Maine DEP Voluntary Response Action Program Releases Updated Guidance

The Maine Department of Environmental Protection’s (DEP) Voluntary Response Action Program (VRAP) just provided updated guidance explaining the new application fees and -- perhaps more importantly -- clarifying and updating critical aspects of the program.  The VRAP has been a popular program, successfully providing state liability protections for many properties typically following investigation and, in a number of cases, clean-up.  Since 1993, the VRAP has processed over 1,000 sites. 

In June of this year, we alerted you to the new law increasing application fees for VRAP sites, effective for applications received on or after January 1, 2018.  As of that date, VRAP application fees will be based on assessed property value, with “property” including the value of both land and buildings. To support the application, you must include a copy of the most recent municipal tax assessment record. The fee may not exceed $15,000.  DEP has decided that no other fees for VRAP review will be required. In order to avoid these new, likely higher fees, an applicant will need to apply for VRAP on or before December 31, 2017.

DEP also provided updated guidance on information required in VRAP applications, and on how the DEP will review them:

• Applications require a 2,500-foot radius survey for public and private wells, including the closest water supply, and should confirm that structures are being billed by a water company. It is possible to use professional judgment to reduce the 2,500-foot radius, especially where a major surface water body is in close proximity.
• VRAP applications must include an aerial photo map.
• A Maine Certified Geologist stamp is required when there is any hydrogeological interpretation, e.g., groundwater flow direction.
• VRAP welcomes comparisons of any site chemicals that may be naturally occurring, e.g., arsenic, to background and to regional or state-wide averages.  “Vapor Intrusion” should be considered and evaluated as part of any site if volatile compounds are present.
• Environmental Media Management Plans (formerly known as Soil Management Plans) should be kept simple so that they can be used “in the field” (e.g., by the equipment operators). VRAP offers a template. Plans can allow for handling, management, and disposal of contaminated media without DEP involvement.
• Many VRAP sites will need environmental covenants. The exceptions are those sites cleared for unrestricted use.
• VRAP is conducting audits of sites with “conditions” on liability, and sites with environmental covenants. DEP is finding that in some cases the sites need to be brought into compliance with the conditions or the covenants.
• VRAP occasionally revisits sites and requests or suggests an owner “refresh” the VRAP with more investigation to address new issues, such as vapor intrusion, or issues that were not completely addressed before.
• Both Petroleum and Hazardous Substance Remedial Action Guidelines are being updated. They may be issued in the first half of 2018.

If you have questions about VRAP or the updated guidance, or whether your property could take advantage of the VRAP and obtain liability protections, please contact  Lisa Gilbreath (207-791-1397 or LGilbreath@PierceAtwood.com).