The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise.
"Authorized agent" means any person who is authorized in writing to fulfill the requirements of this program.
"Carcinogen" means a chemical classification for the purpose of risk assessment as an agent that is known or suspected to cause cancer in humans, including but not limited to a known or likely human carcinogen or a probable or possible human carcinogen under an EPA weight-of-evidence classification system.
"Certificate" means a written certification of
satisfactory completion of remediation issued by the
pursuant to § 10.1-1232 of the Code of Virginia.
"Completion" means fulfillment of the commitment agreed to by the participant as part of this program.
"Contaminant" means any man-made or man-induced alteration of the chemical, physical or biological integrity of soils, sediments, air and surface water or groundwater including, but not limited to, such alterations caused by any hazardous substance (as defined in the Comprehensive Environmental Response, Compensation and Liability Act, 42 USC § 9601(14)), hazardous waste (as defined in 9VAC20-60), solid waste (as defined in 9VAC20-81), petroleum (as defined in Articles 9 (§ 62.1-44.34:8 et seq.) and 11 (§ 62.1-44.34:14 et seq.)) of the Virginia State Water Control Law, or natural gas.
"Cost of remediation" means all costs incurred by the participant pursuant to activities necessary for completion of voluntary remediation at the site, based on an estimate of the net present value (NPV) of the combined costs of the site investigation, report development, remedial system installation, operation and maintenance, and all other costs associated with participating in the program and addressing the contaminants of concern at the site.
"Department" means the Department of Environmental Quality of the Commonwealth of Virginia or its successor agency.
"Director" means the Director of the Department of Environmental Quality.
"Engineering controls" means physical modification to a site or facility to reduce or eliminate potential for exposure to contaminants. These include, but are not limited to, stormwater conveyance systems, pump and treat systems, slurry walls, vapor mitigation systems, liner systems, caps, monitoring systems, and leachate collection systems.
"Hazard index (HI)" means the sum of more than one hazard quotient for multiple contaminants or multiple exposure pathways or both. The HI is calculated separately for chronic, subchronic, and shorter duration exposures.
"Hazard quotient" means the ratio of a single contaminant exposure level over a specified time period to a reference dose for that contaminant derived from a similar period.
"Incremental upper-bound lifetime cancer risk level" means a conservative estimate of the incremental probability of an individual developing cancer over a lifetime. Upper-bound lifetime cancer risk level is likely to overestimate "true risk."
"Institutional controls" means legal or contractual restrictions on property use that remain effective after remediation is completed, and are used to reduce or eliminate the potential for exposure to contaminants. The term may include, but is not limited to, deed and water use restrictions.
"Land use controls" means legal or physical restrictions on the use of, or access to, a site to reduce or eliminate potential for exposure to contaminants, or prevent activities that could interfere with the effectiveness of remediation. Land use controls include but are not limited to engineering and institutional controls.
"Monitored natural attenuation" means a remediation process that closely monitors the natural or enhanced attenuation process.
"Natural attenuation" means a process through which contaminants breakdown naturally in the environment. Natural attenuation may be enhanced by the addition of nutrients, bacteria, oxygen, or other substances.
"Noncarcinogen" means a chemical classification for the purposes of risk assessment as an agent for which there is either inadequate toxicological data or is not likely to be a carcinogen based on an EPA weight-of-evidence classification system.
"Operator" means the person currently responsible for the overall operations at a site, or any person responsible for operations at a site at the time of, or following, the release.
"Owner" means any person currently owning or holding legal or equitable title or possessory interest in a property, including the Commonwealth of Virginia, or a political subdivision thereof, including title or control of a property conveyed due to bankruptcy, foreclosure, tax delinquency, abandonment, or similar means.
"Participant" means a person who has received confirmation of eligibility and has remitted payment of the registration fee.
"Person" means an individual, corporation, partnership, association, a governmental body, a municipal corporation or any other legal entity.
"Post certificate monitoring" means monitoring of environmental or site conditions stipulated as a condition of issuance of the Certificate of Satisfactory Completion of Remediation.
"Program" means the Virginia Voluntary Remediation Program.
"Property" means a parcel of land defined by the boundaries in the deed.
"Reference dose" means an estimate of a daily exposure level for the human population, including sensitive subpopulations, that is likely to be without an appreciable risk of deleterious effects during a lifetime.
"Registration fee" means the fee paid to enroll in the Voluntary Remediation Program, based on 1.0% of the total cost of remediation at a site, not to exceed the statutory maximum.
"Release" means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing of any contaminant into the environment.
"Remediation" means actions taken to cleanup,
mitigate, correct, abate, minimize, eliminate, control and contain or prevent a
release of a contaminant into the environment in order to protect human health
and the environment
, including actions to investigate, study or assess any
actual or suspected release. Remediation may include, when appropriate and
approved by the department, land use controls; natural attenuation; as well
as, monitored natural attenuation.
"Remediation level" means the concentration of a contaminant with applicable land use controls, that is protective of human health and the environment.
"Report" means the Voluntary Remediation Report
required by 9VAC20-160-70.
"Restricted use" means any use other than residential.
"Risk" means the probability that a contaminant will cause an adverse effect in exposed humans or to the environment.
"Risk assessment" means the process used to determine the risk posed by contaminants released into the environment. Elements include identification of the contaminants present in the environmental media, assessment of exposure and exposure pathways, assessment of the toxicity of the contaminants present at the site, characterization of human health risks, and characterization of the impacts or risks to the environment.
"Site" means any property or portion thereof, as agreed to and defined by the participant and the department, which contains or may contain contaminants being addressed under this program.
"Termination" means the formal discontinuation of participation in the Voluntary Remediation Program without obtaining a certification of satisfactory completion.
"Unrestricted use" means the designation of acceptable future use for a site at which the remediation levels, based on either background or standard residential exposure factors, have been attained throughout the site in all media.
9VAC20-160-20. Purpose, applicability, and compliance with other regulations.
A. The purpose of this chapter is to establish standards and procedures pertaining to the eligibility, enrollment, reporting, characterization, remediation, and termination criteria for the Virginia Voluntary Remediation Program in order to protect human health and the environment.
B. This chapter shall apply to all persons who elect to and are eligible to participate in the Virginia Voluntary Remediation Program.
C. Participation in the program does not relieve a participant from the obligation to comply with all applicable federal, state and local laws, ordinances and regulations related to the investigation and remediation (e.g., waste management and disposal, erosion and sedimentation controls, air emission controls, and activities that impact wetlands and other sensitive ecological habitats) undertaken by the participant pursuant to this chapter.
9VAC20-160-30. Eligibility criteria.
Candidate Applicants and proposed sites shall
meet eligibility criteria as defined in this section.
Any Eligible applicants are any persons who
own, operate, have a security interest in or enter into a contract for the
purchase or use of an eligible site. Those who wish to voluntarily
remediate that a site may apply to participate in the
program. Any person who is an authorized agent of any of the parties identified
in this subsection may apply to participate in the program.
1. Access: Applicants who are not the site owner must demonstrate that they have access to the property at the time of application, during the investigation, and throughout the remedial activities until the remediation is completed.
2. Change in ownership: The department shall be notified if there is a change in property ownership.
3. Change in agent: The department shall be notified if there is a change in agent for the property owner or the participant.
C. Sites are eligible for participation in the program if (i) remediation has not been clearly mandated by the United States Environmental Protection Agency, the department or a court pursuant to the Comprehensive Environmental Response, Compensation and Liability Act (42 USC § 9601 et seq.), the Resource Conservation and Recovery Act (42 USC § 6901 et seq.), the Virginia Waste Management Act (§ 10.1-1400 et seq. of the Code of Virginia), the Virginia State Water Control Law (§ 62.1-44.2 et seq. of the Code of Virginia), or other applicable statutory or common law; or (ii) jurisdiction of the statutes listed in clause (i) has been waived.
1. A site on which an eligible party has
performed remediation of a release is potentially eligible for the
program if the actions can be documented in a way which are equivalent to the
requirements for prospective remediation this chapter, and
provided the site meets applicable remediation levels.
2. Petroleum or oil releases not mandated for remediation under Articles 9 (§ 62.1-44.34:8 et seq.) and 11 (§ 62.1-44.34:14 et seq.) of the Virginia State Water Control Law may be eligible for participation in the program.
3. Where an applicant raises a genuine issue based on documented evidence as to the applicability of regulatory programs in subsection D of this section, the site may be eligible for the program. Such evidence may include a demonstration that:
1. a. It is not clear whether the release
involved a waste material or a virgin material; 2. b. It is not clear that the release occurred
after the relevant regulations became effective; or 3. c. It is not clear that the release occurred
at a regulated unit.
D. For the purposes of this chapter, remediation has been clearly mandated if any of the following conditions exist, unless jurisdiction for such mandate has been waived:
1. Remediation of the release is the subject of a permit issued
by the U.S. Environmental Protection Agency or the department, a
existing closure plan, a pending or existing an
administrative order, a pending or existing court order, a pending or
existing consent order, or the site is on the National Priorities List;
2. The site at which the release occurred is subject to the Virginia Hazardous Waste Management Regulations (9VAC20-60) (VHWMR), is a permitted facility, is applying for or should have applied for a permit, is under interim status or should have applied for interim status, or was previously under interim status, and is thereby subject to requirements of the VHWMR;
3. The site at which the release occurred
been determined to be an open dump or unpermitted solid waste management
facility under 9VAC20-81-45 of the Solid Waste Management Regulations;
director department determines that the
release poses an imminent and substantial threat to human health or the
5. Remediation of the release is otherwise the subject of a response action or investigation required by local, state, or federal law or regulation.
E. The director may determine that a site under subdivision D
3 of this section may participate in the program provided that such
participation complies with the substantive requirements of the applicable
9VAC20-160-40. Application for participation.
A. The application for participation in the Voluntary
Remediation Program shall
, at a minimum, provide the elements listed
1. A written notice of intent to participate in the program and an overview of the project;
2. A statement of the applicant's eligibility to participate in
the program (e.g., proof of ownership, security interest, etc.)
3. For authorized agents, a letter of authorization from an eligible party;
legal description of the site map and acreage of
the property and the boundaries of the site, if not the entire property;
The A general operational history of the site;
6. A general description of information known to or ascertainable by the applicant pertaining to (i) the nature and extent of any contamination; and (ii) past or present releases, both at the site and immediately contiguous to the site;
7. A discussion of the potential jurisdiction of other existing environmental regulatory programs, or documentation of a waiver thereof; and
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.
Within 60 days of the department's receipt of an
application, the director shall review the application to verify that (i) the
application is complete and (ii) the applicant and the site meet the
eligibility criteria set forth in 9VAC20-160-30. The department shall
review the application for completeness and notify the applicant within 15 days
of the application's receipt whether the application is administratively
incomplete. Within 60 days of the department's receipt of a complete
application, the department shall verify whether the applicant and the site
meet the eligibility criteria set forth in 9VAC20-160-30. The department reserves
the right to conduct eligibility verification inspections of the candidate site
during the eligibility verification review.
C. If the
director department makes a tentative
decision to reject the application, he it shall notify the
applicant in writing that the application has been tentatively rejected and
provide an explanation of the reasons for the proposed rejection. Within 30
days of the applicant's receipt of notice of rejection the applicant may (i)
submit additional information to correct the inadequacies of the rejected
application or (ii) accept the rejection. The director's department's
tentative decision to reject an application will become a final agency action
under the Virginia Administrative Process Act (§ 2.2-4000 et seq. of the Code
of Virginia) upon receipt of an applicant's written acceptance of the director's
department's decision to reject an application, or in the event an
applicant fails to respond within the 30 days specified in this
subsection, upon expiration of the 30 days specified day period.
If within 30 days an applicant submits additional information to correct the
inadequacies of an application, the review process begins shall begin
again in accordance with this section.
9VAC20-160-60. Registration fee.
A. In accordance with § 10.1-1232 A 5 of the Code of Virginia, the applicant shall submit a registration fee to defray the cost of the program.
B. The initial registration fee shall be
at least 1.0%
of the estimated cost of the remediation at the site, not to exceed the
statutory maximum. Payment shall be required after eligibility has been
verified by the department and prior to technical review of submittals pursuant
to 9VAC20-160-80. Payment shall be made payable to the Commonwealth of Virginia
and remitted to Virginia Department of Environmental Quality, P.O. Box 1104, Receipts
Control, Richmond, VA 23218. C. To determine the appropriate registration fee, the
applicant may provide an estimate of the anticipated total cost of remediation.
Remediation costs shall be based on site investigation
activities; report development; remedial system installation, operation and
maintenance; and all other costs associated with participating in the program
and addressing the contaminants of concern at the subject site. Departmental concurrence with an estimate of the cost of
remediation does not constitute approval of the remedial approach assumed in
the cost estimate. The participant may elect to remit the statutory maximum
registration fee to the department as an alternative to providing an estimate
of the total cost of remediation at the time of eligibility verification. D. If the participant does not elect to submit the
statutory maximum registration fee, the participant shall provide the
department with the actual total cost of the remediation prior to issuance of a
certificate. The department shall calculate any balance adjustments to be made
to the initial registration fee. Any negative balance owed to the department
shall be paid by the participant prior to the issuance of a certificate. Any
costs to be refunded shall be remitted by the department with issuance of the
certificate. E. If the participant elected to remit the statutory
maximum registration fee, the department shall refund any balance owed to the
participant after receiving the actual total cost of remediation. If no
remedial cost summary is provided to the department within 60 days of the
participant's receipt of the certificate, the participant will have waived the
right to a refund.
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.
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. The refund will be reconciled as 1.0% of the final cost of remediation as compared to the initial registration fee.
1. The 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.
2. If no summary of the final cost of remediation is provided to the department within 60 days of issuance of the certificate, the participant will have waived the right to a refund.
3. Concurrence with the summary of the final cost of remediation does not constitute department verification of the actual cost incurred.
E. Except for termination pursuant to 9VAC20-160-100 A 4, no portion of the registration fee will be refunded if participation in the program is terminated.
9VAC20-160-70. Work to be performed.
A. The Voluntary Remediation Report
serves as the archive
for all documentation pertaining to remedial activities at the site. Each
component of the report shall be submitted by the participant to the department.
As various components are received, they shall be inserted into the report. The
report shall consist of the following components: a site
characterization Site Characterization, a risk assessment
including an assessment of risk to surrounding properties (as appropriate) Risk
Assessment, a remedial action work plan Remedial Action Plan,
a demonstration of completion Demonstration of Completion, and
documentation of public notice. A separate report shall be submitted for
each component of the Voluntary Remediation Report listed below:
site characterization shall contain a delineation of
Site Characterization Report shall provide an understanding of the site
conditions including the identification and description of each area of concern
(or source); the nature and extent of releases to all media, including
the vertical and horizontal extent of the contaminants on the site,
including off-site areas as applicable; and a preliminary screening of the risk
or risks posed by the release.
risk assessment Risk Assessment Report
shall contain an evaluation of the risks to human health and the environment
posed by the release, including an assessment of risk to off-site
properties, a proposed set of remediation levels consistent with
9VAC20-160-90 that are protective of human health and the environment, and a
recommended remediation to achieve the proposed objectives; or a demonstration
that no action is necessary.
remedial action work plan Remedial Action Plan
Report shall propose the activities, schedule, any permits required to
initiate and complete the remediation and specific design plans for
implementing remediation that will achieve the remediation levels specified in
the risk assessment. Control or elimination of continuing onsite source or
sources of releases to the environment shall be discussed. Land use controls
should be discussed as appropriate. If no remedial action is necessary, the
Remedial Action Plan shall discuss the reasoning for no action. When remedial
activities have occurred prior to enrolling in the Voluntary Remediation
Program, this information shall be included in the Site Characterization
Report. The Remedial Action Plan Report shall describe the remedial activities
that occurred, to include as applicable: how releases (or sources) have been
eliminated or controlled; the remediation system or systems installed; site
restrictions imposed; permits required; and how remediation levels have been
Demonstration of completion. A Demonstration of
Completion Report is required whenever remedial action has occurred as part of
participation in the Voluntary Remediation Program. The Demonstration of
Completion Report shall include: a detailed summary of the performance of the
remediation implemented at the site, the total cost of the remediation, and
confirmational sampling results demonstrating that the established
site-specific remedial objectives have been achieved, or that other criteria
for completion of remediation have been satisfied. As part of the demonstration
of completion, the participant shall certify compliance with applicable
regulations pertaining to activities performed at the site pursuant to this
chapter. a. The demonstration of completion should, when applicable,
include a detailed summary of the performance of the remediation implemented at
the site, the total cost of the remediation, and confirmational sampling
results demonstrating that the established site-specific remedial objectives
have been achieved, or that other criteria for completion of remediation have
been satisfied. If the participant elected to remit the statutory maximum
registration fee and is not seeking a refund of any portion of the registration
fee, the total cost of remediation need not be provided. b. As part of the demonstration of completion, the
participant shall certify compliance with applicable regulations pertaining to
activities performed at the site pursuant to this chapter.
The participant shall provide documentation Documentation
of public notice is required to demonstrate that public notice has been
provided in accordance with 9VAC20-160-120. Such documentation shall include
copies of comments received during the public comment period, all
acknowledgements of receipt of comments, as well as the participant's responses
to comments, if any are made.
B. It is the participant's responsibility to ensure that the
investigation and remediation activities (e.g., waste management and disposal,
erosion and sedimentation controls, air emission controls, and activities that
impact wetlands and other sensitive ecological habitats) comply with all
applicable federal, state, and local laws and regulations
appropriate regulations that are not required by state or federal law but are
necessary to ensure that the activities do not result in a further release of
contaminants to the environment and are protective of human health and the
C. All work, to include sampling and analysis, shall be
performed in accordance with Test Methods for Evaluating Solid Waste, USEPA
April 1998 March 2009, or other media specific
methods approved by the department and completed using appropriate quality
assurance/quality control protocols. All analyses shall be performed by
laboratories certified by the Virginia Environmental Laboratory Accreditation
Program (VELAP). Laboratory certificates of analysis shall be included with
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.
9VAC20-160-80. Review of submittals.
Upon receipt of submittals, the The
department shall review and evaluate the submittals components of the
Voluntary Remediation Report submitted by the participant. The department
may request additional information, including sampling data of from
the site or areas adjacent to the site to verify the extent of the release ,
in order to render a decision and move the participant towards expeditious
issuance of the certificate.
director department may expedite, as
appropriate, issuance of any permits required to initiate and complete a
voluntary remediation. The director department shall, within 120
days of a complete submittal, expedite issuance of such permit in accordance
with applicable regulations.
C. After receiving a complete and adequate report, the
department shall make a determination regarding the issuance of the
certificate to the participant. The determination shall be a final agency
action pursuant to the Administrative Process Act (§ 2.2-4000 et seq. of the
Code of Virginia).
9VAC20-160-90. Remediation levels.
A. The participant, with the concurrence of the department, shall consider impacts to human health and the environment in establishing remediation levels.
B. Remediation levels shall be based upon a risk assessment
of the site and surrounding areas that may be impacted, reflecting the current
and future use scenarios. 1. A site shall be deemed to have met the requirements for
unrestricted use if the remediation levels, based on either background or
standard residential exposure factors, have been attained throughout the site
and in all media. Attainment of these levels will allow the site to be given an
unrestricted use classification. No remediation techniques or land use controls
that require ongoing management may be employed to achieve this classification.
2. For sites that do not achieve the unrestricted use
classification, land use controls shall be applied. The restrictions imposed
upon a site may be media-specific, may vary according to site-specific conditions,
and may be applied to limit present and future use. All controls necessary to
attain the restricted use classification shall be described in the certificate
as provided in 9VAC20-160-110. Land use controls approved by the department for
use at the site are considered remediation. C. B. Remediation levels based on human
health shall be developed after appropriate site characterization data have
been gathered as provided in 9VAC20-160-70. Remediation levels may be derived
from the three-tiered approach provided in this subsection. Any tier or
combination of tiers may be applied to establish remediation levels for
contaminants present at a given site , with consideration of site use
restrictions specified in subsection B of this section.
Under Tier I the participant shall collect
appropriate samples from background and from the area of contamination for all
media of concern remediation levels are based on media backgrounds
levels. These background levels shall be determined from a portion of
the property or a nearby property or other areas as approved by the department
that have not been impacted by the contaminants of concern. a. Background levels shall be determined from a portion of
the property or a nearby property that has not been impacted by the contaminants
of concern. b. The participant shall compare concentrations from the
area of contamination against background concentrations. If the concentrations
from the area of contamination exceed established background levels, the
participant may consider Tier II or Tier III methodologies, as applicable. If
concentrations are at or below background levels, no further assessment is
2. Tier II
generic remediation levels are media-specific
values, derived using unrestricted use default assumptions assuming
that there will be no restrictions on the use of groundwater, surface water,
and soil on the site. Use of Tier II shall be limited to the following:
a. Tier II
generic groundwater remediation levels shall
be based on the most beneficial use of groundwater. The most beneficial use
of groundwater is for a potable water source, unless demonstrated otherwise by
the participant and accepted by the department. Therefore, they shall be based
on (i) federal Maximum Contaminant Levels (MCLs) or action levels for lead
and copper as established by the Safe Drinking Water Act (42 USC § 300 (f)) and
the National Primary Drinking Water Regulations (40 CFR Part 141) or, in the
absence of a MCL, (ii) tap water values derived using the methodology provided
in the EPA Region III Risk-Based Concentration Table current at the time of
the assessment Regional Screening Level Table, Region III, VI, and IX,
United States Environmental Protection Agency, December 2009, using an
acceptable individual carcinogenic risk of 1 X 10-5 and an
individual noncarcinogen hazard quotient of 0.1. For contaminants that
do not have values available under clauses (i) or (ii) above, a remediation
level shall be calculated using criteria set forth under Tier III remediation
Soil Tier II soil remediation levels shall
insure that migration of contaminants shall not cause the cleanup levels
established for groundwater and surface water to be exceeded. Soil remediation
levels shall be determined as the lower of either the ingestion or
cross-media transfer values, according to the following:
(1) For ingestion, values derived using the methodology
provided in the
EPA Region III Risk-Based Concentration Table current at the
time of assessment. Regional Screening Level Table, Region III, VI, and
IX, United States Environmental Protection Agency, December 2009.
(a) For carcinogens, the soil ingestion concentration for each
contaminant, reflecting an individual upper-bound lifetime cancer risk of 1 X
(b) For noncarcinogens,
1/10 (i.e., Hazard Quotient = 0.1)
0.1 of the soil ingestion concentration, to account for multiple
systemic toxicants at the site. For sites where there are fewer than 10
contaminants exceeding 1/10 0.1 of the soil ingestion
concentration, the soil ingestion concentration may be divided by the number of
contaminants such that the resulting hazard index does not exceed one 1.0.
(2) For cross-media transfer, values derived from the USEPA Soil Screening Guidance (OSWER, July 1996, Document 9355.4-23, EPA/540/R-96/018) and USEPA Supplemental Guidance for Developing Soil Screening Levels for Superfund Sites (OSWER, December 2002, Document 9355.4-24) shall be used as follows:
(a) The soil screening level for transfer to groundwater, with adjustment to a hazard quotient of 0.1 for noncarcinogens, if the value is not based on a MCL; or
(b) The soil screening level for transfer to air, with adjustment to a hazard quotient of 0.1 for noncarcinogens and a risk level of 1 X 10-5 for carcinogens, using default residential exposure assumptions.
(3) (c) For noncarcinogens, for sites where
there are fewer than 10 contaminants exceeding 1/10 0.1 of the
soil screening level, the soil screening level may be divided by the number of
contaminants such that the resulting hazard index does not exceed one 1.0.
(4) (3) Values derived under 9VAC20-160-90 C 2 b
(1) and (2) may be adjusted to allow for updates in approved toxicity factors
as necessary. c. At sites where ecological receptors are of concern and there
are complete exposure pathways, the participant shall perform a screening level
ecological evaluation to show that remediation levels developed under Tier II
are also protective of ecological receptors of concern. d. For unrestricted future use, where a contaminant of
concern exists for which c. Tier II remediation levels for surface
water quality standards shall be based on the Virginia Water Quality
Standards (WQS) have been adopted as established by the State
Water Control Board for a specific use, the participant shall demonstrate
that concentrations in other media will not result in concentrations that
exceed the WQS in adjacent surface water bodies. (9VAC25-260), according
to the following:
(1) The chronic aquatic life criteria shall be compared to the appropriate human health criteria and the lower of the two values selected as the Tier II remediation level.
(2) For contaminants that do not have a Virginia WQS, the federal Water Quality Criteria (WQC) may be used if available. The chronic federal criterion continuous concentration (CCC) for aquatic life shall be compared to the appropriate human health based criteria and the lower of the two values selected as the Tier II remediation level.
(3) If neither a Virginia WQS nor a federal WQC is available for a particular contaminant detected in surface water, the participant should perform a literature search to determine if alternative values are available. If alternative values are not available, the detected contaminants shall be evaluated through a site-specific risk assessment.
3. Tier III remediation levels are based upon
site-specific risk assessment considering site-specific assumptions about
current and potential exposure scenarios for the population or populations of concern ,
including ecological receptors, and characteristics of the affected media and
can be based upon a site-specific risk assessment. Land-use controls can be
a. In developing Tier III remediation levels, and unless the participant proposes other guidance that is acceptable to the department, the participant shall use, for all media and exposure routes, the methodology specified in Risk Assessment Guidance for Superfund, Volume 1, Human Health Evaluation Manual (Part A), Interim Final, USEPA, December 1989 (EPA/540/1-89/002) and (Part B, Development of Preliminary Remediation Goals) Interim, USEPA, December 1991 (Publication 9285.7-01B) with modifications as appropriate to allow for site-specific conditions. The participant may use other methodologies approved by the department.
b. For a site with carcinogenic contaminants, the remediation
goal for individual carcinogenic contaminants shall be an incremental
upper-bound lifetime cancer risk of 1 X
The remediation levels for the site shall not result in an incremental
upper-bound lifetime cancer risk exceeding 1 X 10-4considering
multiple contaminants and multiple exposure pathways, unless the use of a MCL
for groundwater that has been promulgated under 42 USC § 300g-1 of the Safe
Drinking Water Act and the National Primary Drinking Water Regulations (40 CFR
Part 141) results in a cumulative risk greater than 1 X 10-4.
c. For noncarcinogens, the hazard index shall not exceed a combined value of 1.0.
d. In setting remediation levels, the department may consider risk assessment methodologies approved by another regulatory agency and current at the time of the Voluntary Remediation Program site characterization.
e. Groundwater cleanup levels shall be based on the most
beneficial use of the groundwater. The most beneficial use of the groundwater
is for a potable water source, unless demonstrated otherwise by the participant
and approved by the department. f. For sites where a screening level ecological evaluation
has shown that there is a potential for ecological risks, the participant shall
perform an ecological risk assessment to show that remediation levels developed
under Tier III are also protective of ecological receptors of concern. If the
Tier III remediation levels developed for human health are not protective of
ecological receptors of concern, the remediation levels shall be adjusted
C. The participant shall determine if ecological receptors are present at the site or in the vicinity of the site and if they are impacted by releases from the site.
1. At sites where ecological receptors are of concern and there are complete exposure pathways, the participant shall perform a screening level ecological evaluation to show that remediation levels developed under the three-tiered approach described in this section are also protective of such ecological receptors.
2. For sites where a screening level ecological evaluation has shown that there is a potential for ecological risks, the participant shall perform an ecological risk assessment to show that remediation levels developed under the three-tiered approach described in this section are also protective of ecological receptors. If the remediation levels developed for human health are not protective of ecological receptors, the remediation levels shall be adjusted accordingly.
A. Participation in the program shall be terminated:
1. When evaluation of new information obtained during
participation in the program results in a determination by the
that the site is ineligible or that a participant has taken an action to render
the site ineligible for participation in the program. If such a determination
is made, the director department shall notify the participant
that participation has been terminated and provide an explanation of the
reasons for the determination. Within 30 days, the participant may submit
additional information, or accept the director's department's
2. Upon 30 days written notice of
by either party the participant.
3. Upon participant's failure to make reasonable progress towards completion of the program, as determined by the department.
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.
B. The department shall be entitled to receive and use, upon request, copies of any and all information developed by or on behalf of the participant as a result of work performed pursuant to participation in the program, after application has been made to the program whether the program is satisfactorily completed or terminated.
No Except for termination pursuant to subsection
A 4, no portion of the registration fee will be refunded if participation
is terminated by any method as described in 9VAC20-160-100.
9VAC20-160-110. Certification of satisfactory completion of remediation.
director department shall issue a
certification of satisfactory completion of remediation when:
1. The participant has demonstrated that migration of contamination has been stabilized;
2. The participant has demonstrated that the site has met the
applicable remediation levels and will continue to meet the applicable
remediation levels in the future for both on site and off site receptors;
3. All provisions of the approved remedial action plan as applicable have been completed;
4. All applicable requirements of the regulations have been completed; and
3. 5. The department concurs with accepts
all work submitted, as set forth in 9VAC20-160-80 9VAC20-160-70.
B. The issuance of the certificate shall constitute immunity to an enforcement action under the Virginia Waste Management Act (§ 10.1-1400 et seq. of the Code of Virginia), the Virginia State Water Control Law (§ 62.1-44.2 et seq. of the Code of Virginia), the Virginia Air Pollution Control Law (§ 10.1-1300 et seq. of the Code of Virginia), or other applicable Virginia law for the release or releases addressed.
C. A site shall be deemed to have met the requirements for unrestricted use if the remediation levels, based on either background or standard residential exposure factors, have been attained throughout the site and in all media. Attainment of these levels will allow the site to be given an unrestricted use classification. No remediation techniques or land use controls that require ongoing management may be employed to achieve this classification.
D. For sites that do not achieve the unrestricted use classification, land use controls may be proffered in order to develop remediation levels based on restricted use. The restrictions imposed upon a site may be media-specific, may vary according to site-specific conditions, and may be applied to limit present and future use. All controls necessary to attain the restricted use classification shall be described in the certificate as provided in this section. Land use controls accepted by the department for use at the site are considered remediation for the purpose of this chapter.
C. E. If a use restriction is specified in the
certificate, such restriction must be attached to the deed to the property
with an explanation for the restriction, subject to concurrence by the
director, and shall the participant shall cause the certificate to
be recorded by the participant with among the land records for
the site in the office of the clerk of the circuit court for the
jurisdiction in which the site is located within 90 days of execution of the
certificate by the department, unless specified in the certificate. The
participant may also record the certificate itself. If the certificate does
not include any use restriction, recordation of the certificate is at the
option of the participant. The immunity accorded by the certification shall
apply to the participant and shall run with the land identified as the site. D. F. The immunity granted by issuance of the
certificate shall be limited to site conditions at the time of issuance as
those conditions are described in the Voluntary Remediation Report. The
immunity is further conditioned upon satisfactory performance by the participant
of all obligations required by the director department under the
program and upon the veracity, accuracy, and completeness of the information
submitted to the director department by the participant relating
to the site. Specific limitations of the certificate shall be enumerated in the
certificate. The immunity granted by the certificate shall be dependent upon
the identification of the nature and extent of contamination as presented in
the report. E. G. The certificate shall specify the
conditions for which immunity is being accorded, including, but not limited to:
1. A summary of the information that was considered;
2. Any restrictions on future use;
3. Any local land use controls on surrounding properties that
were taken into account;
required proffered land use controls
including:; and a. Engineering controls and their maintenance; and b. Institutional controls.
5. Any post-certificate monitoring.
F. 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. G. I. The certificate is not and shall not be
interpreted to be a permit or a modification of an existing permit or
administrative order issued pursuant to state law, nor shall it in any way relieve
the participant of its obligation to comply with any other federal or state
law, regulation or administrative order. Any new permit or administrative
order, or modification of an existing permit or administrative order, must be
accomplished in accordance with applicable federal and state laws and
J. Change in ownership: For properties that received a Certificate of Satisfactory Completion and are subject to use restrictions, the new property owner shall register with the department within 60 days of the acquisition.
9VAC20-160-120. Public notice.
A. The participant shall give public notice of
proposed voluntary remediation or the completed voluntary remediation.
The notice shall be made after the department concurs with accepts
the site characterization report and the proposed or completed
remediation, and shall occur prior to the department's issuing a certificate.
Such notice shall be paid for by the participant.
B. The participant shall:
1. Provide written notice to the local government in which the facility is located;
2. Provide written notice to all adjacent property owners and other owners whose property has been impacted by the release being addressed under the VRP project; and
3. Publish a notice once in a newspaper of general circulation in the area affected by the voluntary action.
B. C. 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. The
contents of each public notice required pursuant to 9VAC20-160-120 A shall
1. The name and address of the participant and the location of the proposed voluntary remediation;
2. A brief description of
the remediation, the general
nature of the release, any remediation, and any proposed land use
3. The address and telephone number of a specific person familiar with the remediation from whom information regarding the voluntary remediation may be obtained; and
4. A brief description of how to submit comments.
D. The participant shall send all commenters a letter acknowledging receipt of written comments and providing responses to the same.
C. E. The participant shall provide to the
1. A signed statement that he has sent a written notice
to all adjacent property owners and the local government, a copy of the notice,
and a list of all names and addresses to whom the notice was sent
2. Copies of all written comments received during the public comment period, copies of acknowledgement letters, and copies of any response to comments, as well as an evaluation of the comment's impact on the planned or completed action or actions.
D. The participant shall send all commenters a letter
acknowledging receipt of comments. E. The participant shall provide to the department copies
of all written comments received during the public comment period, copies of
acknowledgement letters, a discussion of how those comments were considered, a
copy of any response to comments, and a discussion of their impact on the
proposed or completed remediation.
DOCUMENTS INCORPORATED BY REFERENCE (9VAC20-160)
Test Methods for Evaluating Solid Waste: Physical/ Chemical
Methods; EPA Publication SW-846, Third Edition (1986) as amended by Final Update
I, Final Update II, Final Update IIA, Final Update IIB, Final Update III, and
Final Update IIIA, PB 99-115 891, revised
April 1998 March 2009.
U.S. EPA Soil Screening Guidance, EPA/540/R-96/018, Publication 9355.4-23, July 1996.
Risk Assessment Guidance for Superfund, Volume I, Human Health Evaluation Manual (Part A) Interim Final, EPA/540/1-89/002, Office of Emergency and Remedial Response, U.S. Environmental Protection Agency, December 1989.
Risk Assessment Guidance for Superfund: Volume I
Risk-Based Concentration Table, Region III, United States
Environmental Protection Agency, April 2, 2002.