Presenting a live 90-minute webinar with interactive Q&A Contaminated Sites and Long-Term Stewardship: Meeting Obligations for Residual Contamination Best Practices for Counsel in Implementing, Maintaining and Enforcing LTS TUESDAY, MARCH 10, 2015 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: 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. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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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 or 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 L ong T erm S tewardship ( LTS ) ( vs. S topping A ll M onitoring ( 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) C onceptual S ite M odel [w/ variable categories 1-6 ] support LTS or Stopping All Monitoring (SAM)? 4 Stack effects Wind effects Mixing in indoor 3 air and inhalation Rn source Indoor Air Cracks Q soil 3 Advection Air Building zone of streamlines 2c Contamination influence Convection Vadose zone 2b ‘ Low ’ Diffusion L T Top of capillary Diffusion Contamination zone Chlorin. 2a Chem. Water Table Phase partitioning Vapor Dissolved Contamination C gw to C soil gas 1 Source Mod. from slide by M. Bolas, Ohio EPA, presented Jan. 2006 Term 5 Improving Assess. Methods & RE Sales 6 Changing Tox., Exposure Durations & Conc.
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 1 http://www.epa.gov/landrevitalization/ltstf_report/whatis_longterm_stewardship.htm 2 Long-Term Stewardship: Ensuring Environmental Site cleanup Remain Protective Over Time ” 19
What is SAM? ‘ Stop All M onitoring’ * • 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 *e.g., > USEPA Regional Screening Levels (aka PRGs) based on empirical atten. data 21
Vapor Intrusion – Defined by Source Source definition is a challenge - most of this plume found by indoor air DCE – Dichloroethylene 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) 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 • C orrelations with human disease patterns 23
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