June 4, 2012   In the past any party who sought a liability assurance from the Minnesota Pollution Control Agency (MPCA) would be directed or encouraged by the MPCA to enter into Minnesota’s Voluntary Investigation and Cleanup (VIC) Program.  The VIC Program is a fee-for-service program that is designed to review, comment and approve cleanup plans for sites affected by petroleum and non-petroleaum releases and to issue statutorily available liability assurances.  Issuance of these liability assurances has facilitated the transfer of thousands of Minnesota properties that have been impacted by contamination.

Within the past few months the MPCA announced that it was changing its approach – in the future, the MPCA advised, parties who fit the definition of responsible parties under Minnesota’s Superfund law would be treated differently than persons who were acting voluntarily to redevelop property and who had no connection with a past release.

On Monday, June 4, 2012 the MPCA took a step to formalize this new approach to the handling contaminated sites.  The MPCA publicly issued a revised Voluntary Remediation Programs Enrollment Application Form.  The form, which can be found at http://www.pca.state.mn.us/index.php/view-document.html?gid=3347, indicates that parties not associated with past releases who are interested in redeveloping property may proceed through the standard voluntary cleanup process.  In most cases a voluntary party applicant must complete a Phase I Environmental Site Assessment that satisfies the All Appropriate Inquiry standard and may request available liability assurances including a no association determination, a retroactive no association determination, a no further action letter, an off-site determination letter or a certificate of completion as provided for under the Minnesota Land Recycling Act. Minn. Stat. § 115B.175.

Parties who fit the definition of a “responsible party” under Minn. Stat. § 115B.03 also may cleanup sites voluntarily. However, these parties must enter into a Cooperative Cleanup Agreement (CCA) and are, according to the MPCA, no longer eligible for entry into the VIC Program.  The MPCA describes the Cooperative Cleanup Assistance (CCA) option as follows:

“The MPCA has developed a Cooperative Cleanup Agreement (CCA) by which a cooperative Responsible Party (RP) and MPCA agree on shared expectations for a full and timely cleanup. The RP also agrees to reimburse the MPCA costs related to the site. If the RP complies with the executed CCA, the MPCA will not list the site on the MERLA Permanent List of Priorities, issue a MERLA Request for Response Action, refer the site to the U.S. Environmental Protection Agency, or pursue the other formal processes for compelling and overseeing the RP’s investigation and response. When the CCA cleanup is done, the RP can expect a formal letter from MPCA that no further cleanup is required (with reopeners for newly discovered conditions and risks). A RP is not eligible for the full set of assurances possible for a volunteer.”

As of this date, the MPCA has not released a copy of CCA that it proposes to enter into with parties deemed to be responsible parties.

The impact of the MPCA’s programmatic change on the cleanup of contaminated sites remains to be seen.  One possible outcome is that faced with the uncertainty of the scope of cleanup obligations that may be required (and unknown costs associated with such an investigation and cleanup), responsible parties may in the future decline to voluntarily enter sites into the program.

It is unclear exactly how the MPCA will respond if responsible parties decline to participate or cannot agree to the terms proposed in a CCA.  The MPCA could choose to use more formal processes under Minnesota’s Superfund law or make a referral to the EPA.  As a practical matter, however, neither state or federal authorities have the resources to require cleanups across the State especially at those sites where the documented releases do not pose major public health or environmental concerns.

A glimpse as to how responsible party driven cleanups will be conducted in Minnesota may be become known as the MPCA negotiates with parties who had been conducting cleanups under the VIC Program.  The MPCA has advised a number of parties with pending applications in the voluntary cleanup program that they are no longer eligible for participation and must instead enter into a CCA with the MPCA. As with any program change, the MPCA’s handling of these sites will provide useful guidance as to how future sites will be handled.

Environmental attorney Joseph Maternowski practices in the areas of Brownfields cleanup and assists clients who are involved in the redevelopment of contaminated property.  Joe is involved with the all aspects of property transfer including the investigation of means to transfer liability for past contamination.  For more information on Joe’s background and practice, please visit his You Tube site and watch two videos at: http://www.youtube.com/watch?v=p1Ybc9Acm8k and http://www.youtube.com/watch?v=bJTDvveG0jY.

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