The Brownfields/Voluntary Cleanup Program (BVCP) provides oversight for voluntary cleanup of environmental contamination by property owners and other interested parties. Environmental assessments of commercial and industrial properties are part of many real estate transactions and are often required by lenders and buyers as a result of the liability protection provisions of the federal Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), also known as Superfund. If contamination is found, property owners or other interested parties often want to not only clean up the property, but to also obtain a certificate of completion or “no further action letter” from the state, which provides a measure of environmental liability protection. Hazardous substance contamination is not always regulated under state and federal laws such as Superfund, the Resource Conservation and Recovery Act (RCRA) or state petroleum storage tank regulations. The contamination may be of a type or concentration not warranting enforcement action and may not require cleanup under existing regulations. The BVCP may be the only one with the authority to provide oversight of the cleanup and a certificate of completion. The program provides guidance so the cleanup satisfies any applicable state and federal regulations and also provides written assurance when the project is complete. Missouri’s Hazardous Substance Environmental Remediation Law (voluntary cleanup law) provides the program with the resources and the authority to provide project oversight and completion letters. Oversight costs are paid to the Department by the participant.
How the Program Works
The first step to enroll a site is to complete a Brownfields/Voluntary Cleanup Program (BVCP) Application MO 780-1712 and Consent for Access to Property Form MO 780-1713. The application packet must include a $200 application fee, both forms and all required documentation and enclosures listed on the BVCP application form including copies of all environmental site assessment reports (minimum: phase I environmental site assessment). A project manager will review the application and notify the applicant of acceptance or denial, usually within 30 days.
Letter of Agreement
If the site is accepted, the BVCP will send a letter of agreement to be signed by the applicant. The letter outlines the general responsibilities of the applicant and the Missouri Department of Natural Resources; and, requests an initial deposit to cover the program’s oversight costs, based on the BVCP’s estimate of required oversight time, not to exceed $5,000. The applicant signs and notarizes the letter of agreement and sends it to the program with the deposit. The application fee and the deposit will be drawn against for oversight costs including labor and travel expenses. If the application fees plus the deposit are depleted before the project is completed, the Department will bill the participant quarterly for the additional costs. If oversight costs are less than the initial deposit, the Department will refund the remainder at the conclusion of the project.
After receipt of the signed Letter of Agreement and initial deposit, the project manager reviews the site assessment reports and determines if further site assessment or remediation is necessary. Response time is limited by regulation to 180 days, but is usually within 60 days. If further assessment is needed, the participant prepares and submits a site assessment work plan for review. Upon written program approval of the plan, the additional site assessment is performed by the participant.
For sites enrolled in the BVCP, voluntary parties must use the most recent version of the departmental Missouri Risk Based Corrective Action (MRBCA) technical guidance. After the site is characterized, the participant completes a risk assessment according to the technical guidance to determine if risk management is necessary. If deemed necessary, the applicant submits a risk management plan for review and approval. The applicant performs the remediation or risk management activities according to the approved plan and schedule. Oversight can include document review, field observation and collecting samples. If the risk management activities last more than one calendar quarter, the participant provides quarterly progress reports. Brownfields/Voluntary Cleanup Program Quarterly Report MO 780-2101 is available for these progress reports.
Environmental Covenant and Long-Term Stewardship
For sites that leave contamination remaining at concentrations above unrestricted (i.e., single-family residential) land use target levels, an environmental covenant will need to be drafted and placed in the property’s chain-of-title. The covenant lists the restrictions on the land use that are necessary to protect the health of its occupants; no residential use, prohibiting the drilling of drinking water wells and maintaining an engineered cap over a contaminated area are a few examples. If a site requires a covenant, it will then enter the Department’s Long-Term Stewardship program following the issuance of the certificate of completion. A part of this stewardship is the periodic inspection of the property by the Department to ensure the restrictions of the covenant remain in place. To offset Department costs for these inspections, a one-time $15,000 fee is assessed prior to the issuance of a certificate of completion. Therefore, it is worthwhile to weigh the costs of remediating the site to unrestricted land use levels.
Certificate of Completion
When the cleanup is complete, a final report is submitted to the program for review. When the cleanup meets the established cleanup goals for the site or if the program determines no remedial action is required, the Department issues a certificate of completion. Through an agreement with the U.S. Environmental Protection Agency (EPA) Region 7, federal action will not be pursued by EPA with regard to the contamination addressed at the site, based on information only available at the time of determination, once a certificate of completion has been issued by the program.
Participants can withdraw from the BVCP at any time by providing the Department with written notification by certified mail. The Department can terminate participants from the program for causes outlined in the Missouri Revised Statutes section 260.569.3.
During the process, participants can appeal any Department actions to the Hazardous Waste Management Commission within 30 days of the action. Appeals must be submitted in writing to the Department by certified mail.
Entry into the program does not constitute an admission of any liability under state or federal law or a waiver of any defense against such liability. Acceptance of a site into the BVCP does not mean nor imply the Department has made a final determination regarding whether the site requires or warrants action under CERCLA, RCRA, the Missouri Hazardous Waste Management Law or other state or federal statutes. Acceptance into the program is based solely on information related to the site known to the Department at the time the application is submitted.
BVCP participants are responsible for complying with all applicable federal and state environmental laws and regulations. If you need assistance in determining the laws and regulations that apply to your site, please contact your area's regional office by calling 800-361-4827.