The federal Superfund program provides a mechanism for remediating property where improper waste disposal poses a major threat to public health. However, there are many sites throughout the Commonwealth which, while dangerously contaminated, do not qualify for designation for Superfund cleanup. Virginia does not currently have a program for identifying, prioritizing, and remediating such sites where there is no identified and solvent responsible party.

While it may be the largest and most well known example, the Kim-Stan landfill is but one of several hundred sites in Virginia where waste has been improperly managed and poses a substantial risk to health, and where there is no one responsible who can be required to remediate the site. The Department of Environmental Quality (DEQ) has identified 2,015 possible abandoned waste sites in the Commonwealth.

The January 1996 risk assessment prepared by Ogden Environmental and Energy Services Company, Inc., concluded that, based on an analysis of a 250-site sample, Virginia has between 371 and 411 abandoned sites that pose substantial health risks. The cost of their remediation is estimated to fall between $277 and $670 million.

A DEQ analysis of the Ogden risk assessment based on business/product sectors indicates that the number of at risk abandoned waste sites may be between 230 and 393. The cost of remediating these sites was estimated at between $201 million and $286 million.

A DEQ survey conducted in November of 1993 found that 36 states have an identified funding source for remediating waste disposal sites. The funding source most commonly identified was cost recovery from responsible parties (28 states, including Virginia), followed by landfill tipping fees (15 states), bonds or grants (10 states), general funds (9 states), waste generation fees and transport fees (8 states each), and civil or administrative penalties (7 states).

The joint subcommittee recommends that the Commonwealth establish a comprehensive program to address the problem of abandoned waste sites. Abandoned waste sites should be defined as properties where substances within the jurisdiction of the Waste Management Board have been improperly managed and have not been closed or remediated as required by applicable law, and where (i) title to the site has escheated to the Commonwealth, (ii) the owner has ceased to exist or cannot be determined, or (iii) the owner is known, but the site is not occupied or regularly operated and the owner cannot pay for the site's cleanup. Sites owned by the state (except escheated sites) and local governments, on the National Priority List, or required to be remediated under RCRA, should be excluded from designation as abandoned waste sites. The purpose of the definition is to encompass "orphaned" contaminated sites where no party can be held accountable for the cleanup.

Elements of an abandoned waste site remediation program should include (i) vesting control of both ownership and cleanup of sites in a single agency; (ii) requiring that the designation of property as an abandoned waste site follow a case decision process under the Administrative Process Act; (iii) authorizing the agency to partly or fully close or abate damage caused by abandoned waste sites; (iv) allowing the agency to recoup cleanup costs from responsible parties if they are known and to have a lien on the site for such costs; (v) addressing the appointment of receivers for abandoned waste sites; (vi) preventing the escheat to the Commonwealth of abandoned waste sites; and (vii) immunizing the agency from liability for actions taken with respect to such sites.

To the extent feasible, an abandoned waste site program should rely on incentives to encourage the voluntary remediation of such sites by the private sector. Possible incentives include income tax credits, grants, property tax exemptions, and limits on liability. When necessary, local governments should be provided with incentives to contribute to the cleanup of sites within their jurisdictions.

In order to ensure a rational approach to the problem of abandoned waste sites, a procedure is needed to identify the sites and rank them in order of the threat posed to human health and the environment. Once cleanups of abandoned waste sites are prioritized, plans for their remediation should be prepared that reflect the optimum course of action including voluntary remediation, acquiring title to the site, contracting for remediation, receivership, or seeking injunctive relief. The development of remediation plans should take into consideration funding limitations.

To address these elements of a state program for remediating abandoned waste sites, the joint subcommittee endorses legislation introduced in the 1997 Session as House Bill 2026. The bill vests responsibility for ownership and administration of abandoned waste sites in a new body politic and corporation entitled the Abandoned Waste Site Remediation Foundation. Staffing and administrative support will be provided by DEQ.

Identifying an adequate source of funding for the program has proven difficult. Assuming the minimum estimated cost of remediating abandoned waste sites is $200 million, a twenty-year cleanup cycle will require $10 million annually. The joint subcommittee examined funding mechanisms used by other states. Funding options discussed include increases in existing product fees, new pre-disposal fees on certain products, permit fees on waste disposal facilities, and utilizing a portion of the civil penalties and civil charges currently paid into the Environmental Emergency Response Fund. The joint subcommittee recommends that the program be funded in part by voluntary contributions solicited by a non-profit corporation. In addition, initial funding should be provided by diverting a portion of the civil penalties and charges now deposited in the Environmental Emergency Response Fund. Though these identified sources may not be sufficient to allow the program to undertake remedial actions on a large scale, they will permit the agency to begin identifying and prioritizing abandoned waste sites.