West Virginia’s Land
Stewardship Program
Gale Lea Rubrecht
West Virginia has taken a leadership role in ensuring the
long-term viability of risk-based cleanups. In 2009, the West
Virginia Department of Environmental Protection (WVDEP)
launched an initiative to establish a program for the long-term
safeguarding of remediated sites using institutional controls
(ICs) and engineering controls (ECs) (collectively IECs). As
envisioned by the WVDEP, the program, known as the Voluntary Land Stewardship Program (VLSP), will provide a “comprehensive and integrated system for implementing, monitoring, maintaining, tracking, and protecting IECs associated with
postclosure obligations of IEC sites.” WV Institutional Controls
Focus Group Interim Report at 21, available at www.dep.wv.gov/
dlr/oer/voluntarymain/Pages/default.aspx. The goal is to ensure
that risk-based cleanups, relying upon IECs to achieve the
cleanup remedy, remain protective of human health and the
environment. A unique aspect of this VLSP is that it is a nonprofit entity created or solicited by responsible parties to provide
services to meet the postclosure obligations of IEC sites.
IECs are used in West Virginia and elsewhere to meet applicable risk-based cleanup standards. ICs are legal or contractual restrictions on property use that remain effective after remediation
is completed and include land-use and water restrictions. ECs
contain or control the migration of contaminants through the
environment. Examples include slurry walls, liner systems, caps,
leachate collection systems, and groundwater recovery trenches.
West Virginia has various mechanisms for maintaining and
enforcing IECs. The state’s voluntary cleanup program provides
for reopeners; that is, the remediation agreement will be reopened
and revised if, for example, the level of risk is significantly increased beyond the level of established protection at the site due
to a change in land use. W. V. Code Ann. § 22-22-15(c) (West
2002). Criminal penalties may also be imposed for knowingly
converting a nonresidential property to residential property. Id.
§ 22-22-14(b). Additionally, West Virginia statutes governing
hazardous waste management and underground storage tanks
require deed and lease notifications. West Virginia has adopted
the Uniform Environmental Covenant Act (UECA), id. §§ 2222B-1 et seq. (West 2010 Supp.), which provides an environmental covenant to create and enforce IECs under state property law.
The state amended its Underground Facility Damage Prevention
Act, id. §§ 24C-1-1 et seq. (West 2009 Supp.), which established
West Virginia’s one-call system, to include information about sites
with IECs. The system, known as “Miss Utility,” is an information exchange between owners/operators of underground utilities
or pipelines and anyone planning to dig or excavate on a site.
Further, the WVDEP maintains on its website a list of sites with
IECs under the state’s voluntary cleanup program. West Virginia
also participated in the U.S. Environmental Protection Agency’s
(USEPA’s) pilot program to create an IECs database. Notwith-
standing these mechanisms, the WVDEP believes more is needed
for maintaining and enforcing IECs long term.
The increasing number of IECs at hundreds of sites in West
Virginia has imposed a drain on limited agency resources.
Additional funding from the legislature to monitor, maintain,
and enforce IECs is unlikely, and the WVDEP believes that its
limited resources would be better utilized if focused on sites in
the state’s voluntary cleanup program and other environmental remediation programs. The WVDEP views the VLSP as a
way to ensure the historical continuity of the agency’s institutional knowledge of remediated sites in West Virginia.
Using a $100,000 grant from USEPA Region 3, WVDEP
established the ICs Focus and Work Groups in February 2009.
The Focus Group serves as a sounding board for the WVDEP
regarding the feasibility of a public-private land stewardship
program to address long-term maintenance of IECs and includes
representatives from West Virginia trade associations, the State
Development Office, industry, USEPA, and the Center for Business and Economic Research at Marshall University. WVDEP’s
contractor, Arcadis US, and the West Virginia Southern
Brownfields Assistance Center at Marshall University form the
Work Group that is leading the private-public partnership.
The WVDEP tasked the Focus and Work Groups with ten assignments: (1) evaluate best practices of existing federal and state
IEC programs; (2) identify the range of services for the VLSP; (3)
evaluate how a VLSP would interrelate with existing programs
such as UECA and Miss Utility; (4) evaluate risks and benefits of
a VLSP; (5) define the organizational structure and initial group
of participating sites; (6) conduct financial analysis to determine
costs of services and long-term program viability; (7) analyze
the need for legislation; (8) create a uniform system for land
records with regard to properties in the program; (9) develop a
method for the state to take title to properties in the VLSP where
economic development interests will be served; and (10) ensure
the long-term financial viability of the VLSP entity. To date, the
Focus and Work Groups have addressed the first five tasks.
At the 2010 West Virginia Brownfields Conference, the
Focus Group released its report setting forth its interim recommendations for establishing a state VLSP. The report includes
a survey of federal and state efforts to develop land stewardship
programs and identifies twelve best practices that facilitate
property transfer and reuse of remediated sites without compromising risk-based cleanup: (1) government controls, such as
state laws, ordinances, and building permits; (2) administrative
orders, consent decrees, and permits; (3) proprietary controls
such as land-use and water restrictions and continuing right-ofway easements to inspect, monitor, and maintain IECs; (4) deed
notices; (5) UECA; (6) environmental registries containing
information about IEC sites; (7) public access to environmental
registries; (8) one-call systems; (9) government audits; (10)
third-party inspections/certifications; (11) reopeners; and (12)
fees related to long-term stewardship of IECs.
The report concludes that none of these land stewardship
practices standing alone is sufficient to preserve implementation of IECs on remediated sites. For example, administrative
orders, consent decrees, and permits do not “run with the land”
Published in Natural Resources & Environment Volume 26, Number 1, Summer 2011. © 2011 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any
portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
so as to bind future owners to restrictions or requirements, and,
while proprietary controls may run with the land to bind future
landowners, they do not involve participation by the environmental regulatory agency. Likewise, deed notices are generally
not enforceable by the regulatory agency or the remediator.
The report identifies the scope of services to be offered and the
structure of the VLSP. Services would include tracking, inspecting, maintaining, and notifying. A participating party would
select services on an individual basis or a comprehensive package
of services. An entity that would seek nonprofit status under section 501(c)(3) of the Internal Revenue Code would administer
the services. The responsibilities of the VSLP entity for such
services would be set forth in a document called the Institutional
and Engineering Control Implementation Plan (IECIP).
Specific examples of services offered would include filing
the appropriate documents to establish and maintain any ICs
or updating such documents when the site is leased, conveyed,
subdivided, or when remediation occurs. The VLSP entity could
also conduct physical inspections of IEC sites, including inspecting
or monitoring site activities and any ECs. A third service might be
monitoring and operating any required media treatment systems
and/or conducting routine groundwater monitoring and preparing
any monitoring and inspection reports that may be identified in
the IECIP. The VLSP entity could also conduct periodic reviews
of the county land records to monitor transfers or deed filings to
confirm that such records are consistent with the required IECs for
the site and provide notices to the Clerk of the County Commission about the results of monitoring or tracking of such records.
Tracking services would include the development of an administrative record concerning the remediation at the IEC site in an
electronic database and responding to inquiries and coordinating
the sharing of such data among various stakeholders, including
the WVDEP, current owners, the remediating parties, economic
development agencies, assessors, potential purchasers, landowners,
tenants, and other interested parties. The tracking services would
also include developing and maintaining records and information
for posting on an environmental registry for sites in West Virginia
and providing public access to the information. Finally, services
would include coordinating and sharing data with Miss Utility,
such as verifying the location of ECs on IEC sites, providing information about the remediation, and sharing any health and safety
plans or soils-management plans that may be associated with the
site to assist in the planned excavation of the site.
The VLSP would not be limited to IEC sites in the state
voluntary cleanup program. Any IEC site remediated under
any federal or state environmental program would be eligible
to participate, including federal brownfields, landfill closure,
Resource Conservation and Recovery Act (RCRA) corrective
action, Superfund, leaking underground storage tanks, sanitary
landfills, waste tire facilities, and former mining sites with
ongoing water treatment as part of mine reclamation efforts.
Participation would be voluntary. At the start of remediation,
the VLSP entity would provide to the remediator information
about its services and, at the remedy evaluation stage, discuss
with the remediator various service options to meet the shortand long-term needs associated with each remedy option and
draft a term sheet for agreed-upon services. Interested remediators would complete an application that would include the term
sheet and pay an application fee that would cover the cost of the
VLSP entity’s review. The VLSP entity would review and analyze
the remediation documents and reports about the site and could
require additional due diligence. Based upon the information
and requested services, the VLSP would provide a cost estimate
to the remediator. After agreement upon the terms and services,
the VLSP entity would issue a commitment letter describing the
specific services to be performed, the duration of the services, the
financial terms for participation, and a description of any legal
perquisites necessary for the VLSP entity to provide the requested
services, such as an easement for site access.
Initially, the VLSP will utilize a management company to
negotiate the term sheets, trust agreements, and contracts to
ensure the appropriate level of skill and expertise needed to
make the process work successfully for both the VLSP and
the entity seeking the services. At some point in the future,
at least conceptually, the VLSP nonprofit could employ the
required level of expertise. In the meantime, utilizing skillfully
negotiated management services will help establish the quality
and legitimacy of the nonentity’s services.
To estimate costs, the Focus Group developed several
typical IEC site scenarios and input that information into a
USEPA model to estimate the costs associated with operation, maintenance, and monitoring for these sites. The model
is used by USEPA and states in evaluating RCRA closure
and postclosure cost estimates for hazardous waste treatment,
storage, and disposal facilities; however, due to modeling
constraints, the Focus Group found that there could be up to a
7 percent difference for some estimated expenditures. Work on
evaluating the costs of services under the VLSP continues.
To test and refine the VLSP, the Focus Group recommended implementation of a pilot study. While the pilot study
is ongoing, work continues to develop a Web-based, publicly
accessible environmental registry of information on IEC sites
and to find funding to develop the environmental registry and
link it to real property records in the state.
The pilot study includes one site under the state voluntary cleanup program; three landfills under the West Virginia
Landfill Closure Assistance Program (LCAP), which provides
aid to landfills that were required to cease operations because
of statutory closure deadlines for noncomposite lined facilities; and a federal RCRA corrective action site. Pilot No. 1
has completed closure of a wastewater pond, and WVDEP is
reviewing permitting for a leachate collection system for a
closed landfill. Services may include maintaining the engineered cap in the former pond area and leachate collection
from the closed landfill. Services for Pilot No. 2, the LCAP
landfills, may include leachate treatment and management,
such as hauling, treating, and disposing of leachate into a permitted treatment facility, and possibly landfill gas monitoring
and management, groundwater/surface water monitoring, and
final cover maintenance. Services for Pilot No. 3 may include
maintaining on-site and off-site IECs.
The VLSP will benefit responsible parties, landowners,
Published in Natural Resources & Environment Volume 26, Number 1, Summer 2011. © 2011 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any
portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
WVDEP, USEPA, economic development authorities, and the
general public. Benefits include liability protection, financial
assurance, cost savings, lessening government burdens, and
facilitating property transfers and economic development. I
view the VLSP as helping ensure the long-term viability of
risk-based cleanups in West Virginia.
Ms. Rubrecht is a member of Jackson Kelly PLLC in Charleston, West
Virginia, and a member of the editorial board of Natural Resources &
Environment She may be reached at galelea@jacksonkelly.com.
Published in Natural Resources & Environment Volume 26, Number 1, Summer 2011. © 2011 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any
portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.