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Environmentalists Wary of Senate Move to Change Toxic Cleanup Fund

Senate passes bill that gives private companies undo access to public money, greens say.

By Carryn Vande Griend April 22, 2013


Environmental groups and senate Democrats are antsy about a bill that Republican senate environmental committee Chair Sen. Doug Ericksen (R-42, Ferndale) passed out of the senate today. Ericksen's bill aims to reorganize the funding for the voter-approved Model Toxic Cleanup Act, an account that uses a tax on hazardous substances to cleanup contaminated waste sites. Opponents of the bill would say they would support Ericksen’s legislation if it didn’t include his idea to add a new account, the Environmental Legacy Stewardship Account. Ericksen says the creation of the account would acutally  make environmental cleanup faster and easier, while liberals say it just lets liable companies off the hook.

The bill passed on the senate floor earlier today 25-23. The majority of Republicans, along with conservative Democrats Sen. Brian Hatfield (D-19, Raymond) and Sen. Rodney Tom (48-D, Medina), supported the bill, while Sen. Steve Litzow (R-41, Mercer Island) and the remaining Democrats voted against the bill. 

In 1987 voters approved MTCA, a wholesale tax on hazardous materials (i.e. fuel) to pay for toxic cleanup and prevention around the state. MTCA operates via two funding accounts­—the state and local toxic control accounts. A component of Sen. Ericksen’s bill would craete the ELSA comprised of $45 million from the state account and $35 million from the local account for the 2013-2015 biennium.

Without this new account, Sen. Ericksen insists the money will continue to be transferred out of the local and state accounts to patch holes in the general budget. Over the past six years over a quarter billion dollars has been diverted from MCTA. “The goal of my bill is to utilize the hazardous substance tax for substantially more expeditious cleanup and prevention. In the [Majority's] budget, with the creation of the ELSA, these funds will not be diverted,” Sen. Ericksen says; Ericksen is part of the Republican-dominated senate Majority Coalition Caucus. But how? Though there's no legal stipulation, Ericksen insists the ELSA account will be protected with the implantation of “oversight, transparency, and accountability.” He explains, “We capture that money so members can see how we’re using hazardous substance taxes, and keep it linked to toxic cleanup on the ELSA account.”

According to the bill, ELSA funds will only be able to be used for performance and out-come based projects, cleanup projects using model remedies (aka small scale cleanups), stormwater projects, cleanup of derelict vessels, remedial action grants, and public participation grants. Priority funding is given to sites that are prepared to begin cleanup action, brownfield properties, and public funding to assist potentially liable persons who entered into a settlement agreement with the state and are prepared to begin cleanup action.

The fear is that separate funds will be used as a public piggy bank for private companies to clean up their own messes, diverting funds from MTCA.

Currently, privately liable parties must pay for their own toxic cleanup if they have a settlement agreement with the state. Companies that don’t exist anymore, or are financially unable to conduct cleanup on their own may be covered by MTCA funds. Environmental groups are concerned that ELSA raises the priority for liable parties by spotlighting model remedies and economic redevelopment, and creates an unequal playing field for private companies to use ELSA funds (ie, former MTCA funds). While the hazardous substance tax, in theory, penalizes polluters equally, “the priorities in ELSA opens the door for liable parties to divert funds away from our cleanup [that MTCA currently conducts],” says Darcy Nonemacher of Washington Environmental Council. Since MTCA began, 6,108 sites have been cleaned up which levels out to 266 per year. "We need to keep on track with the workload," Nonemacher says.

Nonematcher is worried Ericksen's bill actually makes cleanup money more vulnerable:

"One thing that is really central to this whole debate is that the ELSA account does not prevent the legislature from raiding MTCA funds. In fact, that is one of our concerns: by adding new activities to the law, the legislature can earmark money for projects that may not have the best bang for the environmental/public health buck."

The general fear is that separate funds will be used as a public piggy bank for private companies to clean up their own messes, diverting funds from MTCA’s current way of appropriating and conducting cleanups. Cliff Traisman of Washington Conservation Voters, says, “ELSA sets up a whole new structure on MTCA that fundamentally changes MTCA from a toxic cleanup program to a brownfield program [cleaning up polluted land for redevelopment] and what that means is that it allows more public monies to clean up private sites which is better for big business.”

While it’s true that liable parties may currently receive MTCA funds under restricted circumstances, most money is funneled through local governments to conduct the cleanup.  Now with ELSA’s reprioritization of funds, Nonemacher is concerned ELSA would eliminate the hoops liable parties would have to go through for cleanup funds. “We don’t think the way the law is written relieves companies from liability but the problem is privately liable parities might get mixed funding for cleanup. [ELSA] restructures the law so now according to the bill language any certain types of projects under ELSA, including those by the polluters themselves, are eligible for funding. A liable party may reimburse the state for that or they might not.”

Sen. Ericksen disagrees. “In my bill, the priority use of the funds goes to cities when they have a remedial investigation and cleanup plan, the second builds upon brownfield properties.” As for ELSA’s priority of assisting potentially liable persons, Sen. Ericksen insists, “that is the exact same language in current law. My bill doesn’t change the current law at all.”

“The only reason it’s controversial is because a Republican sponsored it. Environmental groups are concerned that a Republican is going to out-environmental them.”—Republican Sen. Doug EricksenEricksen contends that the ELSA fund serves the higher goal of “moving more dollars to clean up our environment faster,” by prioritizing cleanup projects that are already on course to be implemented. “This is the ultimate bill to create green jobs, clean up the environment and create long term economic development,” Sen. Ericksen said. “These funds will go directly toward remedial actions and mandated uses”

His analysis of the enviro-backlash? “The inly reason it’s controversial is because a Republican sponsored it. Environmental groups are concerned that a Republican is going to out-environmental them,” he says.

Senate environmental committee Sen. Kevin Ranker (D-40, Orcas Island), has proposed an alternative MTCA bill. He says Ericksen’s bill “gets at our common goal, to speed up the cleanups," but says his own bill would speed up the permitting process for cleanup projects. Both bills passed out of the Energy, Environment and Telecommunications Committee in February. While the two Whatcom County senators worked together with their MTCA bills, Ranker still has not endorsed Ericksen’s bill because of the ELSA component. “Polluters will have greater access to public funds if this passes,” he warns.

MTCA, Sen. Ranker notes, is a $285 million dollar fund, which makes it vulnerable to funding other interests.  “The protection of the money has caused concern,” he continues, “The bill changes a potential liable party from restricted but allowable use to priority use, elevating them to be funded sooner while things like solid waste management go underfunded.”

Sen. Ranker’s other concerns regarding ELSA include the broad definition for priority projects like stormwater and the exclusion of priority funding for prevention and water quality programs. “This bill cleans up sites, but doesn’t make sure it doesn’t happen again,” he says.

Sen. Ranker urged that legislation, such as his own, must be moved to accelerate toxic waste cleanup. “There are 60 [cleanup] sites right now that would create several thousand jobs, so let’s do it. I approached [Sen. Ericksen] eight times to negotiate potential compromises, but the ELSA account is the deal breaker,” Sen. Ranker said.

In the scramble to pass bills in the senate, Sen. Ranker vetted his frustrations with the Majority Coalition Caucus. “We’re not going to get a bill, it’s really unfortunate. The [Majority Coalition Caucus] talked about how were we’re going to come together [on legislation], but what I’ve seen is reactionary decisions on their party and the inability to come to the middle,” says Sen. Ranker, “if we came to a compromise it would be signed by a governor.”

However, now that Ericksen's bill has passed (and Ranker's hasn't) Ericksen believes “it will do very well [in the house]. It will take lots of hard work, but there are house members excited about putting forth a positive bill for the environment.” As for using his ELSA account as a bargaining chip in budget negotiations, Sen. Ericksen says, “I hope people see it on the merits of the bill, and we get it done before budget bargaining chips."

The house, which is dominated by Democrats, isn't likely to agree with Ericksen about his plans merits. Rep. Joe Fitzgibbon (D-34, Burien) weighed in on Sen. Ericksen's bill. 

"I have not heard a lot of enthusiasm for [the bill] in the House. While the bill has changed a lot through the process and has been a moving target, in general there is concern about moving money away from toxics prevention and towards cleanup of sites where there is a private party that would be otherwise liable for cleaning up their own mess. For the most part, House Democrats believe that MTCA is doing a good job of cleaning up contaminated sites and preventing further toxic pollution and we haven’t heard enough information about the problem that [Ericksen's bill] is intended to solve."

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