Mary Beth Tuohy
EPA Regional Brownfields Coordinator
(312) 886-7596
Illinois has operated a voluntary cleanup program since August 1989. The Illinois Environmental Protection Agency developed the initiative, now referred to as the Pre-Notice Program, under the broad authority of the state's Environmental Protection Act, rather than an outgrowth of existing hazardous site remediation efforts. In fact, Illinois has no Superfund program per se, and state officials boast that the majority of sites needing cleanup are enrolled voluntarily in the Pre-Notice Program, rather than subjected to enforcement actions available to the state under its hazardous site remediation program. As of September 1996, 450 sites are currently active in the program, and 175 of those have been released from further action with a "clean letter" from the state. The state monitors an additional "short list" of high-priority hazardous waste sites, on which it collaborates on cleanup with the federal government.
In addition to the Pre-Notice Program, buyers and sellers of industrial property comply with the Illinois Responsible Property Transfer Act of 1988, modeled after New Jersey's 1983 property transfer law. Unlike the New Jersey statute, however, Illinois does not enforce compliance with the program, and state officials rarely use the information recorded in the program's disclosure documents when sites are enrolled in the Pre-Notice Program.
In 1995, two key pieces of legislation were enacted that have significantly impacted the Illinois Pre-Notice Program. First, HB. 544 codified the use of risk-based cleanup objectives in the state, essentially signing into law a practice that had been in place for many years. Second, HB. 901 introduced a sweeping shift in Illinois' liability scheme; whereas strict, joint, and several used to be standard, now proportionate share causation-based liability has taken its place. Following up on these statutes, in September 1996, the Illinois EPA is scheduled to submit rules to the Illinois Pollution Control Board that clarify certain procedures under the Site Remediation Program.
Liability and PRPs: Recently, Illinois' liability structure was amended. It is now a proportionate share, causation-based determination. This replaces the former liability scheme which was strict, joint, and several for responsible parties.
Eligibility: Prospective purchasers, as well as responsible parties, can participate in the Pre- Notice Program. Sites are eligible unless they fall under the jurisdiction of other programs (such as LUST and RCRA), are on the NPL, or are under a Consent Order. A recent legislative change to the state's UST program now returns most authority for leaking tank removal and remediation to the federal government. The state retains some discretion in admitting certain properties with "unregistered" tanks into the Pre-Notice Program. In addition, certain sites that are proposed for inclusion on the NPL may be eligible, but the interested responsible party must show that it is willing and able to handle the level of cleanup required.
Oversight: The process builds on past assessment work done on a site, with different points of entry for different sites. Early entry is encouraged to ensure that all facets of the cleanup process are in accordance with Illinois EPA regulations. The degree of state oversight is largely established by the party to the cleanup, who can seek agency review and evaluation of work plans, environmental site assessment reports, response action plans, risk assessment reports, contaminant fate and transport modeling, response action completion reports, and health and safety plans. The agency also will assist with establishment of cleanup levels, sample collection and analysis, community relations, and coordination and communication with other state employees or program participants.
The applicant is required to conduct a Phase I assessment, in accordance with ASTM standards. Parties often come to the Illinois EPA with completed site assessments. If these assessments are approved, parties may skip this stage of the process. Parties also should incorporate file information into a site investigation work plan, to be reviewed by the Illinois EPA. Following Phase I, a remedial investigation is required to determine the nature and extent of contamination.
When the investigation is complete and deemed appropriate by the Illinois EPA, the interested party develops risk-based cleanup standards. These standards can incorporate site-specific conditions, be based on future land use, and/or incorporate institutional and engineering controls.
With cleanup goals determined, a remedial work plan is devised by the party and submitted for approval to Illinois EPA. If deemed to be an effective plan, remedial work may begin. Upon completion of the cleanup, the party submits a final report containing information on all work done. The Illinois EPA project manager may direct samples to be taken for analysis. If the cleanup is approved, the agency will give written assurances to the party.
Public notification is not required for participants enrolled in the Pre-Notice Program. However, Illinois EPA often will make suggestions for a "community relations" strategy to participants, which may include establishing an 800-number, a site information repository at the local library, or one-on-one meetings with community residents. Agency staff often will be party to such meetings.
Requirements from Participants: An initial prepayment totals not more than $5,000, or half the anticipated costs of oversight, whichever is less. The average oversight cost per site is just under $5,000. Also required is entrance into a Review and Evaluation of Services Agreement, which stipulates that all work done on site must be carried out in a manner approved by the agency, requires agency access and oversight of the site, and specifies termination provisions for both parties.
Program participants typically must submit four documents to reflect proper corrective action activities at their site: a Phase I and II Environmental Site Assessment Report, a Response Action Plan, and a Response Action Certification. Agency review and approval of all four documents are required. These documents may be submitted one at a time or as a group.
Cleanup Standards: Risk-based objectives must fall within 10-4 and 10-6 risk levels. Final levels are determined by future land use. Tier II and III sites may utilize engineering and institutional controls to achieve some risk reduction at the site.
In December 1995, legislation was enacted that formally codified risk-based cleanups for Illinois — a practice that had already been in place for many years prior. On September 15, 1996, the Illinois EPA submitted proposed rules to the Illinois Pollution Control Board. The rules, which set forth a framework for these risk-based cleanups, is called "TACO" or "Tiered Approach to Cleanup Objectives." TACO provides parties with a simple, streamlined methodology for determining cleanup standards and costs. Illinois EPA officials expect that it will have broad applicability across programs (e.g., LUST, some Superfund sites, and RCRA sites). TACO essentially builds on Illinois's existing three-tiered cleanup approach, which has been in place administratively for several years.
Tier I consists of specific soil and groundwater contaminant levels, or "default numbers," expressed as a table of numeric values. These numbers are largely based on EPA Soil Screening levels. Groundwater standards are determined by the Illinois Groundwater Standards, which are closely related to federal EPA's MCL's.
Tier II utilizes the same pathway assumptions and formulae, but makes use of site-specific physical conditions and contaminant levels. A party could prove that existing site conditions would have a substantial impact on exposure assumptions (e.g., groundwater concentrations could be relaxed if the party showed that a site was mostly clay). A such, Tier II often results in more relaxed standards than Tier I.
Tier III is based on a more formalized risk assessment process and uses the Risk Assessment Guidance for Superfund Sites document. This allows a party to determine cleanup objectives based on risk and, in some cases, take no remedial steps at all even though the site may contain hazardous constituents. In Chicago, for example, the Stevenson Expressway — consisting of 12 inches of pavement and 40 feet of fill — overlies an old coal gas facility. Since exposure in this instance is virtually impossible, no additional remedial action was necessary. Groundwater standards depend on whether the groundwater is considered a potable resource or a "general resource."
Participants under Tiers II and III may use less stringent numeric cleanup levels, engineering controls, institutional controls, future land use restrictions, or any combination of these measures to demonstrate that cleanup is protective of human health and the environment.
Certification: Parties whose cleanup efforts need no further remedial action will receive a "No Further Remediation" letter, which says the site is clean and releases the remedial applicant (and others) from further liability. A copy of this letter must be filed with the property deed. Illinois EPA has a Memorandum of Agreement with U.S. EPA that effectively precludes federal involvement in the state's Pre-Notice Program cleanups, except in extraordinary situations of imminent threat to human health and the environment. A change in the land use of the remediated property could trigger a re-opener of the clean letter.
Financial Help: Nothing available at this time.
Contacts:
Lawrence W. Eastep, P.E.
Division of Remediation Management
IL Environmental Protection Agency
(217) 782-9802
John Sherrill
Division of Remediation Management
IL Environmental Protection Agency
(217) 785-5697
Indiana's Voluntary Cleanup Program (VCP) was signed into law in February 1992 and began accepting applications by July 1, 1993. The program enrolled more than two dozen sites, and it issued its first Covenant-Not-to-Sue in 1995. The program's purpose is to facilitate cleanup of those sites that otherwise might go unnoticed by the Indiana Department of Environmental Management (IDEM). Currently, the program has over 90 sites that have applied for acceptance.
Liability: Liability is strict, joint, and several under the state's Hazardous Waste Act. IDEM also has the authority to collect costs incurred in performing pre-assessment screening.
Eligibility: Prospective or current site owners or operators may apply to the program if they suspect their site is contaminated with petroleum or hazardous substances. IDEM reserves the right to reject applicants if the site is subject to state or federal enforcement action for cleanup (e.g., under CERCLA or RCRA), if a federal grant requires IDEM to take enforcement action, or if the site poses immediate threats to human health and the environment. Also possibly ineligible to participate in the VCP are high-priority leaking underground storage tanks, which require instead that IDEM pursue enforcement actions available through federal grant commitments. Low-priority and medium-priority UST sites may apply to the voluntary cleanup program.
Oversight: Upon agency approval of the remediation workplan, IDEM requires participants to submit quarterly progress reports and to allow state access to the cleanup site. Upon receipt of the final remediation completion report, IDEM conducts a field inspection and reviews samples to ensure the cleanup plan was followed. During the cleanup process, IDEM has the authority to waive local and state permits (although not the substantive requirements of such permits) pertaining to on-site remediation technologies and other aspects of the cleanup. IDEM cannot waive federal permit requirements, such as those required under RCRA.
IDEM must provide for a 30-day public comment period regarding proposed cleanup remedies, and it may hold public hearings following any inquiries.
Participant Requirements: Participants must submit to IDEM a $1,000 check and an application describing the history and condition of the site, including the results of a Phase I site assessment. The assessment should identify the types of contaminants to be addressed. IDEM holds these applications in confidence in order to encourage forthright information regarding hazardous releases. Following acceptance into the program, applicants must sign a Voluntary Remediation Agreement that outlines obligations of the participant, IDEM officials, and the governor's office. This agreement includes oversight cost reimbursement estimate, project completion milestones, and deadlines and documentation necessary for the cleanup to move forward. Participants are required to submit a Phase II Investigation Report, a Remediation Work Plan, and a Remediation Completion Report. Upon approval of the Remediation Work Plan, site owners or operators must tell IDEM whether they plan to proceed with the cleanup.
Cleanup Standards: A three-tiered framework for cleanup standards is available to participants:
Tier I standards reflect background concentrations for naturally occurring constituents or constituents for which site-specific analysis has been completed to establish background levels. Tier I is the same approach used in the RCRA program.
Approval of Tier II standards is contingent upon the results of a baseline ecological assessment conducted as part of the Phase II Investigation Report, which requires the participant to identify any critical habitats present at the site and to determine the impacts of the contaminants and proposed cleanup remedies on those habitats (including wetlands, parks, hatcheries, sinkholes, prairies, and dunes). The showing of an adverse effect on these habitats precludes the use of Tier II cleanup standards. Tier II standards are calculated using health-based standard default values. Tier II offers standards for residential and nonresidential options.
Tier III standards are established on a site-specific risk assessment performed by the site owner or operator. Tier III must be done in accordance with RAGS (Risk Assessment Guidance to Superfund).
Depending on the nature of the site and type and extent of the contamination, the site owner or operator may select varying cleanup standards at different areas of the site and for different contaminants. Selection of cleanup standards generally are subject to IDEM review.
Certification: IDEM issues a Certificate of Completion to the participant upon successful cleanup of the site. The governor's office then issues a Covenant-Not-to-Sue, which further shields the participant from future enforcement action by IDEM.
Financial Assistance: Nothing available at this time.
Contact:
Carla Gill or Karla McDonald
Indiana Department of Environmental Management
(317) 308-3106
The Michigan Environmental Response Act (MERA) of 1982, known as the Polluters Pay Law, sets general guidelines for the cleanup of contaminated sites, including abandoned or underutilized properties. It was amended in 1991 to impose strict cleanup standards and liability on the current and past owners and operators of these sites. Additional amendments, signed by the governor in June 1995, dramatically change the state's liability scheme and cleanup standards regarding contaminated property. MERA is now referred to as the Part 201 program under the Natural Resources Environmental Protection Act of 1994.
Additional laws were enacted on July 23, 1996, when Governor Engler signed a five-bill package of legislation that will help provide a permanent, ongoing, funding mechanism for the state's environmental cleanup and redevelopment program. (These new funding mechanisms are addressed below in the "Financial Assistance" section.) The underlying principles of the funding legislation as set forth by the Governor's Office were:
Liability and PRPs: Strict and retroactive liability still pertains to responsible parties that were generators or transporters of the hazardous materials at a contaminated site. However, the new law offers full liability protection to current owners and operators, and local governments in some cases, who are not responsible for contamination at the site. Local governments also may be exempt from liability if they acquire property involuntarily; obtain property through transfer from state or another local government unit that is not liable; hold or acquire a utility franchise (e.g., sewers, roads, railways or pipelines); or lease the property to a person. Finally, purchasers of contaminated property are not liable for existing contamination provided they conduct a baseline assessment of the property and submit the results to the state within 45 days of purchase. Liability protection also extends, as it did under the previous law, to purchasers and municipalities that have exercised due diligence, as defined under CERCLA and MERA.
Participant Requirements: In order to be protected from liability, purchasers of contaminated sites must conduct baseline environmental assessments (BEA) that quantify the contamination at all industrial facilities, and submit the results to DEQ. The baseline environmental assessment should help the state distinguish between existing contamination and any caused after the new owner takes title to the property. Local governments that obtain properties through condemnation, gift, or purchase (i.e., voluntarily rather than involuntarily) must follow the same steps.
The new law also places "affirmative obligations" on property owners to report and remediate contamination at properties that they have warehoused out of fear of triggering enforcement and liability actions. The purpose of these obligations is to return unproductive properties to the tax rolls and to remediate contamination that may be affecting public health or the environment. Failure to prevent the exacerbation of existing contamination or to exercise due care at a property which would return it to its intended use can result in fines and penalties.
Cleanup Standards: The state has replaced its previous framework of cleanup standards with use-based criteria. The new law also allows risk levels for carcinogens to range from 10-5 to 10-6. DEQ is required under the new law to develop numerical standards for residential, recreational, commercial, and industrial property uses. In addition, the state will allow property owners and developers to use any combination of engineering and institutional controls — including zoning ordinances, record notices, and deed restrictions — to ensure that properties cleaned for a particular use remain subject to such use restrictions.
Certification: Covenants not to sue are still available to developers, provided they meet certain statutory criteria. A letter of determination, on the other hand, is available to anyone, including a municipality, who purchases a property and submits to DEQ an acceptable petition for protection from liability. The petition must describe the facility's proposed use, the baseline environmental assessment, and the planned response action (if necessary). The letter of determination can shield the petitioner from liability under MERA, other state laws, and CERCLA.
Financial Assistance: In 1994, $20 million was appropriated for response actions at sites where the state is liable as an owner or operator. Governor Engler also has committed $30 million per year in general funds to finance DEQ's cleanup and redevelopment program. In July 1996, several new funding mechanisms for brownfields assessment and cleanup were signed into law, including the following:
Unclaimed Bottle Deposit Revenues. House Bill 5673 amends the "Bottle Bill" to place the state's share of the unclaimed bottle deposit revenues (the state retains 75% of the revenues and returns 25% to retailers) into a new Cleanup and Redevelopment Fund (CRF). The bill allows for $15 million per year (from "past due" unclaimed bottle deposits) over the next three fiscal yeas to be transferred into the new CRF for appropriation to the DEQ. An additional $4 million will be available each year for placement in the CRF with new bottle deposit revenues. Ten percent of the state's annual unclaimed bottle deposit revenues will be placed in a new Community Pollution Prevention Fund for grants to local government or agencies.
State Cleanup Program/Cleanup and Redevelopment Fund. This fund is created by Senate Bill 919, which amends Part 195 of the Natural Resources and Environmental Protection Act to transfer money from the Environmental Protection Bond Fund into the new Cleanup and Redevelopment Fund (CRF). DEQ will request an annual appropriation to support a wide array of brownfields cleanup and redevelopment activities.
Revitalization Revolving Loan Program. Funds will be made available to capitalize this new DEQ program, which offers loans to local governments for site assessment and demolition to prepare sites for cleanup and redevelopment.
Tax Capture and Tax Credit Mechanisms. Senate Bill 923 creates the Brownfields Redevelopment Financing Act to allow municipalities to develop and implement brownfields redevelopment financing plans (i.e., tax increment financing plan or tax capture plan) to capture state or local property taxes from a contaminated site in order to conduct response activities at the site. Senate Bill 924 provides an important addition to the Brownfields Redevelopment Act. The bill provides tax payers a credit against their single business tax liability for certain contaminated properties, provided that the taxpayer makes an economic investment at the site. The amount of an individual credit is 10% of the eligible investment costs the taxpayer has incurred to redevelop or expand the eligible property in the tax year, with a $1 million cap on the total credits a taxpayer may claim.
Contacts:
Jim Linton
Environmental Response Division
MI Department of Environmental Quality
(517) 373-8450
Minnesota's Voluntary Investigation and Cleanup Program (VIC) has several liability provisions that address different responsible parties, levels of comfort from liability, off-site determinations, and proposed actions. The state offers covenants-not-to-sue, but certificates of completion are the device used most often to provide liability relief. There is a state Superfund program as well, but generally VIC sites that become high-priority areas remain the responsibility of the private parties undertaking the remediation.
Liability and PRPs: Lack of cooperation with the Minnesota Pollution Control Agency (MPCA) or failure to complete a cleanup project may lead to referral to the state Superfund program, potentially subjecting interested parties to the strict, joint, and several liability provisions. PRPs include all parties responsible for contamination at a site.
Eligibility: Sites not under the jurisdiction of other environmental remediation programs are eligible. Such exempted sites include: LUST and RCRA sites; landfills; sites involving discharge of wastewater onto surface waters; sites involving asbestos or radon removal; sites involving radioactive waste; and sites involving agricultural chemical releases.
Sites under the state Superfund program may be eligible if they are deemed a low priority by MPCA's Division of Groundwater and Solid Waste. Conversely, sites initially under VIC that involve a significant risk to public health and environment (e.g., sites involving substantial contamination of groundwater and/or drinking water supplies) may be referred to the state Superfund program. Parties refusing to cooperate with the MPCA or comply with program schedules also may be referred to the state Superfund program.
Oversight: Interested parties may begin by entering the Property Transfer File Evaluation Program (PTFE), so that MPCA may assist them in determining if their site of interest and contiguous sites (within a radius of one mile) have ever been the site of a hazardous release. The department checks its files and databases for any information available on the site.
The party then sends an application to the VIC program. If the site is deemed eligible, the party is asked to turn over any information obtained in the PTFE program and to conduct a Phase I assessment of the site. This information may then be used to devise an investigation work plan, which incorporates a Phase II assessment. Once investigation is complete, sites that have limited contamination and do not require remediation may exit the program; parties associated with such sites receive the applicable written assurance, either a No Action Letter, a No Association Determination, or an Off-Site Source Determination Letter or Agreement.
If remediation is necessary, parties then must submit a remediation work plan, including, where relevant, a feasibility study and risk assessment. Upon approval, remedial action may begin. A final report is required upon completion of the cleanup; MPCA may submit its own samples with the final report. Approved cleanups receive written assurances from MPCA.
The investigation stages may be foregone if enough investigation has been conducted independently by the party. However, interested parties are strongly encouraged to join early in the process to ensure that MPCA standards are being met, as outlined in the department's guidance documents. Further, the level of oversight also may be influenced by the party's cooperation with MPCA.
Requirements from Participants: Before oversight begins, parties enter into a formal agreement with MPCA, including enforcement provisions and termination clauses for both parties. There is no application fee; however, oversight costs are recovered by billing on a quarterly basis, at a rate of $75 to $85 per hour.
Cleanup Standards: Cleanup parties may apply Department of Health standards (which tend to reflect background contamination levels), since MPCA has not yet devised its own standards. Or, parties may conduct a risk assessment to achieve site-specific standards. Institutional and engineering controls may be used where shown to be necessary by a feasibility study.
Certification: MPCA provides several written assurances, including:
Financial Help: The Department of Trade and Economic Development also is involved with the program, making suggestions for site selection and administering a Contamination Cleanup Grant Program. The grant program requires 50-50 municipal matching of grant awards, as well as submission of a response action plan. There is no program yet in place to mitigate the costs of site assessments.
Contacts:
Deborah DeLuca
MN Pollution Control Agency
(612) 296-0892
Meredith Anderson
MN Department of Trade and Economic Development
(612) 297-4132
Ohio's Voluntary Action Program (VAP) was created by Senate Bill 221 in September 1994. In the legislation, Ohio EPA was instructed to draft regulations that would establish a number of key provisions, including: risk-based assessment goals; numerical cleanup standards; risk-assessment procedures; Phase II assessment standards; and a groundwater classification system. As of August, 1996, these regulations have been drafted and submitted for legislative review; Ohio EPA officials anticipate that they will be effective in October, 1996. In the meantime, the VAP has been operating under an "interim status," guided by statutory language and a series of interim rules. Three important rules, promulgated in December 1995, provided clarification on the requirements for: a) Certified Environmental Professionals; b) analytical laboratories; and c) the VAP fee structure. To date, Ohio EPA has issued four covenants-not-to-sue.
As Ohio officials address these existing abandoned or under-utilized properties, they also are taking proactive steps to prevent future sites from becoming brownfields in the first place. With the passage of House Bill 98, the Cessation of Regulated Operations (CRO) Program was established and became effective July 1, 1996. The law affects the approximately 11,000 facilities throughout Ohio that must submit an Annual Chemical Inventory Report to the state for use of hazardous substances. If one of these facilities closes down, within 30 days of the cessation of operations, the owner or operator must contact the Ohio EPA and follow a number of procedures, including: securing the site; providing an inventory of materials on the site; disposing of all regulated substances in a proper fashion; and certifying that this work has been completed.
The information below describes Ohio's Voluntary Action Program (VAP). It pertains to the statute, itself, and to three rules passed in December 1995. Provisions also have been included from the draft regulations, slated to be final by October 1996.
Liability: Liability for cost recovery from PRPs is strict and joint, but proportional. The party can file suit against all PRPs, and the share due from each is determined by the amount of contamination contributed to the site. PRPs include owners, operators, and any other party responsible for contamination of the site. Lenders and other types of fiduciaries are not liable as long as they restrict their involvement in sites strictly as financiers. Local governments may or may not be liable, depending upon the site.
Eligibility: Sites subject to enforcement actions under the following laws are ineligible: (a) CERCLA; (b) Federal Water Pollution Control Act; (c) RCRA; (d) Toxic Substances Control Act (TSCA); (e) Safe Drinking Water Act; and (f) LUST. Also ineligible are sites at which closure is required (such as landfills), as well as sites subject to enforcement action by the Ohio EPA.
There are no restrictions on which parties can conduct cleanups. PRPs, as well as prospective purchasers, are eligible for the program.
Oversight: The program has a limited oversight role, and relies mostly on Certified Environmental Professionals (CEPs) to oversee cleanups; this approach is patterned after the Licensed Site Professionals in the Massachusetts Clean Sites Initiative. There is no requirement for participants to submit initial applications, investigation, and remedial workplans, or of information on completed activities. All of these activities are devised and carried out by the CEP.
Parties and their respective CEP need only come to Ohio EPA after remedial activities have been completed. At that time, the CEP submits a No Further Action letter on behalf of the party, stating that cleanup activities have been implemented on the site. If Ohio EPA deems the NFA letter acceptable, it will grant the party a Covenant-Not-to-Sue.
Besides providing this after-the-fact review, Ohio EPA's oversight is limited to:
Requirements from Participants: Requirements are limited to the many forms of cost recovery used by Ohio EPA, and to public notification. Participants may be charged for technical assistance provided by the Ohio EPA on a fee-for-service basis, as well as required to pay for issuance of covenants-not-to-sue. Notification of completed cleanup activities is required. Publication of legal notices in local newspapers also is expected of cleanup parties.
Cleanup Standards: In Summer 1996, Ohio EPA conducted numerous public meetings to discuss the types of cleanup standards that should be proposed under the Voluntary Action Program (VAP). In their current form, the proposed regulations call for establishing generic numerical standards with a 10-5 risk factor. Three sets of numerical standards have been established for three discrete land uses: residential, commercial, and industrial.
Site-specific cleanup standards also can be developed using the Property-Specific Risk Assessment Procedures Rule. Standards developed under that Rule also need to achieve a 10-5 risk factor. The only deviation is for certain industrial properties where a 10-4 risk level may be used as long as the risk to people in the surrounding property is no more than 10-5.
Groundwater Standards. A second set of proposed rules (also due to be final by October 1996), establishes groundwater classification and response requirements. These standards only apply to "actionable groundwater," which occurs when the saturated zone beneath the property (1) is capable of supplying 1.5 gallons of water to a monitoring well during an 8-hour period, or (2) has a specified hydraulic conductivity. When actionable groundwater is not present, the level of cleanup for the property must meet the standards set for soil outlined in the Voluntary Action Program. Actionable ground water is divided into three classifications: Critical Resource, Class A, and Class B. Groundwater running below properties in urban areas may be subject to lower levels of cleanup. When groundwater under a given property is contaminated, a combination of response actions is required. The combination would depend on how the ground water is classified and whether the contamination source is on or off the property. Ohio EPA has outlined various response options that correlate with a range of situations.
Certification: Upon completion of site remediation, the CEP working on a site submits a No Further Action letter to the Ohio EPA on behalf of the cleanup party, outlining the activities performed on-site. If the NFA letter is approved, Ohio EPA issues a Covenant-Not-to-Sue to the cleanup party.
Re-opener clauses apply if land use of the site is changed in violation of institutional controls applicable to the site, or if the operation and maintenance agreement for the site (setting the site's engineering controls) is broken. Adoption of more stringent cleanup standards in the future is not grounds for reopening the covenant. Discovery of old contamination overlooked by site investigation may or may not be grounds for a re-opener. If the state believes the discovery is the result of incompetent site assessment procedures, it may choose to re-open the covenant. Similarly, the party may choose to challenge such a decision in court on the grounds that the standards set forth by the state are themselves inadequate.
Financial Assistance: Low-interest loans for some brownfields activities are available through the Ohio Water Pollution Control Loan Fund (WPCLF). To be eligible, the activity must result in water quality benefits to surface and/or groundwater. This can include Phase I and Phase II activities, such as literature searches, site evaluation studies, sampling, monitoring, and laboratory tests, as well as the actual cleanup itself. For additional information, contact Dave Reiff at the Division of Environmental and Financial Assistance at (614) 644-2798.
In addition, S.B. 221 provides tax abatements for property owners where there is an increase in the property value resulting from remediation (the statute establishes that volunteers in the Ohio VAP also may negotiate further tax abatements with their local taxing authority). A different bill pending before the state legislature, known as Jobs Bill 3, would provide grant monies for doing brownfields site cleanup.
Contacts:
Jennifer Kwasniewski
Ohio EPA
(614) 644-2279
Amy Yersavitch
Ohio EPA
(614) 644-2285
Mark Sheahan
Ohio EPA
(614) 644-4827
Wisconsin's Land Recycling Act, passed in April 1994, encourages private parties to conduct the actual cleanups through the use of liability exemptions, which may be extended to current operators and lenders. The program is run by the Department of Natural Resources (DNR) and the Department of Economic Development (DED), the latter being responsible for determining which sites get funding from the program. The main source of state funding for interested parties is the Tax Increment Financing (TIF) Program, which allows for parties interested in remediation to delay payment of property taxes on the site in question. TIF allows the money saved to be used for both site assessment and site remediation. Local authorities determine how to distribute funds; for example, although the TIF is technically a loan, municipalities may forgive the payments due in certain cases, effectively converting the TIF into a grant. Funding is limited to 5 percent of each municipality's total tax base. In addition, the City of Milwaukee has established its own $500,000 Brownfields fund. Business involvement has been slow to date, with only 16 applicants to the program. Applications may be sent from the interested parties to the municipalities, or by the municipalities (on behalf of the parties) to the DED. Both DNR and DED have worked on popularizing the program, and the DNR plans to send mailings to local governments so they can reach interested parties. Presently, there are more than a dozen active sites being worked on.
Liability and PRPs: Participants need not enter into any binding agreements with DNR, so withdrawal from the program carries no penalties or liability. In the case of withdrawal, DNR may pursue any responsible parties to remediate the site under the Environmental Repair Program. The agency uses a strict, joint, and several liability scheme, so that present and past owners, generators, and transporters of contaminants may be pursued. In practice, DNR generally limits itself to pursuing the site's present owner.
Municipalities are exempt from liability on contaminated property acquired through foreclosure or tax delinquency proceedings if they: (a) did not cause the contamination; (b) did not fail to restrict assess to the site; and (c) did not fail to test and take necessary actions on above-ground containers. Lenders, defined broadly in the law, also are exempt in cases involving property foreclosures.
Eligibility: Interested parties must meet the definition of a "purchaser" or "innocent landowner" in accordance with Wisconsin's Land Recycling Law. That definition includes prospective purchasers and current owners who: (a) purchased the property in an "arm's length, good faith" transaction; (b) did not own or manage the business responsible for the contamination; (c) did not own the site when contamination occurred; or (d) did not cause any original contamination.
Oversight: DNR requests an application from the interested party to determine party and site eligibility. If eligibility guidelines are met, the party must perform Phase I and Phase II site assessments. Following that, a "thorough environmental investigation of the property" is conducted, in compliance with Ch. NR 716. The investigation performed then must receive DNR approval. If no significant contamination is found, no further action is necessary; however, the party receives no release from liability under the program.
Investigation activities may be conducted by the purchaser, or by a responsible party under contract with the purchaser. All subsequent remedial plans and activities are to be carried out by the purchaser. Where remediation is necessary, the party notifies DNR of the releases found and remedy selected, along with a proposed remedial work plan.
Participant Requirements: There now is no fee associated with applying to the Land Recycling Program, but DNR officials expect the legislature to approve a $250 application fee, as well as a deposit to cover services provided by the DNR throughout the investigation and cleanup. Site owners with properties of less than one acre likely will pay a $1,000 deposit, while those with larger properties would pay $3,000, from which costs will be drawn. In addition, participants must work with DNR project managers throughout the process and obtain approval on the following documents: Phase I assessment, Phase II work plan, sampling protocol of the property (including the sampling of both contaminated and uncontaminated areas), more in-depth sampling of contaminated areas, the Remediation Work Plan, and the "close out" report detailing the cleanup's completion.
Cleanup Standards: All cleanups must meet the state's groundwater protection regulations, which allow risk levels for carcinogens in groundwater no greater than 10-6. The state estimates that more than 75 percent of its groundwater is used for drinking water. In addition, three methods are available to participants in the selection of soil standards: numeric tables listing standards for industrial or residential uses; site-specific modeling of the site contaminants; or a groundwater-based equation using dilution and recharge rate factors. Participants currently are required to show complete cleanup of a site, including the groundwater underlying the site. Proposals are afoot, however, to follow Minnesota's example in allowing partial cleanups.
Certification: The Certificate of Completion granted by DNR covers only liability under the Hazardous Substance Discharge Law, and is not applicable to liability under any other federal or state statutes, including Superfund. The release holds even if: (a) DNR cleanup standards change in the future; (b) additional contamination previously not detected in the site assessment is found; or (c) remedy failure occurs. The release also is transferrable to future owners.
Financial Assistance: Properties contaminated with petroleum or agricultural chemicals may seek financial assistance from the UST Fund and the Agricultural Chemicals Cleanup Fund, respectively.
Contacts:
Cara Norland
WI Department of Natural Resources
(608) 267-0540
Stanley Hitt
EPA Regional Brownfields Coordinator
(214) 665-6736
Arkansas' new voluntary cleanup law went into effect July of 1995. The program is targeted only for abandoned industrial sites, meaning sites that once had industrial activity and for which no responsible party can reasonably be pursued at this time.
Liability: The purchaser is not liable for prior contamination but is responsible for any contamination discovered in the future and for problems not identified in the site assessment.
Eligibility: The program is utilized by prospective purchasers of abandoned industrial property who are not responsible for any pre-existing pollution at the site (i.e., not potentially responsible parties or PRP's).
Oversight: The Arkansas Department of Pollution Control and Ecology (PC&E) comments on the purchaser's site assessment plans but does not actually oversee site assessment activities. The Department approves the proposed remedy and assesses a fee for review and oversight activities of $65 an hour for staff time.
Requirements from Participants: The purchaser proposes site assessment activities, establishes the baseline of existing contamination at the property, and indicates the intended future use to PC&E. PC&E reviews and, where necessary, revises the proposed site assessment. Based on the results of the site assessment, purchaser and PC&E enter into a consent administration order, establishing cleanup obligations and liabilities and the site's intended use. Notice of the order is published in the local newspaper. The purchaser files notice of the consent order with the County Clerk within 30 days of acquiring title, so that it appears in the chain of title.
After acquiring title, the purchaser remediates the site, if necessary. Remedy is approved by PC&E after notice and opportunity for hearing. After the title passes, a deed restriction is placed on the property, limiting uses to industrial and/or "compatible" uses. The consent order is transferable with written notice to PC&E. Subsequent owners receive a copy and must use the site consistently.
Cleanup Standards: Cleanup standards are determined on a case-by-case basis. The PC&E determines when contamination will and will not pose "unacceptable risks" to public health or the environment, taking into consideration the site's future use. Arkansas is considering adopting a three- tiered approach to address cleanup levels in the future.
Certification: Once the approved remedy has been implemented, PC&E may issue the purchaser a Covenant-Not-to-Sue.
Financial Help: None available at this time.
Contact:
Jean Koeninger
Superfund Branch Manager
Arkansas Department of Pollution Control and Ecology
(501) 682-0854
The Louisiana Department of Environmental Quality (LDEQ) is currently developing a Voluntary Cleanup Program. The Louisiana legislature established the groundwork for the program by passing the Voluntary Investigation and Remedial Action Act (LA R.S. 30:2272.1 and LA R.S. 30:2285). Effective July 1996, the act has as its primary goal the redevelopment of former industrial and commercial properties. Part I of the act requires that LDEQ adopt minimum remediation standards (acceptable cleanup levels for selected substances). Part II provides the specific details on who qualifies for voluntary cleanup actions and the steps they must take to achieve LDEQ approval.
LDEQ is now working to adopt the minimum remediation standards required under Part I of the act. Until these standards are adopted, LDEQ cannot approve any voluntary remedial action plan developed under Part II. Although LDEQ must consider many policy issues and administrative steps, it is committed to moving forward with the Voluntary Cleanup Program.
Louisiana's Risk-Based Corrective Action Program. In October 1994, the LDEQ secretary authorized the formation of the Corrective Action Group. Consisting of department personnel and a toxicologist/risk assessment consultant, the group's primary objective is to develop a uniform risk-based corrective action approach to cleaning up hazardous sites within the state. In August 1995, the group released a draft document, entitled "Proposed Approach for Implementing a Louisiana Department of Environmental Quality Risk-Based Corrective Action Program," for informal public comment. The group received approximately nine hundred comments. At this time, the group is making revisions and plans to prepare the document for formal promulgation.
Linking Louisiana's VCP and RBCA Program. Developing minimum remediation standards is a critical component of the Voluntary Cleanup Program. As proposed, the RBCA program will set risk- based corrective action levels for approximately 136 compounds. These levels will represent the department's minimum remediation standards; therefore, promulgation of the RBCA program will comply with Part I of the Voluntary Investigation and Remedial Action Act. Once the RBCA program becomes effective, Louisiana will move forward and begin to review Voluntary Remedial Action Plans.
Contact:
John Halk, Program Manager
Inactive and Abandoned Sites Division
Louisiana Department of Environmental Quality
(504) 765-0487
No program at this time.
No program at this time.
Created under HB. 2296, the Texas Voluntary Cleanup Program (VCP) was established on September 1, 1995 to provide administrative, technical, and legal incentives to encourage the cleanup of contaminated sites in Texas. Through August 1996, the VCP has received 217 applications representing dry cleaners, manufacturing facilities, shopping centers, warehouses, auto-related businesses, and other commercial and industrial enterprises. Twenty-three of these sites have been issued certificates of completion by the Texas Natural Resources Conservation Commission (TNRCC). In May 1996, EPA Region 6 and Texas signed a Memorandum of Agreement, essentially indicating that at sites where successful remediation under Texas' VCP has occurred and where a certificate of completion has been issued, EPA will not plan or anticipate any federal action under CERCLA.
Liability: Liability is strict, joint, and several.
Eligibility: Any site not subject to a TNRCC order or permit is eligible to enter the VCP, except in cases where agency enforcement action is pending.
Oversight: The TNRCC reviews applications, provides feedback, and, when all information is complete, enters into a negotiated Voluntary Cleanup Agreement with the party. The agency receives a $1,000 fee from the participant, which allows for approximately 16 hours of oversight at a rate of $60 per hour.
Requirements from Participants: Parties entering the VCP must submit an application, an environmental site assessment which describes the contaminants of concern, and $1,000 fee. Upon acceptance of the application, the applicant must sign an agreement that describes the work schedule of events necessary to achieve cleanup, and states that the applicant agrees to pay all VCP oversight costs. Parties may terminate their participation in the VCP at any time by written notice to the program.
Cleanup Standards: Texas promulgated risk-based cleanup standards, called Risk Reduction Rules, in June 1993. As such, there are now three cleanup methods that may be utilized in Texas. First, parties may remediate a site according to background levels. Second, parties may draw on a series of generic health-based standards that achieve a 10-6 risk reduction for carcinogens or Hazard Index=1 for non-carcinogens. Third, individuals may complete site-specific risk-assessments that could involve the use of engineering or institutional controls to meet state standards. Risk-based cleanups must achieve risk reduction levels in the 10-4 to 10-6 range. Texas has separate rules for industrial hazardous waste sites and sites containing petroleum storage tanks.
Certification: After completion of the cleanup, participants will receive a final certificate of completion from the TNRCC that states that all lenders and future land owners who are not responsible parties are released from all liability to the State for cleanup of areas covered by the certificate. If the applicant is satisfactorily maintaining engineering controls, remediation systems, or post-closure care, or if non-permanent institutional controls are utilized pursuant to an agreement, the TNRCC may issue a conditional certificate of completion.
Financial Help: None available at this time.
Contacts:
Chuck Epperson
Texas Natural Resources Conservation Commission
(512) 239-2498
Glenn Curtis
EPA Regional Brownfields Coordinator
(913) 551-7726
No program at this time.
No program at this time.
Missouri's Voluntary Cleanup Program, created in August 1994, is administered by the Department of Natural Resources (DNR).
Liability: Participants are liable under state Superfund and RCRA statutes.
Eligibility: Ineligible sites includes those under enforcement action from federal or state government (e.g., Superfund, RCRA, or Missouri Hazardous Waste Law violations); those being considered for listing on the National Priorities List (NPL); RCRA-permitted or interim status facilities, or emergency situations. Participation is open to potentially responsible parties (PRP's) and non-PRP's. The majority of participants are prospective purchasers.
Oversight: Oversight begins with a request for an application from the interested party. A $200 application fee is required, along with an up-front deposit of $500 to $5,000 to cover oversight expenses. Any unused monies are refunded, and additional oversight costs are billed quarterly at a rate equal to 2.5 times the hourly wage of the DNR's staff involved in the project.
Requirements from Participants: The DNR requires that a Phase I assessment be done before completing an application. If the interested party is deemed eligible, the DNR sends a letter of agreement to be signed by the party, which restates the regulations applicable to the program and provides termination clauses for both parties. The DNR also submits comments on any additional investigation needed.
Once investigation is complete, the DNR requires a remedial work plan for the site, which may include a feasibility study and a risk assessment. If no remedial action is necessary, the participant receives a letter from the Department stating that. The DNR also may require quarterly progress reports for remediation activities that take longer than three to four months. Closure reports are required upon completion of cleanup, which the DNR may complement with its own split samples. Written assurances are then provided for acceptable cleanups.
Cleanup Standards: A cleanup guidance document, "How Clean is Clean?" developed by the DNR has been adopted as a guide for site remediation. The document defines two tiers of remediation goals, based on the nature of contamination at the site.
Tier 1 Cleanups. The Tier 1 cleanup standard is a uniform cleanup standard. Meeting the Tier 1 standard constitutes a walk-away remediation for the purposes of voluntary cleanup. The Tier 1 cleanup standard for soil is the lower of the Missouri Department of Health's Any-Use Soil Levels (ASL's) or the levels listed in Table 4 of the Missouri Underground Storage Tank Closure Guidance Document (March 1996). The first sub-tier cleanup standard for groundwater is the background level of a contaminant. However, this cleanup standard does not generally apply based on the nature of most sites. In general, groundwater is required to be remediated to meet the most conservative of the maximum contaminant levels (MCL's) in the Missouri Water Quality Standards (10CSR 20-7), or the levels listed in Table 5 of the previously referenced underground storage tank closure guidance document.
Alternative Cleanup Standards. If meeting the Tier 1 cleanup standards is proven to be technically impracticable or site conditions render the uniform cleanup standards inappropriate, the second tier alternate cleanup standards may be used. The cleanup party must propose the alternate cleanup standards and support them with a site-specific risk-based assessment. The proposed alternate cleanup standards are subject to the DNR's review and approval before they can be used as the cleanup standards for a site. Alternate cleanup standards may be used if the Missouri DNR does not have an established cleanup standard for a particular contaminant or if the participant can demonstrate the technical impracticability of achieving an established cleanup standard. Missouri is presently revising its cleanup guidance. The result may be greater access to alternative cleanup standards.
Certification: If the cleanup is acceptable, the Department of Natural Resources issues a "clean letter" to the cleanup party. The letter addresses only the particular work done on site, and does not imply any release of liability. Reopener provisions include discovery of contamination not detected by the site investigation; remedy failure; breach of any institutional controls; and improper maintenance of engineering controls. The DNR's general policy is not to pursue parties due to issuance of stricter standards in the future.
Financial Help: Financial assistance is available for certain sites. Through the Abandoned Property Reuse Act of 1995, the Missouri Department of Economic Development can provide financial assistance for environmental remediation. In order to be eligible, the site must be purchased from a political subdivision of the state; in other words, a brownfield owned by a city or county. There are other conditions of eligibility but this is the major one. The financial assistance can take the form of loans, loan guarantees, grants and tax credits which are transferrable. The Missouri DNR must approve and oversee this remediation. For these sites only the Missouri DNR may issue a Covenant-Not-to-Sue.
Contacts:
Jim Belcher
MO Department of Natural Resources
(314) 526-2735
Nebraska's voluntary cleanup program began operating January 1, 1995, with the enactment of the Remedial Action Plan Monitoring Act. The Remedial Action Plan Monitoring Program (RAPMA) allows the Nebraska Department of Environmental Quality (NDEQ) to coordinate and oversee efforts by property owners, prospective purchasers, and other parties interested in cleaning up contaminated (or potentially contaminated) sites. The voluntary participants will pay for site investigation and cleanup costs. NDEQ staff oversight costs will be reimbursed to the department by program participants.
Liability: Nebraska does not have a state hazardous waste management act; as such, liability is that of CERCLA — strict, joint, and several.
Eligibility: Any person, business or industry may apply to participate in the RAPMA. Remedial action plans include investigation, analysis, and cleanup activities.
Oversight: Oversight of voluntary cleanups will be provided by NDEQ, according to the negotiated work plan signed between the department and the party. After work has begun at the site, NDEQ will monitor the remedial action plan implementation at the level it believes is necessary and for which the participant has agreed to pay.
Requirements from Participants: The statute requires that participants submit a remedial action plan on a form approved by the NDEQ and provide the department with extensive site information. A detailed workplan will be drawn up either with or without NDEQ assistance. At the outset, applicants must create a proposed payment plan, including a reimbursement schedule for all department oversight and remediation costs. Parties must pay two fees: an application fee of $5,000 and a participation fee of $5,000. If the NDEQ approves the application, the department will enter into a formal agreement with the applicant.
The Act does not address termination on the part of a participant prior to the completion of a remedial action plan. However, it is possible that some participants may decide not to complete the program after they have started. This may occur at any time from the application stage through completion of the remedial action plan. It is anticipated that termination will occur via lack of activity by the participant. After a period of inactivity (yet to be determined), NDEQ will send the party a letter stating that the NDEQ is considering the participant's status. The participant also will be advised that once the project is terminated, NDEQ will not start oversight again until an additional application fee ($5,000) and participation fee ($5,000) have been submitted.
Cleanup Standards: Cleanup standards are determined on a site-specific basis. State groundwater standards must be met.
Certification: When NDEQ determines that the remedial action plan has been satisfactorily completed, the department may issue the participant a letter of completion stating that "no further action" need be taken at the site. The letter will be tailored to fit each project.
Financial Help: None available at this time.
Contacts:
Jeff Kelley
Nebraska Department of Environmental Quality
(402) 471-3387
David Ostrander
EPA Regional Brownfields Coordinator
(303) 312-6931
Colorado's Voluntary Cleanup Program has been in place since July 1994, enacted by HB. 94- 1299. No regulations have been promulgated.
Liability: Colorado has no state Superfund program. Federal CERCLA liability may apply to these sites, however the vast majority of sites do not have sufficient contamination to be considered "NPL-caliber." Although the state approval letter does not contain a Covenant-Not-to-Sue, it assures applicants that the state will not take any further action regarding the site. In order to address the federal liability issue, the state and EPA signed a Memorandum of Agreement (MOA) in April 1996. The agreement assures applicants that EPA will not take any Superfund action at a site where a voluntary cleanup plan has been approved by the state.
Eligibility: The program is geared towards owners of contaminated sites, but prospective purchasers may participate by obtaining a letter from the site owners authorizing them to undertake cleanup.
Oversight: The program is designed for minimal state oversight. The application contains all necessary site characterization information and the proposed cleanup plan. The state reviews and approves the application. Such approval is contingent upon the applicant performing the cleanup plan as proposed. The state oversight ends with approval of the plan. There is no construction oversight performed by the state.
Requirements from Participants: A $2,000 fee is required for review of an application. Any unspent portion of the fee is refunded.
Cleanup Standards: The state uses MCLs and state promulgated stream standards for groundwater and surface water contamination. No state standards exist for soils contamination. The state will accept standards from other states, or EPA guidance, if the applicant can show they are applicable. The statute also allows for risk-based cleanups. The risk evaluation and state approval is specific to the proposed land use.
Certification: The statute requires that the applicant self-certify that the cleanup has been completed as approved. There is no additional state involvement in the process. However, under the state/EPA Memorandum of Agreement, in order to obtain EPA's assurance that they will take no further action, the state must concur on this certification. In order to achieve this, the applicant must submit the completion report as a new application for a No Further Determination, along with a new filing fee.
Financial Help: None available at this time.
Contacts:
Dan Scheppers
CO Department of Public Health and Environment
(303) 692-3398
Jeff Deckler
Colorado Department of Public Health and Environment
(303) 692-3387
Montana's Voluntary Cleanup and Redevelopment Act (VCRA) was passed by the 1995 Montana legislature and became effective on May 1, 1995. VCRA is part of the Comprehensive Environmental Cleanup and Responsibility Act (CECRA), Montana's state Superfund law.
Liability: The current liability scheme is strict, joint, and several. However, the Montana Department of Environmental Quality (DEQ) is analyzing alternatives to this liability structure and will issue a report to the state legislature in Winter 1997.
Eligibility: Any entity can apply under VCRA. PRP's, owners, developers, banks, and municipalities all may submit a VCRA application if they have the written consent of the current owners. However, restrictions are placed on certain types of facilities that can be addressed. Facilities not eligible include, but are not limited to, the following:
Oversight: DEQ provides oversight of voluntary cleanups under the VCRA program. After an interested party files an application, the department has 30 days to review the application and determine completeness. DEQ has another 60 days after this initial 30-day period to approve or deny the VCRA plan, which includes a 30-day public comment period.
Requirements from Participants: Program participants first submit a VCRA application and proposed workplan with DEQ. Once the plan is approved by DEQ, if it is not initiated within 12 months and completed within 24 months (excluding operations and maintenance), the department's approval lapses. DEQ does have the authority, though, to grant extensions. Failure of the applicant to comply with the approved plan renders the approval void. For approved VCRA plans, DEQ can waive the procedural requirements of state and local permits for any remedial actions conducted entirely on-site.
The applicant shall reimburse the department for any remedial action costs that the state incurs in the review and oversight of a voluntary cleanup plan. When the applicant petitions for closure, the application must have reimbursed the department for all remedial costs.
Cleanup Standards: The degree of cleanup required is that determined to be protective of public health, safety, welfare, and the environment based on current and proposed uses of the facility. Cleanups must also meet applicable environmental laws and regulations. For surface water and groundwater, Montana has applicable water quality standards. Soil cleanup standards are derived via risk assessment on a site-specific basis. In the absence of a risk assessment, DEQ will accept soil cleanup levels at background levels or at below EPA's soil screening levels, which are conservative.
Certification: DEQ issues a no further action letter upon successful implementation of a VCRA plan and reimbursement of DEQ oversight costs. The following is the generic "no further action" language provided in 75019-783(3), MCA:
Based upon the information provided by the (insert name of the applicant(s)) concerning property located at (insert address), it is the opinion of the Montana Department of Environmental Quality that upon completion of this voluntary cleanup plan, no further action is required to ensure that this facility, when used for (insert purposes defined), is protective of existing and proposed uses and does not pose a significant risk to public health, safety, or welfare or the environment at the facility with regard to release or threatened releases addressed in the voluntary cleanup plan. The department reserves the right to conduct or require further remedial action at this facility if a new release occurs or if the department receives news of different information than presented in the approved voluntary cleanup plan.
Financial Help: None available at this time.
Contacts:
Carol Fox
Montana Department of Environmental Quality
(406) 444-1420
No program at this time.
South Dakota is currently in the process of developing a voluntary cleanup program within existing state law. The South Dakota Department of Environment and Natural Resources is hoping to enter into a Superfund Memorandum of Agreement (SMOA) with EPA Region VIII. The SMOA would give South Dakota primacy over EPA in determining the adequacy of cleanups completed under the VCP.
South Dakota recently was awarded a regional brownfields pilot grant. State officials see this pilot as a proving ground for development of statewide voluntary cleanup program elements (e.g., public participation was a critical element of the pilot, and it will help shape creation of the public participation component of the VCP). Following the lead of several other states, South Dakota is exploring using Superfund Preliminary Assessment/Site Investigation (PA/SI) money to publicly fund brownfields activities.
Liability: Liability is strict, joint, and several. Under the state statute, the Department determines who "caused" the pollution and names them Responsible Party (RP) whenever possible. If that cannot be determined, the current property owner or operator is designated the RP.
Eligibility: Eligibility is extended to any responsible party, group, or entity that approaches the state of South Dakota under provision of SDCL 34A-10-17; Obtaining Voluntary Compliance — Administrative Settlement Agreements.
Oversight: There is direct oversight of assessment, corrective action, or compliance monitoring.
Requirements from Participants: No details available at this time.
Cleanup Standards: Cleanup standards are the same for brownfields as they are for any regulated substance release. South Dakota has groundwater quality standards. For other situations, South Dakota will evaluate risks posed by the release on a site specific basis.
Certification: At this time, South Dakota offers no means to provide liability relief to prospective purchasers. The state expects to provide liability relief to responsible parties through a proposed Superfund Memorandum of Agreement (SMOA) with EPA.
Financial Help: None available at this time.
Contacts:
Lee Baron
South Dakota Department of Environment and Natural Resources
(605) 773-3296
Legislation for Utah's voluntary cleanup program, currently in draft form, will be introduced to the legislature in January of 1997. State officials indicate the Utah's program will closely resemble the Texas voluntary cleanup program.
Contacts:
Brent Everett
Utah Department of Environmental Quality
(801) 536-4100
No program at this time.
Jim Hanson
EPA Regional Brownfields Coordinator
(415) 744-2237
Voluntary cleanups in Arizona take place under the authority of the Water Quality Revolving Fund. They are overseen by the Arizona Department of Environmental Quality (DEQ) . In April 1996, the voluntary program got a serious boost with the passage of S. 1410 and HB. 2114, two bills that clarify lender liability and provide for state Prospective Purchaser Agreements. At present, Arizona and EPA are negotiating a Superfund Memorandum of Agreement (SMOA), an agreement that would indicate that cleanups conducted under Arizona's voluntary cleanup program meet EPA's criteria. The SMOA, which should be signed in late September 1996, is designed to provide closure to the remediation process — something that is critical in terms of making brownfield projects attractive for lenders and voluntary parties.
Liability: Liability in Nebraska used to be strict, joint, and several. However, with the enactment of HB. 2114, joint liability was removed, leaving strict and several in place.
Eligibility: Anyone may approach the DEQ with a request of assistance. Sites subject to Consent Orders or Unilateral Orders are not eligible for inclusion in the voluntary cleanup program. Also, if a cleanup were determined to be a long-term project (i.e., more than six months), DEQ would probably place the project within one of the existing remediation programs. DEQ does not intend to apply the "personalized" service of the voluntary cleanup program to every site and situation.
Oversight: The state provides oversight of participants in the voluntary cleanup program. Whenever possible, DEQ enters into reimbursement agreements to recoup oversight costs. DEQ's involvement at a site will vary depending on the severity of contamination and the complexity of remediation. In the case of a simple removal, DEQ may simply review the final report of the work. For larger projects, DEQ highly recommends that the interested party work with the state in the preparation of the workplan to satisfy DEQ's complete characterization and analysis needs. DEQ may make site visits and take confirmation samples at their discretion. Depending on the review needed, DEQ may issue approval letters of workplan documents.
Requirements from Participants: At a minimum, all substantive requirements for air, solid and hazardous waste, and water discharge permits must be met. Participants must submit a remedial action plan to the DEQ. The plan will: (1) provide documentation regarding the land or water pollution; (2) demonstrate that the applicant holds or can acquire title to all lands or has the necessary easements and rights-of-way for the project; and (3) provide a plan for cleanup and monitoring, using appropriate engineering, scientific, and financial feasibility data.
Cleanup Standards: Pursuant to existing state law, DEQ uses Health Based Guidance Levels for soil cleanup. These are interim soil remediation standards until final rules are published in August 1997. There are two standards — residential and non-residential — for approximately 300 chemicals or compounds. At this time, these criteria reflect an "ingestion scenario" (the final rules will consider "inhalation" and "trans-dermal" scenarios, as well). In addition, the rules stipulate that contamination must not present a nuisance factor (odor, dust, etc) or a threat to groundwater. The standards assume a 10-6 excess cancer risk, although that may be modified in the final rules to a 10-5 level. As an alternative, a party can provide a site-specific risk assessment, with prior approval of the methodology, as a cleanup standard.
If a party meets the residential cleanup standard, there will be no restriction to its use. If a property is zoned residential, the cleanup also must achieve residential levels. For a property remediated to the non-residential standard, a Voluntary Environmental Mitigation Use Restriction (VEMUR) is required. This is an attachment to the property deed/title that is recorded at the appropriate county recorder along with entry into DEQ's publicly-available VEMUR database.
Certification: Upon completion of a negotiated workplan, DEQ will issue the appropriate closure document. Closure documents are only between the DEQ and the property owner. Prospective purchaser agreements and covenants-not-to-sue are also now available. The DEQ is currently crafting boilerplate language for the prospective purchaser agreements.
Financial Help: None available at this time.
Contacts:
Tim Steele
Arizona Department of Environmental Quality
(602) 207-4224
The California Environmental Protection Agency's Department of Toxic Substances Control (DTSC) has operated a Voluntary Cleanup Program (VCP) for industrial site cleanups since late 1993. About 100 sites now are enrolled in the program, and approximately 95 projects have been released from the VCP after receiving from the state either no further action letters or certificates of completion. The certification does not imply a Covenant-Not-to-Sue, but it does reduce potential liability for the site. Program officials discuss economic development considerations of potential sites with local agencies and municipalities.
DTSC also runs a pilot initiative, referred to as the "SB923" program for the legislation enacting it, that utilizes different treatment standards and a liability allocation scheme. This experimental VCP is allowed to enroll a maximum of 30 sites, and currently has enrolled two. Funding assistance eventually will be available for ten orphan sites, once the trust fund created by the legislation is built up from penalties and fines diverted from other state environmental enforcement programs.
Liability and PRPs: Liability is strict, joint, and several. State law allows participants in the pilot VCP to seek proportional liability allocation.
Eligibility: Sites are eligible provided they are not part of the federal or state Superfund programs, and do not exclusively involve underground petroleum storage tank cleanup, which is the jurisdiction of the Regional Water Quality Control Boards. The program accepts prospective purchasers, current site owners and operators, and responsible parties.
Oversight: DTSC staff work closely with program participants to establish the scope, schedule, and estimated cost of the proposed cleanup. The department also allows participants to pursue the various assessment and cleanup tasks at their own pace, in a manner that is compatible with their cost and time assumptions. Participants may walk away from the program at any point in the process, as long as they inform DTSC in writing 30 days in advance. The state, however, still can pursue parties if necessary to protect public health and the environment. The DTSC maintains close oversight throughout the cleanup, and must review and approve all site assessments, remedial action work plans, and remedial action reports.
Requirements from Participants: VCP participants must provide an advance payment to the DTSC for half of the project's estimated cost, which includes DTSC oversight expenses. The department has the discretion to adjust the payment amount and schedule, taking into consideration the project's costs and duration.
Cleanup Standards: Since the VCP was established under the existing statutory authority of the state's Superfund program, its cleanup standards are identical to those used in the Superfund program. Cleanups must follow procedures set forth in the CERCLA National Contingency Plan, which relies heavily on site-specific risk assessment and risk analysis. DTSC often approves the placement of land use restrictions on remediated properties.
Certification: DTSC may issue a No Further Action letter on sites that exhibit some degree of contamination but that pose no threat to human health or the environment. Sites that proceed through the assessment and cleanup program receive from the state a Certificate of Completion, which reduces liability exposure but does not remove it entirely.
Financial Assistance: Financial assistance will be available to those sites participating in the state's pilot VCP, yet no financing is provided to those sites in the regular VCP.
Contacts:
Barbara Coler
Director
Statewide Cleanup Operations
Department of Toxic Substances Control
CA Environmental Protection Agency
(510) 540-3827
No program at this time.
No program at this time.
No program at this time.
Michelle Pirzadeh
EPA Regional Brownfields Coordinator
(206) 553-1272
No program at this time
Idaho's Voluntary Cleanup Program was established by the Idaho Land Remediation Act, passed by the legislature in 1996. It will become effective in 1997 with the promulgation of applicable regulations. Although the Department of Environmental Quality (DEQ) is in the process of negotiating a rulemaking at this time, many program elements are currently known based on the statute and agency guidance.
Liability: The Idaho Land Remediation Act does not affect existing liability provisions in Idaho. It does, however, provide liability relief for "innocent" third parties that voluntarily step forward to clean up a site. This means that an individual may enter the voluntary program, take title to a property, conduct remedial activities, and receive a Certificate of Completion from DEQ — all without entering the chain of liability at the site. The state also establishes a moratorium on state legal or administrative action at a site during implementation of an approved Voluntary Remediation Agreement.
Eligibility: Idaho's program is open to a broad range of sites, including those that contain hazardous substances and petroleum. The DEQ may reject an applicant when a) there is an imminent threat to human health and the environment, or b) cleanup is required under a different state statute, such as RCRA. It is important to note that regulation under RCRA, or any other state or federal statute, does not automatically preclude a state from entering the voluntary cleanup program; this decision is made at the discretion of the DEQ.
Oversight: State oversight activities are funded by the applicant and are determined on a case- by-base basis. The level of oversight will be commensurate with the complexity of assessment/remedial activities at the site. When an individual applies under the voluntary cleanup program, DEQ and the party sit down and negotiate a Voluntary Remediation Workplan that contains an assessment of the level of effort that will be required of the state. At that time, the applicant provides a deposit for future state costs to be incurred (details will be worked out in the final regulations).
Requirements from Participants: Participants must enter into a negotiated Voluntary Remediation Agreement that specifies the remedial workplan, state oversight parameters, and costs for the participating party.
Cleanup Standards: DEQ officials estimate that regulations specifying cleanup standards will be promulgated by Winter or Spring 1997. In their current proposed form, the rules require the use of either generic numeric cleanup standards, or risk-based site-specific cleanup standards. They cannot be more or less stringent than applicable or relevant state or federal standards, such as those spelled out in CERCLA. To date, the state has adopted cleanup standards for the following: air quality, groundwater, and surface water. For soils, the state utilizes federal cleanup standards where they exist.
Certification: Upon satisfactorily completing the cleanup, the applicant can request a Certificate of Completion as well as a Covenant-Not-to-Sue.
Financial Help: Idaho offers some financial relief on brownfields projects through real estate tax abatements. A program participant, upon receiving a Covenant-Not-to-Sue, may apply to his/her local taxing entity for a 50% tax break on the property's appreciation due to remedial activities.
Contacts:
Lance Neilsen
Idaho Department of Health and Welfare
Division of Environmental Quality
(208) 373-0291
Through Oregon's Voluntary Cleanup Program, parties may receive a "no further action" letter, releasing them from Department of Environmental Quality (DEQ) liability upon successful remediation of a site. The letter's provisions may be re-opened if new information surfaces on a site (e.g., newly found contamination). The program has been in place since 1991 and presently has about 124 active sites.
Liability: Once a site is accepted into the program, a Letter of Agreement is signed between the party and DEQ stating that the party will clean up the site with state oversight. Later withdrawal from the agreement or termination of the agreement by DEQ due to a party's failure to cooperate may lead to referral into the State Superfund Program (if the site becomes a DEQ priority). Responsible Parties are liable for site contamination under the state's strict, joint, and several liability statutes. Potential buyers of contaminated sites may receive liability exemption and a Covenant-Not-to-Sue through a Prospective Purchaser Agreement. DEQ also has adopted Lender Liability Rules.
Eligibility: Sites are usually low to medium priority. Any Superfund-type site can be eligible, but generally not sites on the NPL or RCRA sites subject to federal action. LUST sites are handled through the LUST/UST program. Sites operating under DEQ permits usually are not eligible, especially when these are landfills, although some may enter the program depending on the nature of the permit.
Oversight: Interested parties submit an "Intent to Participate" form to the DEQ and then sign an agreement with the DEQ. That agreement can take two forms:
Once an agreement has been reached, DEQ may review all reports, work plans and actions done on-site. The agency starts by conducting a file review to obtain information on previous work done on the site, and develops the information into a memo. Data gaps are discussed with the interested party, and recommendations are given regarding further action to be taken on-site. Particularly for those sites where little information is available, DEQ requests an investigation work plan to ensure an adequate assessment of the site. Once the site investigation is finished, DEQ reviews it for completeness.
Where relevant (particularly in "complex sites"), the risk assessment and feasibility study also are reviewed by DEQ. Once cleanup standards are set, the agency reviews a remedial action work plan. If the plan is approved, remediation may begin. Once that is complete, DEQ may review the work done for the purpose of granting no-further-action letters to parties whose work is acceptable.
DEQ also is required to notify the public and provide a 30-day period for people to express interest and discuss the project. If ten or more people express interest, hearings must be held, and the party must respond to suggestions given.
Requirements from Participants: Entrance into a binding agreement with DEQ is required. Provisions of that agreement may include: (a) a unilateral termination clause by DEQ; (b) state indemnification through a "hold harmless" clause; and (c) provisions for access and oversight of the site by DEQ. To cover the agency's oversight costs, a fee of $5,000 is due once the agreement is signed by the party. Any unused funds may be refunded; costs incurred in excess of $5,000 also are billed to the party by DEQ.
Cleanup Standards: "Simple Sites" must (a) have limited soil contamination; (b) have no groundwater contamination; (c) involve no sensitive environments; and (d) contain contaminants for which numerical targets exist. Cleanup efforts at simple sites may use existing numerical standards. Two sets of standards exist: residential and industrial. These standards reflect a 10-6 risk reduction level for each contaminant (there are no specific levels for an aggregate of specific contaminants at a site), and Hazard Index=1. Parties may also propose site-specific standards for simple sites, if backed by a feasibility study and risk assessment.
"Complex Sites" are not classified as "Simple Sites." Legislation enacted last year (HB 3352) will significantly change Oregon's cleanup programs, particularly in relation to cleanup of more complex sites. The legislation provided for the following:
DEQ is currently adopting administrative rule amendments addressing some of these issues. Final adoption should occur in January 1997.
Certification: Upon successful remediation of a site, parties may receive a no-further-action letter, which releases the party from DEQ liability. The letter's provisions may be reopened if remedy failure occurs or if information is discovered about a site, such as newly found contamination.
Financial Help: Nothing available at this time.
Contact:
Alan Kiphut
Coordinator
Voluntary Cleanup Program
Oregon Department of Environmental Quality
(503) 229- 6834
Washington's Department of Ecology (DOE) has a set of three policies to coordinate site cleanup efforts. One is the Independent Remedial Action Program (IRAP), which leaves most of the work to be done by private parties themselves, and does not provide binding certification; rather, it issues a "no- further-action" letter upon successful completion of the cleanup. Another is the "prepayment agreement" policy, where interested parties pay the agency up-front for oversight costs. The last is the "prospective purchaser" policy, which deals with parties that want to purchase a site and agree to conduct the cleanup. Here not only may the department help with recovery of costs from responsible parties, but it also can issue a Covenant-Not-to-Sue for the site. The department has some remedial action grants to encourage voluntary cleanups, but there is no formal interaction with the Department of Trade and Development.
Liability: Washington State's liability scheme is similar to that of CERCLA: strict, joint, and several. PRPs are current and past owners and operators, as well as generators and transporters of waste in contaminated sites. Lenders are exempt from liability within certain parameters. Specifically, exemption from liability applies to sites under a lender's control for a period beginning one year before foreclosure and lasting until five years after foreclosure. Within that time span, lenders may take part in management of a site, including efforts to remediate and redevelop the property, and not risk becoming a Potentially Liable Party (PLP), as long as their actions did not or do not cause contamination. They also may sell the site within that time if they wish. Local governments are treated as private entities, and thus are PLPs of any contaminated sites in their possession. These include sites obtained through foreclosure, as well as orphan sites.
Eligibility: There are few restrictions on program eligibility. Sites under jurisdiction of other programs may or may not be eligible. LUST sites often have been cleaned under the Independent Remediation Action Program; RCRA sites may be eligible (due to an agreement with EPA Region 10); and even sites under federal Superfund can be cleaned with the Department of Ecology's supervision. PLPs, as well as prospective purchasers, may participate.
Oversight: Interested parties face a number of different options for remediating their site. Each option affords different levels of liability protection.
(a) Under the IRAP, parties can conduct cleanups with limited state oversight. Participants need only notify DOE that they are in the process of remediating a site, and need no other permits or approvals. Once cleanup is completed, parties are to submit information proving they achieved an acceptable level of cleanup. If their remediation is approved, DOE may issue a no-further-action letter to the cleanup party.
(b) In more complex cleanups, or any cleanups where the cleanup party is unsure of what actions to take, the party may choose to negotiate a consent order with DOE. Under this option, the interested party conducts the cleanup under full oversight of DOE. The process begins with a review of available DOE files pertaining to the site, as well as a request for quality assurances for the data submitted by the interested party. Making use of available information gathered, the party submits to DOE a site investigation work plan to fill any data voids. Upon approval, investigative action may begin. Once finished, information from this action is used to devise a feasibility study for remedial action.
A "decision document" is then completed by DOE and the cleanup party outlining the cleanup plan. Remedial activities may then follow. A final report is sent to DOE for approval of the cleanup job, and samples may be taken by DOE to further verify compliance with the plan outlined in the decision document. If the remedial action is acceptable, written assurances may be in order.
Further, if the actions to be taken on the site are straightforward, all steps of the cleanup process can be incorporated into a comprehensive decision document. This may help to streamline the process.
(c) the same oversight process is used to supervise action taken under the program's "prospective purchaser" provision. It generally is not as long as a regular consent order cleanup, as purchasers usually come into the process with a substantial amount of site information already gathered. This leads to faster resolution of cleanups.
(d) A more streamlined process is available by use of an "agreed order" instead of a consent order. In this case, there is less DOE involvement in oversight of investigation and remediation. This option usually is limited to sites where the necessary action to be taken on a site is fairly straightforward, and does not warrant extensive DOE involvement. However, lower levels of liability assurance are required for remediated sites.
(e) Liable owners willing to remediate their property may enter into a "prepayment agreement," where they may receive DOE oversight of their cleanup activities by agreeing to an up-front payment of DOE oversight costs.
Requirements from Participants: IRAP requirements are limited to cost reimbursement for DOE's review of final site cleanup activities. This is done through payment of whatever amount is greater: a flat fee of $1,000 or a fee of 1 percent of the total cleanup cost, where the fee total is not to exceed $15,000. The other policies require entering into an agreement with DOE, either through a consent order or an agreed order, which are to contain enforcement provisions for non-compliance. Recovery of DOE oversight costs also is to be negotiated through this agreement.
Cleanup Standards: Cleanups must reach a risk standard of 10-6 for cancer-causing substances and a Hazard Index=1 for non-cancer causing substances. Recently approved legislation allows for differential standards based on land-use, but regulations setting these different tiers of standards are still in the developmental stage. Meanwhile, land-use considerations are applied through the remedy selection process; commercial and industrial sites may make use of engineering and institutional controls where feasibility studies conclude that they are necessary.
Certification: DOE provides a no-further-action letter for successful remediation of the following: (a) IRAP sites; (b) sites whose parties entered into an "agreed order" with DOE; or (c) "prepayment agreement" sites. On the other hand, parties that have entered into a consent order with DOE (including "prospective purchaser" parties) may be eligible for covenants-not-to-sue, as the greater extent of DOE oversight performed at these sites provides greater assurance of proper remediation. Re- opener clauses apply for fraudulent conduct undertaken by parties in remediating their sites; discovery of contaminants not tested for in the site investigation; and remedy failures. Re-openers may be in order if stricter standards are adopted by DOE in the future, but with certain constraints.
Financial Help: Since the state constitution prohibits the state from providing money to a party to create a competitive advantage, there is limited potential for financial aid programs for voluntary cleanups. However, there are very limited DOE funds that may be used in a "mixed funding" setting, where the interested party is strapped to pay for the cleanup. This may only apply for small cleanups, however, as funding is very limited.
Contacts:
Harold Bucholz
Washington Department of Ecology
(360) 407-7185
http://www.nemw.org/cmclea4a.htm