James A. Thornhill comments continued

Part 2:  Comments 11 through 19

Comment 11 (9 VAC 20-160-70.D)--The Department has proposed a new provision as follows:

D. Until certificate issuance, all participants shall submit an annual report to the department containing a brief summary of any actions ongoing or completed as well as any planned future actions for the next reporting period. This report shall be submitted by July 1 using the "VRP Site Status Reporting Form." Failure to submit within 60 days may result in the site's Voluntary Remediation Program eligibility status being terminated.

This is a fairly draconian provision for a “voluntary” program.  This provision needs some element of notice before termination instead of having a “gotcha” type effect when a participant may be actively working through the program and simply fails to submit the completed form.  Also, where can one find the “VRP Site Status Reporting Form?”  If it has not yet been developed then there cannot be a requirement to submit such a form.  Finally, the Department needs to clarify what the “reporting period” is.  Please consider the following revisions to the proposed revision:

D. Until certificate issuance, all participants shall submit an annual report for the July 1^st to June 30^th time period to the department containing a brief summary of any actions ongoing or completed as well as any planned future actions for the next annual reporting period. This report shall be submitted by July 1 30^th following the end of the previous annual reporting period using the "VRP Site Status Reporting Form." if such form has been developed and made available by the department prior to the end of the applicable reporting period or, if not, in writing to the department.  Failure to submit an annual report within 630 days of receipt of notice from the department that the annual report has not been received may result in the site's Voluntary Remediation Program eligibility status being terminated.

Comment 12 (9 VAC 20-160-90)--Where referencing outside standards, the dates need to be updated. 

Comment 13 (9 VAC 20-160-100.A.3)--A new proposed termination provision has been added as follows:

3. Upon participant’s failure to make reasonable progress towards completion of the program, as determined by the department.

This is a very subjective standard for termination.  Presumably, this is to match up with the Department’s current practice of issuing a 30-day letter when not having received any submissions for six months to a year.  This places quite an element of doubt on those participating as to what is meant by “reasonable progress” and what delays may be acceptable.  For example, does it mean that a participant only has three months to complete its site characterization or to obtain off site access before the Department will terminate the involvement in the program. If not, is it six months?  Nine months?  Again, this is a “voluntary” program and there should not be provisions in the regulations that discourage enrollment.  Granted, if there is simply no movement for a year and no response to a 30-day letter then termination appears appropriate, but if a participant advises of its intent to remain in the program there does not appear to be a good reason to terminate them.  Please consider the following in lieu of the proposed language:

3. Upon participant’s failure to make reasonable progress towards completion of the program, as determined by the department, and subsequently failing to respond within thirty (30) days of receipt of the department’s written request expressing in a written response the participant’s intent to remain in the program and to fulfill the program requirements.

Comment 14 (9 VAC 20-160-100.A.4)--A new proposed termination provision has been added as follows:

4. Upon fulfillment of all program requirements and issuance of the Certification of Satisfactory Completion of Remediation as described in 9VAC20-160-110, notwithstanding any conditions of issuance specified in the Certificate.

The proposed termination may be somewhat premature.  What happens if the certificate requires recordation due to the restrictions imposed and it is not recorded within 90 days of issuance?  There can be instances where there is a material mistake in the certificate or all of the necessary signatures cannot be obtained and the certificate needs to be reissued.  Does the participant have to re-apply for enrollment since the matter is terminated?  The participation should end in the case of a certificate that is recorded upon recordation thereof.    Please consider the following revisions to the proposed new provision:

4. Upon fulfillment of all program requirements and issuance of the Certification of Satisfactory Completion of Remediation as described in 9VAC20-160-110.C for unrestricted use or recordation of the Certification of Satisfactory Completion of Remediation for a restricted use site in accordance with 9 VAC 20-160-110.E , notwithstanding any conditions of issuance specified in the Certificateion of Satisfactory Completion of Remediation.

Comment 15 (9 VAC 20-160-110.E)—At the end of the first sentence the phrase “within 90 days of execution of the certificate by the department, unless specified in the certificate” was added.  The language that the TAC saw at one point had the words “a longer duration is” after “unless.”  Without these words or using the word “otherwise,” the language does not make sense. Please consider changing the language as follows:

 …within 90 days of execution of the certificate by the department, unless a longer duration is specified in the certificate.

Comment 16 (9 VAC 20-160-110.H)—The Department proposes the underlined changes below to the certificate revocation language:

H. The certificate may be revoked by the director department at any time in the event that conditions at the site, unknown at the time of issuance of the certificate, pose a risk to human health or the environment or in the event that the certificate was based on information that was false, inaccurate, or misleading. The certificate may also be revoked for the failure to meet or maintain the conditions of the certificate. Any and all claims may be pursued by the Commonwealth for liability for failure to meet a requirement of the program, criminal liability, or liability arising from future activities at the site that may cause contamination by pollutants. By issuance of the certificate the director department does not waive sovereign immunity. Failure to implement and maintain land use controls may result in revocation of the certificate.

The insertion of the two new sentences confuses the original intent of the provision.  Additionally, the two new revocation sentences are ones where notice should be given to the current property owner of the issue with a right to cure before revocation after the time and expense that would have been incurred to take the site through the program.  Please consider the following changes to the proposed revised provision:

H. The certificate may be revoked by the director department at any time in the event that conditions at the site, unknown at the time of issuance of the certificate, pose a risk to human health or the environment or in the event that the certificate was based on information that was false, inaccurate, or misleading.  Additionally, Tthe certificate may also be revoked for the failure to meet or maintain the conditions of the certificate or failure to implement and maintain land use controls specified therein upon written notice to the current owner of the property that is the subject of the certificate and a failure to cure within sixty (60) days or some other longer reasonable period granted by the department . Any and all claims may be pursued by the Commonwealth for liability for failure to meet a requirement of the program, criminal liability, or liability arising from future activities at the site that may cause contamination by pollutants. By issuance of the certificate the director department does not waive sovereign immunity. Failure to implement and maintain land use controls may result in revocation of the certificate.

Comment 17 (9 VAC 20-160-110.J)—While is it understandable that the department would like to know of a transfer of the property subject to a VRP certificate upon a transfer as provided in the new 9 VAC 20-160-110.J, the addition of this provision requiring notice to the department of a change in ownership will cause many issues:  (A) With the change in 9 VAC 20-160-110.H to add as a reason for revocation being the failure to meet a condition of the certificate, the department could revoke the certificate simply because a new owner did not register with the department, although there is no new risk to human health or the environment by a failure to register;. (B)  The way the provision reads this will impact all sites where certificates were previously issued although there is nothing in those certificates to alert the new owner of the requirement.  A new owner may not even know of the issuance of a certificate where there are no restrictions on use as it did not need to be recorded.  (C)  If the language is modified and only applies to new certificates then it should only be those with restrictions as (i) those will be recorded and (ii) ones without restrictions have no ongoing requirements for the department to monitor.  (D)  With most tax records on line and the tax parcel numbers on certificates so the department can easily verify ownership without requiring this change of ownership notification that will cause more problems that the benefit received by the Department by the change.

Comment 18 (9 VAC 20-160-120.B.2)—The Department has proposed to revise the group of owners who must receive notice in 9 VAC 20-160-120.B.2 to include “other owners whose property has been impacted by the release being addressed under the VRP project.”  Please consider adding the word “physically” before “impacted” to avoid any confusion where individuals may believe they are entitled to personal notice because they are in the area of the release but not physically impacted.

Comment 19 (9 VAC 20-160-120.C)—The Department proposes that “the department, at its discretion, may increase the duration of the comment period.”  There needs to be some limit on how long the department may increase the time period as the participant needs some assurance that there is an end.  Has the Department ever needed to allow an affected party more than 60 days?  It seems unlikely and that would appear to be a fair limit.  Please consider the following change:

A comment period of at least 30 days must follow issuance of the notices pursuant to this section. The department, at its discretion, may increase the duration of the comment period to up to 60 days.

 In addition to the foregoing comments the following are a couple of “nits”:

• 9 VAC 20-160-110.D—In the last sentence the word “purpose” should be plural as “purposes.”
• 9 VAC 20-160-120.E.2—There is an extra period at end of provision.

Thank you for the opportunity to comment on the proposed regulations.  The proposed changes will have a substantial adverse impact on the program and need to be carefully considered.  Additional input from the stakeholders through meetings to discuss a revised draft would help avoid such impacts. 

James A. Thornhill