Virginia’s Voluntary Remediation Program Regulations Amended

January 30, 2014

An amendment to Virginia’s Voluntary Remediation Program (VRP) regulations became effective yesterday after a 5½ year rule-making process. Many of the changes are simply clarifications, but some will impact existing participants and those interested in applying to the program. The following is a brief summary of the more material changes:

Eligibility – The regulations were clarified to require both the applicant and the site to be assessed for eligibility. Additionally, one of the most important changes is that former solid-waste disposal sites that may be classified as an “open dump” or an “unpermitted solid-waste management facility” will now be eligible for the VRP, except in limited circumstances. This follows a decade of uncertainty regarding the eligibility of such sites for the program.

Application – While the application form previously included a signature block for the owner of the site where someone other than the owner is the applicant, certain requirements regarding such applicants is now in the regulations. A non-owner applicant must demonstrate that the applicant has (a) access to the site, (b) consent of the owner to submit the application and (c) agreement of the owner in writing that the application is substantially correct to the best of the owner’s knowledge. The Virginia Department of Environmental Quality (DEQ) is to notify the applicant whether the application is complete within 15 days of receipt, and whether the applicant and site are eligible within 60 days.

Registration Fee – The maximum registration fee remains $5,000, but that amount must be remitted to DEQ within 90 days of being deemed eligible for the VRP. The participant may seek a refund at the end of the process if the remedial costs are less than $500,000, as the ultimate fee will be the lesser of $5,000 or 1 percent of the cost of remediation. The participant previously had the option to submit less than $5,000 upon being deemed eligible if the cost of remediation was estimated to be less than $500,000, and then settle up with DEQ based upon the actual costs at the end of the process. The participant only has 60 days after the issuance of the certificate to seek a refund.

Voluntary Remediation Report – The amended regulations provide that each component of the “Voluntary Remediation Report” shall be submitted separately and shall include the following: (1) site characterization, (2) risk assessment, (3) remedial action plan, (4) demonstration of completion, and (5) public notice documentation.

Risk Assessment – The human health risk screening levels were revised to 1 x 10-5from 1 x 10-6and DEQ has indicated that it will revise its screening level tables in its risk assessment guidance to the 1 x 10-5 level. Clarifications have also been made regarding when an ecological risk analysis is needed and how it is to be completed.

Termination – DEQ may now terminate a participant’s participation in the VRP if a participant fails “to make reasonable progress toward completion of the program as determined by the department and the participant’s subsequent failure to respond appropriately within 30 days to the department’s written request for an update of program-related activities and a projected timeline to fulfill program requirements.”

Public Notice – A few of the changes to the public notice requirement are of particular note. The regulations previously allowed the participant to provide public notice either after the site characterization is complete or after the remediation. The regulations now require the notice upon DEQ accepting the site characterization. Additionally, notice previously was provided to adjacent property owners, but now the requirement also extends to property owners whose property is affected by the contamination. This would apply to plumes traveling through groundwater or vapor intrusion beyond the adjacent properties. Notice to the locality and one newspaper publication are still required. Finally, DEQ may increase the public notice period from 30 to 60 days.

Additional changes appear throughout the regulations that could impact a particular project. Participants or proposed applicants are advised to consult with counsel familiar with the revised regulations and experienced with the VRP. Mr. Thornhill served on DEQ’s Technical Advisory Committee (TAC), which assisted in the revisions to the regulations and commented extensively on the proposed regulations after DEQ modified what the TAC last saw in its work.