Voluntary Response Program

Responding to the need to clean up sites contaminated with hazardous substances, the Federal Government passed the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980. This law created what is commonly known as the Superfund Program because it is supported by a large trust fund established under the law. In 1989, the State of Hawaiʻi passed the Environmental Response Law – Hawaiʻi Revised Statutes (HRS) 128D – to establish a similar program at the State level. These initial programs were designed to clean up the nation’s most serious contamination problems.

Because of the strict liability provisions in these laws, potential purchasers and developers are understandably reluctant to become involved with contaminated properties for fear of incurring major financial liabilities. The result has been that many contaminated properties are not being used or developed to their fullest potential.

Federal and State governments throughout the country are working together to respond to this situation by streamlining the process for addressing sites with relatively low levels of contamination and, in some cases, by removing the prospective purchasers and developers from the strict liability requirements of the original laws. The result of these efforts in Hawaiʻi is the Hawaiʻi Voluntary Response Program (VRP), created on July 7, 1997 by amendments to Hawaiʻi’s Environmental Response Law. Read more in our VRP Brochure.

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WHAT IS THE PURPOSE OF THE VOLUNTARY RESPONSE PROGRAM?

The purpose of the VRP is to streamline the cleanup process in a way that will encourage prospective developers, lenders, and purchasers to voluntarily cleanup properties. The VRP facilitates the cleanup process and, in certain situations, provides relief from the strict liability provisions of the Federal CERCLA and Hawaiʻi ERL. The goals are to enhance the environment, stimulate socioeconomic improvements, and allow appropriate development to proceed.

 

HOW DOES THE PROGRAM WORK?

If you are interested in the VRP, the first task is to determine whether you are eligible to participate and if the property is appropriate for the program. If eligible, you would submit an application to the Hawaiʻi Department of Health (HDOH) providing certain information (listed below) that HDOH needs needs to evaluate your proposal. If your proposal is approved, you will be asked to enter into a formal agreement with HDOH. This agreement will specify the scope of work, and the roles and responsibilities of each party to the agreement.

Once an agreement is reached, the work will be performed as specified in the scope of work. HDOH will oversee the work and when it is completed, you will receive an official “letter of completion” for the specific property and contaminants addressed. This letter will certify that the site has been properly cleaned up and, to the extent allowed in the law, provide relief from future liability. The expectation is that the assurances provided in the “letter of completion” will help facilitate the sale and/or development of the property.

HDOH PP VRP Model Agreement
Exhibit A Model LOC for PP VRP Agreement

 

HOW DO I KNOW IF I AM ELIGIBLE?

For a site to be eligible, the primary consideration is that it not pose a serious threat to the public health or environment. As such, the site would be considered a relatively low priority for State involvement outside the VRP. However, by participating in the VRP, you would be able to have the State oversee the work, assure that the site is cleaned up to the State’s satisfaction, receive an official “letter of completion”, and, potentially, receive an exemption from future liability. To determine if the Voluntary Response Program can assist you, and if you are eligible to participate in the Program, there are a few important things to consider:

    • Are you the property owner; or, if not, do you have consent of the property owner(s) to conduct an investigation?
    • Are you willing and financially able to commit to the investigation and clean-up work?
    • Are you willing and able to pay the State fees for overseeing the work?
    • Does the site under consideration meet certain criteria specified in the law? (Criteria are listed in HRS 128D-33 and in the VRP Application Checklist)

If you are interested in receiving a waiver of future liability, you must also meet the definition of a “prospective purchaser” as specified in the law. A “prospective purchaser” as defined in the law means “a prospective owner, operator, tenant, developer, lender, or any party who would not otherwise be liable under section 128D-6 of the Hawaiʻi Environmental Response Law, prior to conducting a voluntary response action”.

For the prospective purchaser themselves to qualify for the waiver of future liability, the prospective purchaser must obtain final approval to participate in the program, and sign a VRP Agreement with HDOH, prior to becoming an owner or operator of the property.

 

HOW CAN I APPLY TO PARTICIPATE?

To participate in the VRP, you must first prepare and submit an a letter to the HEER Office requesting to participate in the Program and including the information listed in the “VRP Application Checklist” below. The letter should follow the outline and contain the information listed below. Along with the application letter, you must submit a non-refundable processing fee of $1,000.00 in the form of a check made out to the Hawaiʻi Department of Health. Within 45 days, you will be notified as to the adequacy of your application and what, if any, additional information is needed to complete the application process.

Introduction. Statutory Criteria

    • Describe how the site meets the statutory criteria in HRS 128D-33.

A. Information About the Requesting Party

    • Name of primary contact
    • Company or business name (if applicable)
    • Mailing address
    • Telephone number
    • Facsimile number
    • Electronic mail address
    • Financial commitment and viability
    • Reason for pursuing voluntary cleanup

B. Information About the Property Owner(s)

    • Name of primary contact
    • Business or company name (if applicable)
    • Mailing address
    • Telephone numbers
    • Facsimile numbers
    • Electronic mail addresses

C. Current Information About the Property

    • Mailing address
    • Street or physical location address
    • Latitude and longitude
    • Tax map key numbers (e.g. block and lot numbers)
    • Area of property
    • Site map showing property boundaries and adjacent property uses
    • Current property use
    • Any restrictions of property rights or uses
    • Copies of relevant leases or purchase contracts

D. Current and Historic Information About the Property

    • Operational history owners, businesses and uses
    • Known or suspected contamination
    • Explanation for suspected contamination
    • History of hazardous substances
    • History of hazardous wastes
    • History of underground storage tanks
    • Information relating to parties responsible for contamination
    • Involvement with other regulatory programs – e.g. permits, orders, inspections, Notices of Violation (NOV)
    • List of any permits obtained by any facility on the property
    • Description of any civil, criminal, or administrative actions related to the property
    • Anticipated or pending litigation
    • Other relevant information

E. Description of the Intended Scope of Work

    • Brief description of proposed redevelopment of the site, if any
    • Brief description the intended scope of work (i.e., proposed remedial investigations and activities to be conducted as part of the VRP)
    • Description of benefits the department will receive or indirect public benefit from proposed redevelopment and/or remedial activities
    • Future planned use for the property

F. Description of Proposed Waiver of Future Liability, if Requested

    • Request for waiver of future liability
    • Expected extent for waiver of liability (e.g., to prospective purchaser, future landowner, etc.)
    • Basis for waiver of future liability

G. Billing Information and Application Fee

    • Exact instructions describing how the department should bill requestor for oversight costs
    • Include $1,000 non-refundable application processing fee

H. Statement of Financial Viability and Commitment of Resources to Complete the Work

    • Description of the requesting party’s financial viability (may require supporting documentation from a financial institution)
    • Affirmative statement of intention and commitment to complete the necessary work.

I. Consent of Property Owner

    • Written consent by the property owner supporting the proposed voluntary response action
    • Any restrictions on property rights or uses to be conveyed to purchaser.
    • Signature of property owner

J. Signature of the Requesting Party

 

HOW CAN I GET MORE INFORMATION?

If you would like additional information about the VRP program, please call (808) 586-4249. Written inquiries and applications should be sent to:

Voluntary Response Program
State of Hawaiʻi
Hazard Evaluation and Emergency Response Office
2385 Waimano Home Rd #100
Pearl City, HI 96782