Transcript Part 213 Implementation

Part 213:
2012 Amendments
Changes & Implementation
Dennis Eagle
Field Operations Section,
Remediation & Redevelopment Division
[email protected]
517-335-4918
Part 213: Today’s Discussion
• Three versions of Part 213 in < 1 yr
• Multiple changes affecting regulatory and
practical application of the statute
• What changes will be covered
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Important “Definitions”
Department and regulated community obligations
Other important statutory deletions and additions
Not discussing - liability provisions; specific technical issues
Part 213: “In The Beginning”
• 324.21301a Purpose and applicability of part.
• (1) This part is intended to provide remedies USING A
PROCESS AND PROCEDURES SEPARATE AND
DISTINCT FROM THE PROCESS, PROCEDURES,
AND CRITERIA ESTABLISHED UNDER PART 201 for
sites posing a threat to the public health, safety, or
welfare, or to the environment, as a result of releases
from underground storage tank systems…
Part 213: New Department Obligation
• Sec. 21301b(3) …corrective actions by nonliable
parties
• (3) Notwithstanding any other provision of this part, a
person that is not liable under this part may conduct
corrective actions under this part in the same manner as
a person that is liable under this part. Notwithstanding
any other provision of this part, the department shall
provide responses to nonliable parties conducting
corrective actions for reports submitted under this
part in the same manner that it provides responses
to persons that are liable under this part.
Part 213: Definition Changes
• "Consultant" means a person that meets the
requirements set forth in section 21325. (also defined as
“qualified underground storage tank consultant”)
• "Contamination" or “Contaminated” means the presence
of a regulated substance in soil, surface water, or
groundwater or air that has been released from an
underground storage tank system at a concentration
exceeding the level set forth in the RCBA tier I
screening levels established under section
20120a(1)(a) and (b).
Part 213: Definition Changes (cont.)
• “Free product” – Deleted
• “NAPL”, “DNAPL”, “LNAPL”, “Migrating NAPL”, “Mobile
NAPL” & “Residual NAPL Saturation” definitions added
• Sidebar: NAPL policy out soon
– Delineation of residual NAPL expected
– Possibility of closing site with residual and mobile NAPL present
using multiple lines of evidence
– Migrating NAPL must be addressed
Part 213: Definition Changes (cont.)
• "Operator" means a person who is presently, or was at
the time of a release, in control of, or responsible for, the
operation of an underground storage tank system. AND
WHO IS LIABLE UNDER PART 213.
• "Owner" means a person who holds, or at the time of a
release who held, a legal, equitable, or possessory
interest of any kind in an underground storage tank
system or in the property on which an underground
storage tank system is OR WAS located including, but
not limited to, a trust, vendor, vendee, lessor, or lessee.
Part 213: Definition Changes (cont.)
• “Property" means real estate that has been impacted is
contaminated by a release from an underground
storage tank system.
• "Site" means a location where a release has occurred or
a threat of release exists from an underground storage
tank system, excluding any location where corrective
action was completed which satisfies the applicable
RBSL or SSTL.
Part 213: Definition Changes (cont.)
• RBCA definition now includes 3 standards “incorporated
by reference”:
– E1739-95 RBCA Applied at Petroleum Release Sites
– E2081-00 Standard Guide for RBCA
– E2531-06 Development of CSMs and Remediation Strategies
for LNAPLs
• Standards vs Appendices
• Implementing ASTM standards as requirements
• CSMs required for all sites – LNAPL CSMs
Part 213: “Corrective Action” Changes
• Owner or operator may fulfill corrective action obligations
under Part 201, in its sole discretion, if:
– the release at a site is not solely the release from a UST system;
– the release from the UST system involves venting groundwater,
addressing the venting groundwater may be done under the
procedures in Sec. 20120e [see Sec. 21304a]
• Important: Part 201 changes to soil removal or relocation
are not incorporated into Part 213
– except that prior department approval for moving off site or
relocating on site is no longer required [see Sec. 21304b]
Part 213: “Corrective Action” Changes
•
Addition of Sec. 21304c – Documentation of Due Care
– Incorporation of Part 201 due care provisions – [Sec. 20107a]
– Applies to person having knowledge a property is contaminated
• Addition of Sec. 21304d – Disclosure
– disclosure required when transfer interest in real property that
the person has knowledge is a site
– must disclose any land or resource use restrictions that apply to
the property
Part 213: “Corrective Action” Changes
• Report of release; initial response actions [sec. 21307]
– Upon confirmation of a release … the owner or operator that is
liable under section 21323a shall report the release to the
department within 24 hours after discovery.
– Using the process outlined by RBCA regarding NAPL, take
steps necessary and feasible under this part to address
unacceptable immediate risks.
– Deleted: Requirement to report free product within 24 hrs of
discovery and initiate free product recovery
Part 213: “Corrective Action” Changes
• Site Closure Report
[sec. 21307a]
– Following initiation of initial actions under section
21307, A CONSULTANT RETAINED BY the owner
or operator that is liable under section 21323a shall
complete the requirements of this part and submit
related reports
Part 213: “Corrective Action” Changes
• Initial Assessment Report (IAR)
[sec. 21308a]
– Submit to the department within 180 days (previously 90 days)
– A description of the mobile or migrating NAPL investigation and,
if the evaluation … concludes that NAPL is recoverable and
removal is necessary … to abate an unacceptable risk
pursuant to …RBCA, a description of the removal…
– The department shall not require any additional information
beyond that required in the IAR - but the O/O shall provide
supporting documentation upon request by the department.
(Huh?)
Part 213: “Corrective Action” Changes
• Corrective Action Plan
[Sec. 21309a]
– Requires an analysis of the recoverability of NAPL and whether
it is mobile or migrating
– A financial assurance mechanism shall be included If the
corrective action plan includes the operation of a
mechanical soil or groundwater remediation system, or
both.
Part 213: “Corrective Action” Changes
• Final Assessment Report
– Due 365 days after release discovery (unchanged)
– Analysis of recoverability NAPL
– Delineation of the extent of contamination to applicable RBSL
– The department shall not require any additional information
beyond that required in the FAR - but the O/O shall provide
supporting documentation upon request by the department.
(Again?)
Part 213: “Corrective Action” Changes
• Closure Report
[Sec. 21312a]
– Signed affidavit by O/O attesting to the completeness and truth
of the report to the best of their knowledge
– Signed affidavit by the consultant attesting to truth and accuracy
of the report and that the corrective actions comply with RBCA
standards
– Consultant’s Certificate of insurance
– Department shall not require any additional information
– Within 60 days DEQ must acknowledge receipt to liable O/O
Part 213: Audit Provisions
• Must audit Final Assessment Reports and Closure
Reports within 180 days of receipt (excludes IARs)
• Must make determination to audit within first 90 days
– 7 days to notify O/O of intent to audit after deciding to audit
– 14 days after completing audit to notify O/O of conclusion
• “Considered approved” if time frames not met by DEQ
• “Considered approved” not a carte blanche that liability
obligations have ended
Part 213: Audit Provisions
• DEQ audit results must:
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–
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Approve
Approve with conditions
Deny
Insufficient information
• If report denied O/O may:
– Submit revised report
– Appeal to response activity review created under Sec. 20114e
– File for a contested case hearing
• DEQ has 90 days to audit revised report
Reopening of “Approved Closures”
• Sec. 21323a(4)(d) – describes reasons O/Os may have
continuing liability notwithstanding DEQ approved or
considered approved closure reports
• (iv) – if monitoring reveals excess of the levels relied
upon in the closure report – liable O/O must perform
corrective action necessary to address potential
exposure
• (v) – if corrective actions relied upon in closure report fail
to meet performance objectives
Part 213: Liability Provisions
• Sec. 21323a through 21323m
– Essentially copied over from Part 201 and converted
to Part 213 language
– Questions on liability – Compliance and Enforcement
Section, RRD
• Karen Kligman, Section Chief: [email protected]
• Brian Muench: [email protected]
Sec. 21323m – Due Care Documentation
• Person may submit documentation of due care
compliance
• Within 45 days of receipt DEQ must approve, approve
with conditions or deny
– If documentation contains sufficient info to make a decision
• Person may
– Resubmit revised documentation
– appeal to response activity review panel under 20114e
– petition for contest case hearing
Sec. 21325: Qualified Consultant
• Education and Experience Requirements for Qualified
Underground Storage Tank Consultant (QC)
• DEQ no longer in regulatory oversight role of QCs – will
check for insurance certificates required with closure
reports
• Requirement that O/O use QC unintentionally removed
from statute – DEQ requiring QC for IAR,FAR, & Closure
Report work
BEA – 201 or 213? Or both?
• Question: Do I need to do a BEA for both the 201 and
213 statutes?
• No – liability provisions relative to BEAs are essentially
identical for both statutes
• Interpretation is that one BEA will cover both statutes
“Red-tagging” under Part 213
• The department, upon discovery of the operation of an
underground storage tank system in violation of this part,
rules promulgated under this part, part 211, or rules
promulgated under part 211, shall provide notification
prohibiting delivery…by affixing a placard…etc.
• Operation of a UST system is regulated under part 211
• Effectively eliminates red-tagging under Part 213 except where UST system is leaking and O/O not
implementing Sec. 21307 initial response actions
The Conundrum of Guidance
• New Sec. 21327 – prohibits department from relying
upon a guideline, bulletin, interpretive statement,
operational memorandum, or form with instructions to
support department’s decision to act or refuse to act.
– shall not use given the force and effect of law
• Regulated community wants guidance to assist in
understanding department’is view of technical issues,
e.g., NAPL, vapor intrusion guidance, due care
• Continuing to develop guidance and policies with
statement added that they don’t have effect of law
Part 213 Forms
• Where are the forms?
• www.michigan.gov/deq
– Select “Land” (along left column)
– Select “Leaking Underground Storage Tank Sites”
– Select “Forms and Documents” tab
Part 213: RRD Contacts
• District Offices
• Dennis Eagle, Field Operations Section
– [email protected]; (517) 335-4918
• Phil Schrantz, Chief, Field Operations Section
– [email protected]; (517) 241-7706
• Brian Muench, Compliance and Enforcement Section
– [email protected] ; (517) 335-6243
Part 213
Questions?