Frank Tannery Environmental Monitoring & EPA Exit

 

 

 

Frank Tannery Environmental Monitoring & EPA Exit

 

Alan Wright’s inquiry regarding surface water testing at the former tannery site in Frank touches on the legal mechanics of Superfund/Brownfields post-remediation monitoring.

• Surface vs. Subsurface Division of Responsibility:
  
  
  • Commission President Rebinski emphasized that the county is responsible only for surface water testing under the EPA clean-up agreement, not subsurface groundwater.
    
    
  • Tanning operations historically deposited persistent contaminants—principally trivalent and hexavalent chromium, arsenic, and volatile organic compounds (VOCs).
    
    
• Termination of Monitoring (Exit Strategy):
  
  
  • Because recent monitoring shows no hazardous pollutants in surface runoff, the county is positioning to petition the EPA to terminate the monitoring covenant.
    
    
  • Securing a formal "No Further Action" (NFA) or monitoring release relieves the county of recurring laboratory analysis costs and environmental consulting fees.
    
    
  • The Hidden Risk: If the county terminates its surface water oversight while subsurface contamination remains unadjudicated, any future plume migration or disturbance during flooding could trigger renewed CERCLA (Comprehensive Environmental Response, Compensation, and Liability Act) liability if clear delineation of responsibility is not preserved in writing with state and federal regulators.
    
    

3. FEMA Buyout Lots in East Cass (44 CFR § 80.19 Constraints)

Dave Cain’s proposal to lease 10 county-owned FEMA buyout parcels in East Cass to adjacent property owners for $1—mirroring programs used in Kanawha County—faces strict federal deed restrictions.

• Federal Open Space Mandate: Properties acquired through FEMA Hazard Mitigation Grant Program (HMGP) buyouts must be dedicated in perpetuity as open space to preserve natural floodplain functions (codified under 44 CFR § 80.19).
  
  
• Allowable Private Leases: A county can legally lease HMGP buyout land to private individuals or adjacent owners, but with tight statutory boundaries:
  
  
  • Permitted Uses: Buffer zones, open space, non-commercial gardens, grazing, and lawn maintenance.
    
    
  • Strict Prohibitions: No permanent buildings, walled structures, concrete paving, commercial storage, fencing that impedes floodwaters, or fill dirt.
    
    
• Why Counties Pursue the $1 Lease:
  
  
  • Buyout parcels quickly become expensive maintenance liabilities. The county must mow them, clear fallen timber, and keep them free of debris to remain in FEMA compliance.
    
    
  • A $1 lease shifts the maintenance and mowing obligation entirely to the adjoining landowner while retaining county ownership.
    
    
• The Administrative Hurdle: Under 44 CFR § 80.19(b), conveying an easement or lease to an individual requires formal written approval from the FEMA Regional Administrator. If a lessee puts up an unauthorized shed, car canopy, or fence and the county fails to abate it within 60 days of notice, FEMA can penalize the county by withholding future disaster mitigation assistance.
  
  

Would you like to explore the specific language and risk indemnification required for a FEMA lot lease agreement, or examine the county’s potential liability exposure at the Frank Tannery site?

 

Both issues involve public property management, regulatory compliance, and significant municipal liability.

Part 1: FEMA Lot Leases (East Cass) — Legal Structure & Risk Indemnification

Transferring maintenance of Hazard Mitigation Grant Program (HMGP) buyout lots to adjacent landowners through a nominal lease (such as $1/year) is a common county strategy, but it requires strict compliance with 44 CFR Part 80 and precise contract terms.

Core Restrictive Covenants Under 44 CFR § 80.19

• Perpetual Open Space Mandate: The deed itself mandates open space uses compatible with open floodplain management.
  
  
• Prohibited Encroachments: Leases must explicitly forbid any walled or roofed structures, permanent foundations, carports, sheds, above-ground or below-ground storage tanks, impervious asphalt/concrete paving, and the placement of uncertified fill dirt.
  
  
• Fencing Limitations: Any fencing must be open-wire or split-rail designed to allow unimpeded passage of floodwaters. Solid privacy fences violate federal open-flow criteria.
  
  

Essential Drafting Clauses for County Protection

• Absolute Indemnification & Hold-Harmless: The lessee must indemnify, defend, and hold harmless the Pocahontas County Commission, its officers, and agents from any personal injury, premises liability, or property damage occurring on the parcel. Because these lots sit in active flood hazard areas, the lease must state that the county bears zero liability for floodwaters, debris deposition, or erosion damage.
  
  
• Maintenance & Clean-Up Covenant: The primary consideration for the $1 rent is the tenant’s affirmative obligation to keep the parcel mowed, brush-hogged, and free of abandoned vehicles, scrap, and refuse.
  
  
• Immediate Termination & Right of Re-Entry: A strict 15- to 30-day cure-or-quit provision is required. If FEMA or the state emergency management agency (WVEMD) inspects the site and identifies an unpermitted structure or debris, the county must have the right to enter, demolish/remove the violation at the tenant’s expense, and terminate the lease immediately.
  
  
• Subleasing & Commercial Prohibition: Absolute ban on subletting, commercial storage, timbering, or using the parcel for commercial parking/staging.
  
  

Part 2: Frank Tannery Site — Environmental Liability Exposure

The site of the former Howes Leather Company tannery in Frank carries historical environmental liabilities typical of century-old industrial leather processing, which heavily utilized heavy metals (notably trivalent and hexavalent chromium), arsenic, volatile organic compounds (VOCs), and timber-bark tannins.

Surface vs. Subsurface Disconnect

• The Commission’s Position: Commission President John Rebinski noted the county only handles surface water testing under the EPA clean-up agreement, not subsurface groundwater, and seeks to terminate testing because recent surface tests show no dangerous pollutants.
  
  
• The Regulatory Reality: While surface runoff may currently test clean, tannery contaminants historically migrate into soil horizons and karst/alluvial groundwater. Under CERCLA (Superfund), ownership of the surface estate can expose a public entity to strict, joint, and several liability if contaminants migrate off-site or into adjacent waterways (such as the East Fork of the Greenbrier River).
  
  

Key Liability Exposures in Petitioning for EPA Exit

• Brownfields / VRP Boundaries: The county previously enrolled portions of the property in the EPA Brownfields Cleanup and West Virginia Department of Environmental Protection (WVDEP) Voluntary Remediation Program (VRP). Exiting or terminating monitoring must be done strictly within the framework of a formal Certificate of Completion (COC) and an approved Land Use Covenant (LUC).
  
  
• Premature Termination Risks: If the county petitions to end surface monitoring without a clean closure certification, it risks losing brownfield safe-harbor liability protections under the Small Business Liability Relief and Brownfields Revitalization Act.
  
  
• Legacy Entity Insolvency: Howes Leather Company originally installed groundwater monitoring wells and agreed to maintain them, but the company’s dissolution left the physical monitoring infrastructure unmaintained. If groundwater plumes rise during major hydrological events and breach surface layers, the current titleholder (the County Commission) remains the primary target for regulatory remediation orders.
  
  
• Redevelopment Restrictions: The site is restricted to commercial/industrial reuse and barred from residential development. Any termination of active EPA/DEP oversight must preserve institutional controls (e.g., prohibition against drilling drinking water wells, requirements for soil management plans during future excavation) to shield the county from citizen suits or downriver claims under the Clean Water Act.