Energy and Environment Monitorwww.eem.jacksonkelly.com

EPA Proposes Amendments to AAI Rule Under CERCLA for Phase I Site Assessment for Forest Land or Rural Property

            U.S. EPA is proposing to amend the All Appropriate Inquiry (AAI) Rule at 40 CFR Part 312 to reference a new standard by ASTM International for Phase I environmental site assessments.  The new standard, ASTM E2247-08, “Standard Practice for Environmental Site Assessment:  Phase I Site Assessment Process for Forestland or Rural Property,” addresses property uses and environmental concerns typical of large tracts of forested or rural land.  For example, the new standard provides for the use of remote sensing methods such as the use of aerial photography or flyovers. 

 

            The AAI Rule provides that ASTM International standard E1527-05, “Standard Practice for Environmental Site Assessments:  Phase I Environmental Site Assessment Process,” may be used to comply with the all appropriate inquiries requirements under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).  U.S. EPA is proposing to conclude that the new standard for large tracts of forest land and rural property is compliant with the AAI Rule. 

 

            Parties potentially affected include the forest industry, other natural resource industries, conservation organizations, forest and rural real estate professionals, lenders, resource management agencies, and environmental consultants.  Specifically, the new standard may affect parties claiming a limitation on CERCLA liability as bona fide prospective purchasers, contiguous property owners, or innocent land owners who are purchasing large tracks of forested lands or large rural properties.  In addition, any party conducting a site characterization or assessment on a property that consists of large tracks of forested or rural land with a brownfields grant awarded under CERCLA may be affected.  This would include state and local governments that receive brownfields site assessment grants.

 

            While there are differences between the regulatory requirements and the two ASTM standards, U.S. EPA maintains that the differences are “minor in nature”.  Most of the differences relate to applicability and scope.  The AAI Rule applies to all properties and includes controlled substances.  The new standard applies to 120 acres or greater of forest land or rural property or with a developed use of only managed forest land and/or agriculture.  The 120 acres do not have to be contiguous; however, the non-contiguous areas should have substantially the same general land use and be part of the same transaction.  The property may contain isolated areas of non-forest land and non-rural property.  The new standard expressly states that controlled substances are not within its scope; however, controlled substances must be included if the assessment is conducted under a U.S. EPA brownfields assessment and characterization grant and the grantee requests that controlled substances be included within the scope of the investigation.  The new standard also discusses threatened and endangered species and non-point source pollution which are not addressed in the AAI Rule. 

 

            In addition to applicability and scope, some other differences include the following:

 

ü                  Additional inquiries, 40 CFR §312.22:  The AAI Rule provides that a person seeking liability protection or conducting assessments with brownfields grants may provide to the environmental professional information on environmental cleanup liens, specialized knowledge, relationship of purchase price to fair market value, and other commonly known information to the user.  The new standard imposes upon the user the responsibility to collect the information and requires the user to report environmental cleanup liens information to the environmental professional. 

 

ü                  Interviews with past and present owners, operators, and occupants, 40 CFR §312.23:  The AAI Rule requires that the current owner and an occupant be interviewed.  The new standard states that the key site manager or someone with knowledge of the property should be interviewed.

 

ü                  Reviews of historical sources of information, 40 CFR §312.24:  The new standard provides a more detailed list than the AAI Rule of documents to be used in an historical review, including activities likely to be found on large tracts of forested or rural land, such as oil/mineral development and livestock dipping vat records.  The new standard is also more stringent than the AAI Rule with respect to the period to be covered in the review and requires that all records back to 1940 or back to the property’s first developed use, which is specifically defined to include forestry use, whichever is earlier, be used. 

 

ü                  Searches for recorded environmental cleanup liens, 40 CFR §312.25:  The AAI Rule gives the user the choice to retain the information or share it with the environmental professional.  The new standard requires the user to provide the information to the environmental professional.

 

ü                  Reviews of federal, state, tribal, and local government records, 40 CFR §312.26:  The new standard provides a more expansive list of secondary environmental records sources than the AAI Rule.  The secondary sources include records for the optional scope areas including inventory of threatened and endangered species and best management practice violations for water quality protection.  Additional record sources specifically reference Department of Natural Resources and Division of Forestry.  The new standard requires that the user notify the environmental professional before site reconnaissance of commonly known or reasonably ascertainable information about the property. 

 

            U.S. EPA’s proposed amendments would not require the use of the new standard but allows parties the option of using the new standard.  Parties purchasing large tracks of forest land or rural property may choose to follow the specific requirements of the AAI Rule or the ASTM E1527-05 standard. 

 

            U.S. EPA published the proposed rule (73 Fed. Reg. 78716) and a direct final rule (73 Fed. Reg. 78651) December 23, 2008.  Unless U.S. EPA received adverse written comment by January 22, 2009, the rule automatically takes effect March 23, 2009.  For additional information concerning all appropriate inquiries requirements under CERCLA for Phase I environmental site assessments, contact Gale Lea Rubrecht at 304-340-1200 or galelea@jacksonkelly.com.

 

This article was authored by Gale Lea Rubrecht, Jackson Kelly PLLC. For more information on the author see here.

State Voluntary Cleanup Programs: How We Got Here

            In the mid-1990s, the U.S. General Accounting Office estimated that there were approximately 130,000 – 450,000 contaminated properties located in the United States and that the cost to clean up these sites could exceed US$650 billion.  The contaminated sites – referred to as either brownfield or voluntary cleanup program (VCP) sites – ranged from manufacturing plants to military facilities to neighborhood gasoline stations to dry cleaners, and were owned by both private and governmental entities.

Although the terms brownfield and VCP are often used interchangeably, there can be programmatic differences between the two, depending on the individual state.  For example, under some state VCPs, brownfield sites may be cleaned up by a party that did not cause or contribute to the contamination.  In other states, eligibility for a VCP may depend on property ownership or it may focus only on the parties that caused or contributed to the contamination.  Differences pertaining to whether state brownfield funds may be used and the extent of public participation can drive the decision as to whether a property will be cleaned up as a brownfield or a VCP site.  State VCPs share the following general attributes and goals:

·        To reduce the spread of urban/suburban sprawl onto “greenfields” by encouraging the reuse and redevelopment of contaminated properties, especially those located in urban core areas.

·        To provide regulatory flexibility to developers, landowners, or responsible parties to investigate and cleanup environmental contamination, which often include provisions to implement institutional land-use and/or engineering controls.

·        To mitigate actual or perceived human health and ecological risks that may be present, which can include a tiered approach based on risk protocols tied to the future land-use (e.g., residential vs. commercial/industrial).

·        To provide financial incentives in the form of grants, loans, and tax incentives.

·        To relieve developers, landowners, responsible parties, or lenders of uncertain liability risks and provide some degree of liability protection (e.g., comfort letter, NFA letter, or certificate of completion).

When a contaminated site becomes the object of a cleanup program, there are a variety of federal and state regulatory programs that may be used, including the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA: also known as Superfund); the Resource Conservation and Recovery Act (RCRA) Corrective Action Program; the Toxic Substances Control Act (TSCA); state Leaking Underground Storage Tank (LUST) Corrective Action programs; and state brownfield programs and VCPs.

From a historical perspective, it wasn’t until the 1970s that the United States first began to recognize that environmentally contaminated properties might represent a threat to human health and the environment.  One result of this growing public awareness was the passage by Congress of RCRA in 1976, which first established the concept of the “cradle-to-grave” approach to managing solid and hazardous waste.  Within only a few years, however; it was determined that RCRA might not be the most appropriate regulatory program for investigating and cleaning up contaminated properties.

In 1980, in response to highly publicized events like Love Canal (a neighborhood in Niagara Falls, NY, which became the subject of national attention and controversy following the discovery of toxic waste buried underground), Congress passed CERCLA in an attempt to address contaminated properties.  It should be noted that CERCLA was intended to address only a relatively small number of sites that were considered to be the most heavily contaminated and posing the greatest threat to human health and the environment.  Of particular interest, CERCLA established a retrospective liability scheme to hold parties that were responsible for or associated with hazardous substances accountable for the cost of cleaning up contaminated sites.  Thus, the concept of strict, joint, and several liability entered our environmental vocabulary in the 1980s.

Since 1983, the U.S. Environmental Protection Agency (EPA) has listed 1579 sites on the National Priority List (NPL) under CERCLA.  As reported by EPA, through fiscal year 2007, 321 of these sites have been cleaned up and removed from the NPL.  Furthermore, remedial construction is now complete at 712 sites, which indicates that hazardous substances are under control and that a remediation system is in operation (www.epa.gov/swerosps/bf/index.html).

In 1986, Congress modified CERCLA and passed the Superfund Amendments and Reauthorization Act (SARA).  SARA was intended to encourage the implementation of permanent remedies and use of innovative technologies to more cost-effectively and quickly clean up contaminated sites.  In addition, SARA aimed to increase state involvement and citizen participation.

By the late 1980s, several states began developing their own brownfield programs and VCPs in response to the growing cost, complexity, and long time-frames associated with cleaning up sites under Superfund.  Both California and Minnesota enacted VCPs in 1988, and Illinois implemented its VCP in 1989.  Nearly 20 years later, most states have implemented some form of VCP.  According to the National Brownfield Association (www.brownfieldassociation.org), more than 50,000 sites have so far been cleaned up and issued some form of a comfort or no further action (NFA) letter by their respective state.

Most recently, in 2002, Congress passed the Small Business Liability Relief and Brownfield Revitalization Act, which recognizes states as the primary regulators of brownfield sites.  As summarized by the NBA, an important component of the act “was the creation of the federal enforcement bar, which ensures that when a site goes through a state program, the state becomes the primary regulator and the federal government cannot use Superfund enforcement authority over that site.”

More than 30 years after the enactment of RCRA and 20 years after the first VCPs were implemented, most states have now adopted VCPs and are moving forward with cleaning up a broad range of commercial, industrial, and (in some states), residential properties under their respective VCPs.  As a result, formerly abandoned properties are being recycled and reused and community exposure to environmental contaminants is being reduced.  The number of sites cleaned up to date under these programs reinforces the validity of the VCP model and bodes well for the continued cleanup of contaminated properties using these programs in the future.

This article was authored by Greg Tieman, Acacia Environmental Group LLC. For more information on the author see here.  (Originally published by the author in EM, Air & Waste Management Association, April 2008). 

EPA’S Petroleum Brownfields Action Plan

In October, 2008, EPA published its Petroleum Brownfields Action Plan: Promoting Revitalization and Sustainability.  The Plan is based upon EPA’s recognition that petroleum contaminated sites present unique challenges in that they are typically small and widely dispersed and present unique problems in terms of clean-up and development. 

                        Petroleum-contaminated properties first became eligible for Brownfields treatment in 2002 with the Small Business Liability Relief and Brownfields Revitalization Act.  At that time, the law called for 25% of the funds appropriated to EPA for activities under CERCLA to be used to characterize, assess and remediate petroleum brownfields.  The program is jointly managed by two EPA offices – the Office of Brownfields and Land Revitalization and the Office of Underground Storage Tanks.  The barriers recognized by EPA included small site size (impacting the site’s marketability) and liability concerns associated with site redevelopment involving unique assessment and clean-up approaches for petroleum contamination.  EPA listed four initiatives in the plan with action items implementing each initiative.  The initiatives are as follows: 

INITIATIVE 1 - Bolster Communication and Outreach to Petroleum Brownfields Stakeholders. 

            The action items under Initiative 1 are:

            Action 1.1       To define and communicate the objectives of the petroleum brownfields program.

            Action 1.2       Consolidate the resources and tools available to promote assessment clean-up and sustainable reuse of petroleum brownfields and develop on-line strategies.

·        EPA plans to establish a comprehensive website to identify and promote broader use of tools and resources to support petroleum brownfields.

            Action 1.3       Prepare a petroleum brownfields redevelopment options catalogue.

·        This catalogue will describe examples of successful redevelopment of former petroleum-affected brownfields including sustainable or “green” cleanup and reuse strategies.

            Action 1.4       Explore and promote a recognition program.

·        EPA will promote an external awards program to recognize outstanding efforts in the cleanup and redevelopment of petroleum brownfields.

INITIATIVE 2 – Provide Targeted Support to State, Tribal, and Local Governments 

            The action items under Initiative 2 are:

            Action 2.1       More clearly identify the Regional EPA representative who will serve as a point of contact within the Agency as well as to outside stakeholders.

·        EPA will identify a single point of contact in each of its regions to connect stakeholders with appropriate experts and resources.

            Action 2.2       Explore opportunities under EPA’s Technical Assistance to Brownfields (TAB) grants and associated consulting teams to assist local and Regional petroleum brownfields efforts.

            Action 2.3       Assist state, tribal, and local governments in developing voluntary inventories of petroleum brownfields.

·        EPA will develop a best practices guide to assist communities who want to develop petroleum brownfields inventories. 

            Action 2.4       Provide technical support for geographic initiatives.

·        EPA plans to pursue a geographic pilot project similar to other pilots undertaken by Regions and states (e.g. Route 66, Historic Highway). 

INITIATIVE 3 – Explore and Evaluate Policies to Facilitate Increased Petroleum Brownfields Site Revitalization

            The action items under Initiative 3 are:

            Action 3.1       Maximize grant flexibility and effectiveness.

·        EPA will attempt to reduce the burden on petroleum brownfields grant applicants.  Currently applicable criteria require that the site be relatively low risk and that there be no viable responsible party.  EPA recognizes these requirements can be burdensome and it will attempt to reduce that burden consistent with statutory requirements.

            Action 3.2       Seek burden reduction in the administration of the 25 percent set-aside for petroleum brownfields grants.

·        EPA will attempt to minimize the administrative and paperwork burdens in applying the 25 percent petroleum set-aside at sites where there is both petroleum and non-petroleum contamination.

            Action 3.3       Explore implementation of a multi-purpose grant for Brownfields.

·        EPA recognizes that grants that are used for activities related to the assessment and cleanup of multiple substances would make cleanup and revitalization projects more viable.  However, it also recognizes that differing statutory eligibility and cross-sharing requirements and the need to account separately for expenditures at sites with petroleum and other hazardous substances will pose a significant challenge to a multiple substances approach.

INITIATIVE 4 – Forge Partnerships to Promote Investment In and the Sustainable Reuse of Petroleum Brownfields

            The action items under Initiative 4 are:

            Action 4.1       Promote sustainability and sustainable practices at petroleum brownfields.

            Action 4.2       Launch and support the “Petroleum Brownfields to Open Space Project” program.

·        EPA proposes to collaborate with wildlife organizations, local regulators and others to promote transformation of petroleum brownfields into small pocket parks and wildlife preserves.

            Action 4.3       Support the reuse of petroleum brownfields by small business owners.

·        EPA will develop a partnership with the Small Business Administration to promote the reuse of petroleum brownfields.

            Action 4.4       Pilot and promote more optimal petroleum brownfields cleanup techniques.

·        EPA will seek a public/private partnership to explore techniques for efficiently assessing, cleaning up and monitoring petroleum impacted properties.

            Action 4.5       Work with the EPA Office of Site Remediation Enforcement (OSRE) to promote the ER3 initiative.

            Action 4.6       Promote petroleum property deal flow sessions.

·        EPA proposes to cooperate with and provide technical assistance to non-governmental organizations that sponsor forums for presenting individual or multiple properties for potential redevelopment.  EPA hopes that these sessions will build a network of petroleum property owners and potential end-users.

     This article was authored by James R. Snyder, Jackson Kelly PLLC. For more information on the author see here.

Cleaning Up and Reusing the Abandoned Corner Gas Station

     On October 14, 2008, U.S. EPA announced an action plan for promoting the cleanup and reuse of abandoned corner gas stations and other sites contaminated with petroleum.  The action plan is called “Petroleum Brownfields Action Plan:  Promoting Revitalization and Sustainability”.  The plan presents four strategic initiatives to achieve the Agency’s goals of cleaning up and reusing petroleum-contaminated brownfield sites.  The four initiatives are: (1) bolster communication and outreach to petroleum brownfields stakeholders; (2) provide targeted support to state, tribal, and local governments; (3) explore and evaluate policies to facilitate increased petroleum brownfields site revitalization; and (4) forge partnerships to promote investment in and the sustainable reuse of petroleum brownfields.  Each of the four initiatives has specific action items.

     U.S. EPA’s petroleum brownfields program is jointly managed by two U.S. EPA offices: the Office of Brownfields and Land Revitalization (OBLR), which has overseen the Brownfields program since its inception, and the Office of Underground Storage Tanks (OUST), which promotes the cleanup of leaking underground storage tank (LUST) sites.  U.S. EPA’s petroleum brownfields program began in 2002 when Congress enacted the Small Business Liability Relief and Brownfields Revitalization Act (“Brownfields Law”).  Under the Brownfields Law, petroleum-contaminated sites were eligible for the U.S. EPA Brownfields Program for the first time but Congress mandated that 25 percent of the funds appropriated to U.S. EPA for activities authorized under CERCLA §104(k) be used to characterize, assess, and remediate petroleum brownfields.  Although intended to boost petroleum cleanups, the statutory requirements have presented challenges for the cleanup of petroleum brownfields. 

     The 25 percent set-aside for petroleum-contaminated sites has created some administrative burdens for both applicants and U.S. EPA, including requiring difficult judgments when a site contains both petroleum and hazardous substance contamination and creating paperwork burdens.   For example, the current eligibility criteria for petroleum grants set forth in CERCLA §101(39)(D) require applicants to work with their State and U.S. EPA Regional staffs to verify that a site is “relatively low risk” and that “there is no viable responsible party.”  These criteria require risk levels to be compared with other petroleum-contaminated sites and require the grant applicant and staff to investigate a site’s ownership and history and potentially responsible parties.  If brownfields grants allowed for activities ranging from assessment to cleanup and allowed multiple substances to be addressed, this would streamline the process and make petroleum sites more viable as cleanup and revitalization projects.   By addressing these issues, U.S. EPA’s action plan attempts to bolster cleanups and reuse of the abandoned corner gas station and other petroleum-contaminated brownfields.

     Under the first initiative (i.e., bolstering communication and outreach to petroleum brownfields stakeholders), U.S. EPA’s plan identifies four action items.  These action items include defining and communicating the objectives of the petroleum brownfields program via brochures, fact sheets, reports, web site content, success stories, and newsletters; developing an online clearinghouse of resources and tools available to promote the assessment, cleanup, and sustainable reuse of petroleum brownfields; preparing a catalogue of petroleum brownfields redevelopment options that will describe examples of successful redevelopment on former petroleum brownfields, including sustainable or “green” cleanup and reuse strategies, and that will include details on public and private financing strategies used for interim and permanent redevelopment options; and exploring and promoting a recognition program.

     To achieve the second initiative (i.e., providing targeted support to state, tribal and local governments, U.S. EPA lists in its plan four action items. There will be a single U.S. EPA point of contact within each of its ten Regions.  U.S. EPA will explore opportunities under its Technical Assistance to Brownfields (TAB) grants and associated consulting teams to assist local and Regional petroleum brownfield efforts.  The Agency will assist in developing voluntary inventories of petroleum brownfields, and provide technical support for geographic initiatives, such as targeted economic development areas, enterprise zones, environmental justice, and other areas of special focus that provide opportunities to enhance the revitalization of petroleum brownfields.

     For the third initiative (i.e., exploring and evaluating policies to facilitate increased petroleum brownfields site revitalization), U.S. EPA promises to maximize grant flexibility and effectiveness by exploring new and innovative ways to reduce the burden on petroleum grant applicants to the extent consistent with the statutory requirements.  U.S. EPA will also seek burden reduction in the administration of the 25 percent set-aside for petroleum brownfields grants, and the Agency will also explore implementation of a multi-purpose grant for brownfields.  This action item will pose significant challenges due to differing statutory eligibility and cost share requirements for assessment and cleanup grants as well as the need to account separately for expenditures at petroleum and hazardous substance sites.

     Under the fourth initiative (i.e., forging partnerships to promote investment in and the sustainable reuse of petroleum brownfields), U.S. EPA identifies six action items.  U.S. EPA will promote sustainability and sustainable practices at petroleum brownfields, such as biofuels service stations and hybrid or electric vehicle recharging centers; launch and support the “Petroleum Brownfields To Open Space Projects” Program for the transformation of petroleum brownfields into small neighborhood pocket parks and wildlife habitat preserves; support the reuse of petroleum brownfields by small business owners by developing a partnership with the Small Business Administration to foster the reuse of petroleum sites; pilot and promote more optimal petroleum brownfields cleanup techniques; work with the U.S. EPA Office of Site Remediation Enforcement to promote the Environmentally Responsible Reuse and Redevelopment (ER3) initiative; and promote petroleum property deal flow sessions among current property owners, developers, potential future users, and other interested parties.

     U.S. EPA’s action plan will involve numerous stakeholders.  The Agency expects implementation of the action plan to take place over the next three years and to increase the cleanup and revitalization of petroleum-contaminated brownfields.  For additional information on U.S. EPA’s Petroleum Brownfields Action Plan and the assessment, cleanup, and revitalization of petroleum brownfields, contact Gale Lea Rubrecht at 304-340-1200 or galelea@jacksonkelly.com.

    

    This article was authored by Gale Lea Rubrecht, Jackson Kelly PLLC. For more information on the author see here.

Former Mining and Industrial Property Sites Prime Candidates for Development of Renewable Energy

     EPA recently announced a program to encourage development of renewable energy on currently and formerly contaminated lands and mining sites. EPA has identified thousands of properties that could potentially host solar, wind or biomass energy production facilities. EPA pinpointed these energy assets using Google Earth and has listed each property’s attributes for energy redevelopment. EPA worked with the Department of Energy’s National Renewable Energy Laboratory to collect information on renewable energy availability across the country, and merged it with EPA’s data from several land cleanup programs. In addition, EPA applied screening criteria including distance from power lines, closeness to roads, and site acreage to identify sites that are good candidates for hosting renewable energy production facilities. EPA used information on properties from several land cleanup programs, including abandoned mine lands and lands under EPA’s Superfund, Brownfields, and Resource Conservation and Recovery Act programs to identify properties with varying levels of historic contamination. Contamination at some of these properties has already been addressed, while the level of contamination at others is still to be fully investigated. It is likely that some of the Brownfields properties have little historic contamination. The appropriate steps to address the contamination at these properties will vary from site to site, depending on the nature of the contamination and intended reuse.

     In regard to mining properties there are several programs:

·          The Mine-Scarred Lands (MSL) Initiative is an effort to improve coordination and collaboration among federal agencies on the cleanup and redevelopment of both hard rock and coal mine-scarred lands.

·          The Good Samaritan Initiative is an EPA-wide initiative to accelerate restoration of watersheds and fisheries threatened by abandoned hard rock mine run-off by encouraging voluntary cleanups by parties that do not own the property and are not responsible for the property's environmental conditions.

·          A Breath of Fresh Air for America's Abandoned Mine Lands: Alternative Energy Provides a Second Wind (PDF)  is a report providing information about the development of wind energy at former mining sites for communities, including local governments, residents, and organizations interested in creating renewable energy resources and new economic opportunities at these sites.

     EPA has identified loan, tax and other resource and incentive programs available for alternative energy development in each State and created maps for six types of energy, as well as non-grid connected wind and photovoltaic solar energy:

·          EPA Tracked Sites with Utility Scale Wind Energy Generation Potential (Wind energy potential with wind power class of 4 or greater.)

·          EPA Tracked Sites with Community Wind Energy Generation Potential (Wind energy potential with wind power class of 3 or greater.)

·          EPA Tracked Sites with Utility Scale Concentrated Solar Power (CSP) Energy Generation Potential (Direct normal resource availability of 6 kWh/m2/day or greater.)

·          EPA Tracked Sites with Utility Scale Photovoltaic (PV) Solar Energy Generation Potential (Direct normal resource availability of 5 kWh/m2/day or greater)

·          EPA Tracked Sites with Biopower Facility Siting Potential (Cumulative biomass resources of 140,000 metric tons/year or greater within 50 miles)

·          EPA Tracked Sites with Biorefinery Facility Siting Potential (Cumulative crop residues of 333,000 metric tons/year or greater within 50 miles).

·          EPA Tracked Sites with Non-Grid Connected Wind Energy Generation Potential

·          EPA Tracked Sites with Non-Grid Connected Photovoltaic (PV) Solar Energy Generation Potential

      EPA identifies loan programs and tax incentives as well as the mapped locations of opportunities for renewable energy generation on contaminated lands and mining sites in all 50 states. For instance in West Virginia, the West Virginia Economic Development Administration (WVEDA) office provides loans from 50,000 to $10 million. Financial assistance is available to participate in the financing of fixed assets for business classifications currently targeted by the WVEDA's job creation criteria. The applicant may be an existing or prospective West Virginia business. Contacts for WVEDA direct loan program: David Warner, dwarner@wveda.org, (304) 558-3650; Joey Browning, jbrowning@wveda.org, (304) 558-3650.)  A West Virginia tax incentive program lowers the property tax on utility-owned wind turbines from 79% to 5% of assessed value. Additionally the West Virginia Business and Operation (B & O) Tax is lowered on utilities using windpower generation. For most types of electricity-generating units, the B&O tax is 40% of the generating capacity; whereas the B&O tax on a wind turbine is 12% of the generating capacity of the turbine.  An additional  tax credit is available for power generation companies that make investment in new, expanded, or revitalized generation facilities (Contact for tax incentive programs is Mark Muchow, mmuchow@tax.state.wv.us, (304) 558-8730.  The West Virginia Renewable Energy Program advances the use of West Virginia’s wind and renewable resources through technical assistance and public-private partnerships. The program can assist developers by providing detailed wind maps, interfacing with West Virginia utilities, and contacting local economic developers. (contact regarding WV renewable Energy Program: Jeff Herholdt, jherholdt@wvdo.org, (304) 558-2234. Net Metering applies to residential and commercial systems up to 25 kW capacity that generate electricity using any renewable resource. (contact Jim Ellars, jellars@psc.state.wv.us, (304) 340-0331)

     The maps for West Virginia identify areas with biopower facility siting potential and biorefinery facility siting potential overlapped with identified RCRA and Superfund sites, but the EPA maps do not yet identify areas for wind energy or solar power potential or abandoned mining lands. Since the maps were only first provided in late September, 2008 it is likely that more areas will be identified with time. For many states the maps did not identify any wind or solar energy areas; whereas some states, such as Texas New Mexico and Wyoming, had full identification of potential wind and solar energy resource sites.  West Virginia certainly has former mining lands with wind energy potential and those will likely be identified on the maps as EPA further develops the program.   

     For more information and access to the maps go to www.epa.gov/renewableenergyland .

     This article was authored by Barbara D. Little, Jackson Kelly PLLC. For more information on the author see here.

WVDEP Proposes Revisions to the De Minimis Table to the Voluntary Remediation & Redevelopment Rule as an Emergency Rule

     On June 2, 2008, the West Virginia Department of Environmental Protection (WVDEP) filed with the West Virginia Secretary of State a proposed emergency rule proposing revisions to the De Minimis Table, Table 60-3B, to the West Virginia Voluntary Remediation & Redevelopment (WV VR&R) Rule, 60 CSR 3. In some cases, a specific proposed value would increase, and in other cases, a proposed value would decrease, i.e., become more stringent or protective.  Additionally, four chemicals would be added to the Table and nine would be deleted.  The proposed revisions were shared with the WV VR&R Technical Subcommittee, which includes representatives of the WVDEP, West Virginia Chamber of Commerce, and National Institute for Chemical Studies, and a licensed remediation specialist, and the subcommittee members concurred with the revisions.

     The West Virginia Voluntary Remediation & Redevelopment Rule establishes cleanup standards based on human health risks in light of the current or future uses of a site.  The De Minimis Table sets forth concentration levels for each of the listed contaminants.  The Table is used extensively in a voluntary remediation to determine if environmental contamination at a site exceeds levels that are protective of human health.  If the environmental contamination at a site exceeds the levels in the Table for the contaminants found on the site, then remediation is necessary.  Based on additional scientific information that has been acquired regarding the toxicity of the chemicals listed in the Table, not all of the values in the Table are current.  Values used to estimate the toxicity for a number of these chemicals have changed, and the protected values for those chemicals have changed, too.  

     The Secretary of State now has 42 days to approve or reject the proposed emergency rule.  In approving or rejecting an emergency rule, the Secretary of State decides if an emergency exists.   Here, the Secretary of State is likely to find that an emergency exists and approve the proposed emergency rule.  Some of the chemicals being revised are known carcinogens and failure to implement the revised Table would result in remediation in properties to levels of protectiveness insufficient to meet the levels mandated elsewhere in the rule to protect human health.  For those chemicals where an increase in value is proposed, however, the existing De Minimis standards may be more restrictive than necessary, and thus require expenditure of resources for unnecessary or excessive remediation.  If the Secretary of State approves the emergency rule, it will take effect July 14, 2008, and be effective for a maximum of 15 months. 

     Meanwhile, the WVDEP must file the emergency rule as a proposed rule and either complete a hearing or comment period or file for a hearing or comment period by July 3, 2008.  In addition, the WVDEP approved legislative rule must be filed with the Legislative Rule-Making Review Committee within 90 days or by September 2, 2008.  If the WVDEP misses either of these deadlines, the emergency rule expires and cannot be re-filed. 

     This article was authored by Gale Lea Rubrecht, Jackson Kelly PLLC. For more information on the author see here.

Status of Memorandum of Agreement with U.S. EPA for the West Virginia Voluntary Remediation and Redevelopment Program

     At the Environmental Academy held in Charleston, West Virginia, on May 29, 2008, Ken Ellison, Director of the Division of Land Restoration of the West Virginia Department of Environmental Protection, reported on the status of negotiations with U.S. EPA concerning the memorandum of agreement (MOA) for the West Virginia Voluntary Remediation and Redevelopment Program.  Mr. Ellison stated that U.S. EPA had hired a contractor to review the West Virginia Voluntary Remediation & Redevelopment Rule, 60 CSR 3, and that the contractor had completed its review.  Mr. Ellison said he expected to have the contractors’ findings in the near future.  Mr. Ellison declined to speculate when West Virginia might have a MOA for its voluntary cleanup program with U.S. EPA.  The state has been pursuing a MOA with U.S. EPA for more than ten years.  An MOA would offer liability protection from federal response and enforcement actions by U.S. EPA unless, in exceptional circumstances, the site poses an imminent and substantial threat to human health or the environment.

     This article was authored by Gale Lea Rubrecht, Jackson Kelly PLLC. For more information on the author see here.

Vapor Intrusion: New Requirement for Environmental Due Diligence

     Vapor intrusion may compound the problems with obtaining financing for acquisitions of existing properties in an already tight credit environment as well as being cause for reopening federal EPA and State ordered remediation agreements and orders. EPA has opined that the costs and liabilities associated with vapor intrusion impacts could be similar to those associated with soil and groundwater contamination . Vapor intrusion is the new indoor health risk and poses a similar impact to property evaluations and transfers as did lead-based paint, asbestos and mold.

     Vapor intrusion is defined as the introduction of volatile chemicals found in polluted soil and groundwater into the air of overlying buildings, similar to radon gas seepage into buildings and homes. Vapor intrusion can occur at any type of property--industrial, commercial or residential--and its impacts may be greater on human health--i.e., employees and customers in a shopping center--than the causative soil or groundwater contamination.

     Sites most likely to be impacted by vapor intrusion are those associated with past manufacturing or use of volatile organic compounds (VOCs) and semi volatile compounds, such as refineries, chemical plants, gasoline underground storage tanks, piping and refueling operations, dry cleaners and other intense solvent uses.

     Real estate transactions will likely be significantly impacted as it has been reported that major banks and lending institutions, such as Bank of America and Citibank, are now requiring vapor intrusion as an aspect of environmetnal due diligence to support financing decisions. More financial institutions are likely to follow suit since ASTM International has released its vapor intrusion standard, ASTM E2600 "Standard Practice for Asessment of Vapor Intrusion into Structures on Property Involved in Real Estate Transactions. (go to www.astm.org and search for "vapor intrusion" under "standards") ASTM E2600 is to be utilized as an adjunct to the traditional Phase I environmental due diligence and may be applied to property with existing structures or even to property where structures are planned as part of the development:

     This practice is intended to reflect a commercially practical and reasonable inquiry (see 1.2). The practice can be applied to property with existing structures, property with structures that will be substantially rehabilitated, property without existing structures but having planned structures (for example, property in development), or property without existing structures and with no planned structures (for example, undeveloped property with no planned development).

     Clarifications on Use: Use in Conjunction with Practice E 1527 Phase I ESA

     This practice, when added as a supplemental scope of work to a Practice E 1527 Phase I ESA, is designed to assist the user and environmental professional in developing information about pVICs or VICs associated with a target property and, as such, has utility for a wide range of persons, including those who may not be involved in a real estate transaction.

     Since vapor intrusion is not currently officially included in a Phase I assessment, lawyers involved in real estate transactions should at least advise their clients of the potential of vapor intrusion issues.

     To date EPA has been addressing vapor intrusion in the context of ordered RCRA or Superfund cleanups. In 2001 EPA issued "Draft Guidance for Evaluating the Vapor Intrusion to Indoor Air Pathway from Groundwater and Soils", updated in 2002 for for use at RCRA Corrective Action sites, National Priorities List and Superfund Alternative sites and Brownfields sites, but the guidance is not recommended for use at Subtitle I Underground Storage Tank sites at this time.

     Recently several EPA consent agreements or decrees under either RCRA or CERCLA have been reopened utilizing the standard clause that enables reopener if new environmetnal or health risks are discovered to address vapor intrusion.

     Additionally approximately 26 states have legislation and/or regulations dealing with vapor intrusion. West Virginia does not appear to have any formal legislation or regulations, but contacts have been made with the agency to determine whether any are being developed. 

     This article was authored by Barbara D. Little, Jackson Kelly PLLC. For more information on the author see here.

West Virginia’s Voluntary Remediation Program: Is Compliance Monitoring Next?

     On March 6, 2008, the West Virginia Legislature passed the WVDEP’s revisions to the Voluntary Remediation and Redevelopment Rule, 60 CSR 3.  The major change is a complete rewrite of the land-use covenant (LUC) section and LUC form that is part of the approved rule.  In addition to the changes to the LUC provisions, anticipated revisions to the De Minimis Table (60-3B) were withdrawn by the WVDEP and not included in the approved rule.

     Under the former rule, there were two LUC forms -- one for where the applicant is not the owner of the property (Appendix 60-3D), and one for where the applicant is the owner (Appendix 60-3E).  Under the revised rule, there is only one LUC form.  The approved rule addresses non-ownership/ownership issues by requiring that the covenant identify all holders of the covenant and owners of the property and, unless the WVDEP waives the signature of the owner, by requiring everyone to sign the covenant.

     The approved rule incorporates the Uniform Environmental Covenant Act, W. Va. Code §§22-22B-1 et seq. (2007 Supp.) (UECA), as a basis for promulgating rules concerning LUCs in the Voluntary Remediation and Redevelopment Program.  The revised rule adds a definition in Section 2.32 for the term LUC that clarifies that a “land use covenant” under the Voluntary Remediation and Redevelopment Act, W. Va. Code §§22-22-1 et seq. (2002 Repl. Vol.), is an “environmental covenant” under UECA. 

     In addition, the approved rule requires that a LUC:

1.  state that the LUC is an environmental covenant executed pursuant to UECA;

2.  contain a legally sufficient description of the real property subject to the covenant;

3.  describe the activity and use limitations on the property;

4.  identify every owner of record of a fee interest in the property;

5.  identify every holder of the land-use covenant;

6.  “[p]rovide a brief narrative description of the contamination and remedy, including the contaminants of concern, the pathways of exposure, limits on exposure and the location and extent of the contamination and state whether residential or non-residential exposure assumptions were used to comply with a site-specific remediation standard”;

7.  “[p]rovide requirements for notice within 10 days following transfer of a specified interest in, or concerning proposed changes in use of, applications for building permits for, or proposals for any site work affecting the contamination on, the property subject to the covenant”;

8.  contain a provision for relief from civil liability to the state for further remediation;

9.  identify the name and location of the administrative record for the work performed under the Voluntary Remediation and Redevelopment Act at the real property subject to the covenant;

10.  “[g]rant access to the property for purposes of implementation or enforcement of the covenant”; and

11.  contain notarized signatures of the agency, holder(s) and unless waived by the agency, owners of the fee simple of the real property.

     Under UECA, the provisions for a brief narrative description of the contamination, notice, and access  (Nos. 6, 7, and 10 above), are discretionary, W. Va. Code §22-22B-4(b), but these provisions would have been mandatory under the WVDEP’s original proposed revisions to the Voluntary Remediation and Redevelopment Rule.  In response to comments, however, the WVDEP did agree to delete in the final proposed rule a mandatory requirement for periodic reporting describing compliance with the LUC that was in the original proposed rule.  However, under UECA, the persons who sign the covenant may agree to requirements for periodic reporting. 

     In 2006, Ken Ellison, WVDEP Land Restoration Director, explained how the agency would implement the new LUC provisions at a brownfields conference I attended in Charleston.  Director Ellison stated that the WVDEP would use EPA's CDX Institutional Controls Tracking System (http://www.epa.gov/superfund/action/ic/index.htm). He also stated that the WVDEP would register sites with Miss Utility West Virginia (MUWV) (http://www.muwv.org).  If MUWV receives a call that someone plans to dig on a site that is subject to a LUC, then MUWV will relay that information to the WV DEP and the WVDEP will have 48 hours to respond. 

     Two years later, the WVDEP is now sending to licensed remediation specialists working on projects in the program LUC templates that impose a monitoring requirement on the owner.  The WVDEP asserts it has reached its capacity for monitoring and has not received any additional funding for monitoring. The language that the WVDEP is including in the LUC template has not been agreed to by the regulated community and neither the Act nor the LUC form that is part of the approved rule contains any language requiring monitoring of compliance with the certificate of completion and LUC.  Discussions are underway between the WVDEP and industry trade organizations to come to a consensus on the issue of monitoring.  Some view the lack of monitoring as the Achilles’ heel of voluntary clean-up programs.  Others argue that a monitoring requirement will discourage use of the program.

     In addition to the changes to the LUC provisions, major revisions to the De Minimis Table were planned.  However, the revised Table (60-3B) was found to have computational errors in the imbedded derivative equations and the WVDEP withdrew it.  Revisions to the withdrawn table included the addition of elemental mercury and changes regarding trichloroethylene (TCE).  In addition to further work on the De Minimis Table, the WVDEP is also considering withdrawing the draft supplemental guidance on petroleum fractions (TPH) and MTBE available on the WVDEP’s web site.  Any one currently having a site in the Voluntary Remediation Program should work closely with the WVDEP project manager if there is any concern that the applicable values may change before issuance of the certificate of completion.

     This article was authored by Gale Lea Rubrecht, Jackson Kelly PLLC. For more information on the author see here.