Following more than ten years of negotiations, the United States Environmental Protection Agency (U.S. EPA) Region III and the West Virginia Department of Environmental Protection (WVDEP) finally signed a Memorandum of Agreement (MOA) on February 24, 2010, for the West Virginia Voluntary Remediation Program (VRP). The MOA relates only to the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601 et seq. (CERCLA, also known as Superfund) and applies only prospectively. Nonetheless, the signing of the MOA marks a significant milestone for the WVDEP and the remediation of sites that are contaminated or perceived to be contaminated in West Virginia. Absent exceptional circumstances, the MOA offers liability protection for anyone cleaning up contaminated properties in West Virginia under the VRP from actions brought by U.S. EPA under CERCLA. For a copy of the MOA, click here.
In the MOA, U.S. EPA agrees generally to refrain from bringing an administrative or judicial enforcement action under CERCLA for sites that are being cleaned up under the VRP subject to four exceptions. The specific forbearance language is found in Section IV.B of the MOA and reads as follows: “U.S. EPA does not anticipate taking an administrative or judicial enforcement action under CERCLA §§ 106(a) or 107(a) against a person regarding a specific release at an eligible response site that is being addressed by that person in compliance with the VRP requirements.” This language -- “does not anticipate taking”-- is similar to language found in U.S. EPA’s MOAs with other states for their voluntary cleanup programs.
The four exceptions to U.S. EPA’s forbearance are set forth in CERCLA § 128(b). They are: (1) West Virginia requests U.S. EPA’s assistance in the performance of a response action; (2) contamination has migrated or will migrate across a state line or onto federal property; (3) a release or threatened release may present an imminent and substantial endangerment to public health or the environment and additional response actions are likely to be necessary to address, prevent, limit or mitigate the release or threatened release; and (4) information discovered after the approval or completion of a cleanup establishes that the contamination or conditions at the site present a threat requiring further remediation to protect public health or the environment.
The applicability of the liability protection offered by the MOA is limited temporally and in scope. The MOA does not apply to sites that were cleaned up under the VRP before February 24, 2010, the effective date of the MOA. In addition, the MOA relates only to cleanups that satisfy CERCLA. It does not affect hazardous waste remediation at facilities subject to the Resource Conservation and Recovery Act (RCRA) Subtitle C cleanup requirements or environmental cleanups pertaining to leaking underground storage tanks under RCRA Subtitle I. Nor does it affect cleanups of polychlorinated biphenyls (PCBs) under the Toxic Substances Control Act.
While the MOA is not a “one cleanup program” agreement, it does document U.S. EPA’s recognition and approval of the VRP. For example, U.S. EPA Region III acknowledges in Section III.A of the MOA the “comprehensive” nature of the VRP. In particular, U.S. EPA Region III states its support for “the use of the WVDEP’s VRP 60 C.S.R. III comprehensive cleanup rules at properties where this approach is appropriate for achieving timely and protective cleanups.” (Emphasis added). Importantly, West Virginia and U.S. EPA Region III continue to discuss a separate memorandum of understanding for the VRP to address RCRA.
The MOA applies to contaminated or potentially contaminated properties, commonly called “brownfields,” that are “eligible response sites” as defined in CERCLA and that are cleaned up under the WVDEP’s oversight pursuant to the VRP. Because the MOA offers liability protection from CERCLA, it does not apply to “[a]ny site that is the subject of a federal enforcement or response action under CERCLA.” This includes “an administrative order, a judicial order, a permit, an injunction, a consent decree, a CERCLA general or special notice letter, or an information request letter under CERCLA § 104(e).” Other sites ineligible for the liability protection offered by the MOA include: (1) a facility that is listed or proposed for listing on the NPL; (2) a facility that is subject to a unilateral administrative order, court order, administrative order on consent or judicial consent decree that has been issued to or entered into by the parties, or a facility to which a permit has been issued, under RCRA, the Federal Water Pollution Control Act, 33 U.S.C. § 1321, TSCA, or the Safe Drinking Water Act, 42 U.S.C. § 300f et seq.; (3) a facility that is subject to RCRA corrective action or to which a RCRA corrective action permit or order has been issued; (4) a land disposal unit with respect to which a RCRA Subtitle C closure notification has been submitted and closure requirements have been specified in a closure plan or permit; (5) a federal facility; (6) a portion of a facility at which there has been a release of PCBs; and (7) a portion of a facility, for which portion assistance for response activity has been obtained under RCRA Subtitle I from the Leaking Underground Storage Tank Trust Fund.
In addition, anyone seeking CERCLA liability protection under this MOA should be careful not to rely on the “deemed” approved language in West Virginia’s Voluntary Remediation and Redevelopment Rule at 60 CSR. § 60-3-10.3.c. Under the Rule, certain work plans or reports required to be submitted under the VRP are “deemed” approved if the WVDEP fails to approve or disaapprove the document within the time period specified in the Rule “unless such work plans or reports are determined to be materially inaccurate.” This language was inserted in West Virginia’s Voluntary Remediation and Redevelopment Rule, and agreed to by the WVDEP, to help achieve cleanups in a timely manner. The MOA, however, does not apply to any plan, report, or other document required to be submitted under the VRP that is “deemed” approved. Entities wishing to obtain CERCLA liability protection will need to have all of their plans, reports, or other documents required to be submitted under the VRP approved by the WVDEP.
This article was authored by Gale Lea Rubrecht, Jackson Kelly PLLC. For more information on the author, see here.