&EPA
United States
Environmental Protection
Agency
Cleaning Up Brownfields
Under State Response Programs -
Getting to "No Further Action"
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Foreword
In 2015, the U.S. Environmental Protection Agency (EPA)
marked the 20th anniversary of the Brownfields program
and launched its Next Generation Brownfields initiatives
to promote improved approaches for supporting American
communities in their revitalization efforts. This report was
prepared in response to suggestions EPA received from
brownfields stakeholders about the need for a central
source of information regarding the process for attaining
a state decision or certification of the need for "no further
action" under each state response program.
This report summarizes information gathered from state
response program contacts and state response program
websites. While some basic information about state volun-
tary cleanup programs is provided for context, this report
focuses primarily on the processes used in various states
to provide no further action decisions or certifications. The
entry for each state should be viewed as a digest rather
than a comprehensive source of information for that state,
and should be considered a starting point for additional
research. Readers are strongly advised to use the links
in the "Additional Resources" section and consult with the
state contacts listed to ensure that they have complete and
up-to-date information regarding the process for attaining
a state decision or certification of the need for "no further
action" for each state program.
EPA would like to thank the many state response program
officials who contributed their time to the preparation and
review of the information in this report, as well as the
Brownfields coordinators in EPA regions who assisted in
this effort.
Acknowledgments
This handbook was developed by the U.S. Environmental Protec-
tion Agency's (EPA) Office of Brownfields and Land Revitalization,
which is part of the Office of Land and Emergency Management
(OLEM). Environmental Management Support Inc., 8601 Georgia
Avenue, Suite 500, Silver Spring, Maryland, provided assistance
with the drafting and final preparation of this document under
Contract EP-W-13-014.
For more information, please contact:
Office of Brownfields and Land Revitalization
U.S. Environmental Protection Agency
1200 Pennsylvania Ave. NW(5105T)
Washington, DC 20460
Cover photos (clockwise): Green and affordable housing units atLamar
Station Crossing, Lakewood, CO
Urban agricultural site, Chicago, IL
Harbor Park 2nd Avenue Condos, Kenosha, Wl
Amtrak station at the EmeryStation Transit Center, Emeryville, CA
Above: Harbor Point development, Stamford, CT
Wetland at Genetta Park, Mobile, AL (Courtesy of2D Studios)
2 | Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Act/on'
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Table of Contents
Getting to "No Further Action"
States Listed by Regions
Foreword....
Introduction
REGION 1 7
Connecticut 8
Maine 11
Massachusetts 13
New Hampshire 15
Rhode Island 17
Vermont 19
REGION 2 21
New Jersey 22
NewYork.. ...24
REGIONS 27
Delaware 28
District of Columbia 31
Maryland 33
Pennsylvania 36
Virginia 38
West Virginia 40
REGION 4 43
Alabama 44
Florida 46
Georgia 48
Kentucky 50
Mississippi 52
Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action
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North Carolina 54
South Carolina 56
Tennessee 58
REGIONS 61
Illinois 62
Indiana 64
Michigan 66
Minnesota 69
Ohio 71
Wisconsin 74
REGIONS 77
Arkansas 78
Louisiana 80
New Mexico 82
Oklahoma 84
Texas 86
REGION 7 89
Iowa 90
Kansas.. ...92
Missouri 94
Nebraska 96
REGIONS 99
Colorado 100
Montana 102
North Dakota 104
South Dakota 106
Utah 107
Wyoming 109
REGION 9 111
Arizona 112
California 114
Hawaii 117
Nevada 119
REGION 10 123
Alaska 124
Idaho 126
Oregon 128
Washington 130
4 | Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action'
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Introduction
This report provides general information on certain aspects of state response programs available to
owners and prospective purchasers of potentially contaminated properties, including brownfields. This
report is meant to be a guide for owners of brownfields properties on the general requirements for enter-
ing a brownfield into a state cleanup program and the process for attaining a state decision or certification
of the need for "no further action" under each state response program.
Brownfields sites often are cleaned up in accordance with and under the oversight of state "volun-
tary cleanup programs," or state response programs. The benefits of enrolling in a state response
program include the guidance and oversight provided by the state program, including guidance related
to risk-based cleanups and constituent-based cleanup levels, as well as guidance on the use and
long-term monitoring of institutional controls. State response programs also provide certain protections
from environmental liability for sites cleaned up in accordance with program requirements. Liability
protection often is documented as a "no further action" (NFA) decision or NFA letter. Individual states
often use their own terms to refer to these NFA decisions or NFA letters.
Generally, states make a "no further action" decision after determining that a brownfield site, or one part
of a brownfield site, that is enrolled in the state response program, poses no unacceptable risks to human
health or the environment. This usually follows investigative or cleanup activities taken by the proper-
ty owner or prospective purchaser under state program oversight or following a state's comprehensive
review of the cleanup actions taken at a brownfield. Obtaining a "no further action" decision generally
means that the state will not require additional remedial action, based on the state agency's knowledge of
site conditions when it issues the NFA. Some NFA decisions are conditioned on compliance with institu-
tional or engineering controls that are designed to prevent exposure to contaminants left in place following
risk based cleanup activities.
The U.S. Environmental Protection Agency (EPA) does not oversee the cleanup of brownfields. Section
128(b) of the federal Comprehensive Environmental Response Compensation and Liability Act (CERCLA,
or the federal Superfund law) limits U.S. ERA'S authority to take enforcement or cost recovery actions
against persons who conduct a response action at a brownfield site in compliance with a state response
program. Therefore, cleaning up brownfields in accordance with a state response program may afford a
property owner liability protection under both state and federal environmental statutes.
This report provides a general summary of the eligibility requirements for entering a brownfield into each
state's response program and the required process in each state to apply for and obtain a determination
of "no further action." Comprehensive information on all aspects of state voluntary cleanup programs
is not provided. More information on state voluntary cleanup programs can be found at: www.epa.gov/
brownfields/2014-state-brownfields-and-voluntarv-response-programs. State contact information and
links to state program websites are provided in this report. The information contained in this report was
gathered from state response program contacts and state response program websites.
Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action'
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6 | Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Act/on'
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Lakes Region Facility Property, Lanconia, NH
Before photo of Save the Bay, Providence, Rl
Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Act/on" | 7
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CONNECTICUT
Program Overview
Connecticut's Office of Brownfield Remediation and
Development, Department of Economic and Community
Development, is the state's official brownfield office. The
Brownfield Remediation and Revitalization Program and
Abandoned Brownfield Cleanup (ABC) Program establish
a process for voluntary cleanup of contaminated sites that
must meet Connecticut's Remediation Standard Regula-
tions. These programs provide new developers of certain
brownfields with relief from liability for pre-existing, offsite
contamination, as long as cleanup of onsite contamination
is addressed and migration of contamination from the site
ceases. If the ABC Program accepts a property, the appli-
cant must enter one of Connecticut's Voluntary Remedia-
tion Programs (VRPs).
There are two VRPs in Connecticut, authorized under
Connecticut General Statutes sections 22a-133x and
22a-133y. Both programs are elective processes for
property owners who wish to expedite the remediation
of polluted property. The programs are managed by the
Remediation Division, Bureau of Water Protection and
Land Reuse, Connecticut Department of Energy and
Environmental Protection (DEEP). The VRP under section
22a-133x is available to any person to facilitate the
remediation of any contaminated property in Connecticut.
The VRP under section 22a-133y is available for real
property that has had a spill in an area where the ground-
water meets certain classification standards; the site must
not be subject to any order issued by DEEP, any consent
order, or stipulated judgment regarding the spill. Under
Section 22a-133x, DEEP usually authorizes a Licensed
Environmental Professional (LEP) to verify that an inves-
tigation was performed in accordance with prevailing
standards and guidelines, and that the completed remedi-
ation is consistent with regulations. However, DEEP may
elect to directly review and approve in writing the investi-
gation and remediation. Under Section 22a-133y, an LEP
oversees the investigation and remediation and submits a
remedial action report to DEEP. Remedial action reports
submitted to DEEP pursuant to Section 22a-133y are
deemed approved unless, within 60 days, the DEEP deter-
mines that an audit of the remedial action is necessary.
Connecticut limits the liability of prospective purchasers
through two types of covenants not to sue. To qualify for
Connecticut Department of
ENERGY &
ENVIRONMENTAL
PROTECTION
VRP Section 133x Program
Summary
The applicant files an environmental
condition assessment form and
a $3,250 filing fee. DEEP notifies
applicant within 30 days if further
oversight is required.
If DEEP'S Oversight is Not
Required: The applicant submits an
investigation and remediation plan,
and an implementation schedule to
DEEP, within 90 days. The applicant
satisfies notification requirements
before remediation begins, and
verifies that the site investigation
and remediation meet applicable
standards and guidelines.
If DEEP's Oversight is Required:
Within 30 days of DEEP's notice,
the applicant submits a proposed
investigation and schedule. DEEP
notifies the applicant that remediation
is complete.
VRP Section 133y Program
Summary
Before the Remediation: The
applicant submits a remedial action
plan, obtains all permits, and satisfies
notification requirements.
After the Remediation: The
applicant submits a final remediation
action report that is considered
approved unless DEEP calls for an
audit within 60 days. Before report
approval, DEEP and applicant may
enter into an agreement regarding
further remedial action or monitoring
activities. DEEP may disapprove the
report after an audit.
(continued on next page)
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this benefit, the applicant must remediate the property
according to regulations in effect on the effective date
of the covenant and record any environmental land use
restriction necessary to comply with the regulations on
the land records; and the land use must remain in effect.
The applicant must submit an application to request a
covenant. DEEP can approve covenants early in the
process as long as DEEP approves a brownfield investi-
gation plan and remediation schedule.
Covenants Not to Sue
(continued from previous page)
Upon Approval of a Final
Remediation Action Report: The
property owner may file a Property
Transfer Program Form II. An
Environmental Land Use Restriction
is recorded unless DEEP finds that
land use restriction is unnecessary.
Remediation Complete: DEEP
approves the remediation or
the applicant's verification that
remediation is complete, or
determines that applicant's
verification survived the audit.
DEEP offers two types of covenants not to sue. A covenant
not to sue is an agreement that DEEP will release claims
related to pollution or contamination on or emanating
from the property that resulted from a discharge, spillage,
uncontrolled loss, seepage, or filtration on the property prior
to the effective date of the covenant. DEEP will not require
additional remediation in the future even if remediation standards change.
A covenant not to sue does not bar damage claims that third parties may bring, nor does it relieve anyone
from responsibility for cleaning up new releases that occur after the covenant takes effect. A covenant not
to sue does not prevent DEEP from requiring further remediation of the property if the information provid-
ed by the person seeking the covenant was false or misleading.
DEEP may enter into a covenant not to sue with a prospective purchaser of contaminated property;
current owner of contaminated property; lending institution to whom the prospective purchaser or owner
has conveyed a security interest in the property; or successor of the holder of an issued covenant.
Section 22a-133aa covenants are transferable to a party that is not responsible for polluting the property
and is a successor of the holder of an issued covenant. These covenants also are available to lending
institutions to which a prospective purchaser has conveyed a security interest.
Section 22a-133bb covenants require either DEEP approval of the cleanup plan or final remedial action
report, LEP approval of the cleanup plan or final remedial action report, or verification that the property
has been remediated in accordance with regulations. This covenant not to sue does not prevent DEEP
from requiring additional action if new information confirms previously unknown contamination that result-
ed from a release prior to effective date of the covenant, or if the threat to human health or the environ-
ment is increased beyond an acceptable level due to substantial changes in exposure conditions.
Additional Resources
DEEP Remediation/Site Cleanup
httD://www.ct.aov/deeD/cwD/view.asD?a=2715&a=324950&deeDNav GID=1626
DEEP Voluntary Remediation Programs
http://www.ct.aov/DEep/cwp/view.asp?a=2715&q=325028&deepNav GID=1626
Voluntary Remediation Program 133x Fact Sheet
http://www.ct.aov/DEep/cwp/view.asp?a=2715&q=325024&deepNav GID=1626
Voluntary Remediation Program 133y Fact Sheet
http://www.ct.aov/DEep/cwp/view.asp?a=2715&g=325026&deepNav GID=1626
Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action" \ 9
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Covenants Not to Sue
http://www.ct.aov/dep/cwp/view.asp?a=2715&g=324936&depNav GID=1626
Property Transfer Filing (including ECAF) and Covenant Not to Sue Forms
http://www.ct.aov/deep/cwp/view.asp?a=2715&Q=436540&deepNav GID=1626#CovenantNotToSue
Remediation Standard Regulations
http://www.ct.aov/deep/cwp/view.asp?a=2715&g=325012&deepNav GID=1626
Brownfields Program Liability Relief Programs Fact Sheet
http://www.ctbrownfields.gov/ctbrownfields/lib/ctbrownfields/Connecticut Brownfields Liability Relief
Programs Fact Sheet.pdf
Agency Contacts
For more information about Connecticut's VRPs, contact:
Robert Bell
Assistant Director
Remediation Division
Bureau of Water Protection and Land Reuse
Connecticut Department of Energy & Environmental Protection
Email: robert.e.bell@ct.gov | Telephone: (860) 424-3873
Mark R. Lewis
Brownfields Coordinator
Office of Constituent Affairs & Land Management
Connecticut Department of Energy & Environmental Protection
Email: mark.lewis@ct.gov | Telephone: (860) 424-3768
Main Agency Website: http://www.ct.gov/deep/site/default.asp
10 | Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Act/on'
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MAINE
Program Overview
Maine established the Voluntary Response Action
Program (VRAP) in 1993 to encourage the voluntary
investigation, cleanup, and redevelopment of brownfields.
VRAP helps to mitigate threats to public health and the
environment, and facilitate the reuse of properties and
infrastructure that consequently helps reduce sprawl and
preserve greenspace. A state program imposed Public
Communication Decision Matrix applies to all VRAP sites.
A property involved in a real estate transaction (such as
acquisition, refinancing, or foreclosure) that has poten-
tial or documented soil or groundwater contamination
may qualify for the VRAP. Ineligible properties include
those operating pursuant to a license issued by a specif-
ic program within Maine's Department of Environmental
Protection (DEP), or those that may fall under the juris-
diction of the federal Superfund (CERCLA) law or the
Resource Conservation and Recovery Act (RCRA).
Eligible property owners that clean up a brownfield to the
satisfaction of DEP can receive protection from future
DEP enforcement actions. Property owners obtain liability
protection through VRAP in the form of a no further action
assurance letter and a certificate of completion. Owners
not protected from liability under VRAP include those who
caused, contributed to, or exacerbated the release (or
threatened release) of contamination. Partial cleanups
are possible under VRAP. For example, an applicant may
propose to remediate contaminated soil at a property
where groundwater contamination also is present but may
not be remediated to drinking water standards. In this
instance, DEP requires a land use restriction placed on
the property to limit the use of the groundwater and to ensure protection of public health and the environ-
ment.
No Further Action Assurance Letter, No Action Assurance Letter,
and Certificate of Completion
DEP issues a no further action assurance letter if an environmental site assessment indicates that
contaminants were not discharged at the property or that discharges do not represent a threat to public
health or the environment. DEP also issues a no action assurance letter upon concurrence with a Volun-
tary Response Action Plan. The letter assures the applicant that DEP will not take enforcement action.
VRAP Process Summary
The applicant must conduct an
environmental site assessment
(ESA) to determine the nature and
extent of contamination.
The applicant must prepare a
voluntary response action plan
documenting the results of the ESA
and the planned remedial measures
for the property. The applicant then
submits the plan to DEP to determine
eligibility for VRAP. Submitting a
voluntary response action plan and
application for Assistance requires
a non-refundable fee of $500. DEP
may subsequently bill the applicant
for additional review and oversight
services.
DEP approves the voluntary
response action plan. DEP may grant
a "no action assurance" certification
to applicants who enroll in the VRAP
and complete all actions required in
the approved plan.
The applicant is required to submit
a final report documenting the
satisfactory completion of all
response actions required in the plan
to receive a certificate of completion.
Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action" \ 11
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DEP issues a certificate of completion upon approval of a final report that must document the satisfactory
completion of all response actions required in the voluntary response action plan. The certificate includes
the applicable liability release provisions for either a complete or partial cleanup. The certificate also
applies to successors and assignees of the applicant, lenders, fiduciaries, and parties providing financing
to the applicant.
The release of liability for a partial cleanup applies only to the contamination that is remediated to the
satisfaction of DEP. An otherwise responsible party (i.e., the current owner/operator of the property) who
undertakes only a partial cleanup does not receive liability protection.
Additional Resources
Brownfields Program
http://www.maine.gov/dep/spills/brownfields/
Voluntary Response Action Program
http://www.maine.gov/dep/spills/vrap/index.html
DEP Issue Profile: Voluntary Response Action Program
http://www.maine.gov/dep/spills/vrap/ipvrap.html
Voluntary Response Action Program Public Communication Decision Matrix
http://www.maine.gov/dep/spills/vrap/documents/vrappubliccom.pdf
Voluntary Response Action Program Law
http://www.mainelegislature.org/legis/statutes/38/title38sec343-E.html
Agency Contact
For more information about Maine's VRAP, contact:
Nick Hodgkins
Maine Department of Environmental Protection
Email: nick.hodgkins@maine.gov | Telephone: (207) 287-4854
Main Agency Website: http://www.maine.gov/dep/
12 | Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action'
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MASSACHUSETTS
Program Overview
The Commonwealth of Massachusetts has a semi-privat-
ized, risk based cleanup program that offers participants
a choice of cleaning up a site using a chemical specif-
ic approach with numerical standards or a cumulative
risk approach based on site specific information. The
Massachusetts Department of Environmental Protection
(MassDEP) does not oversee all phases of cleanup;
instead, the cleanup program relies on licensed site
professionals (LSPs) to provide oversight of cleanup
activities. LSPs are technical experts licensed by the
Commonwealth. Project proponents retain LSPs directly
to conduct the analysis of the environmental condition of a
property, determine the appropriate approach to cleanup,
oversee and implement the cleanup, and ensure compli-
ance with environmental laws on the proponent's behalf.
Procedures and requirements on how to clean up sites in
the privatized system are detailed in the Massachusetts
Contingency Plan (MCP). MassDEP encourages parties
interested in purchasing or redeveloping contaminated
property to consult with an attorney with experience in
Massachusetts General Law Chapter 21E.
Cleanup Process Summary
The project proponent selects the site.
The project proponent hires an
LSP and assesses the site for
contamination.
The project proponent hires a lawyer.
The project proponent cleans up the
site under the direction of a LSP.
The LSP posts a closeout statement
in MassDEP's Waste Site Database
to document the level of cleanup
attained.
If the cleanup is a conditional cleanup,
the project proponent submits a
brownfields covenant application to
the Office of the Attorney General
to request a covenant not to sue
Agreement.
Liability protection is available for certain participants if they meet statutory requirements. Municipali-
ties are not considered owners/operators of properties when they foreclose on property subject to a tax
lien, act diligently to divest themselves of the property, and meet other requirements of the law. Eligible
persons, or non-causally responsible parties, also may receive liability protection once they complete
property cleanup. MassDEP offers protection for tenants, redevelopment authorities, down gradient
property owners, nonprofits, and other eligible parties undertaking brownfield redevelopment projects.
In exchange for a commitment to clean up a site and undertake a project that contributes to the econom-
ic or physical revitalization of the community or provides some other public benefit to the community in
which the project is located, the Commonwealth might provide individually tailored liability relief to property
owners and developers through the Brownfield Covenant Not to Sue Program administered by the Office of
the Attorney General.
Permanent Solution Statement/Covenant Not to Sue Agreement
After a participant in the cleanup program selects a property and decides upon its intended use, it is
necessary to determine if the property is contaminated. A description of a site's contamination issues
may be available in MassDEP's Waste Site Database (site file viewer); if not, an LSP must be retained to
perform a site assessment.
After a property is cleaned up in accordance with the MCP, the LSP posts a permanent solution statement
in MassDEP's site file viewer with the other LSP-certified reports, thus providing a public record of the
site's condition. These electronic records describe the activities conducted and level of cleanup attained.
They provide participants, prospective purchasers, developers, or others interested in a site with informa-
Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Act/on" | 13
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tion about the site's status, in lieu of a letter from MassDEP. Different categories of site closeout apply,
depending on the level of cleanup that was completed (i.e., permanent solution with no conditions, perma-
nent solution with conditions, or temporary solution). A permanent solution with conditions statement
describes any site activity and use limitations (AULs). AULs are recorded on the property deed to describe
any restrictions on the property's uses and any maintenance conditions that must be followed to ensure
the property's safe use. MassDEP may screen or audit the permanent solution statement and typically
posts the results on the site file viewer.
Entities ineligible for liability protection directly under Massachusetts law might obtain protection under
a brownfields covenant not to sue agreement issued by the Office of the Attorney General pursuant to
940 C.M.R. 23.00. The process begins by discussing the proposed project and cleanup with the Attorney
General's Office, including financial and project deadlines, and by submitting a brownfields covenant not
to sue application. Applicants also must discuss cleanup and redevelopment plans with MassDEP and,
if the Attorney General determines that a project meets the regulatory requirements for a covenant not to
sue, provide notice, in accordance with the brownfields regulations, to certain third parties as described in
940 C.M.R. 23.04(2)(b). The liability protection provided in a brownfields covenant not to sue agreement
becomes effective upon signing of the agreement before the applicant has achieved a liability endpoint,
which, once achieved, will trigger statutory protection under c. 21E, §5C.
Additional Resources
Brownfields Redevelopment Toolbox: A Guide for Massachusetts Communities
http://www.mass.gov/eea/docs/dep/cleanup/bftool.pdf
Brownfields Liability Relief
http://mgcmtraining.mass.gov/eea/agencies/massdep/cleanup/programs/brownfields-liabilitv-relief.html
Brownfields Covenant Program
http://www.mass.gov/ago/doing-business-in-massachusetts/economic-development/brownfields-cove-
nant-program/
Cleanup Sites and Locations (access the Waste Site Database and file viewer)
http://www.mass.gov/eea/agencies/massdep/cleanup/sites/
Massachusetts Oil and Hazardous Material Release Prevention and Response Act (Chapter 21 E)
https://malegislature.gov/Laws/GeneralLaws/Partl/Titlell/Chapter21E
Massachusetts Contingency Plan or MCP (310 CMR 40.0000)
http://www.mass.gov/eea/agencies/massdep/cleanup/regulations/massachusetts-contingencv-plan.html
Agency Contacts
For more information about Massachusetts' cleanup program, contact:
Rodney Elliott
MassDEP Brownfields Coordinator
Email: rodney.elliott@state.ma.us | Telephone: (617) 292-5523
Main Agency Website: http://www.mass.gov/eea/agencies/massdep/cleanup/programs/
Betsy Harper
Assistant Attorney General, Deputy Division Chief, Environmental Protection Division
Office of the Attorney General
Email: betsy.harper@state.ma.us | Telephone: (617) 963-2426
Main Agency Website: http://www.mass.gov/ago/doing-business-in-massachusetts/economic-develop-
ment/brownfields-covenant-program/
14 | Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action'
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NEW HAMPSHIRE
NEW HAMPSHIRE
DEPARTMENT OF
Environmental
Services
Program Overview
The New Hampshire Department of Environmental
Services' (DES) Brownfields Covenant Program, estab-
lished in 1996 by the New Hampshire Legislature,
provides incentives in the form of liability protections for
the investigation, cleanup, and redevelopment of contami-
nated properties by persons who did not cause or contrib-
ute to the contamination. An eligible person can obtain a
covenant not to sue from the New Hampshire Department
of Justice (DOJ) and a certificate of completion from the
DES when the person performs site investigations and
remedial actions in accordance with DES cleanup require-
ments.
The New Hampshire brownfields statute contains specif-
ic public notice and participation requirements. When
a participant submits an application to the Brownfields
Covenant Program, the participant also must provide a
copy of the application to the municipality in which the
property is located and send a notice of the application
to the owners of all properties abutting the site that will
be cleaned up under the program. In addition, when the
participant submits a proposed remedial action plan to
DES, public notice of the plan and an announcement for
a 30-day public comment period must be published in a
local newspaper. The statute also requires that a public
information meeting be held when there is significant
environmental impact.
Covenants Not to Sue and
Certificates of Completion
The Brownfields Covenant Program provides liability
protections for property owners and prospective purchas-
ers of property who did not cause or contribute to the
contamination on the site, and who are willing to under-
take the necessary site investigation and cleanup outlined
within the Brownfields Covenant Program. Participants
who investigate and clean up the site in accordance with
DES requirements can obtain a covenant not to sue from
the NH DOJ and a certificate of completion from DES.
These documents often provide the needed assurances
to developers and lenders that environmental and finan-
cial risks at a site were adequately addressed.
Brownfields Covenant Program
Process Summary
The applicant submits an Eligibility
Determination Application to DES.
DES reviews the application and
issues an Eligibility Determination
within 30 days.
* The participant submits a site
investigation work plan to DES. After
DES reviews and approves the work
plan, the participant performs the site
investigation and data analysis.
At any stage in the Brownfields
Covenant Program process, if DES
concludes that cleanup goals are fully
attained, DES issues a certificate of
no further action. DES can issue a
certificate of no further action, if no
remedial action is required.
If the site investigation reports
confirm site contamination, the
participant submits a remedial
action plan. Public notice of the plan
is published, and a 30-day public
comment period is announced. If
approved, DES issues a notice of
approved remedial action plan.
The participant implements the
remedial action plan and submits a
completion report to DES.
Upon completion of site cleanup
and DES approval of a completion
report, DES issues a certificate
of completion. A certificate of
completion may include conditions
such as activity and use restrictions,
environmental monitoring
requirements, and routine site
maintenance requirements.
^ The participant records the covenant
not to sue and certificate of
(continued on next page)
Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action'
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Specific liability protections in the program include:
Site investigation and pre-remedial activities conduct-
ed at the property during participation in the program
do not trigger liability for remediation of pre-existing
contamination.
(continued from previous page)
completion in the registry of deeds
for the county in which the property is
located.
New Hampshire DOJ issues a
covenant not to sue.
An eligible person is not liable for the remediation of
additional contamination or increased environmen-
tal harm caused by site investigation or pre-remedial
activities, unless attributable to negligence or reckless
conduct by the eligible person.
The covenant not to sue provides liability protection for contamination addressed by an approved
remedial action plan.
The covenant not to sue is transferable to other eligible persons. The conditions for transfer to new
persons may vary depending on the status of site cleanup at the time of transfer.
After the site cleanup is complete and DES approves the eligible person's completion report, DES issues
a certificate of completion that may include conditions such as activity and use restrictions, environmen-
tal monitoring requirements, and routine site maintenance requirements.
If the eligible person cannot complete the site cleanup, the covenant not to sue provides protection from
liability as long as the site is stabilized to the satisfaction of DES, and the site is not left in worse condi-
tion than it was before cleanup started.
Additional Resources
New Hampshire's Brownfields Program
http://des.nh.gov/organization/divisions/waste/hwrb/sss/brownfields/index.htm
New Hampshire's Brownfields Covenant Program
http://des.nh.gov/organization/commissioner/pip/factsheets/rem/documents/rem-8.pdf
Brownfields Covenant Program: Application/Approval Process
http://des.nh.gov/organization/divisions/waste/hwrb/sss/brownfields/documents/bf covenant flowchart.pdf
Investing in New Hampshire's Future, Rebuilding Brownfields Today: An Overview of the New Hampshire
Brownfields Program
http://des.nh.gov/organization/commissioner/pip/publications/wmd/documents/wmd-06-3.pdf
New Hampshire Statutes: Chapter 147-F: Brownfields Program
http://www.gencourt.state.nh.us/rsa/html/nhtoc/nhtoc-x-147-f.htm
New Hampshire Code of Administrative Rules: Env-Or 800, Brownfields Program Under RSA 147-F
http://des.nh.gov/organization/commissioner/legal/rules/documents/env-or800.pdf
Agency Contact
For more information about New Hampshire's Brownfields Covenant Program, contact:
Michael McCluskey, PE.
Email: michael.mccluskey@des.nh.gov | Telephone: (603) 271-2183
Main Agency Website: http://des.nh.gov/
16 | Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action'
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RHODE ISLAND
Program Overview
The Rhode Island Department of Environmental Manage-
ment (RIDEM)'s Voluntary Cleanup Program (VCP)
encourages the cleanup of contaminated sites as part of
its brownfields process. Remediation regulations define
specific documents that are needed, or may be needed,
as part of the voluntary cleanup process. These include:
Notification of release
Public notice (if more field work is necessary)
Site investigation work plan (voluntary, but not neces-
sary)
Site investigation report
Public notice
Remedial action work plan
Remedial action
Closure report; and, if applicable
Environmental land use restriction
Depending on the site conditions and the amount or type
of contamination, other regulations also may apply.
Letter of Compliance or No Further
Action Letter, or Remedial Agreement
with Covenant Not to Sue
After submitting a site investigation report, completing
public notice requirements, and receiving a remedial
decision letter (RDL) from RIDEM, a responsible party
that participates in Rhode Island's voluntary cleanup
program may: (1) enter into a remedial agreement with
RIDEM that includes a covenant not to sue, contribution
protection, and a description of the remedial actions; or
(2) submit a remedial action work plan to RIDEM and
complete a site remediation. Upon successful completion
of the remedial action and submittal of a closure report,
RIDEM issues a letter of compliance or a no further action
letter. If long-term monitoring is required, RIDEM issues
an interim letter of compliance.
RIDEM also provides liability protection for a bona fide
prospective purchaser (BFP) by issuing a covenant not to
sue in a remedial agreement. The remedial agreement is
RHODE ISLAND
VCP Process Summary
The applicant submits a notification
of hazardous materials release form
within 15 days of knowledge of a
release. Rl OEM's receipt of this form
marks the beginning of the state
process and RIDEM's requirement of
enrolling in the state program.
RIDEM reviews the documentation
submitted. RIDEM issues one of
three letters:
Letter of responsibility with a
requirement to conduct a site
investigation report (SIR)
Voluntary procedure letter with a
requirement to conduct a SIR
Non-jurisdictional letter indicating
that no SIR or further action is
required.
The applicant submits a site
investigation work plan (SIWP) for
RIDEM's approval.
After approval of the SIWP,
the applicant conducts the site
investigation and submits a site
investigation report (SIR) to RIDEM.
RIDEM issues a program letter
indicating that site investigation is
complete but that public notice must
be performed.
The applicant meets public notice
requirements. RIDEM issues a
remedial decision letter (RDL)
indicating that a SIR and public notice
are complete and that a remedial
action work plan should be submitted.
After receipt of a RDL, the applicant
may enter into a remedial agreement
with RIDEM. The remedial
agreement includes a covenant
(continued on next page)
Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action'
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a legally binding document that establishes liability protec-
tion for a bona fide prospective purchaser (BFP) from any
known existing contamination at a site as long as the BFP
brings the property into compliance with the state's remedi-
ation regulations.
In addition to an exemption from liability provided for in R.I.
Statute 23-19.14-7, the state and a person who received a
remedial decision letter may enter into a remedial agree-
ment that includes a covenant not to sue and contribution
protection. The remedial agreement describes the agreed
upon remedial actions and is assignable, as provided.
Whenever the state enters into a remedial agreement, the
liability to the state of each party to the agreement, includ-
ing any future liability to the state, arising from the release
or threatened release that is the subject of the agreement,
is limited as provided in the agreement pursuant to a
covenant not to sue. The final covenant not to sue may, at
the discretion of the state, be transferred to successors or
assignees that are not otherwise found to be a responsible
party under R.I. Statute 23-19.16-6. The covenant not to
sue may provide that future liability to the state or a person
who is under the remedial agreement may be limited to
the same proportion as that established in the original
agreement. A remedial agreement is distinct from a letter
of compliance, and the absence of a remedial agreement will not affect or compromise exemption to liability
provided for in R.I. Statute 23-19.14-7.
Additional Resources
Rhode Island DEM Site Remediation Program
http://www.dem.ri.gov/programs/wastemanagement/site-remediation/
Rules and Regulations for the Investigation and Remediation of Hazardous Material Releases (Remedia-
tion Regulations)
http://www.dem.ri.gov/pubs/regs/regs/waste/remreg11.pdf
Rhode Island Brownfields Program
http://www.dem.ri.gov/brownfields/
Frequently Asked Questions About Liability Protection
http://www.dem.ri.gov/brownfields/steps/faqliabilitv.htm
Remedial Agreements
http://webserver.rilin.state.ri. us/Statutes/title23/23-19.14/23-19.14-7.1. htm
(continued from previous page)
not to sue, contribution protection, a
description of the remedial actions, and
is assignable. OR
- The applicant submits a remedial
action work plan to RIDEM and pays
an application fee.
i RIDEM issues a remedial approval
letter for simple remedies or an order
of approval for complex, engineered
remedies.
The applicant conducts the remedial
action and submits a closure report,
and if applicable, a draft environmental
land use restriction (ELUR) to RIDEM
for approval.
RIDEM issues a letter of compliance or
a no further action letter. If long-term
monitoring is required, RIDEM issues
an interim letter of compliance.
Agency Contact
For more information about Rhode Island's VCP, contact:
Kelly J. Owens
Associate Supervising Engineer
Email: kelly.owens@dem.ri.gov | Telephone: (401) 222-2797, ext. 7108
Main Agency Website: http://www.dem.ri.gov/
18 | Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Act/on'
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VERMONT
Program Overview
The Vermont Agency of Natural Resources (ANR),
Department of Environmental Conservation, encourages
brownfield reuse projects to accomplish positive environ-
mental and human health impacts while advancing sound
landuse practices. The Brownfields Reuse Initiative's
programs focus on three areas: limitation of environmental
liability, technical assistance, and financial assistance.
The Brownfields Reuse and Environmental Liability Limita-
tion Act (BRELLA) was in acted in July 2008. BRELLA
provides participants with a broad release from state
liability in exchange for cleanup of a contaminated property.
Participation in BRELLA is open to prospective purchas-
ers and innocent current owners, provided that they did
not cause or contribute to the contamination and are not
affiliated with any entity that caused or contributed to the
contamination. BRELLA established the Environmental
Liability Limitation Program.
BRELLA replaces the previous brownfields cleanup law,
known as the Redevelopment of Contaminated Properties
Program. BRELLA preserves many features of the prior law
and adds provisions intended to enable more projects to
access the benefits provided by the brownfields program.
For projects that proceed through cleanup, BRELLA
provides a release that protects the brownfields developer
from the risk of environmental liability for newly discovered
contamination or changes in the regulatory scheme.
Certificate of Completion
VERMONT
Environmental Liability
Limitation Program Process
Summary
Persons interested in applying to
the program attend a pre-application
meeting to provide applicants with
information about the program and
ANR's expectations.
To obtain an eligibility determination,
the applicant submits a completed
application and a non-refundable
$500 application fee. The applicant
receives an eligibility determination
within 30 days.
The applicant submits a contaminant
investigation work plan to ANR at
any time, even prior to the eligibility
determination.
If ANR approves the work plan, the
applicant implements it and submits
a site investigation report.
If the site requires activities to protect
human health and the environment,
the applicant submits a corrective
action plan.
ANR provides public notice about the
plan and property before approving
the corrective action plan.
The applicant implements the
approved corrective action plan and
submits a completion report.
ANR issues a certificate of
completion that contains liability
protection.
Regulatory closure for contaminated property cleanup
typically comes with a caveat, known as a reopener
condition. This condition allows a regulator to reopen a
project to require additional investigation or cleanup at
some future time. Under that scenario, liability for environ-
mental cleanup may never be resolved completely. Partic-
ipation in Vermont's Environmental Liability Limitation
Program provides a way of limiting liability and enables
redevelopment to proceed with the knowledge that legal and financial risks associated with contamination
are put to rest.
Participation in the Environmental Liability Limitation Program provides an alternative to the standard
approach to cleanup. The program closes the reopener loop and resolves the potentially open-ended
cleanup issue by issuing a certificate of completion after participants achieve cleanup goals. The certifi-
Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action" \ 19
-------
cate eliminates reopeners for pre-existing contamination that is discovered after the cleanup; pre-existing
contamination that was not regulated as a hazardous material at the time of the cleanup; and the estab-
lishment of more stringent cleanup standards post-cleanup. In this manner, it limits the developer's liability
to the state for cleanup.
The certificate of completion protects the holder from contribution claims that other persons who could
be held responsible for cleanup may bring against the party enrolled in the state program. Contribution
claims are not unusual due to the strict liability scheme applicable to contaminated properties. This protec-
tion afforded by the certificate of completion provides the brownfields developer with an additional level of
comfort.
The state does not pursue enforcement action against a program participant who is actively engaged in
environmental investigation or cleanup. This enables the state and the developer to work collaboratively
on a mutually acceptable project schedule, rather than having the state dictate the cleanup timeframe.
The benefits that the certificate conveys attach to the property and may be transfered to successor
owners, enhancing the property's value and marketability.
Additional Resources
Brownfields Reuse Initiative
http://dec.vermont.gov/waste-management/contaminated-sites/brownfields
Brownfields Reuse Initiative: Environmental Liability Limitation Program and Benefits
http://dec.vermont.gov/waste-management/contaminated-sites/brownfields/BRELLA
Brownfields Reuse Initiative: Environmental Liability Limitation Program, Application Process
http://dec.vermont.gov/waste-management/contaminated-sites/brownfields/BRELLA/application
Brownfields Reuse Initiative: BRELLA Statutes
http://dec.vermont.gov/waste-management/contaminated-sites/brownfields/BRELLA/statutes
Agency Contact
For more information about Vermont's Brownfields Reuse and Environmental Liability Limitation Program,
contact:
Patricia Coppolino
Email: patricia.coppolino@vermont.gov | Telephone: (802) 249-5822
Main Agency Website: http://anr.vermont.gov/
20 | Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action'
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Camden, A/J, a city that has undertaken numerous brownfields cleanups
Before photo of the former Aratex Service Blakely Uniform company, Trenton, NJ
Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action" | 21
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NEW JERSEY
Program Overview
The Site Remediation Reform Act (SRRA) of 2009 made
sweeping changes to the way that brownfields and other
contaminated sites are remediated in New Jersey. The
SRRA established the affirmative obligation for respon-
sible parties to remediate contaminated sites in a timely
manner by creating a new category of remediation profes-
sionals known as Licensed Site Remediation Profes-
sionals (LSRPs). Effective May 7, 2012, when the LSRP
program was fully implemented, all remediating parties
were required to retain an LSRP and remediate their site
under the new LSRP paradigm, regardless of when the
cleanup was initiated.
An LSRP is a qualified environmental professional
licensed by New Jersey's Site Remediation Profession-
al Licensing Board to conduct the remediation of sites
in New Jersey. Every LSRP is bound by a strict code of
ethics, violation of which could result in the assessment of
penalties and the suspension or revocation of the LSRP's
license.
Under the LSRP paradigm, the LSRPs implement the
environmental site assessment, cleanup, and final site
closeout in accordance with New Jersey's administra-
tive regulations for the LSRP program. The New Jersey
Department of Environmental Protection (NJDEP) works
with LSRPs and persons responsible for conducting
remediation to ensure that sites undergoing remediation
are protective of public health and safety, and the environ-
ment. New Jersey's former voluntary cleanup program no
longer exists.
LSRP Program Process Summary
The remediating party's LSRP
submits the SRRA form to NJDEP.
The remediating party initiates
and completes site cleanup under
the direction of an LSRP, who is
responsible for overseeing the
environmental investigation, cleanup,
and final site closeout. The LSRP
must meet all NJDEP timeframes.
The LSRP submits forms and reports
to NJDEP as the site reaches
remediation milestones.
NJDEP inspects documents that
the LSRP submits. In some cases,
NJDEP may conduct a more detailed
review. This allows NJDEP to monitor
remediation progress.
NJDEP works with person
responsible for conducting the
remediation to help ensure
compliance with the NJDEP's
remediation rules.
If after receiving compliance
assistance from NJDEP, a regulatory
timeframe or extension is missed,
NJDEP may take enforcement
actions and levy penalties.
After remediation is complete, the
LSRP issues a remedial action report
to NJDEP and an RAO letter to the
PRCR.
Under the LSRP program, the person responsible for
conducting the remediation (PRCR) pays a nonrefund-
able annual remediation fee, document review fees,
remediation permit fees, and oversight costs to NJDEP.
This person may apply for a rebate if such costs and fees amount to more than 7.5 percent of the cost
of remediation. The LSRP hired by the responsible party must comply with all remediation statutes,
rules, and regulations, and meet all NJDEP timeframes and deadlines. Sites that are not in compliance
with NJDEP regulations or violate a mandatory timeframe are subject to direct NJDEP oversight. This
oversight requires the PRCR to establish a remediation funding source in the amount equal to the total
remediation cost, and involves a much higher level of NJDEP control over the remediation.
22 | Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action'
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Response Action Outcome
NJDEP issues no further action letters only for specific cases, usually unregulated heating oil. For other
sites, the response action outcome (RAO) letter that the LSRP issues is considered the final remediation
document and is recognized by the state as equivalent to the no further action letter that NJDEP issued
prior to the SRRA.
The SRRA established statutory liability relief for certain parties undertaking brownfields projects. Private
developers must conduct Diligent Inquiry (called all appropriate inquiries at the federal level) prior to
acquiring the property to begin the process of securing state liability protections. The developer must then
follow the LSRP process for site cleanup. Once remediation activities are complete and the LSRP issues
a RAO letter, the developer has a defense against third party damage claims and will not be considered a
responsible party. A covenant not to sue applies to the cleanup activities that are completed in accordance
with state requirements. These protections go into effect when the LSRP issues the response action
outcome letter to the PRCR and files the RAO with NJDEP. NJDEP may rescind an RAO and can audit
an RAO within three years. An LSRP also may be required to rescind an RAO if the RAO is found to be
no longer protective of human health and the environment.
Additional Resources
Brownfield Liability
http://www.nj.aov/dep/srp/brownfields/liabilitv.htm
NJ Site Remediation Program
http://www. nj.gov/dep/srp/
Overview of the LSRP Program
http://www.nj.gov/dep/srp/srra/lsrp/lsrp program overview.pdf
Jersey's Site Remediation Professional Licensing Board
http://www.nj.gov/lsrpboard/
Administrative Requirements for the Remediation of Contaminated Sites
http://www.nj.gov/dep/rules/rules/njac7 26c.pdf
Technical Requirements for Site Remediation
http://www.state.ni.us/dep/rules/rules/niac7 26e.pdf
Agency Contact
For more information about New Jersey's LSRP and Brownfields Programs, contact:
Ken Kloo
Director, Remediation Management
Email: ken.kloo@dep.nj.gov | Telephone: (609) 292-1250
Main Agency Website: http://www.nj.gov/dep/
Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action" \ 23
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NEW YORK
NEW YORK
STATE OF
OPPORTUNITY
Department of
Environmental
Conservation
Program Overview
The New York Department of Environmental Conserva-
tion's (DEC) Brownfield Cleanup Program (BCP) began in
2003. The goal of the BCP is to encourage private sector
cleanups of brownfields and to promote the redevelop-
ment of brownfields as a means to revitalize economically
blighted communities. The BCP provides an alternative to
developing greenfields and is intended to remove some of
the barriers to, and provide tax incentives for, the redevel-
opment of urban brownfields.
Reforms to the BCP on July 1, 2015, included establish-
ment of a new BCP-EZ program that provides applicants
who clean up lightly contaminated sites a path to a liability
release. Liability release is in the form of a certificate of
completion. However, because the law requires DEC to
promulgate regulations before the program is implement-
ed, the BCP-EZ program likely will not be available until
fall 2016.
Sites eligible for the BCP are any real property where
a contaminant is present at levels exceeding the soil
cleanup objectives or other applicable standards adopted
by DEC.
Ineligible sites include: Class 1 or 2 sites with viable
responsible parties on the Registry of Inactive Hazard-
ous Waste Disposal Sites.
National Priorities List (NPL) sites.
Permitted Resource Conservation and Recovery Act
(RCRA) Corrective Action sites, that are owned by a
viable responsible party; "interim status" facilities are
eligible for the BCP program.
Sites subject to a cleanup order under Article 12 of
the Navigation Law (oil spill prevention, control, and
compensation) or under Title 10 of New York Environ-
mental Conservation Law Article 17 (control of the bulk
storage of petroleum).
Sites subject to any ongoing state or federal enforce-
ment actions regarding solid waste, hazardous waste,
or petroleum.
When applicants enter into a brownfield cleanup agree-
ment with DEC, their obligations depend on whether they
are accepted as a volunteer or participant. Applicants are
BCP Process Summary
The applicant submits a pre-
application worksheet and attends a
meeting with the DEC point of contact
to review the benefits, requirements,
and procedures for completing a BCP
project.
The applicant submits an application
form to DEC for review and approval.
DEC reviews the application for
completeness and site eligibility.
Once DEC approves the application,
both parties sign a brownfield cleanup
agreement (BCA) whereby the
applicant commits to undertaking
remedial activities under DEC'S
oversight.
A participant must evaluate and
implement an effective remedy that
addresses onsite contamination and
any contamination that migrated
offsite. A volunteer must address
onsite contamination and prevent
further migration of contamination to
offsite properties.
Within 20 days of the executed
BCA, the applicant submits a citizen
participation plan for approval by
DEC before any other work plans or
reports can be approved. Additional
citizen participation occurs at several
milestones throughout the BCP
project.
The applicant performs all
environmental investigation and
cleanup activities in accordance with
a work plan or design documents
approved by DEC.
The applicant submits to DEC a
report documenting the completion
of work. A Qualified Environmental
(continued on next page)
24 | Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action'
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(continued from previous page)
Professional or a Professional Engineer
registered in the State of New York must
certify the report. Upon DEC approval,
the applicant receives a certificate of
completion.
considered "volunteers" if they did not contribute to or
cause the contamination but subsequently came to own
the property. Applicants are "participants" in the BCP if
they owned or operated the site at the time of disposal or
discharge of contaminants or failed to take reasonable care
to stop continuing releases or prevent further releases.
Certificate of Completion
DEC issues a certificate of completion after a participant
or volunteer completes a BCP project and DEC determines that the remedial action objectives defined in
the decision document were achieved. The certificate allows the applicant to receive a limitation of liability
from the state that applies to contamination identified by the remedial program and addressed under the
BCP.
A certificate of completion also makes the applicant eligible to apply for BCP tax credits that may vary
depending on when the BCP accepted the site.
Additional Resources
DEC Brownfield and State Superfund Programs
http://www.dec.nv.aov/chemical/84286.html
Brownfield Cleanup Program
http://www.dec.nv.aov/chemical/8450.html
BCP Application Form and Guidance
http://www.dec.nv.gov/docs/remediation
hudson pdf/bcpapplication.pdf
BCP Work Plans and Report Documents
http://www.dec.nv.gov/chemical/100781.html
BCP Certificate of Completion Process
http://www.dec.nv.gov/docs/remediation
hudson pdf/cocprocess.pdf
Citizen Participation Plan Handbook
http://www.dec.nv.gov/docs/remediation
hudson pdf/der23.pdf
Agency Contact
For more information about New York's BCP, contact:
Theodore Bennett
New York Department of Environmental Conservation
Email: theodore.bennett@dec.ny.gov | Telephone: (518) 402-9764
Main Agency Website: http://www.dec.nv.gov/
Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action" \ 25
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26 I Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action'
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REGION 3
Baltimore Citgo, Baltimore, MD
Dome being placed on the APUS Information Technology Center, Ranson WV
Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action" | 27
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DELAWARE
Program Overview
The Delaware Hazardous Substance Cleanup Act (HSCA)
provides the Delaware Department of Natural Resources
and Environmental Control (DNREC) with the authority
to provide incentives for, as well as enforce requirements
governing, the investigation and cleanup of property that
is contaminated by the release of a hazardous substance.
DNREC administers the state's Brownfields Develop-
ment Program (BDP) and its Voluntary Cleanup Program
(VCP). The HSCA also provides DNREC the authority to
issue Prospective Purchaser Agreements (PPA). PPAs
also are available only to parties that are not responsible
for previous contamination at a property. The Delaware
VCP is available to all property owners.
The Brownfields Development Program is available only
to prospective purchases of contaminated properties
that are not responsible for any previous contamination
at the property. The BDP encourages the cleanup and
redevelopment of potentially impaired vacant, abandoned,
or underutilized properties. A party seeking to develop a
brownfield property under the BDP enters into a Brown-
fields Development Agreement (BDA) with DNREC's Site
Investigation and Remediation Section (SIRS) to perform
an investigation and, if necessary, a remedial action or
remedy to address the risks that past releases of hazard-
ous substances pose at the site. A BDA is available only
to parties that did not previously own or operate the facili-
ty. The BDP offers financial assistance and liability protec-
tion from past releases once the purchaser or developer
enters into the BDP.
PPAs also are available to parties who never owned or
operated the facility. There is no financial assistance
under the PPA program, and liability protection for all past
releases is achieved once a certification of completion of
remedy (COCR) is obtained and filed with the Recorder of
Deeds. The PPA is a viable program for sites that are not
certified as a brownfield.
BDP Process Summary
The brownfields purchaser or
developer (applicant) submits the
BDA application to DNREC.
A scoping meeting is held and the
applicant prepares a Sampling and
Analysis Plan for DNREC review.
The applicant conducts sampling
plus interim action, if necessary, and
prepares a Brownfield Investigation
(BFI) report for DNREC review.
The applicant and DNREC sign the
BDA prior to the applicant taking title
to the property; the state will provide
no financial assistance in the way
of reimbursement of investigation or
cleanup costs until the BDA is signed.
Also, the state will not reimburse
for remedial action costs until title is
taken by the applicant.
The applicant must post the Proposed
Plan and Final Plan of Remedial
Action for public comment.
The applicant implements the
remedial action.
If there are land use restrictions or
technical limitations, the applicant
obtains an Environmental Covenant
from DNREC to document the
restrictions.
If requirements are met, DNREC
issues a COCR.
(continued on next page)
The VCP is available to site owners and all parties who might be liable for the contamination of a property,
but who wish to settle their environmental liabilities with the state. The current owner of a contaminated
property may volunteer to clean up the site before DNREC orders a cleanup under HSCA. This can elimi-
nate the need for costly litigation and allow the applicant to negotiate and choose a qualified environmen-
tal consultant. After DNREC accepts the VCP application, parties sign a VCP agreement to allow DNREC
28 | Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action'
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to oversee the investigation and cleanup of the site by
the chosen environmental consultant. The applicant/site
owner agrees to pay the costs of DNREC's oversight,
which requires payment of a $5,000 deposit.
Certification of Completion of
Remedy/No Further Action Letter
Once the BDA is executed, the BDP offers complete liabil-
ity protection at the state level for contamination to quali-
fied brownfield developers. The brownfield property owner
or developer must conduct the remedy as specified in the
Final Plan of Remedial Action approved by DNREC prior
to site development. Once the remedy is in place, the
owner or developer may request a COCR, which provides
liability protection as long as the owner or developer
follows the requirements of the COCR. The BDP offers
liability protection for specific geographic or environmental
media operable units identified at the property.
Under the VCP, DNREC may issue a COCR after the site
owner successfully completes all activities required in the
Scope of Work and the Sampling and Analysis Plan, and
no additional activities are required. The COCR resolves
owner liability to the DNREC for conditions known by
the department to exist on the site at the time the COCR
is issued. However, DNREC reserves the right to bring
appropriate enforcement action if remediation was not
completed as described in the work plan or if the work
performed no longer is protective.
DNREC and HSCA also allow for no further action (NFA) letters for sites that may or may not have a
release but pose no risk to human health and the environment; however, speaking with a DNREC repre-
sentative to gain a full understanding of the letter's specific provisions for liability relief is recommended.
Additional Resources
Delaware Hazardous Substance Cleanup Act (HSCA)
http://delcode.delaware.gov/title7/c091/index.shtml
Site Investigation and Restoration Information
http://www.dnrec.delaware.gov/dwhs/SIRB/Pages/default.aspx
Brownfields-Related Documents
http://www.dnrec.delaware.gov/dwhs/SIRB/Pages/Brownfields.aspx
Site Investigation and Restoration-Related Laws, Regulations, Guidance and Policies
http://www.dnrec.delaware.gov/dwhs/sirb/Pages/SIRB Laws Regulations Guidance Policies.aspx
VCP-Related Documents
http://www.dnrec.delaware.gov/dwhs/SIRB/Pages/Voluntarv Cleanup Program.aspx
(continued from previous page)
VCP Process Summary
The applicant submits a VCP
Application to DNREC.
The applicant and DNREC enter into a
VCP Agreement.
The applicant submits an Investigation
Work Plan to DNREC that specifies
the steps necessary to perform the site
investigation.
The applicant submits the Site
Investigation Report to DNREC.
If cleanup is not required, DNREC
issues an NFA letter.
If cleanup is required, the applicant
submits a cleanup approach and
remedy evaluation to DNREC.
- The applicant must make the cleanup
work plan available for public comment.
The applicant implements the final
cleanup plan.
If cleanup is attained, DNREC issues a
COCR.
Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action" \ 29
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Agency Contact
For more information about Delaware's BDP and VCP, contact:
James Poling or Paul W. Will
Telephone: (302) 395-2600 | Fax: (302) 395-2601
Email: james.poling@state.de.us | paul.will@state.de.us
Main Agency Website: http://www.dnrec.delaware.gov/Pages/Portal.aspx
30 | Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Act/on'
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DISTRICT OF COLUMBIA
Program Overview
The District of Columbia's Department of Energy and
Environment (DOEE) established the Voluntary Cleanup
Program (VCP) to encourage private parties to volun-
tarily clean up contaminated properties. DOEE's Land
Remediation and Development Branch (LRDB) admin-
isters the program. DOEE is responsible for determining
the eligibility of sites for voluntary cleanups and brownfield
development incentives, establishing cleanup standards,
overseeing cleanup activities, and determining the finality
of the cleanup of contaminated properties.
Any property owner, developer, or entity that did not
cause or contribute to the contamination at a property
but wishes to clean it to established standards, is eligible
to participate in the VCP as long as the site is not on the
National Priorities List or is not otherwise regulated under
another DOEE cleanup program.
Certificate of Completion
After LRDB reviews the Cleanup Completion Report for
a site and determines that the applicant fully implement-
ed the plan and the cleanup meets applicable cleanup
standards, LRDB issues a certificate of completion. This
document releases the applicant from further liability
under the District of Columbia Brownfield Revitalization
Amendment Act for any contamination identified in the
environmental assessment for the property. The appli-
cant also is released from liability under any other District
law or regulation for cleanup of the eligible property The
applicant will not be subject to a contribution action insti-
tuted by any responsible party at the property. Long-term
monitoring and maintenance may be necessary for the
property under the LRDB's direction. LRDB determines
the permissible uses of the property and states them in
the certificate of completion.
Additional Resources
Land Remediation and Development Branch, DOEE
http://doee.dc.aov/service/land-remediation-and-development
VCP Application Forms
http://doee.dc.aov/service/participate-voluntarv-clean-
up-proaram
DC***
.gov
VCP Process Summary
Before submitting an application, the
applicant conducts a comprehensive
site assessment that meets the
requirements in the DOEE VCP
Comprehensive Site Assessment
Protocol.
Interested parties submit an
application, site assessment reports
for the contaminated site, and a
$10,000 application fee.
LRDB reviews the application and
notifies the applicant of eligibility
within 90 days, including a 21-day
public comment period.
The applicant submits a voluntary
cleanup action plan (VCAP) within
30 days of the applicant's eligibility
determination; LRDB verifies that the
plan addresses all contamination at
the site.
The proposed VCAP is published for
a 21-day public comment period.
Within 90 days of submittal, LRDB
issues an approval letter directing the
applicant to implement the approved
VCAP.
The applicant implements the VCAP
with LRDB oversight.
Once an applicant implements
the remedy outlined in the VCAP,
the applicant submits a Cleanup
Completion Report within 30 days of
completion.
LRDB reviews the Cleanup Completion
Report and determines that the plan
was fully implemented and applicable
cleanup standards are met.
After a 21-day public comment
period, LRDB issues a certification of
completion.
Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Act/on" | 31
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VCP Frequently Asked Questions
http://doee.dc.gov/service/vcp-frequentlv-asked-questions
VCP Flowchart
http://doee.dc.gov/publication/vcp-flowchart
Agency Contact
For more information about the District of Columbia's VCP, contact:
James Sweeney
Chief, Land Remediation and Development Branch
Email: james.sweeney@dc.gov | Telephone: (202) 535-2289
Main Agency Website: http://doee.dc.gov/
32 | Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action'
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MARYLAND
Program Overview
The Maryland Department of the Environment (MDE) Land
Management Administration's Land Restoration Program
administers the Voluntary Cleanup Program (VCP)
to provide state oversight for the voluntary cleanup of
properties contaminated with hazardous substances. The
program's goal is to increase the number of sites cleaned
up, by streamlining the cleanup process while ensuring
compliance with existing environmental regulations.
Any property contaminated or perceived to be contam-
inated by controlled hazardous substances or oil is eligi-
ble for participation in the VCP. Eligible properties also
include sites listed on the Comprehensive Environmental
Response, Compensation and Liability Information System
(CERCLIS, now Superfund Enterprise Management
System, or SEMS); sites listed on CERCLIS/SEMS and
designated no further remedial action planned by the
federal government; and sites under active enforcement by
the MDE when the applicant is an inculpable person.
No Further Requirements
Determination and Certificate of
Completion
The VCP provides two types of final site approval documents
for properties contaminated or perceived to be contaminat-
ed by controlled hazardous substances or oil: a no further
requirements determination and a certificate of completion.
MDE issues a no further requirements determination for
an eligible property when MDE approves the applica-
tion package and determines that a remedial action plan
(RAP) is not required. The determination states there
are no further requirements related to the investigation of
controlled hazardous substances or oil at the property. The
determination is based on VCP specific land use and may
contain certain land use requirements.
If the property owner wants to change the permissible
use of the property from that specified in the no further
requirements determination (e.g., change from commercial
to residential use), the owner is responsible for the cost
of cleaning up the property to the appropriate standard
associated with the new use. This requires submission of a
new application to the VCP.
MARYLAND
VCP Process Summary
Participants in the VCP must submit
a completed application; Phase I
and Phase II environmental site
assessments; a $6,000 application fee
(unless MDE determines that a lesser
amount would be sufficient); and other
information to evaluate the eligibility of
the applicant and the property.
If the application is approved and
no contamination is found at the
property, MDE may issue a no further
requirements determination for the
property. If remediation is necessary,
MDE may advise the applicant to
develop a proposed remedial action
plan (RAP).
If required, the participant submits a
proposed RAP containing a workplan
and implementation schedule for MDE
review and approval.
The participant publishes a notice of the
proposed RAP, including the location
of a public information meeting. MDE
approves or rejects the RAP.
MDE issues a RAP approval letter that
states that it will issue a certificate of
completion after implementation of the
approved plan.
The participant implements and
completes the approved RAP in
accordance with the approved
schedule.
MDE issues the certificate of
completion after verifying completion of
the requirements of the approved RAP.
MDE issues the no further requirements
determination when MDE has no
further requirements regarding the
investigation of controlled hazardous
substances or oil at the property.
Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action" \ 33
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A property owner may request an alteration of the no further requirements determination once it is record-
ed in the land records office. The property owner must make this request in writing, pay a $2,000 fee, and
provide documentation regarding the request. The participant and any subsequent owners of a property
subject to a no further requirements determination will continue to be protected from liability in the event
of any violation of the conditions placed on the use of the property, provided that the participant and any
subsequent owners did not cause or contribute to the violation.
The determination does not prevent MDE from taking action against inculpable or responsible persons
for new or exacerbated contamination, or for previously undiscovered contamination or imminent and
substantial threats to public health or the environment.
MDE issues a certificate of completion for an eligible property following the satisfactory completion of an
approved RAP. Upon submission of the RAP to MDE, the applicant must complete certain public partici-
pation requirements. If the proposed RAP is approved, MDE issues a RAP approval letter. If the applicant
implements the RAP, completes the RAP to the satisfaction of MDE, and achieves the cleanup criteria
and/or remedial objectives, the participant receives a certificate of completion. The participant is released
from further liability for the remediation of the eligible property for any contamination identified in the
environmental site assessment. The certificate of completion is based on VCP specific land use and may
contain certain land use requirements or restrictions.
A property owner may request an alteration of the certificate of completion once it is recorded in the land
records office. The property owner must make this request in writing, pay a $2,000 fee, and provide
documentation regarding the request. The participant and any subsequent owners of a property subject
to a certificate of completion will continue to be protected from liability in the event of any violation of the
conditions placed on the use of the property, provided that the participant and any subsequent owners did
not cause or contribute to the violation.
The certificate of completion does not prevent MDE from taking action against inculpable or responsible
persons for new or exacerbated contamination, or for previously undiscovered contamination or imminent
and substantial threats to public health or the environment.
Additional Resources
Maryland's Voluntary Cleanup Program
http://www.mde.state.md.us/programs/Land/MarvlandBrownfieldVCP/MDVCPInformation/Pages/
programs/landprograms/errp brownfields/vcpinfo/index.aspx
Overview of the VCP Process
http://www.mde.state.md.us/programs/Land/MarvlandBrownfieldVCP/MDVCPInformation/Pages/
programs/landprograms/errp brownfields/vcp info/vcp application.aspx
Facts About Voluntary Cleanup and Brownfields Program
http://www.mde.marvland.gov/programs/Land/MarvlandBrownfieldVCP/mapping/Documents/www.mde.
state.md.us/assets/document/VCP and Brownfields Program1.pdf
Voluntary Cleanup Program Frequently Asked Questions
http://www.mde.marvland.gov/programs/Land/MarvlandBrownfieldVCP/Pages/programs/landprograms/
errp brownfields/fags/index.aspx
Agency Contact
For more information about Maryland's VCP program, contact:
Barbara H. Brown
Email: barbara.brown1@maryland.gov | Telephone: (410) 537-3493
Main Agency Website: http://www.mde.state.md.us/Pages/Home.aspx
34 | Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Act/on'
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PENNSYLVANIA
Pennsylvania
DEPARTMENT OF ENVIRONMENTAL
PROTECTION
Program Overview
Pennsylvania's Land Recycling Program (LRP) encour-
ages the cleanup and redevelopment of older industrial
sites through a number of initiatives. The LRP sets risk
based cleanup standards that are protective of human
health and the environment by considering both the
future use of the property and potential risks from the
release of regulated substances at the property. The LRP
is authorized under Pennsylvania's Land Recycling and
Environmental Remediation Standards Act, or Act 2. Act
2 and the LRP provide potential developers with uniform
cleanup standards, a standardized review procedure by
the Pennsylvania Department of Environmental Protec-
tion (DEP), and release from liability when the cleanup
standards are achieved.
Act 2 VCP Process Summary
The applicant submits a notice of
intent to remediate to DEP, and posts
public notices of its intent to clean up a
contaminated property.
The applicant conducts an
environmental site assessment of the
site.
The applicant conducts remediation
based on a specific cleanup standard
or standards provided under state law.
The applicant submits a final report
to DEP for review and approval, and
posts public notices.
DEP issues a final report approval
letter.
Under Pennsylvania's LRP, or the Voluntary Cleanup
Program (VCP), the owner or purchaser of a contaminat-
ed site chooses the cleanup standard or combination of
cleanup standards for the remediation process to follow.
Uniform statewide health standards enable the remediating party to clearly understand the extent and
cost of site cleanup. The selection of standards assures that a site is protective of its present and future
use. For example, a property used for industrial development need not be as clean as a residential site.
This approach affords a greater degree of flexibility on site redevelopment. Regardless of the standards
selected, the property owner can receive liability relief for the property when the standard is attained.
While Act 2 provides releases from state liability for site owners or developers, another companion law,
Act 3, extends liability protection to financiers, such as economic development agencies, lenders, and
fiduciaries (i.e., those who act as a trustee, executor, or administrator for the benefit of another person).
These provisions are intended to reduce the liability concerns that may inhibit involvement with contami-
nated or abandoned sites.
Final Report Approval
The final report, developed by the applicant following the conduct of all remediation activities at a proper-
ty documents the site characterization and cleanup conducted, and demonstrates the attainment of the
selected cleanup standard. Once DEP issues a final report approval letter, Act 2 grants a release of liabili-
ty for the remediation attainment demonstrated in the report. If the remedy requires post-remediation care
and monitoring (e.g., maintenance of a soil cover cap or operation of drinking water treatment systems),
an environmental covenant that specifies site activity and use limitations may be needed to maintain the
effectiveness of the approved remedy.
Liability relief applies to the contaminants, environmental media, and physical areas addressed in the final
report that meet the cleanup standard. Liability protections include:
Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Act/on" | 35
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Any person demonstrating compliance obtains protection from having to do any future cleanup, unless it
can be shown that the contamination resulted from later actions.
Protection is extended to future owners, any participant in the cleanup, developer, occupiers, successors
or assigns, and public utilities performing work on the property.
Protection under state law from third-party contribution actions and citizen suits also is provided by
the state.
Additional Resources
Pennsylvania Land Recycling Program
http://www.dep.pa.gov/Business/Land/LandRecvcling/Pages/default.aspx#.Vuw7ztlrKt9
Standards, Guidance and Procedures
http://www.dep.pa.gov/Business/Land/LandRecvcling/Standards-Guidance-Procedures/Pages/default.
aspx#.Vz3KmtQrKt8
Brownfield Development Guide
http://www.elibrarv.dep.state.pa.us/dsweb/Get/Document-98042/Brownfield%20Development%20Guide.pdf
Land Recycling Forms and Lists
http://www.dep.pa.gov/Business/Land/LandRecvcling/Forms-Checklists-Notifications/Pages/Forms-and-
Lists, as px
PA DEP PowerPoint Overview of the Land Recycling Program (Voluntary Cleanup Program)
http://files.dep.state.pa.us/EnvironmentalCleanupBrownfields/BrownfieldRedevelopment/BrownfieldRede-
velopmentPortalFiles/2014%20Land%20Recvcling%20Program%20Overview.ppt
Agency Contacts
For more information about the Act 2 VCP or Pennsylvania's LRP, contact:
George Hartenstein
Director, Bureau of Environmental Cleanup and Brownfields
Email: ghartenste@pa.gov | Telephone: (717) 83-1566
Troy Conrad
Land Recycling Program Manager
Email: tconrad@pa.gov | Telephone: (717) 783-7816
Main Agency Website: http://www.dep.pa.gov
36 | Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action'
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VIRGINIA
Program Overview
DGQ
PARTMENT OF '"^^-
The purpose of Virginia Department of Environmental
Quality's (DEQ) Brownfields & Voluntary Remediation
Program (VRP) is to encourage the productive reuse of
lands in the Commonwealth by promoting remediation
and restoration of sites that may otherwise not be cleaned
up or redeveloped. The VRP provides a streamlined
mechanism for site owners or operators to voluntarily
address contamination at sites, with concurrence from the
DEQ, and obtain closure and a final agency decision. The
Virginia Brownfields Program will issue bona fide prospec-
tive purchaser (BFPP) status comfort letters to buyers of
contaminated brownfields properties.
Under the VRP, when remediation activities at a property
are satisfactorily completed, DEQ issues a certification of
satisfactory completion of remediation. Typically, partici-
pation in the VRP and receipt of a certificate are beneficial
to participants in facilitating the sale or productive reuse of
properties.
Certificate of Satisfactory
Completion of Remediation
When a participant in the voluntary cleanup program
achieves the applicable remediation levels or when the
Virginia DEQ determines that no further action is required
at a site, the director issues a certificate of satisfactory
completion of remediation, based on current proper-
ty conditions and available information. DEQ issues a
certificate to a participant when he or she satisfactorily
demonstrates attainment of the remediation levels with or
without the future site use restrictions, when migration of
contamination is stabilized, and when the director concurs
with all work submitted. The certificate contains an outline
of conditions under which it is issued. The certificate
includes a declaration of restrictive covenants that gener-
ally provides:
Restrictions on future use.
Required institutional controls.
Required engineering controls and their maintenance.
The certificate provides immunity to enforcement actions
under the Virginia Waste Management Act, the Virginia State
VIRGINIA DEPARTMENT <
ENVIRONMENTAL QUALITY
VRP Process Summary
The applicant submits a request for
eligibility determination that includes
a completed VRP application, the
Phase 1 registration fee ($2,000) and
other information that assists in the
eligibility determination. DEQ makes
an eligibility determination and notifies
the applicant of its determination.
The participant submits the Phase
2 registration fee ($7,500) upon
concurrence on the site's eligibility.
The site is considered enrolled in the
VRP. The applicant submits a required
maintenance fee ($4,500) after the first
year for active sites in the program.
The applicant submits a
voluntary remediation report (a
site characterization report, risk
assessment, remedial action plan,
documentation of public notice,
and demonstration of completion).
Remediation goals may be established
based on background levels or a risk
assessment. Institutional or engineering
controls (e.g., land use restrictions,
groundwater use restrictions) may be
included in the VRP remediation goals
to facilitate site closure.
DEQ reviews and approves the
remediation plan.
The participant must provide the public
an opportunity to comment on the
proposed remediation.
If DEQ is satisfied that the objectives
of the remedial action plan were met,
the established cleanup standards for
the site were achieved, and migration
of contamination is stabilized, the
DEQ director issues a certificate of
satisfactory completion of remediation.
The VRP process is then complete.
Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action" \ 37
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Water Control Law, the Virginia Air Pollution Control Law, or other applicable Virginia law. The certificate
grants immunity that is limited to site conditions at the time of issuance; these are described in the Volun-
tary Remediation Report (i.e., nature and extent of contamination), and is conditional upon the complete-
ness and accuracy of the information in that report. The certificate also enumerates specific limitations.
If the certificate specifies a use restriction, the certificate and declaration of restrictive covenants must be
recorded with the land records for the site in the Circuit Court where the site is located. If the closure is
unrestricted, recordation of the certificate is optional. The immunity accorded by the certificate applies to
the participant, but also "runs with the land" identified as the site.
Additional Resources
Guidance for the Voluntary Remediation Program Certification of Satisfactory Completion of Remediation
http://www.deq.virginia.gOv/Portals/0/DEQ/Land/RemediationProgramsA/oluntarvRemediationProgram/
vrpcg.pdf
Voluntary Remediation Program Risk Assessment Guidance
http://www.deq.virginia.gov/Programs/LandProtectionRevitalization/RemediationProgram/VoluntarvReme-
diationProgram/VRPRiskAssessmentGuidance.aspx
Voluntary Remediation Program Regulations
http://lis.virginia.gov/000/reg/TOC09020.HTMtfC0160
Model Certification of Satisfactory Completion of Remediation
http://www.deq.virginia.gOv/Portals/0/DEQ/Land/RemediationProgramsA/oluntarvRemediationProgram/
vrpmc042309.doc
Agency Contact
For more information about Virginia's Brownfields and VRP, contact:
J. Meade R. Anderson, CPG
Email: j.meade.anderson@deq.virginia.gov | Telephone: (804) 698-4179
Main Agency Website: http://www.deq.virginia.gov
38 | Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action'
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WEST VIRGINIA
dep
Program Overview
West Virginia's Voluntary Remediation and Redevelop-
ment Act (VRRA) authorized the Voluntary Remediation
Program (VRP). The VRRA was established to encourage
voluntary cleanups of contaminated sites and redevel-
op abandoned and under-utilized properties. Applicants
that remediate sites under the VRP are afforded liability
protections under West Virginia Law.
Under the VRRA, the participant identifies and addresses
potential contamination at a site by conducting a voluntary
remediation that complies with the program's remediation
standards. Brownfield remediation is a special case of
voluntary remediation. Voluntary remediation of brownfield
sites involves the use of public funds for the site assess-
ment or remediation; these cleanups require a higher
degree of public involvement.
Certificate of Completion
A site is eligible to receive a certificate of completion once
the site sampling demonstrates that applicable standards
are met. If a site requires remediation, West Virgin-
ia Department of Environmental Protection (WVDEP)
issues a certificate of completion after the remediation
is complete, and the developer submits a request with a
certified copy of the final report. The certificate of comple-
tion relieves the applicant and all subsequent purchasers
from liability to the state for any further cleanup of previ-
ous contamination. WVDEP has 60 days to approve the
final report and another 30 days to issue a certificate of
completion.
If the applicant receives a notice of disapproval, he or she
may: 1) instruct his or her Licensed Remediation Special-
ist to take the further actions indicated in the notification;
2) appeal the Director's decision to the Environmental
Quality Board; or 3) formally terminate the voluntary
remediation agreement.
Additional Resources
West Virginia Voluntary Remediation Program
http://www.dep.wv.aov/dlr/oer/voluntarvmain/Paaes/
default, aspx
VRP Process Summary
The site owner or operator, developer,
prospective purchaser, or another
interested party submits an application
to WVDEP that includes the
environment site assessment.
The applicant executes a voluntary
remediation agreement with WVDEP.
The voluntary remediation agreement
must provide for:
The services of a Licensed
Remediation Specialist.
Recovery of costs that WVDEP
incurs in excess of fees that the
applicant submitted.
A schedule for payment of
recoverable costs.
Descriptions of the work plan and
other reports that the applicant will
submit.
j A list of applicable environmental
requirements for the site.
Technical standards for work at
the site.
Any engineering or institutional
controls or land use covenants
applicable for the site.
1 Criteria for reopening and
modification of the agreement.
Once the voluntary remediation
agreement is in effect, WVDEP cannot
take any enforcement actions against
the applicant for the contamination
being remediated under the Voluntary
Program, unless there is an imminent
threat to the public.
Brownfields applicants must file a
notice of intent to remediate with the
Director of WVDEP.
(continued on next page)
Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Act/on" | 39
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WV VRRA Guidance Manual
http://www.dep.wv.gov/dlr/oer/voluntarvmain/documents/
vrra%20guidanceversion2-1 .pdf
Voluntary Remediation and Redevelopment Rule
http://www.dep.wv.gov/dlr/oer/voluntarvmain/Documents/
VRRA%20Rule-6 1 2014.pdf
A Plain-Language Guide to Human Health Risk Assess-
ment in the WVVRP
http://www.dep.wv.gov/dlr/oer/voluntarvmain/Documents/
Risk%20Assessment%20Guide.pdf
Licensed Remediation Specialist Program
http://www.dep.wv.gov/dlr/oer/voluntarvmain/lrs/Pages/
LRS.aspx
Land Use Covenants
http://www.dep.wv.gov/dlr/oer/Covenants/Documents/KMZ
Jan%202016.zip
(continued from previous page)
When the applicant completes the
remediation, the applicant must submit
a final report detailing the cleanup
activities and results to VWDEP.
i VWDEP issues a certificate of
completion when the remediation is
complete and the developer or property
owner requests a certified copy of the
final report.
Zip/Environmental%20Covenants%20
Agency Contact
For more information about West Virginia's VRP, contact:
Erin Brittain
Email: erin.r.brittain@wv.gov | Telephone: (304) 368-2000 ext.3728
Main Agency Website: http://www.dep.wv.gov/
40 | Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action'
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REGION 4
Seasons Best Deli, Angier, NC
New wetland at Genetta Park, Montgomery, AL (courtesy of2D Studio)
Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action" | 41
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ALABAMA
ADEN
Alabama Department of Environmental Management
Program Overview
The Alabama Department of Environmental Manage-
ment's (ADEM) Brownfields Redevelopment and Volun-
tary Cleanup Program (VCP) provides oversight for the
voluntary assessment and cleanup of contaminated
brownfield sites. The greatest benefits of this fee-driven
program are the significant liability protections afforded
during and after assessment and cleanup activities.
The Alabama Land Recycling and Economic Redevel-
opment Act, signed on May 21, 2001, created the VCP.
The ADEM Industrial Hazardous Waste Branch (IHWB)
Redevelopment Section manages the VCP. The VCP
allows innocent landowners to receive a limitation of liabil-
ity for environmental contamination that occurred in the
past. The liability protections are fully transferable to any
non-responsible party who purchases the site, provided
the party adequately maintains all land use controls.
All applicantsprivate industry, land developers, cities,
counties, and the federal governmentpay fees to enter
the program. Submittal of the appropriate application fee
is required prior to the review of any plans, reports, and,
or certifications.
Certification of Compliance-
Letter of Concurrence
To qualify for a limitation of liability, an applicant must
not be a responsible person, i.e., "any person who
has contributed or is contributing to a release of any
hazardous waste, hazardous constituent, or hazardous
substance at a property," at the qualifying property. When
the applicant is an individual, the individual must not have
a familial or business connection to the property, and if
a corporation or other legal entity, the corporation must
not be a current or former subsidiary, division, parent
company, or partner of a current owner; the employer or
former employer of the current owner; or any responsible
person on the subject property.
VCP Process Summary
The applicant requests a pre-
application meeting with ADEM
(optional).
The applicant obtains a Letter of
Eligibility for the property from IHWB.
The applicant submits an application,
supporting documents, and an
application fee.
The applicant submits for approval a
site voluntary property assessment
plan, with fee.
The applicant submits a report of the
assessment process and its findings.
The applicant considers impacts to
human health and the environment
and determines cleanup levels, with
IHWB concurrence.
The applicant submits a voluntary
cleanup plan for the site, with fee.
The applicant conducts site activities
as specified in the approved cleanup
plan.
The applicant submits a Certification
of Compliance (with fee) when
all requirements of an approved
cleanup plan are complete, or
upon completion of an assessment
based on an approved voluntary
property assessment plan with no
contamination discovered.
IHWB approves the applicant's
Certification of Compliance and
issues a Letter of Concurrence or a
Conditional Letter of Concurrence.
Certain types of sites are not eligible:
Sites subject to ADEM permitting requirements as hazardous waste treatment and storage facilities.
Superfund sites on the National Priorities List.
Sites currently under an administrative order for cleanup by either ADEM or EPA.
42 | Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action'
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When the applicant completes all requirements of an approved cleanup plan, or completes an assess-
ment based on an approved voluntary property assessment plan with no contamination discovered, the
applicant submits a certification of compliance. The certification of compliance describes all use restric-
tions. The applicant or eligible successor must satisfactorily maintain the engineering controls, remedia-
tion systems, or post-closure care to receive an unconditional letter of concurrence. If the applicant utilizes
non-permanent institutional controls pursuant to an agreement, or performs partial response actions,
IHWB may issue the applicant a conditional letter of concurrence.
Upon approval of the submitted certification of compliance as signified by the letter of concurrence, a
non-responsible applicant at the qualifying property "shall not be liable to the state or any third party for
costs incurred in the investigation or cleanup of, or equitable relief relating to, or damages resultant from,
in whole or in part, a preexisting release at the qualifying property, including, but not limited to, any liability
to the state for the cleanup of the property..., or a new release of a substance, constituent, or materi-
al which had been part of a preexisting release at the property, unless such new release results from
noncompliance with an approved voluntary property assessment plan or voluntary cleanup plan or from
the negligent, wanton, willful, or intentional conduct of the applicant."
ADEM may revoke the letter of concurrence if contamination posing an unacceptable risk to human health
and the environment is discovered onsite or if the submitted certification of compliance is found to be
based on information that was materially false, inaccurate, or misleading.
Additional Resources
ADEM Redevelopment Programs
http://adem.alabama.gov/programs/land/brownfields/bfredevelopment.cnt
Brownfields/Voluntary Cleanup Program
http://www.adem.state.al.us/programs/land/brownfields.cnt
Ten-Step Process for Successful Brownfields Redevelopment
http://www.adem.state.al.us/programs/land/brownfields/tenStep.cnt
Form 521: Voluntary Cleanup Program Application Form
http://www.adem.state.al.us/DeptForms/Form521.pdf
Division 15: Brownfield Redevelopment and Voluntary Cleanup Program
http://www.adem.state.al.us/alEnviroReglaws/files/Division15.pdf
VCP Fee Schedule [see Fee Schedule H]
http://www.adem.state.al.us/alenviroreglaws/files/division1.pdf
Agency Contact
For more information about Alabama's VCP, contact:
Sonja Favors, PE.
Chief, Redevelopment Section
Email: smb@adem.state.al.us | Telephone: (334) 279-3067
Main Agency Website: http://www.adem.state.al.us/programs/land/default.cnt
Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action" \ 43
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FLORIDA
Program Overview
The Florida Department of Environmental Protec-
tion (DEP) created the Brownfield Redevelopment
Program to reduce public health and environmen-
tal hazards on existing commercial and industrial
sites that are abandoned or underused due to these
hazards. The program creates financial and regula-
tory incentives to encourage voluntary site cleanup
and redevelopment; derives cleanup target levels and
provides a process for obtaining a no further action
letter using risk based corrective action principles;
and provides the opportunity for environmental equity
and justice.
To redevelop a brownfield site in Florida, prospective
developers must obtain a brownfield site rehabilitation
agreement (BSRA). To be eligible for a BSRA, the
subject property must be located in a brownfield area
that was so designated by the local government with
jurisdiction over the property. The BSRA is an agree-
ment between the DEP and the person responsible
for brownfield site cleanup and rehabilitation. The
BSRA defines the person's duties, certifies that the
local government supports the actions to be taken
at the site, ensures that a licensed contractor will
complete the work in compliance with state statutes,
and ensures liability protection upon successful
execution and compliance with the agreement. A
BSRA provides signatories with liability protections
and eligibility for economic incentives, as long as
compliance with the agreement is maintained.
Site Rehabilitation Completion
Order
Once the site owner completes the remediation
obligations outlined by the BSRA, DEP issues a
site rehabilitation completion order. Under Florida
law, any party that successfully executes and imple-
ments a BSRA is relieved of further liability for
previous contamination at site, following completion
and certifications of all required remediation. This
includes liability for claims of property damages, lost
or delayed rent, sale or use of property, stigma to real
property, or improvements caused by the BSRA. This
BSRA Process Summary
The applicant identifies the individual,
entity, or parties responsible for
brownfield site rehabilitation and the
party or parties who agree to conduct
site rehabilitation and abide by the
duties identified in the BSRA.
The applicant develops a brownfield
site rehabilitation schedule with
milestones for completion of all site
rehabilitation tasks and submittal of
technical reports and rehabilitation
plans.
The applicant commits to conduct
site rehabilitation activities under the
observation of professional engineers
or geologists, in accordance with DEP
quality assurance rules, and consistent
with state, federal, and local laws.
A professional engineer or geologist
signs and seals any submittals by the
person responsible for brownfield site
rehabilitation, certifying compliance
with state law and DEP rules. A
professional engineer or geologist
also must certify that the completed
corrective action is in substantial
conformance with the plans and
specifications approved by the DEP.
The applicant obtains a certification
from the local government with
jurisdiction over the site that indicates
that the applicant consulted with
the local government and the local
government agrees with the proposed
redevelopment. The certification may
be accomplished with an officially
approved land use or site plan, a
development order or approval,
building permit, or other document the
local government issues; a resolution
that describes the redevelopment; or
(continued on next page)
44 | Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action'
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liability protection becomes effective upon execution of
the BSRA, and remains effective as long as the property
owner complies with the terms of the BSRA.
Additional Resources
Brownfields Redevelopment Program
http://www.dep.state.fl.us/waste/categories/brownfields/
default.htm
Voluntary Cleanup Tax Credits
http://www.dep.state.fl.us/waste/categories/vctc/default.htm
Florida Brownfields Redevelopment Act
http://www.dep.state.fl.us/waste/categories/brownfields/
pages/act, htm
http://www.leg.state.fl.us/Statutes/index.cfm
Agency Contact
(continued from previous page)
a letter from the local government that
describes the proposed redevelopment.
« The applicant certifies that any
contractor performing site rehabilitation
work meets all certification and license
requirements, and will conduct sample
collection and analyses pursuant to
DEP rules.
« After the site owner completes the
remediation outlined by the BSRA, DEP
issues a site rehabilitation completion
order.
For more information about Florida's BSRA, contact:
Kim Walker
Brownfields Program Manager
Email: kim.walker@dep.state.fl.us | Telephone: (850) 245-8934
Main Agency Website: http://www.dep.state.fl.us/mainpage/default.htm
Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action" \ 45
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GEORGIA
Program Overview
The Georgia Environmental Protection Division (EPD)
established the state's Brownfield Program in 2003
to provide liability protections and other incentives to
innocent purchasers of contaminated property. The goal
of the Brownfield Program is to encourage cleanup,
reuse, and redevelopment of contaminated properties.
Participants in the program agree to clean up soil and
source material to cleanup standards promulgated under
Georgia's Superfund Law, commonly referred to as the
risk reduction standards.
To participate in the Georgia Brownfield Program, both the
purchaser and the property must qualify. The prospective
purchaser must not have contributed to the release or be
related to the responsible party and must not be in viola-
tion of EPD's enforcement authority. The property must
have a preexisting release of a regulated substance; not
be undergoing response action under a federal order or
be listed on the National Priorities List; not be a permitted
hazardous waste facility; and not have an outstanding lien
under the State Underground Storage Tank or Superfund
programs.
Prospective purchasers are individuals who intend to
acquire a property interest where there is a pre-existing
release. Prospective purchasers may apply for a limitation
of liability before or within 30 days of acquiring the proper-
ty interest. The brownfield application requires payment of
a $3,000 nonrefundable application fee. Applicants also
must submit a prospective purchaser corrective action
plan (PPCAP) or a prospective purchase compliance
status report (PPCSR) to EPD.
EPD's approval of the PPCAP or PPCSR conveys the limitation of liability to the prospective purchas-
er. The limitation of liability is from third party claims for prior releases and responsibility for cleaning up
groundwater. The limitation of liability runs with the land and protects subsequent property owners, as
long as they did not contribute to the release. The limitation of liability terminates if it is transfered to a
party that would be disqualified from obtaining a limitation of liability. The limitation of liability does not
extend to new releases or to releases not addressed in the PPCAP or PPCSR. Those releases constitute
new, separate, and distinct release subject to oversight by the State Superfund Program.
The Brownfield Program also offers tax relief for properties where costs were incurred to obtain the
limitation of liability. Prospective purchasers submit cost documentation, along with the brownfield cost
certification form, to EPD for review. EPD issues a certification of eligible costs. Eligible costs are any
costs incurred after July 1, 2003, that were directly related to the receipt of the limitation of liability and
Brownfields Program Process for
Obtaining Limitation of Liability
The prospective purchaser applies to
EPD for a limitation of liability before
or within 30 days of acquiring the
property interest by submitting the
brownfields eligibility form, a $3,000
non-refundable application fee, and
a prospective purchaser corrective
action plan (PPCAP) or a prospective
purchase compliance status report
(PPCSR).
* EPD approves the PPCAP or PPCSR.
* The prospective purchaser implements
the PPCAP within the timeframe
specified in the approved PPCAP and
must certify that the property complies
with the risk reduction standards for
source material or soil in order to
maintain the limitation of liability.
Once the corrective action activities
specified in the approved PPCAP are
completed, the prospective purchaser
submits a PPCSR to EPD.
EPD provides written concurrence
with the PPCSR. EPD's approval
conveys the limitation of liability to the
prospective purchaser.
46 | Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action'
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that are not ineligible as defined by law. Prospective purchasers then submit their certification to the local
tax authority for preferential assessment.
The preferential assessment freezes the ad valorem value of the property for 10 years or until the brown-
field costs are recouped, whichever occurs first. An amendment to the tax law in 2014 allows an extension
of the preferential assessment for up to five years for brownfield properties where construction ceased
for 180 days or more and later resumed. Similar to the limitation of liability, the preferential assessment is
transferable as long as the limitation of liability has not been revoked.
Limitation of Liability
A purchaser of a contaminated property in Georgia is liable for site contamination and cleanup. However,
the Georgia Brownfield Act (previously the Hazardous Site Reuse and Redevelopment Act [HSRA])
provides a limitation of liability for qualified prospective purchasers who voluntarily agree to remediate soil
and source material to promulgated risk reduction standards. The law also expands prospective purchas-
ers to include those who acquire a property interest, such as tenants, easement holders, and license
holders. To qualify, prospective purchasers cannot have contributed to the release of hazardous substanc-
es at the property or be affiliated with a party responsible for the release. In addition, purchasers cannot
be in violation of EPD's enforcement authority.
A limitation of liability protects the new owner from third-party claims resulting from prior contamination
on the property. In addition, a new owner is not liable for cleaning up groundwater contamination. Liability
protection runs with the land to subsequent eligible purchasers and those who acquire property interest.
Additional Resources
Georgia EPD Brownfield Program
https://epd.aeoraia.gov/brownfield
Georgia Brownfield Act
https://epd.aeoraia.aov/sites/epd.aeoraia.aov/files/related files/site paae/12-8-200%20%20Brown-
field%20Act%20effective%207-2014%20.Ddf
Brownfield Eligibility Form
https://epd.georgia.gov/sites/epd.georgia.gov/files/related files/site page/BF%20Eligibilitv%20Form%20
11-2014.pdf
Georgia Brownfield Tax Incentive
https://epd.georgia.gov/sites/epd.georgia.gov/files/related files/site page/BFTax.pdf
Georgia Brownfield Cost Certification Form
https://epd.georgia.gov/sites/epd.georgia.gov/files/related files/site page/BF%20Cost%20Certifica-
tion%20Form%20%2011-2014%20%282%29.Ddf
Agency Contact
For more information about Georgia's Brownfield Program, contact:
Shannon Ridley
Georgia Department of Natural Resources
Environmental Protection Division
Response and Remediation Program-Brownfield Unit
Email: shannon.ridley@dnr.ga.gov | Telephone: (404) 657-8616
Main Agency Website: https://epd.georgia.gov/
Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action" \ 47
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KENTUCKY
Program Overview
Kentucky's Department of Environmental Protection (DEP)
has two programs that provide liability relief for brown-
field site owners. The goal of the Kentucky Brownfield
Redevelopment Program is to promote the redevelopment
and revitalization of properties that are abandoned or
underutilized due to real or perceived contamination.
Under the Brownfield Redevelopment Program, DEP
provides notification of concurrence for property owners
and prospective property owners (who can certify that they
did not cause a release or have relationships with those
who did, and who develop a plan to reuse the property
safely) that documents that they will not be held responsi-
ble for conducting site characterization and remediation
under state laws.
Kentucky's Voluntary Cleanup Program allows interested
parties to initiate cleanups on a property they either own
or wish to purchase and redevelop. It offers four tracks
that vary in eligibility criteria, complexity, and liability
protection:
Track 1: "self-certified" cleanup. Available for minor
contaminant releases or releases authorized by permit.
DEP offers no liability protection.
Track 2: "notice of completion" cleanup. Available to all
parties at a more complex cleanup site. Once cleanup
is complete, the state issues a notice of completion
letter.
Track 3: "no further remediation" cleanup. Available
only to public entities (city-, county-, or state-owned
sites) at a more complex cleanup site. Once cleanup
is complete, the state issues a no further remediation
letter.
Track 4: "VERP" (Voluntary Environmental Remedia-
tion Program) cleanup. Available to all parties, unless
the property is a licensed radioactive materials facil-
ity, listed on the National Priorities List, a Resource
Conservation and Recovery Act site, or the subject
of an enforcement action. This track addresses the
most complex cleanups in the state. Once cleanup is
complete, the state issues a covenant not to sue.
Brownfield Redevelopment
Program Process
To apply, site owners must:
Certify that all releases of a
hazardous substance, pollutant,
or contaminant governed by state
statutes occurred prior to the
applicant's acquisition of the property.
1 Make all appropriate inquiries into
previous ownership and uses of the
property.
Provide all legally required
notices with respect to hazardous
substances, pollutants, contaminants,
petroleum, or petroleum products
found at the property.
i Submit the following documents to
DEP, with a $2,500 application fee:
Brownfield liability relief eligibility
form
Copy of the property deed
Property management plan
Documentation of all appropriate
inquiry
Voluntary Environmental
Remediation Program
VERP applicants must:
Submit an application form,
topographical map of the property,
and application fee (between $1,000
and $3,000, depending on property
size)
Publish a public notice about their
intent to apply for the program.
Complete a site characterization
plan.
(continued on next page)
48 | Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action'
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Notification of Concurrence,
Notice of Completion Letter, No
Further Remediation Letter, or
Covenant Not to Sue
The Brownfield Redevelopment Program provides
successful applicants who own a property with a notifica-
tion of concurrence that documents that they will not be
held responsible for performing site characterization or
remedial actions under Kentucky Superfund statutes.
Kentucky does not provide liability relief for self-certified
cleanups completed under Track 1 of the VCR Liability
relief under Kentucky law is available only to sites cleaned
up under Tracks 2-4:
(continued from previous page)
Conduct a site characterization
and submit a site characterization
report that complies with the
site characterization plan.
This is equivalent to a Phase I
environmental site assessment.
Submit a corrective action plan that
contains a proposed schedule for
implementation.
Submit a corrective action
completion report that documents the
corrective actions implemented, and
compliance with the corrective action
plan approved by DEP, as well as
documentation of all engineering and
institutional controls.
Successful cleanups under Track 2 receive a notice of
completion letter. This letter states that the applicant
conducted the remedial action in accordance with the
established standards and procedures for corrective
action, as determined by the state.
Successful cleanups under Track 3 receive a no further remediation letter. This letter releases the
applicant from further responsibility to undertake additional remedial action at the site. The issuance of a
letter is considered evidence that the site does not constitute a threat to human health and the environ-
ment, and the site does not require additional remediation. This track is available only for public entities.
Successful cleanups under Track 4 receive a covenant not to sue. The covenant prevents any suit of
claim by the state against the applicant for failure to perform remedial actions at the site.
Additional Resources
Kentucky Brownfield Redevelopment Program
http://dca.kv.aov/brownfields/Paaes/default.aspx
Brownfield Redevelopment Program and Voluntary Environmental Remediation Program Processes
http://waste.kv.aov/SFB/Paaes/Brownfields.aspx
Brownfield Redevelopment Program Application Form
http://waste.kv.aov/SFB/Documents/Brownfield%20Proaram%20Application%20Form%2011-12-13.pdf
Voluntary Environmental Remediation Program Application Form
http://waste.kv.aov/SFB/Documents/VERPapplication.pdf
Agency Contact
For more information about Kentucky's Brownfield Redevelopment Program and VERP, contact:
Herb Petitjean
Email: herb.petitjean@ky.gov | Telephone: (502) 564-0323
Main Agency Website: http://eec.kv.gov/Pages/default.aspx
Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action'
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MISSISSIPPI
Program Overview
The Mississippi Department of Environmental Quality
(MDEQ) is responsible for the assessment and remedia-
tion of contaminated sites in Mississippi. The Brownfields
Voluntary Cleanup and Redevelopment Act established
the Mississippi Brownfields Program in 1998. This act
established the program to assist in the cleanup and
redevelopment of contaminated properties by providing
liability protection and with the goal of lowering potential
redevelopment costs. In addition, the Brownfield Volun-
tary Cleanup and Redevelopment Incentives Act provides
a state income tax credit for costs incurred by property
owners who remediate brownfields.
Mississippi also established an Uncontrolled Sites Volun-
tary Evaluation Program (VEP) that allows accepted parties
to participate in a program that expedites the evaluation of
site information for "uncontrolled sites" (sites where hazard-
ous or toxic wastes were released into the environment,
and there is no federal environmental program that can
handle the problem).
No Further Action Letter
Brownfields parties that execute a brownfields agreement
are relieved of liability to all parties (other than the United
States), including MDEQ, for remediation of the Brown-
fields Agreement site other than the remediation required
by the brownfields agreement, and all costs reasonably
related to the remediation other than the remediation costs
required by the brownfields agreement or regulations. For
sites cleaned up to unrestricted levels, MDEQ issues a no
further action letter. This liability protection is available only
under the Brownfields Program.
Additional Resources
MDEQ Brownfields Webpage
http://www.deq.state.ms.us/MDEQ.nsf/page/GARD brown-
fields?OpenDocument
Uncontrolled Sites Section Voluntary Evaluation Program
http://www.deq.state.ms.us/MDEQ.nsf/pdf/GARD ussve-
p/$FILE/Ussvep.pdf
MISSISSIPPI DEPARTMENT OF
ENVIRONMENTAL QUALITY
Brownfields Program
Process Summary
The applicant submits an application
form to MDEQ.
MDEQ reviews and approves the
application and issues an agreed
order for participation.
MDEQ reviews any prior
assessments, and reviews and
approves additional assessment
work plan, if necessary.
The applicant submits a proposed
corrective action plan, including
proposal of the brownfields
agreement site and cost estimates
to support financial assurance
estimates, if necessary.
MDEQ drafts the brownfields
agreement and environmental
covenant.
The applicant fulfills notification and
public participation requirements,
including a possible public hearing.
The MDEQ provides approval by
order of the brownfields agreement
and environmental covenant.
The applicant files a copy of
environmental covenant with the
Chancery Clerk.
The applicant carries out brownfields
provisions, and submits the
certification and corrective action
report to MDEQ. The applicant
performs compliance monitoring as
required.
MDEQ performs technical reviews.
Once site conditions meet defined
unrestricted levels, MDEQ issues a
no further action letter.
50 | Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action'
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MDEQ Brownfields Application Packet
http://www.dea.state.ms.us/MDEQ.nsf/pdf/GARD bfpacket/$File/bfpacket.PDF?QpenElement
Tax Credit Information
http://bit.lv/MS-Brownfield-Tax-Credit
Agency Contact
For more information about Mississippi's Brownfields Program, contact:
William McKercher
Acting Brownfield Coordinator
Email: wmckercher@mdeq.ms.gov | Telephone: (601) 961-5731
Main Agency Website: http://www.deq.state.ms.us/
Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action'
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NORTH CAROLINA
Program Overview
North Carolina has two distinct programs that address
the cleanup and redevelopment of brownfield sites. The
inactive hazardous sites program (IHSP) establishes
a process for voluntary cleanup of contaminated sites.
Responsible parties and site owners volunteer to clean up
sites by entering into agreements with the North Carolina
Department of Environmental Quality (NCDEQ). NCDEQ
provides oversight and approval during site assessment
and remedial action. Sites that are successfully remedi-
ated under IHSP receive liability protection from the state
through the issuance of a no further action letter.
Depending on the nature and extent of contamination at
a site and the sensitivity of the cleanup, the NCDEQ may
determine that the cleanup must be managed under the
state's Registered Environmental Consultant Program. If
NCDEQ selects a site for the Registered Environmental
Consultant Program, the site owner or responsible party
must choose one of NCDEQ's pre-approved environmental
consultants to perform the remedial action at the site.
The North Carolina brownfields program (NCBP) provides
a mechanism for prospective brownfield site developers
to receive liability protection as they conduct remedia-
tion activities to make a site suitable for reuse. Prospec-
tive developers negotiate a brownfields agreement
with NCDEQ that defines risk based cleanup activities
necessary to make the site suitable for reuse, rather than
requiring the site to be cleaned up to full (unrestricted use)
regulatory standards, as responsible parties are required
to do. The brownfields agreement provides liability protec-
tion in a covenant not to sue, in exchange for conducting
safe-making actions outlined in the agreement.
No Further Action Status and
Covenant Not to Sue
After satisfactorily completing a voluntary remedial action
under the Inactive Hazardous Sites Program, the remediat-
ing party receives a letter indicating that the work required
under the agreement is complete and the agreement
terminated. The site then receives no further action status
in the Inactive Hazardous Sites inventory. This change of
inventory status does not preclude any future state action if
new evidence of contamination is discovered at a later date.
Environmental
Quality
Inactive Hazardous
Sites Program
A site owner or responsible party
contacts NCDEQ's Inactive
Hazardous Site Branch about
conducting a voluntary assessment
or cleanup.
The owner or responsible party
completes a voluntary cleanup
checklist.
The NCDEQ determines if the
Registered Environmental Consultant
Program can manage the site.
If the Registered Environmental
Consultant Program manages the
cleanup:
The owner or responsible party
hires a registered environmental
consultant from NCDEQ's
list of approved registered
environmental consultants.
The owner or responsible party
enters into an administrative
agreement with NCDEQ.
The registered environmental
consultant conducts the remedial
action and certifies that it complies
with the administrative agreement
and NCDEQ regulations.
If the responsible party or site owner
manages the cleanup:
The owner or responsible party
enters into an administrative
agreement with NCDEQ.
The owner or responsible party
hires a qualified environmental
consultant to conduct the remedial
actions defined in the agreement.
NCDEQ reviews and approves the
cleanup as work proceeds.
(continued on next page)
52 | Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action'
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One of the major benefits to prospective developers who
enter the brownfields program is the liability protection
offered in the covenant not to sue in the brownfields agree-
ment. This liability protection generally is unavailable to
sites in the I HSR Once the safe-making actions specified
in the brownfields agreement are complete, liability protec-
tion automatically is in force. This protects developers from
enforcement action by NCDEQ for remaining contamination
known to exist at the site prior to its redevelopment. Because
the brownfields agreement defines the prospective develop-
er's cleanup liability at the property and limits that liability to
actions specified in the agreement, it removes uncertainty
regarding site cleanup costs. In this way, the agreement
provides comfort to lenders or other entities that may not
otherwise be willing to offer funding for the project. In their
letters of intent, developers must make the case that the
liability protection provided by a brownfield agreement is
necessary to break such a barrier to funding or is otherwise
required for the redevelopment project to proceed.
Additional Resources
Inactive Hazardous Sites Program
https://deq.nc.gov/about/divisions/waste-management/
superfund-section/inactive-hazardous-sites-program
North Carolina Brownfields Program Homepage
https://deq.nc.gov/about/divisions/waste-management/
brownfields-program/
Registered Environmental Consultant Program
https://deq.nc.gov/about/divisions/waste-management/
superfund-section/registered-environment-consultant-pro-
gram
(continued from previous page)
Once the owner or responsible party
satisfactorily completes work in the
administrative agreement, NCDEQ
assigns the site no further action
status in the Inactive Hazardous
Sites inventory.
Brownfields Program
The applicant submits a letter of
intent and a brownfields property
application to the NCBP.
If the application is eligible, the
applicant submits any additional
information the NCBP requests,
including site assessment data,
a receptor survey, and a $2,000
application fee.
If additional assessment is
necessary, NCBP notifies the
applicant.
Once the applicant and NCBP enter
into a brownfields agreement, the
redevelopment plan is released
for public comment and work
commences.
« Upon successful completion
of activities in the brownfields
agreement, NCBP issues a covenant
not to sue.
Brownfields Property Reuse Act of 1997
http://portal.ncdenr.Org/c/document library/get file?uuid=996a5ea5-73aO-41f9-b6fc-1edcdeefOd-
9f&groupld=38361
Agency Contacts
For more information about North Carolina's Brownfields Programs, contact:
Bruce Nicholson
North Carolina Department of Environmental Quality
Division of Waste Management
Email: bruce.nicholson@ncdenr.gov | Telephone: (919) 707-8330
Charlotte Jesneck
North Carolina Department of Environmental Quality
Division of Waste Management
Email: charlotte.jesneck@ncdenr.gov | Telephone: (919) 707-8327
Main Agency Website: http://deq.nc.gov/
Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action" \ 53
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SOUTH CAROLINA
Program Overview
South Carolina's Voluntary Cleanup Program (VCP),
established in 1988, is a component of the state's hazard-
ous substance cleanup program. In 1995, the VCP was
expanded and enhanced to incorporate a brownfields
component. The VCP's goal is to facilitate the cleanup and
redevelopment of a property that will create new jobs and
boost the state's economy, while protecting human health
and the environment.
All contaminated sites are eligible for the VCP except sites
on the National Priorities List (NPL). The VCP is open to
both responsible parties and parties that are not respon-
sible for the site contamination. Parties that are under a
South Carolina Department of Health and Environmental
Control (DHEC) order or permit that requires assessment
or cleanup enforcement action or permits are not eligible to
participate in the VCP.
There is no application fee to enter into the VCP, but
private-party responsible parties (RP) and non-responsible
parties (NRP) must pay oversight costs. DHEC provides
oversight without charge to governmental entities and
nonprofit agencies as long as sufficient funding is available
through the U.S. EPA's 128(a) State and Tribal Response
Program.
Certification of Completion and
Covenant Not to Sue
DHEC
PROMOTE PROTECT PROSPER
VCP Process Summary
The applicant submits an
application to DHEC with a Phase I
environmental site assessment for
the property, in accordance with the
CERCLAall appropriate inquiries
rule. There is no application fee.
The applicant and DHEC agree on
a scope of work and enter into a
voluntary cleanup contract.
The applicant submits required
documents, which may include a
work plan, remedial investigation,
baseline risk assessment, and other
documents specified in the voluntary
cleanup contract.
The applicant completes the required
remediation work according to the
terms of the voluntary cleanup
contract. DHEC oversees cleanup
activities to ensure that applicant
performs activities adequately.
Upon completion of the negotiated
work in the voluntary cleanup
contract, a responsible party
receives a covenant not to sue, and
a non-responsible party receives
a certification of completion that
provides liability protection under the
state Superfund law.
The brownfields component of the VCP allows a non-re-
sponsible party to acquire a contaminated property with
state Superfund liability protection for existing contamina-
tion by submitting an application to DHEC and agreeing
to perform an environmental site assessment and/or remediation on the property. The amount or level of
environmental remediation required is site-specific and dependent on the intended future use of the site.
By completing a voluntary cleanup contract, the non-responsible party:
Gets the assurance of knowing that the property is safe for its intended uses.
Receives a certification of completion that provides liability protection from state Superfund actions and
from third party lawsuits because of the preexisting contamination.
Receives DHEC's assistance in meeting the EPA's all appropriate inquiries rule.
Also may qualify for tax credits and low interest loans to defray the costs of redeveloping the property.
54 | Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action'
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By completing a voluntary cleanup contract, the responsible party:
Receives a covenant not to sue for work performed to DHEC's satisfaction.
Avoids cost recovery actions initiated by the state.
Increases the marketability and financial worth of the property.
Reduces the likelihood of third party lawsuits because of perceived harm.
Additional Resources
BrownfieldsA/oluntary Cleanup Program and Loan Fund homepage
http://www.scdhec.gov/HomeAndEnvironment/Pollution/CleanUpPrograms/BrownfieldsCleanupLoanFund/
Non-Responsible Party Application for Voluntary Cleanup Contract
http://www.scdhec.gov/HomeAndEnvironment/Docs/d-2956.pdf
Sample Voluntary Cleanup Contract for Non-Responsible Party
http://www.scdhec.gov/HomeAndEnvironment/Docs/DistributionNRP%20Model.pdf
Sample Voluntary Cleanup Contract for Responsible Party
http://www.scdhec.gov/HomeAndEnvironment/Docs/CleanUpPrograms/RPVCC 8 31 15.pdf
Agency Contact
For more information about South Carolina's VCP, contact:
Robert Hodges, Jr., PG.
South Carolina Department of Health and Environmental Control
Brownfields and Dry Cleaning Programs
Division of Site Assessment, Remediation, and Revitalization
Bureau of Land and Waste Management
Email: hodgesrf@dhec.sc.gov | Telephone: (803) 898-0919
Main Agency Website: http://www.scdhec.gov/
Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action" \ 55
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TENNESSEE
Department of
Environment &
Conservation
Program Overview
Tennessee's Voluntary Cleanup, Oversight and Assistance
Program (VOAP) offers entities the opportunity to work
proactively with the state to investigate and clean up a
property that is contaminated with hazardous substances,
and return it to productive reuse. The program, which is
administered by the Tennessee Department of Environ-
ment and Conservation (TDEC), also offers participants
liability relief for sites where investigation and cleanup are
conducted. The liability relief agreement provides protec-
tion for third party contributions, and indicates that the state
considers the site safe for future use.
No Further Action Letter
Upon completion of all actions agreed upon in the volun-
tary agreement, the site owner will receive a no further
action (NFA) letter. The letter demonstrates that contami-
nation at the site was cleaned up to the satisfaction of the
TDEC. In certain cases, participants also may be eligible
to receive a release of liability under applicable state
environmental statutes. These releases may be used to
demonstrate to prospective purchasers, future users of
the site, lenders, the local community, and other interest-
ed parties that contamination issues were resolved, and
the site is safe for reuse.
Additional Resources
Tennessee Voluntary Program Overview
https://www. tn.gov/envi ronment/topic/rem-voluntarv-pro-
grams
VOAP Application
https://tdec.tn.gov/etdec/DownloadFile.aspx?row id=CN-
1463
Brownfields Redevelopment, TDEC
https://www. tn.gov/envi ronment/article/rem-brown-
fields-redevelopment
VOAP Process Summary
To address a brownfield site under
the VOAP, a site owner must
submit an application with a $750
participation fee and perform
Phase I and II environmental site
assessments.
If the site assessments discover
contamination at the site, the
applicant contacts the VOAP to enter
into a voluntary agreement.
The applicant determines the
areas of contamination that need
to be addressed in the voluntary
agreement.
VOAP and the applicant negotiate
and finalize the voluntary agreement,
which describes the cleanup
activities to be conducted and the
types of contamination that will be
addressed.
The applicant notifies local
governments with jurisdiction and
contiguous landowners of the
voluntary agreement. If the owner
seeks third-party contribution
protection, the participant must
publish a notice summarizing the
voluntary agreement in a newspaper
and a 30-day comment period is
required.
The applicant performs the actions
agreed upon in the voluntary
agreement.
After the activities in the voluntary
agreement are complete and
approved by VOAP, VOAP will issue
a no further action letter.
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Agency Contacts
For additional information about Tennessee's VOAP, contact:
Robin Heriges
Deputy Director, Central Office Operations
Email: robin.l.heriges@tn.gov | Telephone: (615) 741-4936
Evan Spann
Brownfield and Voluntary Program Coordinator
Email: evan.w.spann@tn.gov | Telephone: (615) 532-0919
Main Agency Website: https://www.tn.gov/environment
Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action" \ 57
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**
REGION 5
Youth in a canoe on the gravel bar, Menomonee Valley, Wl
2005 aerial view of the Diamond Shamrock Chemical Company, OH
Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Act/on" | 59
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ILLINOIS
Program Overview
The Illinois Environmental Protection Agency's (IEPA)
Bureau of Land provides technical and financial support
for the cleanup and redevelopment of brownfield sites.
The Site Remediation Program (SRP) is the state's volun-
tary cleanup program, through which persons or entities
performing investigation and remediation at a site can
receive IEPA review, technical assistance and no further
remediation determinations.
SRP participants are called remediation applicants. To
receive IEPA approval and release from further liability
or responsibility for previous contamination at a property,
a remediation applicant voluntarily cleans up a site and
agrees to pay IEPA for oversight services. The remedia-
tion applicant works with an environmental consultant to
ensure the reports and plans required under the SRP are
properly prepared and implemented. All investigations,
remedial activities, plans, and reports must be undertaken
or prepared under the supervision of an Illinois licensed
professional engineer, and all documents must include a
certification from the engineer.
Certain sites are not eligible for enrollment in the SRP:
SRP Process Summary
The applicant or prospective property
owner completes a SRP application
and services agreement form, and
submits an advance partial payment
for oversight costs to IEPA.
The applicant submits draft reports
for site investigation, remediation
objectives, planned remedial action,
and remedial action completion for
IEPA review and evaluation. Each
report must be accompanied by site
remediation program form.
After IEPA approves all required
reports, the applicant will receive a
no further remediation (NFR) letter.
The applicant must pay SRP
oversight costs, including the
required NFR letter assessment fee.
The applicant records the NFR letter
as part of the property title with
county recorder's office and provides
I EPA with a certified copy.
Sites subject to I EPA permitting requirements as hazard-
ous waste treatment, storage or disposal facilities.
Sites subject to state or federal underground storage
tank laws and implementing regulations, except where tank owners/operators complete an IEPA Leaking
Underground Storage Tank Program election to proceed under the SRP form as a condition of eligibility.
Sites on the National Priorities List.
Sites currently under a U.S. EPA administrative order or federal court order for cleanup.
No Further Remediation Letters
Upon completion and approval of all SRP requirements for a site, an applicant receives a no further
remediation (NFR) letter that reflects the type or level of liability protection to be associated with the
property, as requested in the SRP application. An NFR letter signifies a release from further responsibil-
ities for the conduct of approved remedial actions and provides prima facie evidence that environmental
conditions at the remediation site do not constitute a significant threat to human health and the environ-
ment. Two types of protective letters are available under the SRP:
A comprehensive NFR letter signifies a release from liability for all recognized environmental conditions
at the site.
A focused NFR letter signifies a release from liability for specific contaminants of concern at the site.
60 | Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action'
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For the NFR letter to be effective, the applicant must record it with the property title in the appropriate
county recorder's office and provide IEPA with a certified copy of the recorded letter.
Additional Resources
415 ILCS 5/TitleXVII: Site Remediation Program:
http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=041500050HTit.+XVII&ActlD=1585&Chap-
terl D=36&SeaStart=54700000&Sea End=-1
35 Illinois Administrative Code Part 740: Site Remediation Program
http://www.ipcb.state.il.us/documents/dsweb/Get/Document-33436
SRP Overview
http://www.epa.illinois.gov/topics/cleanup-programs/srp/overview/index
SRP FAQs
http://www.epa.illinois.gov/topics/cleanup-programs/srp/faqs/index
Site Remediation Program Forms
http://www.epa.state.il.us/land/site-remediation/forms.html
Agency Contact
For more information about Illinois' SRP, contact:
Greg Dunn
Remedial Project Management Section
Email: greg.dunn@illinois.gov | Telephone: (217) 785-2359
Main Agency Website: http://www.epa.illinois.gov/
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INDIANA
Program Overview
The Indiana Department of Environmental Management
(IDEM) administers Indiana's voluntary remediation
program (VRP). The VRP provides a process for property
owners, operators, potential purchasers, and third parties
to voluntarily address property that is or may be contam-
inated. Typically, participants are current or past property
owners, current or past lessees, and prospective purchas-
ers. Local units of government that obtained property by
default, or have an interest in developing property, also
may participate.
The Indiana Finance Authority (IFA) is not a regulato-
ry agency. The IFA manages the Indiana Brownfields
program. It is a resource for public and private brownfield
stakeholders and offers a mechanism for the state to
partner with communities and eligible private entities to
address environmental concerns and facilitate brown-
fields redevelopment. The main goal of IFA is to help
communities identify and mitigate environmental barri-
ers that impede local economic growth by offering state
government assistance primarily for site assessment and/
or cleanup activities as an incentive for redevelopment or
reuse of brownfields. While it is not a regulatory program,
the Indiana Brownfields Program is authorized by statutes
that allow for the provision of services and the distribu-
tion of financial assistance for brownfield stakeholders to
assess and clean up brownfield properties.
Certificate of Completion,
Covenant Not to Sue, Comfort
Letter, and Site Status Letter
VRP participants that successfully complete all actions
outlined in an approved remediation work plan receive
a certificate of completion from IDEM and a covenant
not to sue from the Governor. These documents provide
assurance that the remediated areas will not become the
subject of a future IDEM enforcement action, and future
liability is limited.
The Indiana Brownfields Program offers comfort letters
and site status letters to outline or address potential
environmental liability issues at contaminated proper-
Indiana VRP Process Summary
' The applicant checks eligibility and
completes an application containing
basic information about the proposed
project.
' Once IDEM determines that an
application is eligible for the program,
the applicant enters into a voluntary
remediation agreement with IDEM.
' Applicant submits a proposed
voluntary remediation work plan
that IDEM evaluates and publishes
for public comment at least 30 days
before approval or rejection.
' Once IDEM approves the work plan,
IDEM charges the applicant with
implementation of the plan and IDEM
provides oversight.
' When IDEM determines that an
applicant has successfully completed
an approved voluntary remediation
work plan, it issues a certificate of
completion and the Governor's office
issues a covenant not to sue.
Indiana Brownfields Program
Process Summary
' For environmental liability
clarification/closure letters, the
applicant fills out the Indiana
Brownfields Program comfort/site
status letter request form and the
brownfields comfort/site status letter
Supplemental Information Request
Form.
' Indiana Brownfields Program issues
a comfort or site status letter to the
eligible applicant under the IDEM
brownfields comfort/site status letter
nonrule policy document.
(continued on next page)
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ties-the highest forms of "comfort" or "closure" offered by
the state at this time. Requests for comfort letters or site
status letters can be submitted outside of any requests for
financial assistance.
The Indiana Brownfields Program can issue a comfort
letter, in accordance with the IDEM brownfields comfort/
site status letter nonrule Policy Document, to a party that
qualifies for an applicable exemption to liability found in
Indiana law or IDEM policy. However, comfort letters are
not legal releases from liability.
(continued from previous page)
For financial assistance, applicant
should inquire with VRP staff
regarding all potentially available
resources and complete respective
application(s) available on the
VRP website as applicable and
appropriate.
The Indiana Brownfields Program can issue a site status
letter, in accordance with the IDEM brownfields comfort/site status letter nonrule policy document, to a
party that did not cause or contribute to or knowingly exacerbate any contamination at a property, and can
demonstrate that current levels of contamination at levels of concern at the brownfield site meet current
cleanup criteria established by IDEM under the remediation closure guide.
Additional Resources
IDEM VRP
http://www.in.gov/idem/landqualitv/2335.htm
Indiana Brownfields Program
http://www.in.gov/ifa/brownfields/
Request for Comfort Letter or Site Status Letter
http://www.in.gov/ifa/brownfields/files/ComfortLetterRequest%281%29.pdf
Brownfields Comfort/Site Status Letter Supplemental Information Request Form
http://www.in.gov/ifa/brownfields/files/CL-SSL Supplemental Info for Request Revised 11-17-15.pdf
Brownfields Comfort/Site Status Letter Non-rule Policy Document
http://www.in.gov/idem/files/nrpd waste-0051.pdf
Agency Contacts
For more information about Indiana's brownfields programs, contact:
Corey Webb
Voluntary Remediation Program
Indiana Department of Environmental Management
Email: cwebb@idem.in.gov | Telephone: (317) 234-0966
Michele Oertel
Indiana Brownfields Program
Email: moertel@ifa.in.gov | Telephone: (317) 234-0235
Main Agency Websites: http://www.in.gov/idem/
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MICHIGAN
Department of
Environmental Quality
Program Overview
The Michigan Department of Environmental Quality (DEQ)
does not have a voluntary cleanup program. However,
Michigan provides options for owners and prospective
purchasers of contaminated properties to overcome the
obstacles of brownfields cleanup and redevelopment.
These programs include cost-effective cleanup options
and certain liability protections for prospective purchas-
ers of contaminated properties. Key components of the
state's brownfield law include the baseline environmen-
tal assessment (BEA) provisions, which provide liability
protection to prospective or new owners and operators
of contaminated properties, statutorily imposed due care
provisions to assure the safe use of contaminated proper-
ties, and land use-specific cleanup standards.
A current owner or operator who has knowledge that his
or her property is contaminated is required by state law
to provide notice of the contamination to any prospective
buyer or transferee. All owners/operators of contaminated
property, regardless of their liability status, must assure
that the property is safe for the intended use. Owners
or operators must conduct an environmental evaluation,
take necessary response activities to prevent or mitigate
any unacceptable exposure to contamination, provide
required notices, continue to conduct any required opera-
tions and maintenance of institutional or engineering
controls, and maintain documentation of compliance with
any land use restrictions. Although an owner or operator
is obligated to be in compliance with all statutorily imposed
due care provisions from the time ownership is established,
documentation of compliance must be available to DEQ
upon request, or within eight months of property ownership.
Baseline Environmental
Assessments (BEAs) and Due Care
A person can buy, lease, or foreclose on contaminat-
ed property and be protected from liability for cleanup of existing contamination on the property if he/she
conducts a baseline environmental assessment and submits it to DEQ. Subsequent purchasers and trans-
ferees of the property must be provided with a copy of the DEQ-approved BEA to claim protection from
future liability. The BEA is conducted only on a property that is demonstrated to be contaminated and meets
the definition of a "facility" as defined in Michigan Law, Part 201. While completing a BEA can give liability
protection for existing contamination that a prospective owner did not cause, the owner still is obligated to
assure the property is safe for the intended use.
BEA and Due Care
Process Summary
The potential purchaser or
lessee must conduct its own due
diligence, which includes hiring
an environmental professional to
conduct an all appropriate inquiries
Investigation (AAI) or Phase I
environmental site assessment
(ESA). The AAI investigation or ESA
includes a records search, which
involves contacting DEQ to obtain or
review any available records.
The prospective purchaser must
conduct a baseline environmental
assessment (BEA) prior to, or within
45 days after the date of purchase,
occupancy, or foreclosure of the
property, whichever occurs first.
The AAI investigation or Phase 1
ESA report, field work, sampling and
analysis results, and the BEA all
must be completed within 45 days of
purchase, occupancy, or foreclosure.
The owner/operator of a property
must submit the BEA to the
appropriate DEQ District Office no
later than six months from the date of
purchase, occupancy or foreclosure.
To maintain the liability protection
afforded by the submittal of a BEA,
the owner or operator must provide
the BEA to subsequent purchasers or
transferees, including lessees.
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New owners or operators must employ an environmental professional to conduct an AAI investigation or
a Phase I environmental site assessment. At a minimum, this requires the review of past activity on the
propertyincluding land and chemical use, review of regulatory agency files on the property, and a visual
survey of the propertyto look for signs of soil staining or other indicators of possible contamination. The
BEA report typically includes the AAI or Phase I ESA report and the results of any sampling and analysis
conducted at the property to confirm that the property is a "facility."
New owners of contaminated property (e.g., brownfields) who conduct and submit a BEA are not required
to remediate onsite contamination present on the property at the time of purchase or occupancy, or prior to
placing the property back into productive use. As owners or operators of contaminated property, they are
required to assure the safe use and management of the property; these requirements are often referred to
as "due care." Due care involves taking actions to protect people from contamination found in soil, ground-
water, or vapors, and preventing the spread of contamination from the property. The actions ensure that
those using the property are protected from unacceptable exposures to contamination; that owners and
operators do not exacerbate any contamination present at the property; and that protections against reason-
ably foreseeable actions of third parties, such as trespassers, are in place. Due care obligations apply to all
owners of contaminated property.
Additional Resources
Michigan DEQ Brownfields Redevelopment
http://www.michiaan.aov/dea/0.4561.7-135-3311 29262-.OO.html
Remediation and Redevelopment Division
http://www.michigan.goV/deq/0.4561,7-135-3306 28608.OO.html
Brownfield Redevelopment Financial Incentives in Michigan
http://www.brownfieldsconference.org/Documents/Document/Document/44
BEAs
http://www.michigan.gov/deg/0.1607.7-135-3311 4109 4212.OO.html
Baseline Environmental Assessments (BEA) Fact Sheet
http://www.michigan.gov/documents/deq/deq-rrd-BEA-BEACitizensGuide 357377 7.pdf
Due Care
http://www.michigan.gov/deg/0.4561.7-135-3311 4109 59851.OO.html
Due Care Obligations for Owners for Operators of Contaminated Property
http://www.michigan.gov/documents/deq/deq-rrd-duecare-citizenguide 253063 7.pdf
Part 201 Michigan Law, the Natural Resources and Environmental Protection Act 451 of 1994
http://www.legislature.mi.gov/(S(icoutexawmc43jsjtwvhndpf))/mileg.aspx?page=GetObject&objectname=m-
cl-451-1994-11-7-201
Environmental Remediation Law
http://www.michigan.gov/documents/Remediation 4557 7.pdf
What You Need to Know if You Own or Purchase Property with Environmental Contamination
http://www.michigan.gov/documents/deg/deg-rrd-Part201CitizensGuide 247033 7.pdf
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Agency Contacts
For more information about BEAs and Due Care in Michigan, contact:
Jeanne Schlaufman
Email: schlaufmanj1@michigan.gov | Telephone: (586) 753-3823
For more information about Michigan's Brownfields Program, contact:
Carrie Geyer
Email: geyerc1@michigan.gov | Telephone: (517) 284-5182
Main Agency Website: http://www.michigan.gov/deq
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MINNESOTA
Program Overview
The Minnesota Pollution Control Agency (MPCA)'s Brown-
field Program was created to facilitate the sale and redevel-
opment of brownfield sites. Voluntary brownfields clean-
ups can be conducted under the Petroleum Brownfields
Program (PBP) or the Voluntary Investigation and Cleanup
(VIC) Program that addresses brownfields contaminated
with hazardous substances. Both programs charge a fee
for services, such as technical assistance and document
review. Liability assurances are available from MPCA to
participants in the PBP and VIC Program.
Minnesota Pollution
Control Agency
VIC and PBP Process Summary
« The applicant prepares a Phase
1 environmental site assessment
(ESA) and conducts a site
investigation to determine the nature
and extent of contamination.
i The applicant submits an application
form and the ESA report to MPCA
for review, approval, and acceptance
into program.
The applicant submits a response
action plan to MPCA for approval,
and then implements the plan, as
approved.
Liability Assurances
Under the Land Recycling Act of 1992, persons not
responsible for the contamination at a property are eligi-
ble for future liability protection when they voluntarily
undertake and complete response actions that the MPCA
Commissioner approves.
To facilitate property transfers, the VIC Program offers several types of liability assurances:
No association determination (NAD): Applies to parties with ownership interest in a site when they follow
the specific proposed actions at the site.
Lender no association determination (lender NAD): A statement to the lenders that they are not liable
when solely providing financing.
No action (no cleanup required) letter: Issued to voluntary or responsible parties when the identified
contamination does not pose a risk to human health or the environment, and therefore, no response
actions are necessary.
No further action (cleanup completed) letter: Issued to voluntary or responsible parties after response
action implementation successfully manages risk to human health and the environment.
Off-Site Source Determination: Indicates there are no detected onsite sources of groundwater contami-
nation.
Certificate of completion: Issued after accomplishing a site investigation and the complete cleanup of
contaminants of concern. Responsible parties are not eligible.
Technical assistance letter: Communicates the results of MPCAs review of site documents when a party
is not interested in or eligible for a liability assurance letter.
PBP offers the following types of liability assurances:
Tank removal verification letter: States that the tanks that were the source of any release were removed,
and MPCA will not consider prospective buyers to be responsible parties for that release.
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File closure confirmation letter: Confirms that the leak site is closed or that its closure status is still valid.
Offsite tank release determination letter: States that the current site owner is not responsible for contami-
nation that migrated to the site from a tank located off-site.
General liability letter: States that a party that comes into possession of a site after removal of the tanks
cannot be ordered to conduct corrective action.
The Minnesota Department of Agriculture administers another program for the cleanup of pesticides, fertil-
izers, and other substances from agricultural properties. It is the Agricultural Voluntary Investigation and
Cleanup (AgVIC) Program.
Additional Resources
Brownfields Program
https://www. pea.state, mn. us/waste/brownfields
Brownfields Program Services
https://www. pea, state. mn.us/sites/default/files/c-brwnfld4-01.pdf
Minnesota Brownfields: A Resource Guide
http://mnbrownfields.ora/wp-content/uploads/2016/03/MN-Brownfields-Resource-Guide-2016-PDF.pdf
Cleanup Guidance for Brownfields Redevelopment Projects
https://www.pca.state.mn.us/waste/cleanup-guidance#guidance-for-brownfield-redevelopment-projects
Introduction to the Voluntary Investigation and Cleanup Program
https://www.pca. state. mn.us/sites/default/files/vic-gd1.pdf
Brownfields Program Response Action Plans
https://www.pca. state. mn.us/sites/default/files/c-rem4-43.pdf
Guidance Document #4: Types of Written Assurances
https://www.pca. state. mn.us/sites/default/files/vic-gd4.pdf
Agriculture Voluntary Investigation and Cleanup Program (AgVIC)
http://www.mda.state.mn.us/chemicals/spills/incidentresponse/agvic.aspx
Agency Contacts
For more information about Minnesota's PBP and VIC Program, contact:
Jessie Ebertz
Petroleum Brownfields Program
Email: Jessica.ebertz@state.mn.us | Telephone: (651) 757-2328
Gary Krueger
Voluntary Investigation and Cleanup Program
Email: gary.krueger@state.mn.us | Telephone: (651) 757-2509
Main Agency Website: https://www.pca.state.mn.us/
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OHIO
Ohio Environmental
Protection Agency
Program Overview
The Ohio Environmental Protection Agency's (Ohio EPA)
Voluntary Action Program (VAP) was created to give
prospective property owners a way to investigate possible
environmental contamination at a property, clean it up if
necessary, and receive a legal release from liability from
the State of Ohio. When cleanup requirements are met to
the state's satisfaction, Ohio EPA issues a covenant not to
sue. This covenant protects the property owner or opera-
tor and future owners from being legally responsible to
the State of Ohio for further investigation and cleanup of
previous contamination. This protection applies only when
the property is used and maintained in the same manner
as when the covenant was issued.
Ohio's Voluntary Action Program (VAP) maximizes
resources and expertise in the private sector by using
qualified, experienced professionals, such as professional
engineers and scientists, who are certified by Ohio EPA to
oversee compliance with the program's investigation and
cleanup requirements. These certified professionals (CPs)
are responsible for verifying that properties are cleaned
up to the levels required by the program rules and prepar-
ing and submitting a no further action letter to Ohio EPA.
The detailed program rules allow these qualified profes-
sionals, and the property owner (called a volunteer or VAP
applicant) that he or she represents, to do the environ-
mental investigation and cleanup work without direct
involvement from Ohio EPA.
No Further Action Letters and Covenants Not to Sue
When a CP determines, after site investigation and any necessary cleanup, that a property meets the
state cleanup standards (OAC Chapter 3745-300), he or she can prepare a no further action (NFA)
letter. This document describes the environmental problems found at the site, how those environmen-
tal problems were investigated, and how the site was cleaned up. The NFA letter includes an executive
summary of the voluntary action that includes a concise summary of the Phase I environmental site
assessment. This information allows the CP to determine whether or not there is a reason to believe that
a release of hazardous substances or petroleum actually or may have occurred at the property.
If there is reason to believe a release has occurred and the site may be contaminated, a Phase II property
assessment is then conducted. The Phase II assessment ensures that all potential contaminants identi-
fied in the Phase I assessment are adequately evaluated and compared to the appropriate VAP cleanup
standards. If the Phase II assessment indicates that cleanup standards are met and the site is protective
of human health and the environment, the CP determines that the voluntary cleanup is complete and
prepares the NFA letter.
VAP Process Summary
The applicant's CP conducts a
Phase I assessment of identified
areas of concern and any releases
or threatened releases of hazardous
substances or petroleum.
The CP completes a Phase II
property assessment work plan.
The CP completes Phase II property
assessment activities or a Phase II
property assessment report.
The CP completes a risk
assessment.
The CP completes a remedial action
bench scale, treatability, pilot, or
similar study.
The CP completes a remedial action
plan.
The CP completes soil and/or
groundwater remedies.
The CP submits a no further action
letter to the Ohio EPA director. (See
steps outlined on page 72.)
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If the Phase II assessment indicates that cleanup is needed to meet state regulatory standards for any
contaminant found at the property, additional remedial activities will be necessary to ensure protection of
human health and the environment. Remedial activities may include soil removal, groundwater treatment,
barriers to the contamination such as a clay or asphalt cap, or placing limitations on future use of the property.
If the VAP applicant wants a legal release from environmental liability from Ohio, the CP submits an NFA
letter to Ohio EPA for review. VAP technical staff review the NFA letter submitted to the agency to determine
if program standards are met and that the site is protective of public health, safety, and the environment.
When cleanup requirements are met, the director of Ohio EPA issues a covenant not to sue (CMS). This
covenant protects the property owner or operator and future owners from being legally responsible to the
State of Ohio for further investigation and cleanup. This protection applies only when the property is used
and maintained in the same manner as when the covenant was issued. It is important to note that the CMS
does not release the property owner from liability from third party property damage or injury lawsuits, including
toxic tort claims related to exposure to releases of contamination.
Each year the VAP audits a minimum of 25 percent of the NFA letters from the previous calendar year that
received a CMS from the agency. The audit consists of a thorough review of all supporting documentation
(Phase I, Phase II, Risk Assessment, etc.) and, if necessary, the collection of additional field data. Audit
reviews evaluate the property's compliance with applicable standards, as well as the performance of the
certified professional who issued the NFA letter.
Steps for Submitting on NFA Letter and Requesting a CMS
Step 1 - Receipt of Information [OAC 3745-300-13(B)]
Volunteer (or other persons performing work to support the NFA letter request) submits (by affidavit) to the
certified professional (CP) all relevant investigatory and remedial information pertaining to the property.
Step 2 - Review of Information [OAC 3745-300-13(D)]
CP reviews the investigatory and remedial information to determine whether the property complies with
applicable standards.
CP must conduct an eligibility evaluation to determine whether the property meets all eligibility requirements.
CP must ensure Phase I Property Assessment activities were last conducted within 180 days prior to
issuing NFA letter.
CP must have conducted a walk-over of the property within 180 days prior to issuing NFA letter.
Step 3 - Preparation of NFA Letter [OAC 3745-300-13(E)]
If after performing the review of the investigatory and remedial information the CP concludes the property
meets or will meet applicable standards, the CP may prepare the NFA letter for the property.
Step 4 - Issuance of NFA Letter [OAC 3745-300-13(F)]
To issue the NFA letter, the CP must send a copy of NFA letter to the property owner (volunteer, or VAP
applicant) accompanied with:
Written request that the property owner (VAP applicant) notify the CP as to whether the property owner
wishes to submit the NFA letter to the director.
Written notice informing the property owner that the original NFA letter may be submitted only to the
director by the CP and that the property owner may receive a CNS from the director only if the original
NFA letter is submitted to the director on behalf of the volunteer by the CP.
CP's affidavit issuing the NFA letter (date of CP affidavit determines NFA letter issuance date).
70 | Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action'
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Step 5 - VAP Applicant's Decision [OAC 3745-300-13(G)]
Promptly after receipt of NFA letter, the VAP applicant must do one of the following:
Send written notice to CP that indicates whether or not the property owner or VAP applicant wishes the
CP to submit the NFA letter to director.
Send the director a copy of the written notice sent to the CP.
Step 6 - CP Acts on VAP Applicant's Decision [OAC 3745-300-13(H)]
Promptly after receipt of written notice from the VAP applicant, the CP must do one of the following:
Submittal for a CMS - Send the original NFA letter (accompanied by an original CP affidavit from Step
4) to the director on behalf of the VAP applicant or property owner informing the Ohio EPA that the VAP
applicant wishes to request a CMS.
No CNS requested - Send the original NFA letter to the VAP applicant.
Additional Resources
Ohio EPA can assist property owners by providing technical assistance to parties that wish to enter the
VAP with any questions they have regarding their participation in the VAP. Since the VAP relies on user fees
to help support the program, volunteers must pay for the agency's assistance. Although some volunteers
receiving technical assistance submit NFA letters, many volunteers conduct work in accordance with Ohio
EPAs advice but do not submit an NFA letter. Even if a volunteer does not submit an NFA letter, VAP rules
and technical assistance can be used as guides for the cleanup and redevelopment of those properties.
Ohio EPAs VAP
http://www.epa.ohio.aov/derr/volunt/volunt.aspx
Current VAP Fee Schedule
http://www.epa.ohio.aov/portals/30/vap/docs/2014VAPFeeScheduleAuaustrounded.pdf
Content and Scope of No Further Action Letters
httD://eDa.ohio.aov/Portals/30/rules/2014/3745-300-13.Ddf
Rules and Laws Governing the Voluntary Action Program and RCRA
http://www.epa.ohio.aov/derr/derrrules/tabid/5796/LiveAccld/120392/LiveTabld/113213/Default.aspxtf54
VAP NFA Review Process for NFAs Submitted After August 1, 2014
http://www.epa.ohio.aov/portals/30/vap/docs/NFA%20Comment%20Letter%20Process%20-%20
EXTERNAL%20-%20Final%20Draft.pdf
Additional Information About Certified Professionals
http://epa.ohio.aov/derr/volunt/certification/cpapp.aspx
Additional Information About Certified Laboratories
http://epa.ohio.gov/derr/vap/pro lab/labs.aspx
Agency Contact
For more information about Ohio's VAP, contact:
Kelly Kaletsky
Email: kelly.kaletsky@epa.ohio.gov | Telephone: (614) 644-2304
Main Agency Website: http://www.epa.ohio.gov
Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action" \ 71
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WISCONSIN
WISCONSIN
DEPT. OF NATURAL RESOURCES
Program Overview
Wisconsin's Voluntary Party Liability Exemption (VPLE)
program is an elective environmental cleanup program.
Interested businesses, individuals, or local governments
including the party that caused the contaminationare
eligible to participate in the program. The voluntary party
can be the company that owned and operated a facility, or
a new purchaser. Many developers, lenders, and prospec-
tive purchasers of brownfields choose this route versus
a traditional cleanup path because the VPLE program
provides certain liability assurances that may provide
comfort to investors and future property owners.
Most properties that had a discharge of a hazardous
substance are eligible for the VPLE, including some
landfills and sediment remediation projects. However,
some properties with solid and hazardous waste sites are
excluded from the VPLE process, including:
some larger landfills and landfills that require ongoing
active remedial action.
some hazardous waste treatment, storage, or disposal
facilities.
any hazardous waste disposal facility that was issued
a license under applicable Wisconsin statutes or rules,
for a period of long-term care following the facility's
closure.
a property listed or proposed to be listed on the Nation-
al Priorities List.
The Wisconsin Department of Natural Resources (WIDNR)
administers the VPLE. Benefits of participating in the VPLE
include clear and certain assurance that all contamination
on a property is cleaned up to the satisfaction of the state;
protection from environmental liability that is transferable
to future owners; and protection to the owner if the remedy
fails or environmental standards change.
Properties cleaned up through the VPLE process must
conduct the environmental investigation and response
actions in accordance with the same cleanup standards as
any environmental cleanup conducted in Wisconsin.
VPLE Program Process
Summary
The applicant submits a VPLE
application to WIDNR with a non-
refundable $250 application fee for
each property.
The applicant submits a $4,000
deposit for properties one acre
or larger or $2,000 for smaller
properties within 30 days after
receiving WIDNR acknowledgment of
receiving the application.
The applicant submits the results of
Phase I and Phase II environmental
site assessments to WIDNR. If
the applicant owns the property or
caused the discharge, the applicant
must immediately notify WIDNR of
any hazardous substance discharge.
WIDNR approves the environmental
site assessments.
The applicant completes the
environmental investigation and
submits a report and a remedial
action options report to WIDNR.
Upon WIDNR's approval, the
applicant conducts a cleanup of the
property and any contamination that
migrated off the property.
Once the cleanup is complete and
all requirements for case closure are
met, the applicant requests a closure
letter and a certificate of completion
from WIDNR and submits all
applicable fees. If natural attenuation
is part of the cleanup, the applicant can
request the certificate of completion
before the groundwater meets
enforcement standards by submitting
the insurance fee and application
required under Wsconsin law.
(continued on next page)
72 | Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action'
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(continued from previous page)
' WIDNR issues a certificate of
completion if the applicant meets all
appropriate requirements, including
payment of fines and fees. If oversight
costs are less than the advance
deposit, WIDNR sends a refund to the
applicant.
' The applicant maintains and monitors
the property as required by any
conditions listed in the certificate of
completion.
Certificate of Completion or Case
Closure Letter
By entering the VPLE process, a party can earn a certifi-
cate of completion. A certificate of completion provides the
party protection from future liability for past contamination.
WIDNR issues a certificate of completion when it deter-
mines that the party met all requirements and complied
with administrative rules. WIDNR must determine that the
property and any off-site discharges were satisfactorily
restored to the extent practicable, and the harmful effects
from the discharge were minimized, including any discharg-
es that migrated off the property. WIDNR also determines
that the applicant paid all applicable fees. The length of
time it takes for a party to receive a certificate of comple-
tion after the party submits an application ranges from five
months to more than five years. Certificates of completion are transferable to future property owners.
There are three protections granted after WIDNR issues a certificate of completion: 1) no further response
actions are needed if environmental standards change; 2) the state will not hold the property owner liable if
an approved cleanup remedy is later discovered to have failed to fully restore the environment; and 3) the
state will not hold the property owner liable for contamination that is cleaned up but later found to be more
extensive than originally thought. These protections apply only to releases that occurred on the property
before WIDNR approved the site investigation. The exemption does not cover any discharges that occur
after WIDNR approved the site investigation.
Businesses cleaning up brownfields in Wisconsin that do not use the VPLE process can obtain a case
closure /efterwhen the state approves the remedial action.
Additional Resources
Wisconsin's Voluntary Party Liability Exemption Fact Sheet
http://dnr.wi.gov/files/PDF/pubs/rr/RR506.pdf
Other Information, Guidance and Forms
http://dnr.wi.gov/topic/brownfields/vple.html
Guidance on Case Closure and the Requirements for Managing Continuing Obligations
http://dnr.wi.gov/files/pdf/pubs/rr/rr606.pdf
Wisconsin Statute for Chapter 292, Remedial Action
http://docs.legis.wisconsin.gov/statutes/statutes/292.pdf
Agency Contact
For more information about Wisconsin's VPLE, contact:
Michael Prager
Email: michael.prager@wisconsin.gov | Telephone: (608) 261-4927
Main Agency Webpage: http://dnr.wi.gov/
Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action" \ 73
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74 | Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action'
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REGION 6
View of Floyd Point Dow Woodbine-Dow Chemical, Petersburg, TX
Devastation from Hurricane Katrina, LA
Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Act/on" | 75
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ARKANSAS
ADEQ
ARKANSAS
Department of Environmental Quality
Program Overview
The Arkansas Department of Environmental Quality
(ADEQ) offers two programs to facilitate the cleanup and
revitalization of underused and potentially contaminated
properties. The Elective Site Cleanup Program (ESCP)
allows responsible parties to enter into an agreement with
ADEQ to perform a voluntary cleanup of a contaminated
site. The ESCP does not offer a release of liability The
ESCP does offer participants a means to address historic
contamination on their sites without penalty and with known
objectives.
The Arkansas Brownfield Program (ABP) provides liability
protection for nonliable prospective purchasers of previous-
ly contaminated properties who enter into and complete
the conditions within an implementing agreement. To
promote the redevelopment of brownfields, the ABP offers
a release from liability for past contamination to prospective
purchasers of properties with real or perceived hazardous
substance contamination.
ESCP No Further Action
Determination Letter, ABP
Certificate of Completion
Under the ESCP, responsible parties enter into an agree-
ment with ADEQ's Hazardous Waste Division Enforce-
ment Section to pay for site investigation and agree to
prepare a remedial plan and complete site remediation to
ADEQ's satisfaction. After remediation, ADEQ issues a
no further action determination letter stating that there are
no further requirements related to the investigation of the
identified area(s) of concern of hazardous substances at
the site. It is conditioned on a specific property use and
may include land use controls such as maintenance, air
monitoring, and deed restrictions of groundwater use.
The ABP allows prospective purchasers of potential-
ly contaminated properties to enter into an agreement
with ADEQ for liability protection from fines or penalties
against responsible parties. Individuals, companies, or
lenders that do not hold (or have held) title to the proper-
ty and are not responsible for contamination at the site
are eligible to participate in the ABP. Eligible properties
include abandoned or underutilized industrial, commer-
ESCP Process Summary
The responsible party submits
a letter to ADEQ requesting
participation in the ESCP.
ADEQ and participant enter into an
elective site cleanup agreement.
Applicants pay applicable ADEQ staff
document review fees.
The participant submits a sampling
and analysis plan (SAP) that
includes a site history, sources of
contamination, exposure pathways,
proposed cleanup objectives, and
intended future land use. ADEQ
approves the SAP.
Participant submits a remedial plan
and implements the plan after ADEQ
approval.
The participant submits a completion
report to ADEQ.
ADEQ issues a no further action
determination letter to the participant.
ABP Process Summary
The applicant submits an application
to ADEQ.
The participant performs a
comprehensive site assessment.
The participant and ADEQ enter into
an implementing agreement.
The participant submits a property
development plan (POP).
ADEQ reviews the POP.
ADEQ writes a property development
decision document (PDDD) outlining
the needed remediation and provides
for a 30 day public comment period.
The participant performs remediation
on property, if necessary.
ADEQ issues a certificate of
completion to the participant.
76 | Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action'
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cial, agricultural, or residential properties for which no responsible party can reasonably be pursued for
cleanup. Benefits to the participant include defining legal and financial environmental liabilities early in the
process.
Under the ABP, eligible parties submit an application toADEQ and conduct a Phase 1 environmental site
assessment that meets ASTM E1527-13, Phase I environmental site assessment requirements. ABP may
require a letter of intent depending on when the site will be purchased in relation to liability parameters.
If the environmental site assessment identifies recognized environmental conditions, the participant
performs a comprehensive site assessment. ADEQ and the participant enter into an implementing agree-
ment that establishes the participant's legal and financial environmental liability parameters for the brown-
field property; ADEQ considers the Implementing Agreement an enforceable document.
The participant submits a property development plan that describes cleanup activities and develop-
ment plans for the property. ADEQ then issues a property development decision document (PDDD) that
describes the proposed plans for cleanup and the POP
ABP participants involved in the cleanup of a brownfield site are released from liability for past contam-
ination addressed in the implementing agreement and the PDDD if they redevelop the site according to
provisions mutually agreed upon in the two documents. ADEQ issues a certificate of completion stating
that the response action is complete. The liability release is transferable as long as all terms of the imple-
menting agreement, PDDD, and associated restrictions are maintained.
Additional Resources
Arkansas Elective Site Clean-up Program
http://www2.adeq.state.ar.us/hazwaste/branch ie/esca.aspx
ADEQ's ESCA Agreement
http://www2.adeq.state.ar.us/hazwaste/branch ie/pdfs/esca.pdf
ADEQ's Sampling and Analysis Plan Template
http://www2.adeq.state.ar.us/hazwaste/branch tech/pdfs/sap template with hasp and qapp.pdf
ADEQ's Brownfields Program:
http://www2. adeq. state, ar. us/hazwaste/bf/
ADEQ's Brownfields User's Guide:
http://www2.adeq.state.ar.us/hazwaste/bf/pdfs/users guide 02-12-2015.pdf
Agency Contacts
For more information about Arkansas' ESCP, contact:
Penny Wilson
Email: wilson@adeq.state.ar.us | Telephone: (501) 682-0868
For more information about Arkansas'ABP, contact:
Terry Sligh
Email: terry@adeq.state.ar.us | Telephone: (501) 682-0867
Main Agency Website: http://www2.adeq.state.ar.us
Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action'
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LOUISIANA
Program Overview
DEQ
LOUISIANA^
VRP Process Summary
The participant submits a voluntary
remedial investigation application, a
$500 fee, and an investigation work
plan.
After implementation of the work
plan, the participant submits an
investigation report summarizing the
nature and extent of contamination
at the identified area of immovable
property.
The participant submits an
application, another $500 fee, and a
voluntary remedial action work plan.
The participant submits a voluntary
remedial action report after cleanup
is complete.
If remediation goals are met, LDEQ
issues a certificate of completion
releasing the participant from liability.
The Louisiana Department of Environmental Quality
(LDEQ) administers the state's Voluntary Remediation
Program (VRP). The VRP provides a mechanism for
property owners, potential owners, or others to clean up
contaminated properties and receive a release of liabil-
ity for further cleanup of historical contamination at a
site. This release of liability flows to future owners of the
property.
Through the VRP, LDEQ provides administrative, techni-
cal, and legal incentives to encourage the cleanup,
redevelopment and reuse of brownfield properties. All
properties are eligible for participation in the VRP except
permitted hazardous waste management units, those
listed on the National Priorities List, trust fund eligible
underground storage tanks, and sites that have pending
or unresolved federal environmental enforcement actions
related to proposed voluntary remediation. Both respon-
sible and non-responsible parties may participate in the
program, but only non-responsible parties are eligible to
perform "partial voluntary remedial actions" (see below).
Participants that successfully remediate a site under the
VRP receive a certificate of completion at the end of the
process, which releases the participant from liability for
further cleanup of historical contamination at the site.
Certificate of Completion
Remediation begins with an investigation work plan to determine the nature and extent of contamination
at the property. After LDEQ accepts the work plan, the participant performs an investigation and submits a
report summarizing the investigation's findings. If contamination is found, the participant submits a volun-
tary remedial action application to begin cleanup. After LDEQ approves the remedial action application,
the participant implements the remedial action. Once remediation is complete, the participant submits a
voluntary remedial action report.
If LDEQ determines that the site cleanup meets the remediation action goals, LDEQ issues a certificate
of completion. The certificate states that the participant and subsequent owners are not liable for further
cleanup of contamination at the site.
LDEQ also allows partial voluntary remedial actions to be undertaken under certain circumstances. A
partial voluntary remedial action is one in which not all discharges, disposals, or threatened discharges
or disposals are removed. However, partial voluntary remedial actions must be protective of public health
and the environment for the intended use of the property. Corresponding use restrictions for the property
must be recorded in parish records.
78 | Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action'
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Only non-responsible parties may apply to perform a partial voluntary remedial action or receive a certifi-
cate of completion for a partial voluntary remedial action. Applicants for a partial voluntary remedial action
follow the same process as for other voluntary cleanups, but applicants also must submit a partial volun-
tary remedial supplemental application form at the time of application.
Additional Resources
LDEQ Brownfields Initiative and VRP Program
http://www.deq.louisiana.gov/portal/PROGRAMS/BrownfieldsandVoluntarvRemediationProgram.aspx
LDEQ VRP Program Description
http://www.deq.louisiana.gov/portal/PROGRAMS/BrownfieldsandVoluntarvRemediationProgram/VRPPro-
gramDescription.aspx
LDEQ VRP Process Flow Chart
http://www.deq.louisiana.gOv/portal/Portals/0/RemediationServices/VRP/VRP%20flowchart.pdf
LDEQ Voluntary Remedial Investigation Application
http://www.deq.louisiana.gOv/portal/Portals/0/RemediationServices/VRPA/oluntarv%20Remedial%20
lnvestigation%20Application%20Form current.pdf
LDEQ Voluntary Remediation Application
http://www.deq.louisiana.gOv/portal/Portals/0/RemediationServices/VRPA/oluntarv%20Remedial%20
Application%20Form current.pdf
LDEQ Partial Voluntary Remedial Action Supplemental Application
http://www.deq.louisiana.gOv/portal/Portals/0/RemediationServices/VRP/Partial%20Voluntarv%20
Remedial%20Application current.pdf
Agency Contact
For more information about Louisiana's VRP, contact:
Duane Wilson
Email: brownfields@la.gov | Telephone: (225) 219-3719
Main Agency Website: http://www.deq.louisiana.gov/portal/
Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action'
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NEW MEXICO
Program Overview
New Mexico's Voluntary Remediation Program (VRP)
provides incentives for the voluntary remediation of
contaminated properties and encourages the redevel-
opment of such properties. Private, nonprofit, and public
entities are eligible for the program. The VRP offers
oversight of the assessment and cleanup of contaminated
properties, when such activities are undertaken voluntarily
at properties that are not involved in other regulatory or
enforcement actions.
Participants in the VRP are entitled to a certificate of
completion when they successfully complete the terms
of a Voluntary Remediation Agreement between the
New Mexico Environment Department (NMED) and the
participant. NMED may not initiate an enforcement action
against a participant for the contamination that is the
subject of the voluntary remediation agreement as long
as the participant successfully implements the agreement
within a reasonable time. After receipt of the certificate of
completion from NMED, future purchasers and lenders
are afforded liability protection for any previous contami-
nation at the property that was addressed under the VRP
agreement.
Certificates of Completion and
Covenants Not to Sue
The VRP offers a certificate of completion document-
ing that site conditions meet applicable standards, and
a covenant not to sue for prospective purchasers and
future owners. The participant is entitled to a certificate of
completion when the terms of the voluntary remediation
agreement are successfully completed. The certificate of
completion confirms that the contamination was mitigated
to the satisfaction of NMED or that contamination issues
on the property were satisfactorily addressed. If post-com-
pletion requirements are necessary, such as monitoring,
landuse restrictions, or engineering controls, NMED
issues a conditional certificate of completion that identifies
the required actions.
Upon successfully completing remediation, a prospective
purchaser that did not contribute to the contamination
at the site receives a covenant not to sue from NMED
VRP Process Summary
The applicant submits a VRP
application, including a preliminary
work plan, to NMED. NMED
evaluates the submittal and notifies
the applicant if it needs additional
information.
NMED informs the applicant of
conditional eligibility and sends
a draft voluntary remediation
agreement.
Upon notification of conditional
eligibility, the applicant has 10 days
to initiate a 30-day public notice and
comment period.
After the public comment period
ends, NMED notifies the applicant of
its final eligibility determination and
any modifications to the voluntary
remediation agreement. Once both
parties sign the final agreement,
the applicant becomes a VRP
participant.
Unless the participant demonstrates
that further investigation and cleanup
are unnecessary at the site, the
participant must submit a final work
plan within 30 to 60 days of signing
the voluntary remediation agreement
for NMED's approval.
When remediation activities are
complete, the participant submits a
completion report and an affidavit of
completion. NMED has 45 days to
approve the report or identify data
gaps. After NMED approves the
completion report and the participant
pays any outstanding oversight
charges, NMED issues a certificate
of completion documenting that the
site meets applicable standards.
(continued on next page)
80 | Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action'
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for any direct or future liability for claims based upon
the contamination covered by the voluntary remediation
agreement. If a participant applied to the VRP prior to
purchasing the site and did not contribute to the contamina-
tion, the participant is entitled to a covenant not to sue.
Additional Resources
New Mexico's Voluntary Remediation Program
https://www.env.nm.gov/gwb/RemediationOversight/VRP.
html
Voluntary Remediation Program Frequently Asked Questions
https://www.env.nm.gov/gwb/RemediationOversight/VRP FAQs.html
Voluntary Remediation Program Regulations
http://164.64.110.239/nmac/parts/title20/20.006.0003.htm
Cleanup Regulations and Guidelines
https://www.env.nm.gov/gwb/NMED-GWQB-Regulations.htm
Agency Contacts
For more information about New Mexico's VRP program, contact:
AN Furmall
Email: ali.furmall@state.nm.us | Telephone: (505) 827-0078
Rebecca Cook
Email: rebecca.cook@state.nm.us | Telephone: (505) 827-0171
Main Agency Website: https://wwwenv.nm.aov/
(continued from previous page)
If a participant applied to the VRP
before purchasing the site and did
not contribute to the contamination,
the participant is entitled to a
covenant not to sue.
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OKLAHOMA
Program Overview
Oklahoma has two separate voluntary programs that
allow eligible parties to investigate and, if necessary,
clean up contaminated properties.
The Oklahoma Department of Environmental Quality
(DEQ)'s Brownfields Program provides a means for all
eligible entities to voluntarily investigate and, if warrant-
ed, clean up properties that may be contaminated. The
Brownfields Program includes sites ranging from old oil
refineries with multiple sources of contamination that
affect hundreds of acres to sites of less than an acre with
a single source of contamination. Properties under a DEQ
or EPA cleanup order may not qualify for the Brownfields
Program. The program utilizes a negotiated process for
site activities, and is voluntary. The Brownfields certifica-
tion program provides specific state liability relief.
The Oklahoma Corporation Commission (OCC) Oil and
Gas Division's Brownfields Program also provides a means
for private parties, public and governmental entities, and
nonprofits to voluntarily investigate and, if necessary, clean
up certain properties that may be contaminated. This
includes sites that are or may be impacted from petroleum,
or produced water/brine, gasoline, diesel, or other deleteri-
ous wastes related to oil and gas exploration and produc-
tion or from leaking underground petroleum storage tanks.
These sites generally have the option to participate in the
OCC Brownfields program.
DEQ Certificate of No Action
Necessary or Certificate of
Completion
DEQ Brownfields Process
Summary
The applicant submits eligibility
Information and meets with DEQ
personnel to discuss the project.
Both parties sign a voluntary consent
order.
The applicant submits a workplan for
site characterization.
The applicant submits a brownfields
proposal to DEQ requesting a
determination of no action, or
outlining a remediation plan, if
contamination is present.
DEQ reviews and approves the
agreement.
The applicant meets public
participation requirements. DEQ
considers comments and determines
if changes are necessary.
If no further remedial action is
warranted, DEQ issues a no action
necessary certificate. If remediation
is necessary, the applicant submits a
remediation plan for DEQ's approval.
The applicant completes the cleanup
and submits a written report to DEQ.
When cleanup is complete, DEQ
issues certificate of completion.
The applicant files the certificate in
county land records and submits a
stamped copy to DEQ.
Sites that are remediated through DEQ's Brownfields
Program are eligible for one of two certificates when the
work is complete. DEQ issues a certificate of no action
necessary when it determines that no remediation is
necessary for a planned use. DEQ issues a certificate of completion when it determines that the applicant
successfully completed the DEQ-approved risk based remediation. For completed brownfields actions for
which DEQ issued a brownfields certificate, DEQ is prohibited from assessing administrative penalties
or pursuing civil actions against the participants in the program, as well as any lender, lessee, successor,
or assign if they are in compliance with any post-certification conditions or requirements specified in the
certificate.
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Additional Resources
DEQ Brownfields Program
http://www.deq.state.ok.us/lpdnew/brownfindex.html
DEQ Brownfields Program Rules
http://www.deq.state.ok.us/rules/221.pdf
DEQ Brownfields Program Process
http://www.deq.state.ok.us/lpdnew/Brownfields/bfpath.pdf
DEQ Brownfields Checklist
http://www.deq.state.ok.us/lpdnew/Brownfields/ODEQBrownfieldsChecklist.pdf
OK OCC Brownfields Program
http://www.occeweb.com/og/brownfields.htm
Agency Contacts
For more information about Oklahoma's Brownfields Programs, contact:
Aron Samwel
Oklahoma DEQ
Land Protection Division
Email: aron.samwel@deq.ok.gov | Telephone: (405) 702-5123
Main Agency Website: http://www.deq.state.ok.us
Jeff Myers
Oklahoma Corporation Commission
Brownfields Manager
Email: j.myers@occemail.com | Telephone: (405) 522-2764
Main Agency Website: http://www.occeweb.com
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TEXAS
Program Overview
The Texas Voluntary Cleanup Program (VCP) provides
administrative, technical, and legal incentives to encour-
age the cleanup of contaminated sites in Texas. All
non-responsible parties, including future lenders and
landowners, receive protection from liability under Texas
law for cleanup of sites under the VCP. As a result, many
unused or underused properties may be restored to
uses that are economically productive or beneficial to the
community. Under the VCP, site cleanups follow a stream-
lined approach to reduce future human and environmental
risk to safe levels. The program is administered by the
Texas Commission on Environmental Quality (TCEQ).
The Railroad Commission of Texas (RRC) Voluntary
Cleanup Program (RRC-VCP) provides applicants an
incentive to remediate oil- and gas-related pollution by
participants as long as they did not cause or contribute
to the contamination. The RRC-VCP is very similar to
TCEQ's VCP. (A link to information about the RRC-VCP
program is provided in the Additional Resources section
on the next page.)
Any sites except the following are eligible to enter the VCP:
Sites that are subject to a response action under the
RRC authority.
Sites that are subject to TCEQ orders or certain permits
from TCEQ.
TCEQ
VCP Process Summary
The participant submits an
application, supporting documents,
and a $1,000 application fee to
TCEQ.
The participant signs a TCEQ or
Agreement and determines the
schedule of events. Participants
cannot start a cleanup before signing
a TCEQ Agreement.
The participant identifies
contamination on the property by
type, place, and levels.
The participant completes a
Response Action Plan that describes
how the participant will clean the
groundwaterand soils.
The participant performs remediation
activities and submits a Response
Action Completion Report to TCEQ.
TCEQ reviews and approves the
response action completion report.
The participant signs and notarizes
an affidavit certifying completion of all
necessary remediation activities.
TCEQ issues a certificate of
completion.
Sites where TCEQ enforcement action is pending.
After completion of the cleanup in the VCP program,
participants receive a certificate of completion from
TCEQ. The certificate of completion states that all non-responsible parties are released from liability under
state law for areas cleaned up under the VCP and covered by the certificate of completion.
Certificates of Completion
There are two types of certificates of completion that offer a non-responsible party protection from liability
under the Texas Health and Safety Code. A conditional certificate certifies that an applicant demonstrated
that long-term response actions (e.g., engineering controls, remediation systems, or post-closure institu-
tional controls) meet performance standards and are being implemented under requirements established
in the Texas Voluntary Cleanup Program. When TCEQ issues a final certificate, it certifies that an appli-
cant implemented or completed all requirements of the Texas voluntary cleanup agreement.
Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action'
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It is important to note that for TCEQ to issue a VCP certificate of completion for an entire site, the appli-
cant must provide adequate information to document that the entire site meets the applicable cleanup
standards. As an alternative, the applicant may pursue a VCP certificate of completion for only a portion of
the site, as a partial response action area.
Additional Resources
Texas's Voluntary Cleanup Program
http://www.tceq.state.tx.us/remediation/vcp/vcp.html
Application Form and Instructions
http://www.tceq.state.tx.us/assets/public/remediation/vcp/10241.pdf
VCP Guidance
http://www.tceq.state.tx.us/remediation/vcp/vcpguide.html
Legal Property Descriptions for VCP Certificates of Completion
http://www.tceq.state.tx.us/assets/public/remediation/vcp/legaldesc.pdf
Issues in the Texas Voluntary Cleanup Program
https://txpd.org/tpj/15/cleanup.html
Railroad Commission of Texas Voluntary Cleanup Program
http://www.rrc.state.tx.us/oil-gas/environmental-cleanup-programs/site-remediation/voluntarv-cleanup-program/
Agency Contact
For more information about Texas' VCP, contact:
Merrie Smith, PG.
Email: merrie.smith@tceq.texas.gov | Telephone: (512) 239-5051
Main Agency Website: http://www.tceq.state.tx.us/remediation/vcp/vcp.html
Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action'
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86 | Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Act/on'
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REGION 7
Revitalized landfill, Kansas City, KS
Rear view of Chemical Recovery Corporation in Blue Valley, Kansas City, MO
Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Act/on" | 87
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IOWA
Program Overview
The Iowa Department of Natural Resources (IDNR) has a
voluntary cleanup program, known as the Land Recycling
Program (LRP), which was created in 1997 with enact-
ment of the Iowa Land Recycling Program and Remedi-
ation Standards Act. The LRP was created to address
concerns that real or perceived contamination may
prevent properties from achieving their full potential.
The LRP is open to parties responsible for contamina-
tion and to innocent property owners and prospective
purchasers of contaminated properties. Parties wishing to
enroll in the LRP must have property access to perform
assessment and cleanup activities. For a property to be
enrolled in the LRP, contamination at levels exceeding
maximum contaminant levels or appropriate statewide
standards must be present.
Sites excluded from the program include those contam-
inated from underground storage tanks, properties on
the National Priorities List, animal feeding operations,
properties subject to some types of enforcement actions
or consent orders (unless the enforcement agency gives
permission), and properties where there is a commingling
of eligible and ineligible situations.
At the end of the LRP process, IDNR issues a no further
action certificate that certifies the participant complet-
ed remediation and is not required to complete further
response actions. The participant also is covered by a
covenant not to sue that releases the participant from
liability under state environmental statutes.
No Further Action Certificate and
Covenant Not to Sue
The LRP process includes both mandatory and recom-
mended steps for the participant to follow. IDNR encour-
ages a collaborative approach that results in an open
and flexible process. To ensure the LRP process is the
best approach, IDNR recommends that LRP participants
discuss the site and contamination with IDNR staff before
submitting an application.
Once a participant demonstrates that an affected area
meets applicable cleanup standards and IDNR certifies
LRP Process Summary
The participant submits an
application and $750 fee after
discussing the site with IDNR.
IDNR prepares a participation
agreement that addresses access
to the property, reimbursement by
the participant for state oversight
costs, financial assurances, project
scoping, and the development of
a general timetable for completing
assessment and cleanup activities.
The participant must pay a fee that is
not to exceed $7,500.
The participant must fully define the
extent of contaminants present in
soils or groundwater, or must carry
out additional site assessment field
activities to define the nature and
extent of contamination and media
affected, and must submit a site
assessment report to IDNR.
The participant prepares a risk
evaluation and response action
that outlines the planned course of
action for either direct remediation of
contaminants, the use of institutional
controls, engineering controls, or a
combination of all, in order to mitigate
the contamination addressed.
The participant submits the risk
evaluation/response action (RE/
RA) document for IDNR's approval,
unless IDNR grants permission to
continue without approval.
After additional environmental
sampling or monitoring to confirm
compliance with statewide standards
or other risk management controls
approved within the RE/RA, the
participant submits a final report for
IDNR approval.
(continued on next page)
| Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action'
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that the participant has met all requirements for comple-
tion, IDNR issues a no further action (NFA) certificate. The
NFA certificate indicates that the remediated site requires
no further response action. In some cases, the NFA certif-
icate may be provisional, based on the need for continued
monitoring or the maintenance of necessary institutional
or technological controls. The NFA certificate is transfer-
able to future site owners.
(continued from previous page)
IDNR issues a no further action (NFA)
certificate.
IDNR can reopen sites and or revoke the NFA status if the department finds that necessary institutional or
technological controls are ineffective and cannot be, or are not, corrected. IDNR also may revoke a site's
NFA status or terminate its enrollment in the LRP on the basis of fraud, misrepresentation, or failure to
disclose material information. IDNR also may terminate a site's LRP enrollment in the event of significant
failure to comply with schedules or pay required fees. An enrollee may withdraw from the LRP at any time,
but forfeits its NFA status by doing so.
After IDNR issues the NFA certificate, the department issues a covenant not to sue. The covenant states
that the participant complied with the requirements in the LRP. It also releases the participant from liability
to the state to perform additional environmental assessment, remedial activity, or response action.
Additional Resources
IDNR Land Recycling Program
http://www.iowadnr.gov/Environmental-Protection/Land-Qualitv/Contaminated-Sites/Land-Recvcling-Pro-
gram-LRP
Iowa Brownfields Program
http://www.iowadnr.gov/Environmental-Protection/Land-Qualitv/Contaminated-Sites/Brownfields
Agency Contact
For more information about Iowa's LRP, contact:
Amie Davidson
Email: amie.davidson@dnr.iowa.gov | Telephone: (515) 725-8307
Main Agency Website: http://www.iowadnr.gov/
Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action'
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KANSAS
Program Overview
^»^»*****,^ak
Kr*********»\\K
msas
Department of Health
and Environment
The Kansas Department of Health and Environment
(KDHE)'s Bureau of Environmental Remediation admin-
isters Kansas' Voluntary Cleanup and Property Redevel-
opment Program (VCPRP). Under the VCPRP, eligible
parties, including owners, developers, and prospective
purchasers, voluntarily address environmental issues
associated with buying, selling, reusing, or redevelop-
ing contaminated properties. Properties eligible for the
VCPRP are considered low to moderate priority sites
that generally do not represent an immediate danger to
human health or the environment. KDHE provides techni-
cal guidance and issues no further action determination
letters after appropriate cleanup activities are complete.
Any party willing to voluntarily clean up a contaminated
property is required to submit an application to KDHE.
Parties must pay a fee to cover KDHE oversight costs.
KDHE classifies the property's contamination in accor-
dance with the state established classification system.
The classification system provides flexibility with regard
to cleanup program requirements, based upon the level
of contamination at a property. Each classification level
is subject to a defined investigative scope of work devel-
oped by KDHE. There are four classes:
Class I is for sites impacted by contamination that origi-
nates from another property and is being addressed by
an appropriate state response program. It requires an
initial deposit of $1,000.
Class II applies to sites with suspected or confirmed
soil contamination that is migrating off the property,
but where there is no groundwater contamination. It
requires an initial deposit of $3,000.
Class III is for sites with suspected or confirmed soil
and groundwater contamination that is not migrating off
the property. It requires an initial deposit of $4,000.
Class IV applies to sites with suspected or confirmed
soil and groundwater contamination both on and off the
property. It requires an initial deposit of $5,000.
The voluntary party may withdraw from the program at
any time provided that the property's condition, from a human health and environmental perspective, is no
worse than before the property was enrolled in the program. Participants follow a clearly defined, stream-
lined assessment and cleanup process.
VCPRP Process Summary
The participant submits an
application and a $200 fee.
The participant submits a signed
voluntary agreement and an initial
deposit that is determined based on
the site's classification.
KDHE determines if a voluntary
investigation is needed.
The participant identifies the
contamination sources, delineates
the contamination areas, and submits
the investigation report for KDHE's
approval.
KDHE reviews and approves the
voluntary site investigation report.
The participant submits a cleanup
proposal to KDHE.
KDHE reviews and approves the
cleanup proposal.
The participant then prepares a
cleanup plan.
KDHE places a legal notice or
advertisement in a local newspaper
in general circulation in the vicinity of
the contaminated property.
After public comment, KDHE
approves the voluntary cleanup plan.
The participant implements the
cleanup plan and submits a cleanup
report for KDHE's approval. The
participant implements environmental
use controls, if needed.
KDHE approves the cleanup report
and issues a no further action
determination.
90 | Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action'
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No Further Action Determination Letter
Once all program requirements are met, KDHE may issue a no further action determination letter that
provides assurance that no further action is required as long as conditions at the property do not change.
KDHE provides this assurance to encourage property owners to clean up and redevelop contaminated
properties.
No further action determinations:
may be disclaimers, limitations, or conditional terms for the property.
apply only to identified conditions on the property.
are based upon the applicable statutes, rules, and regulations that exist at the time the project is
complete.
In general, KDHE issues no further action determinations in five types of situations: (1) where no contami-
nation is found; (2) where contamination found during an environmental site assessment or VCI presents
no significant risk and contaminant levels are below federal or state standards; (3) where contamination at
the site originates exclusively from an off-property source and the source property is being addressed; (4)
where verification sampling confirms that the property was cleaned up to the standards in the voluntary
cleanup plan; or (5) where the contamination remaining at the property presents no significant risks based
on current and future land use, and is not migrating off-site. An environmental use control (EUC) has been
placed on the property to prevent further exposure to the remaining contamination.
To close out a project, the voluntary party must record the "no further action" determination letter, with any
required attachments, with the Register of Deeds in the county in which the property is located. The "no
further action" determination becomes a permanent record for the property successors and assignees
and is also retained as a permanent record by KDHE. After receiving an affidavit that the determination
has been recorded, KDHE will issue a closure letter officially terminating the voluntary agreement. KDHE
will refund any leftover deposit money to the voluntary party within 60 days.
Additional Resources
KDHE's VCPRP
http://www.kdheks.aov/ars/vcp/index.html
VCPRP Manual
http://www.kdheks.aov/ars/vcp/download/VCPRPManual 2011.pdf
VCPRP Application
http://www.kdheks.aov/ars/vcp/download/vcp application.pdf
Agency Contact
For more information about Kansas' VCPRP, contact:
Deanna Ross
Email: dross@kdheks.gov | Telephone: (785) 296-8064
Main Agency Website: http://www.kdheks.gov/
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MISSOURI
MISSOURI
DEPARTMENT OF
NATURAL RESOURCES
Program Overview
Owners of contaminated property in Missouri can partic-
ipate in the Brownfields/Voluntary Cleanup Program
(BVCP). The Missouri Department of Natural Resourc-
es (MoDNR) Hazardous Waste Program's Brownfields/
Voluntary Cleanup Section administers the BVCP and
oversees voluntary cleanups for properties that are
abandoned or underutilized because of contamination
from hazardous substances. The program promotes the
selling, financing, and development of properties that
otherwise might be left stagnant.
Participating in the Brownfields/Voluntary Cleanup
program allows a landowner to obtain a certificate of
completion (equivalent to a no further action letter) from
MoDNR at the end of a successful voluntary cleanup
project. While the certificate does not give a buyer or
seller a full release from liability for environmental contam-
ination, it gives parties a reasonable level of confidence
that the property poses no significant risk for liability in the
future. This certificate can greatly reduce the risk of incur-
ring environmental liability associated with such proper-
ties. Sites where residual contamination is controlled or
safely left in place on the property under management
of a restrictive covenant enter a long term stewardship
program after MoDNR issues a certificate of completion.
Certificate of Completion
A site must participate in the BVCP to obtain a certificate
of completion. The certificate of completion states that the
site is cleaned up to MoDNR's standards and requires no
further remedial action, unless additional contamination is
discovered. The certificate pertains to the property itself
and therefore protects both current and future owners of
the property.
The certificate of completion provides applicants with
assurance that as long as no new negative environmental
conditions are discovered and no subsequent releases of
hazardous substances occur at the property, MoDNR will
not bring an action for additional assessment or remedi-
ation. However, under the BVCP, a certificate of comple-
tion does not act as a release from liability for claims of
third parties or the government, and does not act as a
covenant not to sue between the applicant and MoDNR.
BVCP Process Summary
The applicant submits a BVCP
application form and a consent for
access to property form to MoDNR
with a $200 application fee, copies
of all environmental site assessment
reports, and other supporting
documentation. At a minimum, the
application must include a Phase I
environmental site assessment report.
If the BVCP accepts the site, MoDNR
and the applicant sign a letter of
agreement. The applicant pays the
required deposit.
Within 180 days (usually 60),
MoDNR reviews the site assessment
reports and determines if further
site assessment or remediation is
necessary. If additional assessment
is necessary, the participant submits
a site assessment work plan. Upon
MoDNR's approval of the plan, the
applicant performs the additional site
assessment.
After the site assessment, the
participant completes a risk
assessment to determine if risk
management is necessary. If so, the
applicant submits a risk management
(remediation) plan to MoDNR for
approval. The applicant performs
the activities in the approved plan
and schedule. MoDNR provides
oversight that may include document
review, field observation, and
collecting samples. The applicant
submits quarterly progress reports if
these activities last longer than one
calendar quarter.
The participant submits a final
report to MoDNR when the cleanup
is complete. MoDNR issues a
(continued on next page)
92 | Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action'
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Additional Resources
Missouri Department of Natural Resources Brownfields/
Voluntary Cleanup Program
http://dnr.mo.gov/env/hwp/bvcp/hwpvcp.htm
Brownfields/Voluntary Cleanup Program Application Form
http://dnr.mo.gov/forms/780-1712-f.pdf
Agency Contact
(continued from previous page)
certificate of completion when it
determines that the cleanup meets
the established cleanup goals for the
site or the site requires no remedial
action.
For more information about Missouri's BVCP, contact:
Scott Huckstep
Chief, Brownfields/Voluntary Cleanup Section
Hazardous Waste Program
Email: scott.huckstep@dnr.mo.gov | Telephone: (573) 526-8913
Main Agency Website: http://dnr.mo.gov/
Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action'
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NEBRASKA
Program Overview
The Nebraska Voluntary Cleanup Program (VCP) is a
fee-based cleanup program administered by the Nebras-
ka Department of Environmental Quality (NDEQ). Under
the VCP, NDEQ reviews and oversees efforts by property
owners, prospective buyers, developers, lending institu-
tions, or others wishing to initiate voluntary environmental
cleanup activities at contaminated sites.
Nebraska's VCP is a streamlined, results based approach
to cleaning up contaminated sites that minimizes the
number of steps in the regulatory review process and
focuses on goals or objectives rather than a rigid and
structured process. VCP applicants have the latitude to
determine how to achieve cleanup goals, with the guidance
and oversight of the NDEQ. This enhances the applicant's
responsibility for achieving the cleanup goals as agreed
upon for the site while maintaining compliance with all
applicable state and federal environmental regulations.
No Further Action Letter
When an applicant completes cleanup at a site in accor-
dance with an approved remedial action plan, the NDEQ
reviews the remedial actions to determine that the site was
cleaned up as proposed and there is no threat to human
health or the environment. If the cleanup is satisfactory,
NDEQ prepares a no further action letter to declare that
no further action is necessary, and the property is ready
for redevelopment and reuse. The state's no further action
letter does not contain a covenant not to sue.
Additional Resources
Nebraska Voluntary Cleanup Program
http://dea.ne.aov/NDEQProa.nsf/OnWebA/CP
Voluntary Cleanup Program - Process and Forms
http://dea.ne.aov/Publica.nsf/paaes/05-162/tfSecO
Voluntary Cleanup Program - Guidance
http://dea.ne.gov/Publica.nsf/paaes/05-162
VCP Process Summary
The site owner (applicant) completes
a thorough environmental site
investigation. If interim remedial
actions are necessary to address
an imminent threat to human health
or the environment, the applicant
may complete these actions before
applying to the VCP.
The site owner submits an application
form, non-refundable $2,000
application fee, and a refundable
$3,000 deposit for oversight
costs. NDEQ and the applicant
sign an agreement describing the
expectations of the applicant and
NDEQ regarding the voluntary
cleanup of the site.
NDEQ reviews and approves the
application. The site owner submits a
remedial action plan (RAP) within 90
days.
Once NDEQ approves the RAP, the
site owner may begin site cleanup.
Cleanup must be initiated within six
months of NDEQ's approval of the
RAP, and cleanup activities must
be completed within 24 months.
NDEQ monitors the implementation
of all remedial actions, and provides
guidance as necessary.
Within 60 days of completion of
remedial actions, the site owner must
prepare a remedial action report
(RAR) documenting the remedial
actions, and demonstrating that the
site is cleaned up as proposed in the
approved RAR
NDEQ reviews the RAR. If the RAR is
approved, NDEQ prepares a no further
action letter to declare that no further
action is necessary, and the property is
ready for redevelopment/reuse.
94 | Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action'
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Agency Contact
For further information on the Nebraska VCP, please contact:
Mike Felix
NDEQ Remediation Section
Email: mike.felix@nebraska.gov | Telephone: (402) 471-4210
Main Agency Website: http://deq.ne.gov
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96 | Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action'
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,; ''-
'' *'-'
Roots Elementary Charter School at Holly Square, Denver, CO
Greenscape on the third floor of the LDS Conference Center, Salt Lake City, UT
Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Act/on" | 97
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COLORADO
COLORADO
Department of Public
Health & Environment
Program Overview
Colorado's Voluntary Cleanup and Redevelopment
Program (VCUP) was created in 1994 with enactment of
the Voluntary Cleanup and Redevelopment Act. The Act
created the VCUP to facilitate the redevelopment and
transfer of contaminated properties.
Properties that sit untouched because of real or perceived
contamination can be rehabilitated using Colorado's
Brownfields Program in conjunction with the VCUP. The
Brownfields and VCUP programs provide public and
private property owners with the resources to facilitate
cleanups, as well as assurances against regulatory
enforcement. Cleanup decisions under the VCUP are
based on existing standards and the proposed use of
the property. The Colorado Department of Public Health
and Environment (CDPHE) provides no construction or
cleanup oversight. The property owner is responsible for
cleanup and verification of compliance.
Colorado's VCUP approves both the federal and state
remedial plans in one step. Therefore, banks will accept
a no further action letter (also referred to as a no action
determination) from the state program as assurance that
neither CDPHE nor U.S. EPA will issue an enforcement
action for past contamination at a property cleaned up
under the VCUP.
No Action Determination
A no action determination is a letter to the applicant that
states that no further action is required at that time. The
state provides an approval letter indicating that based on
the information provided, no further action is necessary
if the cleanup or no action plan is complete as proposed.
For sites cleaned up under the VCUP, the letter is based
on receipt of a completion report certifying that the cleanup
plan is complete as approved. Property owners applying for
a no action determination must pay a $2,000 fee. CPHDE has 45 days to review the application.
As long as the land use stays the same, the state will not require any additional cleanup. The No Action
Determination letter does not include a covenant not to sue. If the property is subsequently sold, the
approval runs with the land, provided the land use stays the same.
VCUP Process Summary
After discussing site options with
VCUP staff, the property owner
submits an application for the
approval of a voluntary cleanup plan
for a property where remediation may
be necessary, or an application for
a no action determination (NAD) for
sites where remediation is complete
or not necessary to protect human
health and the environment.
The applicant must submit a $2,000
fee to CDPHE with the application for
either a cleanup plan or NAD.
CDPHE approves or denies an
application, usually within 45 days.
Within 45 days of completing the
cleanup, the applicant must submit
to CDPHE a report and certification
from a qualified environmental
professional that the remediation is
complete according to the approved
cleanup plan. Following review of
the cleanup report and certification,
CDPHE issues a concurrence letter
to the applicant.
Following implementation of an
approved cleanup plan, the applicant
certifies that the cleanup was
completed in accordance with the
voluntary cleanup plan. Applications
for NADs are approved in writing by
CDPHE.
98 | Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action'
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Additional Resources
Colorado Brownfields Program
https://www. colorado.gov/pacific/cdphe/brownfields
Colorado Petroleum Brownfields Program
https://www. colorado.gov/pacific/ops/BrownfieldsProgram
Voluntary Cleanup Roadmap: A How-To Guide
https://www.Colorado.gov/pacific/sites/default/files/HM Voluntarv-Cleanup-Roadmap-02 O.pdf
CDPHE Voluntary Cleanup and No Action Determination Processes
https://www.Colorado.gov/pacific/sites/default/files/HM VCRA-no-action-determination-processes-flow-
chart_1.pdf
Voluntary Cleanup and No Action Determination Application Format
https://www.colorado.gov/pacific/sites/default/files/HM VCRA-NAD-report-format.pdf
Agency Contact
For more information about Colorado's VCUP, contact:
Doug Jamison
Unit Leader
Email: doug.jamison@state.co.us | Telephone: (303) 692-3404
Fonda Apostolopoulos
VCUP Program Coordinator
Email: fonda.apostolopoulos@state.co.us | Telephone: (303) 692-3411
Main Agency Website: https://www.colorado.gov/cdphe/
Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action" \ 99
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MONTANA
DEQ.
Montana Department >^^^^^*r
of Environmental Quality
Program Overview
The Voluntary Cleanup and Redevelopment Act (VCRA)
is part of the Montana Comprehensive Environmental
Cleanup and Responsibility Act (CECRA). The Montana
Department of Environmental Quality (DEQ)'s Site
Response Section administers the VCRA. The VCRA
encourages prompt cleanup of properties impacted by
hazardous substances, encourages the sale or redevel-
opment of impacted properties, and minimizes adminis-
trative processes and redevelopment costs. The VCRA
provides interested parties with a method of determining
the cleanup responsibilities for reuse or redevelopment.
Prospective applicants (such as property owners, opera-
tors, or prospective purchasers) ask DEQ to approve a
voluntary cleanup plan (VCP). Applicants may submit
VCPs for facilities whether or not they are on the state
CECRA Priority List. Under this act, DEQ cannot take
enforcement action against the party conducting an
approved voluntary cleanup for work addressed in the
plan. Eligible sites must be remediated within 60 months.
The applicant must reimburse DEQ for any costs that the
state incurs during the review and oversight of a voluntary
cleanup effort. Liability protection is provided to entities
that otherwise would not be responsible for site cleanup.
Letter of Closure and No Further
Action Determination
Once the applicant fully implements the VCP, the appli-
cant submits a construction completion report (CCR) to
DEQ and can petition for closure and delisting of the site,
if applicable. Upon approval of the CCR, DEQ issues a
letter of closure. DEQ offers a 30 day public comment
period on the delisting. Following the public comment
period, the facility is delisted, if appropriate.
On occasion, a VCRP applicant conducts cleanup without
the benefit of an approved voluntary cleanup plan and
then seeks a determination from DEQ that no further
action is necessary. There are at least two situations for
which DEQ requires an applicant to submit a no further
action VCP to obtain a letter of closure from DEQ:
Letter of Closure for Sites
Implementing a VCP
The applicant submits to DEQ an
environmental assessment (EA) of
the property or facility.
Once DEQ determines that the
environmental assessment is
complete, the applicant submits a
remediation proposal (RP) to DEQ.
After DEQ determines that the RP is
complete, the applicant submits the
EA and RP for public comment and
DEQ approval.
Following public comment, DEQ
approves the applicant's VCP and
publishes a notice of approval.
The applicant completes the cleanup
within 60 months of approval of the
VCP.
Upon full implementation of the VCP,
the applicant submits a construction
completion report (CCR) to DEQ and
petitions for closure and delisting, as
appropriate.
DEQ issues a letter of closure upon
approval of the CCR.
DEQ offers a 30-day public comment
period on the delisting of the site.
Following the public comment period,
DEQ delists the facility.
No Further Action VCP
Determination and
Letter of Closure
The applicant seeks a no further
action VCP determination when
they conduct a site cleanup before
receiving an approved VCP, or when
no cleanup is necessary at the site.
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100 | Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action'
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(continued from previous page)
If cleanup is necessary, the applicant
conducts site cleanup without an
approved VCP.
1 The applicant requests a no further
action determination from DEQ.
i DEQ determines that the site requires
no further action (either no cleanup
is necessary or the cleanup already
conducted meets the requirements of
the VCRA).
DEQ issues a letter of closure.
A property where cleanup has occurred outside of a
legal order or consent decree, or without formal DEQ
oversight; and
A property that relies on a facility-specific risk analysis
to determine that cleanup is not necessary.
Generally, a no further action VCP must meet all the
VCRA requirements that must be met for a VCP submit-
ted for a site that requires action, but may be somewhat
briefer. Typical remedial alternatives evaluated in no
further action VCPs include capping, complete removal
and offsite disposal, or an onsite repository. Typically,
no further action VCPs are submitted for properties with
residual contaminant levels that are below acceptable
cleanup levels.
Additional Resources
Voluntary Cleanup and Redevelopment Act
https://deq.mt.gov/Land/StateSuperFund/vcra
VCRA Application Guide
https://deq.mt.gov/Land/statesuperfund/vcraguide
CECRA Priority List
https://deq.mt.gov/Land/statesuperfund/cecralistformats
Montana's Brownfields Programs
https://deq.mt.gov/Land/brownfields/mtbrownfieldsprograms
Montana VCRA Process Diagram
http://deq.mt.gov/Portals/112/Land/StateSuperfund/Documents/VCRA Guide/Fig1 vcraprocess.pdf
Agency Contacts
For more information about Montana's VCRA, contact:
Jason Seyler
Hazardous Substance Brownfields
Email: jseyler@mt.gov | Telephone: (406) 444-6447
Becky Holmes
Hazardous Waste Brownfields
Email: rholmes@mt.gov | Telephone: (406) 444-2876
Hayden Janssen
Petroleum Brownfields
Email: hjanssen@mt.gov | Telephone: (406) 444-6547
Moriah Bucey
State Superfund VCRA Contact
Email: mbucey@mt.gov | Telephone: (406) 444-6366
Main Agency Website: https://deq.mt.gov/
Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action" \ 101
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NORTH DAKOTA
NORTH DAKOTA
DEPARTMENT^ HEALTH
Program Overview
North Dakota does not have a formal state voluntary
cleanup program. The North Dakota Department of
Health's (NDDH) Waste Management Division (WMD) is
authorized under state statute as the primary regulatory
authority for hazardous waste. EPA provides funding,
oversight and technical assistance to NDDH via the
Comprehensive Environmental Response, Compensa-
tion, and Liability Act (CERCLA) Section 128(a) Response
Program funding. NDDH can use this funding for environ-
mental assessment and cleanup activities at brownfield
sites.
NDDH has guidance and requirements governing the use
of institutional controls as part of risk based cleanups.
NDDH also provides site-specific exemptions from liabil-
ity, for owners of real property that is contaminated with
substances regulated by the state, and who clean up the
property in accordance with state regulations.
Letters of No Further Remediation,
No Further Action, or Regulatory
Assurance
NDDH issues letters of no further remediation (NFR), no
further action (NFA), or regulatory assurance that provide
owners, operators, and lenders with liability protection
and exemptions from responsibility for further environ-
mental remediation under applicable North Dakota laws
and rules. An owner or operator of a site or property that
qualifies for an NFR or NFA letter and who complies
with the conditions NDDH requires will have a partial or
complete exemption from liability for previous contamina-
tion addressed under the state program.
In general, a responsible party who caused the contam-
ination will not be eligible for a responsibility exemption,
but a subsequent property owner will be eligible to apply
for an exemption from liability for past contamination.
Similarly, a lender who receives a letter of regulatory
assurance will have NDDH's assurance that the lender
will not be subject to any enforcement actions under
North Dakota's environmental laws with regard to existing
contamination or pollution on a property or site.
Liability Relief Application
Process
To review and process an application
for liability relief or exemption, NDDH
requires that property owners complete
these steps:
i The applicant must complete an
environmental site assessment.
The applicant must submit to
NDDH a completed and signed
application and the results of the
environmental site assessment.
To make a final determination on
the request, NDDH must have
adequate information to assess the
environmental conditions at the site.
If the data on file do not adequately
assess the site conditions, it is the
responsibility of the applicant to
submit an environmental assessment
of the property satisfying the intent
of the Phase II environmental site
assessment process or comparable
information that NDDH determines.
NDDH reviews the application for
completeness.
NDDH reviews the results of the
environmental site assessment and
available data.
NDDH makes a determination of
applicable institutional controls
(which the applicant may propose
and submit with request).
NDDH drafts environmental covenant
or ordinance (which the applicant
may propose and submit with its
request).
The applicant notifies the local
political subdivision, and the political
subdivision provides notice and
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The person requesting the exemption must complete
NDDH's application form providing basic information
about the applicant and the property. The business entity
or individual that owns or is purchasing the property must
submit the application for an NFR or NFA letter, and the
business entity's or property owner's name will be on the
deed as the legal owner.
Additional Resources
North Dakota's Brownfields Program
http://www.ndhealth.gov/WM/Brownfields/
Application Guideline for Brownfields Assistance
http://www.ndhealth.gov/WM/Brownfields/Applica-
tionGuidelineForBrownfieldsAssistancelnNorthDakota.pdf
Request for Responsibility Exemption/Regulatory
Assurance
http://www.nd.gov/eforms/Doc/sfn59226.pdf
Qualification for Responsibility Exemption/Regulatory
Assurance
http://www.ndhealth.gov/wm/Publications/Qualification-
ForResponsibilitvExemptionRegulatorvAssurance.pdf
Agency Contact
For more information about North Dakota's Brownfields
Program, contact:
Derek Hall
Environmental Scientist
Hazardous Waste Program
Email: dahall@nd.gov | Telephone: (701) 328-5166
Main Department Website: http://www.ndhealth.gov/
(continued from previous page)
opportunity for a public hearing
at the request of applicant (if an
environmental ordinance is proposed).
- The local political subdivision and
NDDH conduct a public ordinance
hearing (if necessary).
i NDDH writes a letter of regulatory
exemption.
i The applicant endorses the letter of
regulatory exemption.
i The applicant notifies contiguous
landowners (not necessary under
the ordinance option or for letter of
regulatory assurance to a lender).
The applicant files environmental
covenants and/or responsibility
exemption document (conveyed
through NDDH's letter of regulatory
exemption) with county recorder's
office (if needed).
The applicant returns the original
signed copy of agreements to NDDH
with copies of recorded covenants
showing county document numbers
and proof of landowner notification.
i The NDDH issues a no further action,
no further remediation, or a regulatory
assurance letter.
Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action" \ 103
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SOUTH DAKOTA
Program Overview
South Dakota does not have a formal voluntary cleanup
program. The South Dakota Brownfields Program, admin-
istered by the Department of Environment and Natural
Resources (DENR) Ground Water Quality Program,
assists with the redevelopment of brownfields in the state
by performing site assessments and cleanups using
funding provided by EPA's Brownfields Program.
Comfort Letters
Under South Dakota statute, a site owner or prospec-
tive purchaser is not liable for environmental, response,
cleanup, or remediation costs at brownfields sites that
were approved by DENR for participation in the state's
Brownfields Program, unless these entities caused
the release of contamination at the site, or violated an
environmental statute or regulation. The property owner
is responsible for the portion of the response action or
remediation that is directly attributable to his or her aggra-
vation of a release. The Department will issue comfort
letters to prospective purchasers of brownfields program
sites if these conditions apply.
Additional Resources
Brownfields Program Website
http://denr.sd.gov/des/gw/Brownfields/Brownfields.aspx
South Dakota Codified Laws, Title 34A: Environmental
Protection
Chapter 12: Laws governing Regulated Substance
Discharges:
http://legis.sd.gov/Statutes/Codified Laws/DisplavStatute.
aspx?Type=Statute&Statute=34A-12
Chapter 15: Laws governing Limitation on Liability of
Lenders for Environmental Damage
http://legis.sd.gov/Statutes/Codified Laws/DisplavStatute.
aspx?Type=Statute&Statute=34A-15
Brownfields Program Process
Summary
DENR uses EPA brownfields grant funds
to help eligible entities assess and clean
up brownfield sites. Because funding is
limited, DENR prioritizes projects where
assessment and cleanup provide a clear
public benefit and significant protection to
human health or the environment. For an
applicant to be eligible for assessment or
cleanup assistance from the DENR, the
following must occur:
Brownfields assessment and cleanup
funds must be available.
The applicant must submit an
application to DENR.
DENR must review the application
and determine that it is eligible for
brownfields funding.
The applicant must have a letter
of support from the Mayor, City
Commission, or County Commission.
DENR must confer with the applicant
to discuss the work needed and
prospective redevelopment plans.
DENR and its designees must have
access to the property to perform the
necessary work.
The Board of Water and Natural
Resources must approve the project
through a public hearing process.
The Secretary for DENR must
approve and sign the work plan and
budget for each project.
Agency Contact
For more information about South Dakota's Brownfields Program, contact:
Kim Mclntosh
Email: kim.mcintosh@state.sd.us | Telephone: (605) 773-3296
Main Agency Website: http://denr.sd.gov/
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UTAH
UTAH DEPARTMENT of
ENVIRONMENTAL
QUALITY
Program Overview
The Utah State Legislature passed the Voluntary Release
Cleanup Program statute in 1997. This legislation created
the state's voluntary cleanup program (VCP). The goal of
the VCP is to promote the investigation and cleanup of
contaminated sites under a cooperative, regulatory-friend-
ly framework. Voluntary cleanups protect the residents
and resources of Utah, and improve and enhance the
quality of life in the state. Voluntary cleanups mitigate
risk to human health and the environment while hopefully
removing the stigma attached to contaminated sites, and
allow the impacted properties to return to beneficial use.
All sites are eligible for enrollment in the VCP, except for
sites regulated as treatment, storage, or disposal facili-
ties under 42 U.S.C. 6901 et seq; sites that are listed on
the National Priorities List; and sites, or portions of sites,
where a state or federal enforcement action is existing
or pending against the applicant for remediation of the
contaminants described in the application.
When an applicant successfully completes a project
under the VCP, the applicant receives a certificate of
completion that provides a release of liability as outlined
in Utah Code, Title 19, Chapter 8, Voluntary Cleanup
Program. This release of liability is not available to owners
or lenders who were originally responsible for a release
or contamination described in Utah Code Ann. § 19-8-113
(3)(b). The certificate of completion is recorded on the real
property records of the county where the site is located,
allowing it to be transferable to subsequent property
owners.
The Utah Department of Environmental Quality (UDEQ)
may not initiate an enforcement action against an appli-
cant regarding the contamination or release if the appli-
cant is in compliance with the statute and is entered into a
VCP regarding the contamination or release.
Enforceable Written Assurances for
Bona Fide Prospective Purchasers
The UDEQ has a brownfields tool known as an Enforce-
able Written Assurance (EWA), which allows the Execu-
tive Director of UDEQ to issue an EWA to a bona fide
VCP Process Summary
The applicant determines if the site is
eligible for the VCP.
The applicant schedules a pre-
application meeting with UDEQ's
Division of Environmental Response
and Remediation VCP/Brownfields
Program Coordinator (optional, but
encouraged).
The applicant submits an application
along with the $2,500 application
fee and environmental assessment
to UDEQ. If UDEQ deems the site
eligible for the VCP, UDEQ will send
an acceptance letter and voluntary
cleanup agreement to the applicant
for signature. The applicant signs the
voluntary cleanup agreement and
returns it to UDEQ.
The applicant characterizes the site.
Public participation is required
prior to cleanup. At a minimum, the
applicant must notify adjacent land
owners and place a notice in the
local newspaper, followed by a 30-
day comment period on the remedial
action plan. UDEQ also may request
further activities based on the level of
community interest.
The applicant completes the site
cleanup.
After the terms and conditions of the
voluntary cleanup agreement are
complete, UDEQ issues a certificate
of completion.
UDEQ may require a site
management plan and environmental
covenant as a component of the
remedy, if a site is cleaned up to non-
residential levels and/or the remedy
includes engineering controls,
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Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action'
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(continued from previous page)
institutional controls, or land use
restrictions.
UDEQ provides oversight throughout
the VCP process.
prospective purchaser (BFPP). UDEQ will not bring an
enforcement action under HSMA against the holder of an
EWA, provided the holder continues to satisfy the ongoing
obligations associated with the written assurance. The
requirements for an EWA are outlined in R311-600 Utah
Administrative Code. There is an application fee. The
completed application and fee may be submitted to the
VCP/Brownfields Coordinator.
Additional Resources
Utah DEQ Voluntary Cleanup Program
http://www.deq.utah.gov/ProgramsServices/programs/cercla/voluntarvcleanup/index.htm
Utah DEQ Laws and Rules
http://www.deq.utah.gov/Laws Rules/derr/index.htm
Utah DEQ Enforceable Written Assurances
http://www.deg.utah.gov/ProgramsServices/programs/cercla/voluntarvcleanup/vcpassuranceprogram.htm
Agency Contact
For more information about Utah's VCP, contact:
Bill Rees
Environmental Program Manager
Email: brees@utah.gov | Telephone: (801) 536-4167
Main Agency Website: http://www.deq.utah.gov/
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WYOMING
Program Overview
The Wyoming Department of Environmental Quality's
(DEQ) Voluntary Remediation Program (VRP) works with
businesses, landowners, and communities to remediate
contaminated land and return it to productive use. DEQ
assists these parties through the process of characteriz-
ing contaminated sites, developing remedy agreements,
and establishing cleanup requirements.
Wyoming's VRP allows a property owner or prospective
owner to voluntarily investigate possible contamination
and clean up the site, if necessary. The VRP provides
a process for negotiating and establishing appropri-
ate cleanup activities for a given property, resulting in
an assurance from DEQ about the extent of liability for
environmental cleanup at the property.
Covenants Not to Sue, Certificates
of Completion, or No Further
Action Letters
When a remedy agreement is in place, DEQ can issue a
covenant not to sue. After remedial actions are complete,
the applicant may seek a certificate of completion or a
no further action letter. DEQ issues liability assurance
depending on site-specific conditions, the remedies imple-
mented, and the amount of certainty an applicant wants
about the potential for DEQ to require additional cleanup
in the future.
A covenant not to sue assures that DEQ will not issue
a unilateral cleanup order, if the applicant implements a
remedy consistent with the terms of a valid remedy agree-
ment. DEQ usually issues a covenant not to sue while a
cleanup is ongoing, rather than at the end of a cleanup.
In many cases, DEQ issues a covenant not to sue at the
same time that a remedy agreement is signed.
A certificate of completion documents DEQ's opinion that
all cleanup requirements for a site (or a portion of a site)
were successfully implemented or satisfied. DEQ usually
issues a certificate of completion at the end of cleanup,
after a remedy is fully implemented and cleanup levels
VRP Process Summary
To enter the VRP, prospective
applicants submit an application
form, supporting information, and
a $550 application fee. Once DEQ
receives the application and confirms
that the site is eligible, the voluntary
remediation process begins.
The applicant must publish an initial
public notice to notify the general
public about the site. If there is
marked public interest, the applicant
must develop a site specific public
participation plan.
The applicant and DEQ negotiate a
preliminary remediation agreement
(PRA). The PRA establishes
the specific activities necessary
to investigate and characterize
contamination at the site and, if
necessary, to evaluate potential
remediation alternatives.
The applicant completes human
health and ecological risk
assessments.
Based on the results of the risk
assessments, the applicant works
with DEQ to determine remedies and
cleanup actions that will meet the
remedy standards defined by state
statute. The applicant completes a
remedy agreement that establishes
the remedial actions that will be
implemented at the site. Once DEQ
and applicant enter into a remedy
agreement, the applicant can
implement the remedy according
to the agreement's terms and
conditions.
Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action'
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are achieved. Certificates of completion issued under the VRP generally are analogous to the types of "no
further action" determinations made in many other states and to the "comfort letters" issued under some
federal cleanup programs.
A no further action (NFA) letter documents that all cleanup requirements for a site (or portion of a site)
were successfully implemented or satisfied. However, DEQ issues NFA letters under only two circum-
stances: when a site is completely cleaned up to levels that support unrestricted site uses, or when a site
will be completely cleaned up to these levels through monitored natural attenuation. If DEQ issues an
NFA letter, DEQ generally will not impose any additional remediation requirements at the site (or portion
of a site) that the NFA letter covers. Any contamination discovered after DEQ issues an NFA letter will be
cleaned up at state expense under the provisions for orphan sites, unless the newly discovered contam-
ination poses an imminent and substantial endangerment to human health or the environment. Because
NFA letters transfer some responsibility for funding future cleanup to the state, they are issued only when
DEQ is confident that a site is completely and comprehensively characterized and fully remediated to
cleanup levels that are appropriate for unrestricted site uses.
Additional Resources
Wyoming Voluntary Remediation Program
http://deq.wvoming.gov/shwd/voluntarv-remediation-program/
Fact Sheets related to the VRP
http://deq.wvoming.gov/shwd/voluntarv-remediation-program/resources/fact-sheets/
Agency Contact
For more information about Wyoming's VRP, contact:
Jerry Breed
VRP Manager
Email: jerry.breed@wyo.gov | Telephone: (307) 777-5617
Main Agency Website: http://deq.wvoming.gov
108 | Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Act/on'
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ARIZONA
ADEQ
Arizona Department^*'
of Environmental Quality
Program Overview
Arizona's Voluntary Remediation Program (VRP) enables
property owners, prospective purchasers, and other
interested parties to investigate or clean up a contam-
inated site in cooperation with the Arizona Department
of Environmental Quality (ADEQ). The VRP provides a
streamlined process for program participants, who work
with a single point of contact at ADEQ to address appli-
cable cross-program remediation efforts. ADEQ reviews
these voluntary remedial actions and provides a closure
document for successful site remediation that all relevant
ADEQ programs accept.
The main goals of Arizona's VRP are to:
Allow interested parties to conduct remediation of
properties and return them to productive use.
Work cooperatively with interested parties to achieve
their remediation goals in a cost-effective manner.
Allow interested parties to proactively reduce risk to
public health and the environment.
Inform the community of the activities being performed
at the site.
Facilitate identification of remediation goals as
background, predetermined, or site-specific (risk
assessment) standards.
Facilitate the selection of regulatory tools, such as
engineering and institutional controls, through Declara-
tion of Environmental Use Restrictions.
Once VRP participants meet the remedial goals under
the VRP and complete the community involvement
requirements, they may request a no further action deter-
mination from ADEQ.
No Further Action Determination
According to Arizona State Statute, Title 49 §181, an appli-
cant may ask ADEQ to provide a determination that no further
action is needed for a site or portion of a site by submitting a
report to the department. This report should include:
A description of the specific contaminants for which a
no further action determination is sought.
A description of the actions taken to achieve remedia-
tion levels or controls determined in accordance with
the state statute.
VRP Process Summary
The participant determines if the site
is eligible for the VRP.
The participant must complete
and submit an application, along
with a non-refundable application
fee of $2,000, to ADEQ. (If the
site is accepted, any of the $2,000
application review fee remaining
after ADEQ's review is applied to the
site account and used by ADEQ to
cover document review costs before
it uses any other deposits.) Small
businesses have the opportunity to
pay the application fee in installments
under an agreement with ADEQ.
The participant develops and submits
to ADEQ a work plan outlining the
remediation process for addressing
contamination at the property.
Once a site is accepted into the VRP,
ADEQ issues a $4,000 deposit request
(or less if remaining application funds
are available), due and payable
within 30 days of issuance.
The participant must make an initial
deposit of $4,000. The deposit must
be received by ADEQ before program
personnel will perform any review
of work. When deposited funds
drop below $1,000, ADEQ requests
another $4,000 deposit, due and
payable within 30 days of issuance.
The participant proceeds with the
investigation and/or remediation
according to the approved work plan.
Once a participant meets the
remedial goals and completes
the community involvement
requirements, he or she submits
a request for a no further action
determination.
(continued on next page)
110 | Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action'
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(continued from previous page)
ADEQ reviews and, if appropriate, grants
a no further action determination for
the site or portion of the site.
A description of any soil, water, or soil and water treat-
ment systems used as part of the remediation.
Whenever institutional or engineering controls are
placed on the site:
A demonstration that any engineering control or
combination of engineering controls has been
constructed, is functioning, and will be maintained.
A description of the proposed land use for the site and a demonstration that the use will not compro-
mise the integrity of the engineering controls and will be in accordance with any institutional controls.
If post-remediation monitoring is proposed, a description of the type of monitoring, monitoring locations,
contaminants to be monitored, monitoring frequency, and sampling procedures.
A description of community involvement activities undertaken to meet statute requirements.
A list of permits under this title obtained for the remedial action or held by the applicant pertaining to the site.
After ADEQ receives a request for a no further action determination, it reviews, approves, denies, or
requests modifications to the request. ADEQ may request additional information before acting on the
request for a determination of no further action, may conduct an investigation of the site or portion of the
site, and will have access to the site at reasonable times to verify the completion of the remedial action.
Once ADEQ determines that all of the conditions are met, ADEQ issues a no further action determination.
ADEQ may issue a conditional no further action determination at a site where remedial actions include the
use of institutional controls or engineering controls, and require post-remediation care obligations such as
monitoring or maintenance of engineering controls.
A determination of no further action means that no further action will be taken against the property owner,
or prospective purchaser, by ADEQ, unless the no further action determination is rescinded or amended.
Additional Resources
ADEQ Voluntary Remediation Program
https://www.azdeq.gov/environ/waste/cleanup/vrp.html
Frequently Asked Questions
https://www.azdeq.gov/environ/waste/cleanup/faqs.html
Voluntary Remediation Program Application
https://www.azdeq.gov/environ/waste/cleanup/download/agencv.pdf
ADEQ Voluntary Remediation Program Orientation Package
https://www.azdeq.gov/environ/waste/cleanup/download/VRP Orientation Package.pdf
Arizona Brownfields Assistance Program
https://www.azdeq.gov/environ/waste/cleanup/brownfields.html
Arizona State Legislature Title 49 - The Environment
http://azleg.state.az.us/arizonarevisedstatutes.asp?title=49
Agency Contact
For more information about Arizona's VRP, contact:
Jessica Lange
Email: lange.jessica@azdeq.gov | Telephone: (602) 771-4496
Main Agency Website: http://www.azdeq.gov
Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action
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CALIFORNIA
^y
Department of
Toxic Substances
Control
Program Overview
The California Environmental Protection Agency's Depart-
ment of Toxic Substances Control's (DTSC) Brownfields
Voluntary Cleanup Program (VCP) allows motivated parties
who are able to fund the cleanup and DTSC's oversight
costs to investigate and remediate their sites. The VCP
operates under the premise that corporations, real estate
developers, and local and state agencies entering into
VCP agreements can clean up and restore properties
quickly and efficiently. The program encourages respon-
sible parties to clean up contaminated properties by offer-
ing economic, liability, or efficiency incentives. California
refers to program applicants and participants as "project
proponents." Project proponents include property owners,
state or local agencies, real estate developers, and others
involved with proposed changes in land use or ownership.
No Further Action Letter and
Certification of Completion
Under the VCP, when the site assessment and/or cleanup
are complete, DTSC issues a no further action letter or
a certification of completion. A no further action letter
indicates that cleanup is complete, with no landuse
restrictions. A no further action letter also may be issued
with conditions such as a land use restriction or ongoing
operations and maintenance. DTSC provides a certifi-
cate of completion as legal recognition that cleanup is
complete and that liability to all state government entities
is satisfied. These documents indicate that DTSC deter-
mined that the site does not pose a significant risk to
public health or the environment. While neither document
constitutes a release or covenant not to sue, both signifi-
cantly minimize future liability concerns.
Other Brownfields Liability Relief
Mechanisms
DTSC's Site Mitigation and Brownfields Reuse Program
offers several forms of limited brownfields liability relief:
The California Land Reuse and Revitalization Act of 2004, as amended, provides immunity from
liability for response costs or damage claims to qualified innocent landowners, bona fide purchasers,
or contiguous property owners. The law also provides immunity from liability to prospective purchas-
VCP Process Summary
If exclusions do not apply, the project
proponent submits an application
for "agency oversight" to DTSC that
provides details about site conditions,
proposed land use, and potential
community concerns. Excluded
sites are sites listed as a federal
or state Superfund site, military
facilities, and sites that fall outside of
DTSC's jurisdiction, as in the case
where a site contains only leaking
underground fuel tanks.
Once DTSC accepts the application,
the proponent meets with DTSC to
negotiate a VCP agreement. In the
agreement, DTSC retains its authority
to take enforcement action if, during the
investigation or cleanup, it determines
that the site presents a serious health
threat, and proper and timely action is
not otherwise being taken.
Before beginning any site work,
the proponent must sign the VCP
agreement, make the advance
payment, and commit to paying
all project costs, including DTSC's
oversight costs. Once the proponent
signs the VCP agreement, initial site
assessment, site investigation, or
cleanup activities begin.
When remediation is complete, DTSC
issues either a no further action
letter or certification of completion,
depending on project circumstances.
This means the site is now ready for
productive economic use.
112 | Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action'
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ers and bona fide ground tenants, provided they meet certain conditions and conduct specified site
assessment and cleanup actions.
California's prospective purchaser policy removes or lessens the liability that prospective purchasers
face, and includes a model prospective purchaser agreement (PPA) with covenant not to sue and
eligibility criteria. The PPA states that DISC will not pursue site mitigation enforcement against prospec-
tive purchasers/tenants/lessors who become site owners or operators if specific conditions are met. If
the DISC is the lead agency and enters into a PPA, the appropriate Regional Water Board may, upon
review of the final PPA, issue a comfort letter that serves as written assurance of the agency's intention
not to pursue specific enforcement against parties under limited circumstances.
The Local Government Agency Oversight Agreement (Gatto Act) created a local agency program to
encourage infill development and brownfields cleanup by authorizing local governments to compel cleanup
of contaminated properties and reduce liabilities for local agencies and subsequent property purchasers.
Additional Resources
California's Brownfields Program
http://www.dtsc.ca.gov/SiteCleanup/Brownfields/
DISC Brownfields Initiatives
https://www.dtsc.ca.gov/SiteCleanup/Brownfields/upload/BF lnitiative.pdf
Brownfields Voluntary Cleanup Program
http://www.dtsc.ca.gov/SiteCleanup/Brownfields/BrownfieldsVoluntarvProgram.cfm
Fact Sheet: Voluntary Cleanup Program
http://www.dtsc.ca.gov/SiteCleanup/Brownfields/upload/BF FSVCP.pdf
Prospective Purchaser Agreements and Liability Relief
http://www.dtsc.ca.gov/SiteCleanup/Brownfields/BrownProsPurchaser.cfm
California Land Reuse and Revitalization Act of 2004
http://www.dtsc.ca.gov/SiteCleanup/Brownfields/BrownLandReuse.cfm
Prospective Purchaser Policy/Procedure
http://www.dtsc.ca.gov/LawsRegsPolicies/Policies/SiteCleanup/upload/eo-96-005-pp.pdf
Policy and Procedure for Managing Voluntary Site Mitigation Projects
http://www.dtsc.ca.gov/LawsRegsPolicies/Policies/SiteCleanup/upload/eo-95-006-pp.pdf
Agency Contacts
For more information about California's VCP, contact:
Steven Becker
Sacramento Regional Office
Email: steven.becker@dtsc.ca.gov | Telephone: (916) 255-3586
Lynn Nakashima
Berkeley Regional Office
Email: lynn.nakashima@dtsc.ca.gov | Telephone: (510) 540-3839
Kevin Shaddy
Clovis Field Office
Email: kevin.shaddy@dtsc.ca.gov | Telephone: (559) 297-3929
Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action" \ 113
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Maryam Tasnif-Abbasi
Cypress Regional Office
Email: maryam.tasnif-abbasi(i
5dtsc.ca.gov | Telephone: (714) 484-5489
Tedd Yargeau
Chatsworth Regional Office
Email: ted.yargeau@dtsc.ca.gov | Telephone: (818) 717-6545
Main Agency Website: https://www.dtsc.ca.gov/
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HAWAII
Program Overview
Hawaii developed the Voluntary Response Program
(VRP) to encourage owners and purchasers to voluntarily
investigate and clean up property that may be contaminat-
ed. The Hawaii Department of Health's (HDOH) Hazard
Evaluation and Emergency Response Office administers
the VRP. The VRP offers participants technical guidance,
oversight, and regulatory assurance of completed clean-
ups. Purchasers who participate are typically exempt from
future liability related to contamination addressed under
the VRP. Property owners, prospective purchasers, devel-
opers, and lenders have successfully used the VRP.
The goal of the VRP is to encourage cleanup of contam-
inated property and protect innocent purchasers from
future environmental liability. It also seeks to enhance
property values and expedite cleanup and redevelopment
projects. It is a flexible program intended to address a
wide range of site conditions, contamination, and property
transactions. Property owners can benefit from the VRP if
they are planning to sell their property or change its use.
Buyers and lenders benefit because the VRP eliminates
the uncertainty of regulatory oversight and the threat of
future environmental liability. The result of the VRP is a
state-approved cleanup and an official letter of completion
that typically includes an exemption from future liability.
Letter of Completion
Under Hawaii's Environmental Response Law, eligible
purchasers who receive a letter of completion through
Hawaii's VRP are exempt from future liability related to
contamination addressed under the VRP. HDOH oversees
work within the VRP agreement. When the remediation
is complete, the participant receives an official letter of
completion for the specific property and contaminants
addressed. This letter certifies that the site was properly
cleaned up and, to the extent allowed in the law, provides
relief from future liability. The expectation is that the assur-
ances provided in the letter of completion will help facili-
tate the sale and/or development of the property.
*NT O^
VRP Process Summary
The applicant checks eligibility
and completes an application
containing basic information about
the proposed project. After HDOH's
Hazard Evaluation and Emergency
Response Office approves the VRP
application, both parties enter into a
VRP agreement.
The applicant prepares a summary
report of all environmental work
previously completed. HDOH
evaluates the work to determine
what information from previous
investigations and cleanups the
current project can use.
The applicant prepares a general
work plan for site investigation.
HDOH approves the work plan.
Applicant collects and analyzes
samples, presents data in a site
investigation report, and performs an
environmental hazard evaluation.
If the environmental hazard
evaluation indicates a need for
cleanup action, the applicant
evaluates alternatives to protect
public health and environment in a
remedial alternatives analysis.
The applicant prepares and
implements a public participation
plan.
The applicant selects the appropriate
response action and produces a
response action memorandum.
A public meeting is held regarding
the response action memorandum, if
sufficient public interest exists.
The applicant implements the
response action.
(continued on next page)
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(continued from previous page)
When the response action is
complete to HDOH's satisfaction,
HDOH issues a letter of completion.
An environmental covenant for the
site is filed at the State of Hawaii
Bureau of Conveyances within 30
days of issuance of the letter of
completion.
Other Brownfields Liability Relief
Mechanisms
Bona Fide Prospective Purchaser Protection: In 2009,
Hawaii Revised Statue 128D was amended to add a
definition for "bona fide prospective purchasers" consis-
tent with federal law that limits civil liability for bona fide
prospective purchasers who knowingly purchase contam-
inated property. A "prospective purchaser" as defined in
the law means "a prospective owner, operator, tenant,
developer, lender, or any party who would not otherwise
be liable under section 128D-6 of the Hawaii Environ-
mental Response Law, prior to conducting a voluntary
response action." The prospective purchaser must obtain final approval to participate in the program
before becoming an owner or operator.
Additional Resources
Hawaii's VRP
http://eha-web.doh.hawaii.gov/eha-cma/Leaders/HEER/voluntarv-response-program
Hawaii DOH HEER VRP Brochure
http://eha-web.doh.hawaii.gov/eha-cma/documents/f4d701f9-f679-439e-b245-443916c71b50
Model VRP Agreement
http://eha-web.doh.hawaii.gov/eha-cma/documents/5488917b-f57f-4230-8cOa-1825467a77bd
Example of a Letter of Completion
http://eha-web.doh.hawaii.gov/eha-cma/documents/f45fba29-bff7-4b8a-822e-845898a6542b
VRP Applicant Checklist
http://eha-web.doh.hawaii.gov/eha-cma/documents/d830d679-9cab-4028-a1cc-8cbb1837e586
Agency Contact
For more information about Hawaii's VRP, contact:
Fenix Grange
Hawaii State Department of Heath
Email: fenix.grange@doh.hawaii.gov | Telephone: (808) 586-4249
Main Agency Website: http://health.hawaii.gov/about/links-to-doh-program-information/environmen-
tal-health-administration/
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NEVADA
Program Overview
naip
NEVADA I Dl
The Nevada Division of Environmental Protection's
(NDEP) Bureau of Corrective Action (BCA) oversees
cleanup of releases of regulated substances using a
multimedia (air, water, soil, and ecological resources)
approach. The state relies primarily on regulated entities
self-reporting to NDEP when they cause a release to
the environment that exceeds state reporting quanti-
ties. Once a release is identified, a responsible party
may choose to conduct remediation activities by hiring a
Certified Environmental Manager to conduct the cleanup,
or the responsible party can enroll in the state Voluntary
Cleanup Program.
Nevada's regulations require that only individuals whom
the agency certifies as Certified Environmental Managers
(CEMs) can manage and oversee environmental projects.
This work includes Phase I and Phase II environmental
site assessments, investigations and characterizations,
remediation, and other related tasks. By regulation, CEMs
are compelled to advise a client who is responsible for a
release to report it to NDEP. If the release is discovered
and the responsible party is unknown, the CEM must
report the finding to the Bureau of Corrective Action.
NDEP believes that this statutory professional certification
process and the rules of conduct it established assure the
notification of nearly all releases that meet the regulatory
criteria.
NEVADA DIVISION OF
ENVIRONMENTAL PROTECTION
protecting the future for generations
VCP Process Summary
The property owner submits a VCP
application to NDEP BCA with
the required application fee ($400
for residential properties; $500 to
$2,000 for commercial properties),
and site characterization information
(obtained by conducting a Phase I
environmental site assessment).
NDEP BCA approves the VCP
application.
The participant submits a site
remediation plan to NDEP BCA.
NDEP BCA and the participant
negotiate a remedial agreement.
After a public notice and comment
period, NDEP and the participant
accept the remedial agreement.
The participant performs the
remediation.
When NDEP BCA determines that
no further remediation is necessary
or that a cleanup meets state
standards, NDEP BCA issues a
certificate of completion.
An entity that caused a release of contamination to the environment will conduct a site characterization
to determine if the release will require cleanup and remediation of any impacted media. If it is determined
in the characterization report that cleanup action is necessary, the responsible party can hire qualified
contractors (CEMs) to oversee and perform the work, which must be performed under a BCA-reviewed
and approved corrective action plan.
Under a responsible party lead remediation, NDEP BCA will provide a no further action notification to the
property owner and responsible party, but the closed case may be reopened in the future, under certain
circumstances (see next page).
As an alternative, responsible parties can apply to conduct cleanup activities under the Nevada Voluntary
Cleanup Program (VCP). The responsible party must submit an application requesting that the site be
addressed under the VCP. The responsible party will be billed for NDEP BCA's staff time, subcontractors,
and all incidental expenses attributable to the state's oversight of the project. In addition, NDEP BCA
usually requires that a site specific human health and ecological risk study be performed to establish the
allowable contamination levels under the clean closure finding.
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Under the VCP, the site owner and responsible party will receive a notification of Clean Closure of the site,
releasing them from any future liability for contamination found on the site related to the discovery of an
actionable release.
Notification of Clean Closure or No Further Action Notifications,
and Liability Protection and Advisory Letters
There are two paths for obtaining liability protection for remediation of contaminated sites in Nevada:
Under the VCP, NDEP BCA will issue a notification of clean closure for a site cleaned up under the VCP.
This releases the VCP participant from any future liability for contamination found on the site related to
the discovery of an actionable release.
Under a responsible party lead remediation, NDEP BCA will provide a no further action notification to the
property owner and responsible party, but any future discovery of an exceedance of the contaminant(s)
on the site that may be attributable to the historic release can warrant reopening of the closed case and
extending the potential liability to the former owner and/or responsible party.
Nevada offers liability protections for three categories of landownersbona fide prospective purchasers,
innocent landowners, and contiguous landownersthat are equivalent to the liability protections enacted
under federal law, as provided by the 2002 Small Business Liability Relief and Brownfield Revitalization
Act. These provisions are set forth in Nevada Revised Statute (NRS) 459.930. Landowners interested in
maintaining liability protections should review all relevant laws and guidance to understand these obliga-
tions, which include both pre- and post-purchase requirements.
NDEP believes that in most cases, the federal Brownfields Amendments and NRS 459.930 make
prospective purchaser agreements (PPAs) or other equivalent agreements or agency clarification of
individual liability status unnecessary. In some instances, the NDEP may provide a non-binding adviso-
ry letter outlining the obligations of the bona fide prospective purchaser to achieve and maintain liability
protections under NRS 459.930.
Additional Resources
Nevada Division of Environmental Protection VCP
https://ndep.nv.gov/bca/vcp.htm
Environmental Liability Protections For Property Owners Under State and Federal Law
http://ndep.nv.gov/bca/liabilitv.htm
NDEP Brownfields Program
https://ndep.nv.gov/bca/brownfld.htm
Nevada VCP Quick Facts
https://ndep.nv.gov/bca/vcpfctsht.pdf
VCP Application (also available at NDEP offices)
https://ndep.nv.gov/bca/vcp application.htm
VCP Application Fees
http://www.lea.state.nv.us/nac/NAC-459.htmltfNAC459Sec9739
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Agency Contacts
For more information about Nevada's VCP, contact:
David Friedman
Program Coordinator
Email: dfriedman@ndep.nv.gov | Telephone: (775) 687-9385
Rebecca Bodnar
Program Supervisor
Email: rebecca.bodnar@ndep.nv.gov | Telephone: (775) 687-9545
Main Agency Website: https://ndep.nv.gov/
Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action'
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120 | Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Act/on'
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REGION 10
View of a forest in Oregon (exact location unknown)
Brownfields site, King County, WA (courtesy of ECCOSS)
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ALASKA
Program Overview
Alaska does not have a voluntary cleanup program. However, the Alaska Department of Environmental
Conservation (ADEC) established a brownfields element within the Contaminated Sites Program to better
coordinate with communities to identify, assess, and ensure adequate cleanup at brownfields to realize
their full economic potential.
ADEC has resources to help tribes, Alaska native corporations, municipalities, and borough governments
identify and assess brownfield sites. ADEC works with government agencies, tribes, responsible parties,
landowners, U.S. EPA, and developers by offering technical assistance, site assessments, and limited
cleanups, and maintaining a publicly accessible database of contaminated sites.
ADEC's Contaminated Sites Program supports and promotes the reuse of brownfields through the DEC
Brownfield Assessment and Cleanup (DBAC) Services. The DBAC is not a grant program. Rather, it
provides services to: help determine if an environmental problem is limiting a site's desired reuse; help
identify the nature and extent of contamination; recommend and estimate costs for additional assessment,
if needed; identify cleanup options and an estimate of cleanup costs, if cleanup is required; and when
funding is available, conduct cleanup activities designed to enable site reuse.
The ADEC does not provide "no further action" assurance letters to nonliable property purchasers or
owners who undertake environmental cleanup at a property. However, ADEC does enter into prospective
purchaser agreements (PRAs) with perspective owners.
Prospective Purchaser Agreement
Although the federal brownfields law provides certain protections from liability under the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) for purchasers of contami-
nated property, Alaska has strict joint and several liability requirements that are not affiliated with CERCLA
authority. For a prospective purchaser of potentially contaminated land to obtain protection from liability
at the state level, purchasers must obtain liability clarification from the state through a PPA. A PPA is a
legally binding agreement between DEC and a prospective purchaser of contaminated property. It is
designed to clarify the potential environmental liability a purchaser assumes when buying a property
with preexisting environmental conditions. In general, the state may consider entering into a PPA when a
purchaser agrees to conduct site cleanup or other activities that will reduce potential risks or provide other
benefits to the public. The Alaska Attorney General is the only entity that can relieve any current or future
potentially responsible party from liability.
PPAs facilitate the cleanup and reuse of contaminated property by providing certainty to purchasers
regarding the extent of their liability for existing contamination. Liability for contamination on a property
is defined in Alaska Statute 46.03.822. General liability applies to those individuals with a current or past
ownership interest in the property; those individuals that owned or were in control of the contaminant
substance at the time of the release; and those who arranged for the disposal or transport of hazardous
substances. If an individual did not own the property on which an assessment is completed, and did not
cause or contribute to any contamination at the property, conducting a noninvasive assessment (such as
a historical records search or an onsite investigation/walk through) would not cause the individual to be
considered liable. However, under state law, if a more invasive investigation is conducted, such as one
that involves drilling or excavation and the investigation causes a release, or causes an existing environ-
122 | Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action'
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mental problem to become worse, the person conducting the investigation could be held liable for causing
the contamination. If this occurred, it could invoke liability under the Alaska Statute.
Additional Resources
ADEC's Contaminated Sites Program Brownfields website:
https://dec.alaska.gov/spar/csp/brownfields.htm
Alaska State & Tribal Response Program (STRP) Brownfield Handbook, Second Edition
https://dec.alaska.gov/spar/csp/docs/brownfields/handbook/Brownfield%20Handbook%20March%20
2014%20-%20Online%20Version.pdf
Alaska Statute 46.03.822, Strict Liability For the Release of Hazardous Substances:
http://www.touchngo.com/lglcntr/akstats/statutes/title46/chapter03/section822.htm
ADEC's Frequently Asked Questions About Brownfields form (December 2015 version)
http://dec.alaska.gov/spar/csp/docs/Brownfield%20Freguentlv%20Asked%20Questions%20Alaska%20
December%202015.pdf
ADEC's Brownfield Assessments and Cleanups (DBAC) Fact Sheet
https://dec.alaska.gov/spar/csp/docs/brownfields/DBAC Fact Sheet FY2016 Final.pdf
Agency Contact
For more information, contact:
Amy Rodman
Environmental Program Specialist
ADEC Contaminated Sites Program
Email: amy.rodman@alaska.gov | Telephone: (907) 465-5368
Main Program Website: http://dec.alaska.gov/spar/csp/
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IDAHO
Program Overview
The Idaho Department of Environmental Quality (DEQ)
provides a mechanism for cleanup of contaminated
sites throughout the state through the voluntary cleanup
program (VCP). The Land Remediation Act created the
VRP in 1996. It emphasizes the protection of public health
and minimization of risk while encouraging redevelopment
and reuse of contaminated properties. The VCP is open
to persons, including those who do not currently own the
property, who did not cause, contribute, or consent to
the release that led to contamination of the property. The
program offers liability relief with a covenant not to sue
letter after cleanup is complete.
DEQ encourages potential participants to contact the
department to discuss their projects and the benefits of
participating in the VCP. The benefits of VCP participation
include:
Expedited remediation process
No adversarial enforcement actions
Seven year partial property tax exemption when
cleanup is complete
Covenant not to sue from DEQ
Use of site specific risk based cleanup standards
Use of activity, limitations, and environmental
covenants in cleanup plans
VCP Process Summary
The participant performs a Phase I
environmental site assessment that
includes information about the site
ownership, location, and history.
The participant submits an
application to Idaho DEQ, including
the Phase I environmental site
assessment and a $250 application
fee.
The participant enters into a
voluntary remediation agreement
(VRA) with DEQ and pays a $2,500
deposit for DEQ oversight costs.
The participant submits a voluntary
remediation workplan to DEQ for
approval and public comment.
The participant cleans up the
site according to the voluntary
remediation workplan and submits a
cleanup completion Report to DEQ.
DEQ issues a certificate of
completion, which is recorded with
the property deed. The participant
can then request to negotiate a
covenant not to sue.
Lender liability protection
Once cleanup is complete and DEQ issues a certificate of
completion, the participant can request to negotiate a covenant not to sue from DEQ.
Certificate of Completion and Covenant Not to Sue
The participant submits a voluntary remediation program application to DEQ that includes a Phase I
environmental site assessment and a $250 application fee. The application helps DEQ determine the
participant's eligibility to participate in the VCP.
If deemed to be eligible, the participant then enters into a voluntary remediation agreement (VRA) with
DEQ and develops a voluntary remediation workplan. DEQ reviews the workplan and makes it available
for public comment. After resolving comments, DEQ approves the workplan for implementation. DEQ
provides oversight and assistance throughout the cleanup process. The participant reimburses DEQ for
oversight costs, including an initial required deposit of $2,500.
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Once cleanup is complete, the participant submits a cleanup completion report to DEQ. After DEQ
approves the report, it issues a certificate of completion that certifies that the participant successfully
implemented or satisfied the workplan. After receiving a certificate of completion, a party can request
to negotiate a covenant not to sue. The covenant not to sue protects the participant from any claim for
environmental remediation under state law resulting from or based upon the release or threatened release
of a hazardous substance or petroleum that is the subject of the approved voluntary remediation workplan
successfully implemented. The covenant not to sue extends to any current or future owner or operator of
the site or portion who did not cause, aggravate, or contribute to the release or threatened release. These
documents are recorded with the deed to the property.
The site owner is eligible to receive a property tax reduction, not to exceed seven years, that is applied to
50 percent of the difference in value between the property's pre-remediation and post-remediation land
valuation. The exemption is granted only if the covenant not to sue is in full force and effect for the entire
period of exemption, and the owner possesses the site for the entire exemption period.
The VCP is not available if the condition of the hazardous substance or petroleum contamination the
application describes constitutes an imminent and substantial threat to human health or the environment,
or if other environmental statutes require the remediation.
Additional Resources
Idaho DEQ's Voluntary Cleanup Program
https://www.deq. idaho.gov/waste-mgmt-remediation/brownfields/voluntarv-cleanup-program/
Idaho DEQ Voluntary Remediation Program Guidance for Application Completion
https://www.deq. idaho.gov/media/625295-guidance.pdf
Rules and Laws Governing the VCP
http://adminrules.idaho.gov/rules/current/58/0118.pdf
Idaho DEQ Environmental Covenant Program
http://www.deq.idaho.gov/waste-mgmt-remediation/remediation-activities/environmental-covenant/
Standards and Procedures for Application of Risk Based Corrective Action at Petroleum Release Sites
http://adminrules.idaho.gov/rules/2012/58/0124.pdf
Agency Contact
For more information about Idaho's VCP, contact:
Bruce Wicherski
Email: bruce.wicherski@deq.idaho.gov | Telephone: (208) 373-0246
Main Agency Website: https://www.deq.idaho.gov/
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OREGON
DEO
Program Overview
The Oregon Department of Environmental Quality (DEQ)
created its Voluntary Cleanup Program (VCP) to provide
oversight to property owners and others wishing to
investigate and clean up hazardous substance sites in a
voluntary, cooperative manner. The program's goal is to
increase the number of remediated sites by streamlin-
ing the cleanup process while ensuring compliance with
Oregon environmental regulations. Projects range from
simple sites with a limited amount of contaminated soil to
complex sites with multiple contaminants in soil, ground-
water, surface water, sediment, or air.
The Oregon VCP offers two options for cleaning up
contaminated sites: the traditional voluntary cleanup
pathway, and the independent cleanup pathway (ICP).
Both offer flexibility and allow for more efficient investiga-
tion and cleanup to facilitate the use, sale, refinancing, or
redevelopment of contaminated property, while protecting
human health and the environment.
All sites that enter the VCP are added into DEQ's environ-
mental cleanup site information (ECSI) database. Sites
with a verified release are listed on the confirmed release
list. Sites that require further action also are listed on the
inventory list.
No Further Action Determination,
No Further Action Letter
Under the VCP, DEQ provides oversight throughout the
investigation and cleanup of an eligible site. This option
is available for the voluntary cleanup of high-priority sites,
as well as lower-priority sites with contamination in any
environmental medium (soil, groundwater, sediment,
surface water, or air). DEQ oversight ensures that the
cleanup will meet Oregon's Environmental Cleanup Law. DEQ issues a no further action (NFA) determi-
nation once remediation and/or institutional controls achieve protective conditions. DEQ provides public
notice and opportunity for comment on any remedial action proposal, including the NFA determination.
DEQ also determines, in consultation with the participant, the form of any further agreement needed to
manage the project most effectively.
DEQ created the Independent Cleanup Pathway to assist parties wishing to clean up low- and
medium-priority sites without ongoing DEQ oversight. The independent cleanup pathway is specifically
designed for low- and medium-priority sites; it is not available for high-priority sites. If a responsible party
VCP Process Summary
The participant submits the intent
to participate form. DEQ prepares a
cost recovery letter agreement and
requests a deposit (usually $5,000)
when a project manager is assigned.
When DEQ receives a signed
agreement and deposit, the project
manager completes a file review and
helps the participant's environmental
consultant scope a work plan that will
achieve protective conditions at the
site.
The participant's consultant develops
work plans and reports for DEQ
review and comment to define the
problem, determine risks to human
health and the environment, and
evaluate potential solutions.
The participant's consultant proposes
a remedy, often with DEQ input. DEQ
ensures that it meets requirements of
the Environmental Cleanup Law, and
gathers public comments on the plan.
Once DEQ selects the remedy,
participant/consultant implements it.
DEQ issues a no further action
determination once remediation is
complete and/or institutional controls
are in place to achieve protective
conditions. This process also
includes a public comment period.
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cleans up a site to a level that protects human health and the environment according to Oregon's cleanup
regulations, DEQ reviews and approves the cleanup by issuing an NFA determination for the site. DEQ
typically does not require public notice on independent cleanup pathway site completions, since DEQ is
not involved in the cleanup decision process.
The primary potential risk in the independent cleanup pathway is that DEQ will not issue an NFA deter-
mination after cleanup activities are complete. This can occur if DEQ believes that unacceptable risks
remain after site cleanup. While this is an unusual outcome, parties wishing certainty in obtaining an NFA
letter should consider entering either site-specific technical consultation (an ICP option) program or enter-
ing the traditional VCP, where DEQ provides complete oversight of the site investigation and cleanup.
Additional Resources
Oregon's Voluntary Cleanup Program
http://www.deq.state.or.us/lq/cu/voluntarvcu.htm
Fact Sheet: Voluntary Cleanup Program
http://www.deq.state.or.us/lq/pubs/factsheets/cu/Voluntan/CleanupProgram.pdf
Voluntary Cleanup Pathway
http://www.deq.state.or.us/lq/cu/cupathwav/voluntarv.htm
Independent Cleanup Pathway
http://www.deq.state.or.us/lq/cu/cupathwav/independent.htm
Voluntary Cleanup Pathway Information Packet
http://www.deq.state.or.us/lq/pubs/docs/cu/VoluntarvCUPathwavlnfoPacket.pdf
Independent Cleanup Pathway Information Packet
http://www.deq.state.or.us/lq/pubs/docs/cu/lndependentCUPathwavlnfoPacket.pdf
Liability Management Tools for Buyers of Contaminated Property
http://www.deq.state.or.us/lq/cu/ppa/liabilitvmanagement.htm
Agency Contact
For more information about Oregon's VCP or ICP, contact:
Tiffany Johnson
Email: johnson.tiffany@deq.state.or.us | Telephone: (503) 229-6258
Main Agency Website: http://www.oregon.gov/DEQ
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WASHINGTON
DEPARTMENT OF
ECOLOGY
State of Washington
Program Overview
The Washington Department of Ecology works with
property owners and responsible parties to clean up
contaminated sites through the state's voluntary cleanup
program (VCP). The VCP allows parties to clean up their
sites independently, or obtain services for a fee from the
Department of Ecology. These services include technical
assistance about how to meet cleanup requirements and
written opinions from the department about whether a
cleanup meets those requirements.
The VCP is used most commonly to address smaller or
less complex sites that can be cleaned up quickly without
entering a formal cleanup process with the Department of
Ecology's direct oversight. Responsible parties, including
property owners and prospective purchasers, can apply
to enter the VCP at any point in the cleanup process,
including during the investigative or planning phases. The
Department of Ecology encourages early consultations.
Upon application and acceptance into the program, the
department assigns a site manager, who provides techni-
cal assistance and written opinions on the cleanup.
Property owners can clean up a site and obtain liability
relief through a no further action opinion, consent decree,
or agreed order with the Department of Ecology.
No Further Action Opinion Letters,
Consent Decrees, and Agreed
Orders
Upon successful completion of a cleanup under the VCP,
the Department of Ecology issues a no further action
(NFA) opinion. Many parties consider the NFA opinion
letter sufficient to meet their needs when obtaining loans,
selling a property, or redeveloping a property. Local
governments that receive an NFA opinion letter may apply
for an independent remedial action grant to help offset
their cleanup costs.
A consent decree is a formal legal agreement between
the responsible party and the state. The decree outlines
cleanup requirements and specifies the terms under
which they must be done. The responsible party, the
VCP Process Summary
The steps in the cleanup process for
hazardous waste sites in Washington
are the same under the VCP, consent
decrees, or agreed orders:
Contaminated sites must be reported
to the Department of Ecology within
90 days of discovery. Underground
storage tank releases must be
reported within 24 hours.
The Department of Ecology
conducts an initial investigation of
the site within 90 days of receiving
a discovery report, and must
determine within 30 days of the
initial investigation if the site requires
further action. If the site requires
further action, the Department
of Ecology notifies all potentially
responsible parties and invites them
to work cooperatively on the cleanup.
The participant submits a hazard
assessment that confirms the
presence and relative risk of
hazardous substances on the site.
The Department of Ecology ranks the
site on a scale of 1 to 5 according to
the relative risk to human health and
the environment.
The participant submits a Remedial
Investigation/Feasibility Study to
the Department of Ecology that
defines the extent and magnitude of
contamination, potential impacts on
human health and the environment,
and alternative cleanup technologies.
The participant develops a cleanup
plan that identifies preferred cleanup
methods and specifies cleanup
standards and other requirements.
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Department of Ecology, and the Washington Attorney
General's office negotiate and agree to the decree. An
agreed order \s a legally binding administrative order
issued by the Department of Ecology and agreed to by
the responsible party. It describes the site activities that
must occur so that the state will not take enforcement
action. Consent decrees and agreed orders both are
subject to public review. Consent decrees settle a proper-
ty owner's liability to the state. Consent decrees also
protect the responsible party from being sued for "contri-
bution" by other persons that incur cleanup expenses at
the site, while facilitating any contribution claims against
the other persons who are responsible for part of the
cleanup costs. Agreed orders do not provide this level of liability relief.
Additional Resources
Brownfields Revitalization, Washington Department of Ecology
http://www.ecv.wa.gov/programs/tcp/brownfields/brownfields hp.html
Hazardous Waste Policies and Guidance
http://www.ecv.wa.gov/programs/tcp/policies/pol main.html
Voluntary Cleanup Program
http://www.ecv.wa.gov/programs/tcp/vcp/Vcpmain.htm
Other Administrative Options for Site Cleanup
http://www.ecv.wa.gov/programs/tcp/vcp/vcp2008/vcpQtherAdminOptions.html
(continued from previous page)
The Department of Ecology reviews
and approves the cleanup plan.
The participant implements the
cleanup plan.
Upon successful completion of the
cleanup, the Department of Ecology
issues a no further action opinion.
Agency Contact
For more information about Washington's VCP, contact:
Nnamdi Madakor
VCP Statewide Coordinator
Department of Ecology
Email: nnamdi.madakor@ecy.wa.gov | Telephone: (360) 407-7244
Main Agency Website: http://www.ecv.wa.gov/ecvhome.html
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130 | Cleaning Up Brownfields Under State Response Programs - Getting to "No Further Action'
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United States Office of Land and
Environmental Protection Emergency Management
Agency (5105T)
EPA560-K-16-002
August 2016
www.epa.gov/brownfields/
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