Tennessee Brownfield VOAP Overview

The Tennessee Brownfield Voluntary Cleanup Oversight and Assistance Program (VOAP) is a voluntary program by the Tennessee Department of Environment and Conservation (TDEC). It helps property owners address contamination and develop or redevelop affected properties. Through VOAP, owners can obtain a No Further Action letter from TDEC, confirming satisfactory resolution of contamination and providing liability coverage for past issues on the property.

Eligibility

Voluntary Party - If you did not contribute to contamination by releasing, generating, or transporting materials, you are eligible to negotiate a BVA (Brownfield Voluntary Agreement) to limit your liability.

Liable Party - If you did release, generate, or transport materials that resulted in contamination, you are eligible to collaborate with the VOAP.

Steps for the Program

Phase I Environmental Site Assessment

The initial step involves conducting a Phase I Environmental Site Assessment (ESA) to evaluate the potential presence of Recognized Environmental Conditions (RECs) on the Subject Property. A REC refers to the existence or probable existence of hazardous substances or petroleum products on, in, or at the Subject Property, resulting from a release into the environment or conditions that pose a significant risk of future release. This assessment is often a requirement by lenders during their due diligence process.

Limited Phase II Site Assessment

If the Phase I ESA identifies Recognized Environmental Conditions (RECs) on the Subject Property, the subsequent step is to conduct a limited Phase II Site Assessment. The purpose of the Limited Phase II assessment is to ascertain whether the RECs identified in the Phase I ESA have resulted in any releases on the Subject Property. Additionally, it aims to determine if the detected contaminants exceed the Tennessee Screening Levels for soil, groundwater, and/or soil vapor.

Phase 1 & 2 ESA in just eight days - drilling for soil samples.

Application to the Voluntary Program

If the Limited Phase II assessment reveals that the site has been impacted and the client seeks liability protection, the subsequent step is to apply for the VOAP Program. Depending on whether the party is a voluntary party (not responsible for the contamination) or a liable party (responsible for the contamination), the corresponding application is submitted. For voluntary parties, the Application for Voluntary Parties is utilized, while for liable parties, the Application for Liable Parties is submitted. In the case of liable parties, the state collaborates with the site to address the issue through a Consent Order.

No Additional Action Letter

For sites where an agreement is not required but a review of site conditions is preferred, a No Additional Action Letter can be issued. In such cases, a prospective purchaser (someone who did not cause contamination at the Subject Property) can submit technical documents to TDEC for review and concurrence. It's important to note that no liability protection will be provided by the state for any contamination found at the site. To receive this letter, an application to the VOAP must still be submitted by the Voluntary Party. In certain instances, the Division of Remediation (DoR) may request the placement of a Notice of Land Use Restriction (NLUR) on the property.

Costs for the VOAP Program

The VOAP program has several TDEC Division of Remediation (DoR) costs associated with reviewing work plans and analytical data as they progress through the program. It's important to note that these expenses are separate from the fees charged by environmental professionals, such as Lord and Winter, as well as any subsequent site investigation expenses.

Program Entry - $3,000
- This cost is for the review and processing of the application, and a prorated annual assessment charge of $2,000). This prorated annual assessment covers the first twelve months of program regulatory activity.
Site characterization - $2,500
- This cost includes time associated with the review of evaluation reports, specifically Phase I or Phase II ESAs or other similar documents. This cost may also be applied to include TDEC Staff Time associated with the review, comment, and work plan approval.
Remedial Action Work Plan - $3,000
- This cost includes time reviewing, modifying, or approving a submitted workplan, for overseeing the field implementation of the work plan, and for review of any associated reports, including the SMP.
Risk Assessment Review - $2,500
- This cost includes reviewing, modifying, and approving or disproving assessments of the risk posed by contamination in soil and groundwater in support of alternate cleanup levels.
Beneficial use Determination - $2,500
- This cost includes reviewing and approving or disapproving a petition for beneficial use determination submitted in accordance with the Division of Solid Waste Management’s policy (PN028). A beneficial use would allow impacted soil to be removed from a Site to be used as fill on another site. The site receiving the fill would then have a land use restriction placed on its deed.
Vapor intrusion Evaluation/Mitigation $2,500
- This cost includes the review and approval of a submitted work plan, field oversight of implementation of the work plan, review of associated vapor mitigation reports / as-built drawings, or other reports for vapor mitigation strategies.
Brownfield Voluntary Agreement or Consent order - $4,000
- This cost includes a review of BVA or consent order for the site in the VOAP program.
Notice of Land Use Restrictions - $1,000
- This cost involves reviewing the land use restrictions when they are to be recorded for a site in the VOAP program.
Institutional and Engineering Controls Compliance - $750
- This cost is charged once for each site when a NLUR is recorded. This cost covers DoR staff time for future EC/IC inspections).
Annual Assessment - $4,000
- Whenever a site remains in the program for more than a year, the voluntary party receives an Annual Assessment invoice to support the ongoing project. This cost may only be waived with the approval of the director.

Meeting with TDEC and Site Characterization

Once the application is submitted, Lord and Winter meets with the TDEC Brownfield Project Manager and a representative from the Tennessee Division of Solid Waste Management (DSWM) to discuss the site's sampling requirements. After agreeing on a sampling plan, a Site Characterization study is conducted. This study involves systematically sampling the Subject Property in a grid pattern, collecting groundwater, soil, and soil vapor samples. It helps identify areas of contaminated and non-contaminated soil, assesses the extent of groundwater contamination, and evaluates vapor intrusion risks for future structures. Soil volume estimates are then calculated based on the planned disposal of impacted materials at the site.

Soil Management Plan

The Soil Management Plan is a document that outlines compliance requirements for sampling, handling, and disposing of soil at the Subject Property. It includes a list of known contamination at the site and provides details on how impacted soil will be managed. Options for managing contaminated soil may include capping it in place with clean fill, excavating and disposing in a landfill, or using it for beneficial reuse.

Brownfield Voluntary Agreement / Notice of Land Use Restriction

The Brownfield Voluntary Agreement (BVA) is a legally binding agreement between the State of Tennessee and the Client. This agreement outlines the client's obligations to fully remediate any environmental conditions encountered at the Site. The primary objective of the BVA is to ensure that the identified environmental impacts and conditions do not pose any threat to human health or the environment.

A Notice of Land Use Restriction (NLUR) is a restriction placed on the deed of the Subject Property. It imposes limitations on soil movement, groundwater use, or building requirements based on the contamination present at the property. The NLUR will remain in effect indefinitely, serving as a long-term measure to safeguard against potential risks associated with the contamination at the Subject Property.

Public Notice

Within 30 days of signing the BVA, it is mandatory to post a Public Notice for the Site. This notice serves to inform the public that the Site has entered into a Brownfield Voluntary Agreement with the State of Tennessee. It includes essential information such as the list of contaminants found at the Subject Property, any land use restrictions, and contact details for the Division of Remediation Project Manager for any further inquiries.

To ensure maximum visibility, the Public Notice must be posted at the Subject Property itself, sent by mail to each adjoining landowner, and published in a public newspaper. By following these steps, the necessary information reaches all relevant parties and fosters transparency regarding the Site's status and associated remediation efforts.

Field Remediation

After signing and accepting the Brownfield Voluntary Agreement (BVA) and Notice of Land Use Restriction (NLUR) by the State of Tennessee, onsite remediation can begin. This may involve a combination of measures such as land use restrictions, engineering caps, vapor intrusion barriers, or the removal of impacted materials. State requirements mandate that photographic and written documentation be provided to demonstrate the implementation of these remedial activities at the site.

Post Remediation Sampling

After the completion of remedial activities, post-remediation sampling is necessary. In most cases, this involves sampling soil vapor to verify that the remedial actions have effectively eliminated any contamination exposure pathways that could potentially pose risks to human health or the environment. This sampling process aims to provide evidence that the site is now free from contamination and ensures that the necessary measures have been taken to mitigate any potential threats.

Closure Letter

Once TDEC confirms that the identified environmental impacts and conditions pose no threat to human health or the environment, they will issue a No Further Action Letter. This letter demonstrates to potential buyers and lenders that the Site's contamination has been satisfactorily addressed. If any future excavation is planned, TDEC should be contacted, and field work must be carried out according to the Site's Soil Management Plan (SMP).

Summary

The Brownfield Voluntary Cleanup Program is a cost-effective way to address environmental impacts and conditions that may pose risks to human health or the environment. Lenders often require this program during their due diligence process, and starting early in the development phase can help save costs. Lord and Winter has extensive experience in guiding clients through the VOAP Process in Nashville and Middle Tennessee. If you have a project that needs to go through the VOAP process, feel free to request a proposal from us.

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