VRP Outreach June 12, 2012 Virginia Department of Environmental Quality

Welcome Jeffery A. Steers. Director, Division of Land Protection and Revitalization

Brownfields and the VRP Presented by: Meade Anderson, Virginia Brownfield Coordinator

Brownfields Legislation, Federal and Virginia, 2002 January 11, Small Business Liability Relief and Brownfields Revitalization Act Amended Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund) by providing funds to assess and clean up brownfields Virginia – Brownfield Restoration and Land Renewal Action – April 2002 – paralleled federal and pulled existing VRP under the umbrella of Brownfields

Brownfields Act Summary Small Business Liability Relief Brownfields Revitalization Funding Brownfields Liability Clarifications Section- Contiguous Properties, Prospective Purchasers and Windfall Liens, Innocent Landowners State Response Programs ( 128a funding ) Additions to National Priorities List ( deferral for list if under cleanup )

Brownfields – The Definition "Brownfield" means real property; the expansion, redevelopment, or reuse of which may be complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant.

§ Brownfield Restoration and Land Renewal Policy and Programs It shall be the policy of the Commonwealth to encourage remediation and restoration of brownfields by removing barriers and providing incentives and assistance whenever possible. The Department of Environmental Quality and the Economic Development Partnership and other appropriate agencies shall establish policies and programs to implement these policies, including a Voluntary Remediation Program, the Brownfields Restoration and Redevelopment Fund, and other measures as may be appropriate.

Program Funding 128(a) Grant from the EPA provides bulk of funding for the VRP and associated activities 128(a) capped at approx. $50 M for all states and tribes Decreasing allocations as increasing applicants apply for that $50M As grant awards have decreased, DEQ has focused funding on staff for VRP

Program Funding (continued) VRP Statutes originally passed in 1995 Code of Virginia amended in 2002 to add to the Brownfield Restoration and Land Renewal Act § Registration fees to be collected from persons conducting voluntary remediation to defray the actual reasonable costs of the voluntary remediation program expended at the site not to exceed the lesser of $5,000 or one percent of the cost of the remediation. Fee structure adapted from 17 years ago and has not been updated to account for actual program costs

Background on Brownfields & Voluntary Programs 2011 State Brownfields and Voluntary Response Programs: An Update from the States date2011/bf_states_report_2011.pdf date2011/bf_states_report_2011.pdf Summaries program set up and funding Many states have alternative/supplemental fee structures for the voluntary cleanup programs and Brownfields comfort letters

Other Use of Grant Funds Site Specific Assessments (previously targeted brownfield assessments) Special projects such as inspection of institutional controls, mapping/GIS of sites, and scanning Outreach such as Brownfields Conferences, VRP Outreach, technical assistance to local government

Bona Fide Prospective Purchaser All disposal of hazardous substances at the facility occurred before the person acquired the facility. All appropriate inquiries into the previous ownership and uses of the facility All legally required notices with respect to the discovery or release Full cooperation, assistance, and access

BFPP, Continued Institutional Controls – Complies with any land use restrictions established or relied on in connection with the response action – Does not impede the effectiveness or integrity of any institutional control BFPP not otherwise responsible party, and not affiliated (familial or corporate) with responsible party

BFPP, Continued The person exercises appropriate care with respect to hazardous substances found at the facility by taking reasonable steps to— – stop any continuing release – prevent any threatened future release – prevent or limit human, environmental, or natural resource exposure to any previously released hazardous substance Self Implementing Program on both the federal and state level

Providing BFPP Status Letters BFPP – Brownfields Summary Form All Appropriate Inquiry with Phase I ESA in accordance with ASTM E Self implementing program as it is set up with the EPA In Virginia, to help facilitate redevelopment we will issue a BFPP status letter as a form of a comfort letter Phase II ESA may be needed DEQ staff review of submitted data along with agency records should help eliminate pitfalls for a buyer Also provide Lender Liability Letters and Contiguous Property Owner Letters Does NOT eliminate the need for “Appropriate Care”

Appropriate Care Must take “appropriate care” in order to maintain the protections Construction of a playground on a contaminated site without protections is not appropriate care Construction of a parking lot over contaminated soil may be appropriate care Enrolling a site into VRP is clearly appropriate care

Future Trends “Process Incentives” Seat at the table for all involved, all along Pre-purchase or pre-development meetings Off-setting costs for stake in project Positive media and success story PR

Reasons for Involving DEQ Liability Protections for purchase – BFPP Protections during cleanup under VRP Enforcement Immunity at completion of clean – VRP with MOA with EPA Agency “buy in” to Cleanup Goals Partner at the table for solutions Resolve liability before sale or purchase Satisfy lending institutions Facilitate future sales

Brownfield Tax Relief Form Typically, form sent with Eligibility Letter DEQ responses with a confirmation letter If site is enrolled in the VRP, the confirmation is straight forward. These tax credits must be approved by Congress although at times late in the year but costs allowed were retroactive Once DEQ provides confirmation of the remediation project the tax credit is dealt with by the project developer and tax personnel Costs allowed include: Site assessment and investigation; Site monitoring; Cleanup costs; Operation and maintenance costs; State voluntary cleanup program oversight fees; and Removal of demolition debris

Risk Based Decision-Making Soil/Debris Management Internal committee reviewed other examples and drafted a process Have completed public notice and two public informal meetings Variance during interim; future regulatory change Should be a tremendous benefit to Brownfields redevelopment projects Not intended to replace the need for remediation but rather to provide a common sense risk based tool to manage low level soils

Revitalization Goals Virginia Brownfields Policy – Encourage, Remove Barriers, Provide Incentives & Assistance Process sites and complete cleanup to a risk based standard Get sites cleaned up, redeveloped, and back into productive reuse Increase in value leads to additional tax income to locality Rising tide theory – benefits come to the community and adjacent properties Our goals should be very much parallel to the goals of the participants in the programs We must all work smarter!

Questions?

VRP Overview and DEQ’s Internal Process Presented by: Kevin Greene, VRP Program Manager

Brief History Statute implemented in July 1995 – Operated under “agreement” format Regulations promulgated in 1997 – Agreements no longer necessary Memorandum of Agreement with EPA January 2002 Regulations revised in 2002 – Only minor modifications made Brownfield Restoration and Land Renewal Act enacted in 2002

What made the VRP Different? Closure that constitutes enforcement immunity – Final Agency Action – Immunity is Transferable End use driven - not process driven – No “Cook Book” Regulations are less than 12 pages long Remediation is not mandated by other programs Remediation is not mandated by other programs The explicit use of Engineering and Institutional Controls The explicit use of Engineering and Institutional Controls Site Specific Risk Based Clean-up Standards Site Specific Risk Based Clean-up Standards

Memorandum of Agreement between EPA and DEQ Executed in February 02 Constitutes determination of “no federal interest” in sites that have completed cleanup under the VRP Provides comfort that EPA won’t pursue a VRP participant Sets de facto performance expectation on the VRP – Consistent remediation standards – Demonstrative progress towards completion

Certificates Per Year

Cumulative Totals 147

Certificate Issuance Time After 1999 Averages Since days Apps w/ Cert submitted since 1/1/ days Staff hours /site- 160

Voluntary Remediation Program Groundwater Use restriction 83% Residential Use restriction 45% Other (SSDS, etc) 20% Excavation Limitation 18% No institutional controls10% Certificates & Institutional Controls (total 237)

Application Eligibility Confirmed Enrollment Fee submitted Technical Documents/Revisions Submitted for DEQ Review Site Considered “Enrolled” DONE! Site Characterization Report Remedial Action Completion Report Is Remedial Action Necessary? Demonstration of Completion Report Certificate Issuance Public Notice Certificate Drafting Certificate Recordation and Return to DEQ Risk Assessment Revisions/Comments DEQ Concurrence of SCR and Risk Assessment Remedial Action Performed Remedial Action Work Plan Regional Office Review YES NO Kickoff Meeting (NEW) Kickoff Meeting (NEW)

The Risk Assessment

100% federal funded program No DEQ funds allocated to VRP Annual competition for $50 MM 149 applicants in FFY 12 ( 10/1/12- 9/31/13) Virginia was awarded $550,000 for FFY 12 FFY 12 Workplan 100% salaries 3 FTE RPMs 1 FTE Risk support 1 FTE Admin. No travel to sites Limited training/outreach VRP Funding /Staffing

Excerpt for 128 (a) FY 12 funding guidance “In FY13 the maximum amount that EPA will consider for a funding request will likely decrease at a rate up to 30% a year, and could decrease at a greater rate depending on enacted Congressional budget amounts and demand for funding.”

Other Duties As Assigned Program Administration – Tracking 400 sites Site Database Management – Planned & Completed sites list – Semi annual report – Sites with no Activity » Status inquiry / Finding current owner Institutional Control Tracking – On EPA Radar Screen! Electronic Imaging of VRP files – FOIA VRP Regulations – TAC meetings in Proposed draft submitted August 2009

Other Duties As Assigned Program Administration – Tracking 400 sites Site Database Management – Planned & Completed sites list – Semi annual report – Sites with no Activity » Status inquiry / Finding current owner Institutional Control Tracking – On EPA Radar Screen! Electronic Imaging of VRP files – FOIA VRP Regulations – TAC meetings in Proposed draft submitted August 2009

What You’re Going To Hear Today Tips for Characterization – You know the site, we don’t. You conclude, we concur – Conceptual site model – Several rounds of sampling Plume Stability – Evaluate offsite risk Formatting – Summary Tables – Nice maps – Full and complete responses State all assumptions – Follow the format/terminology of the Regulations – Show your work It takes time! 2 years+ First come, first serve Participation is Voluntary Tank Closure does not a certification make -TPH is of little value Meetings early in the process It’s all about the risk! Certificate language is fixed Uncertainty

Questions ?