Early in 2009, the West Virginia Department of Environmental Protection (WVDEP) brought together a group of stakeholders representing various business interests and trade associations (Dow Chemical Company, Exxon/Mobil, FMC Corporation, WV Coal Association, WV Chamber of Commerce, WV Manufacturers Association), WVDEP, USEPA Region III, and the WV Development Office to form an Institutional Controls (IC) Focus Group. The WVDEP tasked this Group with the following objectives:
· Evaluate the current status/best practices of risk-based remediation and related land use controls.
· Evaluate the feasibility/framework of the WVDEP developing/implementing a West Virginia Voluntary Land Stewardship Program (VLSP).
The efforts of the IC Focus Group are supported by an IC Work Group, which consists of representatives from Marshall University, WVDEP, and a consultant who facilitates the meetings. The IC Focus Group and the IC Work Group met during February, April, June, and August 2009, and two additional meetings are scheduled for this year. The goal of this blog article is to summarize the background leading up to this effort and what a VLSP might look like.
For years, the performance of site cleanups in West Virginia was based on achieving an unrestricted future land-use; e.g. residential level. One result of this approach was that federal and state environmental programs developed a backlog of sites that were not being addressed, since the technology to remediate soil, sediment, and groundwater to such pristine levels was often not available or could only be implemented at an unacceptable cost.
In July 1997, West Virginia implemented the Voluntary Remediation and Redevelopment Rule (VRRR, 60CSR3). A primary goal of the VRRR was to allow the use of risk-based approaches to remediation, so that sites could be remediated to less restrictive levels (e.g., industrial) rather than residential. Any engineering or institutional controls (e.g., future land-use deed restrictions) that must be implemented to meet the level of cleanup desired (residential or industrial) are described in a Land Use Covenant (LUC). Under the VRRR, the LUC must be recorded with the property deed at the respective County Court House for the Certificate of Completion (COC) to become effective. It should be noted that the LUC remains with the property deed for as long as engineering and/or institutional controls are in place (e.g., theoretically, in perpetuity).
Over the last several years, the WVDEP has come to believe that the COC is an imperfect way to enforce the provisions of the LUCs over time. Therefore, the WVDEP has taken several actions (some legislative, some not) in recent years to address their concern:
· First, West Virginia enacted the Uniform Environmental Covenant Act (UECA), which was integrated into the VRRR in July 2008. UECA modified LUCS. However, even with these modifications, the WVDEP believes that UECA still does not address the practical aspect of determining whether the provisions of LUCs are being violated over time.
· Second, in addition to incorporating UECA, the VRRR was revised to require regular certification by the applicant or property owner that the site is being used in compliance with the provisions of the LUC. In general, WVDEP anticipates that the inspections should be formed and certifications be submitted to the WVDEP, at a minimum, on an annual basis.
· Third, WVDEP recently joined Miss Utility as a participating member and now receives notification of excavation and subsurface disturbance activities at VRP sites, as the utilities do. The WVDEP (Division of Land Restoration Project Managers) is reportedly responding to approximately 300 “tickets” issued by Miss Utility per year.
· Fourth, although not originally envisioned when the VRRR was implemented in July 1998, the WVDEP (Division of Land Restoration Project Managers) is now performing an annual inspection at each site that has been issued a Certificate of Completion (COC) under the Voluntary Remediation Program (VRP).
As a result of the third and fourth actions, WVDEP feels that it now has a practical way of enforcing LUCs, but WVDEP believes that some risk of exposure remains because not all site activities require excavation nor does everyone use the Miss Utility service. The WVDEP is also concerned that the time required by its current staff to implement these actions is causing time-constraints that detracts from their ability to support ongoing sites entered into the VRP. In addition, the WVDEP reports that it has not received, nor is likely to receive funding from the Legislature to perform the activities described in the third and fourth actions.
WVDEP believes that the issue of monitoring LUCs over time has become a major concern and one that could threaten the long-term viability of risk-based closures in West Virginia, since the potential exists for such sites to be redeveloped in the future in ways that would violate the LUCs and place individuals or the environment at an unacceptable risk. WVDEP feels that this risk is further compounded by the steadily increasing number of sites being closed under the VRP, while payroll and staff available to address this issue are not increasing. WVDEP reports that nearly 50% of the Division of Land Restoration’s Project Managers are eligible for retirement within the next four years, taking their site-specific knowledge of the sites and their LUCs with them.
Finally, a couple of pertinent facts should be noted relative to this effort to develop a West Virginia Voluntary Land Stewardship Program (VLSP):
· Pennsylvania had developed a similar program, referred to as the “Guardian Trust,” earlier in this decade. The program was ultimately not adopted by the State.
· The USEPA is hoping that West Virginia will help figure out how to monitor these sites in perpetuity, and has provided West Virginia with a $100,000 grant to assist in the process, which can include implementation of a Voluntary Land Stewardship Program (VLSP).
B.) What is a VLSP?
As described in the Meeting Minutes from the June 24, 2009 WVDEP IC Focus Group Meeting, the VLSP would be a “comprehensive integrated system for implementing, monitoring, tracking, and protecting institutional and engineering controls.” A “Trust” would be established that would have fiduciary responsibilities for managing funds that would be placed into the Trust by the holder of the LUC (e.g., the original VRP applicant and/or the property owner). At present, it is envisioned that the VLSP would be a 501(c) non-profit charitable trust that would continue into perpetuity.
The funds in the Trust would then be used to perform a range of services on behalf of the applicant/property owner. The term of service and specific services would be tailored for each individual site. As currently envisioned, the VLSP might provide the following tier of services, which may expand over time:
· Establish or maintain any institutional controls (e.g., environmental covenants, easements, deed notices, restrictions and/or prohibitions on land-use or allowed activities) by filing such documents or updating them when the site is leased, conveyed, subdivided, or when land disturbance activities occur.
· Conduct physical inspections.
· Monitor and/or operate any treatment systems (e.g., groundwater treatment, soil vapor extraction, or monitored natural attenuation), collect environmental samples, and prepare reports.
· Conduct periodic review of county land records to monitor transfers or deed filings.
· Develop an administrative record concerning the remediation of the Site in an electronic database, respond to inquiries, and coordinate the sharing of data amongst various stakeholders, such as the WVDEP, other regulatory agencies, economic development agencies, potential purchasers, land owners, and tenants.
· Develop and maintain records and information for posting on the WVDEP environmental registry (publicly accessible), which is to be created, to track LUCs.
· Coordinate and share data with the WV Miss Utility system.
This article was authored by Greg Tieman, Acacia Environmental Group LLC. For more information on the author see here.