West Virginia Land Stewardship Program

In the 1970s and 1980s, Congress passed a broad range of regulations, such as the Resource, Conservation and Recovery Act (RCRA) in 1976, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) in 1980, and the Superfund Amendments and Reauthorization Act (SARA) in 1986, which were designed, in part, to investigate and remediate environmentally contaminated properties. It has generally been estimated that there are approximately 130,000 to 450,000 contaminated properties located in the United States. Beginning in the late 1980s, several states began developing their own brownfield and voluntary remediation programs (VRPs) in response to the growing cost, complexity, and long time-frames associated with remediating sites under RCRA and CERCLA. According to the National Brownfields Association (www.brownfieldassociation.org), most states have now implemented some form of a VRP and more than 50,000 sites have so far been cleaned up under these programs. West Virginia’s VRP became effective on July 1, 1997 and to date approximately 200 sites have been entered into the VRP. 

Like most state VRPs, the WV program utilizes a mix of risk based cleanup (RBC) standards and a combination of engineering and/or institutional controls (ICs) to close a site. Examples of engineering controls include excavating contaminated soil, caps, slurry walls, and groundwater treatment systems. Typical examples of institutional controls include restricting future land-use to a non-residential industrial use and prohibiting the use of groundwater. Under the WV VRP, any institutional controls that are implemented are described in a document referred to as a Land Use Covenant (LUC), which is attached to the property deed and recorded at the county courthouse. As envisioned when the WV Legislature passed the Act, recording the LUC with the property deed is intended to provide a means by which future land owners and property users will know that land use restrictions have been imposed on a property that has been remediated under the WV VRP. 

As more sites have been closed under state VRPs, the regulatory community, including the West Virginia Department of Environmental Protection (WVDEP) has identified a number of challenges associated with the long-term maintenance of institutional controls described in Land Use Covenants, some of which are as follows: 

·        Local land use decision makers (e.g., developers and governmental officials) may be unaware of the existence of Land Use Covenants within their communities.

·        Environmental regulators are generally not involved with site redevelopment; therefore, there may be no governmental confirmation that the protections in the LUCs have been adhered to during redevelopment.

·        New property owner / tenants may be unaware of the land use restrictions.

·        Retirements, reassignments, lost, or lack of records. 

Therefore, in early 2009 the WVDEP brought together a small group of stakeholders to assist it to evaluate these challenges and to evaluate the feasibility/framework of establishing a State Voluntary Land Stewardship Program or Trust. The stakeholder groups include representatives of the WV Chamber of Commerce, WV Coal Association, WV Manufacturers Association, WV Development Office, FMC Corporation, Dow Chemical Company, ExxonMobil Corporation, and Marshall University. This stakeholder group is termed the WVDEP IC Focus Group and will be working during 2009 to provide input, ideas, reactions, and recommendations to WVDEP. In general, the WVDEP envisions that a West Virginia Land Stewardship Program will consist of the following four components: 

·        Tracking.

·        Inspecting.

·        Maintaining.

·        Notifying.

As discussed by Ken Ellison, Director, WVDEP, Division of Land Restoration at the WVCOC Environmental Academy on May 21, 2009, the WVDEP IC Focus Group is using as its template a model developed by the Pennsylvania Department of Environmental Protection (PADEP) during 2002, but which was ultimately not implemented. Ken Ellison also noted that West Virginia is being very proactive on this issue and that USEPA Region III is looking to West Virginia to develop a working model that can be used as a template throughout Region III. Finally, as summarized by Ken Ellison, a WV Land Stewardship Program should meet the following objectives: 

·        Comprehensive approach.

·        Build on existing programs and initiatives.

·        Provide stewardship Land Use Covenants.

·        Appeals to both the public and private sectors.

·        Utilizes current national standards or develops systems that can be applied nationwide.

·        Provides for a sound perpetual care mechanism. 

This article was authored by Greg Tieman, Acacia Environmental Group LLC. For more information on the author see here.