Revitalizing Southeastern Communities
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Tennessee
Tennessee addresses brownfields through its Department of Environment and Conservation (TDEC).
The Voluntary Cleanup, Oversight and Assistance Program (VOAP) is open to anyone with an interest
in remediation activities at a site regardless of culpability. A variety of parties can benefit from the
program, including:
innocent landowners who wish to resolve liability issues at a contaminated site;
prospective owners who wish to address potential liability issues; and
potentially liable parties seeking a proactive alternative to receiving a unilateral cleanup order
from the State.
The VOAP provides a framework in the form of a Voluntary Agreement or Consent Order for parties
to address a variety of contaminants including hazardous substances and petroleum. The Voluntary
Agreement or Innocent Party Agreement (IPA)—available to those who did not generate, transport, or
release contamination at a site—offers the greatest degree of liability protection. The agreement
offers safeguards such as liability protection from all TDEC regulatory programs, protection from third
party contribution lawsuits, and agreement from the state's regulatory experts that a property is safe
for reuse. It is also possible to negotiate apportioned liability pertaining to responsible parties.
However, these parties must enter into a Consent Order if they may have released generated or
transported the contamination to be addressed at the property.
Program benefits include:
Upfront agreement with the Division on what will be required for site closure;
Liability protection from all TDEC regulatory programs;
A negotiated apportioned liability as it pertains to generators and other responsible parties;
Provides limitations on federal enforcement actions under CERCLA § 128(b) at "eligible response
sites;"
Protection for third party lawsuits;
Agreement from the state's regulatory experts that a property is safe for future uses;
¦ Production of a 42 U.S.C. §9613(f)(4) ("CERCLA") settlement; and
Flexibility on the amount of the VOAP entry fee.
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Websites:
tennessee.gov/environment/dsf/brownfields.php
www.state.tn.us/environment/dsf/voap/
Contact:
Andy Shivas
Program Manager
Division of Remediation
Tennessee Department of Environment and Conservation
401 Church Street
Fourth Floor - L&C Annex
Nashville, TIM 37243
615-532-0912
Andy.Shivas@state.tn.us
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Why enter VOAP?
v/ Provides limitations on
federal enforcement actions
under CERCLA § 128(b) at
"eligible response sites"
^ Provides liability relief under all
TDEC statutes
v Provides Third Party
contribution protection under
CERCLA
"S Avoids Deed Notices and
Liens
S Reduces Transaction
Expenditures
S Program codified in Statute in
T.CA. 68-212-224.
^ Accounts for current and
future property use
consideration.
•S Provides Letter of No Further
Action when voluntary
activities completed.
S Allows Prospective Purchasers
to address properties without
becoming a Liable Party.
^ Expedites redevelopment by
parceling out "clean" areas.
ADDRESSING
BROWN FIELDS
PROJECTS?
Effective and Protective
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WhatisYOAP?
In August of 2001, Tennessee's Voluntary
Cleanup, Oversight, and Assistance
Program (VOAP) under went a major
overhaul. With the passing of the
Tennessee Brownfields Act, significant
changes were made to the VOAP statute
that allow persons to address Brownfields
Projects in a more time efficient manner
with enhanced liability protection.
Brownfields Projects may be sites
contaminated by hazardous substances,
solid waste, or any other pollutant. The
program was established by amendment to
the Tennessee Hazardous Waste
Management Act and is codified in TCA
Section 68-212-224.
In order to address properties under the
VOAP, voluntary parties must enter into
either a voluntary agreement or consent
order that outlines the agreed upon
investigation, remediation, monitoring,
and/or maintenance to be conducted at
the site. Upon completion of all activities
outlined in the agreement or order, the
voluntary party may be released from
liability under any environmental statute
administered by TDEC for any
contamination addressed under the
program. If certain constructive notice
requirements are conducted prior to
program entry, a voluntary party may also
be eligible to receive protection from third
party contribution actions under
CERCLA. If a property is an "eligible
response site" as defined in CERCLA, then
the VOAP can provide limitations on
federal enforcement actions.
VOAP and Brownfields
Numerous aspects of the VOAP are
beneficial in addressing the special needs
of Brownfields projects. Some examples
are:
^ Liability relief under all TDEC statutes
is provided for areas addressed under
the program
^ The Letter of No Further Action
(NFA) provides assurance to lenders
and prospective purchasers that the
site has been addressed to the
satisfaction of the Department.
^ If appropriate, an interim NFA letter
may be provided which states what
specific obligations remain to achieve
completion
^ The VOAP has met EPA requirements
so that "eligible response sites" are
eligible for limitations on federal
enforcement actions under CERCLA
^ Parties that did not release, generate or
transport contamination at the site
may enter into a voluntary agreement.
^ If appropriate, portions of the site,
demonstrated to be clean, can be
parceled out for immediate
redevelopment.
^ The VOAP can provide third party
contribution protection under CERCLA
^ The VOAP is the state contact for
Brownfield assessments and grants.
Overall, the goal is to get you through the
program quickly, efficiently, and effectively
to return properties to productive use.
Site Eligibility
The VOAP addresses sites where
hazardous substances or solid waste may
have been released. If the property is listed
or proposed for listing on the National
Priorities List (NPL), the Environmental
Protection Agency must concur with the
site being addressed under a consent order
or voluntary agreement. The site may also
be ineligible if on- site disposal of
hazardous substances is on going or if the
site is in an enforcement action by another
state environmental program. The VOAP
reserves the right to make the final
determination of eligibility.
Need more information?
Visit the VOAP website at:
www.state.tn.us/environment/dsf/voap
to view or download the following:
1. VOAP Process
2. Innocent Party Fact Sheet
3. Voluntary agreement
4. VOAP Statute
E-mail: Andy.Shivas@state.tn.us
Call: (615) 532-0912 Or Fax (615)741-1115
The Tennessee Department of Environment and Conservation is
committed to principles of equal opportunity, equal access and
affirmative action. Contact the TDEC EEO/AA Coordinator, Taryn
Harrison Sloss, (615)532-5249 or the ADA Coordinator, Isaac
Okoreeh-Baah, (615)532-0059 for further information. Hearing
impaired callers may use the Tennessee Relay Service (1-800-848-0298).
Tennessee Department of Environment and Conservation
Authorization No. 327845, 2,000 copies. This public
document was promulgated at a cost of $0.14 per copy.
Paid for through U.S. EPA Grant. June, 2000
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How to address a Brownfield project under the VOAP
In August, 2001, significant changes were made to the Voluntary Cleanup Oversight and Assistance
Program as a result of enactment of the Brownfields Project Voluntary Oversight and Assistance
Program amendment. The changes gave the VOAP the opportunity to deal with a broader range of
contaminants including petroleum as well as the ability to adjust or in certain cases waive its $5000
participation fee if the public welfare is served. It also offers relief from liability under all
environmental statutes that is transferable to successors in title. The following is a step by step
approach on how to address a Brownfields Project under the VOAP.
1. Perform Phase I and II Environmental Site Assessment to determine if real or perceived
contamination exists - When purchasing commercial and in some cases residential property,
you should solicit the services of a qualified environmental consultant to help you determine if
past uses of the property resulted in contamination being released on the property. This is done
in the form of a Phase I or II Environmental Property Assessment. It is customary to perform a
Phase I to research the past uses and history of the property. If the Phase I indicates that the
potential for contamination exists, a Phase II should be conducted. A Phase II involves taking
samples of soil, surface water, groundwater and any other potentially impacted media to
establish if there were indeed releases to the property. Depending on site circumstances, it may
be necessary to perform additional sampling to determine the extent of contamination. It should
be noted that liability protection under Tennessee's Brownfield Law rewards characterization in
that the more you know about your potential property, the more liability protection you receive.
You can be held potentially liable for any contamination that you fail to discover or disclose
2. After completing your Environmental Assessment, contact the VOAP -If the results of your
Phase II indicate that your prospective property may have contamination issues, this is a good
point to begin discussions with VOAP staff and obtain program material. You may do this by
contacting Andy Shivas at 615-532-0912 or by email at andy.shivas@state.tn.us. If you did not
release, generate or transport the contamination on the property, you will be eligible to enter into
a Brownfields Voluntary Agreement. The Voluntary Agreement will document what your
responsibilities are and what you need to do to obtain closure. It should be noted that in order to
obtain program information it is not mandatory to designate the exact location of the site at this
time.
3. Determine what areas of contamination you need to address in your agreement - Upon
receiving your model agreement, you will need to decide what areas you wish to address under
the agreement. It is adviseable to seek the assistance and advice of an environmental consultant
and attorney to determine the content of your agreement particularly if the property has complex
issues. In addition, it is recommended that you schedule a conference with VOAP staff to
familiarize them with your project and receive their advice as to what needs to be done to make
the site safe for its next intended use. This can help expedite the process of achieving approval
of your project and Agreement. It is also an excellent opportunity to get answers for any
questions you might have regarding the Brownfields Agreement.
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4. Prepare, negotiate and finalize your Voluntary Agreement - Based on feedback from your
conference, you will need to complete certain sections of your Voluntary Agreement for
submittal for Department approval. While some items contained in the models are necessary due
to statutory or programmatic considerations and cannot be changed, there is some flexibility to
modify certain parts of a model based on site-specific circumstances or other considerations. It
should be noted that depending on the nature of the changes, it could extend the TDEC's review
time.
5. Conduct public notice and constructive notice - The VOAP statute requires that certain
public notice requirements be conducted. Notice must be sent by certified mail to all local
governments having jurisdiction over any part of the subject property and to all owners of
adjoining properties. If the participant desires to receive Third Party Contribution Protection it
will be necessary to publish a notice in a newspaper of geographical distribution summarizing
the agreement and provide a 30 day comment period for any interested party to respond. Upon
completion of the public comment period, the Agreement can be finalized.
6. Perform agreed actions in Voluntary Agreement - The finalized Agreement will contain the
various activities that you and the Department have agreed to conduct in order to receive
liability protection. This can be a variety of activities such as reimbursement of past costs to the
remedial action fund, implementation of a Notice of Land Use Restrictions to restrict future use
of the property or conducting various investigative and remedial actions to make the site safe for
its next intended use.
7. Site Closure and No Further Action Letter - Upon completion of all agreed actions in your
agreement, you will receive a No Further Action Letter. This letter is extremely important to
demonstrate to potential buyers or lenders that you have addressed the contamination to the
satisfaction of the Department.
One frequently asked question is how much will it cost to address a site under the VOAP?
Currently, the VOAP does not charge a participation fee to parties that can demonstrate that they
did not release, generate or transport the contamination to be addressed at the site. The Voluntary
party will be responsible for any oversight costs related to the project. Oversight costs can include
mileage for site visits, lab expense, the current hourly rate and benefits for project managers and
associated staff and state overhead costs which is capped at 15.00%. It should be noted that the
average per hour rate for most project managers is less than $30.00 per hour. The Program strives to
keep oversight costs as low as possible.
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A NEW AND EXCITING OPTION FOR TENNESSEE
BROWNFIELDS SITES
Division of Remediation
Voluntary Cleanup Oversight and Assistance Program
"Innocent Party" (T.C.A. 68-212-224) Agreements
The Division of Remediation's new "Innocent Party" Agreement ("IPA") provides the most
protection in a cleanup agreement available from the Department of Environment and
Conservation. Thanks to the actions of the 2001 General Assembly, the Division can offer
"innocent parties" an upfront agreement that gives liability protection and assures that a
site is safe for future uses. The following benefits are available through this new program:
• Upfront agreement with the Division on what will be required for site closure;
• Liability protection from all TDEC regulatory programs;
• A negotiated apportioned liability as it pertains to generators and other responsible
parties;
• Protection for third party lawsuits;
• Agreement from the state's regulatory experts that a property is safe for future uses;
• Produces a 42 U.S.C. §9613(f)(4) ("CERCLA") settlement;
• Flexibility on the amount of the VOAP entry fee; and
• Respect and appreciation for the interest of the innocent party.
The intent of the IPA is to return sites with known or suspected contamination to limited or
full use. The IPA will address liability for past contamination that otherwise tends to limit,
the use of Brownfield sites.
Who can apply?
Anyone who did not generate, transport, or release contamination at the site may apply to
enter the program. Even landowners who may be considered to be "liable parties" under
the State and Federal Superfund laws qualify as "innocent parties" under this program if
they did not generate, transport, or release contamination at the site.
What will it cost?
In an effort to make more cleanup projects economically feasible, the Commissioner is
exercising his authority to waive the fee for entry into this program for the coming year for
sites that are not subject to potential enforcement actions by being listed on CERCLIS or
promulgated as an inactive hazardous substance site. The Department does charge a
modest hourly rate designed to recover actual costs associated with its oversight.
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What is necessary to apply?
The Division encourages applicants to seek qualified legal counsel and environmental
consultant expertise in preparing an application for IPA. The Department maintains an
application that can be downloaded on the Division of Remediation web site at
http://www.state.tn.us/environment/dsf/index.html. This application must be accompanied
by a summary description of all known existing environmental investigations, studies,
reports, or documents concerning the site's environmental conditions. The applicant and
counsel will also be requested to submit a proposed legal agreement for consideration. A
model legal agreement will be available for downloading from the Division's web site in the
near future.
Will extensive risk assessments, lengthy investigations, records of decision,
and/or cleanups to unrealistic clean up goals be required?
It is the intent of the Division to avoid the "traditional" superfund process to the maximum
extent possible in negotiating agreements with "innocent parties". The Division has
extensive experience in directing cleanups across Tennessee and is willing to use this
experience to assist applicants to shorten the path to project completion. Where it is
obvious to all parties what is necessary at a site, the Division will avoid unnecessary and
costly steps.
Will the Division help pay for site cleanup?
On a site where liability is apportioned and an true orphan share exists, the Division may
participate in cleanup. At present this participation would be through the use of state
contracted consultants, with the other party(ies) to the voluntary agreement paying the
non-orphan share costs. Where a property is unlikely to be cleaned up because of a large
orphan share, the Division is willing to consider use of the fund again with state contractors
doing the work.
Will public notice be required?
The Department is committed to giving Tennessee citizens information on its
environmental decisions. The Division is sensitive to the high cost associated with
publication of notices in the major newspapers and will work with applicants to accomplish
the necessary public notice at the least cost.
What if I am not an innocent party?
State law allows the Commissioner to enter a consent order with any person wishing to
voluntarily cleanup a site. The Department is appreciative of individuals willing to proceed
with cleanup without having action directed by an enforcement order. The Division of
Remediation welcomes responsible parties to make application for a VOAP consent order.
For more information, contact Andy Shivas at 615-532-0912 or by email at
andy.shivas@state.tn.us. A copy of the Innocent Party Agreement can be obtained at this
link.
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STATE OF TENNESSEE
DEPARTMENT OF ENVIRONMENT AND CONSERVATION
BROWNFIELD VOLUNTARY AGREEMENT
RE: [SITE NAME]
SITE NUMBER:
INTRODUCTION
This Brownfield Voluntary Agreement (hereinafter "AGREEMENT") is made and
entered into as of , 200_, by and between[among] the Tennessee Department of
Environment and Conservation (hereinafter "Department"), and , a
[e.g., organized under and existing pursuant to the laws of the State
of Tennessee] (hereinafter [collectively] "Voluntary Party") for the purpose of addressing [an
approximately acre portion of] the above-referenced site (hereinafter "Site"), which
has the real or perceived threat of the presence on the Site of hazardous substances, solid waste,
or any other pollutant.
James H. Fyke is the duly appointed Commissioner of the Department. Jim Haynes,
Director of the Department's Remediation Division, has been delegated the authority to enter
into these Agreements.
Pursuant to Tennessee Code Annotated § 68-212-224, the Commissioner is authorized to
enter into an Agreement with a party who is willing and able to conduct an investigation and
remediation of a hazardous substance site or Brownfields Project and who did not generate,
transport or release the contamination that is to be addressed at the Site.
REQUIREMENTS
A. SITE LOCATION
The Site is located at:
[Street address or legal description- attach as exhibit]
B. ELIGIBILITY
As required by T.C.A. § 68-212-224, a summary description of all known existing
environmental investigations, studies, reports or documents concerning the Site's environmental
condition has been submitted to the Department by the Voluntary Party. On the date of entering
into this AGREEMENT, the Department has determined that the Site is not listed or been
proposed for listing on the federal National Priorities List by the United States Environmental
Protection Agency (EPA). By entering into this AGREEMENT, the Voluntary Party certifies to
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the best of the Voluntary Party's knowledge that the Voluntary Party did not generate, transport
or release contamination that is to be addressed at this site.
C. FINANCIAL REQUIREMENTS
The Voluntary Party agrees to pay all Oversight Costs associated with the Department's
oversight of and assistance in the implementation of this AGREEMENT. Assistance includes,
but is not limited to, the Commissioner's exercise of his authority under T.C.A. § 68-212-206(a).
Oversight Costs shall include any out-of-pocket expense, mileage, lab expense, the current
hourly rate and pro rata portion benefits for the Department's employees actively employed in
oversight of work under this AGREEMENT, including preparation for and attendance at
meetings, the current State overhead rate, and costs billed by State contractor(s) who are actively
performing oversight. The Department shall provide the Voluntary Party with quarterly
statements reflecting oversight costs posted during the previous quarter.
Tennessee Code Annotated § 68-212-224 requires consideration of a fee to enroll in the
Voluntary Cleanup Oversight and Assistance Program. Since the Voluntary Party did not
generate, transport or release contamination that is to be addressed at the site and will be serving
the public welfare by redeveloping a property that is abandoned or underutilized, the
participation fee is hereby waived.
D. IDENTIFICATION AND DOCUMENTATION OF CLEANUP
Based on the information submitted to the Department by or behalf of the Voluntary
Party, and the Department's own review and investigation of the Site, the Parties hereto agree
that the following environmental conditions are to be addressed under this Agreement:
E. AGREED LIABILITY RELIEF
Real or perceived hazardous substances, solid wastes or other pollutants are determined
to be present on this site to an extent that may or may not have yet been fully characterized. As
the current owner or operator, or upon becoming an owner or operator of the Site, the Voluntary
Party may occupy the status of a "liable party" pursuant to the definition of that term contained
in T.C.A. § 68-212-202(4). Liability may be apportioned pursuant to factors in T.C.A. § 68-212-
207 as well as other equitable factors. The Commissioner is authorized to determine an
apportionment of liability within this Agreement as authorized by T.C.A. § 68-212-224.
The Commissioner agrees that the Voluntary Party's implementation of the actions
agreed upon in Section H will constitute satisfaction of the apportioned liability of the Voluntary
Party under all environmental statutes administered by the Department for the contamination
identified in Section D of this AGREEMENT. The Voluntary Party, however, remains
potentially responsible for any release of hazardous substances or other pollutants that occurs at
the Site while it owns or operates the Site.
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Other than the obligations set forth in this AGREEMENT, the Voluntary Party shall bear
no liability under any statute administered by the Department, for investigation, remediation,
monitoring and/or maintenance of the environmental conditions identified and addressed in this
AGREEMENT, (1) during the implementation of the response activities required hereunder, as
long as the Voluntary Party is and remains in compliance with the terms and condition of this
AGREEMENT, and/or (2) following the completion of such response activities required under
this AGREEMENT; provided, however, that to the extent that the Voluntary Party has or
maintains an interest in the Site, or possesses and/or controls all or a portion of the Site, its
liability protections hereunder are contingent upon the continued adherence and enforcement of
any land use restrictions imposed pursuant to or as a result of this AGREEMENT.
Notwithstanding the foregoing, nothing in this AGREEMENT shall limit the liability of the
Voluntary Party for contamination occurring after the date of the AGREEMENT. This liability
protection is extended to successors in interest or in title, contractors conducting response actions
at the Site, developers, future owners, tenants, and lenders, fiduciaries or insurers, conditioned
upon performance of the obligations contained in this Agreement and compliance with any land
use restrictions required thereby; and, this liability protection does not apply to liability that
arose prior to this AGREEMENT.
F. THIRD PARTY LIABILITY RELIEF
The Voluntary Party shall not be liable to third parties for contribution regarding matters
addressed in this AGREEMENT; provided that, the Voluntary Party gave the third party actual
or constructive notice of this AGREEMENT, and the third party was given an actual or
constructive opportunity to comment upon this AGREEMENT. The Voluntary Party has
demonstrated to the Department that constructive notice was accomplished by publishing a
summary of this AGREEMENT in the [ newspaper of general circulation within
the geographical area of the Site] at least thirty (30) days prior to the Effective Date of this
AGREEMENT. Nothing in this Agreement shall impair the rights of third parties with respect to
tort liability claims for damage to person or property arising from the contamination addressed
by the voluntary agreement.
G. LAND USE RESTRICTIONS
Upon acquiring the Site, the Voluntary Party agrees that said property will be restricted
as follows:
[e.g., to industrial uses and services onlvl
The Voluntary Party agrees that it will file any land use restriction identified by the Department
as necessary for the safe use of the property in accordance with T.C.A. 68-212-225.
H. AGREED ACTIONS TO BE TAKEN
1. The Voluntary Party agrees to send notification of this AGREEMENT by
certified mail to all local governments having jurisdiction over any part of the
subject property and to all owners of adjoining properties. The Voluntary Party
shall provide adequate documentation to demonstrate that public notice has been
accomplished.
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2.
The Voluntary Party agrees to
3. Upon completion of all tasks set forth in this AGREEMENT, the Department
shall issue to the Voluntary Party a letter stating the requirements of this
AGREEMENT have been fulfilled and no further action is required of the
Voluntary Party concerning contamination identified and addressed in this
AGREEMENT. Upon the request of the Voluntary Party from time to time, the
Department shall issue an interim status letter identifying what specific
obligations remain to achieve completion of the work under this AGREEMENT.
Issuance of a no further action letter shall not relieve the Voluntary Party of any
responsibilities for operation and maintenance activities or continued adherence to
and enforcement of land use restrictions, if any, pursuant to T.C.A. § 68-212-225.
The Department reserves the right to require additional action for contamination
caused by the Voluntary Party occurring after the date of this AGREEMENT or
for contamination not identified and addressed under this AGREEMENT, if any.
Each Voluntary Party or successor in title to the Site shall be responsible for
compliance with the requirements of this AGREEMENT during the period in
which such person owns an interest in the Site, or possesses and/or controls all or
a portion of the Site.
I. ADDITIONAL REQUIREMENTS
1. The Voluntary Party may request a time extension for any deadline included in this
AGREEMENT prior to the deadline. The time extension may be granted through
mutual consent for good cause shown.
2. The Voluntary Party agrees not to disturb, move or remove any areas of hazardous
substances, solid waste or other pollutant(s) that are subject to liability protection
under this AGREEMENT without written approval by the Department unless the
activities are being conducted under the terms and conditions of this AGREEMENT
or necessitated by the normal day-to-day activities of any on-going business.
J. SITE ACCESS
During the effective period of this AGREEMENT, and until certification by the
Department of completion of all activities under this AGREEMENT, the Department and its
representatives or designees shall have access during normal business hours to the Site. Nothing
herein shall limit or otherwise affect the Department's right of entry, pursuant to any applicable
statute, regulation or permit. The Department and its representative shall comply with all
reasonable health and safety plans published by the Voluntary Party or its contractor and used by
Site personnel for the purpose of protecting life and property.
K. SUBMISSION OF INFORMATION, REPORTS, OR STUDIES
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The Voluntary Party certifies under penalty of law, including but not limited to penalties
for perjury, that the information contained in all submissions is true, accurate and complete to the
best of their knowledge, information and belief. The Voluntary Party is aware that there are
significant penalties for submitting false information, including the possibility of fine and
imprisonment for intentional violation.
L. RESERVATION OF RIGHTS
1. This AGREEMENT shall not be construed as waiving any right or authority
available to the Commissioner to assess responsible parties other than the
Voluntary Party for liability for civil penalties or damages incurred by the State,
including any natural resource damage claims which the Department or the State
of Tennessee may have under Section 107 of CERCLA or any other statute, rule,
regulation or common law.
2. Nothing in this AGREEMENT shall be interpreted as limiting the Voluntary
Party's right to preserve the confidentiality of attorney work product or client-
attorney communication. T.C.A. § 68-212-202 et seq. contains no provisions for
confidentiality or proprietary information. Therefore, records, reports, test results,
or other information submitted to the Department under this AGREEMENT shall
be subject to public review. Any and all records, reports, test results or other
information relating to a hazardous substance site or the possible hazardous
substance at the Site submitted under this AGREEMENT may be used by the
Department for all purposes set forth in T.C.A. § 68-212-201 et seq.
3. Voluntary Party may terminate this AGREEMENT at any time upon written
notice to the Department. Upon such termination, the Voluntary Party shall have
no further obligations hereunder other than payment of oversight costs accrued to
the date of notice of termination; provided, that both Parties shall have and retain
all authority, rights and defenses as if this AGREEMENT had never existed.
4. The Department may terminate this AGREEMENT by written notice to the
Voluntary Party in the event that the Department receives timely comments from
third-party contribution claim holders pursuant to the notice sent under Section F
of this AGREEMENT, if any, and such comments disclose facts or considerations
that indicate that this AGREEMENT is inappropriate, improper or inadequate;
provided, however, absent fraud or intentional misconduct, that in such event the
Voluntary Party may elect to waive the protections set forth in Section F
hereunder and the remainder of the terms and conditions of this AGREEMENT
shall continue to be in full force and effect. The Department's notice of
termination must be made within thirty (30) days of the end of the 30-day notice
period required by Section F. The Voluntary Party's waiver notice must be made
within fifteen (15) days after receipt of the Department's termination notice.
5. Nothing in this AGREEMENT shall be interpreted as limiting the liability for the
proper management and/or disposal of contaminated material removed from the
site.
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The individual(s) signing below on behalf of the Voluntary Party [represent that they have the
authority or are] [represents that he is a] duly authorized agent(s), capable of entering into a
binding AGREEMENT on behalf of the Voluntary Party. By entering into this AGREEMENT,
[these individuals certify ][this individual certifies] that the Voluntary Party did not generate or
did not cause to generate, transport or release contamination that is to be addressed at this site.
The Effective Date of this Agreement is the thirtieth (30th) day after the publication of the notice
described in Section F of this Agreement.
Date James W. Haynes, P.E. Date Voluntary Party:
Director
Division of Remediation
2277676.1
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Tennessee
G/emralOnformaSon
Contact: Andy Shivas
Address: Tennessee Department of Environment and
Conservation (TDEC)
4th Floor, L&C Annex
401 Church Street
Nashville, TN 37243-1538
Phone: 615 532 0912
Fax: 615 741 1115
Email: Andy.Shivas@state.tn.us
Web site: http://www.state.tn.us/environment/dsf/voap/
Program Description
(VCP, brown fields, or related)
Brownfields definition: Any abandoned, idle,
underutilized, or other property whose reuse, growth,
enhancement or redevelopment is complicated by real or
perceived adverse environmental conditions.
Program titles: Voluntary Cleanup Oversight and
Assistance Program (VOAP)
Liability relief provisions: Participants can receive a No
Further Action (NFA) letter and release of liability under any
statute administered by TDEC for investigation,
remediation, monitoring and/or maintenance of
contamination identified and addressed in a voluntary
agreement or consent order. With certain conditions and
limitations, liability protection may extend to successors in
interest or in title to the participant, contractors conducting
response actions at the site, developers, future owners,
tenants, and lenders, fiduciaries, or insurers. Third party
contribution protection may be provided if certain notice
requirements are met.
Financial incentives (grants, loans, tax provisions, etc.):
• Dry Cleaning Environmental Response Program Trust
Fund (DCERPTF)—Can possibly be used to clean up
eligible active and abandoned dry-cleaning sites. In
order to utilize the fund, fees and deductibles are
required by program participants.
• Tax Increment Financing (TIF)—Can be used by local
governments that have jurisdiction over any part of a
brownfields project.
• Federal Funds—Grants or loans from federal funds
available to TDEC and any state funds used as a match
to obtain federal funds in certain cases may be used by
municipalities, counties, and/or other governmental
instrumentalities to assess and clean up sites.
Legislative or program site eligibility requirements: By
statute, responsible parties (RPs) are not eligible to enter
into voluntary cleanup agreements (however, the state has
the authority to enter into consent orders with responsible
parties that voluntarily propose cleanups). Sites on or
proposed for listing on the federal Superfund program's
National Priorities List (NPL) may not be subject to a
voluntary cleanup agreement or consent order without the
concurrence of the EPA.
Financial Elements
Assessment and cleanup funding (source, amount,
relationship to VCP/brownfields programs, application
process, eligibility requirements, dedication to special
types of sites such as petroleum, dry cleaners,
abandoned drug labs, etc.): DCERPTF can be used to
clean up eligible active and abandoned dry-cleaning sites.
Fund had a balance of $4,400,000 at the end of FY04. A
solvent surcharge paid by dry cleaners and suppliers and
an annual business registration fee are the significant
sources of funding.
Federal Funds—Grants or loans from federal funds
available to TDEC and any state funds used as a match to
obtain federal funds may in certain cases, at the discretion
of the TDEC Commissioner, be used by municipalities,
counties, and/or other governmental instrumentalities to
assess and clean up sites. This portion of the statute has
not been implemented to date.
Tax incentives (abatements, credits, etc.): TIF can be
used by local governments that have jurisdiction over any
part of a brownfields project.
Other forms of support (environmental insurance,
brownfields redevelopment authorities, etc.): No
information available
Program Elements
Technical Elements
Methods/standards/controls: EPA Region 9 Preliminary
Remediation Goals (PRGs) are used for initial screening.
The criteria for selecting containment and cleanup actions,
including monitoring and maintenance options to be
followed under the VOAP, are identical to those under the
hazardous substance cleanup program. No formal Risk-
Based Corrective Action (RBCA) or comparable informal
process is in place, but risk-based cleanups can be done
via site-specific assessment with standards based on risk.
Applicants can also request or develop standards based on
future use.
Contaminants covered/excluded: Petroleum, asbestos,
and polychlorinated biphenyls (PCBs) are covered. Lead
paint is covered if other hazardous substances are present.
Statute covers hazardous substances, solid waste, or any
other pollutant.
Use of long-term stewardship and institutional controls
(tracking, oversight, monitoring, reopeners): Tennessee
has a long-term stewardship program for voluntary sites.
The 2001 amendments to the VOAP allow for enforceable
land-use restrictions. Tennessee does have a tracking
system for institutional controls. The state reviews sites on a
site-specific basis at least every five years. The results of
the reviews are available to the public.
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State Brownfields and Voluntary Response Programs:
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Management & Implementation Elements
Voluntary Cleanup Program MOA with EPA: No
Costs to enter program or fees for service: The
statutorily authorized $5,000 participation fee has been
waived by TDEC for parties eligible to enter voluntary
agreements. Voluntary parties are responsible for oversight
costs related to project. Such costs can include mileage for
site visits, lab expense, current hourly rate and benefits for
project managers and associated staff and state overhead
costs, which are capped at 15%. (Average per hour rate for
most project managers is less than $40 per hour).
Funding source for administrative costs and staff: The
VOAP receives funding from federal cooperative
agreements, the state general fund, and the state cleanup
fund. Certain oversight costs are recovered from
participants. There is one employee who works on long-
term stewardship.
Cleanup Activities
Sites currently in VCP: 103 sites were in the VOAP as of
August, 2004.
Sites completed under VCP: 50 sites have received No
Further Action letters.
Benefits (incentives to participate in the VCP, covenants
not to sue, etc.): No information available
Public Participation
Public participation requirements (notice, comment
periods, etc.): Upon entering into a voluntary agreement
or consent order, participants are required by statute to
notify all local governments having jurisdiction over any
part of the subject property and all owners of adjoining
properties by certified mail. If it is determined that a land
use restriction is appropriate, a notice of land use
restrictions must be mailed to all local governments having
jurisdiction over any part of the subject property and to all
owners of adjoining properties. Furthermore, if a participant
desires to receive third party contribution protection, a
notice summarizing the agreement must be published in a
newspaper. In addition, a 30-day comment period must be
provided for any interested party to respond.
Public participation activities (hearing, meetings,
etc.): Public hearings and meetings occur on an ad hoc
basis.
Statutory Authorities
For details visit: http://www.state.tn.us/environment/dsf/
voap/pdf/voap_sta tute.pdf.
An Update from the States
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