Title of Regulation: 9VAC20-160. Voluntary Remediation Regulations (amending 9VAC20-160-10, 9VAC20-160-30, 9VAC20-160-65, 9VAC20-160-70, 9VAC20-160-90, 9VAC20-160-100, 9VAC20-160-110, 9VAC20-160-120; adding 9VAC20-160-57; repealing 9VAC20-160-55, 9VAC20-160-60).

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

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: April 18, 2022.

Agency Contact: Meade Anderson, Voluntary Remediation Program and Brownfields Program Manager, Department of Environmental Quality, 1111 East Main Street, Suite 1400, P.O. Box 1105, Richmond, VA 23219, telephone (804) 659-1341, FAX (804) 698-4178, or email j.meade.anderson@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 federal or state law 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.

Purpose: The goal of the Voluntary Remediation Program (VRP) is to facilitate the remediation of sites where remediation is not clearly mandated by the Comprehensive Environmental Response, Compensation and Liability Act (42 USC § 9601 et seq.) (CERCLA), the Resource Conservation and Recovery Act (42 USC § 6901 et seq.) (RCRA), the Virginia Waste Management Act (§ 10.1-1400 et seq. of the Code of Virginia), the State Water Control Law (§ 62.1-44.2 et seq. of the Code of Virginia), or other applicable authority. The remediation of sites protects the health, safety, and welfare of citizens as well as resolving environmental liability issues while facilitating redevelopment of sites and economic development. Currently, sites enrolled prior to July 1, 2014, are not assessed annual fees for their continued participation in the VRP. Some of these sites have been enrolled in the VRP for over 23 years, and agency staff are continuing to expend time to oversee the activities of the site. Agency personnel costs for some individual sites are estimated to have cost the agency as much as $150,000. The purpose of this amendment is to require all sites enrolled in the program to pay an annual registration fee to defray a portion of the department's costs of the program. VRP registration fees are proposed to increase and be annually adjusted for inflation. Additional proposed amendments include revisions to the definitions, clarifications of public notice requirements, and clarification to the language of the eligibility and waiver requirements to encourage additional sites participation in the program.

Substance: Sites are eligible for participation in the program if remediation has not been clearly mandated by the U.S. Environmental Protection Agency, the department, or a court pursuant to the CERCLA, the RCRA, the Virginia Waste Management Act, the Virginia State Water Control Law, or other applicable statutory or common law or jurisdiction of the statutes listed in clause has been waived. The agency proposes requiring all sites continuing to participate in the program to pay annual fees. The agency proposes raising the registration fee amount and adjusting the fees annually for inflation. The annual registration fee will defray a portion of the department's costs of the program. Additional proposed amendments include revisions to the definitions, clarifications of public notice requirements, and clarification to the language of the eligibility and waiver requirements to encourage additional sites participation in the program.

Issues: This regulation is a voluntary program and has no negative economic impact on small businesses and poses no disadvantage to private citizens, the regulated community, or to the Commonwealth. The VRP provides the opportunity for reasonable cleanup goals and protects human health and the environment. These cleanups facilitate the sale and reuse of industrial and commercial properties, provide economic benefits for the buyer and seller, and reduce green space development. Communities in the Commonwealth benefit when these projects are completed. The cleanup of a contaminated site affects surrounding properties by increasing property values, tax revenues, employment opportunities, and community pride. The citizens, businesses, and local governments of the Commonwealth all derive benefits from the VRP.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Waste Management Board (Board) proposes to amend the fee structure in the voluntary remediation program to make it financially self-sufficient.

Background. The voluntary remediation program (VRP) facilitates the cleanup of contaminated sites that might not otherwise occur. These are sites where remediation is not clearly mandated by the Comprehensive Environmental Response, Compensation and Liability Act, the Resource Conservation and Recovery Act, the Virginia Waste Management Act, State Water Control Law or other applicable authority. The program establishes procedures for owners or operators to voluntarily remedy contamination at their sites. When remediation is satisfactorily completed, the Department of Environmental Quality (DEQ) issues a "Certification of Satisfactory Completion of Remediation" or "certificate". This certificate provides immunity from enforcement of Virginia environmental laws. The immunity granted by the certificate is limited to the known releases described in the certificate and is conditional upon satisfactory performance by the participant of all obligations required by DEQ under the program.

Site remediation protects the health, safety, and welfare of citizens and resolves environmental liability issues. As a result, DEQ notes that remediation facilitates the sale, reuse or redevelopment of affected sites, thereby providing economic benefits for the buyer and seller and reducing development of undeveloped ("green") space. Communities in the Commonwealth benefit because the cleanup of a contaminated site increases the value of surrounding properties, which in turn increases tax revenues, employment opportunities, and community pride. The citizens, businesses, and local governments of the Commonwealth all derive benefits from the program.

DEQ reports that the program's administrative costs are approximately $1.4 million annually. Historically, federal funding has provided the bulk of the fiscal support for program operations. However, federal funding of Virginia's program has been steadily declining since 2002 because of the increased participation of other states, territories, and tribes in this program. Approximately $50 million was set aside nationwide in 2002 under the federal Brownfields legislation. This amount has not changed, but the number of recipients, particularly the tribes, has increased over time which decreased the amount available to each jurisdiction. The most Virginia received from the federal Brownfields grant was $1.18 million early in the program however by 2019, this amount had steadily decreased down to $486,000.

This regulation provides for the collection of registration fees. The fee structure was last amended in 2014, in response to Chapter 366 of the 2014 Acts of Assembly,¹ which amended the statute governing the VRP.² As directed by statute, the Board removed a cap on registration fees that applied to sites that enrolled on or after July 1, 2014.³ This cap had limited the one-time registration fee to 1% of the total cost of remediation or a maximum of $5,000, whichever was less. At the end of the project, the program participant would provide DEQ with the total costs of remediation for the project. The registration fee would then be calculated based on 1% of the total cost of remediation and would be compared to the registration fee paid to date. Any overpayment of the registration fee would be refunded or in the case of an underpayment, the participant would pay the additional required registration fee, not to exceed the statutory maximum ($5,000).

In addition to removing the registration fee cap for all sites that enrolled on or after July 1, 2014, the 2014 amendments put in place a three phase registration fee structure. Phase I is an application registration fee, Phase II is an enrollment registration fee, and Phase III is an annual registration fee. According to DEQ, despite the additional fees authorized in 2014, the fee structure covers only a fraction of the program's entire administrative costs. Moreover, the lack of annual registration fees for sites that registered before July 1, 2014, is problematic because DEQ continues to perform work on the pre-July 2014 sites without receiving additional funds from those sites. As a result, the program has been incurring costs for the continued oversight of sites that enrolled prior to July 1, 2014, without receiving any annual revenue for these sites. DEQ has been heavily relying on federal funding to cover the funding shortage. DEQ also notes that even as federal funding has steadily declined, more sites have enrolled in the program. This has exacerbated the funding shortage, which DEQ states has reached an unsustainable level. Evaluations have determined an average cost per site to be relatively equal to the proposed Phase III fee.

This action primarily proposes to make the voluntary remediation program financially self-sufficient. The proposal would require all sites continuing to participate in the program, regardless of their enrollment date, to pay annual registration fees. The Board would also adjust the fees so the program has enough resources to continue its operations.

Estimated Benefits and Costs. The voluntary remediation program allows property owners to voluntarily clean up and obtain the "Certification of Satisfactory Completion of Remediation" which in turn provides immunity from enforcement unless new issues are discovered. Historically, program participants have been private property owners, real estate investors and developers, governmental organizations and corporations wishing to divest property and resolve liability. For example, the owner of a strip mall may wish to redevelop a store front that was previously used to operate a dry cleaner and now desires to run a day care center. In order to cleanup any residual chemicals such as the dry cleaning solvent, tetrachloroethylene released to the environment, and thereby obtain immunity from enforcement actions under Virginia's environmental laws, the owner may choose to participate in the program.

While the project owners pay for the costs of the remediation itself, the program incurs administrative costs in terms of personnel, travel, and oversight of remediation of the sites. DEQ can withhold the certificate of completion for a project until all fees are paid, but has no recourse for recouping fees if a pre-2014 participant drops out of the program before his project is completed or has no interest in obtaining the certificate. In addition, the current fees cover only a fraction of the actual administrative costs. The costs to DEQ for individual pre-2014 sites are estimated to be between $20,000 and $150,000. DEQ has had some projects where participants have only paid several hundred dollars when the actual program administration costs were much more than that. As an example, a site enrolled in the year 2000 and paid a registration fee of $27.05 and this site is still enrolled in the program with minimal progress being made towards completion. Numerous sites paid a registration fee of $1,000 or less and have remained in the program for years.

Currently, three types of registration fees are assessed to cover administrative costs: Phase I (application registration fee), Phase II (enrollment registration fee), and Phase III (annual registration fee). Phase I requires the submission of an application and the fee and, DEQ staff would review submitted materials, agency records and may visit the site. Once DEQ determines the site is eligible for participation, the owner is charged a Phase II or enrollment fee and then submits a voluntary remediation report, which consists of a site characterization report, a risk assessment, a remedial action plan, documentation of public notice and a demonstration of completion. The owner is responsible, at his own cost, to remediate environmental hazards on the property. For every subsequent year the property participates in the program beyond the first calendar year, the owner is charged a Phase III annual registration fee. Once remediation is completed and the certificate is issued then no further fees are incurred.

According to DEQ, there are 143 enrolled sites. All of these sites have paid a registration fee to participate in the program. Seventy-two of the sites were enrolled prior to July 1, 2014, and were assessed only a single registration fee of one percent of the remediation costs, not to exceed $5,000; these sites are not currently assessed annual registration fees for their continued participation in the program. Some of these 72 sites have been enrolled in the program for over 23 years. Of the 71 sites enrolled on or after July 1, 2014, 63 have not completed the remediation and remain enrolled and are assessed an annual registration fee of $4,500 for their continued participation after the first calendar year. Administrative costs that exceed the fees collected are paid from federal funds.

Under the current fee structure, program participants do not share the full administrative costs of the program operation, but stand to directly gain from it. This may create a free-rider problem and some adverse incentives. This is particularly the case for the pre-2014 site owners who are no longer interested in remediating the site in a timely manner, but have no incentives to leave the program because they are not assessed any annual registration fees. The funding shortage is worsened by these incentives. Since federal funding continues to be reduced, this presents an unsustainable path for the program as funding is divided among more recipients.

According to DEQ, most entities that participate in this program are in the process of trying to sell or develop their land and take part in the program in hopes of increasing the value of their holding by limiting the environmental liabilities their property may carry through the certificate. Simply, the participants stand to directly gain from participation in the program.

An economically efficient allocation of limited resources (i.e. limited administrative funding for the program) calls for each participant to pay for the full administrative costs of their clean up. The Board proposes to adjust the fees to make the program financially self-sustainable by the fees assessed. Once the new fees go into effect, DEQ plans to distribute a portion of the federal funding it receives under this program to the localities to assist with the environmental assessment of properties. The following table shows the estimated current and the proposed changes in the fee structure by site type. The proposed fees also include an annual adjustment for inflation according to the U.S. Department of Labor Consumer Price Index for all-urban consumers.⁴

As a result of the proposed fee changes for the pre-2014 projects, some project participants, particularly participants who remain dormant before project completion, would either chose to pay the additional fees or terminate from the program. Such an impact would improve the economic allocation of the program's administrative resources by either requiring dormant participants to pay for the costs they may be unnecessarily imposing on the program or eliminate such unnecessary costs if they terminate from the program. DEQ estimates that of the 72 sites that entered the program prior to July 1, 2014, up to 22 may terminate from the program rather than pay the proposed annual registration fee of $10,500.

The proposed fee increase for post-2014 projects would raise participation costs, encourage speedy project completion, and free up federal funds to be used within the grant requirements to enhance the state programs with a portion to be utilized for environmental assessments in localities. In general, higher participation costs would be expected to discourage voluntary remediation activities; however, DEQ notes that the increase in fees would be relatively small compared to overall project costs and economic gains an owner may expect from his remediated property. Thus, this potential negative impact would likely be small. In addition, participation in the program is voluntary. We can reliably infer that by enrolling in the program, and maintaining enrollment, a project owner reveals that the expected economic gains exceed the likely costs. DEQ also expects about 22 new sites to register for the program annually. The amount that would likely be available to be used within the grant requirements to enhance the state programs with a portion available to be utilized for environmental assessments in localities which would be approximately $486,000 based on 2019 data, but that amount would likely be smaller in the future as more and more jurisdictions participate nationally in the federal Brownfields program and the amount of the federal grant decreases.

Additional proposed amendments include revisions to the definitions, clarification of public notice requirements, and clarification to the language of the eligibility and waiver requirements. These amendments will not change the current practices and are unlikely to create monetary costs or benefits. However, to the extent these clarifying changes streamline processes and/or make these regulations easier to understand, affected entities would likely benefit.

Businesses and Other Entities Affected. The proposed amendments apply to site owners voluntarily participating in the program. Currently, 143 sites are enrolled.⁵ Approximately, 72 site owners who enrolled in the program prior to July 1, 2014, would be subject to the same annual registration fees as the 73 sites that are enrolled after this date.

As noted above, the proposals to amend the fee structure would increase costs for site owners, but also make the program financially self-sufficient. An adverse economic impact⁶ on site owners is indicated.

Small Businesses⁷ Affected.

Types and Estimated Number of Small Businesses Affected. DEQ estimates that of the 143 of sites currently participating in the program 100 are small businesses.

Costs and Other Effects. The proposed changes introduce the same fees to the sites owned by small businesses.

Alternative Method that Minimizes Adverse Impact. There does not appear to be a clear alternative method that both reduce the adverse impact and meet the intended policy goals.

Localities⁸ Affected.⁹ Once this program becomes financially self-sufficient with the proposed fee revenues, DEQ plans to use federal funds within the grant requirements to enhance the state programs with a portion to be utilized for environmental assessments within the localities. In 2019, this amount was $486,000, but the amount has been steadily decreasing and will likely continue to decrease. However, this regulation contains no language about such a distribution. Thus, the proposed amendments do not introduce costs or benefits for local governments, nor do they particularly affect any locality more than others. Accordingly, no additional funds would be required. Any potential benefit to localities depends on how DEQ would implement the planned brownfield assistance to these organizations.

Projected Impact on Employment. The proposed amendments do not appear to affect total employment.

Effects on the Use and Value of Private Property. The proposed fee structure is expected to improve economic allocation of program's administrative costs and align site owner's incentives with the administrative costs the sites generate for DEQ. To the extent such effects speed up existing remediation programs and redirect DEQs existing administrative resources from dormant sites to active sites, we may see an increase in the remediated land areas or properties which in turn would add to the use and value of such properties and potentially reduce real estate development costs.

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¹See https://lis.virginia.gov/cgi-bin/legp604.exe?141+sum+SB431

²See https://law.lis.virginia.gov/vacode/title10.1/chapter12.1/section10.1-1232/

³See https://townhall.virginia.gov/l/ViewStage.cfm?stageid=7004

⁴This CPI value changed from 254.943 to 255.548 from April 2019 to April 2020 representing a 0.24% increase. The CPI can also decrease and cause a reduction in the fees.

⁵Data source: DEQ

⁶Adverse impact is indicated if there is any increase in net cost or reduction in net revenue for any entity, even if the benefits exceed the costs for all entities combined.

⁷Pursuant 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."

⁸"Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

⁹§ 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

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 proposed amendments require all sites continuing to participate in the Voluntary Remediation Program to pay annual fees. The agency proposes raising the registration fee amount and adjusting the fees annually for inflation to defray a portion of the department's costs of the program. Additional proposed amendments include revisions to the definitions, clarifications of public notice requirements, and clarification to the language of the eligibility and waiver requirements.

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 by the applicant, site owner, or participant 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 a known or likely human carcinogen or a probable or possible human carcinogen under an 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 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.

"Covenant" means a servitude that imposes land use controls.

"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 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" 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.

"Hydraulic gradient" means the change in total hydraulic head, measured at two or more points within an underground layer of water-bearing permeable materials, divided by the distance over which the change occurs.

"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 deed, land use, and water use restrictions and environmental covenants.

"Land use controls" means legal, contractual, or physical restrictions on the use of, or access to, a site property to reduce or eliminate potential for exposure to contaminants or prevent activities that could interfere with the effectiveness of remediation. Land use controls include 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.

"Risk management" means the process of identifying, evaluating, and selecting actions to reduce risk to human health and the environment.

"Site" means any property or portion thereof, as agreed to and defined by the participant and the department, which that 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 site 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 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 applicant or another person has performed remediation of a release is potentially may be eligible for the program (i) if the actions can be documented in a way 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 A site containing 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 A site where an applicant raises establishes a genuine issue based on documented evidence as to the legal or factual 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 for which remediation has been clearly mandated;

b. It is not clear that whether the release occurred after is subject to the relevant regulations became effective listed in subsection D of this section; or

c. It is not clear that whether the release occurred at a regulated unit is a new release or an existing release.

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. Any such waiver is conditioned on and subject to the applicant enrolling in and completing the program and obtaining a certificate:

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 is one at which the release occurred (i) one or more of the following exists:

a. The release is subject to the Virginia Hazardous Waste Management Regulations (9VAC20-60) (VHWMR), is;

b. Is a permitted facility, is;

c. Is applying for or should have applied for a permit, is under; or

d. 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 is eligible to participate in the program provided that if such participation complies with the substantive requirements of the applicable regulations is deemed acceptable under a memorandum of agreement between the department and the U.S. Environmental Protection Agency and such participation otherwise complies with the substantive requirements of the program.

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

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 $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.

9VAC20-160-57. Transition to new fee structure for participants that paid registration fees for applications received prior to July 1, 2014.

A. In accordance with § 10.1-1232 A 5 of the Code of Virginia, applications submitted prior to July 1, 2014, were required to submit a registration fee of at least 1.0% of the actual cost of remediation at the site, not to exceed $5,000. Registration fees submitted by participants prior to July 1, 2014, are held in an account until a certificate is issued. Participants that submitted a registration fee prior to July 1, 2014, shall notify the department by (insert date 60 days after effective date of the regulation) which of the following options they select:

1. Continue participation in the program.

a. If the participant remitted the maximum $5,000 registration fee and an overpayment has been made, the participant shall provide the department with the actual costs of remediation by (insert date 60 days after the effective date of the regulation). The department shall refund any balance owed to the participant after receiving that actual cost of remediation. If no remedial cost summary is provided to the department by (insert date 60 days after the effective date of this regulation), the participant will have waived the right to a refund; or

b. If the participant did not remit the maximum $5,000 registration fee, the participant shall provide the department with the actual total cost of remediation by (insert date 60 days after the effective date of this regulation). The department shall calculate any balance adjustment to be made to the registration fee. The department shall refund any balance owed to the participant after receiving that actual cost of remediation. Any negative balance owed to the department shall be paid by the participant within 60 days of notification by the department to continue to participate in the program. Continued participation in the program means the participant waives the right to a refund.

2. Terminate participation in the program. The participant shall notify the department they are terminating participation in the program. No portion of the registration fee will be refunded if participation is terminated pursuant to 9VAC20-160-100.

B. Participants that submitted applications prior to July 1, 2014, that have not been issued a certificate are required to submit phase 3 registration fees in accordance with 9VAC20-160-65 D to continue participation in the program.

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

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 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 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 The registration fee shall be remitted in three phases as required by this section.

1. Registration fees shall be adjusted annually on November 1 by the change in the Consumer Price Index. The annual adjustment of the registration fees shall be based upon the annual registration fee amount for the preceding calendar year and the change in the CPI value published by the U.S. Department of Labor for all-urban consumers over the 12-month period ending on April 30 of the calendar year preceding the calendar year in which the registration fee is assessed.

2. The Consumer Price Index for all-urban consumers is published by the U.S. Department of Labor, Bureau of Labor Statistics, U.S. All items, CUUR0000SA0.

3. Registration fees shall be rounded to the nearest dollar.

4. All fees included in this regulation shall be adjusted annually using the process described in subdivisions 1, 2, and 3 of this subsection.

5. Registration fees shall be rounded to the nearest dollar.

6. All fees included in this chapter shall be adjusted annually using the process described in subdivisions 1, 2, and 3 of this subsection.

B. Phase 1 of the registration fee shall be an application fee in the amount of $2,000. The initial phase 1 registration fee is $3,000.

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. The initial phase 2 registration fee is $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 The initial phase 3 registration fee is $10,500. Any site (i) that 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, shall be assessed 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.

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 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. b. 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. Sites participating in the program that submitted an application to the department prior to July 1, 2014, are required to submit phase 3 annual registration fees assessed as of November 1 to participate in the program.

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 payment in the amount of one half of the phase 3 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, a request to change the participant for such site received by the department 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 plan, a demonstration of completion, and documentation of public notice. Each separate component of the Voluntary Remediation Report shall be submitted as listed in this subsection:

1. The site characterization component shall provide an understanding of the site conditions, including the identification and description of each area known or suspected areas of concern (or source) potential sources of contaminants); a determination of the sources; the nature and extent of releases to all media, including a map maps of hydraulic gradient and groundwater flow direction; the onsite and offsite vertical and horizontal extent extents of contaminants present at concentrations above levels consistent with 9VAC20-160-90; and a discussion of the potential 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; and recommended risk management activities or a demonstration that no action is necessary. The risk assessment shall include an uncertainty analysis that discusses any remaining risk.

3. The remedial action plan component shall propose the specific remedial 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 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 exposure pathways 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 land use controls that are proposed for the certificate.

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

e. 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 this chapter have been in compliance with 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 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 the name or address of the participant, the authorized agent, or the site owner.

9VAC20-160-90. Remediation levels.

A. The participant, with the concurrence of the department, shall consider impacts to human health and the environment in establishing remediation levels.

B. Remediation levels based on human health shall be developed after appropriate site characterization data have been gathered as provided in 9VAC20-160-70. Remediation levels may be derived from the three-tiered approach provided in this subsection. Any tier or combination of tiers may be applied to establish remediation levels for contaminants present at a given site.

1. Tier I remediation levels are based on media backgrounds levels. These background levels shall be determined from a portion of the property or a nearby property or other areas as approved by the department that have not been impacted by the contaminants of concern.

2. Tier II remediation levels are derived assuming that there will be no restrictions on the use of groundwater, surface water, and soil on the site.

a. Tier II groundwater remediation levels shall be based on the most beneficial use of groundwater. The most beneficial use of groundwater is for a potable water source, unless demonstrated otherwise by the participant and accepted by the department. Therefore, they shall be based on (i) federal maximum contaminant levels (MCLs) or action levels for lead and copper as established by the Safe Drinking Water Act (42 USC § 300 (f)) and the National Primary Drinking Water Regulations (40 CFR Part 141) or, in the absence of a MCL, (ii) tap water values derived using the methodology provided in the Regional Screening Level Table, Region III, VI, and IX, United States Environmental Protection Agency, December 2009, using an acceptable individual carcinogenic risk of 1 X 10^-5 and an individual noncarcinogen hazard quotient of 0.1.

b. Tier II soil remediation levels shall be determined as the lower of the ingestion or cross-media transfer values, according to the following:

(1) For ingestion, values derived using the methodology provided in the Regional Screening Level Table, Region III, VI, and IX, United States Environmental Protection Agency, December 2009.

(a) For carcinogens, the soil ingestion concentration for each contaminant, reflecting an individual upper-bound lifetime cancer risk of 1 X 10^-5.

(b) For noncarcinogens, 0.1 of the soil ingestion concentration, to account for multiple systemic toxicants at the site. For sites where there are fewer than 10 contaminants exceeding 0.1 of the soil ingestion concentration, the soil ingestion concentration may be divided by the number of contaminants such that the resulting hazard index does not exceed 1.0.

(2) For cross-media transfer, values derived from the USEPA Soil Screening Guidance (OSWER, July 1996, Document 9355.4-23, EPA/540/R-96/018) and USEPA Supplemental Guidance for Developing Soil Screening Levels for Superfund Sites (OSWER, December 2002, Document 9355.4-24) shall be used as follows:

(a) The soil screening level for transfer to groundwater, with adjustment to a hazard quotient of 0.1 for noncarcinogens, if the value is not based on a MCL; or

(b) The soil screening level for transfer to air, with adjustment to a hazard quotient of 0.1 for noncarcinogens and a risk level of 1 X 10^-5 for carcinogens, using default residential exposure assumptions.

(c) For noncarcinogens, for sites where there are fewer than 10 contaminants exceeding 0.1 of the soil screening level, the soil screening level may be divided by the number of contaminants such that the resulting hazard index does not exceed 1.0.

(3) Values derived under subdivisions 2 b (1) and (2) of this subsection may be adjusted to allow for updates in approved toxicity factors as necessary.

c. Tier II remediation levels for surface water shall be based on the Virginia Water Quality Standards (WQS) as established by the State Water Control Board (9VAC25-260), according to the following:

(1) The chronic aquatic life criteria shall be compared to the appropriate human health criteria and the lower of the two values selected as the Tier II remediation level.

(2) For contaminants that do not have a Virginia WQS, the federal Water Quality Criteria (WQC) may be used if available. The chronic federal criterion continuous concentration (CCC) for aquatic life shall be compared to the appropriate human health based criteria and the lower of the two values selected as the Tier II remediation level.

(3) If neither a Virginia WQS nor a federal WQC is available for a particular contaminant detected in surface water, the participant should perform a literature search to determine if alternative values are available. If alternative values are not available, the detected contaminants shall be evaluated through a site-specific risk assessment.

3. Tier III remediation levels are based upon site-specific assumptions about current and potential exposure scenarios for the population or populations of concern and characteristics of the affected media and can be based upon a site-specific risk assessment and risk management. Land-use controls can be considered.

a. In developing Tier III remediation levels, and unless the participant proposes other guidance an alternative methodology that is acceptable to the department, the participant shall use, for all media and exposure routes, the methodology specified in Risk Assessment Guidance for Superfund, Volume 1, Human Health Evaluation Manual (Part A), Interim Final, USEPA, December 1989 (EPA/540/1-89/002) and (Part B, Development of Preliminary Remediation Goals) Interim, USEPA, December 1991 (Publication 9285.7-01B) with modifications as appropriate to allow for site-specific conditions. The participant may use other methodologies approved by the department.

b. For a site with carcinogenic contaminants, the remediation goal for individual carcinogenic contaminants shall be an incremental upper-bound lifetime cancer risk of 1 X 10^-5. The remediation levels for the site shall not result in an incremental upper-bound lifetime cancer risk exceeding 1 X 10^-4 considering multiple contaminants and multiple exposure pathways, unless the use of a MCL for groundwater that has been promulgated under 42 USC § 300g-1 of the Safe Drinking Water Act and the National Primary Drinking Water Regulations (40 CFR Part 141) results in a cumulative risk greater than 1 X 10^-4.

c. For noncarcinogens, the hazard index shall not exceed a combined value of 1.0.

d. In setting remediation levels, the department may consider risk assessment methodologies approved by another regulatory agency and current at the time of the Voluntary Remediation Program site characterization.

C. The participant shall determine if ecological receptors are present at the site or in the vicinity of the site and if they are impacted by releases from the site.

1. At sites where ecological receptors are of concern and there are complete exposure pathways, the participant shall perform a screening level ecological evaluation demonstrating that remediation levels developed under the three-tiered approach described in this section are also protective of such ecological receptors.

2. For sites where a screening level ecological evaluation has shown that there is a potential for ecological risks, the participant shall perform an ecological risk assessment demonstrating that remediation levels developed under the three-tiered approach described in this section are also protective of ecological receptors. If the remediation levels developed for human health are not protective of ecological receptors, the remediation levels shall be adjusted accordingly.

9VAC20-160-100. Termination.

A. Participation in the program shall be terminated:

1. When evaluation of new information obtained during participation in the program results in a determination by the department that the site is ineligible or that a participant has taken an action to render the site ineligible for participation in the program. If such a determination is made, the department shall notify the participant that participation has been terminated and provide an explanation of the reasons for the determination. Within 30 days, the participant may submit additional information, or accept the department's determination.

2. Upon 30 days written notice of withdrawal by the participant.

3. Upon the participant's failure to make reasonable progress towards completion of the program, as determined by the department, and the participant's subsequent failure to respond appropriately within 30 days to the department's written request for an update of program-related activities and a projected timeline to fulfill the program requirements.

4. Upon failure to submit required registration fees in accordance with 9VAC20-160-55 (for applications received prior to January 29, 2014), 9VAC20-160-60 (for applications received on or after January 29, 2014, and prior to July 1, 2014), 9VAC20-160-57 or 9VAC20-160-65 (for applications received on or after July 1, 2014). The department shall mail notification of the department's intent to terminate participation in the program to the participant at least 30 days prior to terminating the site's participation in the program. If the participant fails to remit the required fee within 30 days of the date of such notification, the site's participation in the program shall be terminated. The department reserves the right to collect unpaid fees due to the department pursuant to 9VAC20-160-57 and 9VAC20-160-65.

B. The department shall be entitled to receive and use, upon request, copies of any and all information developed by or on behalf of the participant as a result of work performed pursuant to participation in the program, after application has been made to the program whether the program is satisfactorily completed or terminated.

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 final remedial action plan as applicable have been completed implemented;

4. All applicable requirements of 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, 9VAC20-160-57 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 covenant. 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 covenant 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:

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 voluntary remediation. The notice shall be made after the department accepts the 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 or prior to issuing an amendment to the certificate that has additional remedial work or changes in land use controls. 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 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 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.