“evolving regulations and emerging contaminants” · subchapter 3 - site investigation site...
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“Evolving Regulations and
Emerging Contaminants”Vermont Department of Environmental Conservation
Waste Management and Prevention Division
Sites Management Section
Evolving Regulations AST Rule – Matt Moran, Environmental Program Manager, SMS
LEAN / ANR On Line – Matt Moran, Environmental Program Manager, SMS
Groundwater Rule -Matt Moran, Environmental Program Manager, SMS
Hazardous Waste Management Regulations - Trish Coppolino, Environmental Program Manager, SMS
Solid Waste Rule -Trish Coppolino, Environmental Program Manager, SMS
Net Metering Rule -Trish Coppolino, Environmental Program Manager, SMS
Natural Resource Damages (NRD) – Trish Coppolino, Environmental Program Manager, SMS
Legislative Changes (S.10)-Trish Coppolino, Environmental Program Manager, SMS
IRule – James Donaldson, Environmental Scientist
Extended talk to cover background soil study – Matt Moran/Trish Coppolino/James Donaldson
Evolving Regulations – AST Rule
New Inspection &
Certification
Standards
(Act 76 – H.531)
Current Status
Approved by ICAR
Public Hearing - April 5, 2017
Public Comment Period
Ended - April 19, 2017
Finalizing:
Responsiveness Summary
Rule Draft
Filing with LCAR first week of June
2016 Heating Oil Release Data
58 Heating Oil AST Releases
39 from indoor basement ASTs
19 from kerosene outdoor ASTs
53 Heating Oil UST Releases
Costs of AST Releases
Based on data from past 5 years
• Average annual heating oil cleanup
expenditures ~$1.4M
• Average annual heating oil cleanup
revenue - $1.3M
• Average annual AST HO cleanup
expenditures - ~$0.93M
Act 76 - RequirementsAdopt rules for AST inspections by 7/1/17
Requires inspections that must follow newly
promulgated protocol.
Delivery prohibition to noncompliant ASTs
ANR keeps public database of noncompliant ASTs
Heating oil ASTs and piping must be removed at
time of conversion to natural gas
When Inspections are RequiredAs of July 1, 2017, all storage tank systems shall be inspected at the following times:
(1) Immediately after tank system installation;
(2) Immediately after initial delivery of fuel to the tank system;
(3) Prior to the initial delivery of fuel to the tank system when the tank owner switches fuel carriers;
(4) If not otherwise required under (1) to (3) above, the tank system shall be inspected once every three years; and
(5) Upon removal of a tank system – essentially to check for evidence of a release.
Five Red-Taggable
Inspection Findings
1.) All four legs of the tank
are located on a stable
foundation
Five Red-Taggable Inspection Findings
2.) The tank and tank legs are free of any cracks and of significant corrosion or pitting, rust, and spores; dents or bulges; and all tank fuel filter, fittings, and valves are free of drips or leaks and any other sign of an actual or suspected release of hazardous material;
Five Red-Taggable Inspection
Findings
3.) All tank fuel lines below grade are
installed with a plastic coating or
within a protective sleeve made of
non-corrodible material;
Five Red-Taggable Inspection
Findings4.) The tank is installed with a vent alarm
or whistle terminating not more than 12
feet from the fill pipe and at a point
visible from the fill port.
Five Red-Taggable
Inspection Findings5.) The fill pipe and the vent pipe shall
be at least 1-1/4 inches in diameter.
The fill pipe shall have a liquid-tight
cap and the vent pipe shall have a
weatherproof and insect-proof cap.
For indoor tanks, the fill and
vent lines must terminate outside
the structure.
ANR Environmental Research Tool
Aboveground Storage Tankshttps://anrweb.vt.gov/DEC/ERT/AST.aspx
Flood Prone Area Changes NORARecommended Practices adopted for indoor ASTs with
respect to tank securement methods, e.g., foot flanges, concrete anchors, hold down straps, etc.
Emphasis was placed on prevention of indoor/basement ASTs from becoming buoyant due to much greater impact on human health, property and the Petroleum Cleanup Fund.
Outdoor AST “compliance” would be much costlier due to much thicker concrete pads needed. Also, cost/benefit of prevention is marginal since most outdoor releases have marginal impact due to massive dilution, and when pools of product remain it is readily cleaned up.
Protection from Ice Damage
ASTs installed outdoors
after 7/1/17 must either
be installed on the gable
end, or have protection
from ice/snow falling off
the eaves
Evolving Regulations – LEAN/ANR
Online
Evolving Regulations – Groundwater
Rule A final draft has not yet been filed with ICAR to begin formal rulemaking
The most significant change for us relates to the GW Reclassification
Section
Current draft would require reclassification of hundreds of sites to Class IV
Changing Enforcement Standards – Once Rule is in effect, changes
include:
MTBE – from 40 ug/L to 11.3 ug/L
Trimethylbenzenes – from 2 isomers at 350 ug/L to 3 isomers at 5.1 ug/L
1,4-dioxane – from 20 ug/L to to 0.3 ug/L (though interim was 3 ug/L)
Impact of new standards low given IRULE changes.
The VALs are also being added to the rule for point of use (we already
manage to this for private wells).
Evolving Regulations - Hazardous
Waste Rule
PFOA and PFOS are listed hazardous wastes when in liquid form and above
20 ppt.
There are several exemptions to the Hazardous Waste Listing:
Consumer products that were treated with PFOA and are not specialty products;
Remediation wastes managed under a CAP or disposal plan approved by the
Secretary; and
Sludges from wastewater treatment facilities, residuals from drinking water
supplies, or leachate from landfills when managed under a plan approved by
the Secretary.
The Secretary is in the process of adopting guidance on the management
of landfill leachate at wastewater treatment facilities.
Evolving Regulations – Solid Waste Rule
Preliminary stakeholder and public comment
was completed this spring (2017)
Currently going through Internal legal review
Formal rule making process to begin in late
Fall 2017
* will include language on categorical facilities that can be
permitted to receive development soils
Evolving Regulations – Net Metering
New Net Metering Rules January 2017
Encourage solar development on “preferred sites”
Preferred Sites-Brownfields, Landfills, NPL sites, gravel pits, rooftops, parking lots
Incentives for preferred site development, expedited permit process, generate power up to 500kW
Certification from ANR Secretary that the site is a Brownfield, Landfill, NPL site
Look for solar developer to conduct a Phase I, Phase II and Corrective Action(if necessary)
Shawn Donovan, Shawn.Donovan@Vermont.gov (802-522-5683)
Evolving Regulations – Natural
Resource Damages
Evolving Regulations – Natural
Resource Damages
“Natural resources” means any
natural resource held in the
public trust, such as fish, wildlife,
habitats that support fish and
wildlife, biota, vegetation, air,
surface water, groundwater,
wetlands, drinking water supplies,
or State-held public lands.
“Natural resource damage
assessment” means the process
of collecting, compiling, and
analyzing information, statistics,
and data through prescribed
methodologies to identify the
scope of injury to natural
resources and associated services
in order to determine the amount
of damages for injuries to natural
resources.
Evolving Regulations – Natural
Resource Damages
These Rules apply to any party liable for a release of hazardous materials pursuant to 10 V.S.A. § 6615
The purpose of these Rules is to make the environment and public whole for injuries to natural resources and loss of services resulting from the release of hazardous material.
NRD establish processes to assess injuries to natural resources, to assess alternatives for restoring injured natural resources and services lost, and to pursue implementation and funding of a restoration plan by potentially responsible parties.
These Rules also provide opportunities for soliciting input from the public and other interested parties in conducting a damage assessment and selecting restoration alternatives.
Upon notification of a release or
discovery of a release of
hazardous materials, the
Secretary may conduct pre-
assessment to determine whether
to conduct a damage
assessment and restoration.
Where appropriate, the Secretary
may first require early restoration
actions prior to any such damage
assessment and restoration
planning.
Evolving Regulations -Legislative
Updates S.10 Creates strict liability for cost of public drinking water line extension for person who released
PFOA and caused potable water supply to fail.
Amends definition of hazardous material, 10 V.S.A.§ 6602(16), to include “a chemical or substance that, when released, poses a risk to human health or other living organisms and that is listed by the Secretary by rule.”
Amends the definition of disposal, 10 V.S.A.§ 6602(12), to include the word “emitting.”
Amends the brownfield statute, 10 V.S.A.§ 6652(b), by adding the following sentence: “The Secretary may establish land use restrictions in the certificate of completion for a property, but the Secretary shall not acquire interests in the property to establish a land use restriction.”
Amends the brownfield statute, 10 V.S.A.§ 6653(a), by adding a release from natural resource damages for a brownfields applicant who has obtained a certificate of completion.
Amends the groundwater classification statute, 10 V.S.A.§ 1392(d), by removing outdated language related to the natural resources board’s review of ANR rules.
Amends the groundwater classification statute, 10 V.S.A.§ 1394(a), by allowing the Secretary to authorize, subject to conditions, the use of Class IV waters as a source of potable water supply.
Investigation and Remediation of
Contaminated Properties Rule (I-Rule)
James Donaldson, Environmental Analyst
Sites Management Section
Department of Environmental Conservation
History
The Investigation and Remediation of Contaminated
Properties Procedure (IROCPP) has been VT DEC’s long
standing guidance document for site investigation and
remediation.
Act 52, passed in 2015, required that the VT DEC
develop procedures for managing “development soils”
and establish statewide background concentrations for
arsenic, lead, and polycyclic aromatic hydrocarbons
(PAHs).
With Act 52 mandating the promulgation of a Rule, the
SMS and VT DEC management elected to include the
provisions of the IROCPP guidance document with the
procedures for managing development soils.
Today
ANR is currently finalizing both the responsiveness
summary and I-Rule documents.
Responsiveness summary should be made available to
the public by June 2, 2017.
Targeted submission date to LCAR for the I-Rule is June 2,
2017.
I-Rule will be posted to the DEC website concurrent with
LCAR filing.
Development Soils - DEC and environmental community
meeting scheduled for May 31, 2017.
What is the Investigation and Remediation
of Contaminated Properties Rule?
The procedural and substantive requirements on a
responsible party and Agency for the cleanup of a site.
Takes the previous Investigation and Remediation of
Contaminated Properties Procedure and makes it a rule.
Rule in the final stages of the adoption process (public
comment closed, pending filing with LCAR).
Anticipated Legislative adoption in July 2017.
Major Changes between Procedure
and Rule
Streamlined cleanup of releases from heating oil tanks.
Corrective action feasibility investigation (now evaluation of
corrective action alternatives).
Public notice process consistent with Act 150.
All sites leaving contamination in place must have an institutional
control plan.
Included development soils and eased some requirements from
former policy.
Reimbursement process for municipal water line extensions.
VDH/EPA values now standards.
Subchapter 1 – General Provisions
Provides authority and purpose for rule. Includes
prohibitions, reporting obligations, emergency response
provisions, and liability.
Releases of hazardous materials are prohibited. 10
V.S.A. §6616
Any person with knowledge of a release (lenders) and
who may be liable for the release is required to report
the release to the Secretary of Natural Resources. 10
V.S.A. § 6617
Subchapter 1 - Emergency Corrective
Action Authority
“Spills” authority now in rule. Expanded to include other emergency
responses.
Agency of Natural Resources can respond to emergency situations
under its emergency response authority. ANR must determine that
there is an “immediate and serious threat of harm to human health
or the environment” to exercise the authority.
No notice to responsible party required, however, if additional work
beyond emergency response then ANR must notify responsible
party.
Subchapter 3 - Site Investigation Site Investigation work plans must be submitted to the Secretary
within 30 days of the discovery of the release.
Once approved, the SI must be implemented in 60 days.
Submission of the SI report is required within 90 days of final laboratory data.
Required elements of the SI report have been expanded.
o Requires detailed data on the site and results of the investigation.
o Must include an evaluation of potential for release to have impacted the bedrock aquifer.
The SI Report presents conclusions and recommendations to ANR. Based on this and revisions to the CSM, ANR will determine
o There are no impacts to sensitive receptors requiring corrective action and the Site can be closed;
o Additional investigation is required; or
o There are risks to sensitive receptors and a CAP is required.
Subchapter 4 – Response Actions,
Releases of Heating Fuels Applicable only to release of heating fuels from Category 4 USTs, or ASTs
that contain heating fuels and service residential or farm properties.
Allows for removal of accessible impacted soils above the water table during AST spill response or UST removal.
Requires post-excavation analytical sampling to document effective source removal or residual contamination.
Bedrock impacts evaluated through drinking water supply sampling.
If impacts cannot be addressed during initial response a streamlined SI process is required.
Pending results of the initial response actions and/or SI, the ANR will determine:
o No further action required (Spill closure);
o Complete SI in accordance with Subchapter 3 is required (Site listing); or
o Impacts to sensitive receptors require additional corrective action (Site listing).
Subchapter 5 – Corrective Action
I-Rule allows for exemptions from corrective
action requirements in certain circumstances.
Defines the objectives of corrective action.
Change in terms from “Corrective Action
Feasibility Investigation” to “Evaluation of
Corrective Action Alternatives (ECAA)”.
Corrective Action - Exemptions
Emergency responses;
Heating fuel releases;
RCRA corrective actions;
CERCLA / Superfund cleanups;
Where an SI Report demonstrates
o No exceedance of any applicable drinking water standard at a drinking water source;
o Groundwater contamination confined to
property where release
occurred;
o No off-site migration above
standard;
o No direct contact threats;
o ANR approves Institutional
Control Plan.
Corrective Action - Objectives
Hierarchy of Cleanup Priorities.
Treat to the maximum extent practicable.
Remove and properly dispose of materials.
Use engineered controls to contain hazardous materials
and prevent exposure.
Use legal controls (institutional controls) to control
access and limit exposure.
Evaluation of Corrective Action
Alternatives - Exemption
No impacts to drinking water sources, vapor intrusion, or other
impact to human health.
Impacts confined to site where release occurred or will be at the
site where the release occurred within five years of the completion
of the Site Investigation;
There are no direct contact threats (unless those can be mitigated
through limited source removal); and
The PRP documents that the proposed remedy has been
successfully used at other sites and has a history of being reliable,
cost-effective, and technically effective.
Evaluation of Corrective Action
Alternatives
Must evaluate at least 2 alternatives: (1) reduces the toxicity,
mobility, or volume through treatment and minimizes long term
maintenance; and (2) minimizes treatment and addresses exposure
through engineered or institutional controls or long-term monitoring.
Alternatives must analyze the following factors: (1) compliance with
legal requirements; (2)overall protection of human health and
environment; (3) long-term effectiveness and permanence; (4)
reduction of toxicity, mobility, volume through treatment; (5) short
term effectiveness; (6) implementability; (7) cost; (8) environmental
impact and sustainability; and (9) community acceptance.
Approval of Evaluation of Corrective
Action Alternatives
ANR makes final remedy selection based on alternatives
analysis.
ANR can require additional alternatives be considered.
ANR can require greater evaluation of one of the
alternatives.
Corrective Action Plan /
Implementation
The CAP is the document directing how the selected remedy will be implemented. The CAP has to address the following:
o how the performance standards will be achieved for the site (or that they are not applicable).
o how waste from the site and from construction will be managed.
o a maintenance plan for any portion of the remedy requiring maintenance.
o an institutional control plan, if necessary.
o a redevelopment and reuse plan, if applicable.
o a QA/AC plan and a cost estimate
The CAP is noticed and receives public comment.
Corrective Action Plans - Public Notice
CAP Public notice process revised to meet the requirements of Act 150.
ANR will provide notice to all interested persons once drafty approval of the
CAP has been granted.
Interested parties will have 30 days from the date of notice to provide
comment on the draft.
Any interested party may request a public hearing within 14 days of the
date of notice.
At the close of the comment period, ANR will consider comments and
provide final approval of the CAP along with a response to comments if
necessary.
ANR will provide notice of the final approved CAP to interested parties.
Subchapter 6 – Institutional Controls
Sites needing Institutional Controls will be required to develop a
LUR/Stewardship Plan.
Plan will identify the IC or series of ICs to ensure the protection of
human health and the environment.
Acceptable ICs:
o Notice to Land Records
o Deed Restriction/Environmental Easement
o Zoning ordinances
o Water ordinances
o Groundwater reclassification
o Judicially approved controls
o Certificate of Completion
Subchapter 7 – Site Closure
Sites Management Activity Completed (SMAC) designation
remains.
All SMAC letters will be recorded on the property deed upon site
closure.
For Site closure requiring a Notice to Land Records - the SMAC letter and a site figure will document the residual contamination.
Certificate of Completion (COC) – Brownfields sites.
The COC will serve as the Land Use Restriction
Background Soils – Act 52
Act 52, passed in 2015, required that” On or before July 1, 2017, the
Secretary shall adopt rules that allow for the management of excavated
soils requiring disposal that contain PAHs, arsenic, or lead in a manner that
ensures protection of human health and the environment and promotes
Vermont’s traditional settlement patterns in compact village or city
centers.” At a minimum, the rules shall:
include statewide or regional background concentration levels for PAHs, arsenic,
and lead that are representative of typical soil concentrations and found
throughout existing development areas;
specify that development soils with concentration levels equal to or lower than
the background concentration levels established by the Secretary shall not be
defined as or required to be treated as solid waste;
include criteria for determining site-specific maximum development soil
concentration levels for PAHs, arsenic, and lead;
(continued)
Background Soils – Act 52
Act 52, passed in 2015, required that” On or before July 1, 2017, the
Secretary shall adopt rules that allow for the management of excavated
soils requiring disposal that contain PAHs, arsenic, or lead in a manner that
ensures protection of human health and the environment and promotes
Vermont’s traditional settlement patterns in compact village or city
centers.” At a minimum, the rules shall:
include statewide or regional background concentration levels for PAHs, arsenic,
in addition to disposal at a certified waste facility, adopt procedures for the
management or disposal of development soils that have concentration levels
that exceed residential soil screening levels, but are below the site-specific
maximum development soils concentration levels;
adopt a process to preapprove sites to receive development soils from multiple
developments; and
be designed to provide that the criteria established under subdivision (3) of this
subsection and the process developed under subdivision (4) of this subsection
shall be no less protective of human health and the environment than the
standard for development soils and the process established under subsection (b)
of this section.
Background Soils – Act 52
“Development soils” means unconsolidated mineral and organic matter
overlying bedrock that contains PAHs, arsenic, or lead in concentrations
that:
(A) exceed the relevant soil screening level for residential soil;
(B) when managed :
(i) pose no greater risk than the Agency-established soil screening value for the intended reuse of the property; and
(ii) pose no unreasonable risk to human health through a dermal, inhalation, or ingestion exposure pathway;
(C) does not leach compounds at concentrations that exceed groundwater
enforcement standards; and
(D) does not result in an exceedance of Vermont groundwater enforcement
standards.
Background Soils – Act 52
Act 52 also created the following “disposal” options for development soil:
Categorical Solid Waste Facility
Development soils as defined in 10 V.S.A. § 6602(39) shall be eligible for disposal at a categorical disposal facility certified by the Secretary of Natural Resources for the disposal of development soils pursuant to 10 V.S.A. § 6605c.
Alternative Daily Cover
Development soils as defined in 10 V.S.A. § 6602(39) shall be eligible to be used as alternative daily cover at a solid waste facility certified pursuant to 10 V.S.A. § 6605.
Receiving Sites
Property that has equal or greater concentrations of PAH, Arsenic, Lead can “receive” soils from a site with development soils
Background Soils Study - Design
Samples were collected spatially throughout Vermont to determine
background concentrations of PAHs, arsenic, and lead from locations
presumed to not have had a known release or land use that would have
been a source of these contaminants.
Study design:
o A 100 square mile grid was overlain on the state map of Vermont which
created 115 grids;
o The largest municipality in each grid was identified for sample
collection;
o Properties targeted for sample collection included State/Municipal
parks and greens, State/Municipal building lawns, school lawns,
cemeteries, and State/Town forests.
o A total of 130 samples and 17 duplicate samples (13%) were collected.
Background Soils Study – Data and
Evaluation
EPA’s ProUCL version 5.0 software was utilized to statistically review the data
and allow for reproduction by outside parties.
Outliers were omitted from the data sets by using a combination of Rosner’s
Outlier Test and visual inspection of the histogram and box and whisker
plots. 95% confidence interval and 95% coverage were utilized in
determining the background threshold value.
Each data set of analytical results (Arsenic, Lead, and TEQ PAHs) was
evaluated to determine whether the data reflected a statistically
significant separation, as a result of discernable land use patterns.
Background Soils Study – Spatial
Evaluation
The Density of Habitable Buildings GIS layer, located on the ANR Atlas, was
used to establish areas of high population density in Vermont and were
considered “urban”.
Areas outside of this layer were considered “rural”.
Sample locations inside or within an approximate 500-foot buffer of the
Density of Habitable Buildings GIS layer were considered Urban.
Sample locations that were engulfed, or surrounded by the Density of
Habitable Buildings GIS layer were also considered Urban.
Other sample locations (not inside, engulfed, or within 500 feet of the
density layer) were considered Non-Urban or “Rural”.
In the case of arsenic, two tailed t-test analysis indicated that there is no
statistically significant difference between the datasets, and that one
statewide (residential and commercial/industrial)background level applies.
Background Soils Study – Spatial
Evaluation
Background Soils Study – Spatial
Evaluation
Background Standards for Lead,
Arsenic, and PAHs
Arsenic: statewide background value: 16 ppm
Lead: Urban background value: 111 ppm
Lead: Non-urban background value: 41 ppm
PAHs: Urban background value: 580 ppb
PAHs: Non-urban background value: 26 ppb
Development Soils – “Urban”
Background
Create an “urban” background;
Concentrations of PAHs below this
background value will not be
regulated – BUT there may be
some reporting associated with
movement of soils
Movement of soils below
background can happen within
designated “urban” areas
Map “Urban” areas using:
Density of Habitable Buildings
Layer AND
2010 Census Maps for Urbanized
Area
2010 Census Maps for Urbanized Area
2010Census
Maps:https://www.censu
s.gov/geo/maps-
data/maps/2010ua.html
22 Urban Maps for
Vermont
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