Title of Regulation: 9VAC20-160. Voluntary Remediation Regulations (amending 9VAC20-160-10, 9VAC20-160-30, 9VAC20-160-40, 9VAC20-160-55 through 9VAC20-160-70, 9VAC20-160-110, 9VAC20-160-120).

Statutory Authority: § 10.1-1232 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: November 27, 2019.

Effective Date: December 12, 2019.

Agency Contact: Melissa Porterfield, Office of Regulatory Affairs, Department of Environmental Quality, 1111 East Main Street, Suite 1400, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4238, FAX (804) 698-4019, or email melissa.porterfield@deq.virginia.gov.

Basis: Section 10.1-1232 of the Code of Virginia directs the Virginia Waste Management Board to promulgate regulations that facilitate voluntary cleanup of contaminated sites where remediation is not clearly mandated by the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the Resource Conservation and Recovery Act (RCRA), the Virginia Waste Management Act, or other applicable authority. Section 10.1-1402 of the Code of Virginia authorizes the board to promulgate and enforce regulations necessary to carry out its powers and duties, the intent of the Virginia Waste Management Act, and the federal acts.

The Voluntary Remediation Regulations is a state regulation, and there is no equivalent corresponding federal regulation. This regulation applies only where remediation is not otherwise required under state or federal law, or where such jurisdiction has been waived. Entities that qualify may choose to utilize this regulation to conduct remediation of contaminated sites.

Purpose: The purpose of this regulatory action is to clarify the requirements of the existing regulation. The remediation of sites protects the health, safety, and welfare of citizens as well as resolving environmental liability issues that facilitates redevelopment of sites and economic development.

Rationale for Using Fast-Track Rulemaking Process: The proposed amendments are expected to be noncontroversial, and therefore are appropriate for using the fast-track rulemaking process. An informal comment period was held on the proposed changes, and no comments were received on the changes.

Substance: Changes to the regulation include the addition of definitions, clarifications concerning the applicability of fees for sites that conduct remediation in phases, and the issuance of multiple certificates for a site.

Issues: The public and the agency will both benefit from the amendments to the regulation. The clarifications that are being made to the regulation will minimize confusion concerning the requirements of the regulation. There are no disadvantages to the public or to the Commonwealth from these changes.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Virginia Waste Management Board (Board) proposes to eliminate and amend some requirements concerning applications to the Virginia Voluntary Remediation Program (VRP) and make clarifying changes.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact.

Background: The purpose of this regulation is to establish standards and procedures pertaining to the eligibility, enrollment, reporting, characterization, remediation, and termination criteria for the VRP in order to protect human health and the environment. VRP is a streamlined mechanism for site owners or operators to voluntarily address contamination at sites with concurrence from the Virginia Department of Environmental Quality (DEQ). When the remediation is satisfactorily completed, DEQ issues a certification of satisfactory completion of remediation. This certification provides assurance that the remediated site will not later become the subject of a DEQ enforcement action unless new issues are discovered. DEQ believes that the VRP facilitates the sale and reuse of industrial and commercial properties in the Commonwealth.

VRP registration fees are paid in three phases. The phase 1 registration fee ($2,000) is due when the application is submitted. Payment of the phase 2 registration fee ($7,500) is required after eligibility has been verified by DEQ and prior to technical review of submittals. The phase 3 registration fee ($4,500) is charged annually to any site participating in the program.

Analysis: Under the current regulation, applicants who are not the site owner must demonstrate that they have access to the property at the time of payment of the phase 1 registration fee. The Board proposes to amend the requirement to be that the applicants who are not the site owner demonstrate that they have access to the property at the time of payment of the phase 2 registration fee. At times it can take weeks or months to get a formal agreement between the applicant and the site owner.² This change would be beneficial in that it would speed the approval process, and perhaps make remediation more likely to occur. According to DEQ, this amendment would not induce any unauthorized access.

The regulation defines "authorized agent" as "any person who is authorized in writing to fulfill the requirements of this program." The current text requires that the application for participation in VRP include "For authorized agents, a letter of authorization from an eligible party." The Board has determined that this is not necessary as part of the application and thus proposes to eliminate the requirement. This would save staff time and perhaps legal fees for the applicant.

The current text also requires the following as part of the application package: "If the applicant is not the owner of the property, the applicant shall provide written documentation that the owner of the property: a. Consents in writing to the submission of the application; and b. Agrees in writing that the information set forth in the application is substantially correct to the best of the owner's knowledge." The Board proposes to eliminate this text and requirements. In cases where the current owner is not the applicant to the VRP, the Board and DEQ believe this requirement places a burden on the site owner that is unnecessary. In some cases the site owner and applicant may have an agreement for the transfer of the property that will occur prior to remediation of the site. In such cases, the information in this subdivision is irrelevant. The goal of the VRP is to remediate sites. If an applicant that is not the property owner is willing and able to participate in the program for the site, this requirement would potentially hinder the site from participating in the program. Thus removing this requirement is potentially beneficial.

Businesses and Entities Affected. The proposed amendments potentially affect land developers, builders, contractors, and firms that invest in real estate, as well as businesses that cleanup contaminated sites. According to DEQ, as of September 12, 2018, 143 sites were enrolled in VRP; and five additional sites had submitted applications to participate.

Localities Particularly Affected. The proposed amendments would particularly affect localities with disproportionately more contaminated properties.

Projected Impact on Employment. To the extent that the proposed amendments increase the occurrence of contaminated industrial and commercial properties being cleaned up and redeveloped, employment associated with remediation and redevelopment of property may increase.

Effects on the Use and Value of Private Property. The proposed amendments may increase the likelihood that contaminated industrial and commercial properties are cleaned up, sold and reused.

Real Estate Development Costs. The proposed amendments may moderately reduce real estate development costs.

Small Businesses:

Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

Costs and Other Effects. The proposed amendments would moderately reduce costs for small firms to participate in VRP.

Alternative Method that Minimizes Adverse Impact. The proposed amendments do not adversely affect small businesses.

Adverse Impacts:

Businesses. The proposed amendments do not adversely affect businesses.

Localities. The proposed amendments do not adversely affect localities.

Other Entities. The proposed amendments do not adversely affect other entities.

_________________________

²Source: Department of Environmental Quality

Agency's Response to Economic Impact Analysis: The department has reviewed the economic impact analysis prepared by the Department of Planning and Budget and has no comment.

Summary:

The amendments include (i) adding definitions, (ii) clarifying the applicability of fees for sites that conduct remediation in phases, and (iii) clarifying the issuance of multiple certificates for a site.

9VAC20-160-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise.

"Adjacent property" means either properties meeting at a shared property boundary or parcels of land that are not widely separated, including at a point or corner, or separated only by one or more relatively narrow linear features. Such linear features may include roadways, railways, and narrow bodies of water.

"Applicant" means a person who has applied to the program but is not a participant.

"Authorized agent" means any person who is authorized in writing to fulfill the requirements of this program.

"Board" means the Virginia Waste Management Board.

"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 U.S. Environmental Protection Agency (EPA) weight-of-evidence classification system.

"Certificate" means a written certification of satisfactory completion of remediation issued by the department 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.

"Environmental covenant" means a servitude arising under an environmental response project that imposes activity and use limitations pursuant to the Uniform Environmental Covenants Act (§ 10.1-1238 et seq. of the Code of Virginia).

"Hazard index (HI)" or "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" means a conservative estimate of the incremental probability of an individual developing cancer over a lifetime as a result of exposure to the potential carcinogen. Upper-bound lifetime cancer risk 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, land use, and water use restrictions and environmental covenants.

"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 monitors the natural or enhanced attenuation process.

"Natural attenuation" means the processes by which contaminants break down naturally in the environment. Natural attenuation processes include a variety of physical, chemical, or biological processes that, under favorable conditions, act without human intervention to reduce the mass, toxicity, mobility, volume, or concentrations of contaminants in soil or groundwater.

"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.

"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 phase 2 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.

"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 fees paid to apply for, obtain eligibility for, enroll in, and participate in the Voluntary Remediation Program.

"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 clean up, mitigate, correct, abate, minimize, eliminate, control, contain, or prevent a release of a contaminant into the environment in order to protect human health and the environment. Remediation may include, when appropriate and approved by the department, land use controls, natural attenuation, and 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.

"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 certificate.

"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.

9VAC20-160-30. Eligibility criteria.

A. Applicants and proposed sites shall meet eligibility criteria as defined in this section.

B. 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 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.

Applicants who are not the site owner owners must demonstrate that they have access to the property at the time of payment of the phase 2 registration fee in accordance with 9VAC20-160-60 and must maintain such right of access until a certificate is issued or participation in the program is terminated pursuant to 9VAC20-160-100.

C. Sites are eligible for participation in the program if (i) remediation has not been clearly mandated by the United States U.S. 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 (i) if the actions can be documented in a way which so that the actions are shown to be equivalent to the requirements for this chapter, and (ii) 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:

a. It is not clear whether the release involved a waste material or a virgin material;

b. It is not clear that the release occurred after the relevant regulations became effective; or

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 closure plan, an administrative order, a court order, or a consent order, or the site is on the National Priorities List;

2. The site at which the release occurred (i) 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 (ii) is thereby subject to requirements of the VHWMR;

3. The site at which the release occurred has been determined by the department prior to the application submittal date to be an open dump or unpermitted solid waste management facility under 9VAC20-81-45 of the Solid Waste Management Regulations and such conditions still exist that made the site an open dump or unpermitted solid waste management facility;

4. The department determines that the release poses an imminent and substantial threat to human health or the environment; or

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 department 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 regulations.

9VAC20-160-40. Application for participation.

A. The application for participation in the Voluntary Remediation Program shall provide the elements listed below in this subsection:

1. An overview of the project, transaction, or other; reason for application for participation in the program.

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. 4. A plat or map that indicates the approximate acreage and boundaries of the site. If the site is a portion of a larger property, then the plat or map shall show the approximate boundaries of both the site and the associated larger property.

5. 4. A general operational history of the site.

6. 5. 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. 6. A discussion of the potential jurisdiction of other existing environmental regulatory programs requiring clean up remediation of the release being proposed for admittance to the program, or documentation of a waiver thereof.

8. 7. An application signed by the applicant attesting that to the best of the applicant's knowledge all of the information as set forth in this subsection is true and accurate.

9. If the applicant is not the owner of the property, the applicant shall provide written documentation that the owner of the property:

a. Consents in writing to the submission of the application; and

b. Agrees in writing that the information set forth in the application is substantially correct to the best of the owner's knowledge.

B. 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 complete or incomplete. Within 60 days of the department's receipt of a complete application, the department shall verify whether or not 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 department makes a tentative decision to reject the application, 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 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 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-day period. If within 30 days an applicant submits additional information to correct the inadequacies of an application, the review process shall begin again in accordance with this section.

9VAC20-160-55. Registration fees for applications received prior to January 29, 2014.

A. For applicants that submitted an application that was received by the department prior to January 29, 2014, the registration fee submitted and any registration fee refund sought shall be in accordance with the requirements of this section. On and after July 1, 2014, any addition of acreage to a site participating in the program based upon an application subject to registration fees under this section shall require a new application for the additional acreage, which shall be subject to registration fees pursuant to the requirements of 9VAC20-160-65. If the participant elects to subdivide the site or conduct a phased remediation project requiring multiple certificates for the site, the additional site shall be subject to phase 2 registration fees as required by 9VAC20-160-65 C 1 b and phase 3 registration fees as required by 9VAC20-160-65 D 6.

B. The registration fee shall be at least 1.0% of the actual cost of the remediation at the site, not to exceed $5000 $5,000. To determine the appropriate registration fee, the applicant shall provide an estimate of the anticipated total cost of remediation and remit that amount. As an alternative to providing an estimate, the applicant may elect to pay the maximum registration fee.

C. If the participant did not elect to remit the 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 adjustment 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 overpayment to be refunded to the participant shall be remitted by the department with issuance of the certificate.

D. If the participant elected to remit the maximum registration fee and an overpayment has been made, 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.

9VAC20-160-60. Registration fees for applications received on or after January 29, 2014, and prior to July 1, 2014.

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. For applicants submitting an application that is received by the department on or after January 29, 2014, and prior to July 1, 2014, the registration fee submitted and any registration fee refund sought shall be in accordance with the requirements of this section. On and after July 1, 2014, any addition of acreage to a site participating in the program based upon an application subject to registration fees under this section shall require a new application for the additional acreage, which shall be subject to registration fees pursuant to the requirements of 9VAC20-160-65. If the participant elects to subdivide the site or conduct a phased remediation project requiring multiple certificates for the site, the additional site shall be subject to phase 2 registration fees as required by 9VAC20-160-65 C 1 b and phase 3 registration fees as required by 9VAC20-160-65 D 6.

B. The preliminary registration fee shall be $5,000. 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. Failure to remit the required registration fee within 90 days of the date of eligibility determination shall result in the loss of eligibility status of the applicant. The applicant must reestablish his applicant eligibility for participation in the program and the eligibility of the site, unless the department agrees to extend the period for remitting the registration fee. Once eligibility is lost for failure to remit the registration fee pursuant to this subsection, the applicant shall submit a new application in order to reestablish his applicant eligibility for participation in the program and the eligibility of the site and shall be subject to the registration fees under the provisions of 9VAC20-160-65.

D. Upon completion of remediation and issuance of the certificate pursuant to 9VAC20-160-110, the participant whose final cost of remediation is less than $500,000 may seek a refund of a portion of the preliminary registration fee. The refund amount shall be reconciled as the difference between the preliminary registration fee and the final registration fee amounts.

1. In order to receive a refund, the participant shall provide the department with a summary of the final cost of remediation within 60 days of issuance of a certificate. The final registration fee amount for such projects shall be calculated as 1.0% of the final cost of remediation. The department shall review the summary, calculate the refund amount due, and issue a refund to the participant.

2. If no summary of the final cost of remediation is provided to the department within 60 days of issuance of the certificate, the final registration fee amount shall be equal to the preliminary registration fee amount, and no portion of the preliminary registration fee shall be refunded.

3. Concurrence with the summary of the final cost of remediation does not constitute department verification of the actual cost incurred.

E. No portion of the preliminary registration fee will be refunded if participation is terminated pursuant to the provisions of 9VAC20-160-100.

9VAC20-160-65. Registration fees for applications received on or after July 1, 2014.

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. For applications received by the department on and after July 1, 2014, the registration fee shall be remitted in three phases as required by this section.

B. Phase 1 of the registration fee shall be an application fee in the amount of $2,000.

1. Payment of the phase 1 registration fee is required for each application received by the department on or after July 1, 2014.

2. The phase 1 registration fee is due when the application is submitted and shall be made payable to the Treasurer of Virginia.

3. The phase 1 registration fee shall be submitted separately from the application package and remitted to Virginia Department of Environmental Quality, P.O. Box 1104, Receipts Control, Richmond, VA 23218.

4. An application is not administratively complete until the phase 1 registration fee is received by the department. Review of an application for eligibility in accordance with 9VAC20-160-30 and 9VAC20-160-40 shall not commence until the application is administratively complete.

C. Phase 2 of the registration fee shall be an eligibility fee in the amount of $7,500.

1. Payment of the phase 2 registration fee shall be required after eligibility has been verified by the department and prior to technical review of submittals pursuant to 9VAC20-160-80. Upon receipt of the phase 2 registration fee, the site and applicant shall be considered by the department to be participating in the program.

a. A phase 2 registration fee shall be required from the applicant for each site that has been determined to be eligible for participation in the program based upon an application received by the department on or after July 1, 2014.

b. A separate phase 2 registration fee is required for each section of a phased remediation project that requires a separate eligibility determination or for any site that requires a separate certificate issued for that section pursuant to 9VAC20-160-110. In the event that the phased remediation work continues beyond November 1, then phase 3 registration fees shall also be billed and remitted annually until project completion in accordance with subsection D of this section.

c. No phase 2 registration fee shall be required for a site that has been determined to be eligible for participation in the program based upon an application received by the department prior to July 1, 2014, unless the site requires more than a single certificate to be issued.

d. If multiple certificates are issued at the same time for different portions of a project pursuant to 9VAC20-160-110, a phase 1 fee shall be due for each certificate after the first.

2. Payments of phase 2 registration fees shall (i) be made payable to the Treasurer of Virginia, (ii) include the Voluntary Remediation Program (VRP) ID number assigned by the department, and (iii) be remitted to Virginia Department of Environmental Quality, P.O. Box 1104, Receipts Control, Richmond, VA 23218. The phase 2 registration fees shall be remitted to the department within 90 days after date of the eligibility determination unless the department agrees to extend the period for remitting the phase 2 registration fee.

3. Failure to remit the required phase 2 registration fee in accordance with subdivision 2 of this subsection within 90 days after the date of eligibility determination shall result in the loss of eligibility status of the applicant and the site. After such loss of eligibility, the applicant must reestablish eligibility in order to participate in the program.

a. The department shall mail notification of nonpayment of the phase 2 registration fee and pending loss of eligibility at least 30 days prior to loss of the applicant's and the site's eligibility.

b. If eligibility is lost as a result of failure to remit a phase 2 registration fee, the applicant shall pay new phase 1 and phase 2 registration fees as part of reestablishing eligibility.

D. Phase 3 of the registration fee shall be an annual program cost defrayment fee in the amount of $4,500. If a site (i) has been determined to be eligible for participation in the Voluntary Remediation Program based upon an application received by the department on or after July 1, 2014, and (ii) is participating in the Voluntary Remediation Program, a phase 3 registration fee shall be assessed for that site as follows:

1. On November 1 of each calendar year, any site participating in the program on that day shall be assessed a phase 3 registration fee if the application on which the eligibility determination was based was received by the department in a calendar year prior to that year. For example:

a. Any site participating in the program on November 1, 2015, based upon an application that had been received by the department in calendar year 2014 (on or after July 1, 2014) will be assessed a phase 3 registration fee and will be billed for that assessment on March 1, 2016.

b. Any a. For example, any eligible site participating in the program on November 1, 2017, based upon an application that had been received by the department in calendar year 2014 (on or after July 1, 2014), 2015, or 2016 will be assessed a phase 3 registration fee to be billed on March 1, 2018.

b. For any site where the application was received prior to July 1, 2014, the site is not subject to a phase 3 registration fee unless the site requires multiple certificates (e.g., the original site was divided and certificates are issued at separate times).

c. Sites that are not participating in the program, including sites that have not yet been determined to be eligible to participate in the program;, sites that have had a certificate issued pursuant to 9VAC20-160-110 prior to November 1;, and sites that have been terminated from participation in the program pursuant to 9VAC20-160-100 prior to November 1 are not subject to a phase 3 registration fee assessment for that calendar year and will not be billed on March 1 of the following year.

2. The phase 3 registration fee is not prorated for participation in the program for portions of calendar years.

3. The phase 3 registration fee assessed for an eligible site shall be billed to the applicant on March 1 of the calendar year following the November 1 assessment.

4. The assessed phase 3 registration fee is due on April 1 of the billing year and shall (i) be made payable to the Treasurer of Virginia, (ii) include the VRP ID number assigned by the department, and (iii) be remitted to Virginia Department of Environmental Quality, P.O. Box 1104, Receipts Control, Richmond, VA 23218.

5. The phase 3 registration fees shall be remitted to the department by the due date specified in subdivision 4 of this subsection unless extended by the department.

a. Failure to remit a required phase 3 registration fee within 30 days of the due date shall be cause for termination from the program in accordance with 9VAC20-160-100 A 4.

b. The department shall mail notification of nonpayment of the phase 3 registration fee and intent to terminate participation in accordance with 9VAC20-160-100 to the participant at least 30 days prior to termination.

6. No phase 3 registration fee shall be assessed for a site participating in the program based upon an application received by the department prior to July 1, 2014, unless the participant elected to subdivide the site or conduct a phased remediation project requiring multiple certificates for the site.

7. Any assessed phase 3 fees shall be remitted to the department before a certificate is issued.

E. The total amount of fees collected by the board shall defray the actual reasonable costs of the program. The director shall take whatever action is necessary to ensure that this limit is not exceeded.

F. No portion of Voluntary Remediation Program registration fees collected pursuant to this section shall be refunded.

G. If a site has been terminated from the program in accordance with 9VAC20-160-100, a new application shall be submitted before the site will be considered for a new eligibility determination and reenrollment into the program. The applicant shall also remit new phase 1 and phase 2 registration fees in accordance with this section and no monetary credit will be given for any fees submitted prior to termination.

H. Amendments to a site's certificate or the associated declaration of restrictive covenants issued by the department pursuant to 9VAC20-160-110 shall be subject to registration fees based on the amendments requested. The land owner shall submit a certificate amendment request to the department describing the changes being requested. The department will review the request and notify the land owner of any additional information required and the amount of the registration fee to be remitted as follows:

1. For amendments to the certificate or the associated declaration of restrictive covenants not requiring a technical review by the department, only a phase 1 registration fee shall be required.

2. For amendment requests that require technical review by the department, no phase 1 registration fee shall be required, but a reduced phase 2 registration fee in the amount of $4,500 shall be required. In the event that the amendment request also meets the phase 3 registration fee criteria in subsection D of this section based upon the date that the department received the amendment request being the date of the application for such purpose, phase 3 registration fees shall also be billed and remitted.

I. For a site that has been determined to be eligible for participation in the program based upon an application received by the department prior to July 1, 2014, a request to change the participant for such site received by the department on or after July 1, 2014, or the department making such change, will not in and of itself subject the site to the fees under this section.

9VAC20-160-70. Work to be performed.

A. The Voluntary Remediation Report shall consist of the following components: a Site Characterization, a Risk Assessment, a Remedial Action Plan, a Demonstration of Completion, and Documentation of Public Notice. Each separate component of the Voluntary Remediation Report shall be submitted as listed below in this subsection:

1. The Site Characterization component 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 a map of the onsite and offsite vertical and horizontal extent of contaminants above levels consistent with 9VAC20-160-90; and a discussion of the potential risk or risks posed by the release. If remedial activities have occurred prior to enrollment, this information shall be included.

2. The Risk Assessment component shall contain an evaluation of the risks to human health and the environment posed by the release, including an assessment of risk to offsite properties; a proposed set of remediation level objectives consistent with 9VAC20-160-90 that are protective of human health and the environment; and either recommended remediation actions to achieve the proposed objectives or a demonstration that no action is necessary.

3. The Remedial Action Plan component shall propose the specific activities, a schedule for those activities, any permits required to initiate and complete the remediation, and specific design plans for implementing remediation that will achieve the remediation level objectives specified in the Risk Assessment component of the report. Control or elimination of continuing onsite source or sources of releases to the environment shall be discussed. Land use controls and any permits required for the remediation process should be discussed as appropriate. If no remedial action is necessary, the Remedial Action Plan shall discuss the reasoning for no action.

4. The Demonstration of Completion component shall include the following, as applicable:

a. A detailed summary of the remediation implemented at the site, including a discussion of the remediation systems installed and a description of the remediation activities that occurred at the site.

b. A detailed summary of how the established site-specific objectives have been achieved, including (i) a description of how onsite releases (or sources) of contamination have been eliminated or controlled, and (ii) confirmational sampling results demonstrating that the remediation level objectives have been achieved and that the migration of contamination has been stabilized.

c. A description of any site restrictions including, but not limited to, land use controls that are proposed for the certificate.

d. A demonstration that all other criteria for completion of remediation have been satisfied.

e. Certification A statement signed by the participant or authorized agent that to the best of the participant's knowledge, the activities performed at the site pursuant to the this chapter have been in compliance with all applicable regulations.

5. The Documentation of Public Notice component is required to demonstrate that public notice has been provided in accordance with 9VAC20-160-120. Such documentation shall, at a minimum, consist of copies of all of the documents required pursuant to the provisions of subsection E of 9VAC20-160-120.

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.

C. All work, to include sampling and analysis, shall be performed in accordance with Test Methods for Evaluating Solid Waste, USEPA SW-846, revised March 2009, or other media-specific methods approved by the department and completed using appropriate quality assurance/quality assurance and 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 applicable reports.

D. While participating in the program, the participant shall notify the department in writing within 30 days of any change in property ownership and if the participant changes, then the new participant shall notify the department within 30 days of the change.

E. While participating in the program, the participant shall notify the department in writing within 30 days of any change in agent for the property owner or the participant.

9VAC20-160-110. Certification of satisfactory completion of remediation.

A. The department shall issue a certificate 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 onsite and offsite receptors;

3. All provisions of the approved final remedial action plan as applicable have been completed;

4. All applicable requirements of the regulations this chapter have been completed;

5. The department accepts all work submitted, as set forth in 9VAC20-160-70; and

6. All registration fees due to the department pursuant to 9VAC20-160-55, 9VAC20-160-60, and 9VAC20-160-65 have been received by the department.

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 releases described in the certificate.

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 and defined in a declaration of restrictive covenants. Land use controls accepted by the department for use at the site are considered remediation for the purposes of this chapter.

E. If a use restriction is specified in the certificate, the participant shall cause the certificate and a declaration of restrictive covenants to be recorded among the land records 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 a longer period is specified in the certificate. 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 certificate shall apply to the participant and current or future property owner and shall run with the land identified as the site.

F. The immunity granted by issuance of the certificate shall be limited to the known releases as described in the certificate. The immunity is further conditioned upon satisfactory performance by the participant of all obligations required by the department under the program and upon the veracity, accuracy, and completeness of the information submitted to the 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 Voluntary Remediation Report.

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;

4. Any proffered land use controls; and

5. Any post-certificate monitoring.

H. The certificate may be revoked by the department in any of the following situations, provided that (i) the department has given the owner written notice of the deficiency and (ii) the owner has failed to cure the deficiency within 60 days of the date of the written notice or some longer period granted by the department.

1. 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;

2. In the event that the certificate was based on information that was false, inaccurate, or misleading; or

3. In the event that the conditions of the certificate have not been met or maintained.

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 regulations.

J. The issuance of the certificate shall not preclude the department from taking any action authorized by law for failure to meet a requirement of the program or for liability arising from future activities at the site that result in the release of contaminants.

K. The issuance of the certificate by the department shall not constitute a waiver of the Commonwealth's sovereign immunity unless otherwise provided by law.

9VAC20-160-120. Public notice.

A. The participant shall give public notice of the proposed voluntary remediation. The notice shall be made after the department accepts the Site Characterization site characterization component of the Voluntary Remediation 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 affected by contaminants as determined pursuant to the provisions of subdivision A 1 of 9VAC20-160-70; and

3. Publish a notice once in a newspaper of general circulation in the area affected by the voluntary action.

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 to 60 days. The contents of each public notice required pursuant to subsection B of this section shall include:

1. The name and address of the participant and the location of the proposed voluntary remediation;

2. A brief description of the general nature of the release, any remediation, and any proposed land use controls;

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.

E. The participant shall provide the following as documentation of public notice required in subdivision A 5 of 9VAC20-160-70:

1. A signed statement that the participant has sent a copy of the provided public notice as required by subsection B of this section;

2. A copy of the public notice and a list of names and addresses of all persons to whom the notice was sent; and

3. Copies of all written comments received during the public comment period, copies of acknowledgement acknowledgment letters, and copies of any response to comments, as well as an evaluation of the comment's impact on the planned or completed remedial action or actions.