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

Indiana Petroleum & Environmental Contractors Association

August 26, 2008

Thomas W. Easterly, P.E., DEE, QEP Commissioner, Indiana Department of

Environmental Management

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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We Protect Hoosiers and Our Environment

Guiding Policy StatementIDEM’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. 4

Footnote 1IC 13-12-3 Environmental PolicyIC 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 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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NondetectNondetect Source Source MaterialMaterial

DefaultDefaultClosureClosureLevelLevel

Site-specificSite-specificClosureClosureLevelLevel

BackgroundBackground

ClosureClosure• Unrestricted closure at higher of Unrestricted closure at higher of residential exposure point residential exposure point concentrations or background levels concentrations or background levels for naturally occurring COCs.for naturally occurring COCs.• Closure with ERC at higher of Closure with ERC at higher of industrial EPCs or anthropogenic industrial EPCs or anthropogenic background for industrial property.background for industrial property.• Closure with ERC at higher of Closure with ERC at higher of background EPCs or anthropogenic background EPCs or anthropogenic background for recreational property.background for recreational property.

Expectation for CleanupExpectation for CleanupRemedy Selection HierarchyRemedy Selection Hierarchy1.1. Permanent remedy (removal or Permanent remedy (removal or

remediation to extent feasible)remediation to extent feasible)2.2. Source controls (containment -Source controls (containment -

engineered controls near the source.)engineered controls near the source.)3.3. Receptor controls (exposure prevention Receptor controls (exposure prevention

- engineered controls near the receptor)- engineered controls near the receptor)4.4. Institutional Controls (e.g. land use Institutional Controls (e.g. land use

restrictions)restrictions)Closure with ERC at concentrations above Closure with ERC at concentrations above

risk based levels if cleanup deemed risk based levels if cleanup deemed infeasible and exposure controlled.infeasible and exposure controlled.

COC Concentration Continuum

FreeFreeProductProduct

Expectation for Cleanup

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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 5Preference for Preference for

Cleanup?Cleanup?

IllinoisIllinois NoNo

MichiganMichigan YesYes

MinnesotaMinnesota YesYes

OhioOhio YesYes

WisconsinWisconsin YesYes

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IllinoisOur 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. 11

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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OhioDERR-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; and8. Community acceptance

Note: Petroleum sites regulated under BUSTR in the Ohio Department of Commerce.

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WisconsinNR 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)15

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 theSelection 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 23

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 infeasibilityWhen 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 InfeasibilityIDEM 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; and3. 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 AnalysisIDEM is considering the following factors for cost-

benefit 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 incremental benefit? 35

Your thoughts?

• Questions, comments or suggestions regarding cost-benefit analysis?

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Duration of Infeasibility DecisionsProposed 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 QualityAttn: Jeff Sewell100 North Senate AvenueMC 66-20 IGCN 1101Indianapolis, IN 46204-2251

[email protected]

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