Workshop U The ABCs of Contaminant Discovery, Disclosure and - - PDF document

Workshop U

The ABC’s of Contaminant Discovery, Disclosure and Disposition

Tuesday, March 24, 2020 3:30 p.m. to 4:45 p.m.

Biographical Information

Facilitator: Katherine (Kathy) Wiedeman Director of Environmental, Health & Safety ND Paper, 7777 Washington Village Dr., Suite 210, Dayton, OH 45459 937-528-3843 Katherine.Wiedeman@us.ndpaper.com

Kathy has over 25 years of experience in the paper industry and has worked in multiple aspects

• f the environmental, health and safety field, including safety leadership, wastewater and landfill
• perations, air compliance and permitting, solid waste management, process improvement and

sustainability. She began her career at the Mead Chillicothe paper mill in 1997 as a Staff Engineer and progressed to Environmental Manager in 2001. In 2006, Kathy was promoted to Director EH&S for Glatfelter’s Ohio Operations, taking on expanded responsibilities in the areas of safety and

• health. She recently became the Director of Environmental, Health and Safety for ND Paper.

Established in the U.S. in 2018, ND Paper is a wholly-owned subsidiary of Nine Dragons Paper (Holding) Ltd and has a regional office in Dayton. She has a bachelor’s degree in Mechanical Engineering from the University of Dayton and currently lives in the Dayton area.

Sharon R. Newlon, J.D., Member, Dickinson Wright, PLLC 500 Woodward, Suite 4000, Detroit, Michigan 48226 313-223-3674 SNewlon@dickinsonwright.com

• Ms. Newlon has been assisting companies for over 30 years in evaluating the environmental

issues associated with their operations. She oversees environmental risk management in multi- million-dollar purchase, merger and financing transactions; chairs Superfund PRP Groups; serves as environmental crisis counsel on significant fire and spill incidents; and is national environmental audit counsel for chemical and manufacturing companies. She says that her degree in chemistry just helps her to properly pronounce the chemical names she works with every day, but she uses it to communicate most effectively with technical employees, consultants, expert witnesses and regulators. She holds a bachelor of science degree in chemistry from the University of Detroit and a JD from Notre Dame Law School.

• Ms. Newlon has served as an environmental law lecturer for the Manufacturers’ Education

Council on environmental auditing and crisis management, for the International Council of Shopping Centers on Superfund landowner defenses and continuing obligations, for the Institute for Continuing Legal Education on environmental issues for small businesses, for the State Bar's Environmental Law Section on a variety of topics, for the Southwest Michigan Chapter of the Air and Waste Management Association on crisis management and state remediation law revisions, and for the National Brownfields Conference on siting renewable energy projects in

• Brownfields. Ms. Newlon served on the Michigan Department of Environmental Quality's Part

201 Workgroup to review Michigan's environmental remediation and redevelopment laws, on the State Bar's Environmental Law Section’s Council and as Ethics Committee Co-Chair, and as Co-Chair of the Environmental Law Committee for the Southeast Michigan Chapter of the Federal Bar Association. Ms. Newlon also serves regularly as a presenter at Explorathon, encouraging girls to explore interests in math and science related fields and as a judge for the Research Symposium at the University of Detroit Mercy, where she has served on the Alumni Board to the College of Engineering and Sciences.

The ABC’s of Contaminant Discovery, Disclosure and Disposition

Sharon Newlon, Dickinson Wright PLLC

Discovery

• In the spirit of recycling, five years ago you purchased a brownfield

site with known impacts.

• At that time, you did your Phase I assessment to qualify for the

federal (and state?) bona fide prospective purchaser (BFPP) defense, and some Phase II work to establish a good baseline.

• Now business is booming, and you want to expand your building
• footprint. You get your building permits. You’re ready to go!
• Then the excavator hits something unexpected – smelly, brown ooze.
• What do you do?

First steps

• Safety first, always. Stop the work and remove workers from the area

until you can assess what you’ve found. Secure equipment if you can safely do so. Place safety barriers and warning tape around the area. Cover if practical and safe to do so.

• Assess for immediate risks – fire/explosion, acute inhalation risks,
• ngoing release (e.g., punctured tank), vulnerability to weather.
• Notify emergency responders, if required or warranted

(fire/explosion risk, acute inhalation risks).

• Engage environmental response professionals.

Disclosure

• Statutory Duties to Disclose:
• CERCLA – Release of reportable quantity over 24 hours (15 minute trigger)
• Indiana – Spills that damage waters of the state; spills to soils within facility:

above CERCLA RQ, >1000 gal petroleum, spills of other “objectionable substances”; et al.

• Kentucky – CERCLA RQ
• Ohio – CERCLA RQs for hazardous substances, 25 gal for oil release not into

navigable waters

• UST‐related releases
• Other – EPCRA, CWA, TSCA, AST‐related releases, fire codes
• Continuing Obligations to Preserve BFPP Defenses:
• Express element ‐ must meet statutory reporting obligations
• Potential element – reporting as a “reasonable step”

CERCLA Continuing Obligations Common Elements

Common Elements and other Requirements Bona Fide Prospective Purchaser Contiguous Property Owner Innocent Landowner - Section 101(35)(A)(i) Continuing Obligation No disposal after acquisition ✔ § 101(40)(B)(i) ✔ § 101(35)(A) Compliance with land use restrictions and not impeding institutional controls ✔ § 101(40)(B)(vi) ✔ § 107(q)(1)(A)(v) ✔ § 101(35)(A) Taking "reasonable steps" to manage releases ✔ Exercise appropriate care 101(40)(B)(iv) ✔ § 107(q)(1)(A)(iii) ✔ § 101(35)(B)(i)(II) Providing full cooperation/assistance/access ✔ § 101(40)(B)(v) ✔ § 107(q)(1)(A)(iv) ✔ § 101(35)(A) Compliance with information requests and administrative subpoenas ✔ § 101(40)(B)(vii) ✔ § 107(q)(1)(A)(vi)

CERCLA Continuing Obligations Common Elements

Common Elements and other Requirements Bona Fide Prospective Purchaser Contiguous Property Owner Innocent Landowner - Section 101(35)(A)(i) Continuing Obligation Providing legally required notices ✔ § 101(40)(B)(iii) ✔ § 107(q)(1)(A)(vii) No impeding performance of response action or natural resource restoration ✔ § 107(r)(1) Did not cause/contribute to contamination ✔ § 107(q)(1)(A)(i) Third Party Defense requirements (due care and precautions) ✔ § 107(b)(3)

Common Elements Guidance 2003

• Initial guidance issued March 3, 2003 (dated March 6, 2003), with

comfort/status letter attachment

• Reasonable steps – requires due care to protect human health and

environment, but not full remediation

• Reasonable steps ‐ may require sampling and maintenance of existing

environmental controls

• Providing legally required notices – under applicable federal, state and local

laws; may also be required as a “reasonable step”

Common Elements Guidance 2019

• New guidance issued July 29, 2019 (supersedes 2003 guidance)
• When spreading of existing impacts should and should not be considered new

disposal

• Monitoring the effectiveness of institutional controls on at least an annual basis

may be warranted

• The obligation not to interfere with institutional and engineering controls applies

both to those in place at the time of the purchase/lease and those imposed later in conjunction with remediation

• EPA will consult on a case‐by‐case basis as to “reasonable steps” and may provide

status/comfort letters

• Reasonable steps will require affirmative steps to prevent exposures, prevent

future releases/exacerbation, and stop continuing releases

• Landlords must advise tenants of “reasonable steps” and monitor their

compliance

Disposition

• Continuing obligations focus on exposure controls, not remediation
• Obligation to stop release
• May require removal or emptying of containers discovered, removal of free

product from area of release, as well as notice to government and/or responsible parties

• Must assess potential exposure risks – likely to require sampling
• Must address confirmed exposure risks
• Removal and/or exposure controls for direct contact risks, vapor intrusion
• Restrictions on use for groundwater impacts – to address potential exposure

and potential exacerbation

Disposition (continued)

• Document evaluation of risks and steps being taken in a written due

care plan

• Plan should address both one‐time actions and continuing actions, such as

barrier inspections and maintenance, documentation of same

• Plan is a living document – should be reviewed and updated as property uses

and cleanup standards change

• ASTM E2790 – Guide for Identifying and Complying with Continuing

Obligations (update anticipated to be released in 2020)

Other Considerations

• Permitted facilities may have additional obligations to report and/or

keep records depending on permit requirements, extent of release

• If statutory reporting requirements are triggered, written follow up

reports may also be required (perform a consistency review and address any changes in information)

• For tenants (and landlords), lease agreements may also trigger

private party reporting requirements, which may not be subject to reportable quantity limitations

• Expertise. Innovation. Commitment.

The ABC’s of Contaminant Discovery, Disclosure and Disposition

Chris Abel, CHMM Program Manager

What’s the problem

• “Clean cleanups” are not always feasible
• Risk‐based closures are becoming more

common

• Contamination left behind
• Environmental restrictions placed on property

What’s the problem

• If residual contamination is left behind, Institutional Controls (ICs) are

applied to the Site

• ICs manage potential contaminant exposure pathways
• ICs allow more flexible closures
• Common ICs include no groundwater use,

no residential use, limited excavation and…Soil Management Plan

What’s the problem

• Encounter impacted soil / groundwater

during development

• STOP and EVALUATE
• Notify EH&S as soon as possible
• Proceed with work, following recommendations
• f EH&S and/or SMP

Front end solution…Soil Management Plan

• SMPs communicate information and

instructions to Site personnel and contractors who are planning to disturb contaminated soil

• SMPs identify and control potential exposure

and mitigate risk to Site workers, visitors, and the public

• All SMPs are Site‐specific

No digging… Unless following a SMP

Front end solution…Soil Management Plan

• Most importantly, SMPs outline

heath and safety provisions necessary to prevent potential exposure and spread of contamination.

Soil Management Plan

• Site background information
• Summary of historical site
• perations
• Overview and timeline of the

Site

• Environmental investigations

to date

• Regulatory Program

Enrollment

• Previous or Ongoing

Remediation Activities

Soil Management Plan

• Summary of Impacts left in place
• Potential Contaminants (PCs) at the

Site

• Locations where soil and/or

groundwater impacts are present

• The lateral extent and depth of the

impacts

• Summary of the proposed work
• The scope of work will directly effect

the level of detail provided in the SMP

vs

Soil Management Plan

• Organizational structure and management

responsibilities

• Necessary so every person can be held

accountable

• The role of every on‐Site worker should be

discussed within the SMP

• Typical roles include the following:
• Project Superintendent/Construction Manager
• Environmental Professional
• Site workers/contractors

Soil Management Plan

• Health and Safety Provisions
• Workers must familiarize

themselves with the Site (work areas, residual contaminant locations, on‐Site PCs and their potential risks)

• A Site‐specific health and safety

plan (HASP) must be developed

• Personal protective

equipment (PPE) must be selected based on the exposure hazard

Soil Management Plan

• Air monitoring, mechanical

ventilation, and/or respiratory protection may be necessary

• Decontamination (clothing, boots,

heavy equipment) and proper hygiene (washing hands) is necessary to prevent exposure

• Dust, odor, or noise monitoring

may be necessary

• Site control and security

Soil Management Plan

• Excavation Work Plan
• Detailed excavation procedures for non‐

impacted (“clean”) and impacted soils

• Specific instructions are necessary to

segregate the two (2) soils

• Impacted soil should be visually inspected

(staining, strong odors) and screened with a field instrument such as a photoionization detector (PID)

Soil Management Plan

• Stockpile Management

Procedures

• Keep impacted, potentially

impacted, and non‐impacted soils segregated

• Place materials on plastic

sheeting and cover during

• vernight storage
• Control erosion and runoff

from pile with sandbags, silt fence, etc.

Soil Management Plan

• Dewatering Procedures (if

necessary)

• PLAN AHEAD ‐ Shallow

groundwater tables should be identified prior to excavation activities

• Groundwater should be

contained in frack‐tank for physical observations and sample collection

Soil Management Plan

• Waste Determination
• Waste determination is detailed by

regulatory guidance

• The receiving/disposal facility may

require specific sampling

• Both soil and groundwater need to

be characterized before disposal

• RCRA Guidance
• Hazardous vs Non‐Hazardous
• Listed Hazardous vs Characteristically

Hazardous

• Contained‐In Determinations

Soil Management Plan

• Backfill Material
• Analytical data may be

necessary for non‐impacted soils to be used as “clean” backfill material

• A visual inspection should be done

at a minimum

• Clean certifications are typical

for backfill materials brought from an off‐Site source.

Soil Management Plan

• Recordkeeping is key!
• Good records are proof

the SMP was followed

• Helpful documentation

to keep

• Disposal manifests
• Permits
• Regulatory inspections
• Where/How Much Soil

Removed

• How the Soil was

Transported

• Final Disposal Facility

Best Time to Prepare

• During Site Closure to include in an IC document
• Prior to Property Redevelopment

Who Should Prepare the Plan

• Legal Counsel, Owner, and Regulatory input is

helpful when preparing the ICs

• SMPs should be written and implemented by

environmental professionals,

Questions?

Chris Abel, CHMM cabel@augustmack.com 317‐292‐5686