Contaminated Sites and Long-Term Stewardship: Meeting Obligations - - PowerPoint PPT Presentation

Contaminated Sites and Long-Term Stewardship: Meeting Obligations for Residual Contamination

Best Practices for Counsel in Implementing, Maintaining and Enforcing LTS Today’s faculty features:

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TUESDAY, MARCH 10, 2015

Presenting a live 90-minute webinar with interactive Q&A David R. Gillay, Partner, Barnes & Thornburg, Indianapolis

• Dr. Henry Schuver

, Environmental Scientist, U.S. EPA, Washington, D.C. Sheri L. Bianchin, Remedial Project Manager, U.S. EPA, Region 5, Superfund Division, Chicago Kyle Hoylman, Founding Partner, Protect Environmental, Louisville, Ky.

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Contaminated Sites and Long Term Stewardship:

Meeting Obligations for Residual Contamination Best Practices for Counsel to Implement, Maintain & Enforce LTS March 10, 2015 – Strafford National Webinar David R. Gillay, Esq. Partner, Environmental Department

Overview

• Intro and setting LTS stage (Gillay; 10 min)
• Perspective on VI and LTS implications (Schuver; 20

min)

• Overview of IC Guidance and Case Study (Bianchin;

20 min)

• New Tools to manage potential LTS for VI pathway

(Hoylman; 20 min)

• Some Best Practices to Implement, Maintain,

Enforce LTS (Gillay; 5-10 min)

• Q&A Session (Panel; 10-15 min)

6

Setting the Stage

• Draconian Liability Schemes
• Birth of new due diligence standard
• VI Evolution
• TCE Revolution
• Re-opening of closed sites
• Long Term Stewardship Revelation

7

CERCLA Strict Liability

• Under the Comprehensive Environmental Response

Compensation and Liability Act (CERCLA), persons may be held strictly liable for cleaning up hazardous substances at properties that they either currently own

• r operate or owned or operated at the time of

disposal.

• Each State has a counterpart
• Petroleum excluded

8

ASTM Phase I ESA

• New Phase I ESA

– effective October 6, 2015

• US EPA’s assertions on “vapor” in Phase I ESA
• ASTM’s companion ‘Vapor Encroachment Condition’

– Search distances – Regulatory scrutiny

9

VI Pathway

10

VI Evolution

• Status Update on EPA’s National VI Policy
• More sites with VOCs will likely “screen in”

–Trigger investigation and assessment –Do I simply pre-emptively mitigate? –Potential platform to re-open sites

11

Key Issues

• Pre-emptive mitigation

– Entire new chapter – Incorporates EPA’s new (2013) IC Policy – AARST-ANSI Standard for OM&M

• Conservative IA screening levels

– Critically important – drives soil gas & gw SLs – TCE RfC (non-cancer endpoint at 2.1ug/m3) is driving risk

12

TCE Revolution

• 2011 IRIS update
• ATSDR update (new Toxicity Profile)
• Risk Communication

– history of TCE over past 10 years; (1 - 11 ug/m3); now 2.1 ug/m3 over a matter of hours or days?

• Toxic Tort Suits

– Bodily injury / property damage

• TCE will drive groundwater screening levels below

MCL; EPA policy on technical impracticability under review.

13

Re-Opening Triggers

• New National Guidance for 5-YR Reviews

– Superfund Sites

• State regulatory scrutiny on TCE and VI

– CA, MN, NY, NJ, CT

• Litigation trends and update

– Transactional issues – Environmental Consulting Firms

14

LTS Revelation

• In most States, ICs are generally necessary unless the

site meets unlimited use and unrestricted exposure (UU/UE) (i.e., Generic Residential Clean-up).

• Regulatory cleanup levels for UU/UE are virtually

impracticable to achieve (TCE, cPNAs)

– Off-site issues can complicate pathway to closure

• The more contamination that is left, the longer your

tail of post-closure obligations will be, which will potentially increase liability and “taint” real estate.

15

What is the Evidence for Long Term Stewardship (LTS)

(vs. Stopping All Monitoring (SAM)) for the Vapor Intrusion Pathway?

For Strafford National LTS Webinar Mar. 10, 2015 by Henry J. Schuver, MS (Geology) DrPH (Epi) USEPA, ORCR, Wash. DC (schuver.henry@epa.gov)

A Personal Public-Health Perspective - Does not Imply Agency Policy

See: http://iavi.rti.org and http://epa.gov/oswer/vaporintrusion

Agenda

• Introduction
• Definitions
• Threshold criteria for LTS
• Data/evidence from:

– Chemical VI – Radon VI

• Analogous (evidence-based) Polices
• Conclusions

17

Does this (simple) Conceptual Site Model [w/ variable categories 1-6] support LTS or Stopping All Monitoring (SAM)?

Dissolved Contamination LT Diffusion Vadose zone Building zone of influence Wind effects Indoor Air Cracks Qsoil Air streamlines Convection Top of capillary zone Water Table Stack effects

Mixing in indoor air and inhalation Advection Diffusion Phase partitioning Cgw to Csoil gas

• Mod. from slide by M. Bolas, Ohio EPA, presented Jan. 2006

‘Low’ Chlorin. Chem. Vapor Source Term

Contamination Contamination

1 2b 2a 2c 3 4

5 Improving Assess. Methods & RE Sales 6 Changing Tox., Exposure Durations & Conc.

Rn source 3

What is Long-Term Stewardship (LTS)?1

• LTS “applies to sites where long-term

management of contaminated environmental media is necessary to protect human health”1, 2

1http://www.epa.gov/landrevitalization/ltstf_report/whatis_longterm_stewardship.htm 2Long-Term Stewardship: Ensuring Environmental Site cleanup Remain Protective Over Time” 19

What is SAM? ‘Stop All Monitoring’*

• Most ‘conventional’ VI monitoring is for an:

– Anticipated Limited-duration ‘Assessment’

• i.e., That can be used to Predict the future VI

– & if Predict < std – Screen out (& never look back)

• Does evidence support the presumed goal of

Stopping All* Monitoring (while VI-source remains)?

*All = across All buildings (space) and All time

20

LTS ‘Threshold’ Criteria #1

1) Do VI sites have “contamination remaining”

• YES

– VI sites are defined by the extent of contamination

• Buildings of concern for VI, are:

– Overlying/proximate-to vapor-forming contamination

• i.e., VI-Source Media Conc. > generic screening values*
• So there is a Potential for inappropriate (VI) exposures

21

*e.g., > USEPA Regional Screening Levels (aka PRGs) based on empirical atten. data

Vapor Intrusion – Defined by Source

Growing Awareness of Subsurface Vapor Sources - Especially in Non Drinking Water Areas

If you look for low enough concentrations (DCE is ‘unique tracer’ of Groundwater) Proximity to a source appears to ‘determine’ its presence in indoor air (‘complete’ VI pathway)

DCE – Dichloroethylene

Source definition is a challenge - most of this plume found by indoor air

22

LTS ‘Threshold’ Criteria #2

2) Is the “management of contaminated environmental media necessary to protect human health”?

• YES
• Exposure factors (~10:1)
• Levels measured (e.g., up to ~2,000 ug/m3);

– Combined with:

• Typical toxicology (lab-animal)-based estimates of Risks
• Correlations with human disease patterns

23

Disease Assoc.

Support LTS or SAM? . .

• TCE plume (70 block) area:

– ~2615 residents, 1090 births (‘78-02)

• 248 effects ~ ~ 1/4

– 117 Small for gestational age

• RR = 1.23 (95% CI = 1.03-1.48)

– 76 Low birth weight

• RR = 1.36 (95% CI = 1.07-1.73)

– 37 Term low birth weight

• RR = 1.68 (95% CI = 1.20-2.34)

– 15 Cardiac defects

• RR = 2.15 (95% CI = 1.27-3.62)

– 3 Conotruncal** defects

• RR = 4.91 (95% CI = 1.58-15.24)

* Also a similar paper on increases in adult cancers ** “abnormal formation of the outflow tracts of the heart” (RR) Rate Ratios relative to the rest of NY state (excluding NYC) http://ehp03.niehs.nih.gov/article/fetchArticle.action?articleURI=info%3Adoi%2F10.1289%2Fehp.1103884

“Conclusions: Maternal residence in both areas was associated with cardiac defects. Residence in the TCE area, but not the PCE area, was associated with low birth weight and fetal growth restriction.”

Week 3: 15-21 days from fertilization - “Primitive heart tube is forming” Week 4: 22-28 days from fertilization - “The heart bulges, further develops, and begins to beat in a regular rhythm.”

Do

• 1. How many other
• comm. (< #) ?
• 2. Short-term exp.

concerns are real

LTS ‘Threshold’ Criteria #3

3) Are LTS activities “necessary to ensure that these sites remain [over the “long term”] protective of human health and the environment.”

• YES
• VI sources are often long-lasting (GW plumes)
• VI is unpredictably variable over time* both w/n:
• Short-term (~current conditions [say < 90 days])
• Long-term (future conditions [say >90 days to 30 years]

25

Episodic Peaks Drive Exposure – Support SAM?

25 days (3.5%) present more exposure than the other 698 days

• Dr. Paul Johnson’s slide 20/48 - Note audio recording of presentation also available at:

https://iavi.rti.org/attachments/WorkshopsAndConferences/05_Johnson_03-19-13.pdf

26

Chemical VI (TCE) at ASU’s ‘Sun Devil Manor’

• 1. VI is variable in

this house

• 2. Peaks drive

(chronic) exposure

Some data from USEPA-ORD’s VI Research House with ~similarly Episodic behavior support SAM?

Slide 7 of 22, audio also available at: https://iavi.rti.org/attachments/WorkshopsAndConferences/06_Truesdale_03-19-13.pdf 27

Heated side

• f duplex
• 1. VI is

variable in this house

• 2. Peaks

drive (chronic) exposure

Is (simpler-)* Radon Intrusion Episodic?

Looks to be in this Swedish home w/ unusual 1-day samples

28

* w/ a more constant & closer source, than most Chemical VI (e.g. ASU & ORD) Note, highest

• ften not in

winter

Do these daily samples support SAM?

• 1. Rn-VI is

variable in this house

29

Is Radon* Intrusion Episodic?

Same MN home w/ Hourly, 2-, 7-, & 90-day (& yearly) samples Do these samples support Stopping all Monitoring?

* w/ a simpler, more constant & closer source, than most Chemical VI) Would two samples from Winter help?

• 1. Rn-VI is

variable in this house

Do these 1-yr samples support Stopping all Monitoring, after _ yrs?

30

1 2 3 4 5 6 7 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

Radon (pCi/L) Year After Construction

• Fig. from Steck in draft Lessons from Radon Studies …

>4x variation in 17 years

• 1. Even 1-yr. long sample

results are variable

Do differences & changes in Buildings support

Stopping All Monitoring?

1) Design

– Ground contact – Heating type, HVAC – Height, elevation, orientation … – Vegetation surrounding?

2) Construction 3) Condition 4) Occupants/Operation 5) Natural changes 6) Man-made changes

31

Who thinks EPA’s VI-db (GW) supports Stopping All Monitoring?

32

https://iavi.rti.org/attachments/WorkshopsAndConferences/04_For_Web_Dawson2012_AEHSfinal%20v2.pdf

>100,000x

variability, Includes both: Space (24 sites) & Time** **Using a few (short-term) Indoor Air samples per building

Does >10,000x* Variation in Sub-Slab to Indoor Air (w/n building) Attenuation … supports SAM?

33

Figure 2-15. A. Box-and-whisker plot showing subslab soil gas CVOC attenuation factor distributions from EPA’s vapor intrusion database for individual sites with several buildings per site and subslab soil gas concentrations over 50 times “background” (U.S. EPA, 2012a) **Using a few (short-term) Indoor Air samples per building

*Variability,

Includes both: Space (12 sites) & Time**

* Extended ‘medians’ analysis for rest of EPA VI db showed similar results (by Dr. Wertz) Red & blue added to original slide by Dr. Helen Dawson, from AEHS March 2011

34

(Lowry Air Force Base, Colo.)

~100x

More atten. in building than in subsurface

*

Does this Support SAM ?

Occupant-Operations Hourly Rn Variation

35

2 4 6 8 10 12 50 100 150 200 250 300 350 400

Radon (pCi/L)

Hours

• Fig. from Lessons from Radon Studies …

Windows: Closed, Open EPA Rn testing procedures recommend Closed-house conditions – How many

• Chem. VI investigations/datasets do?

Does this Support SAM?

~ 5x factor

Do Radon Studies illustrating effects of changes in building-structural factors – Support SAM?

Steck 2007, see: http://www.aarst.org/proceedings/2007/8-SteckYTYRnvariation07.pdf

~ 5x change for both locations ~ 1/4x change for Stairwell Note, the difficulty of estimating changes in heating or air condition or adding porches; and also impacts to VI.

Both man-made + natural changes: Earthquakes, Settling, Drying soils, Burrowing …

36

1-yr samples

Do evidence-based Policies for (simpler-) Radon support SAM? … NO

• USEPA (NAS-based) policy (1993) recommends:
• Sample every home (across space)
• Re-sample every 2 years (across time)
• Sample for a minimum of 2 diurnal cycles
• 48-hours

37

Policy Allowing Natural Attenuation to be part of (GW & Soil) Remedies

• Monitored Natural Attenuation

– (MNA, EPA 1999)*

– A major policy to allow & ensure natural processes are ‘safe’

– With “adequate monitoring of a natural attenuation remedy to ensure with a high degree of confidence that potential receptors will not be impacted” – Is not a ‘no action’ or ‘walk away’ remedy – MNA is effectively:

• On-going assessment - to ensure on-going protection

*OSWER Dir. 9200.4-17P for CERCLA, RCRA, UST

38

NRC panel/report on managing complex GW sites* support SAM?

• Panel reported increasing use of controls

– that would ‘of course’ include continued ground- water monitoring to be sure there would be no inappropriate exposures

• And when asked (in Q/A**) If that included
• n-going monitoring for VI it was … …

– Agreed it would

• So: No, NRC does Not support SAM for VI

» i.e., VI is one pathway assoc. w/ GW plumes & needs LTS

39

* Alternatives for Managing the Nation’s Complex Contaminated Groundwater Sites, NRC 2012

(http://www.nap.edu/openbook.php?record_id=14668) ** Battelle Chlorinated Remed. Conf. 2014

In Summary

• Vapor Intrusion meets:

– The three ‘threshold’ criteria for

• Long Term Stewardship

– Contamination remains (proximate to receptors)

– Management is needed to Protect human health – Management/activities are needed over the long term

• Given the nature & scale of changes possible:

– LTS is as appropriate (for VI),

• or even more so

– Than for any other (current) pathway for exposure

40

While VI Contamination Remains …

& for GW plume-sources could be 20, 30, even 50 +? years

• Be a Good Steward

– Ensuring no* (VI) Exposures

• e.g.,

» On-Going Monitoring at an frequency appropriate for the:

• Shortest exposure durations of concern
• Variability of intrusion (incl. episodic peaks)
• Concentration & Mass of Contamination remaining; Or

» Ongoing Prevention/Control of exposures [needs separate discussion]

Not acting as if the goal is to Stop All Monitoring**

which:

Relies on Un-Monitored Natural (vapor) Attenuation As the only protection

41

*inappropriate **Is there any, or a even a simple majority, or 95% of, evidence to support that?

Acknowledgements

• To those who have designed &/or collected

some of the most important (& highest- quality) evidence for assessing/managing VI risks:

– D. Steck – P. Johnson, C. Holton – B. Schumacher, C. Lutes – H. Dawson, T. McAlary, W. Wertz – I. Hers

42

Henry J. Schuver, MS (Geology) DrPH (Epi) USEPA, ORCR, Wash. DC (schuver.henry@epa.gov)

A Personal Public-Health Perspective - Does not Imply Agency Policy

See: http://iavi.rti.org and http://epa.gov/oswer/vaporintrusion

43

March 10, 2015 Sheri Bianchin, EPA Region 5

Contaminated Sites and Long-Term Stewardship

44

Topics Covered

45

 Institutional Controls (ICs) overview  Recent IC Policies  NCP expectations / Decision document

• verview

 From decision documents to effective

ICIAPs

IC Basics

 Non-engineered instruments, such as

administrative and legal controls, that help to minimize the potential for exposure to contamination and/or protect the integrity of a response action.

 Limit land and/or resource use or by

providing information that helps modify

• r guide human behavior at a site.

46

IC Basics (continued)

 Used on a short-term basis (for

restoration remedies until UU/UE achieved) or on a long-term basis (where waste is left in place above UU/UE in perpetuity)

 Federal facilities use “LUCs” and the SF

removal program uses “PRSCs”

 Four Types of Basic ICs

47

EPA’s IC Workload

 IC implementation area amounts to an

important part of remediation projects

 Over 50% of CC sites may require future

IC work (IC implementation needed, necessary change in scope of implemented ICs, no information publicly available, sites need additional review)

48

EPA’s IC Workload (continued)

 Five-Year Reviews identify IC-related

issues with regularity, consistent with ICTS data

 Significant percentage of FYRs identify

at least one IC issue

49

EPA’s Recent IC guidance

 PIME Guidance (Dec 2012) – Identifies and

addresses many of the common issues that may be encountered when using ICs pursuant to several of EPA's cleanup programs

 ICIAP Guidance (Dec 2012) – Provides EPA

Regions with a template for developing IC plans at contaminated sites where the response action includes ICs

 Five-Year Review IC Supplement (Sept 2011) –

Provides recommendations for evaluating protectiveness in five-year reviews for the IC component of remedies

50

EPA’s Recent IC guidance (cont.)

"Enforcement First" to Ensure Effective Institutional Controls at Superfund Sites , 3/17/2006.

These guidance documents can be found:

http://www.epa.gov/superfund/policy/ic/guide/index. htm

51

National Contingency Plan (NCP) Expectations

52

 “EPA expects to use institutional controls such as water

use and deed restrictions to supplement engineering controls as appropriate for short- and long-term management to prevent or limit exposure to hazardous substances, pollutants or contaminants.”

 “The use of institutional controls shall not substitute

for active response measures (e.g., treatment and/or containment of source material, restoration of ground waters to their beneficial uses) as the sole remedy unless such active measures are determined not to be practicable, based on the balancing of trade-offs among alternatives that is conducted during the selection of remedy.” (NCP 300.430 (a) (1) (iii) (D))

NCP Expectations (continued)

53

 UU/UE considerations – ICs are a necessary

supplement to remedial actions that leave waste in place above UU/UE. ICs should generally be included as a component of alternatives that rely on engineering controls (e.g., containment) to limit exposure to

• contamination. (NCP 300.430 (e) (3) (ii))

ICs in Decision Document overview

54

 When ICs are identified for protectiveness

during the RI/FS, they should be appropriately recorded in all remedy decision documents, including: Records of Decision, Record of Decision Amendments, Explanations for Significant Difference, and Notes to the File.

 ICs are considered limited remedial

actions.

Remedial Action Objectives (RAOs)

55

 ICs should be carefully selected and

tailored to meet Remedial Action Objectives (RAOs) for the site.

Planning ICs– General Considerations

 Starts during RI/FS . . . continues through

implementation

 Choosing the right type of IC instrument

depends on…

 IC objectives Intended duration of the ICs  Number of parcels requiring restrictions  Support for ICs by affected landowners State/tribal/local government cooperation  And many more!

56

Developing IC plans

 Revise as site conditions warrant (but does

not substitute for a remedy decision document)

 Discusses roles and responsibilities for IC life-

cycle among various stakeholders

 EPA guidance provides a recommended

template for this type of IC plan

57

Developing IC plans

 IC Implementation and Assurance Plans

(ICIAPs) are used to help implement, maintain, enforce, and terminate (if applicable) the ICs selected in decision documents

 Do not replace or substitute for decision

document

 Develop during RD phase

58

Long Term Stewardship

59

 Type of Plans containing LTS provision  O&M Plan, ICIAP (Institutional Control

Implementation and Assurance Plan), Land Use Control Implementation Plan (federal facility),

• ther entity’s plan).

  Verification that ICs are in-place  Describe whether ICs have been implemented

(e.g. restrictive covenant is recorded, ordinance is in-place.). Provide copies of implemented ICs

60

 Ensure IC Objectives are Clear and ICs are

achieving those objectives

 Describe the objective(s) of ICs (e.g. prohibit

interference with landfill cap, groundwater plume) under current conditions

 Review existing ICs to determine if all objectives

are included in an IC and that IC embodies the appropriate objective/restriction. (e.g. Does the restrictive covenant state that groundwater use is prohibited)

IC LTS Plan Considerations, cont.

61

 IC Assurance Monitoring



Ensure that an entity is responsible for IC monitoring - - land use

restrictions and groundwater restrictions

 Frequency of site inspections and IC monitoring  Activities that constitute monitoring  Events and activities to be monitored



IC LTS Plan Considerations, cont.

62

 Confirmation that Description of Physical Area is Accurate  Review and update as needed available map or maps of the

areas that do not support UU/UE under current conditions

 (e.g. landfill as constructed, industrial use cleanup standards)

and areas subject to ICs

 Verify that physical description of the current non UU/UE areas

is covered by the ICs (all proprietary controls and governmental controls) –usually by comparing IC map to UU/UE map

 Accurate mapping of residual contamination, IC boundaries, and

• ther site features

 Location of contamination  Location of impacted parcels  Location of engineering controls  Location of restricted areas

Sample Groundwater IC Location

63

FIGURE X: Institutional controls (ICs) will be necessary to restrict the potable use of groundwater within the contaminated plume, identified above, until groundwater cleanup goals are met.

Sample IC Overlay

64

IC LTS Plan Considerations, cont.

65

 Recordation & Title Work (Proprietary Controls

Only)

 Verify title work shows owner signed control and

recorded encumbrances will not interfere with restrictions

 Verify Property information and stakeholder contacts  Parcel ownership/occupancy information  Property interest and resource ownership  Responsible parties and other stakeholders  Tribal, state, and/or local government contacts  Other relevant stakeholders



IC LTS Plan Considerations, cont

66

 □ Enforcement entities and procedures  Enforcement triggering events  Responsible entity  Procedure and time frame  Enforcing entity and notification procedures  Legal authority for enforcing ICs  Contingency plans  Financial Assurance

IC LTS Plan Considerations, cont

67

 Verification of Current Compliance   Verify enforcement mechanisms and parties

responsible

 Describe what the Site is used for and whether it

comports with the zoning and master plan (if available)

 Identify Inconsistent uses, if applicable  Describe what was observed during the inspection.

(e.g. compatible uses with landfill cap?)



IC LTS Plan Considerations, cont

68

 IC Modification & Termination Elements  Entity responsible for deciding whether

modification may occur

 Entity responsible for deciding whether

termination may occur

 Modification process  Conditions for termination (if applicable)  Termination process (if applicable)

IC LTS Plan Considerations, cont

69

 □ Enforcement entities and procedures  Enforcement triggering events  Responsible entity  Procedure and time frame  Enforcing entity and notification procedures  Legal authority for enforcing ICs  Contingency plans  Financial Assurance

IC LTS Plan Considerations, cont.

70

 Reporting  Reporting procedures  Reporting frequency  Events and activities to be reported  Location and procedures for accessing records  Entity responsible for reporting

ROLES

71

 Periodically PRPs and EPA shall evaluate both

the administrative/legal components as well as the physical evidence to ensure that

 ICs are both implement  EPA will document these results in the Five-Year

Review Report (for CERCLA sites)ed and fully effective

 EPA will look to PRPs to take lead: See

"Enforcement First" to Ensure Effective Institutional Controls at Superfund Sites , 3/17/2006.

Questions?

72

Sheri Bianchin;

U.S. EPA Region 5 Superfund Division, bianchin.sheri@epa.gov

Vapor Intrusion: Trending Topics

Strafford National Webinar March 10, 2015 Kyle Hoylman, Protect Environmental

Overview

• Soil Vapor Migration and VI Mitigation Basics
• VI Mitigation Standard (ANSI standard)
• VI Contractor Credential
• Long Term Stewardship (LTS)
• Vapor Safe Buildings

Expert Service. Trusted Professionals. Peace of Mind Protection.™

1

Three conditions must be present:

• 1. Soil vapors (source)
• 2. Entry routes (path)
• 3. Driving force (pressure)

Expert Service. Trusted Professionals. Peace of Mind Protection.™

2

Soil Vapor Migration

• Pressure, Resistance, Vacuum
• Extension of the pressure field throughout the area of

impact is essential

• Other strategies exist when ASD isn’t a viable option
• Proactive adoption of mitigation strategies in new

construction is more cost effective and provides better

• ptions
• Ongoing OM+M is required to ensure strategy is effective

and meet LTS obligations “Mitigation is nothing more than pipe and a fan.”

VI Mitigation Basics

Expert Service. Trusted Professionals. Peace of Mind Protection.™

3

Deficient Mitigation Systems

Expert Service. Trusted Professionals. Peace of Mind Protection.™

4

Deficient Mitigation Systems

Expert Service. Trusted Professionals. Peace of Mind Protection.™

5

• $275/mo operating cost
• Weekly maintenance
• Not addressing VI pathway
• Portions of interior vent

piping on positive side of blower

Deficient Mitigation System

Expert Service. Trusted Professionals. Peace of Mind Protection.™

6

• $20/mo operating cost
• Minimal maintenance
• Addressing VI pathway
• All portions of interior vent

piping on negative side of fans

Efficient Mitigation System

Expert Service. Trusted Professionals. Peace of Mind Protection.™

7

• Developed by AARST, in conjunction with EPA OSWER,

utilizing ANSI standards process

• Provides standard approach for site assessment, PFE

diagnostics, system design and installation, OMM and long- term risk management

• Designed to fill gap between initial VI characterization and

mitigation strategy implementation

• Useful in ensuring consistency in approach between

contractors, consultant and regulators

• Encompasses residential, multifamily and large building

envelopes – passive (new construction) and active

VI Mitigation Standards

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• Developed by AARST, in conjunction with EPA OSWER
• Advanced curriculum focused on VI mitigation,

differentiates VI from radon mitigation

• Focuses on advanced diagnostics, system design and

installation

• Focuses on documentation procedures, OMM writing and

administration and risk communication

• Properly insured, proper worker health and safety practices
• Curriculum, exam, continuing education and credential

maintenance

• Designed to support licensure through certification

VI Mitigation Credential

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• Stakeholder
• Regulatory, standards of

practice

• Site access / scheduling
• Contaminant, concentrations
• Diagnostic (litigation)
• Environmental (LBP / asbestos)
• Mechanical (HVAC / other)
• Construction type – new,

existing

Mitigation Design Considerations

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• Building size, location, use
• Foundation type(s), condition
• Soil conditions, permeability
• Water table, water intrusion

considerations

• Building characteristics
• Ongoing OMM considerations
• Budget considerations
• Safety considerations

Our goal is to correct the problem using the most efficient, economical mitigation design that satisfies the project requirements.

Operational Inefficiencies

• Seasonal Changes
• Environmental Changes
• Building Pressure Changes
• Soil Condition Changes
• Onsite Inspection Requirements
• Ongoing IA/SS Sampling Requirements

Changing conditions are constant, and typical mitigation systems do not possess the capability to adapt to these changes – excessive vacuum, excessive expense OR the system fails to meet its operational benchmarks

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Overcoming Operational Inefficiencies

• Dynamic controls for dynamic conditions – stabilize

changes, perform to predefined operational benchmarks, create a more efficient system

• Remote monitoring for system performance, system

adjustments and system alerts / notifications – eliminate

• nsite system inspections, provide 24/7/365 monitoring,

automate reporting, potentially eliminate IA/SS sampling

• Dynamic controls and remote monitoring:
• Save Money
• Conserve Resources
• Manage Liability
• Meet Regulatory Requirements

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Vapor Safe Buildings

• Defined as building that utilize strategies to minimize or

prevent VI in new or existing construction

• Supported by EPA, especially when utilized for Brownfield

redevelopment

• Emerging method for eliminating vapor encroachment

condition in real estate transaction (ASTM E2600)

• May contribute to LEED points on sustainable building

projects

• Provides a mechanism for consultants and RP’s to

effectively manage long-term risk and liability

• Additional benefits – moisture intrusion management

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Vapor Intrusion: Trending Topics

Kyle Hoylman 877-508-8850 Kyle@ProtectEnv.com

Contaminated Sites and Long Term Stewardship:

Meeting Obligations for Residual Contamination Best Practices for Counsel to Implement, Maintain & Enforce LTS March 10, 2015 – Strafford National Webinar David R. Gillay, Esq. Partner, Environmental Department

Some Suggested Best Practices

• Conduct an internal audit of closed/active sites

with residual chlorinated COCs (TCE)

– Technical and legal aspects

• Critically evaluate past settlement provisions,

releases, reps/warranties, indemnities

• Consider necessary updates to financial

disclosures, new claims, new insurance

• Update corporate policies and provide training

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Overarching Practices (cont)

• Once the total life-cycle costs of implementing, monitoring,

and enforcing an IC, which may exceed 30 years, are fully calculated, it may actually be less costly to reduce source(s)

• Develop a multi-disciplinary team to critically review

feasibility studies to fine-tune aggressive source reduction with risk management tools to reduce future environmental liability

• Determine how best to structure a long term stewardship

and/or IC Plan to manage residual COCs and potential future risks using new EPA IC Guides and policy as part of closure strategy.

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IC Guidance – Key Takeaways

• EPA recommends the balancing criteria required

under CERCLA and the NCP and recommended by RCRA.

• Consider a matrix to transparently show
• evaluation. Critically review.
• Key criteria:

– Long-term effectiveness – consider size of area to be managed, the COIs, characterization/plume behavior, who will monitor and enforce. – Costs – estimate costs for implementing, monitoring, and enforcing ICs.

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Alternative to LTS - Continuing Obligations

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Overcoming VI Challenges

• VI pathway is complex and science is evolving

but you can successfully navigate to closure with cost effective and practical approaches

• Need a team of multi-disciplinary experienced

experts on VI

• Site-specific legal and technical solutions do

exist

• Do not let VI expose you to liability and

increased costs to address

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Tip #1 – Upfront Planning

• Develop a stakeholder approved VI Decision Matrix

with screening levels for immediate (hr), acute (days), subchronic (weeks), and chronic (months)

• TCE is driving risk. There are alternatives.
• Develop protocols for gaining access to structures and

when you can move on; engage regulators (probably not health dept … or attorneys)

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Tip #2 – VI CSM

• If you don’t adequately identify the problem

you will be challenged to find a cost effective solution.

• VI CSM may be the most critical component.
• Starts with geologists in the field …
• Source areas, preferential pathways, vapor

movement …

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Tip #3 – To Mitigate or Not ....

– Tailor closure strategy and mitigation based on site- specific approach flowing from applicable state/federal policy, risk tolerance, and degree of sophistication. – Cost benefit analysis – mitigation vs trying to “screen” back out – What is the end game and at what point is the mitigation system no longer necessary? – Do I need a deed restriction …may be not.

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Questions or Comments

David R. Gillay, Esq. Chair, Brownfields & Environmental Transactional Diligence Co-Chair, Remediation, Corrective Action & Voluntary Cleanup (317) 231-7474 or (317) 946-9267 david.gillay@btlaw.com

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