Vapor Intrusion Exposure: Long-Term Evidence-Based Protection & - - PowerPoint PPT Presentation

AEHS 25th Annual International Conference on Soil, Water, Energy, and Air:

Vapor Intrusion Exposure: Long-Term Evidence-Based Protection & Sustainability: Long-Term Stewardship – Survey of LTS Programs March 24, 2015, Workshop 1: EPA Vapor Intrusion David R. Gillay, Esq. Partner, Environmental Department

Setting the Stage

• Draconian Liability Schemes
• Birth of new due diligence standard &

continuing obligations to maintain LLPs

• VI Evolution
• TCE Revolution
• Re-opening of closed sites
• Long Term Stewardship Revelation

– State & Federal Survey

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

Transactions & Redevelopment Continuing Obligations

• EPA origins: 2002 Brownfield Amendments and

new Bona Fide Prospective Purchaser Defense (BFPP)

• BFPP defense allows you to purchase known

contaminated property and avoid CERCLA liability provided certain pre and post requirements are satisfied.

• Focus here is on post-Closing.

Continuing Obligations

– Provide access to those conducting response actions [AND] – Take reasonable steps to:

(a) stop any continuing release (b) prevent any future threatened release; and (c)prevent or limit any human, environmental, or natural resource exposure to any previously released hazardous substance

• What does this really mean?

Continuing Obligations

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.

Federal IC Policy

• EPA’s National Policy on Use and Roles of ICs is to

develop an IC Plan: – Institutional Controls: A Guide to Planning, Implementing, Maintaining, and Enforcing Institutional Controls at Contaminated Sites, EPA- 540-R-09-001 (Dec. 2012) [referred to as the “IC Guidance”] – Institutional Control: A Guide to Preparing Institutional Control Implementation and Assurance Plans at Contaminated Sites, EPA-540-R-09-002 (Dec. 2012) [referred to as “ICIAP Guidance” or “IC Plan”]

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.

National Guidance

• Long-Term Stewardship Studies & Initiatives

[www.epa.gov/landrevitalization/ltstf_report/appendixb.htm]

– U.S. DOE – Long Term Stewardship Planning Guidance for Closure Sites – National Association of Attorneys General (NAAG) on Legal Handbook of Institutional Controls – Association of State & Territorial Solid Waste Mgmt Officials (ASTSWMO) – Interstate Technology & Regulatory Council (ITRC) – Issues of Long Term Stewardship: State Regulators’ Perspectives (2004 + 2014/5 update)

Florida

• FDEP – Division of Waste Mgmt [Nov. 2013]
• The use of ICs to eliminate or control potential

exposure to residual contamination – Site Rehabilitation Completion Order with Conditions]

• Engineering Control Maintenance Plan (ECMP) –

inspect, monitor, and maintain

• Interim ICs option to promote redevelopment
• IC Control on Non-Source Property
• IC Registry
• Templates, Notices, RCs

Missouri

• MDNR consolidated LTS in 2012 to ensure that

LTS sites are properly managed (10,000 sites)

• ICs are viable risk management tool IF they are

durable, enforceable and run with the land

• Decision-makers should weight full costs of long

term S&A with potential long-term risks

• Missouri Long Term Stewardship : Current

Practices & Future Recommendations

– Define a common threshold for LTS – LTS monitoring and audit program – LTS Fees on an annual basis

New York

• NYS DEC – Division of Environmental

Remediation

• Template for a Site Management Plan [Feb. 2013]

– Engineering & Institutional Control for I/M of EC/ICs – Monitoring Plan for Site Monitoring – Operation and Maintenance

• Periodic review (at least annually)
• CSM is key
• Responsibilities

Wisconsin

• WI DNR through its Remediation &

Redevelopment Program – Continuing Obligations for Environmental Protection [Nov. 2013]

• WI, like most states, allows some contamination

to remain after cleanup of soil or groundwater (residual contamination)

• DNR Registry with continuing obligations
• New Forms and Process

Questions or Comments

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