Transcript Slide 1

The Georgia Voluntary
Remediation Program Act of 2009
Enhanced Risk-Based Corrective Action
Wednesday, April 22, 2009
Alston & Bird LLP
Welcome and VRP Basics
Doug Cloud, Partner
Alston & Bird LLP
HB 248 - VRP Act
• In 2009, bipartisan group of Georgia legislators
and industry representatives spearheaded
passage.
• Streamlined and privatized path for voluntarily
remediating sites through the use of registered
environmental professionals.
• Incorporates exposure risk principles which will
decrease site costs while still protecting human
health and the environment.
• No out-of-pocket cost to EPD.
Sponsored By
–
–
–
–
–
–
Terry Barnard 166th
Earl Ehrhart 36th
Karla Drenner 86th
Melvin Everson 106th
Bobby Reese 98th
Gerald Greene 149th
• In Senate By
– Ross Tolleson 20th
Vote
Yeas
Nays
House
166
1
Senate Sub.
48
4
House Agree
161
1
Effective Date
• Sent to Governor (4/13/09)
• This Act shall become effective on the
first day of the month following the
month in which it is approved by the
Governor or in which it becomes law
without such approval.
Road Map for Today
• Presentations
– History: How We Got Here
– VRP Basics; Special Initiatives
– Exposure risk principles
Break
– Focus on Fate and Transport Modeling
– Legal Rights
• Panel Discussion, Q&A
• Reception
Rearview Mirror
• HSRA enacted 1992; rules ‘94.
• Per 2008 Hazardous Site Inventory
(approximate)
– 3417 notifications
– 224 delistings (avg. 15/yr)
– 575 remain on HSI
• At this rate, 23 years to clear HSI with
no new listings (avg. 23 new/yr).
• 60% delisted took ≥ 5 years.
New VRP
Legislative Purpose (Sec. 101)
• to encourage the voluntary and timely
investigation and remediation of properties
for the purpose of reducing human and
environmental exposure to safe levels,
• to protect current and likely future use of
groundwater,
• to ensure the cost-effective allocation of
limited resources,
• that provisions of this part shall take
precedence over any conflicting provisions,
regulations, or policies.
VRP Basics
Qualifying Property (Sec. 105)
1. Listed on the HSI; or
2. Brownfields; or
3. Otherwise have a release of regulated
substances into the environment.
Excluded:
• NPL or EPA-ordered response activity;
• Facility required to have hazardous
waste permit; and
• First satisfy any HSRA or GUST lien.
Participant Criteria
(Sec. 106)
• Property owner of the VRP property; or
• Have express permission to enter to
perform corrective action or implement
controls pursuant to written lease,
license, order, or indenture.
• Not be in violation of any order,
judgment, statute, rule, or regulation
subject to the enforcement authority of
the director.
Enrolling
(Sec. 107)
• $5,000 + Voluntary Remediation Plan
– prepared by registered professional engineer or
geologist who has experience in responsible charge
of the investigation and remediation of such releases;
– in streamlined form prescribed by EPD, describing
those actions planned to bring the property into
compliance with the applicable cleanup standards, in
accordance with the provisions, purposes, standards,
and policies of the VRP.
• Upon EPD approval property enrolled and
applicant a participant.
Financial Assurance
(Sec. 107)
• The director may issue an order
requiring the participant to submit proof
of financial assurance for continuing
actions or controls.
• Insurance, trust funds, surety bonds,
letters of credit, performance bonds,
certificates of deposit, financial tests,
and corporate guarantees.
“Engineering Controls”
(Sec. 102)
• Any physical mechanism, device, measure,
system, or actions taken at a property that
minimize the potential for exposure, control
migration or dispersal, or maintain the
effectiveness of other remedial actions.
• caps, covers, physical barriers, containment
structures, leachate collection systems, ground
water or surface water control systems,
solidification, stabilization, treatment, fixation,
slurry walls, vapor control systems.
• Engineered property development features, if
physically control or eliminate potential for
exposure to COC or control migration.
“Institutional Controls”
(Sec. 102)
• Legal or administrative measures that
minimize the potential for human
exposure to contaminants of concern or
protect and enhance the integrity of a
remedy or engineering controls.
• easements, covenants, deed notices,
well drilling or groundwater use
prohibitions, zoning restrictions, digging
restrictions, orders, building permit
conditions, land-use restrictions.
Georgia UECA
(Sec. 107)
• Any voluntary remediation property or
site relying on controls, including
groundwater use restrictions for the
purposes of certifying compliance with
cleanup standards, shall execute a
covenant restricting such use in
conformance with UECA.
• EPD to maintain an inventory of such
properties.
Implementation
(Sec. 107)
• Participant causes one or more RPs to
oversee plan implementation in
accordance with VRP. RP submits semiannual status reports.
• Upon completion, CSR confirming
consistency of the corrective action with
VRP and certifying compliance with
cleanup standards.
• CSR public participation requirements.
Endgame
(Sec. 107)
• Upon receipt of CSR, a decision of
concurrence with the report and
certification shall be issued on evidence
satisfactory to the director that it is
consistent with the provisions, purposes,
standards, and policies of the VRP.
• Within 90 days of concurrence, listed
property removed from HSI.
Other Fees
(Sec. 107)
• Director may, at any time, invoice for
costs to EPD in reviewing application or
subsequent documents that exceed the
initial $5,000 fee, with detailed
itemization and justification.
• Failure to pay within 60 days may cause
rejection from VRP. No concurrence if
fee outstanding.
Termination
(Sec. 107)
• Participant may terminate at any time.
• Director may terminate prior to CSR
approval, if determines that:
– participant has failed to implement the plan
in accordance with the VRP; or
– Such continued enrollment would result in a
condition which poses an imminent or
substantial danger to human health and the
environment.
Special Initiatives
(Sec. 107)
•
•
Director shall remove the VRP property
from the HSI if the participant
demonstrates at the time of enrollment
that a release exceeding a RQ did not
exist at the property,
unless the director issues a decision
that such release poses an imminent
or substantial danger to human health
and the environment.
Special Initiatives
(Sec. 107)
• If VRP property listed for soil but not
groundwater, and demonstration made
at enrollment that groundwater release
exceeding RQ does not exist, the
participant is not required to perform
corrective action or to certify
compliance for groundwater.
• Annual monitoring for up to 5 years
unless director determines more is
necessary to protect human health and
the environment.
VRP Brings RBCA to HSRA
Larry Neal
Senior Principal Environmental Engineer
MACTEC
VRP Act Brings Risk-based
Corrective Action (RBCA) Features
• RBCA principles incorporated but RBCA
not defined in VRP
Think of RBCA as a decision
making process
• …used to assess actual or likely human
and/or ecological risk of exposure to a
chemical release and to determine
appropriate remedial actions accordingly
Protection vs. Restoration
Goal?
• RBCA is exposure-protection centric
while current HSRA has become more
media-restoration centric, irrespective of
exposure
RBCA Consensus Standard
Now Available
• ASTM Standard Guide E2081 (2004)
Risk-Based Corrective Action for
Chemical Releases
What is Risk?
• The risk of harm to a person or other
living receptor is the multiplied product
of chemical concentration in the
contaminated media multiplied by the
chemical-specific toxicity multiplied by
the receptor exposure to the
contaminated media
In conceptual form…
Risk =
Concentration x Toxicity x Exposure
How Can Risk Be Reduced to
Safe Levels?
• As concentration, toxicity, or exposure is
reduced to zero, risk also reduces to
zero.
Begs the Question…
• If risk is truly zero and will stay zero,
why remediate beyond risk-based
need?
Plenty of Possible Reasons…
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•
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Statutory/regulatory requirements?
Agency policy or precedent?
Natural resource restoration objectives?
Marketability of properties?
Company policy?
Lender requirements?
Future litigation concerns?
Non-owned properties?
Contamination stigma?
Community relations?
Long-term cost to maintain property controls?
Other reasons?
RBCA-Derived Definitions Are
Key for VRP Act (Section 102)
• Constituents of Concern…those
specific regulated substances that may
contribute to unacceptable receptor
exposure
• Exposure…contact of a constituent of
concern with a human or sensitive
organism (receptor)
• Exposure pathway…a route by which a
receptor comes into contact with a
constituent of concern
• Institutional and engineering
controls…measures that minimize the
current and future potential for receptor
exposure
• Exposure domain…a contaminated
geographical area of a site that can
result in exposure of a particular
receptor by way of a specified exposure
pathway
Point of exposure (for ground water)…the
nearest of the following locations:
1. Closest existing downgradient drinking water
well
2. Closest downgradient location for future
drinking water well where public supply not
likely to be available or
3. Hypothetical point of drinking water exposure
located 1000 feet downgradient from
delineated site contamination
• Point of demonstration wells…
groundwater monitoring wells located
between the source of groundwater
contamination and the downgradient
point of exposure
• Representative concentration…the
average concentration to which a
specified receptor is exposed over an
exposure duration within a relevant
exposure domain for soils or at an
established point of exposure for
groundwater (consistent with USEPA
guidance for determination of average
exposure concentration)
Other RBCA Features Available as
VRP Options (Section 108)…
Site Delineation Options…
• May delineate to anthropogenic
background not affected by the subject
site release
• May delineate metals in soils to
concentrations for GA undisturbed
native surficial soils in USGS Boerngen
& Shacklette Report (1981)
• May delineate to HSRA Type 1 generic
residential risk reduction standards
No Further Evaluation Required for
Incomplete Exposure Pathways
• An exposure pathway is complete (only)
if there are no discontinuities or
impediments to constituent movement
from contamination source to receptor,
including consideration of controls;
otherwise, exposure pathway is
incomplete and requires no (further)
evaluation
Site-Specific Average
Exposure Concentration
• Compliance with HSRA Type 2
(residential) and Type 4 (nonresidential)
“site-specific” risk reduction standards
may be determined on the basis of
representative (average) concentrations
in soils and groundwater, rather than
point-by-point maxima under current
HSRA
VRP Flexibility to Choose
Type 5 Standards
• May choose to use Type 5 risk reduction
standards without demonstrating that
Type 1 – 4 risk reduction standards are
inappropriate or impracticable, as
required under current HSRA
Depth-Specific Residential Soil
Criteria Available
• Compliance with HSRA Type 2
(residential) or Type 4 (nonresidential)
“site-specific” soil cleanup standards
may be based on depth-specific soil
criteria, provided controls are applied to
maintain compliance
Source Material Flexibility for
Type 2 and Type 4 RRSs
• Source material requirements may be
satisfied for Type 2 residential or Type 4
nonresidential RRSs by removal,
decontamination, or immobilization in
the subsurface, to the extent practicable
– current HSRA requires removal or
decontamination of all source material
VRP Broadens Use of Fate and
Transport Modeling (Section 108)
• ...for calculation of risk-based
concentrations at the point of exposure,
point of demonstration, soil source
area,RQSM flow-path analysis, stream
protection criteria, vapor pathway, and
“what-if” testing of remediation and
control alternatives including natural
attenuation
Fate and Transport Modeling
as Workhorse
• From the very simple to the technically
complex, fate and transport modeling
has evolved as a basic multipurpose
tool for informed RBCA decision making
Our Next Speaker, Dr. Neven
Kresic
• …will be our expert guide for a nontechnical orientation to the highlytechnical field of fate and transport
modeling in the context of RBCA and
the new VRP
Fate and Transport Modeling
and VRP
Neven Kresic
Senior Principal Hydrogeologist
MACTEC
Fate and Transport Modeling
• RBCA process should consider both
data collection and modeling options for
meeting information needs
• F&T models are most often used to
simulate or predict the distribution of
constituent concentrations in
environmental media (air, soil, surface
water, groundwater) in both space and
time
Fate and Transport Modeling
• RBCA advocates a gradual process of
using models, starting with simple
analytical equations and proceeding to
complex numeric models if needed.
• Complexity of selected models should
balance the quantity and quality of
available data with the model output
Fate and Transport Modeling
• Quantity and quality of available field
data may eliminate the need for F&T
modeling
• In some cases F&T models may not be
applicable (e.g., when model calibration
and verification are not possible)
Screening-Level Models
• “Simple” analytical equations (e.g. Domenico equation
for F&T of constituents dissolved in groundwater)
C ( x, y , z , t ) 
C 0  k st
e
fx fy fz
8
 x1  (1  4 x (  k s R) / v s 0.5 
 x  vc t (1  4 x (  k s R) / v s ) 0.5 



f x  exp
 erfc
0
.
5




2 x
2( x vc t )




 x1  (1  4 x (  k s R) / v s 0.5 
 x  vc t (1  4 x (  k s R) / v s ) 0.5 



 exp
 erfc
0
.
5




2 x
2( x vc t )




 (y  Y / 2 
 y Y /2 



f y  erf
 erf 
 2( x) 0.5 
 2( x) 0.5 
y
y




 (z  Z / 2 
 z Z /2 



f z  erf 

erf
0.5 
0.5 
 2( z x) 
 2( z x) 
Screening-Level Models
• Sand-box approach
• Assume direct and complete flowpath
between source and receptor
• Cannot simulate many common
boundary conditions (interaction
between surface water and
groundwater, pumping wells, recharge)
• Cannot simulate realistic 3D flow fields
Screening-Level Models
Were often expected to be used in a conservative mode
(to over-predict constituent concentrations on purpose)???
A
B
C
Zone of Release
Travel Zone
Receptor Zone
Unsaturated Zone
Uniform distribution of




Hydraulic gradient
Hydraulic conductivity
Effective porosity
Fate parameters
Saturated Zone
“Sand Box”
Screening-Level Models
• Examples include
BIOSCREEN (AT), BIOCHLOR, BIOBALANCE
RemChlor
Screening-Level Models
• BIOSCREEN AT (exact Domenico solution)
Complex Numeric Models
Used for realistic field conditions
Some of the factors determining
if the contaminant will actually
reach a well and be detected:
Plume
Aquitard
 Sand/Gravel
 Silts
 Clay
 Aquitards
Well
screen
- Recharge (dilution/dispersion)
- 3D directions of groundwater flow
- Heterogeneity of porous media
- Anisotropy of porous media
- Well design
- Well pumping rate/capture zone
- Wellbore dilution
- Ongoing groundwater remediation
-Groundwater-surface water
interactions
Complex Numeric Models
Columns
1
2
3
4
5
6
7
8
9
1
Rows
2
} Dnk
3
4
5
1
2
Layers 3
Dc i
4
5
Explanation
D rj
Aquifer Boundary
Active Cell
Inactive Cell
Complex Numeric Models
Final equation for each cell in the model:



CRi , j 1/ 2,k him, j 1,k  him, j ,k  CRi , j 1/ 2,k him, j 1,k  him, j ,k

h

 CV

h

 CCi 1/ 2, j ,k him1, j ,k  him, j ,k  CCi 1/ 2, j ,k him1, j ,k  him, j ,k
 CVi , j ,k 1/ 2
m
i , j , k 1
 him, j ,k
i , j , k 1/ 2
m
i , j , k 1
 him, j ,k


 Cbi , j ,k  (hbi , j ,k  hi , j ,k )  qi , j ,k  CRIVi , j ,k  ( Ri , j ,k  hi , j ,k ) 
I i , j  DELRj  DELCi  SSi , j ,k 
(Drj Dci Dvk )  (him, j ,k  him, j,1k )
tm  tm1
X equations with X unknowns where X is the number of cells
Conceptual Site Model
•
Physical-chemical properties and geometry of the system
– hydraulic conductivity, effective porosity, storage
– spatial extent of sediment layers (rock units)
– contaminant sources, plumes, F&T parameters
• Various inputs of water (boundary conditions)
– from precipitation/infiltration
– from adjacent aquifers
– from streams (channels, ponds)
– artificial inputs (injection wells, infiltration basins)
•
Various outputs of water (boundary conditions)
– discharge into streams, via springs, wells
– evapotranspiration from water table
– discharge to adjacent aquifers
Numeric Model
• Model parameters and boundary conditions
have to be assigned by the modeler to
each cell in the model.
• Based on this information, the model
(computer program) calculates the hydraulic
head (groundwater level) and contaminant
concentration for each cell.
• The validity (success) of the model is judged
by comparing the calculated hydraulic heads
and contaminant concentrations with those
actually measured in the field.
Numeric Model
• Process of adjusting model parameters and
boundary conditions in order to match fieldobserved hydraulic heads and contaminant
concentrations is called model calibration
• (But when carried to extremes it would be
characterized as model manipulation)
Model Calibration
ri  hi  H i
n
residual = observed - calculated
R
R = residual mean
s = standard deviation of residuals
n = number of residuals
 ri
i 1
n
1
2 2
 n
  ri  R 

s   i 1
n 1









Model Calibration
ASTM Standard E 978-92
Evaluating Mathematical Models for the Environmental Fate of
Chemicals
Purpose
Acceptable Error
• Screening
Multiple of 2 or 3
• Classifying
+/- 35% to 50%
• Predictive
+/- 5% to 15%
3D Numeric Models
Can have hundreds of layers and millions of cells
Layer 1 = 10 ft
Layer 2 = 15 ft
Extraction Well (Q = 200 gpm)
Layer 3 = 15 ft
Layer 4 = 15 ft
Layer 5 = 15 ft
Layer 6 = 15 ft
Layer 7 = 10 ft
Injection Well (Q = 200 gpm)
3D Numeric Models
Solution displayed as contour maps of hydraulic head and
contaminant concentrations
Extraction Well
Layer 2
3D Numeric Models
Solution displayed as contour maps
Injection Well
Layer 7
3D Numeric Models
Solution displayed as particle tracks (flowpaths)
Traces of particles coming
to the extraction well (from
upgradient and from the
injection well)
3D Numeric Models
Solution displayed as particle tracks (flowpaths)
Traces of particles leaving
the injection well (upward to
the extraction well and
downgradient).
3D Numeric Models
Solution displayed as particle tracks (flowpaths)
Note extensive
mixing zone
3D Numeric Models
Solution displayed as contaminant concentrations (plumes)
Without Degradation
3D Numeric Models
Solution displayed as contaminant concentrations (plumes)
With Degradation
3D Numeric Models
Solution displayed in 3D
Courtesy Chiang et al., 2002. 3D Master – A Computer Program for 3D Visualization
and Real-time Animation of Environmental Data
Fate and Transport Parameters
Fate
Transport








sorption
degradation
transformation
(dilution)
advection
diffusion
dispersion
volatilization
(dilution is for the most part caused by dispersion and it is not
assigned as a parameter; however, all processes that bring
non-contaminated water into the system, such as infiltration
from rainfall, should be modeled adequately)
Fate and Transport Parameters
Characterization of the Source Terms is Crucial
Fate and Transport Parameters
Characterization of the Source Terms is Crucial
USEPA, 1977. The report to Congress: waste disposal practices and their effects on ground-water. EPA 570977001
Fate and Transport Parameters
Sources of Data
• Site-specific always preferred.
• Some, like degradation rates, required to be
site-specific by most agencies.
• In the absence of site-specific data, use of
most probable literature values is expected.
HOWEVER
Fate and Transport Parameters
Sources of Data
• Literature values are often conflicting and
ambiguous
• Most site-specific data have upscaling
problems or cannot be feasibly obtained
• Best professional judgment is always
required
• Dialogue with clients and regulators is
crucial
Fate and Transport Parameters
Sources of Data
Example Variation in Subsurface Migration Period of Dissolved TCE
Due to Varying Reported Koc values
Source
(USEPA, 2008)
(USEPA, 2008)
(Baker et al., 1997)
(SRC, 2007)
(Baker et al., 1997)
(Sabljic et al., 1995)
(Seth et al., 1999)
(Seth et al., 1999)
Log Koc
[mL/g]
Koc
[mL/g]
Retardation
Coefficient
Time to migrate
100 m [years]
1.94
2.18
1.81
2.02
2.16
1.95
1.46
2.06
87
150
65
104
145
90
29
116
10.2
16.9
7.8
12
16.4
10.6
4
13.3
28
46
21
33
45
29
11
36
Note: The following conditions were assumed:
Linear groundwater velocity = 10 cm/day
Effective porosity = 25%
Soil bulk density = 2.5 g/cm3
Soil fraction organic carbon = 0.01
Fate and Transport Parameters
Sensitivity
They are ALL sensitive and should be analyzed (used)
accordingly
From Franke, O.L., et al., 1998. Estimating areas contributing recharge to wells; lessons from previous
studies. U.S. Geological Survey Circular 1174, 14 p.
Fate and Transport Parameters
Dispersion Sensitivity
Longitudinal = 50 feet
Transverse = 5 feet
Vertical = 0.5 feet
Longitudinal = 10 feet
Transverse = 1 feet
Vertical = 0.1 feet
Longitudinal = 5 feet
Transverse = 0.5 feet
Vertical = 0.05 feet
Fate and Transport Parameters
Dispersion Sensitivity
Longitudinal = 10 feet
Transverse = 1 foot
Vertical = 0.1 feet
Longitudinal = 20 feet
Transverse = 2 feet
Vertical = 0.2 feet
Pumping well
Pumping well
Fate and Transport Parameters
Dispersion Sensitivity
Pumping well
Pumping well
Aquitard further split into six 5-foot layers; everything else is the same
(longitudinal = 20 feet, transverse = 2 feet, vertical = 0.2 feet)
Vadose Zone Modeling
• Often ignored or overly simplified
• Vadose zone may serve as long-term
secondary source or contaminant sink
• Often crucial for risk-based corrective action
• Dialogue with clients and regulators is
crucial (data needs, acceptance)
Vadose Zone Modeling
• Numeric models capable of simulating variably
saturated flow are superior and should be
applied by default
• Calculations of groundwater impacts external
to the model are avoided
• Advances in software development and
affordable pricing (including excellent publicdomain programs)
• Examples include new MODFLOW and VS2D
from USGS
Vadose Zone Modeling
Clay lens
Water table
Contaminant infiltration from the land surface for 15 years
followed by complete removal and natural infiltration from rainfall
Vadose Zone Modeling
Water table
Contaminant loading at the land surface for 12 years
followed by capping
Vadose Zone Modeling
Water table
Secondary source in the vadose zone impacting groundwater due to
water table rise
VRP: An Appealing Program –
Legal Considerations Related to Potential
Enrollment in Georgia’s New Voluntary
Remediation Program
Wednesday, April 22, 2009
Bob Mowrey
Alston & Bird LLP
VRP: New Rights of Appeal
• HSRA Decisional History and AG Positions on
Limitations on Right of Pre-enforcement Appeal:
– Appeal available to property owner only.
– Limited to the determination that “corrective action is
necessary” and that a deed notice is therefore required.
– Scope of the appeal, if authorized, limited to whether or not
the deed notice would be placed, and would not extend to
issues around the corrective action itself.
• Effect: Very little bargaining power created by the
possibility of administrative or judicial litigation.
VRP: New Rights of Appeal
• Section 12-8-107(g)(3): “The limitations
provided under [O.C.G.A. §12-2-2(c)(3)(B)]
shall not apply to the director’s decisions or
actions under this part.”
• “[T]his part” refers to the entirety of the
statutory provisions of VRP bill.
• Section 12-2-2(c)(3)(B) prevents appeals for:
• Listing of site on HSI.
• Orders issued by Director under HSRA § 12-8-96.
Potentially Appealable EPD Actions
 Accepting or rejecting a property in the VRP.
•
•
•
•
Delineation requirements
Exposure pathway analysis
Application of exposure averaging concepts
Selection of cleanup standards
 Terminating participation in the VRP.
 Approving or rejecting a voluntary remediation plan.
 Concurring or not concurring in certifications of compliance.
 Removing or failing to remove sites from inventory under
subsection (g).
 Decisions on relieving party from groundwater obligations at
sites that did not exceed RQSM for groundwater.
Limitations on Appeal Rights
• The same limits that have always applied to
appeals under Georgia law still apply:
 Appeals are available within 30 days of an “order or
action” of the Director. Generally construed to be
limited to “final” actions.
• This limitation may create uncertainty about when VRP
appeal rights accrue and when they may expire.
• When is correspondence staking out an EPD position a
final action of the Director?
 Appeals are limited to parties “aggrieved or adversely
affected” by an order or action, which is a standing
concept.
Sites Versus Properties: Cross-Border
Contamination and Non-Owned Sites
• Note that the VRP bill in various places refers
to “properties” while HSRA refers to “sites.”
VRP also refers to “sites” in certain locations.
• HSRA definition of “site” is by reference to area
of impact of hazardous substances.
• “Property,” in all likelihood, would be
considered a reference to legal ownership and
parcels of property as thought of in a real
estate context.
Sites Versus Properties: Cross-Border
Contamination and Non-Owned Sites
• This distinction raises a few different issues:
– Will multi-property sites require separate applications per
property? This is largely an administrative detail, but the
agency will have to make a judgment on it.
– Larger issue is whether a site is qualified for VRP
treatment:
• Section 12-8-106(1) requires that a “participant” must be “the
property owner of the [VRP] property or have express
permission to enter another’s property to perform corrective
action including, to the extent applicable, implementing
controls for the site pursuant to written lease, license, order,
or indenture.”
• Thus, permission relating to implementing VRP for crossborder situations is vital. This may give the neighboring
property more leverage than usual.
Multi-Party Sites
• The enrollment in the VRP is done by an “applicant.”
• Other references to the performing party is to the
“participant.”
• Taking these provisions together with the provision that
allows use of VRP where express permission is secured
from owner, in all likelihood, a “group” could be deemed
the applicant, although EPD will have to go along with
that interpretation.
• Does every member of the group have to be qualified to
be a participant? (More on that later).
• Other difficulties associated with multi-party sites will
largely be the same as under HSRA. For example,
financial assurance can be cumbersome in that context.
Interaction with Other Programs
•
VRP not available for:
 NPL listed sites.
 Sites under order by EPA for response activities.
 Sites required to have a hazardous waste TSDF permit.
•
Note that the use of VRP may affect eligibility for brownfields
groundwater liability provisions under the Georgia Hazardous
Site Reuse and Redevelopment Act.
– Is meeting a “cleanup standard” that is modified using the
principles in the VRP the same as meeting a “risk reduction
standard” for soil or source material, which is an operative
provision of the HSRRA?
– On the other hand, HSRRA provides that a party must meet “all
applicable rules and regulations adopted by the Board.” To the
extent the Board adopts rules under VRP, a property might
arguably be considered eligible also under HSRRA.
Finally, a Potential Trip-Up
• To qualify for VRP, a participant must “not be in
violation of any order, judgment, statute, rule or
regulation subject to the enforcement authority
of the director. . . .”
–
–
–
–
Who decides?
Adjudicated?
Materiality?
Multi-Party Sites – does one participant’s problem
infect group?
– Presumably, determination of ineligibility on this basis
is subject to appeal provisions. Thus, could have
appeal on entirely unrelated issue.