9VAC20-160 Voluntary Remediation Regulations

REGULATIONS

Vol. 29 Iss. 2 - September 24, 2012

TITLE 9. ENVIRONMENT

VIRGINIA WASTE MANAGEMENT BOARD

Chapter 160

Proposed Regulation

Title of Regulation: 9VAC20-160. Voluntary Remediation Regulations (amending 9VAC20-160-10 through 9VAC20-160-40, 9VAC20-160-60 through 9VAC20-160-120).

Statutory Authority: § 10.1-1232 of the Code of Virginia.

Public Hearing Information:

November 6, 2012 - 1 p.m. - Department of Environmental Quality, 629 East Main Street, 2nd Floor Conference Room C, Richmond, VA

Public Comment Deadline: November 23, 2012.

Agency Contact: Gary E. Graham, Department of Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218, telephone [phone], FAX [phone], or email [e-mail].

Basis: The legal basis for the Voluntary Remediation Regulations, 9VAC20-160, is the Brownfield Restoration and Land Renewal Act. Specifically, § 10.1-1232 of the Code of Virginia authorizes the Waste Management Board to promulgate regulations that facilitate voluntary cleanup of contaminated sites where remediation is not clearly mandated by the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), the Resource Conservation and Recovery Act (RCRA), the Virginia Waste Management Act, or other applicable authority. There is no corresponding federal mandate, since the regulations apply only where remediation is not otherwise required under state or federal law, or where such jurisdiction has been waived.

Purpose: The agency performed an internal review of the Voluntary Remediation Regulations and determined that there was a continued need for this regulation. Since 1996 more than 325 applications have been submitted to the Voluntary Remediation Program (VRP). Certificates of completion have been issued to over 200 participants and the current active case load exceeds 125 sites. Without this program there is a likelihood that many of these cleanups may not have occurred. Further, the regulation is not considered complex.

Section 10.1-1232 of the Code of Virginia requires the Waste Management Board to promulgate regulations that facilitate voluntary cleanup of contaminated sites where remediation is not clearly mandated by the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), the Resource Conservation and Recovery Act (RCRA), the Virginia Waste Management Act, or other applicable authority. This regulation does not overlap, duplicate, or conflict with federal or state law or regulation.

The Voluntary Remediation Regulation was last amended in 2002 and became effective as a final regulation on July 1, 2002. Based on a four-year periodic review, it was determined that the regulations needed to be updated to include current remediation levels and sampling and analysis methods; to improve reporting requirements; and to clarify eligibility, termination, and application requirements.

The amendments are intended to revise the program procedures so that sites can be processed more efficiently and reflect changes in technology.

Substance: The proposed amendments to the Voluntary Remediation Regulations include the following:

1. 9VAC20-160-10: Definitions - Definitions have been clarified and some additional ones added to clarify requirements;

2. 9VAC20-160-20: Purpose, applicability, and compliance with other regulations - Has been revised to include characterization as part of the purpose of this chapter;

3. 9VAC20-160-30: Eligibility criteria - Requirements have been added that address both the applicant and candidate sites eligibility; that allow applicants to have access to the property until the remediation is complete; that the department is notified of any change in ownership or in agent for the owner; that documentation of completed remediation is provided; that clarify when remediation has been clearly mandated; and that require written permission from off-site property owners;

4. 9VAC20-160-40: Application for participation - A requirement for a map and acreage of the property has been added to the application materials. Completeness review and notification provisions have been added;

5. 9VAC20-160-60: Registration Fee - A requirement that the initial registration fee shall be the statutory maximum has been added. Conditions for a participant seeking a partial refund have been added;

6. 9VAC20-160-70: Work to be performed - Clarifies the required components of the Voluntary Remediation Report. Requires the submittal of an assessment of any risks to off-site properties and clarifies the use of land use controls. Clarifies the reporting requirements in the case where the participant determines that no remedial action is necessary. A requirement for analysis to be performed by laboratories certified by the Virginia Environmental Laboratory Accreditation Program has been added. A requirement for the submission of an annual report containing a brief summary of any actions ongoing or completed as well as any planned future actions is also included;

8. 9VAC20-160-90: Remediation levels - Clarifies carcinogenic risks, ecological risks, surface water quality standards, soil screening levels, groundwater concerns, and human health considerations;

9. 9VAC20-160-100: Termination - Clarifies the conditions under which participation in the program may be terminated. Adds a requirement that the participant must make reasonable progress towards completion of the program to remain eligible;

10. 9VAC20-160-110: Certification of satisfactory completion of remediation - Regulatory requirements have been clarified. Provides for notification when there is a change in ownership; and

11. 9VAC20-160-120: Public notice - Provides for written notice to adjacent property owners and other owners whose property has been impacted by the release being addressed under the VRP project as soon as the department accepts the site characterization report and the proposed or completed remediation and prior to the department's issuing a certificate. Also provides for the acknowledgement of the receipt of written comments and an evaluation of the comment's impact on the planned or completed action or actions.

Issues: This regulation has no negative economic impact on small businesses. The VRP provides the opportunity for reasonable cleanup goals and protects human health and the environment. These cleanups facilitate the sale and reuse of industrial and commercial properties, provide economic benefits for the buyer and seller, and reduce green space development. Communities benefit when these projects are completed. The cleanup of a site may impact surrounding properties by increasing property values, tax revenues, employment opportunities and community pride. The citizens, businesses, and local governments of the Commonwealth all derive benefits from the VRP. This regulation poses no disadvantages to the public, to the regulated community, or to the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. As a result of a periodic review of regulations, the Waste Management Board (Board) proposes to amend its Voluntary Remediation Regulations. The Board proposes to make many clarifying changes to the requirements of these regulations and also proposes to change the language for fees so that affected entities will pay $5,000 at the start of their remediation project and may apply for a refund of any unowed monies at the end.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. DEQ's voluntary remediation program allows land owners (mostly business land owners) to voluntarily clean up polluted land that is not so polluted that clean up would be mandated under state or federal regulations. Most entities that participate in this program are in the process of trying to sell their land and would take part in the program in hopes of increasing the value and, therefore, the sale price of the affected holding. The Board last updated its Voluntary Remediation Regulations in 2002. As a result of a periodic review of these regulations, the Board now proposes to make many clarifying changes as well as one change that may have a significant economic impact of the entities that choose to participate. The clarifying changes that are being proposed for these regulations will not change the practices employed by the program and, so, should not increase costs for any affected entities. To the extent that these changes streamline processes and/or make these regulations easier to understand, affected entities will likely benefit.

Current regulations allow participating entities to pay, at the time of initial registration, a fee of one percent of the anticipated costs of their remediation projects, up to a statutory maximum of $5,000. At the end of the project, DEQ will currently bill a participant for the actual costs of administering the project, minus the amount they have already paid, up to the statutory maximum. DEQ can withhold the certificate of completion for a project until that bill is paid but has no recourse for recouping its costs if a participant drops out of the program before his project is completed or just has no interest in obtaining the certificate. As a consequence, DEQ has had some projects where participants have only paid several hundred dollars when the actual program administration costs are many thousands of dollars. DEQ reports that the average costs for administering a remediation project is approximately $40,000.

The Board proposes to amend the fees structure in these regulations so that program participants will pay the statutory maximum ($5,000) at the time of initial registration. Participants will be able to request a refund upon project completion if the actual costs of administering their projects are less than the collected fee. Some project participants, particularly participants who drop out before project completion, will likely pay a larger fee on account of this regulatory change. Because participation in this program is voluntary, these costs are likely to be outweighed by the benefits that will accrue to any entities that choose to participate. DEQ, and taxpayers, will benefit from this change as it will allow DEQ to recoup more of the costs of administering this program from the program participants (its most immediate beneficiaries).

Businesses and Entities Affected. The Department of Environmental Quality (DEQ) reports that approximately 20 entities (individuals or businesses) per year initiate a voluntary remediation project. DEQ estimates that approximately 90% of these entities would be classified as small businesses.

Localities Particularly Affected. No locality will be particularly affected by this proposed regulatory action.

Projected Impact on Employment. This regulatory action will likely have no impact on employment in the Commonwealth.

Effects on the Use and Value of Private Property. This regulatory action will likely have minimal effects on the use or value of private property in the Commonwealth.

Small Businesses: Costs and Other Effects. Since participation is voluntary, small businesses in the Commonwealth are unlikely to take part in DEQs voluntary remediation program unless they expect the benefits that they will accrue to outweigh the costs.

Small Businesses: Alternative Method that Minimizes Adverse Impact. There are likely no other methods that DEQ could have employed that would both have allowed DEQ to guarantee it would recoup more of its costs (up to the statutory maximum) and further minimized costs for affected small businesses.

Real Estate Development Costs. This regulatory action will likely have no effect on real estate development costs in the Commonwealth.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 14 (10). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

Agency's Response to Economic Impact Analysis: The department has reviewed the economic impact analysis prepared by the Department of Planning and Budget and has no comment.

Summary:

The proposed action updates current remediation levels and sampling and analysis methods; improves reporting requirements; clarifies eligibility, termination, and application requirements; and updates program procedures to process contaminated sites more efficiently and reflect changes in technology. The action also changes the language for fees so that affected entities will pay $5,000 at the start of their remediation project and may apply for a refund of any unowed moneys at the end.

9VAC20-160-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise.

"Authorized agent" means any person who is authorized in writing to fulfill the requirements of this program.

"Carcinogen" means a chemical classification for the purpose of risk assessment as an agent that is known or suspected to cause cancer in humans, including but not limited to a known or likely human carcinogen or a probable or possible human carcinogen under an EPA weight-of-evidence classification system.

"Certificate" means a written certification of satisfactory completion of remediation issued by the director department pursuant to § 10.1-1232 of the Code of Virginia.

"Completion" means fulfillment of the commitment agreed to by the participant as part of this program.

"Contaminant" means any man-made or man-induced alteration of the chemical, physical or biological integrity of soils, sediments, air and surface water or groundwater including, but not limited to, such alterations caused by any hazardous substance (as defined in the Comprehensive Environmental Response, Compensation and Liability Act, 42 USC § 9601(14)), hazardous waste (as defined in 9VAC20-60), solid waste (as defined in 9VAC20-81), petroleum (as defined in Articles 9 (§ 62.1-44.34:8 et seq.) and 11 (§ 62.1-44.34:14 et seq.)) of the Virginia State Water Control Law, or natural gas.

"Cost of remediation" means all costs incurred by the participant pursuant to activities necessary for completion of voluntary remediation at the site, based on an estimate of the net present value (NPV) of the combined costs of the site investigation, report development, remedial system installation, operation and maintenance, and all other costs associated with participating in the program and addressing the contaminants of concern at the site.

"Department" means the Department of Environmental Quality of the Commonwealth of Virginia or its successor agency.

"Director" means the Director of the Department of Environmental Quality.

"Engineering controls" means physical modification to a site or facility to reduce or eliminate potential for exposure to contaminants. These include, but are not limited to, stormwater conveyance systems, pump and treat systems, slurry walls, vapor mitigation systems, liner systems, caps, monitoring systems, and leachate collection systems.

"Hazard index (HI)" means the sum of more than one hazard quotient for multiple contaminants or multiple exposure pathways or both. The HI is calculated separately for chronic, subchronic, and shorter duration exposures.

"Hazard quotient" means the ratio of a single contaminant exposure level over a specified time period to a reference dose for that contaminant derived from a similar period.

"Incremental upper-bound lifetime cancer risk level" means a conservative estimate of the incremental probability of an individual developing cancer over a lifetime. Upper-bound lifetime cancer risk level is likely to overestimate "true risk."

"Institutional controls" means legal or contractual restrictions on property use that remain effective after remediation is completed, and are used to reduce or eliminate the potential for exposure to contaminants. The term may include, but is not limited to, deed and water use restrictions.

"Land use controls" means legal or physical restrictions on the use of, or access to, a site to reduce or eliminate potential for exposure to contaminants, or prevent activities that could interfere with the effectiveness of remediation. Land use controls include but are not limited to engineering and institutional controls.

"Monitored natural attenuation" means a remediation process that closely monitors the natural or enhanced attenuation process.

"Natural attenuation" means a process through which contaminants breakdown naturally in the environment. Natural attenuation may be enhanced by the addition of nutrients, bacteria, oxygen, or other substances.

"Noncarcinogen" means a chemical classification for the purposes of risk assessment as an agent for which there is either inadequate toxicological data or is not likely to be a carcinogen based on an EPA weight-of-evidence classification system.

"Operator" means the person currently responsible for the overall operations at a site, or any person responsible for operations at a site at the time of, or following, the release.

"Owner" means any person currently owning or holding legal or equitable title or possessory interest in a property, including the Commonwealth of Virginia, or a political subdivision thereof, including title or control of a property conveyed due to bankruptcy, foreclosure, tax delinquency, abandonment, or similar means.

"Participant" means a person who has received confirmation of eligibility and has remitted payment of the registration fee.

"Person" means an individual, corporation, partnership, association, a governmental body, a municipal corporation or any other legal entity.

"Post certificate monitoring" means monitoring of environmental or site conditions stipulated as a condition of issuance of the Certificate of Satisfactory Completion of Remediation.

"Program" means the Virginia Voluntary Remediation Program.

"Property" means a parcel of land defined by the boundaries in the deed.

"Reference dose" means an estimate of a daily exposure level for the human population, including sensitive subpopulations, that is likely to be without an appreciable risk of deleterious effects during a lifetime.

"Registration fee" means the fee paid to enroll in the Voluntary Remediation Program, based on 1.0% of the total cost of remediation at a site, not to exceed the statutory maximum.

"Release" means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing of any contaminant into the environment.

"Remediation" means actions taken to cleanup, mitigate, correct, abate, minimize, eliminate, control and contain or prevent a release of a contaminant into the environment in order to protect human health and the environment, including actions to investigate, study or assess any actual or suspected release. Remediation may include, when appropriate and approved by the department, land use controls; natural attenuation; as well as, monitored natural attenuation.

"Remediation level" means the concentration of a contaminant with applicable land use controls, that is protective of human health and the environment.

"Report" means the Voluntary Remediation Report required by 9VAC20-160-70.

"Restricted use" means any use other than residential.

"Risk" means the probability that a contaminant will cause an adverse effect in exposed humans or to the environment.

"Risk assessment" means the process used to determine the risk posed by contaminants released into the environment. Elements include identification of the contaminants present in the environmental media, assessment of exposure and exposure pathways, assessment of the toxicity of the contaminants present at the site, characterization of human health risks, and characterization of the impacts or risks to the environment.

"Site" means any property or portion thereof, as agreed to and defined by the participant and the department, which contains or may contain contaminants being addressed under this program.

"Termination" means the formal discontinuation of participation in the Voluntary Remediation Program without obtaining a certification of satisfactory completion.

"Unrestricted use" means the designation of acceptable future use for a site at which the remediation levels, based on either background or standard residential exposure factors, have been attained throughout the site in all media.

9VAC20-160-20. Purpose, applicability, and compliance with other regulations.

A. The purpose of this chapter is to establish standards and procedures pertaining to the eligibility, enrollment, reporting, characterization, remediation, and termination criteria for the Virginia Voluntary Remediation Program in order to protect human health and the environment.

B. This chapter shall apply to all persons who elect to and are eligible to participate in the Virginia Voluntary Remediation Program.

C. Participation in the program does not relieve a participant from the obligation to comply with all applicable federal, state and local laws, ordinances and regulations related to the investigation and remediation (e.g., waste management and disposal, erosion and sedimentation controls, air emission controls, and activities that impact wetlands and other sensitive ecological habitats) undertaken by the participant pursuant to this chapter.

9VAC20-160-30. Eligibility criteria.

A. Candidate Applicants and proposed sites shall meet eligibility criteria as defined in this section.

B. Any Eligible applicants are any persons who own, operate, have a security interest in or enter into a contract for the purchase or use of an eligible site. Those who wish to voluntarily remediate that a site may apply to participate in the program. Any person who is an authorized agent of any of the parties identified in this subsection may apply to participate in the program.

1. Access: Applicants who are not the site owner must demonstrate that they have access to the property at the time of application, during the investigation, and throughout the remedial activities until the remediation is completed.

2. Change in ownership: The department shall be notified if there is a change in property ownership.

3. Change in agent: The department shall be notified if there is a change in agent for the property owner or the participant.

C. Sites are eligible for participation in the program if (i) remediation has not been clearly mandated by the United States Environmental Protection Agency, the department or a court pursuant to the Comprehensive Environmental Response, Compensation and Liability Act (42 USC § 9601 et seq.), the Resource Conservation and Recovery Act (42 USC § 6901 et seq.), the Virginia Waste Management Act (§ 10.1-1400 et seq. of the Code of Virginia), the Virginia State Water Control Law (§ 62.1-44.2 et seq. of the Code of Virginia), or other applicable statutory or common law; or (ii) jurisdiction of the statutes listed in clause (i) has been waived.

1. A site on which an eligible party has completed performed remediation of a release is potentially eligible for the program if the actions can be documented in a way which are equivalent to the requirements for prospective remediation this chapter, and provided the site meets applicable remediation levels.

2. Petroleum or oil releases not mandated for remediation under Articles 9 (§ 62.1-44.34:8 et seq.) and 11 (§ 62.1-44.34:14 et seq.) of the Virginia State Water Control Law may be eligible for participation in the program.

3. Where an applicant raises a genuine issue based on documented evidence as to the applicability of regulatory programs in subsection D of this section, the site may be eligible for the program. Such evidence may include a demonstration that:

1. a. It is not clear whether the release involved a waste material or a virgin material;

2. b. It is not clear that the release occurred after the relevant regulations became effective; or

3. c. It is not clear that the release occurred at a regulated unit.

D. For the purposes of this chapter, remediation has been clearly mandated if any of the following conditions exist, unless jurisdiction for such mandate has been waived:

1. Remediation of the release is the subject of a permit issued by the U.S. Environmental Protection Agency or the department, a pending or existing closure plan, a pending or existing an administrative order, a pending or existing court order, a pending or existing consent order, or the site is on the National Priorities List;

2. The site at which the release occurred is subject to the Virginia Hazardous Waste Management Regulations (9VAC20-60) (VHWMR), is a permitted facility, is applying for or should have applied for a permit, is under interim status or should have applied for interim status, or was previously under interim status, and is thereby subject to requirements of the VHWMR;

3. The site at which the release occurred constitutes has been determined to be an open dump or unpermitted solid waste management facility under 9VAC20-81-45 of the Solid Waste Management Regulations;

4. The director department determines that the release poses an imminent and substantial threat to human health or the environment; or

5. Remediation of the release is otherwise the subject of a response action or investigation required by local, state, or federal law or regulation.

E. The director may determine that a site under subdivision D 3 of this section may participate in the program provided that such participation complies with the substantive requirements of the applicable regulations.

9VAC20-160-40. Application for participation.

A. The application for participation in the Voluntary Remediation Program shall, at a minimum, provide the elements listed below:

1. A written notice of intent to participate in the program and an overview of the project;

2. A statement of the applicant's eligibility to participate in the program (e.g., proof of ownership, security interest, etc.).;

3. For authorized agents, a letter of authorization from an eligible party;

4. A legal description of the site map and acreage of the property and the boundaries of the site, if not the entire property;

5. The A general operational history of the site;

6. A general description of information known to or ascertainable by the applicant pertaining to (i) the nature and extent of any contamination; and (ii) past or present releases, both at the site and immediately contiguous to the site;

7. A discussion of the potential jurisdiction of other existing environmental regulatory programs, or documentation of a waiver thereof; and

8. A notarized certification by the applicant that to the best of his knowledge all the information as set forth in this subsection is true and accurate. An application signed by the applicant and the owner of the property attesting that to the best of their knowledge that all of the information as set forth in this subsection is true and accurate.

B. Within 60 days of the department's receipt of an application, the director shall review the application to verify that (i) the application is complete and (ii) the applicant and the site meet the eligibility criteria set forth in 9VAC20-160-30. The department shall review the application for completeness and notify the applicant within 15 days of the application's receipt whether the application is administratively incomplete. Within 60 days of the department's receipt of a complete application, the department shall verify whether the applicant and the site meet the eligibility criteria set forth in 9VAC20-160-30. The department reserves the right to conduct eligibility verification inspections of the candidate site during the eligibility verification review.

C. If the director department makes a tentative decision to reject the application, he it shall notify the applicant in writing that the application has been tentatively rejected and provide an explanation of the reasons for the proposed rejection. Within 30 days of the applicant's receipt of notice of rejection the applicant may (i) submit additional information to correct the inadequacies of the rejected application or (ii) accept the rejection. The director's department's tentative decision to reject an application will become a final agency action under the Virginia Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia) upon receipt of an applicant's written acceptance of the director's department's decision to reject an application, or in the event an applicant fails to respond within the 30 days specified in this subsection, upon expiration of the 30 days specified day period. If within 30 days an applicant submits additional information to correct the inadequacies of an application, the review process begins shall begin again in accordance with this section.

9VAC20-160-60. Registration fee.

A. In accordance with § 10.1-1232 A 5 of the Code of Virginia, the applicant shall submit a registration fee to defray the cost of the program.

B. The initial registration fee shall be at least 1.0% of the estimated cost of the remediation at the site, not to exceed the statutory maximum. Payment shall be required after eligibility has been verified by the department and prior to technical review of submittals pursuant to 9VAC20-160-80. Payment shall be made payable to the Commonwealth of Virginia and remitted to Virginia Department of Environmental Quality, P.O. Box 1104, Receipts Control, Richmond, VA 23218.

C. To determine the appropriate registration fee, the applicant may provide an estimate of the anticipated total cost of remediation.

Remediation costs shall be based on site investigation activities; report development; remedial system installation, operation and maintenance; and all other costs associated with participating in the program and addressing the contaminants of concern at the subject site.

Departmental concurrence with an estimate of the cost of remediation does not constitute approval of the remedial approach assumed in the cost estimate.

The participant may elect to remit the statutory maximum registration fee to the department as an alternative to providing an estimate of the total cost of remediation at the time of eligibility verification.

D. If the participant does not elect to submit the statutory maximum registration fee, the participant shall provide the department with the actual total cost of the remediation prior to issuance of a certificate. The department shall calculate any balance adjustments to be made to the initial registration fee. Any negative balance owed to the department shall be paid by the participant prior to the issuance of a certificate. Any costs to be refunded shall be remitted by the department with issuance of the certificate.

E. If the participant elected to remit the statutory maximum registration fee, the department shall refund any balance owed to the participant after receiving the actual total cost of remediation. If no remedial cost summary is provided to the department within 60 days of the participant's receipt of the certificate, the participant will have waived the right to a refund.

C. Failure to remit the required registration fee within 90 days of the date of eligibility verification shall result in the loss of eligibility status of the applicant. The applicant must reestablish his eligibility for participation in the program, unless alternate provisions are proposed and deemed acceptable to the department.

D. Upon completion of remediation and issuance of the Certificate of Satisfactory Completion of Remediation, the participant is entitled to seek a partial refund of the registration fee. The refund will be reconciled as 1.0% of the final cost of remediation as compared to the initial registration fee.

1. The participant shall provide the department with a summary of the final cost of remediation within 60 days of issuance of a certificate. The department shall calculate the balance adjustment to be made to the initial registration fee and refund the difference.

2. If no summary of the final cost of remediation is provided to the department within 60 days of issuance of the certificate, the participant will have waived the right to a refund.

3. Concurrence with the summary of the final cost of remediation does not constitute department verification of the actual cost incurred.

E. Except for termination pursuant to 9VAC20-160-100 A 4, no portion of the registration fee will be refunded if participation in the program is terminated.

9VAC20-160-70. Work to be performed.

A. The Voluntary Remediation Report serves as the archive for all documentation pertaining to remedial activities at the site. Each component of the report shall be submitted by the participant to the department. As various components are received, they shall be inserted into the report. The report shall consist of the following components: a site characterization Site Characterization, a risk assessment including an assessment of risk to surrounding properties (as appropriate) Risk Assessment, a remedial action work plan Remedial Action Plan, a demonstration of completion Demonstration of Completion, and documentation of public notice. A separate report shall be submitted for each component of the Voluntary Remediation Report listed below:

1. The site characterization shall contain a delineation of Site Characterization Report shall provide an understanding of the site conditions including the identification and description of each area of concern (or source); the nature and extent of releases to all media, including the vertical and horizontal extent of the contaminants on the site, including off-site areas as applicable; and a preliminary screening of the risk or risks posed by the release.

2. The risk assessment Risk Assessment Report shall contain an evaluation of the risks to human health and the environment posed by the release, including an assessment of risk to off-site properties, a proposed set of remediation levels consistent with 9VAC20-160-90 that are protective of human health and the environment, and a recommended remediation to achieve the proposed objectives; or a demonstration that no action is necessary.

3. The remedial action work plan Remedial Action Plan Report shall propose the activities, schedule, any permits required to initiate and complete the remediation and specific design plans for implementing remediation that will achieve the remediation levels specified in the risk assessment. Control or elimination of continuing onsite source or sources of releases to the environment shall be discussed. Land use controls should be discussed as appropriate. If no remedial action is necessary, the Remedial Action Plan shall discuss the reasoning for no action. When remedial activities have occurred prior to enrolling in the Voluntary Remediation Program, this information shall be included in the Site Characterization Report. The Remedial Action Plan Report shall describe the remedial activities that occurred, to include as applicable: how releases (or sources) have been eliminated or controlled; the remediation system or systems installed; site restrictions imposed; permits required; and how remediation levels have been achieved.

4. Demonstration of completion. A Demonstration of Completion Report is required whenever remedial action has occurred as part of participation in the Voluntary Remediation Program. The Demonstration of Completion Report shall include: a detailed summary of the performance of the remediation implemented at the site, the total cost of the remediation, and confirmational sampling results demonstrating that the established site-specific remedial objectives have been achieved, or that other criteria for completion of remediation have been satisfied. As part of the demonstration of completion, the participant shall certify compliance with applicable regulations pertaining to activities performed at the site pursuant to this chapter.

a. The demonstration of completion should, when applicable, include a detailed summary of the performance of the remediation implemented at the site, the total cost of the remediation, and confirmational sampling results demonstrating that the established site-specific remedial objectives have been achieved, or that other criteria for completion of remediation have been satisfied. If the participant elected to remit the statutory maximum registration fee and is not seeking a refund of any portion of the registration fee, the total cost of remediation need not be provided.

b. As part of the demonstration of completion, the participant shall certify compliance with applicable regulations pertaining to activities performed at the site pursuant to this chapter.

5. The participant shall provide documentation Documentation of public notice is required to demonstrate that public notice has been provided in accordance with 9VAC20-160-120. Such documentation shall include copies of comments received during the public comment period, all acknowledgements of receipt of comments, as well as the participant's responses to comments, if any are made.

B. It is the participant's responsibility to ensure that the investigation and remediation activities (e.g., waste management and disposal, erosion and sedimentation controls, air emission controls, and activities that impact wetlands and other sensitive ecological habitats) comply with all applicable federal, state, and local laws and regulations and any appropriate regulations that are not required by state or federal law but are necessary to ensure that the activities do not result in a further release of contaminants to the environment and are protective of human health and the environment.

C. All work, to include sampling and analysis, shall be performed in accordance with Test Methods for Evaluating Solid Waste, USEPA SW-846, revised April 1998 March 2009, or other media specific methods approved by the department and completed using appropriate quality assurance/quality control protocols. All analyses shall be performed by laboratories certified by the Virginia Environmental Laboratory Accreditation Program (VELAP). Laboratory certificates of analysis shall be included with applicable reports.

D. Until certificate issuance, all participants shall submit an annual report to the department containing a brief summary of any actions ongoing or completed as well as any planned future actions for the next reporting period. This report shall be submitted by July 1 using the "VRP Site Status Reporting Form." Failure to submit within 60 days may result in the site's Voluntary Remediation Program eligibility status being terminated.

9VAC20-160-80. Review of submittals.

A. Upon receipt of submittals, the The department shall review and evaluate the submittals components of the Voluntary Remediation Report submitted by the participant. The department may request additional information, including sampling data of from the site or areas adjacent to the site to verify the extent of the release, in order to render a decision and move the participant towards expeditious issuance of the certificate.

B. The director department may expedite, as appropriate, issuance of any permits required to initiate and complete a voluntary remediation. The director department shall, within 120 days of a complete submittal, expedite issuance of such permit in accordance with applicable regulations.

C. After receiving a complete and adequate report, the director department shall make a determination regarding the issuance of the certificate to the participant. The determination shall be a final agency action pursuant to the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

9VAC20-160-90. Remediation levels.

A. The participant, with the concurrence of the department, shall consider impacts to human health and the environment in establishing remediation levels.

B. Remediation levels shall be based upon a risk assessment of the site and surrounding areas that may be impacted, reflecting the current and future use scenarios.

1. A site shall be deemed to have met the requirements for unrestricted use if the remediation levels, based on either background or standard residential exposure factors, have been attained throughout the site and in all media. Attainment of these levels will allow the site to be given an unrestricted use classification. No remediation techniques or land use controls that require ongoing management may be employed to achieve this classification.

2. For sites that do not achieve the unrestricted use classification, land use controls shall be applied. The restrictions imposed upon a site may be media-specific, may vary according to site-specific conditions, and may be applied to limit present and future use. All controls necessary to attain the restricted use classification shall be described in the certificate as provided in 9VAC20-160-110. Land use controls approved by the department for use at the site are considered remediation.

C. B. Remediation levels based on human health shall be developed after appropriate site characterization data have been gathered as provided in 9VAC20-160-70. Remediation levels may be derived from the three-tiered approach provided in this subsection. Any tier or combination of tiers may be applied to establish remediation levels for contaminants present at a given site, with consideration of site use restrictions specified in subsection B of this section.

1. Under Tier I the participant shall collect appropriate samples from background and from the area of contamination for all media of concern remediation levels are based on media backgrounds levels. These background levels shall be determined from a portion of the property or a nearby property or other areas as approved by the department that have not been impacted by the contaminants of concern.

a. Background levels shall be determined from a portion of the property or a nearby property that has not been impacted by the contaminants of concern.

b. The participant shall compare concentrations from the area of contamination against background concentrations. If the concentrations from the area of contamination exceed established background levels, the participant may consider Tier II or Tier III methodologies, as applicable. If concentrations are at or below background levels, no further assessment is necessary.

2. Tier II generic remediation levels are media-specific values, derived using unrestricted use default assumptions assuming that there will be no restrictions on the use of groundwater, surface water, and soil on the site. Use of Tier II shall be limited to the following:

a. Tier II generic groundwater remediation levels shall be based on the most beneficial use of groundwater. The most beneficial use of groundwater is for a potable water source, unless demonstrated otherwise by the participant and accepted by the department. Therefore, they shall be based on (i) federal Maximum Contaminant Levels (MCLs) or action levels for lead and copper as established by the Safe Drinking Water Act (42 USC § 300 (f)) and the National Primary Drinking Water Regulations (40 CFR Part 141) or, in the absence of a MCL, (ii) tap water values derived using the methodology provided in the EPA Region III Risk-Based Concentration Table current at the time of the assessment Regional Screening Level Table, Region III, VI, and IX, United States Environmental Protection Agency, December 2009, using an acceptable individual carcinogenic risk of 1 X 10^-5 and an individual noncarcinogen hazard quotient of 0.1. For contaminants that do not have values available under clauses (i) or (ii) above, a remediation level shall be calculated using criteria set forth under Tier III remediation levels.

b. Soil Tier II soil remediation levels shall insure that migration of contaminants shall not cause the cleanup levels established for groundwater and surface water to be exceeded. Soil remediation levels shall be determined as the lower of either the ingestion or cross-media transfer values, according to the following:

(1) For ingestion, values derived using the methodology provided in the EPA Region III Risk-Based Concentration Table current at the time of assessment. Regional Screening Level Table, Region III, VI, and IX, United States Environmental Protection Agency, December 2009.

(a) For carcinogens, the soil ingestion concentration for each contaminant, reflecting an individual upper-bound lifetime cancer risk of 1 X 10^-6 10^-5.

(b) For noncarcinogens, 1/10 (i.e., Hazard Quotient = 0.1) 0.1 of the soil ingestion concentration, to account for multiple systemic toxicants at the site. For sites where there are fewer than 10 contaminants exceeding 1/10 0.1 of the soil ingestion concentration, the soil ingestion concentration may be divided by the number of contaminants such that the resulting hazard index does not exceed one 1.0.

(2) For cross-media transfer, values derived from the USEPA Soil Screening Guidance (OSWER, July 1996, Document 9355.4-23, EPA/540/R-96/018) and USEPA Supplemental Guidance for Developing Soil Screening Levels for Superfund Sites (OSWER, December 2002, Document 9355.4-24) shall be used as follows:

(a) The soil screening level for transfer to groundwater, with adjustment to a hazard quotient of 0.1 for noncarcinogens, if the value is not based on a MCL; or

(b) The soil screening level for transfer to air, with adjustment to a hazard quotient of 0.1 for noncarcinogens and a risk level of 1 X 10^-5 for carcinogens, using default residential exposure assumptions.

(3) (c) For noncarcinogens, for sites where there are fewer than 10 contaminants exceeding 1/10 0.1 of the soil screening level, the soil screening level may be divided by the number of contaminants such that the resulting hazard index does not exceed one 1.0.

(4) (3) Values derived under 9VAC20-160-90 C 2 b (1) and (2) may be adjusted to allow for updates in approved toxicity factors as necessary.

c. At sites where ecological receptors are of concern and there are complete exposure pathways, the participant shall perform a screening level ecological evaluation to show that remediation levels developed under Tier II are also protective of ecological receptors of concern.

d. For unrestricted future use, where a contaminant of concern exists for which c. Tier II remediation levels for surface water quality standards shall be based on the Virginia Water Quality Standards (WQS) have been adopted as established by the State Water Control Board for a specific use, the participant shall demonstrate that concentrations in other media will not result in concentrations that exceed the WQS in adjacent surface water bodies. (9VAC25-260), according to the following:

(1) The chronic aquatic life criteria shall be compared to the appropriate human health criteria and the lower of the two values selected as the Tier II remediation level.

(2) For contaminants that do not have a Virginia WQS, the federal Water Quality Criteria (WQC) may be used if available. The chronic federal criterion continuous concentration (CCC) for aquatic life shall be compared to the appropriate human health based criteria and the lower of the two values selected as the Tier II remediation level.

(3) If neither a Virginia WQS nor a federal WQC is available for a particular contaminant detected in surface water, the participant should perform a literature search to determine if alternative values are available. If alternative values are not available, the detected contaminants shall be evaluated through a site-specific risk assessment.

3. Tier III remediation levels are based upon a site-specific risk assessment considering site-specific assumptions about current and potential exposure scenarios for the population or populations of concern, including ecological receptors, and characteristics of the affected media and can be based upon a site-specific risk assessment. Land-use controls can be considered.

a. In developing Tier III remediation levels, and unless the participant proposes other guidance that is acceptable to the department, the participant shall use, for all media and exposure routes, the methodology specified in Risk Assessment Guidance for Superfund, Volume 1, Human Health Evaluation Manual (Part A), Interim Final, USEPA, December 1989 (EPA/540/1-89/002) and (Part B, Development of Preliminary Remediation Goals) Interim, USEPA, December 1991 (Publication 9285.7-01B) with modifications as appropriate to allow for site-specific conditions. The participant may use other methodologies approved by the department.

b. For a site with carcinogenic contaminants, the remediation goal for individual carcinogenic contaminants shall be an incremental upper-bound lifetime cancer risk of 1 X 10^-6 10^-5. The remediation levels for the site shall not result in an incremental upper-bound lifetime cancer risk exceeding 1 X 10^-4considering multiple contaminants and multiple exposure pathways, unless the use of a MCL for groundwater that has been promulgated under 42 USC § 300g-1 of the Safe Drinking Water Act and the National Primary Drinking Water Regulations (40 CFR Part 141) results in a cumulative risk greater than 1 X 10^-4.

c. For noncarcinogens, the hazard index shall not exceed a combined value of 1.0.

d. In setting remediation levels, the department may consider risk assessment methodologies approved by another regulatory agency and current at the time of the Voluntary Remediation Program site characterization.

e. Groundwater cleanup levels shall be based on the most beneficial use of the groundwater. The most beneficial use of the groundwater is for a potable water source, unless demonstrated otherwise by the participant and approved by the department.

f. For sites where a screening level ecological evaluation has shown that there is a potential for ecological risks, the participant shall perform an ecological risk assessment to show that remediation levels developed under Tier III are also protective of ecological receptors of concern. If the Tier III remediation levels developed for human health are not protective of ecological receptors of concern, the remediation levels shall be adjusted accordingly.

C. The participant shall determine if ecological receptors are present at the site or in the vicinity of the site and if they are impacted by releases from the site.

1. At sites where ecological receptors are of concern and there are complete exposure pathways, the participant shall perform a screening level ecological evaluation to show that remediation levels developed under the three-tiered approach described in this section are also protective of such ecological receptors.

2. For sites where a screening level ecological evaluation has shown that there is a potential for ecological risks, the participant shall perform an ecological risk assessment to show that remediation levels developed under the three-tiered approach described in this section are also protective of ecological receptors. If the remediation levels developed for human health are not protective of ecological receptors, the remediation levels shall be adjusted accordingly.

9VAC20-160-100. Termination.

A. Participation in the program shall be terminated:

1. When evaluation of new information obtained during participation in the program results in a determination by the director department that the site is ineligible or that a participant has taken an action to render the site ineligible for participation in the program. If such a determination is made, the director department shall notify the participant that participation has been terminated and provide an explanation of the reasons for the determination. Within 30 days, the participant may submit additional information, or accept the director's department's determination.

2. Upon 30 days written notice of termination withdrawal by either party the participant.

3. Upon participant's failure to make reasonable progress towards completion of the program, as determined by the department.

4. Upon fulfillment of all program requirements and issuance of the Certification of Satisfactory Completion of Remediation as described in 9VAC20-160-110, notwithstanding any conditions of issuance specified in the Certificate.

B. The department shall be entitled to receive and use, upon request, copies of any and all information developed by or on behalf of the participant as a result of work performed pursuant to participation in the program, after application has been made to the program whether the program is satisfactorily completed or terminated.

C. No Except for termination pursuant to subsection A 4, no portion of the registration fee will be refunded if participation is terminated by any method as described in 9VAC20-160-100.

9VAC20-160-110. Certification of satisfactory completion of remediation.

A. The director department shall issue a certification of satisfactory completion of remediation when:

1. The participant has demonstrated that migration of contamination has been stabilized;

2. The participant has demonstrated that the site has met the applicable remediation levels and will continue to meet the applicable remediation levels in the future for both on site and off site receptors; and

3. All provisions of the approved remedial action plan as applicable have been completed;

4. All applicable requirements of the regulations have been completed; and

3. 5. The department concurs with accepts all work submitted, as set forth in 9VAC20-160-80 9VAC20-160-70.

B. The issuance of the certificate shall constitute immunity to an enforcement action under the Virginia Waste Management Act (§ 10.1-1400 et seq. of the Code of Virginia), the Virginia State Water Control Law (§ 62.1-44.2 et seq. of the Code of Virginia), the Virginia Air Pollution Control Law (§ 10.1-1300 et seq. of the Code of Virginia), or other applicable Virginia law for the release or releases addressed.

C. A site shall be deemed to have met the requirements for unrestricted use if the remediation levels, based on either background or standard residential exposure factors, have been attained throughout the site and in all media. Attainment of these levels will allow the site to be given an unrestricted use classification. No remediation techniques or land use controls that require ongoing management may be employed to achieve this classification.

D. For sites that do not achieve the unrestricted use classification, land use controls may be proffered in order to develop remediation levels based on restricted use. The restrictions imposed upon a site may be media-specific, may vary according to site-specific conditions, and may be applied to limit present and future use. All controls necessary to attain the restricted use classification shall be described in the certificate as provided in this section. Land use controls accepted by the department for use at the site are considered remediation for the purpose of this chapter.

C. E. If a use restriction is specified in the certificate, such restriction must be attached to the deed to the property with an explanation for the restriction, subject to concurrence by the director, and shall the participant shall cause the certificate to be recorded by the participant with among the land records for the site in the office of the clerk of the circuit court for the jurisdiction in which the site is located within 90 days of execution of the certificate by the department, unless specified in the certificate. The participant may also record the certificate itself. If the certificate does not include any use restriction, recordation of the certificate is at the option of the participant. The immunity accorded by the certification shall apply to the participant and shall run with the land identified as the site.

D. F. The immunity granted by issuance of the certificate shall be limited to site conditions at the time of issuance as those conditions are described in the Voluntary Remediation Report. The immunity is further conditioned upon satisfactory performance by the participant of all obligations required by the director department under the program and upon the veracity, accuracy, and completeness of the information submitted to the director department by the participant relating to the site. Specific limitations of the certificate shall be enumerated in the certificate. The immunity granted by the certificate shall be dependent upon the identification of the nature and extent of contamination as presented in the report.

E. G. The certificate shall specify the conditions for which immunity is being accorded, including, but not limited to:

1. A summary of the information that was considered;

2. Any restrictions on future use;

3. Any local land use controls on surrounding properties that were taken into account; and

4. Any required proffered land use controls including:; and

a. Engineering controls and their maintenance; and

b. Institutional controls.

5. Any post-certificate monitoring.

F. H. The certificate may be revoked by the director department at any time in the event that conditions at the site, unknown at the time of issuance of the certificate, pose a risk to human health or the environment or in the event that the certificate was based on information that was false, inaccurate, or misleading. The certificate may also be revoked for the failure to meet or maintain the conditions of the certificate. Any and all claims may be pursued by the Commonwealth for liability for failure to meet a requirement of the program, criminal liability, or liability arising from future activities at the site that may cause contamination by pollutants. By issuance of the certificate the director department does not waive sovereign immunity. Failure to implement and maintain land use controls may result in revocation of the certificate.

G. I. The certificate is not and shall not be interpreted to be a permit or a modification of an existing permit or administrative order issued pursuant to state law, nor shall it in any way relieve the participant of its obligation to comply with any other federal or state law, regulation or administrative order. Any new permit or administrative order, or modification of an existing permit or administrative order, must be accomplished in accordance with applicable federal and state laws and regulations.

J. Change in ownership: For properties that received a Certificate of Satisfactory Completion and are subject to use restrictions, the new property owner shall register with the department within 60 days of the acquisition.

9VAC20-160-120. Public notice.

A. The participant shall give public notice of either the proposed voluntary remediation or the completed voluntary remediation. The notice shall be made after the department concurs with accepts the site characterization report and the proposed or completed remediation, and shall occur prior to the department's issuing a certificate. Such notice shall be paid for by the participant.

B. The participant shall:

1. Provide written notice to the local government in which the facility is located;

2. Provide written notice to all adjacent property owners and other owners whose property has been impacted by the release being addressed under the VRP project; and

3. Publish a notice once in a newspaper of general circulation in the area affected by the voluntary action.

B. C. A comment period of at least 30 days must follow issuance of the notices pursuant to this section. The department, at its discretion, may increase the duration of the comment period. The contents of each public notice required pursuant to 9VAC20-160-120 A shall include:

1. The name and address of the participant and the location of the proposed voluntary remediation;

2. A brief description of the remediation, the general nature of the release, any remediation, and any proposed land use controls;

3. The address and telephone number of a specific person familiar with the remediation from whom information regarding the voluntary remediation may be obtained; and

4. A brief description of how to submit comments.

D. The participant shall send all commenters a letter acknowledging receipt of written comments and providing responses to the same.

C. E. The participant shall provide to the department a:

1. A signed statement that he has sent a written notice to all adjacent property owners and the local government, a copy of the notice, and a list of all names and addresses to whom the notice was sent.; and

2. Copies of all written comments received during the public comment period, copies of acknowledgement letters, and copies of any response to comments, as well as an evaluation of the comment's impact on the planned or completed action or actions.

D. The participant shall send all commenters a letter acknowledging receipt of comments.

E. The participant shall provide to the department copies of all written comments received during the public comment period, copies of acknowledgement letters, a discussion of how those comments were considered, a copy of any response to comments, and a discussion of their impact on the proposed or completed remediation.

DOCUMENTS INCORPORATED BY REFERENCE (9VAC20-160)

Test Methods for Evaluating Solid Waste: Physical/ Chemical Methods; EPA Publication SW-846, Third Edition (1986) as amended by Final Update I, Final Update II, Final Update IIA, Final Update IIB, Final Update III, and Final Update IIIA, PB 99-115 891, revised April 1998 March 2009.

U.S. EPA Soil Screening Guidance, EPA/540/R-96/018, Publication 9355.4-23, July 1996.

U.S. EPA Supplemental Guidance for Developing Soil Screening Levels for Superfund Sites (OSWER, December 2002, Document 9355.4-24)

Risk Assessment Guidance for Superfund, Volume I, Human Health Evaluation Manual (Part A) Interim Final, EPA/540/1-89/002, Office of Emergency and Remedial Response, U.S. Environmental Protection Agency, December 1989.

Risk Assessment Guidance for Superfund: Volume I , Human Health Evaluation Manual (Part B, Development of Risk-based Preliminary Remediation Goals) Interim, Publication 9285.7-01B, Office of Emergency and Remedial Response, U.S. Environmental Protection Agency, December 1991.

Risk-Based Concentration Table, Region III, United States Environmental Protection Agency, April 2, 2002.

Regional Screening Level Table, Region III, VI, and IX, United States Environmental Protection Agency, December 2009.

VA.R. Doc. No. R08-1271; Filed September 4, 2012, 3:58 p.m.