be eligible under this section and be approved by the department in order to be eligible for reimbursement.

     (a) Eligible costs. Eligible costs for oversight remedial action grants include, but are not limited to, the reasonable costs for the following:

     (i) Remedial investigations;

     (ii) Feasibility studies;

     (iii) Remedial designs;

     (iv) Pilot studies;

     (v) Interim actions;

     (vi) Cleanup actions;

     (vii) Landfill closures required under chapters173-304, 173-350 and 173-351 WAC, if also required as a remedial action under the order or decree;

     (viii) Capital costs of long-term monitoring systems; and

     (ix) Operating and maintenance costs incurred during the first year of accomplishing the cleanup action after facilities and equipment have been installed or constructed.

     (b) Ineligible costs. Ineligible costs for oversight remedial action grants include, but are not limited to, the following:

     (i) Retroactive costs, except as provided under subsection (7) of this section;

     (ii) Oversight costs;

     (iii) Operating and maintenance costs of long-term monitoring systems;

     (iv) Operating and maintenance costs incurred after the first year of accomplishing the cleanup action;

     (v) Natural resource damage assessment costs and natural resource damages;

     (vi) Legal costs including, but not limited to, the cost of pursuing contribution or insurance claims, the cost of administrative hearings, the cost of pursuing penalties or civil or criminal actions against persons, the cost of penalties incurred by the applicant, the cost of defending actions taken against the applicant, and attorney fees; and

     (vii) In-kind services.

     (7) Retroactive cost eligibility. Retroactive costs are not eligible for reimbursement unless:

     (a) The department unreasonably delays the processing of the grant application;

     (b) The department provided only partial funding under a prior grant agreement because funds were not available;

     (c) The costs were incurred conducting independent remedial actions and those actions are incorporated as part of the order or decree; or

     (d) The applicant is eligible under subsection (3) of this section.

     (8) Funding and reimbursement.

     (a) Adjustment of eligible costs. If an order or decree requires a potentially liable person (PLP) or a potentially responsible party (PRP) other than a local government to conduct remedial action, then the department shall deduct the financial contribution of that PLP or PRP from the amount eligible for grant funding. If the applicant receives proceeds from a contribution claim before the effective date of the grant agreement, then the department shall deduct those proceeds from the amount eligible for grant funding, after subtracting from those proceeds the legal costs incurred by the applicant pursuing the contribution claim.

     (b) Funding of eligible costs. Except as provided under (c) of this subsection, the applicant shall be eligible to receive funding for up to fifty percent of eligible costs.

     (c) Additional funding. The applicant shall be eligible to receive funding in excess of the limit set forth in (b) of this subsection under the following circumstances:

     (i) The applicant used innovative technology. If the applicant utilizes innovative technology, as defined in WAC 173-322-020, as part of the cleanup action and the eligible costs exceed four hundred thousand dollars, then the applicant shall be eligible to receive additional funding up to fifteen percent of eligible costs. The applicant must include justification for the innovative technology claim in the grant application.

     (ii) The county is economically disadvantaged. If the applicant is a county, or is located within a county, that is economically disadvantaged, as defined in WAC 173-322-020, then the applicant shall be eligible to receive additional funding up to twenty-five percent of eligible costs.

     (d) Match requirement. The applicant shall fund those eligible costs not funded by the department under the grant. The applicant may not use in-kind services or proceeds from contribution claims to meet the match requirement.

     (e) Reimbursement of grant funds. If the applicant receives proceeds from a contribution claim after the effective date of the grant agreement, then the applicant shall reimburse the department for a proportional share of those proceeds, after subtracting from those proceeds the legal costs incurred by the applicant pursuing the contribution claim.



[Statutory Authority: RCW 70.105D.070. 05-07-104 (Order 04-06), § 173-322-070, filed 3/18/05, effective 4/18/05. Statutory Authority: Chapter 70.105D RCW. 01-05-024 (Order 97-09A), § 173-322-070, filed 2/12/01, effective 3/15/01. Statutory Authority: RCW 43.21A.080. 93-24-047, § 173-322-070, filed 11/23/93, effective 12/24/93. Statutory Authority: Chapter 70.105D RCW. 90-10-057 (Order 89-45), § 173-322-070, filed 5/1/90, effective 6/1/90.]