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.

 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

I work in corporate site selection and the majority of our projects involve industrial sites, so I've taken some interest in this subject.

James- your points are very well-taken.  I look forward to seeing how these amendments play out.

Justin Thompson, CEO
Site Location Partnership

In the interrest of efficiency, I will not submit extensive additional comments. I have reviewed in detail Mr. Thornhill's submittals and adopt and reaffirm his suggestions in their entirety. In the interest of cooperation, I am willing to further discuss in context any further thoughts or questions that these comments stimulate within the Department.

Charles L. Williams

I was a member of the Technical Advisory Committee that assisted the Department in 2009.  I have reviewed Jim Thornhill comments and agree with them, except in a few limited instances described herein.  I have these comments:

Comment 1:  The department needs to decide how it will refer to the "certificate" throughout the regulations and then stick with it.  At present, the regulations refer to a "Certification of Satisfactory Completion of Remediation,"  a Certificate of Satisfactory Completion of Remediation,"  a "Certification of Satisfactory Completion," a "Certificate of Satisfactory Completion," a "Certificate," a "certificate."  Please pick one, do a word search, and then use it throughout.

Comment 2:  Regarding 9 VAC 20-160-30.B.2 and 3, I agree with Mr. Thorhill's comment 3 that these requirements should be moved elsewhere.  Also, I am concerned that these requirements are not specific enough and could, as to the ownership requirement, could be interpreted to require notice years after the project is completed.  I agree with Mr. Thornhill's comment 17 in that regard.  I do think, however, that it makes sense to require these notices during the project.  Thus, I suggest that B.2. be moved and then revised to say, "Change in ownership:  During the project, the department shall be notified by the participant if there is a change in the property ownership."  Similarly, B.3. should be moved and revised to say, "Change in agent:  During the project, the department shall be notified by the participant if there is a change in the the agent for the property owner or the participant."

Comment 3: Regarding 9 VAC 20-160-40.A.4., I suggest that it be revised as follows:  "A plat of the property that indicates its approximate acreage and, if the site is less than the entire property, shows the approximate boundaries of the site."

Comment 4:  Regarding 9 VAC 20-160-60, I agree with Mr. Thornhill's Comment 9, except I do not agree with his proposed language indicating that one's right to seek a refund is to be conditioned on making the request in the DOCR.

My concern in requiring that the request for a refund be in the DOCR is that it may unfairly penalize those who should get money back, but who request it otherwise than in the DOCR.  As to Mr. Thornhill's proposed language for 9 VAC 20-160-60D.1., I suggest that it be modified to say, "If the participant wishes to seek a refund of a portion of the application fee...."

Comment 5:  In 9 VAC 20-160-90.C.1. and 2., use the word "demonstrating" rather than the words "to show."

Comment 6:  In 9 VAC 20-160-100.A.3., add the word "the" before the word "participant's."

Comment 7:  At the end of 9 VAC 20-160-110.B., the department has added "for the release or releases addressed."  My concern is that the word "addressed" could be wrongly interpreted by some to mean only those releases that have been subject to some form of active remediation.  Since the releases subject to the certificate are always described in the certificate, I propose that the word "addressed" be deleted and that the words "described in the certificate" be substituted in its place.  Similarly, it would be appropriate to change subsection F. to comport with this language, such that subection F. would read:  "The immunity granted by issuance of the certificate shall be limited to releases that are existing at the time of issuance as those releases are described in the Virginia Voluntary Remediation Report."

Comment 8:  Regarding 9 VAC 20-160-110.J., I agree wholeheartedly with Mr. Thornhill's comment 17.  Moreover, what does the word "register" mean?  What is the mechanism by which one is supposed to "register" the fact of a transfer of ownership with the department?

Comment 9:  Regarding 9 VAC 20-160-120.A., the department previously used initial caps on the words "site characterization report."  See 9 VAC 20-160-70.A.1.  For the sake of consistency, it should do so here. 

Comment 10:  In 9 VAC 20-160-120.B.2., delete "VRP" before the word "project."  Although we all know what "VRP"means, it is not a defined term in the regulations and is not used elsewhere in the regulations.  In contrast, the word "project" is used elsewhere in the regulations. 

I appreciate the opportunity to comment on the proposed regulations.  I may be reached at 804-420-6422 or cmartin@williamsmullen.com.

                                                                         Channing Martin

Thomas R. VanBlaricom comments

Very few environmental regulations create jobs and increase revenues.  Very few environmental regulations are universally popular with every day citizens, politicians of both parties, and the regulators who implement them.  Very few environmental regulations produce dramatic, immediate results in neighborhoods and cities across the State.  For all of these reasons, Virginia should commit to continue to lead with a sustainable, evolved Voluntary Remediation Program.   

I appreciate the opportunity to offer comments to proposed changes to the VRP regulations.  Specific comments are provided below. 

The larger issue as I see it is how to continue to keep the VRP program appealing to property and business owners in the Commonwealth.  We all know that the program facilitates redevelopment and increased tax revenues.  Eliminating uncertainty in how the program is implemented is key.  DEQ’s positions on site characterization and risk assessment need to be applied as consistently as possible, and DEQ needs to clearly define if, when, and how off-site contamination needs to be assessed.  I routinely hear my clients express concern about having to knock on their neighbor’s door to request permission to sample on the neighbor’s property.  Implementing the “kick off” meetings with the VRP staff, the participant, consultants and the risk assessment staff has helped eliminate some uncertainty (on the part of the participant and consultant) and allows for the important issues to be laid on the table from the start.       

Jim Thornhill’s Comment 2 (9 VAC 20-160-30.B.1) – I agree with Jim’s proposed language – my experience is that access to a property by a prospective or contract purchaser is extremely limited, and the requirements proposed by DEQ would be difficult to satisfy.

Jim Thornhill’s Comment 4 (9 VAC 20-160-30.D).   My experience is that many sites have one or more components that could result in the site being deemed an open dump or unpermitted solid waste management facility, but that may not be known before or during the application process.  The language needs to be tightened regarding application of the open dump criteria to a site.  I agree with Jim Thornhill’s proposed language.

Jim Thornhill’s 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.

Jim described a scenario where the applicant is not the property owner but is the contract purchaser.  For sites being enrolled by the contract purchaser the owner does not always have incentive to attest to something about the condition of the site, particularly if the owner fears it may result in an enforcement action.  In the scenario where the application is submitted by the contract purchaser, the owner should simply have to acknowledge that he/she is aware that an application is being submitted.  I agree with Jim’s proposed amended language.   

Jim Thornhill’s Comment 8 (9 VAC 20-160-60.C)—Thornhill proposed the following language:  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.

I agree with the proposed language.  My clients rarely blink at the enrollment fee, but I have had clients who failed to submit the enrollment fee in a timely manner, generally due to an oversight, and the department should have the flexibility to recognize that without repeating the eligibility process.  Fortunately, Kevin Greene provides gentle reminders when fees have not been paid. 

Jim Thornhill’s Comment 10 (9 VAC 20-160-70.A)—re: new language is proposed requiring each component of the Voluntary Remediation Report be separate.  I agree that the participant and its consultant should be able to determine how to best prepare the reports, but I understand that DEQ staff would prefer to receive reports in “familiar” formats in order to decrease the review time.  I prefer to have clearly delineated SCRs, Risk Assessment, and RAP reports but combining those studies in one report may make more sense for certain sites – and that is a discussion the consultant and case officer can have, rather than it being mandated in the regulations. 

Jim Thornhill’s 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.

I agree that the proposed language is not helpful for a voluntary program and should be softened – if a participant feels that eligibility can be terminated simply because a form has not been submitted on time the participant will question whether it is wise to spend money and time to proceed through the program knowing that that risk is out there.  The proposed alternative (Thornhill) requiring receipt of notice from the department is good.

Jim Thornhill’s Comment 17 (9 VAC 20-160-110.J) – I agree that requiring future owners notify the department re: change of ownership is unnecessary and will make participants or future owners fear that its certificate could be revoked due to a failure register with the department re: new ownership.

Channing Martin’s Comment 3 (9 VAC 20-160-40.A.4): I agree with the language he proposed:  "A plat of the property that indicates its approximate acreage and, if the site is less than the entire property, shows the approximate boundaries of the site." 

Tom Hardy
President

ECC, Inc.
43045 John Mosby Highway
Chantilly, VA 20152
703-327-2900 (office)
703-505.4417 (mobile)
thardy@eccfirst.com

I agree with the comments provided by Jim Thornhill and Channing Martin, and want to emphasize the importance of keeping the VRP attractive to property owners and developers by clearly defining all requirements of the program.  

Delineating off-site contamination can be problematic, and requirements for off-site delineation need to be well defined and consistently applied.  However, the regulations should also allow for some discretion by DEQ to ease requirements in cases where site-specific circumstances present significant burdens for off-site delineation efforts.  

Increase the enrollment fee, if necessary, to cover the gap in program funding.  The VRP often offers owners or buyers the only opportunity to fund and develop an impacted property, while offering the Commonwealth the only opportunity to remediate the impacted property.  The value of VRP as a Win-Win regulatory program cannot be overstated; the cost of VRP (to applicants and to the Commonwealth) is small when measured against the better use of land, increased tax revenues, employment, and other benefits of redeveloping blighted and under-utilized properties.

John Sweeney, Environmental Consultants and Contractors (ECC)