James A. Thornhill Comments:

Although I was a member of the Technical Advisory Committee (“TAC”) assisting the Department on the revisions to the regulations, the Department made fairly substantial changes to the draft sent to the Governor’s office from the last draft the TAC considered in its third meeting on August 31, 2009.  These comments present concerns not only to the changes made by the Department to what the TAC last reviewed, but also as a result of issues that have arisen since the TAC’s work and from a close look at the impacts of the proposed changes to the regulations.

These comments are submitted in two parts due to word limitations in submitting the comments on line.

Part 1:  Comments 1 through 10 

Comment 1 (9 VAC 20-160-10)—The new definition “monitored natural attenuation” is defined as follows:  “a remediation process which closely monitors the natural or enhanced attenuation process.”  It is unclear what “closely” means.  Is it weekly, monthly or annually, or is it some other time period?  As the Department will be involved in any decisions on the frequency, please consider deleting the word “closely” as appears to simply add uncertainty in the definition.

Comment 2 (9 VAC 20-160-30.B.1)—The new provision B.1 under the eligibility criteria provides that applicants must demonstrate that they have access beginning at the time of the application.  Many VRP applicants are contract purchasers and the owners generally are only willing to consent to the submission of application.  Access to the property is limited to the contractual due diligence period, which may be for a limited period and may not extend through the entire application process.    Once deemed eligible the closing generally occurs and the applicant becomes the owner.  Except for access for purposes of an inspection by the Department as provided in 9 VAC 20-160-40.B (which occurs infrequently), the access requirement should begin when the application fee is delivered for entry into the program as that is when the access requirement should commence.  There generally is no reason for access during the time the Department is reviewing the application other than the infrequent site inspection by the Department during the application process.  Please consider amending proposed 9 VAC 20-160-30.B.1 as follows:   

Access: Applicants who are not the site owner must demonstrate that they have access to the property for purposes of inspections required by the department during the application process as provided in 9 VAC 20-160-, and at the time of payment of the registration fee in accordance with 9 VAC 20-160-60, application, and must maintain such access right during the investigation, and throughout the remedial activities until the remediation is completed.

The application section (9 VAC 20-160-40) should be amended to add a requirement for an applicant who is not the owner to have the consent of the owner to submit the application as suggested in Comment 7.

Comment 3 (9 VAC 20-160-30.B.2 & 9 VAC 20-160-30.B.3)--The requirement to advise the Department of a change in the ownership of the property or the participant’s agent during the time the site is in the VRP are fair, but they do not seem to belong in the eligibility section of the regulations.  Please consider placing them in a new section for clarity.

Comment 4 (9 VAC 20-160-30.D.3)--The VRP regulations currently provide that a site is not eligible for the VRP pursuant to 9 VAC 20-160-30.D.3 where:

The site at which the release occurred constitutes an open dump or unpermitted solid waste management facility under 9VAC20-81-45 of the Solid Waste Management Regulations;

For approximately 10 years the Department has been working on guidance for consistent application of the eligibility criteria for open dumps.  The regional offices have struggled with how to apply the open dump criteria to a site seeking eligibility not knowing whether it is necessary to require pre-eligibility sampling or what date or dates of disposal matter.  One of the areas of the Commonwealth most benefitted by the VRP is the Carlyle area of Alexandria where the United States Patent and Trademark was developed partially on an old landfill.  Even after a number of portions of such landfill had been entered into the program, a debate arose due to the “open dump” criteria when the Alexan Carlyle Centre site applied for eligibility to enter the program.  While ultimately allowed to enter the program, there should have never been a debate and could have been avoided with a clear standard.

The revised draft of the regulations provided to the TAC on August 6, 2009 would have finally brought a bright line test as to when a site would not be eligible as an open dump.  The draft considered by the TAC on August 6, 2009 provided as follows:

3. The site at which the release occurred Solid waste was disposed on the site on or after December 21, 1988 and the site constitutes an open dump or unpermitted solid waste management facility under Part IV (9VAC20-80-170 et seq.) of the Virginia Solid Waste Management Regulations;

4. Solid waste was disposed on the site prior to December 21, 1988 and at the time of receipt of the VRP application one or more of the following applies:

a. DEQ has issued a notice of violation that remains unresolved asserting that the site constitutes an open dump or unpermitted solid waste management facility under 9VAC20-80-170, et seq.;

b. The site has been declared an open dump or an unpermitted solid waste management facility under 9VAC20-80-170, et seq., pursuant to a court or administrative order; or,

c. DEQ has not yet issued a notice of violation, but is actively investigating the site as a potential open dump or unpermitted solid waste management facility pursuant to 9VAC20-80-170, et seq., and the VRP application was submitted in an attempt to circumvent DEQ's authority to enforce the open dump or unpermitted solid waste management facility criteria under 9VAC20-80-170, et seq.

The criticism from the Department to the TAC regarding the proposed change was that thelanguage set forth immediately above read too much like guidance.  What is meant by this is unknown.  The language would set a clear standard and would have clarified what former solid waste disposal sites are eligible for the VRP.  Instead, the Department now proposes the following revised language from the current regulations:

The site at which the release occurred constitutes has been determined to be an open dump or unpermitted solid waste management facility under Part IV (9VAC20-80-170 et seq.) of the Virginia Solid Waste Management Regulations. 

The language is still unclear and leaves open many questions. Has been determined when?  Before application?  Does the Department have to ask for sampling to know whether to determine if the site is an open dump?  If the Department desires to follow this path, please consider revising the proposed language as follows adding the bold, underlined and italicized language for clarification:

The site at which the release occurred constitutes has been determined in writing by the department prior to the date of application with notice to the owner to be an open dump or unpermitted solid waste management facility under Part IV (9VAC20-80-170 et seq.) of the Virginia Solid Waste Management Regulations and such conditions still exist that made the site an open dump or unpermitted solid waste management facility. 

There should not be a question every time a former solid waste disposal site is proposed for the VRP.  The Department should finally put an end to the uncertainty surrounding these sites.

Comment 5 (9 VAC 20-160-40.A.1)--The proposed addition of the language “and an overview of the project” is a fair request for the application, but not every VRP site is an immediately planned redevelopment project nor is that required by the statute for eligibility.  Please consider the revising the language as follows to add the bold, underlined and italicized language:

1. A written notice of intent to participate in the program and an overview of the project, transaction or other reason for application to the program;

Comment 6 (9 VAC 20-160-40.A.4)--The Department has proposed to change this section to require a map and acreage as well as the boundaries of the VRP site if less than the entire site.  This is a good and helpful change from the present legal description requirement.  In many instances though the exact acreage and boundaries are not known at the time of application, but are set by the time the certificate is issued.  Please consider adding the word “approximate” before “acreage” and “general” before “boundaries.” 

 Comment 7 (9 VAC 20-160-40.A.8)--The Department proposes the following change to 9 VAC 20-160-40.A.8:

8. A notarized certification by the applicant that to the best of his knowledge all the information as set forth in this subsection is true and accurate. An application signed by the applicant and the owner of the property attesting that to the best of their knowledge that all of the information as set forth in this subsection is true and accurate.

The typical situation where the applicant is not the owner is when the applicant is a contract purchaser.  The owner is not performing the work or proposing to take the site into the VRP, so few owners are willing to sign the application attesting to the information.  As the owner is not applying there is no reason for the owner to have to attest to the information.  The proposed change will prevent numerous sites from coming into the program for no good reason.  The owner’s consent to submission of the application should be sufficient.  The following is proposed as a substitute for 9 VAC 20-160-40.A.8:

An application signed by the applicant representing to the best of the applicant’s knowledge that the information as set forth in the application as required by this subsection is true and accurate.  If the applicant is not the owner of the site proposed, the applicant must provide written documentation that the owner of the site consents to the submission of the application.

Comment 8 (9 VAC 20-160-60.C)--The new provision on the application fee being paid within 90 days of being deemed eligible appears appropriate.  However, the second sentence of the provision is unclear.  It states:  “The applicant must reestablish his eligibility for participation in the program, unless alternate provisions are proposed and deemed acceptable to the department.”  Please consider some language other than “alternate provisions” such as the following:

C. Failure to remit the required registration fee within 90 days of the date of eligibility verification shall result in the loss of eligibility status of the applicant. The applicant must reestablish his eligibility for participation in the program, unless alternate provisions are proposed and deemed acceptable to the department the department agrees to extend the period for payment for good cause shown by the applicant.

Comment 9 (9 VAC 20-160-60.D.)--The current regulations require that the total cost of the remediation be provided as a part of the demonstration of completion.   For clarity and consistency with the applicant having the option (but not an obligation) to seek reimbursement of a portion of the application fee, and for consistency with 9 VAC 20-160-70 please consider the following revisions to the Departments proposed to 9 VAC 20-160-60.D:

D. Upon completion of remediation and issuance of the Certificate of Satisfactory Completion of Remediation, the participant is entitled to seek a partial refund of the registration fee as a part of the Demonstration of Completion Report submitted pursuant to 9 VAC 20-160.70.A.4. The refund will be reconciled as 1.0% of the final cost of remediation as compared to the initial registration fee.

1. If the participant wishes to seek a portion of the application fee, tThe participant shall provide the department with a summary of the final cost of remediation within 60 days of issuance of a certificate. The department shall calculate the balance adjustment to be made to the initial registration fee and refund the difference.

Comment 10 (9 VAC 20-160-70.A)--New language is proposed requiring each component of the Voluntary Remediation Report have to be separate.  Why is this necessary? This seems very regulatory for a “voluntary” program.  Many times sites come into the program with varying degrees of characterization and at times with the site characterization and risk assessment combined.  Also, the descriptions of the various reports likewise point to the need for flexibility in this “voluntary” program.  For example, the department sees a need for a preliminary risk discussion in the site characterization report in 9 VAC 20-160-70.A.1, although there is a separate risk assessment.  Additionally, in 9 VAC 20-160-70.A.3 if remedial activities have occurred prior to enrollment in the program then the remediation is to be discussed in the site characterization.  However, the remediation would need to be completed to meet risk levels so the risk assessment would have to be included as well, although it is supposed to be in a separate report.  The department needs to weigh the benefit it receives with separate reports versus the flexibility that should be offered to the voluntary remediation program participants in this “voluntary” program.