Land Renewal in Virginia: Is It Safer Today?
Over the last five to ten years, the remediation and redevelopment of contaminated property, commonly called “brownfields,” has become more prevalent, in part due to both federal and state legislation which makes remediation of contaminated property easier, and provides additional liability protections for those undertaking cleanups. A “brownfield” is generally defined as “real property, the expansion, redevelopment, or reuse of which may be complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant.”
A state voluntary cleanup program, and new liability protections under federal and Virginia Brownfields Acts, are two of the major drivers of land renewal in Virginia.
What is the Voluntary Remediation Program?
The cornerstone of land renewal in Virginia is the Voluntary Remediation Program (“VRP”), administered by the Virginia Department of Environmental Quality (“VDEQ”). Through the VRP, an owner or buyer of contaminated real estate can clean up a site to risk based standards, put the property back into use, and not incur liability relating to the disclosed environmental contamination. The VRP is only available if no other regulatory scheme mandates cleanup.
The VRP allows owners or purchasers of contaminated property to voluntarily undertake cleanup of the property based on risk-based standards, rather than the more draconian cleanup standards found in many environmental laws. These risk-based standards take a more common sense approach, for the most part, and look at real threats to human health and the environment. A remediation strategy is suggested by the applicant, and then approved by the VDEQ. Remediation under the VRP can be significantly cheaper and take less time.
Upon completion of the VRP, the applicant is issued a Certificate which gives the owner or purchaser protection from liability regarding the contamination addressed in the VRP (but not unknown contamination).
What Statutory Liability Protections Are Available?
Both the federal and state statutes provide additional liability protections for certain owners and buyers in an effort to provide assurance that if a brownfield is redeveloped, liability for certain contamination will not be an issue at the time of acquisition or at any time in the future. These protections are not absolute, and do not apply to all environmental liabilities, but are helpful and significant nevertheless. The liability protections apply to three different types of parties: prospective purchasers, contiguous landowners, and innocent landowners. New regulations which go into effect in November 2006 set forth what must be done in order to qualify for the liability protections.
The VRP and the new statutory liability protections provide more, albeit limited, protection for purchasers of Brownfields than has existed in the past, and should aid in getting unused or underutilized properties back in productive use.