**Delaware**

> **General Information**
>
> **Contact:** James Poling
>
> **Address:** Delaware Department of Natural Resources\
> and Environmental Control (DNREC),\
> Division of Air and Waste Management\
> State Investigation & Restoration Branch\
> 391 Lukens Drive\
> New Castle, DE 19720-4801
>
> **Phone:** 302 395 2600
>
> **Fax:** 302 395 2601
>
> **Email:** james.poling@state.de.us
>
> **Web site:**
> http://www.dnrec.state.de.us/dnrec2000/Divisions/AWM/sirb/brownfield.asp

***Program Description\
(VCP, brownfields, or related)***

**Brownfield definition:** Delaware defines brownfields as "any vacant,
abandoned or underutilized real property the development or
redevelopment of which is hindered by the reasonably held belief that
the real property may be environmentally contaminated." 7 Del. C.
§9102(3).

**Program titles:**

• Brownfields Development Program (BDP) (2004) -- The BDP codifies the
prospective purchaser concept and provides liability waivers and
financial assistance to brownfield developers.

Brownfield Voluntary Cleanup Program (BFVCP) -- The site owners and/or
responsible parties who purchased the property and can show they did not
cause or contribute to the contamination of the property are eligible
for this program.

• Voluntary Cleanup Program (VCP) (1995) -- The VCP provides
programmatic and liability assistance to current owners or potentially
responsible parties (PRPs).

**Liability relief provisions:** The BDP offers complete liability
protection for existing contamination to qualified brownfield developers
provided that they enter into a Brownfields Development Agreement (BDA),
and agree to clean up the contamination as specified in the Final Plan
of Remedial Action approved by the Department prior to development of
the site. Once the remedy is in place, the developer may request and
receive a Certificate of Completion of Remedy (COCR) which provides
liability protection as long as the requirements of the COCR are
followed. The BDP offers liability protection for geographic or
environmental media specific operable units identified within the site.

The BFVCP offers protection similar to the BDP once a remedy is complete
and a COCR has been issued for a site.

The VCP offers No Further Action (NFA) letters; prospective purchasers
may sign a consent decree for contribution protection; and new owners of
remediated sites may receive a Covenant Not to Sue (CNTS), and can
receive a COCR for remedies, which provide liability protection waivers.

The Hazardous Substance Cleanup Act (HSCA) establishes strict, joint and
several liabilities and authorizes cost recovery.

DNREC must attempt a settlement prior to initiating an enforcement
action, unless an emergency exists. The state has injunctive action and
administrative order authority. Civil penalties of up to \$10,000 per
day per violation are available. The state may recover punitive damages,
treble the state's cleanup costs.

**Financial incentives (grants, loans, tax provisions, etc.):**\
DNREC has allocated \$5,000,000 a year for Brownfields Grants. The
grants are up to \$225,000 for private parties and up to \$1 millions
for nonprofit and government entities.

The Delaware Economic Development Office (DEDO) has a \$1,000,000
matching grant fund for certified brownfields. These grants are a
maximum of \$100,000 per grant.

DNREC also has a Revolving Loan Fund and a Hazardous Substance Cleanup
Loan program. The Revolving Loan Fund provides loan of \$10,000 to
\$400,000 and the Hazardous Substance Cleanup loans provide up to
\$250,000 or 90% of the cleanup costs, whichever is lower, per site.

The Tanks Management Branch has additional monies that may be used on
brownfield sites, including the FIRST Program (Fund for the Inability to
Rehabilitate Storage Tanks), and the PLUS Program (Program Loans for
Underground Storage Tank Systems).

**Legislative or program site eligibility requirements:** To enter into
the BDP, the site must be a certified brownfield and the developer must
not have any contractual or familial relationship with any PRP. Anyone
may enter into the VCP provided they make reasonable progress towards
investigations and cleanups at the site.

All cleanups must comply with the Delaware Regulations Governing
Hazardous Substance Cleanup. Participants receive a COCR and subsequent
purchasers receive a release from liability for existing contamination.

***Financial Elements***

**Assessment and cleanup funding (source, amount, relationship to
VCP/brownfields programs, application process, eligibility requirements,
dedication to special types of sites such as petroleum, dry cleaners,
abandoned drug labs, etc.):*** *The Hazardous Substance Cleanup Act Fund
(HSCAF) had a balance of \$12,000,000 at the end of FY07. The HSCAF
receives petroleum products tax receipts, penalties, cost recovery, and
interest. The fund is available for program administration, site
investigation, studies and design, removals, remedial actions, emergency
response, natural resource restoration, Comprehensive Environmental
Response Compensation and Liability Act (CERCLA) match, and operations
and maintenance.

The Brownfields Grant allocation is for the private sector and
municipal, county and state governments, nonprofit organizations, and
redevelopment authorities. Eligible entities receive funding based on
the type of organization. The amount of grant funds available ranges
from \$225,000 for the private sector up to \$1,000,000 for nonprofits,
governmental entities and redevelopment authorities in any fiscal year.
The eligible entity must not have caused or contributed to the
contamination.

The DEDO matching grant awards up to \$100,000 per project. Qualified
parties must be from the private sector. The project must result in the
hiring of five full time employees.

**Tax incentives (abatements, credits, etc.): **Tax credits of
\$650/year per new job created related to cleanup and redevelopment
(\$900/year in poverty areas).

Participants receive tax credits based on the size of investment and
number of new employees brought to the site. Grants of up to \$25,000
are available for site investigation and cleanup. In addition, low
interest loans up to \$250,000 are also available for brownfield sites.
About 700 sites have been identified for inclusion in the program, with
cleanup underway at 96.

**Other forms of support (environmental insurance, brownfields
redevelopment authorities, etc.): **There are several redevelopment
authorities that are engaged in redeveloping brownfields. They include
the Riverfront Development Corporation, the Downtown Dover Development
Corporation, the Blades Economic Development Corporation, and others.

***Program Elements***

*Technical Elements*

**Methods/standards/controls:** Risk-based cleanup standards of
1.0x10^-5^ for carcinogenic risk and a Hazard Index of 1.0 for
non-carcinogenic risks are used. DNREC provides guidance on the
investigation and remediation of sites.

**Contaminants covered/excluded:** Hazardous substances as defined in
HSCA are covered. In addition, petroleum contamination is covered on
brownfield sites; asbestos and lead paint contamination are covered if
found in the soil.

**Use of long-term stewardship and institutional controls
(IC): **Institutional controls/land-use controls are allowed, including
Uniform Environmental Covenants, operation and maintenance plans, and
Ground Water Management Zones (GMZ). GMZs prevent the use of ground
water and encourage development by allowing low levels of contamination
to remain in the ground water while preventing exposure.

**IC Tracking:** DNREC uses a database to track sites with ICs. This
database is in the process of being improved.

**IC Oversight:** DNREC performs inspections on a regular basis of the
sites that have O&M requirements.

**IC Monitoring:** DNREC reviews O&M reports for sites with O&M
controls.

***Management & Implementation Elements***

**Voluntary Cleanup Program MOA with EPA:** August 1997

**Costs to enter program or fees for service:** There is no cost to
enter into the BDP and the BFVCP. There are oversight costs for
investigative or remedial activities for DNREC staff time. The developer
will also be responsible for the cost of publishing public notices.
These costs are often included in the allowable costs for a Brownfields
Grant.

To fund the state's VCP oversight, participants are required to remit an
initial deposit up to a maximum of \$5,000. Additional deposits will be
requested based on the oversight cost estimate as the site cleanup
progresses. Any deposit funds not expended by the state are returned to
the participant.

**Funding source for administrative costs and staff:**\
The DNREC, Division of Air and Waste Management, Site Investigation and
Restoration Branch (SIRB) have 36 full-time equivalent (FTE) staff, with
36 FTE staff authorized. Legal support is provided by the Department of
Justice (Attorney General's office) with two attorneys assigned to both
state and CERCLA work. The majority of funding for administrative and
staff costs come from the federal grants (35%) and the HSCAF (49%).
Oversight cost reimbursements (10%) and state general fund (6%),
comprise the balance.

***Cleanup Activities***

**Sites currently in VCP: **281 sites have entered the VCP, and 195
sites currently are in the program. There are 96 sites in the BDP.

**Sites completed under VCP: **78 sites have been completed under the
VCP and the BDP.

**Benefits (incentives to participate in the VCP, covenants not to sue,
etc.): **The state has identified a number of economic benefits
attributable to the BDP and the VCP: more than 3,000 jobs and 50
businesses created; increased tax revenues; over 1,000 apartment/housing
units for University of Delaware students; three school sites in
process; and several parks, open space and recreational uses.

***Public Participation***

**Public participation requirements (notice, comment periods,
etc.): **The HSCA provides for public notice and opportunity for public
comment on proposed consent decrees, settlement revisions, proposed and
final remedial action plans; public hearings and meetings; and document
availability. Additionally, there are public notices when DNREC enters
into negotiations for a BDP or VCP applicant, and a notice once DNREC
has entered into a BDA.

**Public participation activities (hearing, meetings,
etc.): **Delaware's first statewide Brownfields Development Conference
was held on October 14, 2004.

***Statutory Authorities***

• The *Hazardous Substance Cleanup Act (HSCA)*, Title 7, §§9101--9126
(1990, as amended 1995, 2001, 2003, and 2004), establishes the HSCF and
authorizes DNREC to clean up sites contaminated by hazardous substances.
The law provides for enforcement; strict, joint and several liability;
cost recovery; public participation; natural resource damage assessment
and recovery; property transfer provisions; water replacement; the BDP
(2004) and the VCP (1995). The 2004 amendments creating the BDP created
a subsection to HSCA.

• The *Delaware Regulations Governing Hazardous Substance Cleanup*
(1993, revised 1995 and 1996), prohibit site cleanup at a property
contemplated for redevelopment or development without prior approval
from DNREC.

The passage of the BDP in 2004 has required that the HSCA regulations be
amended to reflect the new program. The Department is currently in the
process of revising the ***Delaware Regulations Governing Hazardous
Substance Cleanup.*** The current schedule calls for a draft for public
review to be available in early 2009.

**District of Columbia**

> **General Information**
>
> **Contact:** District of Columbia Department of Health\
> Environmental Health Administration (EHA)
>
> **Address:** 51 N Street, NE\
> Washington, DC 20002
>
> **Phone:** 202 535 1747
>
> **Fax:** 202 535 1382
>
> **Web site:**
> *http://doh.dc.gov/doh/cwp/view,a,1374,Q,586435,dohNav_GID,1812,.asp*

***Program Description (VCP, brownfields, or related)***

On June 15, 2001, the *Brownfield Revitalization Amendment Act of 2000*,
became effective. The Act established the Voluntary Cleanup Program
(VCP), a brownfields program, and provides for long-term stewardship of
sites that have been cleaned up under these programs. The Act also
authorized tax and other incentives for development of contaminated
property, and amended provisions of the *Tax Increment Financing
Authorization Act of 1998*, *National Capital Revitalization Corporation
Act of 1998*, and the *District of Columbia Community Development Act of
1975* to incorporate and support the cleanup and redevelopment of
contaminated property.

**Brownfield definition:** Abandoned, idled property or industrial
property where expansion or redevelopment is complicated by actual or
perceived environmental contamination.

**Program titles:**

• Voluntary Cleanup Program

• Brownfields Program

• Underground Storage Tank (UST) Program

• Leaking UST (LUST) Program

**Liability relief provisions:** The Brownfield Revitalization Amendment
Act of 2000 authorizes a civil penalty of up to \$50,000 and strict,
joint, and several liability for the unlawful release of any hazardous
substance. It does not authorize punitive damages or retroactive
liability.

**Financial incentives (grants, loans, tax provisions, etc.):**\
Participants may receive grants (subject to the availability of funds in
the Clean Land Fund), loans, and tax credits to offset real property
taxes and business franchise taxes.

**Legislative or program site eligibility requirements:**

• Under the VCP, non-responsible parties are eligible to participate.

• Any brownfields or site contaminated by hazardous substances that is
not listed on EPA's National Priorities List (NPL), and is not the
subject of a current cleanup action by EPA or EHA.

***Financial Elements***

**Assessment and cleanup funding** **(source, amount, relationship to
VCP/brownfields programs, application process, eligibility requirements,
dedication to special types of sites such as petroleum, dry cleaners,
abandoned drug labs, etc.):**

• Participants entered in the program may receive grants and loans
subject to the availability of funds in the Clean Land Fund.

• The Clean Land Fund provides for the administration, improvement, and
maintenance of the brownfields and VCP, loans and grants made for
contaminated property cleanup assistance, and any other brownfields
revitalization incentives established by the *Brownfields Revitalization
Amendment Act.* Authorized sources of the Clean Land Fund include funds
from appropriations, income from operations, grants, revenues, and fees.

**Tax incentives (abatements, credits, etc.):**\
Participants may receive tax credits to offset real property taxes and
business franchise taxes.

**Other forms of support** **(environmental insurance, brownfields
redevelopment authorities, etc.):\
**Participants may contact the Office of the Chief Financial Officer and
the Office of the Deputy Mayor for Economic Development regarding
specific tax incentive financing support such as bonds.

***Program Elements***

***Technical Elements***

**Methods/standards/controls: **The District is developing hazardous
substance cleanup standards. EHA must publish cleanup standards for
contaminated properties under the VCP that include ground water, surface
water, and soil standards. Until these cleanup standards are published,
the VCP will use the *Safe Drinking Water Act* ground water standards,
prior EHA standards, and the District's LUST program standards.

**Contaminants covered/excluded: **To date, the District has not
identified particular contaminants that are to be excluded from the
program under all circumstances.

**Use of long-term stewardship and institutional controls (IC):\
**The Brownfield Revitalization Amendment Act of 2000 authorizes EHA to
create, maintain, and disseminate records, informational systems, and
educational materials that are necessary to protect public health and
the environment at contaminated properties cleaned up under the Act. EHA
may also issue instruments for cleaned up properties and properties
adversely affected by residual hazardous substances from the cleaned up
properties, which will include a notice of residual risk, residual risk
restrictions, hazardous substance easements, and orders that run with
the land.

**IC Tracking:** The Brownfield Revitalization Amendment Act of 2000
authorizes EHA to create an institutional control tracking process.

**IC Oversight:** The Brownfield Revitalization Amendment Act of 2000
authorizes EHA to create an institutional control oversight process.

**IC Monitoring:** The Brownfield Revitalization Amendment Act of 2000
authorizes EHA to create an institutional control monitoring process.

***Management & Implementation Elements***

**Voluntary Cleanup Program MOA with EPA: **No

**Costs to enter program or fees for service: **The application fee to
enter the District's VCP is \$10,000.

**Funding source for administrative costs and staff: **Currently, a
combination of appropriated funds and federal brownfields grants
provides for the administration costs.

***Cleanup Activities***

**Sites currently in VCP:** 4 (since 2003)

**Sites completed under VCP:** Anticipate completion of two sites in
2005.

**Benefits (incentives to participate in the VCP, covenants not to sue,
etc.):** Participants released from further liability for the cleanup of
the eligible property and for any contamination identified in the
environmental assessment of the property, and not subject to a
contribution action instituted by a responsible person. Transferable
Certificate of Completion (COC). Right to withdraw from the program.

***Public Participation***

**Public participation requirements (notice, comment periods,
etc.): **The Brownfield Revitalization Amendment Act of 2000 provides
for 14-day public notice and comment period before approval of an
application, cleanup plan, and the issuance of a COC under the VCP.

**Public participation activities (hearing, meetings, etc.):\
**The law also authorizes EHA to develop public involvement plans for
response or cleanup actions. Any person may bring an action to compel
the Mayor to perform non-discretionary duties under the Brownfields
Revitalization Amendment Act of 2000 or to bring a civil action on his
or her own behalf against any person who is in violation of any
standards, regulations, requirements, or orders pursuant to the act.

***Statutory Authorities***

• The *Brownfields Revitalization Amendment Act of 2000*, D.C. Code §101
et seq., authorizes a regulatory cleanup program, a voluntary cleanup
program, a brownfields program, and provides for long-term stewardship
of sites that have been cleaned up under these programs. Regulations to
implement these programs have been drafted but are not yet finalized.

• The *Hazardous Waste Management Act of 1978*, D.C. Code §§6--701 et
seq., (as amended in 1984, 1989, and 1991), establishes the District's
hazardous waste management program. The law authorizes the Mayor to
revoke or suspend a permit and, if a responsible party fails to comply
with an administrative order, directs the Mayor to take corrective
action necessary to alleviate or terminate a violation of the law, a
threat to health or the environment, or a release of hazardous waste.
The law also authorizes the Mayor to recover costs of the corrective
action from the responsible person and provides for injunctions and
civil and criminal penalties.

**Maryland**

> **General Information**
>
> **Contact:** Luke Wisniewski
>
> **Address:** Maryland Department of the Environment (MDE)\
> 1800 Washington Boulevard Suite 625\
> Baltimore, MD 21230-1719
>
> **Phone:** 410 537 3447
>
> **Fax:** 410 537 3472
>
> **Email:** *lwisniewski@mde.state.md.us*
>
> **Web site:**
> *http://www.mde.state.md.us/Programs/LandPrograms/ERRP_Brownfields/index.asp*

***Program Description (VCP, brownfields, or related)***

**Brownfields definition: **No information available

**Program titles:**

• Voluntary Cleanup Program (VCP) (1997)

**•** Brownfields Revitalization Incentive Program (administered by the
Department of Business and Economic Development)

**Liability relief provisions:**

• VCP offers Certification of Completion (COC) or No Further
Requirements Determination; sites contaminated after October 1, 1997,
listed on the National Priorities List (NPL), or under active
enforcement are not eligible.

• Maryland has strict, joint, and several liability, but provides for
apportionment where there is a reasonable basis for determining a
party's contribution. Under state law, the state program may impose
liability for cleanup of substances disposed of before the date program
was enacted. State has civil penalty authority up to \$25,000 per
violation. Punitive damages are not available.

• Through the VCP, certain purchasers who did not cause or contribute to
contamination may limit their retroactive liability upon purchase of the
property. Amendments effective October 1, 2004, clarify that a person
who is not a "responsible person" because he meets one of the statutory
exclusions is entitled to "inculpable person" status. The new law also
ensures liability protection.

**Financial incentives (grants, loans, tax provisions, etc.):**

• The Maryland Department of Business and Economic Development
administers the Brownfields Revitalization Incentive Program, which
provides financial incentives for the redevelopment of brownfields.
Eligible brownfield sites are either those that qualify for the VCP or
those contaminated by oil. Properties must generally be industrial or
commercial sites that are located in densely populated urban centers and
generally underutilized to qualify for the program. Financial incentives
include:

• Low interest loans or grants for Phase I and Phase II environmental
assessments;

• Property tax credits in jurisdictions that have enacted enabling
legislation for the difference on the assessed property value after pre-
and post-cleanup and/or redevelopment; and

• Low interest loans or grants for site remediation; these incentives
are designed to stimulate redevelopment in areas where cleanup will have
significant environmental, economic development and urban revitalization
benefits.

• The Brownfields Site Assessment Initiative, funded by EPA grants, is
intended to help eligible property owners or prospective property owners
determine the type and extent of possible contamination on a property.
These assessments are conducted by MDE free of charge and both property
owners and prospective property owners are eligible to participate.
Applicants to the VCP may also apply for a brownfields assessment, which
will reduce the investigation costs associated with a VCP application.
The property should meet the following conditions: have perceived or
known contamination; be vacant or underutilized; be located in a
commercial or industrial area; create jobs; and improve the local tax
base following redevelopment. Eligible properties also include sites on
the EPA Comprehensive Environmental Response, Compensation and Liability
Information System (CERCLIS) and state Master List. Properties under
active enforcement by MDE are not eligible to participate. This
initiative is administered on a first-come, first-serve basis beginning
July 1 of each calendar year and is open to both the public and private
sector.

• The Clean Water State Revolving Loan Fund provides low-interest loans
for cleanup costs to complete approved cleanup plans for sites on the
state Master List (commonly referred to as state Superfund sites or
CERCLIS No Further Response Action Planned Sites (NFRAP) sites)) or in
the VCP where water quality is an issue. This funding is provided to
parties legally responsible for cleanup of sites or parties who have
been accepted into VCP.

**Legislative or program site eligibility requirements:**

• Under the state Superfund program, MDE applies water quality criteria,
ground water standards, Maximum Contamination Level/Maximum Contaminant
Level Goals (MCLs/MCLGs), risk-based assessments, background levels, and
EPA guidelines, as appropriate. Site-based risk assessments are used in
conjunction with any applicable regulatory criteria and are based on EPA
published standards and Region 3 guidance as appropriate and available.
The state's voluntary cleanup law requires participants to select one or
more of the following criteria that protect public health and the
environment: uniform numeric risk-based standards; measurable standards
based on site-specific risk assessment; background levels; federal or
state soil standards or water quality standards; federal or state MCLs;
or any other federal or state standards.

• MDE has developed uniform numeric risk-based cleanup standards, based
on industrial and residential uses. In cases where MDE approves a
voluntary cleanup based on land use assumptions, the agency requires
deed restrictions.

• The Brownfields Revitalization Incentives Program is open to sites
that are not on the NPL list, not Treatment, Storage, and/or Disposal
(TSD) facilities, and not subject to active enforcement, provided those
sites are owned or operated by an inculpable person. The state
brownfields law lists several factors to be considered in determining
eligibility for financial assistance, including location, type of site,
and economic development potential.

• In the VCP, any site that is contaminated or perceived to be
contaminated is eligible for participation, other than NPL sites, sites
under active enforcement, or TSD facilities. Eligible applicants include
responsible persons who have not knowingly or willingly violated any
hazardous substance law, as well as inculpable persons, defined as
purchasers with no previous connection to the property.

***Financial Elements***

**Assessment and cleanup funding (source, amount, relationship to
VCP/brownfields programs, application process, eligibility requirements,
dedication to special types of sites such as petroleum, dry cleaners,
abandoned drug labs, etc.):**

• Pursuant to state law, MDE is required to seek cost recovery for any
state response costs funded by the Hazardous Substance Control Fund
(HSCF). The HSCF includes monies used for activities outside the state
Superfund program, and information specific to state Superfund
activities is not available. The Voluntary Cleanup Fund currently
consists of user fees. In the first year of the program, 23 applications
were submitted, and \$138,000 in fees were placed in the Fund. If the
state does not use the entire \$6,000 fee paid by a participant in its
oversight role, it will refund the balance; conversely, if state
oversight costs more than \$6,000, the balance will be collected from
the participant.

• The Brownfields Revitalization Incentives Fund received \$500,000 in
appropriations in the first year. The Fund may be used to make low
interest loans and grants for site remediation.

**Tax incentives (abatements, credits, etc.): **Tax credits may be
extended to 10 years in designated Enterprise Zones (EZs); incentive
available in jurisdictions which agree to contribute 30% of the increase
to the state's Brownfields Revitalization Incentive Fund.

**Other forms of support (environmental insurance, brownfields
redevelopment authorities, etc.):** No information available

***Program Elements***

***Technical Elements***

**Methods/standards/controls:** VCP provides a menu of cleanup options:
uniform risk-based standards; site-specific risk assessment;
federal/state soil standards or water quality standards; federal/state
MCLs; and other federal/state standards. Site-specific risk assessments
follow a Risk-Based Corrective Action (RBCA)-like process.

**Contaminants covered/excluded:** Polychlorinated biphenyls (PCBs) and
oil (as of October 1, 2004) are OK; other contaminants accepted
conditionally---petroleum (not exclusively, but along with other
contaminants); paint and asbestos (as long as they comply with all other
applicable laws and regulations).

**Use of long-term stewardship and institutional controls
(IC): **Institutional controls are allowed and are included in the No
Further Requirements Determination (NFRD) or COC. The state notes that
institutional controls "probably have resulted in more cleanups and more
properties reused. Institutional Controls also have probably lowered the
cost of cleanups."

**IC Tracking:** Institutional Controls/Land Use Controls (IC/LUC) are
tracked by the Maryland Department of the Environment\'s Land
Restoration Program. These documents are also recorded in the land
records and sent to Miss Utility. Both programs are currently engaged in
updating the GIS-based Web site to ensure that sites with IC/LUCs are
readily available to the general public.

**IC Oversight:** When the Voluntary Cleanup Program (VCP) issues NFRDs
or COCs with LUCs, the enforcement of the IC/LUCs falls to the VCP
through follow-up inspections.

**IC Monitoring:** Other IC/LUCs associated with No Further Action (NFA)
letters issued by the Controlled Hazardous Substance Enforcement
Division are enforced by the Department and recorded with the land
records.

***Management & Implementation Elements***

**Voluntary Cleanup Program MOA with EPA:** February 1997

**Costs to enter program or fees for service:** An initial fee of
\$6,000 is collected from each participant, although the fee is
ultimately based on the actual cost of state oversight. Additional fees
include:

• Application fee for subsequent application for the same property or
contiguous or adjacent property in the same development: \$2,000.

• Fee for expedited determination as an inculpable person: \$2,000.

• Fee for issuance of NFRD or COC conditioned on certain uses or
maintaining certain conditions: \$2,000.

• Fee for altering the record of determination in land records: \$2,000.

Program incentives include a streamlined process, determination of no
further requirements and issuance of a COC, which releases the
participant from state enforcement action and further liability for
remediation approved by state.

**Funding source for administrative costs and staff:**\
MDE, Waste Management Administration, Environmental Restoration and
Redevelopment Program (ERRP) has three divisions involved in the state
Superfund process: the Site and Brownfields Assessment/State Superfund
Division, with approximately nine full-time equivalent (FTEs); the
Voluntary Cleanup Program, with 13 FTEs; and the Federal Facilities and
NPL Division, with 13 FTEs (approximately 7.5 of whom work on non-NPL
sites). The core function falls under the Waste Management
Administration's Planning and Resource Management Program, and has
approximately eight FTEs. The Attorney General's office has two
attorneys located at MDE who work on hazardous substance cleanup.
Funding for the state's Superfund program comes from the state general
fund (10%), the state cleanup fund (10%), and from federal grants (80%).

***Cleanup Activities***

**Sites currently in VCP:** 432 sites have been accepted into the VCP.

**Sites completed under VCP:** 205 sites totaling approximately 3,028
acres have been completed.

**Benefits (incentives to participate in the VCP, covenants not to sue,
etc.): **An estimated 100 businesses and more than 5,700 jobs have been
created on brownfields sites; another 160 businesses have been located
on, created and/or retained on brownfield sites.

***Public Participation***

**Public participation requirements (notice, comment periods,
etc.): **There are statutory requirements for public meetings, document
availability, as well as requirements for notice and public comment.
Community involvement is encouraged if there is interest. The voluntary
cleanup law provides for notice and comment, as well as an opportunity
for a public informational meeting to discuss proposed cleanup plans.
Amendments effective October 1, 2004, require MDE to post on its Web
site notice of VCP applications and the opportunity for public comment.
Persons receiving an NFRD or COC that includes any institutional
controls must send this information to "Miss Utility" for recordation.

**Public participation activities (hearing, meetings, etc.):\
**Amendments effective October 1, 2004, require VCP applicants to hold a
public informational meeting for all proposed response action plans.

***Statutory Authorities***

• The *Annotated Code of Maryland, Environment Art.,* Title
7---Hazardous Material and Hazardous Substances, Subtitle 2---Controlled
Hazardous Substances, §§7--201 through 7--268 (1982, as amended 1984,
1985, 1986, 1987, 1989, 1991, 1992, and 1993), establishes the HSCF and
authorizes MDE to cleanup sites contaminated by hazardous substances.
The law provides for enforcement; strict, joint and several, and
proportional liability; cost recovery; public participation; and natural
resources damages assessment and recovery.

• The *Annotated Code of Maryland, Environment Art.,* Title
7---Hazardous Material and Hazardous Substances, Subtitle 5---Voluntary
Cleanup Program, §§7--501 through 7--516 (1997), establishes the state's
VCP (amended April 2004).

• The *Annotated Code of Maryland, Art.* 83A, Subtitle 9, Brownfields
Revitalization Incentive Program, §§3--901 through 905 (1997),
establishes the state's Brownfields Financial Incentives Program.

**Pennsylvania**

> **General Information**
>
> **Contact:** Troy Conrad
>
> **Address:** Pennsylvania Department of Environmental\
> Protection (DEP)\
> Land Recycling and Cleanup Program\
> P.O. Box 8471\
> Harrisburg, PA 17105-8471
>
> **Phone:** 717 783 7816
>
> **Fax:** 717 787 0884
>
> **Email:** *tconrad@state.pa.us\
> landrecycling@state.pa.us*
>
> **Web site:**
> *http://www.depweb.state.pa.us/ocrlgs/cwp/view.asp?a=1459&q=518353&ocrlgsNav=\|*

or http:*//www.depweb.state.pa.us keyword "Brownfields"*

***Program Description (VCP, brownfields, or related)***

**Brownfields definition:** Pennsylvania defines brownfields as
abandoned, idle, or under-used industrial or commercial facilities where
expansion or redevelopment is complicated by real or perceived
environmental contamination.

**Program titles:**

• Land Recycling Program (1995)

• Voluntary Cleanup Program (VCP)

• Brownfields Program

• Brownfield Action Team

• One Cleanup Program

**Liability relief provisions:** Program offers release from liability
for approved cleanups and potentially responsible parties (PRPs) may
participate. The program identifies risk-based standards for cleanup,
simplifies the approval process, and limits future liability when
standards are attained.

Pennsylvania signed a Memorandum of Agreement (MOA) with EPA in April
2004 that clarifies that sites remediated under the state Land Recycling
Program (LRP) may also satisfy requirements under the Comprehensive
Environmental Response Compensation and Liability Act (CERCLA), Resource
Conservation Recovery Act (RCRA), or Toxic Substances Control Act
(TSCA). This is the first One Cleanup Program MOA negotiated with EPA.

**Financial incentives (grants, loans, tax provisions, etc.):**

• Industrial Sites Reuse Program

• Infrastructure Development Program

• Hazardous Sites Cleanup Fund (HSCF)

• Keystone Opportunity Zones/Keystone Opportunity Expansion Zones
(KOZ/KOEZ)

• Job Creation Tax Credit Program

• Key Sites Initiative

• Business in Our Sites

• Building PA

• Tax Increment Financing (TIF) Guarantee Program

• Infrastructure Facilities Improvement Program

• Section 108 Department of Housing and Urban Development (HUD) Loan
Pool

• New PA Venture Guarantee Program

• New PA Venture Capital Investment Program

• 2nd Stage Loan Program

• Pennsylvania Infrastructure and Investment Authority (PENNVEST)
Brownfields Loans

**Legislative or program site eligibility requirements:**

• The LRP, along with its implementing regulations adopted in 1997,
establishes statewide cleanup standards. The party undertaking cleanup
must select one or a combination of the standards set out in the law and
regulations. The three general remediation standards are: background;
generic statewide health standards (concentrations of regulated
substances associated with a specific environmental medium, which take
into account land use factors); and site-specific risk assessment. The
levels used for risk assessments are 10--4 to 10--6 for carcinogens and
a Hazard Index of 1 for non-carcinogens.

• The regulations implementing LRP also provide a remediation standard
for Special Industrial Areas (SIAs). The requirements include a
remediation plan that provides for: 1) addressing "all immediate,
direct, or imminent threats to public health and the environment which
would prevent the property from being occupied for its intended purpose"
and compliance monitoring; and 2) preventing access to contaminated
areas not required to be remediated. For sites cleaned up to standards
based on a specific land use, deed notice is the primary mechanism used
by the state to maintain future land use restrictions. In some cases,
deed restrictions are used.

• The *Hazardous Sites Cleanup Act* (HSCA) provides for comprehensive
order and injunctive authorities; orders for information and access;
criminal and civil penalties; and punitive damages equal to treble the
state's costs. Civil penalties are a minimum of \$5,000 per day and a
maximum of \$25,000 per day. Liability is strict, joint, and several,
and retroactive. HSCA also provides for Nonbinding Allocation of
Responsibility (NBARs), *de minimis* settlements, legal presumptions of
culpability for contamination, and whistleblower protection. There is a
120-day notice period before a site may be placed on the state list to
encourage responsible party cleanup prior to listing. There is also a
120-day moratorium on enforcement at multi-party sites if responsible
parties (RPs) seek to negotiate shares. For remedial actions extending
beyond interim actions, HSCA §1301 requires DEP to initiate action
against owners or operators under other state laws (e.g., *Clean Streams
Law and the Solid Waste Management Act)* before taking HSCA enforcement
or cost recovery actions.

***Financial Elements***

**Assessment and cleanup funding (source, amount, relationship to
VCP/brownfields programs, application process, eligibility requirements,
dedication to special types of sites such as petroleum, dry cleaners,
abandoned drug labs, etc.):**

• Industrial Sites Reuse Program provides loans and grants to
municipalities and private entities for site assessment and remediation;
maximum of \$200,000 for site assessment, or \$1,000,000 for remediation
per year; all require a 25% match; loans carry a 2% rate for terms up to
five years (for assessments) or 15 years (for remediation).

• Infrastructure Development Program provides public and private
developers with grants and loans for site remediation, clearance, and
new construction, up to \$1,250,000 per project at 3% interest for 15
years.

• Key Sites Initiative for municipalities and economic development
agencies uses state-funded contractors to conduct site assessments and
prepare cost estimates and remediation plans to promote reuse of
abandoned industrial properties.

• Governor Edward G. Rendell on March 31, 2004 announced the bipartisan
approval of several major pieces of Pennsylvania's Economic Stimulus
Package which will fuel a major new investment in communities across the
commonwealth. This initiative invests nearly \$2,000,000,000 for the
revitalization of Pennsylvania's communities. Programs include Business
in Our Sites, Building PA, the New PA Venture Guarantee Program, the New
PA Venture Capital Investment Program, the 2nd Stage Loan Program, the
Tax Increment Financing Guarantee Program, and the Infrastructure and
Facilities Improvement Program.

• Business in Our Sites will offer flexible loans and grants for local
municipalities and their economic development partners to create future
business growth and attract opportunities through the acquisition and
preparation of key sites for development. A total of \$300,000,000 is
allotted for FY04 for this program.

• Building PA will provide funding for the development of real estate
assets within the commonwealth. Funds will be loaned to private
investors and foundations looking to match funds to facilitate projects.
\$150,000,000 has been set aside for this program.

• New PA Venture Guarantee Program will allow the commonwealth to more
actively partner with the investment community by structuring a program
that provides guarantees to venture capital companies interested in
Pennsylvania businesses. These guarantees will provide increased capital
for Pennsylvania businesses to grow and create jobs. In FY04,
\$250,000,000 was set aside for this program.

• New PA Venture Capital Investment Program will provide capital to
Pennsylvania-focused venture capital companies that agree to match those
funds and make investments in Pennsylvania businesses. The Stimulus
Package assigns \$60,000,000 to accomplish this piece of the initiative.

• 2nd Stage Loan Program will provide guarantees for bank loans to
second stage manufacturers and technology companies for working capital
and other financing needs. Targeted toward manufacturing, advanced
technology and biotechnology, these funds will support growth in these
vital sectors. The Stimulus Package sets aside \$50,000,000 in loan
guarantees for this program.

• Infrastructure and Facilities Improvement Program is a multi-year
grant program that will provide grants to certain issuers of debt in
order to assist with the payment of debt service.

• PENNVEST manages a Clean Water State Revolving Loan Fund (CWSRF) to
administer both state and federal funds available for certain
infrastructure projects, including the construction of wastewater
collection and treatment projects and endeavors that control non-point
sources of pollution. In 2004, PENNVEST decided to extend the use of its
funds to include the remediation of brownfields that pose a threat to
local ground water or surface water sources. PENNVEST is setting aside
30% of its yearly CWSRF funding capacity to address
brownfields---\$48,000,000 in 2004. Loans to one municipality may total
up to \$11,000,000 per project. The amount is increased to \$20,000,000
for projects that serve two or three municipalities. Any requests over
\$20,000,000 or projects that serve all or parts of four or more
municipalities require a special vote by the PENNVEST Board of
Directors.

**Tax incentives (abatements, credits, etc.):**

• KOZ/KOEZ---in designated KOZ/KOEZs, all taxes maybe forgiven until
2010 or 2013, respectively.

• Job Creation Tax Credit Program created a tax credit of \$1,000 per
new job for firms that increase employment by 25 jobs or 20% within
three years from start date (with program).

• The TIF Guarantee Program has been a significant financing tool for
the commonwealth for many years. Through TIF, communities can borrow
funds for projects that will develop blighted areas and then repay those
borrowed monies through the new tax revenues that will be generated as a
result of the development. While this method of financing has been used
extensively by the state's largest cities, smaller communities have not
tapped into the potential of TIF. In order to solve this disparity, a
combination of technical assistance and loan guarantee assistance is
proposed to encourage small communities to utilize this effective
program. The amount of loan guarantees for FY04 is \$100,000,000.

**Other forms of support (environmental insurance, brownfields
redevelopment authorities, etc.): **PA SiteFinder---Web site for
marketing previously-used commercial and industrial properties available
for redevelopment in Pennsylvania. A person can list a site for sale or
lease and also search for one to purchase or lease. PA SiteFinder can be
searched by property location, acreage, building square foot, or cost.
Once a potential site is identified, additional information can be
retrieved including county, municipality, property size, zoning,
buildings and conditions, and utility access.

Environmental Insurance---Pennsylvania has pending legislation that
would establish an environmental insurance program and a subsidies pool
to help alleviate the premium costs for purchasing a
Pennsylvania-specific policy.

***Program Elements***

***Technical Elements***

**Methods/standards/controls:**\
By site---One property may have more than one site.

By media---Ground water and soil can use different standards, even for
the same substance.

By substance---Can apply any one of the standards to each substance.

**Contaminants covered/excluded:** See list on LRP Web site.

**Use of long-term stewardship and institutional controls
(IC): **Reopeners include: fraud in the attainment demonstration; newly
identified areas of contamination; remedy failure; and increased risk
due to substantial changes in exposure or new toxicology information.

Pennsylvania passed model Uniform Environmental Covenants Act (UECA)
legislation (H.B. 43) that ensures that use restrictions and
institutional and engineering controls at a brownfield site with
residual contamination remain valid and enforceable even after the
property changes hands through a sale or other ownership transfer.

> **IC Tracking:** Environmental covenants created under the law will be
> recorded in county land records and in a state registry to be created
> by DEP.
>
> **IC Oversight and Monitoring:** The environmental covenants will be
> binding and enforceable on successive owners over time.

***Management & Implementation Elements***

**Voluntary Cleanup Program MOA with EPA:** April 2004

**Costs to enter program or fees for service:**

• \$250 for statewide health final report, background final report, and
site-specific reports except final*.*

• \$500 for site-specific final report.

• No fee for SIA reports.

• Not required for regulated tank cleanups.

• If combined reports are submitted, multiple fees apply.

**Funding source for administrative costs and staff:** LRP in DEP
handles hazardous substance cleanup and has 175 full-time equivalent
(FTE) staff. Legal support is provided by the DEP Office of Chief
Counsel with approximately 12 FTE attorneys. The state cleanup fund
provides 100% of administrative costs.

Recent Program Enhancements (2004):

• Establishment of Office of Community Revitalization and Local
Government Support---This new office is charged with coordinating
economic development and brownfields redevelopment activities.

• Brownfields Action Team (BAT)---This program has been established to
provide redevelopment projects with an enhanced management process
specifically designed to facilitate both environmental protection and
economic development. Each BAT will be assembled based on the needs of
that specific project and will provide a coordinated single
point-of-contact to facilitate project advancement and eliminate
avoidable delays. This includes site assessment, remediation activities,
permit coordination, and priority funding opportunities.

• Best Management Practices for Low-Risk Sites---A series of criteria
and reporting requirements have been established that allow low-risk
sites to receive the full liability protection afforded by Act 2 without
DEP review. Low-risk site submittals are not subject to more than an
administrative verification for completeness. The burden of compliance
is on the submitting licensed professional.

• Mothball Properties---DEP is working with local governments to
identify properties critical to community revitalization efforts that
have been "mothballed" by owners reluctant to offer for sale or initiate
the remediation of these properties. In consultation with local
officials, DEP staff will initiate enforcement action to require
assessment and remediation work on these properties with potential
environmental liabilities. At any point in the process, owner may choose
to enter LRP.

• Grayfields---Abandoned mine lands (AMLs) historically have not been
eligible for funding under Act 2 or for related tax incentives available
at the federal level. DEP will initiate a program to apply land
recycling procedures to AMLs. DEP hopes to identify a subset of AMLs
that are well positioned (close to resources and infrastructure) for
redevelopment. Monies may be leveraged for AML reuse from the federal
Office of Surface Mining under the Surface Mining Control and
Reclamation Act (SMCRA), and the Industrial Sites Reuse Fund
administered by Department of Community and Economic Development (DCED).
Legislation is being drafted to promote an AML reuse program, and to
ensure the protection of water rights by reusers relying upon
mining-affected waters for their operational needs.

***Cleanup Activities***

**Sites currently in VCP: **1,744 as of January 1, 2008.

**Sites completed under VCP: **2,723 as of January 1, 2008.

**Benefits (incentives to participate in the VCP, covenants not to sue,
etc.): **Liability relief, improved quality of life, and community/urban
revitalization.

***Public Participation***

**Public participation requirements (notice, comment periods, etc.):**

• HSCA establishes requirements relating to public notice, public
comment, hearings and meetings, document availability, and grants to
citizen groups. The state provides public notice of the analysis of a
selected response action and alternatives. The public notice is followed
by a 90-day comment period. A public hearing is held within the 90-day
comment period. HSCA also has a citizen suit provision.

• The LRP and its regulations contain public participation requirements
for parties proposing remediation under one of the law's cleanup
standards. These include public notice and comment, as well as the
development of public involvement plans where the site-specific standard
is used and the affected municipality requests to be involved. Community
Relations Coordinators perform additional public participation functions
on an ad hoc basis.

**Public participation activities (hearing, meetings, etc.):\
**As required by Pennsylvania statute and MOA.

***Statutory Authorities***

• The *Hazardous Sites Cleanup Act* (HSCA) (Act 1988--108), 35 PS
§6020.101 et seq., establishes the HSCF and authorizes the DEP to clean
up sites contaminated by hazardous substances. The law provides for
enforcement, strict, joint and several liability, cost recovery, public
participation, natural resource damage assessment and recovery, water
replacement, and environmental disclosure upon property transfer.

• The *Land Recycling and Environmental Remediation Standards Act*,
(LR&ERSA) (Act 1995--2), 35 PS §6026.101 et seq., establishes statewide
cleanup standards and a voluntary cleanup program, and addresses
brownfield sites

**Virginia**

> **General Information**
>
> **Contact:** Kevin Greene
>
> **Address:** Virginia Department of Environmental Quality\
> (DEQ) Division of Waste Program\
> Coordination
>
> 629 East Main Street, Fourth Floor\
> P.O. Box 10009\
> Richmond, VA 23240-0009
>
> **Phone:** 804 698 4236
>
> **Fax:** 804 698 4234
>
> **Email:** klgreene@deq.state.va.us
>
> **Web site:** *http://www.deq.state.va.us/brownfieldweb/*

***Program Description (VCP, brownfields, or related)***

Since 1997, Virginia has had a program for voluntary cleanups of
contaminated sites. Regulations provide a framework for selecting
cleanup standards under the Voluntary Cleanup Program (VCP). Eligibility
is limited to sites where remediation is not mandated pursuant to a
federal or state regulatory program. Incentives for participation in the
program include the issuance of a certification of satisfactory
completion of remediation, which constitutes immunity to a state
enforcement action.

On March 12, 2004, Virginia issued an Interim Brownfields Manual. DEQ's
goal in implementing the brownfields program is to make its innovative
and business oriented provisions substantive, user friendly, and timely.
The manual presents definitions, frequently asked questions, and
flowcharts to help the user quickly and easily self assess the
applicability of the amnesty and limited liability provisions for
project. The program covers sites with a local government interest and a
potential for redevelopment. The state provides the site assessment
service as an incentive for the reuse or redevelopment of brownfields.

**Brownfields definition:** Idled, underutilized, or abandoned
industrial or commercial properties where expansion or redevelopment is
complicated by real or perceived environmental contamination.

**Program titles:**

• Brownfields Program

• Voluntary Remediation Program (VRP)

**Liability relief provisions:** Virginia's brownfields law protects
bona fide prospective purchasers and innocent landowners from having to
conduct containment or cleanup under Virginia's air, water, and waste
laws at a brownfield site if they meet the statutory definitions and the
additional requirements in the statute.

**Financial incentives (grants, loans, tax provisions, etc.):**\
Local governments are authorized to provide tax incentives.

**Legislative or program site eligibility requirements:** No information
available

***Financial Elements***

**Assessment and cleanup funding (source, amount, relationship to
VCP/brownfields programs, application process, eligibility requirements,
dedication to special types of sites such as petroleum, dry cleaners,
abandoned drug labs, etc.):** Voluntary Response Action (VRA) provides
funding for brownfields remediation projects for localities and
governmental authorities across the commonwealth, both through the
Virginia Pooled Financing Program (VPFP) and through the Virginia Water
Facilities Revolving Fund (VWFRF).

**Tax incentives (abatements, credits, etc.):** Defines environmental
restoration sites holding Certificates of Completion (COCs) as a
separate class of property and allows local governments to adopt an
ordinance partially or fully exempting that class from taxation.

**Other forms of support (environmental insurance, Brownfields
redevelopment, etc.):** No information available

***Program Elements***

***Technical Elements***

**Methods/standards/controls: **Risk-Based Corrective Action (RBCA)-like
process in place; applicants have a choice of remediation
standards---Tier I (background), Tier II (look-up values
adopted/modified from EPA standards), or Tier III (risk-based, including
institutional controls).

**Contaminants covered/excluded: **Petroleum, asbestos, lead paint, and
polychlorinated biphenyls (PCBs) all OK, if not regulated under another
program.

**Use of long-term stewardship and institutional controls
(IC): **Institutional controls are allowed; however, Virginia does not
have a long-term stewardship program for its state cleanup program or
for its voluntary cleanup program.

**IC Tracking:** Virginia does not have a long-term stewardship program
for its state cleanup program or for its voluntary cleanup program.

**IC Oversight:** Virginia does not have a long-term stewardship program
for its state cleanup program or for its voluntary cleanup program.

**IC Monitoring:** Virginia does not have a long-term stewardship
program for its state cleanup program or for its voluntary cleanup
program.

***Management & Implementation Elements***

**Voluntary Cleanup Program MOA with EPA:** January 2002

**Costs to enter program or fees for service: **\$5,000 or 1% of the
cost of remediation, whichever is less.

**Funding source for administrative costs and staff:** State oversight
is funded in part by a fee of \$5,000 or 1% of the cost of remediation,
whichever is less.

***Cleanup Activities***

**Sites currently in VCP:** 142 enrolled in VRP as of January 1, 2008.

**Sites completed under VCP:** 140 No Further Action (NFA) certificates
issued as of January 1, 2008.

**Benefits (incentives to participate in the VCP, covenants not to sue,
etc.): **COCs provide assurance that the remediated site will not later
become the subject of a DEQ enforcement action unless new issues are
discovered.

***Public Participation***

**Public participation requirements (notice, comment periods,
etc.): **State regulations establish public notice and comment
requirements for the VRP.

**Public participation activities (hearing, meetings, etc.):** State
regulations establish public notice and comment requirements for the
VRP.

***Statutory Authorities***

• *Brownfields Restoration and Land Renewal Act,* Va. Code §§10.1--1230
through 10.1--1237.

• The *Waste Management Act*, Va. Code §§10.1--1400---10.1--1457 (1986,
as amended 1987, 1988, 1990, 1993, 1994, 1995 and 1996), authorizes DEQ
to contain or clean up sites where hazardous wastes have been improperly
managed. The law provides for enforcement, strict liability, and cost
recovery.

• The 1995 amendments created a voluntary remediation program. The
*Virginia Environmental Emergency Response Fund Act*, Va. Code
§§10.1--2500---10.1--2502 (1992) establishes the state fund.

**West Virginia**

**General Information**

**Contact:** Ken Ellison

**Address:** West Virginia Department of Environmental\
Protection (DEP)\
Division of Land Restoration\
601 57th Street, SE\
Charleston, WV 25304-2345

**Phone:** 304 926 0455 ext. 1263

**Fax:** 304 926 0457

**Web site:** *http://www.wvdep.org*

**Program Description\
(VCP, brownfields, or related)**

The Voluntary Remediation and Redevelopment Act (VRRA) encourages
voluntary remediation and redevelopment through an administrative
program set out in the West Virginia Code of State Regulations, Title
60, Series 3 entitled the Voluntary Remediation and Redevelopment Rule
(the Rule), which became effective on July 1, 1997. The VRRA limits
enforcement actions by DEP, provides financial incentives to entice
investment in brownfield sites, and limits liability under environmental
laws and rules for those who remediate sites under the standards
provided in the Rule.

**Brownfields definition:** "Brownfield" means any industrial or
commercial property which is abandoned or not being actively used by the
owner as of the effective date of state law, but shall not include any
site subject to a unilateral enforcement order under §104 through §106
of the Comprehensive Environmental Response, Compensation and Liability
Act (CERCLA), or which has been listed or proposed to be listed by EPA
on the National Priorities List (NPL), or subject to a unilateral
enforcement order under the Resource Conservation Recovery Act (RCRA) or
any unilateral enforcement order for corrective action under this law.

If public funds are used, a much higher degree of public involvement is
required for brownfields cleanups.

**Program titles:**

• Voluntary Remediation Program (VRP)

**Liability relief provisions:** The VRP offers Certificates of
Completion (COC) that provide liability relief.

Any person demonstrating compliance with the applicable standards
whether by remediation or where the site assessment shows that the
contamination at the site meets applicable standards, shall be relieved
of further liability for the remediation of the site. Contamination
identified in the remediation agreement submitted to and approved by the
DEP shall not be subject to citizen suites or contribution actions. The
protection from further remediation liability provided by the state law
applies to the following persons:

• The current or future owner or operation of the site, including
development authorities and fiduciaries who participated in the
remediation of the site;

• A person who develops or otherwise occupies the site;

• A successor or assign of any person to whom the liability protection
applies;

• A public utility, as defined in section two, the West Virginia Code
(§24--1--2), and for the purpose of the VRRA, a utility engaged in the
storage and transportation of natural gas, to the extent the public
utility performs activities on the site;

• A remediation contractor;

• A licensed remediation specialist; or

• A lender or developer who engages in the routine practices of
commercial lending, including, but not limited to, providing financial
services, holding of security interests, workout practices, foreclosure
or the recovery of funds from the sale of a site.

A person shall not be considered a person responsible for a release or a
threatened release of contaminants simply by virtue of conducting or
having a site assessment conducted. Nothing relieves a person of any
liability for failure to exercise due diligence in performing a site
assessment.

**Financial incentives (grants, loans, tax provisions, etc.):**
Brownfields Revolving Loan Fund (RLF) targeted for remediation currently
funded by an EPA RLF grant.

**Legislative or program site eligibility requirements:** See
brownfields definition.

**Financial Elements**

**Assessment and cleanup funding (source, amount, relationship to
VCP/brownfields programs, application process, eligibility requirements,
dedication to special types of sites such as petroleum, dry cleaners,
abandoned drug labs, etc.):*** *RLF targeted for remediation currently
funded by an EPA RLF grant.

**Tax incentives (abatements, credits, etc.):** No information available

**Other forms of support (environmental insurance, brownfields
redevelopment authorities, etc.): **

• West Virginia Brownfields Assistance Centers
(http://www.wvbrownfields.org/wvbrownfieldsProgram/about/default0.htm)

• A Memorandum of Agreement (MOA) with the state Development Office
exists to promote the redevelopment of remediated brownfields sites.

**Program Elements**

**Technical Elements**

**Methods/standards/controls:** Risk-based standards

• The VRP has standards that are used to decide whether a site
represents an unacceptable risk. The detailed exposure and toxicity
equations used to evaluate risk under these standards can be found in
the VRP *Guidance Manual*. The Guidance Manual describes three
standards: deminimis standards, uniform standards and site-specific
standards.

• Deminimis and uniform standards are similar to each other and differ
mainly in the assumptions used to create them. Both the deminimis and
uniform standards represent the amount (concentration) of a contaminant
that could be present at a site without causing an unacceptable risk.
These concentrations are calculated for individual contaminants in the
various media (e.g., soil, water, or air) where they may occur. The
deminimis and uniform standards are derived by running the basic risk
equation in reverse. This is, starting with an acceptable risk level
(for example, 10-6 for carcinogens or a Hazard Quotient of 1 for
non-carcinogens) and the known toxicity of a chemical, risk accessors
calculate an exposure concentration for that chemical that corresponds
to the acceptable risk. This exposure concentration is the standard. If
the concentration of a chemical at a site is below its standard, then
its risk is acceptable. Having the deminimis and uniform standards
expressed as concentrations allows for a quick comparison of measured
levels of contamination at a site with the standards to determine
whether the site represents a risk.

• Site-specific standards are calculated by running the basic risk
equation in the traditional way. This is, measured amounts of chemicals
at the site are used to produce an exposure value. The exposure value
for each chemical at the site, along with its known toxicity value, is
used to calculate a level of risk for each chemical everywhere that it
is found (e.g., soil, water, or air). The resulting level of risk is
then compared to the acceptable risk levels. As stated above, the
acceptable risk level for carcinogens is 10-6 or less. Cancer risk
levels above 10-4 require remediation. Cancer risk levels between 10-6
and 10-4 are evaluated for acceptability on a case-by-case basis. The
acceptable risk level for non-carcinogens is a Hazard Quotient of 1 or
less.

**Contaminants covered/excluded:** There are no exclusions.

**Use of long-term stewardship and institutional controls (IC): **The
DEP established by rule the criteria for deed recordation of land-use
covenants and contains all necessary deed restrictions. The DEP causes
all land-use covenants to appear in the chain of title by deed to be
properly recorded in the office of the county clerk where the site is
located. If institutional and engineering controls are used, in whole or
in part, to achieve a remediation standard, the DEP directs that a
land-use covenant be applied. The covenant shall include whether
residential or nonresidential exposure factors were used to comply with
the site-specific standard. The covenant contains a provision relieving
the person who undertook the remediation and subsequent successors and
assigns from all civil liability to the state as provided under the VRRA
and remains effective as long as the property complies with the
applicable standards in effect at the time the covenant was issued.

The West Virginia Legislature passed the *Uniform Covenants Act*
(§22-22B-1) during the regular 2005 session, and during the Spring 2008
Session, the VRRA Rule was amended to incorporate the provisions of the
act which provides additional specific requirements pertaining to
environmental covenants.

> **IC Tracking:** USEPA CDX, ICTS and WVDEP, OER staff. The Office of
> Environmental Remediation is continuing to work with the IT and GIS
> sections of DEP to compliment the Voluntary Remediation sites on the
> agency's interactive mapper, http://gis.wvdep.org/imap/index.html,
> with the development of links to the recorded LUCs so that they may be
> reviewed online or downloaded by interested parties.

**IC Oversight:** Property owners, VRRA applicants and WVDEP, OER staff.
Effective January, 2008 WVDEP implemented a policy requiring an
inspection and reporting paragraph be inserted in all future recorded
land use covenants, requiring self-inspection of the restrictions
contained in the LUC, and submittal of the inspection report to the
agency by the property owner. The frequency of the inspection is
dependent upon the restrictions imposed by the LUC, but in no case less
frequent than once per year.

**IC Monitoring:** WVDEP, DLR staff and MISS Utility of West Virginia.
WVDEP is a member of the *MISS Utility of West Virginia*, the one-call
system for notification regarding excavation activities as potentially
related to recorded LUCs. For the period of October 1, 2007 through
March 31, 2008, WVDEP received 218 notifications of excavation
activities for sites within the *MISS Utility* grid network. Each
notification received is forwarded to the respective project manager for
their review and follow-up as appropriate. Project managers also conduct
routine inspections of VRA sites with LUCs.

**Management & Implementation Elements**

**Voluntary Cleanup Program MOA with EPA:** No

**Costs to enter program or fees for service:** Yes, fee is calculated
according to the size of the property.

**Funding source for administrative costs and staff:** Costs are
reimbursed by the applicant.

**Cleanup Activities**

**Sites currently in VCP: **173 sites have entered the VRP.

**Sites completed under VCP: **81 COCs have been issued.

**Benefits (incentives to participate in the VCP, covenants not to sue,
etc.): **DEP issues COCs.

**Public Participation**

**Public participation requirements (notice, comment periods,
etc.):** Under the VRP, public notice and provisions for public comment
are required by the statute.

**Public participation activities (hearing, meetings, etc.):** Under the
VRP, public hearings and meetings are required by the statute.

**Statutory Authorities**

The *Voluntary Remediation and Redevelopment Act,* W Va Code §§22--22--1
through 22--22--21 (1996), establishes the state's voluntary cleanup and
brownfields programs, as well as long-term stewardship authority.