Whether your company recently acquired a piece of contaminated property or discovered contamination at a property you have operated for years, remediation of the site through one of the state voluntary cleanup programs (VCPs) might be a good option.
Although each state program is different, the goal of entry into a VCP is to investigate and remediate the property for purposes of receiving a closure letter. In the letter, the state agency declares the property remediated to state standards, thereby removing any stigma resulting from the prior contamination. These closure letters take multiple forms, such as a “no further action letter” or “certificate of completion.” Another goal is to protect the property owner from receiving an environmental violation or having enforcement proceedings instituted against it by the state environmental agency as a result of the contamination. Generally, the state agency agrees not to take enforcement action if the property is timely progressing through the state VCP.
Our clients have completed remediation programs across the United States including, most recently, sites in Indiana, Pennsylvania, Missouri, Texas, Kansas, Georgia and Illinois. Based on that experience, below are some items to consider before entering a property into a state VCP:
1. Do Your Homework on the State-Specific Process
Before contacting the state agency to seek entry into the specific VCP, research and review the law and guidance governing that state’s VCP process. Each state program is different. Some require site investigation to be done under the oversight of the VCP staff while others require Phase I and Phase II Environmental Site Assessments to be completed before an application to admit the property into the VCP is submitted.
Further, some states’ agencies, such as the Texas Commission on Environmental Quality Voluntary Cleanup Program, have additional investigation requirements. In Texas, an applicant may be required to complete a drinking water survey report investigating possible water wells within a certain distance of the property. Each state has its specific requirements, and being advised of the steps in advance will help the remediation process progress.
2. Consider Timing
Another important issue to understand is the likely overall timing to take a property through the state VCP. In some states, there are specified time frames by which certain documents have to be submitted, and generally these deadlines are built into the VCP agreement, thereby making them legally enforceable deadlines. Some VCP regulations also incorporate time deadlines by which the state environmental agency has to review submissions from the applicant (i.e., 60 days from submission). These are important to understand if you are trying to move the property through the VCP process within a certain time frame. If you are under a tight timeline, it is important to review if there is a process for expedited review of documents (often which comes at additional cost to the landowner).
3. Hire an Experienced Team
This probably goes without saying, but hire a team that has knowledge of the state-specific process. Your team should include both a qualified consultant and a lawyer. If you are contemplating taking multiple properties located in multiple states through VCP remediations, it may be important to retain a consultant who has field teams located near each of the properties to minimize travel expenses.
The lawyer is also an important part of the team. The lawyer can assist in negotiating the voluntary remediation agreement, legal notification requirements, negotiating off-site property access agreements and communications with offsite property owners to minimize legal claims.
4. Vapor Intrusion Considerations
The single most important issue affecting site remediations right now is vapor intrusion. An investigation into potential vapor intrusion issues will be required if your contamination involves chlorinated solvents or hydrocarbon products in proximity to structures on the property (or potential future structures on the property). Many states have or are in the process of adopting state-specific standards for vapor intrusion, and the EPA is continually updating its standards for vapor intrusion investigations. Investigation of potential vapor intrusion will add additional cost and time to a site remediation. An experienced consultant and lawyer can assist in navigating the risk that potential vapor intrusion poses.