Transcript Indiana Petroleum & Environmental Contractors Association August 26, 2008 Thomas W. Easterly, P.E., DEE, QEP Commissioner, Indiana Department of Environmental Management.

Indiana Petroleum & Environmental
Contractors Association
August 26, 2008
Thomas W. Easterly, P.E., DEE, QEP
Commissioner, Indiana Department of
Environmental Management
We Protect Hoosiers and Our Environment
Mission and Environmental Goal
IDEM’s mission is to implement federal and state
regulations to protect human health and the
environment while allowing the environmentally sound
operations of industrial, agricultural, commercial and
government activities vital to a prosperous economy.
IDEM’s goal is to increase the personal income of all
Hoosiers to the national average while maintaining and
improving Indiana’s environmental quality.
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We Protect Hoosiers and Our Environment
How is IDEM Protecting Hoosiers
and Our Environment?
Clear, consistent and speedy decisions
• Clear regulations
• Assistance first, enforcement second
• Timely resolution of enforcement actions
• Current, valid permits for every regulated entity
without unnecessary requirements
• Written Standard Operating Procedures
• Improved staff training and development
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Guiding Policy Statement
IDEM’s goal is to preserve, protect, and enhance the quality of the
environment so that, to the extent possible, future generations
will be ensured clean air, clean water, and a healthful
environment.[1] Accordingly, IDEM has the expectation that, to
the extent practicable, source materials[2] and contamination that
exceeds risk-based levels[3] will be addressed, in preferential
order, by removal or treatment, containment, engineering
controls, and institutional controls. Institutional controls may not
be selected as the sole remedial action at a site unless removal,
treatment and engineering controls are not practicable.
[1] IC 13-12-3-1(3)
[2] “Source material” refers to material that includes or contains hazardous substances, pollutants or contaminants that act as a reservoir for migration of
contamination to ground water, to surface water, to air, or acts as a source for direct exposure.
[3] “Risk-based levels” refers to residential, industrial or recreational - default or site-specific - closure levels as appropriate considering the land use. When
calculating site-specific closure levels, exposure pathways are assumed to be complete.
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Footnote 1
IC 13-12-3 Environmental Policy
IC 13-12-3-1
Purpose
Sec. 1. The purpose of this title is:
(1) to provide for evolving policies for comprehensive
environmental development and control on a statewide basis;
(2) to unify, coordinate, and implement programs to
provide for the most beneficial use of the resources of
Indiana; and
(3) to preserve, protect, and enhance the quality of the
environment so that, to the extent possible, future
generations will be ensured clean air, clean water, and a
healthful environment.
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Footnote 2
“Source material” refers to material that
includes or contains hazardous substances,
pollutants or contaminants that act as a
reservoir for migration of contamination to
ground water, to surface water, to air, or acts
as a source for direct exposure.
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Footnote 3
“Risk-based levels” refers to residential,
industrial or recreational - default or sitespecific - closure levels as appropriate
considering the land use. When calculating
site-specific closure levels, exposure pathways
are assumed to be complete.
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Expectation for Cleanup
COC Concentration Continuum
Nondetect
Default
Closure
Level
Site-specific
Closure
Level
Source
Material
Free
Product
Background
Closure
Expectation for Cleanup
• Unrestricted closure at higher of
residential exposure point
concentrations or background levels
for naturally occurring COCs.
• Closure with ERC at higher of
industrial EPCs or anthropogenic
background for industrial property.
• Closure with ERC at higher of
background EPCs or anthropogenic
background for recreational property.
Remedy Selection Hierarchy
1.
Permanent remedy (removal or
remediation to extent feasible)
2. Source controls (containment engineered controls near the source.)
3. Receptor controls (exposure prevention
- engineered controls near the receptor)
4. Institutional Controls (e.g. land use
restrictions)
Closure with ERC at concentrations above
risk based levels if cleanup deemed
infeasible and exposure controlled.
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Overview of IDEM research on how
other states handle selection of
remedial alternatives and preference
for cleanup or permanent remedies…
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USEPA Region 5
Illinois
Preference for
Cleanup?
No
Michigan
Yes
Minnesota
Yes
Ohio
Yes
Wisconsin
Yes
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Illinois
Our research of Illinois statutes, rules and website
turned up no apparent preference with regard to
remedial alternatives. The TACO website
http://www.epa.state.il.us/land/brownfields/cleanup/taco-brochure.html
provides this explanation:
Once remediation objectives are established, the site owner
may:
• Reduce contaminant concentrations to meet the remediation
objectives through removal or treatment of the chemicals;
• Restrict exposure to contaminated soil or groundwater or both by
using engineered barriers or institutional controls;
• Take no action, if contaminant concentrations present at the site
do not exceed Tier 1 remediation objectives;
or
• Use any combination of the options above.
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Michigan
State Statute 324.20118 (4) states a preference
for clean-up with this language:
(4) Remedial actions that permanently and
significantly reduce the volume, toxicity, or
mobility of the hazardous substances are to be
preferred.
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Minnesota
The MPCA’s Working Draft Guidance on Incorporation of Planned Property Use Into
Site Decisions for MERLA sites states:
“Institutional controls will not be used as the sole method of addressing a release if
there are response actions that are cost-effective and technically feasible.”
And
“The MPCA will continue to have a preference for cleanup (or response action)
measures that eliminate or reduce the need for property use restrictions and
engineering controls. This often requires the implementation of response actions
that involve the treatment and/or removal of the contamination.”
Notes:
It is not clear whether this preference applies to groundwater.
Petroleum sites may be regulated under different guidance.
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Ohio
DERR-00-RR-019 gives a weighted hierarchy of preference for remedial action
alternatives:
1. Overall protection of human health and the environment;
2. Compliance with applicable or relevant and appropriate laws, rules,
standards and criteria;
3. Long term effectiveness and permanence;
4. Reduction of toxicity, mobility, and/or volume through treatment;
5. Short term effectiveness;
6. Implementability;
7. Cost; and
8. Community acceptance
Note: Petroleum sites regulated under BUSTR in the Ohio Department of Commerce.
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Wisconsin
NR 722.09
(2) ENVIRONMENTAL LAWS AND STANDARDS.
Responsible parties shall select a remedial action or
combination of remedial actions that achieve
restoration of the environment to the extent
practicable, minimize the harmful effects from the
contamination on the air, lands and waters of the
state and comply with all applicable state and federal
public health and environmental laws and
environmental standards.
And (on next slide)
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Wisconsin (cont.)
(5) INSTITUTIONAL CONTROLS.
(a) Institutional controls may not substitute for
recycling, treatment or engineering controls.
(b) Institutional controls may not be selected as the
sole remedial action at a site or facility, unless
recycling, treatment or engineering controls are not
practicable, based on an evaluation conducted in
compliance with s. NR 722.07 (3) (a) and written
approval is obtained from the department after
review of the detailed evaluation in the remedial
action options report.
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New York
Hierarchy of preference for handling source
areas is given (from most to least) in
§375-1.8: Removal and/or treatment,
containment, elimination of exposure,
treatment of source at point of exposure
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Washington
WAC 173-340-360 --- Selection of cleanup actions
WAC 173-340-360(2)(b)(i)
(b) Other requirements. When selecting from cleanup
action alternatives that fulfill the threshold
requirements, the selected action shall:
(i) Use permanent solutions to the maximum extent
practicable (see subsection (3) of this section);
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Washington (cont.)
WAC 173-340-440 --- Institutional controls
WAC 173-340-440(6)
(6) Requirement for primary reliance. In addition to
meeting each of the minimum requirements
specified in WAC 173-340-360, cleanup actions shall
not rely primarily on institutional controls and
monitoring where it is technically possible to
implement a more permanent cleanup action for all
or a portion of the site.
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Your thoughts?
• Do you agree or disagree with the underlying
purpose of this policy?
• Is the policy statement clear and understandable?
• Do you have comments or concerns with the policy
statement or footnotes?
• Are there other states that we should be looking at?
• Other questions, comments or suggestions?
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Implementation approaches IDEM has
proposed or considered to date…
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Appendix
In the May response to comments & list of substantive
changes, IDEM proposed a “Technical Impracticability”
appendix to provide guidance on demonstrating a
remedial alternative to be infeasible. IDEM is leaning away
from this implementation approach in light of concerns
with TI terminology & the Superfund TI waiver process.
Accordingly this presentation is using the terms feasibility
& infeasibility.
An appendix would describe the process for demonstrating:
• Presumptive infeasibility scenarios
• Criteria for site-specific infeasibility demonstrations
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Chapter on the
Selection of Remedial Alternatives
IDEM is currently favoring the addition of a chapter on selection of
remedial alternatives which would better integrate this concept with the
rest of the Technical Guide. Remedial alternatives are already commonly
discussed and their feasibility evaluated in the context of remediation
work plans and corrective action plans. This approach would seek to
provide clear guidance on the criteria IDEM will apply in the remedial
alternative selection process.
The chapter would include:
• Hierarchy of preferred remedial alternatives
• Process & criteria for evaluating the feasibility of remedial alternatives
• Presumptive infeasibility scenarios
• Process & criteria for a site-specific infeasibility demonstration
• Process for documenting the infeasibility of a preferred remedial alternative
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Your thoughts?
• Do you favor one implementation approach
over the other?
• Do you suggest alternatives?
• Do you have comments regarding the
terminology we are using?
• Are there approaches from other states that
we should be looking at?
• Other questions, comments or suggestions?
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Feasibility criteria IDEM has
considered to date…
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Presumptive &
Site-specific Infeasibility
In drafting guidance for demonstrating the infeasibility
of preferred remedial alternatives, IDEM is
considering criteria for two types of scenarios:
1. Presumptive infeasibility for foreseeable scenarios
where infeasibility is apparent.
2. Site-specific infeasibility for scenarios where a particular
remedy may or may not be technically or economically
feasible.
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Presumptive infeasibility
When contamination is inaccessible, or when treatment or
removal would present a risk to public safety it may be
presumed to be infeasible. Examples include:
• Under or too near building foundations such that excavation
would compromise the integrity of the building;
• Under roads, streets or rail lines such that treatment or
removal would compromise critical services such as fire,
police, hospitals, or cause unreasonable traffic delays or
congestion, if reasonable caution would not prevent the
interruption;
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Presumptive infeasibility (cont.)
• Treatment or removal that would cause interruption of
utilities to a large number of customers, if reasonable caution
would not prevent the interruption;
• Interruption of utilities to a customer that would create
unacceptable hazards or risks, if reasonable caution would not
prevent the interruption.
• Excavation activities that would pose a likely safety risk for
which arrangements to secure the site and prevent the risks
are not reasonably possible; or
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Your thoughts?
• Would you recommend additions or deletions
from these presumptive infeasibility
scenarios?
• Are there approaches to presumptive
infeasibility from other states that we should
be looking at?
• Other comments or suggestions?
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Site-specific Infeasibility
IDEM is considering guidelines and criteria
related to three components to be
submitted in support of a demonstration
that a preferred remedial alternative is
infeasible:
1. Conceptual Site Model (CSM);
2. Demonstration of technical infeasibility; and
3. Cost Benefit Analysis.
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Conceptual Site Model
The RISC Technical Guide already anticipates the
development of a CSM to facilitate a complete
understanding of the risks posed by
contamination at a site. This concept is
currently discussed in the Presampling
chapter. IDEM envisions CSMs being used to
facilitate an evaluation of the feasibility of a
preferred remediation alternative.
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Your thoughts?
• Questions, comments or suggestions
regarding the role of a CSM in an infeasibility
demonstration?
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Demonstration of
Technical Infeasibility
IDEM is considering the following criteria for
determining if a remedy is technically
infeasible:
Infeasibility of a preferred remedial alternative may
be demonstrated by showing that:
• Removal or treatment is technically infeasible; or
• Contaminants have reached a plateau of recovery
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Your thoughts?
• Questions, comments or suggestions
regarding these criteria?
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Cost-Benefit Analysis
IDEM is considering the following factors for costbenefit analysis in evaluating the feasibility of
remedial alternatives:
• Does treatment or removal pose potential harm to health, safety,
public welfare or the environment that cannot be adequately
controlled?
• Are remedial technologies available to reliability and safely attain
clean up in a reasonable timeframe?
• Would the remedial alternative result in a substantial deleterious
impact to the environment?
• Is the incremental cost substantial and disproportionate to the
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incremental benefit?
Your thoughts?
• Questions, comments or suggestions
regarding cost-benefit analysis?
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Duration of Infeasibility Decisions
Proposed changes to ERC guidance would make reporting or monitoring
requirements routine in ERCs where necessary to assure the long term
protectiveness of remedies relying on institutional controls. If monitoring
or inspection indicates that the remedy is no longer protective, a further
response action may be necessary.
Accordingly IDEM is considering that an infeasibility determination may no longer
apply if:
• The risk of harm to health, safety, public welfare or the environment from the
alternative remedy cannot be adequately controlled; or
• Construction or demolition at the site makes access to the contaminants possible
for treatment or removal.
When such situations occur, treatment or removal of the contamination may be
necessary.
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Your thoughts?
• Questions, comments or suggestions on
duration of infeasibility decisions?
• Does this approach address concerns with
previous drafts that “reopeners” were overly
broad?
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Next Steps
• Requesting your comments and suggestions
by the end of September.
• IDEM plans to work from existing draft
language and comments received to draft a
new chapter on the selection of remedial
alternatives.
• IDEM anticipates providing additional
opportunities to review and discuss the draft
chapter
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IDEM, Office of Land Quality
Attn: Jeff Sewell
100 North Senate Avenue
MC 66-20 IGCN 1101
Indianapolis, IN 46204-2251
[email protected]
317.234.1000
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