Coming Clean Chap. 4

The sheer number and cost of hazardous waste cleanups has inspired a backlash against conventional hazardous waste remediation programs — at both the federal and state levels. The number of voluntary cleanup programs and brownfields initiatives has risen dramatically in response to this frustration. As of Fall 1996, the total number of state voluntary cleanup programs has risen to 37, with 33 of these having been created or formalized in the past 5 years. Several more states are following close behind and plan to unveil programs in the next year.

This chapter summarizes how each state facilitates the cleanup of hazardous waste, either through voluntary cleanup or brownfield programs. The following elements are included: Liability and Potentially Responsible Parties (PRPs), Site and Party Eligibility, Certification, State Oversight, Private Party Requirements, Cleanup Standards, and Financial Assistance. States are presented by EPA Region, as indicated by the following groupings:

Region I	Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont
Region II	New Jersey, New York, and Puerto Rico
Region III	Delaware, Maryland, Pennsylvania, Virginia, and West Virginia
Region IV	Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina South Carolina, and Tennessee
Region V	Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin
Region VI	Arkansas, Louisiana, New Mexico, Oklahoma, and Texas
Region VII	Iowa, Kansas, Missouri, and Nebraska
Region VIII	Colorado, Montana, North Dakota, South Dakota, Utah, and Wyoming
Region IX	Arizona, California, Guam, Hawaii, and Nevada
Region X	Alaska, Idaho, Oregon, and Washington

Region I

Connecticut

Connecticut's Urban Sites Remedial Action Program was established in 1992 and operates in conjunction with the state's 1985 Property Transfer Act. The program is conducted mainly by the Department of Environmental Protection's (DEP) Water Bureau, although the Department of Economic Development (DED) also is involved. Under the program, site cleanup can take three different forms: Type I sites receive expedited review and approval of voluntary cleanup proposals; Type II sites involve more state participation in the development of cleanup proposals, and allow the state to implement the cleanup plan in distressed communities; and Type III sites can be purchased by the state for cleanup, which then allows the state to remediate and lease the rehabilitated property to parties interested in its reuse, using lease payments to fund the cleanup process. (The state can assume liability and cleanup costs of up to $15 million.) The Industrial Parks Program and Manufacturing Assistance Act provides for state oversight of cleanups as part of site preparations for industrial redevelopment. The Connecticut Development Authority, moreover, has an Environmental Cleanup Fund. There are presently 25 private- party funded cleanups being conducted under the Urban Sites Program.

Liability and PRPs: Like federal CERCLA, Connecticut's liability is strict, joint, and several. PRPs are a site's owners and any parties responsible for generating the waste present on a site. Lenders are not liable, as long as they do not own the site. Local governments are liable for any contaminated sites they own, including those obtained through tax recovery and foreclosure.

Eligibility: To participate in the Urban Sites Remedial Action Program, sites must be located in urban areas and deemed by the Department of Economic Development (DEP) to have potential for economic development. These sites may be under the jurisdiction of other programs, such as Superfund, LUST, or RCRA. Other factors also determine which part of the program a site falls under: Type I sites involve a party responsible or willing to take responsibility for cleaning the site; Type II sites consist of orphan sites, or a site where the owner is unwilling or unable to clean the site; and Type III sites have a prospective purchaser interested in reusing the site. Type II and Type III sites must be located in distressed municipalities, as defined by the Department of Economic Development.

Oversight: Each of the three different types of sites has a corresponding set of requirements and procedures associated with them:

a) The Type I site program involves expedited state oversight of cleanup activities. After the initial application has been approved, DEP reviews its files for any information on the site in question; the ensuing site investigation then builds on any file information found. Investigation criteria vary from site to site, but usually go beyond Phase I assessment standards to include sampling. Once the investigation has been deemed appropriate and the extent of contamination on the site has been quantified, the party may submit a plan for remedial action. Once that has been approved, remedial activities may begin. Through review of a final site report, the DEP then decides whether the site has been cleaned properly.

b) Under the Type II site program, the DEP conducts the site investigation and drafts a remedial action plan. In sites that DED classifies as economically significant, the agency may hire contractors to implement the remedial action plan.

c) The Type III site program allows DED to purchase the site in consultation with the Department of Environmental Protection, which then conducts the investigation and contracts for remediation of the site, with the intent of locating the prospective purchaser's business there. The state can assume liability and cleanup costs of up to $15 million. Once the cleanup is completed, the DED leases the property to recover the state's costs.

Requirements from Participants: While DEP will review cleanup plans, Type I site participants are required to pay for DEP's oversight costs and to take full responsibility for the site's remediation. Type II and III sites also involve cost recovery measures — lease payments on the property — by the DED and the Department of Environmental Protection.

Cleanup Standards: In January 1996, the state of Connecticut adopted remediation standard regulations. The new standards address cleanup under different contamination scenarios, including direct exposure, contaminated soil mobility, and volatilization from ground water.

Under the direct exposure scenario, the state has developed two sets of numerical standards for soil cleanup — one set for residential areas and one for contaminated soils in industrial/commercial areas. To address mobility, the state also has issued additional cleanup standards for contaminated soils with respect to groundwater quality. Connecticut differentiates between groundwater that is presumed to have been impacted by development and groundwater that is presumed to be unimpacted and which, therefore, may be available as a drinking water source. A third scenario addresses volatile organic compounds (VOCs) in groundwater. The new regulations establish numeric criteria for groundwater that is contaminated with VOCs and is located within 15 feet of a structure or building.

Certification: If remediation is satisfactory, the Department of Environmental Protection may issue the party a letter acknowledging completion of activities at the site. It also issues covenants-not-to- sue to new owners of remediated land. If cleanup standards are made more stringent in the future, or if contamination undetected by the site assessment is subsequently found, re-opener clauses in the letter of completion enable the state to require parties to bring their sites into compliance. However, the same is not true for the covenants; it may very difficult for the Department of Environmental Protection to obtain a re-opener on those sites.

Financial Help: The Urban Sites Remedial Action Program was instituted in 1993 along with a $25 million bond fund to spur site assessment and cleanup activities. The fund has now reached a total of $30 million, $22 million of which has been dispensed to date.

Maine

Maine initiated its Voluntary Response Program three years ago. The state also maintains a Controlled Sites Program, which is activated when voluntary cleanups are not completed in a satisfactory manner. There are currently 65 applicants, while 42 sites have been resolved.

Liability and PRPs: Liability is strict, joint, and several. PRPs include present owners and operators, past owners, and generators of the site waste (especially in cases involving landfill remediation and closure). Lenders and development authorities are not liable as long as they are merely acting as financiers, rather than as participants in the management of the site. Local governments with sites may or may not be liable, depending on the site, according to state officials. They may not be liable if they are not managing the site. Often they may be named as PRPs of a site, but not be pursued.

Eligibility: Any sites not falling under the jurisdiction of other programs, such as Superfund, LUST, or RCRA, are eligible to participate in the program. Sites operating under Department of Environmental Protection licenses, such as waste management and landfill facilities, are ineligible to participate.

Oversight: Responsible parties or prospective purchasers take the initial step of site investigation. There are no specific state standards for site investigations, although state officials say that a Phase I assessment done in accordance with ASTM (American Society for Testing and Materials) standards will put the party on a good footing for further action. Depending on the results of the Phase I assessment, a Phase II assessment may be necessary. Once the presence and level of contamination are determined, a remedial action plan is submitted to DEP for review. If that plan is deemed satisfactory, cleanup activities may begin. Upon completion of the cleanup, the party is to submit a final report demonstrating that the plan was carried out and remediation accomplished.

Requirements from Participants: Parties are responsible for payment of oversight costs, not to exceed a rate of $50 per hour, as well as an initial $500 nonrefundable fee.

Cleanup Standards: Cleanup standards are site-specific, but must achieve a minimum of 10-5 risk level, applicable for each contaminant on-site as well as to the site as a whole. Some contaminants have additional numerical targets for cleanup, established by DEP toxicologists and determined by past experience at other sites. The DEP is working on a "conservative, worst-case" table of numerical cleanup levels. Current cleanup levels take future land use into consideration, but the DEP table is expected to have different contamination standards for different land uses. Decisions on the use of institutional and/or engineering controls are also site-specific.

Certification: Covenants-not-to-sue are not yet available in Maine. If a site assessment submitted to DEP shows no or de minimis levels of contamination, a "no remedial action" letter is granted. If contamination is found and successfully cleaned up, a certificate of completion releases the party from liability for all contaminants identified in the site assessment. Reopener clauses apply in limited circumstances, including subsequent detection of new contamination not identified in the site assessment, and cases involving partial voluntary response actions. In the latter example, parties who opt to remediate soil but not groundwater contamination may find themselves responsible for doing so should technological developments (and corresponding tightening of cleanup standards) later improve the feasibility and costs of groundwater remediation. In general, however, re-openers do not apply if the state introduces more stringent cleanup standards (if any future action is taken, the state would have to pay for it). The certificate of completion does not affect third party or federal actions, but DEP is testing a tacit agreement on some sites (some of which are NPL-caliber) in which EPA would not seek enforcement against Voluntary Response Action Program Sites.

Financial Help: No financial assistance programs are available on the state level, nor are there plans to institute any. Some municipalities may provide help for cleanups through tax increment financing.

Nick Hodgkins
Oil and Hazardous Materials Specialist II
Maine DEP
(207) 287-2651

Mark Hyland
Director, Division of Site Investigations and Remediation
Maine DEP
(207) 287-2651

Massachusetts

The Massachusetts Clean Sites Initiative targets sites that have both development potential and prospective purchasers. The Commonwealth also has a Waste Site Cleanup Program, for interested responsible parties, that addresses those sites with sub-standard development potential. Both programs follow the guidelines of the Massachusetts Contingency Plan, which enables state regulators to categorize, determine oversight procedures, and set standards for the cleanup of sites. To be eligible for the program, sites must be located in one of 30 areas defined as economic targets. At least 30 covenants- not-to-sue have been granted. The City of Boston has its own Brownfields fund. Participants in running the state programs are the Department of Environmental Protection (DEP), the Executive Office of Economic Affairs, and the Office of the Attorney General. Initiatives under development include an Industrial Sites Recycling Program and a loan guarantee program.

Please note that new legislation, due to be introduced October 1996, could provide additional liability relief and financing mechanisms. Details are provided at the end of this program summary.

Liability and PRPs: Liability provisions for the programs are those of the state Superfund, which are strict, joint, and several. PRPs include current owners, past owners (where it can be proven they are responsible for contamination) and generators and transporters of site contaminants. Lenders which own sites through foreclosure, or which hold interest in a site, may be exempted from liability provided they did not cause or help cause contamination, and that they take measures necessary to eliminate contaminant exposure. The same is applicable to local governments, as long as their foreclosed sites are due to tax delinquency enforcement.

Eligibility: Clean Sites Initiative projects must involve land reuse for commercial and industrial purposes, and their respective sites must be located in a state Economic Target Area, or deemed by the Executive Office of Business Development (EOBD) as a development opportunity. Applicants must be prospective purchasers willing to ensure the cleanup of the site as required by Superfund law and its ensuing regulations (the Massachusetts Contingency Plan, or MCP). PRPs of contaminated properties or owners of properties already in compliance with state cleanup standards are not eligible.

Oversight: The Clean Sites Initiative process begins with the filing of an initial application that DEP and EOBD review to determine whether the site is eligible or if any outstanding debts exist to the DEP pertaining to previous action taken on the site. The DEP strives to return applications within 30 days, although applications involving negotiation of these past debts take somewhat longer. Once approved, assessment and cleanup activities may begin on the site. For the Waste Site Cleanup program, the party is to notify DEP of releases that have taken place on the property.

State oversight applies to both programs, and depends on the nature of the site, in accordance with MCP categorization guidelines. The Numerical Ranking System is the means by which this is done. It is conducted by the independent Licensed Site Professional (LSP), selected by the party to the cleaning and assigned to the site. The numerical ranking may be done at any time within the first year after DEP has been notified of the site, but it becomes mandatory after that date.

Tier IA sites encompass the most serious and complex types of corrective action. These sites must follow a Superfund-style oversight process, where the LSP hired by the party conducts the remedial action plan under direct DEP oversight. The LSP first submits a Phase I assessment report for site classification purposes, followed by a Phase II investigation, the results of which are submitted to DEP for approval. Where applicable, the LSP may conduct a risk assessment and feasibility study, also subject to DEP approval. The remedial work plan is then developed and approved by DEP before actual remediation can be undertaken. Upon completion of the remedial action, the LSP submits the final report outlining the remediation done at the site, accompanied sometimes by split samples taken by the DEP. If approval is granted, written assurances for the owner may be in order.

Tier IB and Tier IC sites have much more limited oversight stipulations. The LSPs are required to submit to DEP permit requests that would allow them to manage remediation of their respective sites. Once permits are granted, LSPs may initiate activities on the site without direct DEP oversight.

Tier II sites can be managed by an LSP without need for DEP approvals or permits. Remediation concludes with the issuance of a Response Action Outcome Statement by the LSP, outlining the activities performed on the site. All cleanups are to comply with the Best Response Action Management Approach, as outlined in the MCP. While compliance in Tier IA cleanups is accomplished through the oversight process, it is achieved in Tiers IB, IC, and II by LSP licensing requirements, and by annual DEP site audits of 20 percent of the sites worked on in the previous year. Affected community residents may request public participation plans from LSPs.

Finally, DEP must honor approvals granted to sites under the former waste site cleanup program. Meanwhile, LSPs and parties at those sites are free to use the new reporting procedures, as well to use the new cleanup standards to devise the best remediation action for their site.

Requirements from Participants: Under the Clean Sites Initiative, participants must agree to ensure proper cleanup of their site of interest, or be subject to enforcement actions. Cost recovery is achieved through annual compliance fees and permit issuance fees.

Cleanup Standards: Cleanup standards are in place that require demonstration of "no significant risk" to human health or the environment. They are intended to achieve a risk reduction level of 10-6 for the individual and 10-5 for the aggregate of cancer-causing contaminants, as well as a Hazard Index level of 1 for non-cancer-causing contaminants. These levels may be achieved in three ways. Method 1 makes use of numerical standards derived for 107 of the most common contaminants; these standards reflect background levels of contamination. Method 2 makes use of the Method 1 framework but allows for some site-specific adjustments. Method 3 allows for a full risk assessment of the site to enable a site-specific standard to be created for the property.

Certification: Clean Sites Initiative participants may receive a Covenant-Not-to-Sue from the Office of the Attorney General (AG) upon determination that their site is eligible, and they must in turn ensure that the appropriate response actions are taken on the site. The AG may reopen the covenant if it finds that response actions are not consistent with those required by the MCP. The AG also may reopen the covenant following completion of the cleanup if: (a) it finds that the response actions taken in the cleanup did not meet the relevant standards at the time they took place; or (b) new releases occurred at the site after the cleanup. The AG also may void the covenant if it finds that the covenant was obtained through fraud. Covenants also may be reopened in cases when releases not detected by the site assessment, or addressed by the response action, are later found, or when contamination found in the surrounding properties is found to stem from the cleanup party's site.

Financial Help: Financial assistance programs geared towards remediation are not available yet in Massachusetts, although considerations are underway for a loan guarantee program and an Industrial Sites Recycling Program, which would make available low-interest loans for remediation and redevelopment of industrial property.

Looking Ahead in Massachusetts: Officials at DEP report that legislation, due to be introduced in Fall 1996, could provide important new liability relief measures and create innovative financing mechanisms. As a reminder, the below measures are not final. They are simply being discussed by state officials.

Liability Relief. The new legislation will propose generic "endpoints" to liability. In other words, there would be a statutory "end to liability" once a party had met certain conditions, including either of the following: 1) the party is "innocent;" or 2) a permanent solution for the entire site or portion of the site containing hazardous materials has been implemented. The proposed legislation will also offer liability relief for property owners situated above contaminated groundwater that has emanated from an off-site source.

Financing Mechanisms. The legislation will propose two new financing mechanisms. First, a state loan guarantee program would be developed, called the Brownfields Access to Capital Program, that is designed to encourage lenders to finance remediation activities. Second, a small revolving loan fund would be established through issuance of a $15 million state bond. The fund, which would target facilities in Economic Target Areas, could provide low-interest loans, credit enhancements, and possibly grants to recipients.

Sarah Weinstein
Director, Division of Planning and Program Development
Department of Environmental Protection
(617) 292-5820

New Hampshire

New Hampshire's Waste Management Division has jurisdiction over cleanup efforts (cooperative effort between the State Site Corrective Action Section and the Groundwater Protection Bureau). Cleanup standards are in the final stage of development and will follow the conceptual framework of ASTM's Risk-Based Corrective Action (RBCA) standard. Contact New Hampshire Department of Environmental Services (NH DES) to obtain the current status of its Risk Characterization and Management Policy, which contains the cleanup standards and risk assessment process protocols. On June 10, 1996, the Governor signed into law Brownfields Statute Chapter 147-F, which became effective July 1, 1996. One month after program startup, one site is enrolled and several applications are being prepared.

Liability: Liability under the state's Hazardous Waste Management Act is strict. Relief from strict liability is provided to third parties by statute, when the property owner did not cause or contribute to the contamination. There is no liability for property owners related to contaminated groundwater originating from an off-site, up-gradient source. Additionally, liability protection is available in the form of a Covenant-Not to-Sue under the state's Brownfields Program. The Office of the Attorney General may bring action to recover state response costs and can place an environmental lien on properties. Failure to comply with NH DES requirements during the remedial process can result in the loss of the Brownfields Program Covenant-Not-to-Sue liability protections or an order. Compliance with orders is generally achieved through referral to the Attorney General's Office.

Eligibility: Sites are eligible for the Brownfields Program if remedial costs are not eligible for substantial reimbursement under the state petroleum site reimbursement funds and there are no unaddressed order(s) against the site. Participants in the Brownfields Program can include tenants, prospective purchasers, municipalities, and lending institutions, as long as they did not cause or contribute to the contamination. Current and former owners also may be eligible, but a number of eligibility restrictions apply. Sites that are ineligible for the state's Brownfields Program are eligible for the same remedial process as Brownfields sites but will not receive Covenant-Not-to-Sue liability protections.

Oversight: There is an application form for determining Brownfields Program eligibility. Eligibility determination are finalized in 30 days, per statutory requirements. Typical remedial process oversight includes the review and approval of work plans, site investigations, Remedial Action Plans (RAPs) and RAP Completion Reports, as necessary. Risk assessment protocols and procedures are set by the Department of Health and Human Services. If the cleanup meets performance standards, a Certificate of Completion or a Certificate of No Further Action can be provided by the NH DES.

Requirements from Participants: The key requirement is the implementation of the NH DES- approved Remedial Action Plan and achievement of its performance standards. The Covenant-Not-to- Sue does not get attached to the property deed until RAP completion.

Cleanup Standards: NH DES is in the final stages of the development of statewide cleanup standards. The standards are contained in the Risk Characterization and Management Policy. This policy contains look-up tables that provide soil and groundwater standards and protocols to develop site specific numbers, based on standardized risk assessment protocols.

Certification: A Certificate of Completion is available to parties that have completed a NH DES approved Remedial Action Plan (RAP). A Certificate of No Further Action is provided by NH DES when no significant risk remains and no significant additional involvement by NH DES is required. A Covenant-Not-to-Sue is provided to Brownfields Program participants upon entry into the program and is recorded into the deed upon RAP completion.

Rhode Island

Rhode Island's Voluntary Cleanup Program, in place since 1993, was revised in July 1995 through the Industrial Property Remediation and Reuse Act. The Industrial Property Remediation and Reuse Program offers liability relief to third parties and financial institutions participating in the program. Approximately 80 sites are currently enrolled. Additional legislative proposals under consideration would provide economic incentives and add an economic development agency to assist the Department of Environmental Management (DEM) with the site selection process.

Liability and PRPs: Liability under the state's Hazardous Waste Management Act is strict, joint, and several. Failure to comply with DEM requirements throughout the cleanup process can result in "responsible party" designation, whether or not the party to the cleanup was originally responsible for the contamination.

Agreements with DEM are determined by the party's cooperation in executing program guidelines. Recalcitrant parties may be required to enter into a Consent Agreement. DEM's Adjudication Division, which can issue a Notice of Violation, ensures compliance with cleanup projects. There are no liability exemptions for lenders or local governments that acquire sites through foreclosure.

Eligibility: The state requires that sites be low-priority contaminated properties, as well as candidates for redevelopment. Unable to participate in the program are sites that pose an imminent and immediate threat to human health and the environment, including those under the jurisdiction of DEM's RCRA, LUST, and Superfund programs. Some of the concepts underlying the Industrial Property Remediation and Reuse Program may be applied toward cleanup of underground storage tank sites on a case-by-case basis.

Responsible parties, voluntary parties, and prospective purchasers (which could be individuals as well as businesses) are eligible to participate in the program with varying levels of responsibility toward the DEM. Responsible parties include current and past owners and operators at the site; persons who arranged for hazardous materials disposal at the site; and persons who brought to the site hazardous materials that subsequently were released to the environment. Voluntary parties are persons who are not responsible parties and who conduct a site assessment and/or a cleanup in accordance with DEM requirements. Prospective purchasers include persons who are not responsible parties, who do not hold a 10 percent or greater interest in the ownership or operations of a site, and who intend to buy the contaminated site at fair market value.

Oversight: Site investigations and remediations are conducted under the state's Site Remediation Regulations, which require responsible parties to notify DEM of accidental releases of hazardous chemicals to the environment. Voluntary parties and prospective purchasers must notify DEM of their intent to clean a site, and they must adhere closely to DEM requirements to avoid becoming responsible parties.

Public notification requirements have been expanded under the Industrial Property Remediation and Reuse Act, and will be specified through regulation. At a minimum, notification consists of publishing announcements in local papers, as well as distributing reports among residents of the surrounding communities. In addition, DEM must consider environmental justice issues when reviewing site cleanup plans.

Requirements from Participants: Requirements vary according to the party's relation to the site. Responsible parties (RP) must conduct site investigations and cleanups according the DEM's Site Remediation Regulations. Notice of hazardous releases that pose an imminent threat must be reported immediately to DEM, followed with a written notification in 48 hours. Other releases must be reported within 15 days. Enforcement actions generally are not invoked by DEM provided the RP cooperates with the state during the investigation and cleanup.

Voluntary parties (VP) may submit a site investigation work plan, for sites known or suspected of contamination, to DEM for approval. VPs must submit the results of that investigation to the DEM to avoid becoming a responsible party. If a site is known to be contaminated and an incomplete assessment has been done, VPs may conduct a second-phase investigation and avoid becoming a responsible party by reporting the results to the DEM. Second-phase investigations must not exacerbate the conditions at the site. DEM recommends that it review second-phase investigation work plans to ensure that planned actions do not make matters worse at the site.

Bona fide prospective purchasers (PP) must enter a Settlement Agreement with DEM to complete or conduct an assessment and remedial action in order to avoid becoming a responsible party for sites at which contamination is known or suspected. In cases where remedial action is necessary, the Settlement Agreement binds the PP to undertake and complete the cleanup; failure to do so results in being designated an RP. Similarly, PPs who fail to enter a Settlement Agreement prior to taking ownership of the property, or beginning operations at the site, become responsible parties and subject to the cleanups procedures under the Site Remediation Regulations. A Covenant-Not-to-Sue would not be issued to such a party.

Cleanup Standards: Rhode Island DEM has developed cleanup standards that became effective in September 1996. These cleanup standards are intended to reflect the current and reasonably foreseeable future land use at a site and to acknowledge the groundwater classifications. In so doing, the regulations have promulgated four basic classes of standards:

The regulations contemplate a modified Risk-Based Corrective Action (RBCA) approach to managing areas that have been impacted by a release of hazardous materials. For specific questions about Rhode Island's new cleanup standards, call DEM's Greg Fine at (401) 277-3872 ext. 7129.

Certification: The state may issue covenants not to sue, which are transferrable with the property title, to voluntary parties and prospective purchasers who successfully complete cleanup. These parties also are protected from legal action brought against them by other responsible parties. The covenants also extend to lenders and others qualifying for the secured creditor exemption under CERCLA. Responsible parties who report hazardous releases to DEM receive either a Letter of Responsibility, outlining what steps are necessary to investigate and/or clean up the site, or a Letter of Compliance, which states the DEM's finding that no action is necessary at the site.

Vermont

Vermont's Contaminated Properties Redevelopment Program, signed into law in Spring 1995, began accepting applications for participation on January 1, 1996. The program is designed to handle low-priority sites that would otherwise go unnoticed by the state. Vermont operates a Underground Storage Tank program rather than a state Superfund program, since 87 percent of its hazardous waste sites are from leaking underground petroleum tanks. Vermont's environmental enforcement officials historically have worked to remediate the remainder of the state's hazardous waste sites under the direction of the federal government.

Liability and PRPs: Liability is strict, joint, and several for PRPs. Only third parties (i.e., bona fide prospective purchasers) may seek relief from liability following successful corrective action at eligible sites.

Eligibility: Sites must not be under the jurisdiction of CERCLA, RCRA, or Vermont's Underground Storage Tank program. Only third parties, or prospective purchasers, may participate in the program. The state offers no liability relief for responsible parties.

Oversight: The Department of Conservation's (DEC) Hazardous Materials Management Division maintains oversight authority throughout the cleanup, including approval of site investigation work plans, on-site sample collections, corrective action work plans, and the corrective action itself.

Requirements from Participants: An initial application fee of $500 is required for DEC review. Following acceptance into the program, participants make a $5,000 deposit, from which costs are drawn. The state may recover additional costs for future oversight. Also, the state reserves the right to pursue cost recovery from responsible parties associated with the site.

Cleanup Standards: Cleanup standards associated with Vermont's Contaminated Properties Redevelopment Program are the same as those required under other DEC programs. Cleanups must comply with Vermont's Groundwater Protection Rules (currently under revision), which contain MCLs for Class III (i.e., potable) groundwater. The state has no soil cleanup standards at this time, and instead relies on EPA Region III's Risk-Based Tables for contaminated soils, as well as an interim soil guidance document that is based in part on the state's groundwater standards. Generally, cleanup standards are done on a site-by-site basis, with oversight by the state.

State Assurances: Following a successful site investigation and cleanup, the DEC issues to the third party prospective purchaser a Certificate of Completion, which releases him/her from liability for the contamination identified and remediated through the site investigation. Re-openers exist for contamination found subsequently on the site.

Financial Assistance: None available at this time. The state will seek budget authority to hire two full-time equivalents to manage the Contaminated Properties Redevelopment Program.

Region II

New Jersey

Industrial site cleanup and redevelopment are presently done under the authority of the Industrial Sites Recovery Act (ISRA), passed in 1993. ISRA replaced the state's longstanding Environmental Cleanup Responsibility Act (ECRA) of 1983, which served as a model for industrial site recovery in many other states throughout the 1980s.

Under ISRA, cleanups are conducted by voluntary parties, who may notify the Department of Environmental Protection and Energy (DEPE) of their remediation efforts at any stage of the cleanup. Oversight by the department is limited. A Memorandum of Agreement is submitted for approval by the DEPE once the cleanup is completed. If the cleanup is judged to be satisfactory, a no-further-action letter is issued; covenants-not-to-sue are not used in New Jersey. A Hazardous Waste Discharge Fund helps mitigate the costs of both site assessment and remediation. It consists of loans of up to $1 million, at 5 percent interest for up to ten years. Further, communities with orphan sites can apply for grants or loans of up to $2 million to conduct assessment and remediation at those sites; this program has been in place for 4-5 years and active cleanup sites number in the hundreds.

Liability and PRPs: The Memorandum of Agreement (MOA) contains no enforcement provisions, so volunteers may exit the program without fear of DEPE action. PRPs also may withdraw from the MOA without fear of enforcement actions, provided the site is a low priority for DEPE. If the site becomes a priority while it is under remediation, the cleanup party may be required to produce a schedule of compliance. Failure to demonstrate cooperation with the DEPE can trigger termination of the MOA and can institute an Agreement of Consent Order, which is enforceable. Liability depends on the particular enforcement program into which the site falls.

Eligibility: Sites must be a low DEPE priority to be eligible. Furthermore, neither sites regulated under LUST nor landfills are eligible. With exceptions, sites under a DEPE permit for remedial action are eligible. PRPs, as well as non-PRPs, are eligible.

Oversight: Where the scope of cleanup work to be done is not extensive, DEPE oversight of the site is limited. Under the Voluntary Cleanup Program, a cleanup party need only submit a remedial action report to DEPE if the cleanup involves soil contamination, and the cleanup effort takes less than five years. Where either groundwater contamination or a longer cleanup effort is involved, submittal of a remedial work plan also is required.

Oversight can be more extensive if the party so desires. For example, the party may enter into a MOA with DEPE, which outlines actions to be taken on-site and establishes a timetable for completion. The MOA may cover any facet of the cleanup process, from investigation to remediation. Points of oversight may include

Public notice procedures depend on the nature of a site. Complicated cleanup efforts may involve the holding of meetings and public forums. Procedural standards for the stages are delineated in the DEPE's "technical requirements." If the resulting remedial action report is acceptable, DEPE may provide written assurances.

Requirements from Participants: Entrance into an MOA with DEPE is required, provided that the cleanup does not only involve soil remediation and does not take longer than five years. The MOA is a voluntary agreement that allows for termination by either party, and it contains no enforcement provisions: no penalties or financial assurances are stipulated. It outlines procedures and standards for the actions to be taken on site. Oversight costs are billed according to the number of staff hours spent on a particular project; the oversight rate averages about $75/hr.

Cleanup Standards: Goals for soil cleanups are a risk reduction to 10-6 for carcinogens, and to a Hazard Index=1 for non-carcinogens. These levels may be reached by use of:

Groundwater standards must reach the standards set by DEPE's technical requirements, which are for drinking water use and tend to reflect EPA's MCLs. Industry is advocating that the state establish a set of "2B" standards that would reflect industrial uses. Additional subsets of standards are applicable depending on the site. For example, "3B" standards may apply where water salinity makes groundwater unfit for drinking. Classification Exemption Areas apply to sites that are candidates for alternative groundwater cleanup remedies, such as well monitoring and pump-and-treat programs.

Engineering and institutional controls may be used where they are determined to be necessary to reach the necessary risk reduction goals. Historical contamination may be taken into consideration when deciding on cleanup standards.

Certification: For completed cleanups, parties may receive no-further-action letters from DEPE. These do not provide any explicit release from contamination liability, and they may be "reopened" if new information arises about contamination on a site, the remedy fails, or DEPE cleanup standards are raised above present standards by a level of one order of magnitude or more.

Financial Help: The Hazardous Discharge Site Grant Program has been appropriated $55 million. Private parties may be eligible for loans of up to $1 million at 5 percent interest, payable within ten years. Municipalities may be eligible for grants and loans of up to $2 million per year for action on orphan sites or sites obtained through tax sale certificates.

Bradi Sklar
Economic Development Authority
Hazardous Discharge Site Remediation Loan and Grant Program
(609) 633-7141

New York

A Voluntary Cleanup Program, launched in fall 1994, is administered by the New York State Department of Environmental Conservation (DEC). A "release from liability" is provided to parties that complete cleanup successfully; however, such releases are subject to re-opener provisions if the cleanup level is not appropriate to the site's intended use. This release does not guarantee exemption from possible EPA enforcement action, although the EPA has an informal agreement with DEC not to pursue action against program participants. So far, almost 30 voluntary agreements have been signed.

Liability and PRPs: Voluntary parties to a cleanup who choose to withdraw from the program are held in breach of contract and are subject to enforcement action by DEC, unless the agreement provides an "out" or the department otherwise agrees to the withdrawal.

Eligibility: Site eligibility is determined mainly by the interested party's relation to the site, rather than the program jurisdiction under which the site falls. Although NPL and RCRA sites are not eligible, LUST and State Superfund sites may be, as long as the applicant is not a PRP. Some PRPs may be eligible under certain situations. Lenders cleaning up sites to improve their collateral, municipalities foreclosing on sites to recover taxes, and Industrial Development Authority (IDA) financiers may qualify for the program.

Oversight: The DEC reviews initial applications from interested parties to determine eligibility for the program. Upon approval, DEC requests that it and the party enter into either an agreement or consent order that outlines the actions to be taken on the contaminated site. The agreement commences with the steps of the cleanup process that remain to be done. For example, if a party already has done investigation compliant with DEC standards, the agreement would start with a proposed remedial work plan. On the other hand, if no action has been taken at the site, the agreement would cover the initial investigation with remediation covered under a separate commitment document after the state of contamination is ascertained. Withdrawals are allowed upon department approval; however the site must be left no worse than it was at the beginning of the process.

Parties may not enter into the program after completion of the remedial planning stage, as the proposed cleanup must receive DEC approval before it can begin. Once the work plan has been approved and remedial action has been completed, the party must show that the proposed work plan was implemented successfully. If that is done, written assurances concerning the condition of the site are granted to the party.

Requirements from Participants: Participants are required to enter into an agreement or consent order, which specifies the following: (a) activities to be taken on the site so that DEC may deem it as having been properly remediated; (b) procedural guidelines to be followed in completing these activities; (c) a requirement allowing DEC staff access to and oversight of the site; (d) requirements for progress reports and reviews; (e) a "hold harmless" clause to the state; and (f) a provision for reimbursement of state oversight costs. Neither the agreement or consent order can address penalties assessed to the party for other obligations.

Cleanup Standards: Cleanup standards are determined on a case-by-case basis. Although no numerical standards have been issued for the program, DEC's Soil Standards Guidelines may be used. Land use is also a factor when determining cleanup standards, and institutional controls may be required on a site depending upon risk assessment and feasibility study findings. Groundwater cleanup standards must be in compliance with the state's Groundwater Standards Regulations.

Certification: Upon approval of remediation activities taken, DEC issues the party a No Further Action (NFA) letter, which releases it from DEC remedial enforcement action relating to the contamination remediated. Re-openers apply in the following circumstances: (a) contamination not found in the site assessment is subsequently found; (b) the state/EPA adopts new, more stringent cleanup standards needed to maintain the site's safe use; (c) the remediation of the site is not deemed adequate for the property's intended use; (d) a future owner changes the use of the site to one requiring higher levels of remediation; or (e) information has been withheld from DEC or the party otherwise enters into the agreement or consent order in a fraudulent manner.

Financial Help: No financial assistance is available for these projects at this time.

Christine Costopoulos
NYS Department of Environmental Conservation
(518) 485-8792

Bob Cozzy, technical contact
NYS Department of Environmental Conservation
(518) 457-1684

Charlie Sullivan, legal contact
NYS Department of Environmental Conservation
(518) 457-4347

Puerto Rico

Region III

Delaware

Delaware has had a Voluntary Cleanup Program (VCP) in place for three years. In 1995, it was officially added to the state Superfund law through a statutory amendment. For the past year, the Delaware Department of Natural Resources and Environmental Control (DNREC) has been drafting regulations to clarify provisions of this new law. DNREC officials anticipate the rules will be final by October or November 1996.

Liability and PRPs: Liability is strict, joint, and several. PRPs include current owners and operators, past owners and operators, and any party responsible for generating and transporting waste to the site. Lenders and development authorities financing a site, or assuming ownership through loan default, are exempted, as long as they did not or do not become involved in managing the site. Local governments potentially are liable if they obtained a site through foreclosure, but they are not liable if the site was recovered due to the owner's tax delinquency. Both lenders and local governments may sell foreclosed property that is contaminated without triggering liability. Further, if they conduct or attempt to conduct cleanups without state supervision, it does not constitute "management" of the site.

Eligibility: Some restrictions apply, but their use often is subject to DNREC discretion. Ineligible are: (a) sites subject to LUST or RCRA; (b) sites affected by soil or groundwater contamination levels with a cancer risk greater than 10-4 or a hazard index equal to 1; (c) sites with a well contaminated at or above the MCL; (d) sites with soil or groundwater contamination within 300 feet of a public well or within 150 feet of a domestic well that DNREC determines has potential to contaminate the well; (e) sites where contamination affects a surface source of drinking water and contamination levels are at or above the MCLs; (f) sites where contamination affects surface water quality in excess of one order of magnitude over the ambient water quality; and (g) sites where there may be any other reasons that the DNREC deems sufficient to reject the party's involvement with the VCP.

Sites not under the jurisdiction of other programs, and with contamination exceeding the above- mentioned standards, are referred to the Hazardous Substances Cleanup Act (HSCA) program, which acts as the state's Superfund program. However, DNREC may allow these sites to take part in the VCP if it deems the cleanup party competent enough to carry out the cleanup. Further, a "deferral agreement" with EPA Region 3 allows DNREC to place potential NPL sites under the VCP if it deems the cleanup party competent to handle the cleanup.

Oversight: DNREC requests an application from the interested party and, upon approval, drafts an agreement with the party. Cleanup parties may enter the program before or after the site investigation stage, but not after the remedial plan stage. Parties are encouraged to enter the program at the earliest stage possible, as the department reserves the right to reject any previous investigations and studies done by the party if they do not conform to DNREC standard guidelines (for investigation, Phase I studies must conform to ASTM standards, and Phase II studies must conform to the Delaware Rules and Regulations on Facility Studies).

Upon approval of the investigation conducted at the site, the party then submits a remedial work plan. Upon completion of remedial activities, the party must submit all information showing that the cleanup was done according to plan and DNREC guidelines.

DNREC will only approve of work submitted by consultants that are fully qualified, meaning they must comply with the Professional Qualification Program. This program will be spelled out in the statute; details are to follow in the Fall 1996 rules.

Requirements from Participants: Eligible participants must sign an agreement with DNREC, outlining the work to be done on the site. Agreement provisions include: (a) a requirement to conduct all cleanups in accordance with HSCA regulations; (b) a requirement to follow all federal, state, and local laws and regulations; (c) a requirement to allow for site access and oversight by DNREC staff; (d) payment of all DNREC oversight costs; (e) a "hold harmless" clause to the state; (f) an "agreement termination" clause for both parties; and (g) a provision to indemnify the state. Agreement provisions must not include: (a) penalties for non-compliance; (b) public notice provisions; (c) a request for financial assistance; (d) strict liability provisions; or (e) dispute resolution during the Remedial Investigation/Feasibility Study (RI/FS) stage, although it may be applicable in the Remedial Design/Remedial Action (RD/RA) stage, if the participant requests it. Payment of oversight entails an initial $5,000 deposit, from which costs are drawn. Additional costs may be paid quarterly, at a rate of $45 to $65 per hour. The forthcoming regulations define the direct/indirect cost rate and the hourly rate of wages for state involvement.

Cleanup Standards: Parties have two options for selecting appropriate cleanup levels for the site. First, they may apply "trigger levels" derived from the EPA Region 3 Risk-Based Concentration Tables. These include a level of 10-6 cancer risk or Hazard Index=1, developed for nearly 600 chemical contaminants. Sites with contamination above trigger levels are required to perform further investigation, while sites below those levels (in both soil and groundwater) may receive an No Further Action (NFA) letter from DNREC. Or, the party may choose to apply site-specific cleanup standards. They also may take future land use into consideration (as separate standards for residential and industrial/commercial land are applicable), and may allow for institutional and engineering controls. Cleanups must reach a health-based risk assessment level of 10-5. When contaminants are limited, however, participants choosing not to conduct such an assessment may simply go ahead and clean the property to trigger levels. The new rules, due to be final in Fall 1996, establish DNREC's policy of giving equal weight to containment vs. treatment as a remedial option.

Certification: When investigated sites fall below trigger levels, DNREC may issue the party an NFA letter. Parties who have cleaned sites to health-based risk assessment levels or to trigger levels (whichever applies to the site), also may receive NFA letters. Such parties may further request that DNREC review and approve language in the property deed to confirm that the site has been cleaned. Contribution protection for prospective purchasers also is provided from liability under 7 Del. C. Chapter 91, HSCA, provided the purchaser signs a consent decree and provides assurances to the DNREC on the site's condition. New owners of remediated properties also may be given a Covenant-Not-to-Sue.

NFA letters do not apply to third party or federal action, although an "unwritten agreement" between EPA Region 3 and DNREC may reduce the likelihood of federal action.

Financial Assistance: There are four primary options for brownfields financial assistance in Delaware. First, there is a grant program administered through the Delaware Economic Development Office that offers to fund 50% of total costs, up to $25,000, for brownfields site assessment and remediation. Second, for sites demonstrating development potential, tax credits covering up to the full cost of cleanup may be available. The tax credit amounts to $500/year for each new job created through the redevelopment of a site, and it runs until the cost of cleanup has been recouped. Third, the Hazardous Substances Cleanup Act established a $250,000 loan program to assist brownfields activities. Fourth, DNREC officials are currently working to expand the scope of an existing state revolving loan fund (which traditionally supported wastewater treatment activities) to include brownfields assessment and remediation.

Maryland

Although no formal voluntary cleanup program exists at this time, the Maryland Department of Environment is able to enter into Voluntary Agreements and Orders at sites under the current statutory authority provided by the State's superfund law in Title 7 of the Environment Article, Annotated Code of Maryland. These agreements include prospective purchaser agreements.

The Department of the Environment will be drafting regulations that clarify and establish the following components of a voluntary cleanup program: 1) eligibility requirements; 2) the application process; 3) requirements for Voluntary Remediation Agreements and Orders; and 4) the types of letters that will be offered, including Final Closure Letters and Off-Site Determination Letters. The Department plans to propose these regulations by the end of 1996. The Department also plans to address cleanup standards through regulation at a later date.

Several important elements of a voluntary cleanup program, such as financial incentives, require legislative authorization. During the 1996 legislative session, two bills were introduced — one in the House, one in the Senate. Although both passed their legislative houses unanimously, the bills died in conference committee after time ran out. Governor Glendening has announced that brownfields will be one of his top legislative priorities during the 1997 legislative session, which begins in January and ends in April of 1997.

The Department has staff dedicated to voluntary cleanups. Anyone interested in these issues should contact the Department for the latest information as the situation will likely change during 1996 and 1997.

Pennsylvania

Pennsylvania introduced in May 1995 a new site remediation initiative, called the Land Recycling Program (LRP). The program is administered by the Department of Natural Resources (DNR), which takes care of cleanup standards and oversight. The Department of Commerce (DOC) also participates by providing financial support for parties interested in conducting a voluntary cleanup. The LRP, as well as the two financing programs now available from DOC, were instituted by Senate Acts II, III, and IV (also referred to as SB 1, 11, and 12, respectively).

Liability and PRPs: For responsible parties, potential cleanup liability depends on the relevant enforcement statute. Sites under the state Superfund carry strict, joint, and several liability. Responsible parties with sites under other jurisdictions, such as the Solid Waste Management Act and the Clean Streams Act, face somewhat different liability provisions. Prospective purchasers and innocent landowners are not subject to any liability if they enter the program and are not required to be subject to an enforceable agreement. This is not the case with participants under the program's Special Industrial Areas section; these participants must enter into an enforceable agreement outlining the work plan for the site. Financial institutions, economic development agencies, municipalities, and conservancies are not responsible for cleanups where they did not directly cause or contribute to site contamination.

Eligibility: To be eligible for the program, sites must not be under the federal CERCLA program, State Superfund, or LUST. RCRA sites may enter the program, although the guidelines applicable to these sites are EPA's own. Sites operating under a DNR permit may or may not be eligible, depending on the requirements imposed by the specific permit involved. Both PRPs and non-PRPs may participate in Pennsylvania's program.

Oversight: Oversight procedures vary according to which set of cleanup standards the interested party chooses. In the case of "background" or "statewide health" standards, oversight is limited to the requirement that parties notify DNR, the municipality in which the site is located, and the public of their intent to conduct a cleanup at the site and of the cleanup standards they intend to use. These parties also must submit a final report to DNR outlining the remedial activities accomplished at the site. Approval of investigation and remedial work plans is not required, and failure of the DNR to review and make a decision on final reports within 60 days of receipt results in automatic approval of the report. In addition, state environmental permits are waived during the remedial action period.

If site-specific standards are chosen, these projects are subject to greater DNR involvement, beginning with submission of an investigation work plan for the department's review. Once approved, site investigation may begin. The cleanup party conducts a risk assessment of the site to determine what sort of cleanup level is adequate, and the party submits it for DNR approval. The approved risk assessment is then addressed in a remedial work plan, also subject to DNR review and approval. Remedial actions begin upon approval of the work plan, and involve submission of a final report to DNR for final approval of the project.

For all three types of standards, public participation may be required by a request from a municipality within the first 30 days of the party's initial notification of intent. Within that time, the municipality may request the party to draft a public involvement plan, which may include notice requirements as well as public hearings.

Finally, special provisions may apply to orphan sites and sites in enterprise zones. Any party interested in such sites must conduct a site assessment and remediate any containerized wastes, or any wastes posing serious health risks, in accordance with any of the three cleanup standards noted above. The notable differences in these circumstances are that cleanup is limited only to the property at hand, rather than additional contamination adjacent to the property from migration, and that cleanup is required only on those portions of the site that are going to be used and that present the likelihood of human exposure.

Requirements from Participants: DER imposes cost recovery requirements for fees associated with reviewing site work plans and reports. The fees are $250 for review of each requested work plan or report, with the exception of review of a site-specific final report, which amounts to $500. As noted, participants also must address public participation and notification if it is raised as a concern.

Cleanup Standards: Three sets of standards exist to allow flexibility of cleanup remedies:

Given the recent passage of legislation enacting this program, a transitional provision exists that makes the cleanup standards now in place effective for up to three years after the date of the new law's enactment. This provision does not apply for groundwater contamination levels, or for background or site-specific standards, as all of these existing standards were incorporated into the new law, and are applicable from the date of the act's enactment. Further, these new standards do not affect cleanup efforts already underway through agreements of remediation with the DNR.

Certification: Compliance with DNR standards of remediation will result in a release of cleanup liability. Re-opener clauses apply in the following cases: (a) the DNR demonstrates that the executed remedy does not work; (b) contamination not previously found on the site is subsequently discovered, in levels that increase health risks beyond the applicable risk assessment standard; (c) stricter standards are adopted by DNR in the future (this does not apply for sites being remediated during the transition period); (d) land use of the site changes, causing the site's human exposure patterns to change; and (e) a discharge occurs on a non-industrial site after the effective date of the legislation enacting the program. This final condition applies only where engineering and institutional controls have been used exclusively and where it is now feasible to conduct remediation.

Financial Help: Along with the LRP enacting legislation, the state reformed the conditions under which financing is available. The Industrial Sites Reuse Program provides grants and loans to defray costs of site assessment and remediation. Total funds available for financing are $17 million, $5 million of which is set aside for grants. Eligible municipalities may receive grants and loans (if grant funds run out), while private parties may receive loans. No more than $200,000 in state funding may be used in any one assessment project, and no more than $1 million may be used in any one remediation project. The interest rate for the program loan is 2 percent, payable over 15 years. There is a 25 percent matching requirement for all grants and loans. The Infrastructure Development Program may be used for site remediation, clearance, and for new construction. Total funds available from this initiative amount to $26.2 million, and loans may not exceed $1.25 million per project. The applicable interest rate is 3 percent, also payable over 15 years.

Virginia

Virginia's voluntary cleanup program significantly changed as a result of House Bill 1847, passed by the General Assembly in 1995, requiring promulgation of regulations for voluntary cleanups. The new regulations, which must be approved by the governor-selected Waste Board, will be final by July 1997; in the interim, the state has operated a stopgap process to allow continued entry into the voluntary cleanup program. At present, 26 parties have signed voluntary remediation agreements under the statute. As many as 100 additional private parties are monitoring DEQ's efforts to decide upon entry into the program. DEQ has developed an internal guidance document that is being distributed to the public. For further information, you may contact the department's home page on the Internet world wide web at http://www.deq.state.va.us.

Erica Dameron
Brownfields Coordinator
VA Department of Environmental Quality
(804) 698-4201

West Virginia

Region IV

Alabama

Alabama has had an informal voluntary cleanup program in place for nearly 15 years. Recently, though, the state Department of Environmental Management (DEM) has sought to formalize its program requirements through a guidance document entitled "Voluntary Cleanup Guidelines." This document, currently being reviewed by EPA Region 4, also contains a Memorandum of Agreement (MOA) between EPA and the state. The MOA, once signed, will essentially indicate that at sites where successful remediation under Alabama's program has occurred, EPA does not plan to initiate any federal action under CERCLA. It should be noted that the following program requirements, based on the draft "Voluntary Cleanup Guidelines," are not derived from regulations. Instead, they are administrative procedures based on existing, appropriate state statutes.

Eligibility: Eligible sites include inactive or abandoned hazardous substances sites; sites where hazardous wastes have been disposed without interim status or permit; and sites with groundwater contamination. Ineligible sites include those on, or proposed for listing on, the National Priorities List (NPL); those that are permitted or have interim status under the State Hazardous Waste Law; those undergoing RCRA Corrective Action; and those subject to current, formal ADEM enforcement action.

Oversight: ADEM reviews assessment plans, provides limited oversight of field activities, and may do some confirmation of site sampling.

Requirements from Participants: Participants submit a written request to complete a voluntary cleanup, including a brief description of the site. ADEM reviews the request and either accepts or rejects the proposal. If the site is accepted, ADEM meets with the party and maps out a remedial work plan, including development of cleanup standards, extent of department oversight, and schedule of work.

Cleanup Standards: Cleanup standards are site-specific, risk-based, based on a determination of the property's end-use. Remediation must achieve a cancer risk level between 10-4 and 10-6.

Certification: When all assessment and/or cleanup activities have been completed, ADEM may issue a Notice of Completion. The Notice of Completion serves as ADEM's determination no further action is required at the site.

(Note: DEM numbers are expected to change in Fall 1996. Call the DEM switchboard at (334) 271-7700 for new listings.)

Georgia

Georgia's Hazardous Site Reuse and Redevelopment Act became effective July 1, 1996. Regulations are to be introduced to the Board of Natural Resources by Spring 1997. The following program elements are derived from the statute; certain aspects will be clarified upon promulgation of rules next year.

Liability and PRP's: Liability is strict, joint, and several, according to the Hazardous Site Response Act of 1992.

Eligibility: The program is not open to responsible parties, sites on the NPL, or sites subject to enforcement action.

Oversight: The 1996 statute does not provide a great deal of detail on departmental oversight procedures. These will be clarified in the forthcoming regulations. Currently, there is no fee structure in place for oversight costs. However, participants must reimburse the DNR any corrective action costs.

Requirements from Participants: The participant submits a corrective action plan to the DNR. The DNR offers comments on the plan and, when all information is complete, enters into a Administrative Consent Order with the party.

Cleanup Standards: Cleanups are conducted under the 1992 Hazardous Site Response Act.

Certification: The DNR will provide some sort of certification, although the exact type has not been determined yet. Covenants-not-to-sue will not be available. However, officials indicate that as long as a party is in compliance with the consent order, limitation on liability will be enjoyed.

Darren Meadows, Legal Assistant
Hazardous Site Response Program
Georgia Department of Natural Resources and Environment
(404) 657-8600

Florida

Florida does not have a formal voluntary cleanup program at this time. However, the Florida Department of Environmental Quality is considering the development of such a program in the near future.

Kentucky

A Brownfield program is forthcoming. Legislation passed in April 1996 to extend No Further Remediation letters to public entities.

Mississippi

North Carolina

South Carolina

South Carolina has had an informal voluntary cleanup in place for many years. The program operates under the South Carolina Hazardous Waste Management Act and is administered by the Department of Health and Environmental Control (DHEC). Currently, there are approximately 25-30 active sites.

Liability: Liability is strict, joint, and several. However, in practice, officials indicate that the approach is more case-by-case and often becomes proportional and causation-based.

Eligibility: The program is open to both responsible parties and innocent parties (i.e., third parties, prospective purchasers). Ineligible sites include those subject to enforcement action by DHEC and those operating under a permit, such as RCRA facilities. Sites containing underground storage tanks are addressed under a separate program.

Oversight: The department provides oversight of any site assessment activities and, if necessary, remedial actions. While there currently is no charge for DHEC oversight, department officials indicate that a fee structure will be in place by December 1996.

Requirements from Participants: Participants contact the DHEC and propose site assessment activities. When these activities are approved, the party and DHEC will enter into a contract. Where necessary, remediation will take place with department oversight. Participants may decide to drop out of the program at any time, although DHEC may opt to take enforcement action at its discretion.

Cleanup Standards: There are two primary options for cleanup in South Carolina. First, parties may conduct site-specific risk assessment. Second, parties may establish cleanup goals according to EPA Region 3's Risk-Based Concentration Levels. These levels may not be acceptable if there is a concern about contaminant transfer to air or groundwater. Cleanups must achieve a cancer risk reduction of 10-6.

Certification: When the party has successfully completed the agreed-upon scope of work, DHEC will issue a completion letter indicating that no further action is required at the site. At such time, DHEC also may issue a Covenant-Not-to-Sue.

Gail Jeter
Division of Site Assessment
Department of Health and Environmental Control
(803) 896-4069

Gary Stewart
Division of Site Assessment
Department of Health and Environmental Control
(803) 896-4054

Tennessee

Tennessee's Voluntary Cleanup Oversight and Assistance Program (VOAP) was established in the Division of Superfund by an amendment to Part 2 of the Tennessee Hazardous Waste Management Act and is codified in TCA Section 68-212-224. The program allows willing and able parties to conduct investigations and cleanups of inactive hazardous substance sites with Departmental oversight after entering into a consent agreement. The consent agreement outlines steps to be taken for investigation, cleanup, monitoring, maintenance, and oversight cost reimbursement. Participants must pay a $5,000 fee to enter the VOAP. Participation fees maintain a voluntary cleanup oversight and assistance fund used for program development and administration.

Liability: Tennessee's statute gives the commissioner the discretion and authorization to establish an allocation of liability in a consent order with a voluntary party and pay for the orphan shares out of the State's Remedial Action Fund. In assessing the party's apportioned share, the commissioner may consider equity issues, including, but not limited to, the following: monetary benefits derived from the disposal of hazardous substances at the site; the culpability of each liable party; and efforts of each liable party to restore the property to its natural condition. Since the Remedial Action Fund is used for high-priority sites in the enforcement program, fund use on lower priority voluntary cleanups would only occur in extraordinary circumstances. However, Tennessee does allow for multiple parties to form a response group which determines apportionment among themselves. All participating parties in the response group are listed in the consent order.

Eligibility: The VOAP was established to address inactive hazardous substance sites. A hazardous substance site is any site where hazardous substance disposal has occurred. While by definition petroleum is not a hazardous substance, a site that has had a petroleum release is not automatically excluded from the program. Acceptance of petroleum contaminated sites is done on a case by case basis and with approval of the state's Division of Underground Storage Tanks. Furthermore, disposal of hazardous substances cannot be an ongoing activity at the VOAP site. In light of this, site eligibility is based upon the following:

Oversight: Parties that have entered into a consent order under the VOAP are provided with regulatory oversight from Tennessee's Department of Environment and Conservation.

Requirements from Participants: The voluntary party is required to pay a $5,000 participation fee to enroll in the program.

Cleanup Standards: Risk assessments are conducted on a site-specific basis. In selecting containment and cleanup actions, the commissioner shall evaluate reasonable alternatives and select those actions necessary to protect human health, safety and the environment.

Certification: Upon completion of all terms and conditions agreed to in the consent order, the commissioner shall issue a letter to the voluntary party participating in the program. The letter will indicate that the party's obligations under the consent order have been completed and, if appropriate, that no further action will be required of the participating party. Covenants-not-sue are not available at this time. However, the Department is working on a state Memorandum of Agreement (MOA) whereby EPA Region IV would refrain from taking action at any site that enters or completes the VOAP. There is no time frame as to when this agreement will be finalized.

Chapter 4 State Voluntary Cleanup and Brownfields Programs: Tools for Local Officials