Washington Adopts Partial No Further Action Letters Giving Property Owners More Flexibility on Cleanups


Breaking Developments In Environmental Law

Governor Christine Gregoire signed into law on April 30, 2007, a potentially significant amendment to the Model Toxics Control Act (“MTCA”), RCW 70.105D. HB1039 permits the

Department of Ecology (Ecology) to issue a No Further Action Determination for a portion of a contaminated facility or site. The amendment means that property owners may not have to await the completion of the cleanup of the entire site or neighboring properties before obtaining a

regulatory closure.

Ecology currently uses three different boilerplate opinion letters for completed independent remedial actions: (1) No Further Action determination (“NFA”); (2) Partial Sufficiency and Further Action determination; and (3) Further Action determination. Property owners typically

want an NFA because it means Ecology determined that the independent remedial action conducted was sufficient to meet the substantive requirements of MTCA for characterizing and addressing all of the contamination at a site. The latter two letters require more remedial

activities, which could mean a continued risk of liability associated with the property, thereby affecting its marketability.

The amendment provides a fourth option for Ecology: an NFA for a portion of the facility or site.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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