Voluntary Cleanup Programs

The Nebraska Voluntary Cleanup Program, established by the Remedial Action Plan Monitoring Act (Section 1, Attachment 1-5 RAPMA Statute), allows the Nebraska Department of Environment & Energy (NDEE) to review and oversee efforts by property owners, prospective buyers, developers, lending institutions, or others wishing to initiate voluntary environmental clean up activities. Encouraging voluntary action on property that may otherwise be regarded as a liability may lead to beneficial reuse and economic redevelopment.

Streamlined, results-based site cleanup

Nebraska’s Voluntary Cleanup Program (VCP) is a streamlined, results-based approach to environmental cleanup at contaminated sites in Nebraska. This approach minimizes the number of steps in the regulatory review process and focuses on goals or objectives rather than a rigid and structured process. The requirements are not less stringent and must be in compliance with all State and Federal applicable environmental regulations. VCP applicants have the latitude to determine how to achieve cleanup goals, with the guidance and oversight of the Nebraska Department of Environment & Energy (NDEE). This enhances the applicant’s responsibility for achieving the cleanup goals as agreed upon for the site.

A range of potential applicants

The VCP is intended for property owners and buyers, facility owners, local governments, and any other interested parties who want to use this approach to clean up contaminated properties while maintaining compliance with all applicable state and federal environmental regulations.

What are the goals of the VCP?

• Protect human health and the environment
• Return contaminated properties to productive use
• Provide a streamlined, results-based approach to environmental cleanup
• Provide an alternative approach to traditional cleanup programs

How does the VCP process work?

(Section 1, Attachment 1-1 Voluntary Cleanup Program Process Flowchart in the VCP Guidance table )
During the VCP process, the applicant will:

1. Begin by completing a thorough environmental investigation. prior to joining the program
2. Complete the VCP application and submit it with the $2,000 application fee and the $3,000 initial deposit for oversight costs. (Section 1.0, Attachment 1-2, Application Form and Instructions)
3. Sign a Written Agreement describing the expectations of the applicant and the NDEE regarding voluntary cleanup of the site. (Section 1.0, Attachment 1-3, Example Written Agreement)
4. Submit the Remedial Action Plan (RAP), which consists of an Investigation Report and a Remedial Action Work Plan. (Section 2.0, Remedial Action Plan Technical Guidance)
5. Conduct remediation at the site as described in the RAP.
6. Submit the Remedial Action Report (RAR). (Section 3.0, Remedial Action Report)

During the process, NDEE will review the application, RAP, and RAR. The NDEE will public notice its preliminary determination to approve the RAP to solicit comment on the proposed remedial action. The $3,000 initial deposit will be used to pay for oversight costs. The applicant will pay for all site investigation and cleanup costs and may be billed for additional oversight costs if the site is especially complicated or if the plans and reports are not complete or adequate. When the final RAR is approved, NDEE will prepare a No Further Action letter to declare that no further remedial action is necessary, and the property is ready for redevelopment and reuse.

How is the VCP different from traditional programs?

Traditionally, environmental investigations and cleanups followed a regimented process with extensive regulatory oversight. Returning a contaminated property to productive use could take many years. Applicants are encouraged to use a streamlined, results-based approach tailored to accomplish site-specific goals. However, because the VCP is designed to be more flexible than traditional cleanup programs, a greater responsibility is placed on the applicants and their consultants to collect and submit correct and complete information to NDEE.

What are the benefits of participating in the VCP?

Participation in the VCP:

1. Reduces health related risks associated with contaminated property.
2. Facilitates cleanup and encourages redevelopment of property. In addition higher property values and an increase in tax revenue are generated for local communities. Jobs are created and a greater economic base results.
3. Lessens urban sprawl by promoting reuse of commercial and industrial property.
4. Conserves use of state personnel, tax dollars and resources as a result of less oversight, this also gives more time for attention to many of the “problem” sites that exist in Nebraska.

Applicants who have paid all applicable fees, completed their cleanups, and met the provisions and objectives agreed to with NDEE will:

• Receive documentation from NDEE that no further remedial action is required at the site related to the contamination for which the remedial action was conducted
• Begin redevelopment and productive reuse of the property more quickly than through traditional cleanup programs
• Reduce the likelihood of further enforcement actions

Memorandum of Agreement with EPA

NDEE and the U.S. Environmental Protection Agency (EPA) Region VII have also negotiated a Memorandum of Agreement for the Nebraska Voluntary Cleanup Program. This agreement became effective on November 22, 2006.

The partnership developed through this agreement will facilitate the expeditious cleanup of contaminated sites entering the VCP. The agreement also allows for continued federal grant funding to enhance the program and assist in the redevelopment of brownfield sites through assessment and cleanup grant funding to communities. Most importantly, the agreement offers protection from federal Superfund enforcement for those eligible sites that successfully complete cleanup under the VCP.

Public Record

As a requirement for receiving CERCLA 128(a) funding from EPA, state cleanup programs must establish and maintain a public record system. The Public Record is a list of voluntary cleanup sites at which environmental response actions have been completed during the previous year, are in process of being completed, or are planned to be addressed in the upcoming year or near future. In addition, this list identifies sites, which upon completion of the response action, are not suitable for unrestricted use and describes the institutional control relied on in the remedy. A separate institutional control tracking system has been developed to address this requirement and a report is included as an attachment to the Public Record.

Institutional Controls

The use of institutional controls is becoming more common as state cleanup programs increase the use of risk-based cleanups that consider the future land use of a contaminated site to allow some contamination to be left in place. Institutional controls are defined as non-engineered instruments, such as administrative and/or legal controls, that help to minimize the potential for human exposure to any contamination left in place and/or to protect the integrity of a remedy. Examples of common institutional controls include easements, covenants, ground water use restriction ordinances, zoning restrictions, and special building permit requirements. The State of Nebraska also has passed the Uniform Environmental Covenants Act (see Attachment 2-7 ) which allows the use of a restrictive covenant that is fully integrated into the traditional real property system to ensure long-term enforceability of the covenant. NDEE has developed a model covenant (See Attachment 2-7) pursuant to the Uniform Environmental Covenants Act to assist in the preparation of an environmental covenant as part of an overall cleanup plan.