Slide 1

Report
WHO IS GETTING TAKEN
TO THEDimensions
CLEANERS?
Advanced Environmental
WORKING WITH THE TCEQ’S
DRY CLEANER REMEDIATION PROGRAM
John Slavich
Guida, Slavich & Flores, P.C.
750 N. St. Paul Street, Suite 200
Dallas, Texas 75201
214.692.0009
E-Mail: [email protected]
2
Dry Cleaner Environmental
Response Statute
• Texas Health & Safety Code Chapter 374
• Originally created by 78th Legislature in 2003
• Amended by 79th Legislature in 2005
© 2006
3
Overview
• Provided for registration, operational regulation,
investigation and remediation (“corrective
action”) of dry cleaning facilities.
• Created a fund to pay for corrective action for
releases from dry cleaner facilities. (374.101)
• Financed by dry cleaner registration fees and
fees imposed on the purchase of dry cleaner
solvent. (374.055)
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4
Overview (cont’d)
• Provided for rules that impose performance
standards. (30 TAC § 337.20)
• Imposed release reporting for dry cleaning
solvents. (374.151(b))
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5
Definitions
•
•
•
•
•
•
•
Release (374.001(13))
Dry Cleaning Facility (374.001(7))
Dry Cleaning Solvent (374.001(8))
Contaminated Dry Cleaning Site (374.203(a))
Owner (374.001(12))
Fund (374.001(11))
Corrective Action (374.001(4))
– Also definitions in regulations (30 TAC Ch.
337, as most recently amended effective
2/1/06)
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6
Dry Cleaner Remediation Program
• If a contaminated dry cleaning site has been
ranked under 374.154, then State of Texas may
use money from the fund (up to $5M for that
single site) (374.203) for corrective action at the
site
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7
Eligibility
• Two classes of owners are eligible to apply for a
site to be ranked. (374.154(b) and .203)
1. Owner of dry cleaning facility
– Not in arrears for money owed to state
– In compliance with applicable performance
standards (at time of release)
2. Owner of the real property on which the
facility is located.
– Five-year ownership requirement removed
in 2005 amendments
• Includes former owners of facility and owners of
real property on which facility was formerly
located (§ 337.31(a)(2))
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Site Ranking (374.154; § 337.31)
• An eligible person must submit a ranking
application to be eligible for State cleanup
(374.203(c))
• Non-emergency sites are ranked in order of
relative significance (374.154(a))
• Deductible of $5,000 per site must be met
(374.203(a))
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Site Ranking
(con’t)
• TCEQ is to assign a rank for a site based on
information contained in application (374.154)
• Ranking procedures (§ 337.31)
– Numerical score assigned for a site
• TCEQ to assign ranking within 90 days.
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10
Site Prioritization (§337.30 )
• Determined semi-annually (§337.30(a))
• TCEQ will consider factors in addition to ranking
score (§337.30(b))
• Relative priority can change (§337.30(c))
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11
Corrective Action
• TCEQ is responsible for corrective action
• Corrective action includes investigation,
assessment and cleanup of affected soil,
groundwater, and surface water (onsite and
offsite)
• TCEQ cannot compel eligible persons to
undertake corrective action (exceptions)
• TCEQ can compel site access
• TCEQ can approve “other entities” to perform
corrective action
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12
Comparing DCRP to VCP
DCRP
VCP
Who can apply?
“Eligible persons”
Anyone (subject to site
eligibility)
Cost to apply
$5,000 deductible
$1,000 application fee
State contractors
(State-lead program)
Applicant hires
contractors
Who does work?
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Comparing DCRP to VCP
DCRP
(cont’d)
VCP
Other costs
None
Pay for corrective
action; pay for State
oversight
State confirmation of
completion
No Further Action letter Certificate of
Completion
Protection
Eligible persons
exempt from claims
under State law for:
(i) Cost recovery
(ii) Enforcement of
corrective action (with
exceptions)
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Release of liability to
future owners and
lenders
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Points for Clients to Consider
• Is the site impacted by contaminants of concern
in addition to dry cleaning solvents from the dry
cleaning facility?
– DCRP limited to addressing dry cleaning
solvents from dry cleaning facilities
(374.208(b))
– Other COCs need to be addressed under
other State programs.
• When will NFA letter be issued?
– Impact on financing
– Impact on exit strategy
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15
Points for Clients to Consider
(con’t)
• Is a commercial/industrial closure sufficient?
– Impact on residential/mixed-use
redevelopment.
• Cannot dual track DCRP and VCP.
– Limit on being in both programs
simultaneously.
– Can drop out of DCRP and re-enter.
• DCRP work can bar later entry of site into VCP.
– Remediation will make site ineligible for VCP
(See § 333.6 of VCP rules, Q&A C2 and C4).
© 2006

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