The State of California, Department of Toxic Substances Control (DTSC) conducts or oversees the remediation of brownfields sites, voluntary cleanup sites, federal or state Superfund sites and corrective action at, or closure of, hazardous waste facilities under authorities contained within the California Health & Safety Code (H&SC). DTSC manages a Federally Authorized Hazardous Waste Management Program under the statutory authority contained in H&SC Chapter 6.5, along with associated regulations found in the California Code of Regulations. DTSC’s Superfund or “Cleanup” program operates under the authorities contained in H&SC Chapter 6.8. Although California does not have a comprehensive set of regulations comparable to the NCP, the processes used by DTSC to address sites in its Cleanup Program are generally consistent with the NCP and draw from it through direct statutory references, policy documents, and guidance.
Some of the authorities granted to DTSC under H&SC Chapter 6.8 are also granted to the State Water Resources Control Board and nine Regional Water Quality Control Boards. The water boards also have enforcement and cleanup authority based on the provisions contained in other Chapters of the H&SC and in the California Water Code.
Washington State’s environmental rule, the Model Toxics Control Act (MTCA), requires that permanent solutions or remedies be used to the maximum extent practicable. ICs and containment-type remedies are allowed when a disproportionate cost analysis justifies a nonpermanent remedy. Practical examples include small amounts of contamination remaining beneath a structure of value, or large amounts of contamination with low toxicity/risk and high disposal costs that can be effectively contained onsite.
ICs are also required when industrial cleanup levels are used at a Site. The use of industrial cleanup levels requires industrial land use, which is then enforced through ICs.
The Hawaii Department of Health (DOH), Hazard Evaluation and Emergency Response (HEER) Office hired a contractor to create and test a monitoring plan which will ensure compliance at sites with land use controls (LUC). The HEER Office database lists hundreds of sites with LUCs associated with investigations or cleanup actions. Rather than begin with a comprehensive review of all sites, the HEER Office selected 20 candidate sites with LUCs to be used as “test” sites.
The Land Use Control evaluation consisted of three steps: (1) conducting file reviews at DOH; (2) reviewing internet-based aerial photographs and county planning and permit information; and (3) conducting site visits. The Hawaii Land Use Inspection Form (Hawaii 2016) can be used to document the evaluation steps described below:
Specific findings, lessons learned, and observations are presented below.
The Site Remediation and Solid Waste Management Program in the New Jersey Department of Environmental Protection (DEP) is responsible for conducting or overseeing the remediation of discharges of hazardous substances to soil, groundwater, surface water, or sediments at Brownfield sites, federal or State Superfund or RCRA corrective action sites, closure of industrial facilities, and regulated or unregulated fuel tanks. The statutory basis is contained in the Spill Compensation and Control Act (NJ 2011), Brownfield and Contaminated Sites Act (NJ 2012), Industrial Site Recovery Act (New Jersey 2014), and the Site Remediation Reform Act (NJ 2016). Most, but not all, site remediation is conducted by LSRPs in accordance with these statues and corresponding regulations and guidance.
When the unrestricted use standards are not met, an IC is required either in the form of a deed notice for soil or a Classification Exception/Well Restriction Area designation for groundwater. Engineering controls are required for soil contamination exceeding the nonresidential remediation standard; presumptive remedies are specified and required for certain sensitive receptor site uses. If no deed exists for soil contamination extending beyond a site boundary, a Notice in Lieu of Deed Notice is provided to the utility (as for a roadway, for example).
The bureau issues permits for remedial actions that require the use of ECs or ICs to ensure the protection of human health and the environment.
The Division of Environmental Remediation within the Department of Environmental Conservation is responsible for conducting or overseeing the remediation of discharges of hazardous substances to soil, groundwater, surface water or sediments at Brownfield sites, federal or State Superfund or RCRA corrective action sites, closure of industrial facilities, and regulated or unregulated fuel tanks within the State of New York. The authority stems from the Environmental Conservation Law (NYDEC 2015) and Navigation Law and the requirements are embodied in regulation in the New York Codes, Rules and Regulations Part 375 (NYDEC 2015).
New York State Department of Environmental Conservation (NYSDEC) uses Environmental Easements (EE) as the IC when needed to ensure that a remedy is protective of Public Health and the Environment. The EE contains the applicable site restrictions (site use, cover system, groundwater etc.) as well as compliance with the approved Site Management Plan (SMP). The SMP includes the restrictions as well as requirements for periodic reporting and certification. SMPs are developed using a template and instructions for its use to all NYSDEC project managers, remedial parties, and their remedial party consultant.
Reason for Failure: The city of Oak Ridge was not aware of groundwater use prohibition when it purchased a DOE property for a municipal golf course.
In Oak Ridge Tennessee, DOE sold the city of Oak Ridge property to be used for economic development. Unknown to the City, DOE had placed groundwater restrictions on the deed. The City hired a contractor to establish a golf course on the property. As part of the construction the contractor installed groundwater wells for course irrigation system. DOE became aware of the installation and enforced the groundwater restrictions. Subsequently the golf course facility was required to obtain their water from a nearby lake. The groundwater was not contaminated by DOE influence; however, the fear was due to the water demands of the golf course. The draw could affect the plume under a nearby DOE facility. It was unclear where the miscommunication occurred.
Reason for failure: Contractor unaware of the IC prior to excavation
In 2005, the Utah DEQ issued an NFA letter for a former gas station site that had some petroleum contaminated soil and groundwater left in the subsurface following remedial actions. The NFA letter was issued in conjunction with an IC that was recorded on the property deed. The IC included maps and data tables that described where the subsurface petroleum contaminated soil and groundwater were located on the property. The IC also had Land Use Restrictions that specified actions to be taken if property redevelopment activities encountered petroleum contaminated soil and groundwater. Such actions included notification of the DEQ and oversight of the soil excavation work by an environmental consultant. In addition, it was specified that any petroleum contaminated soils that were excavated had to be disposed of at an appropriate facility.
Several months after the IC was recorded and the NFA letter issued, redevelopment work began on the property. The DEQ received a report from the Salt Lake Valley Health Department that soil with a very strong gasoline odor was being transported from the former gas station site to another property about a mile away. The property owner called the police.
The DEQ contacted the construction contractor who said that they had received a copy of the NFA letter, but not a copy of the IC, therefore, they did not know about the subsurface soil contamination. The construction contractor then notified the developer, who hired an environmental consultant to oversee the removal and proper disposal of the gasoline contaminated soil.
As a result of the lack of communication about the IC at this site, the DEQ contracted with Blue Stakes of Utah (the “dig alert” company) and started entering all ICs into the Blue Stakes system. By law, anyone who excavates must notify Blue Stakes at least two full business days before digging. Blue Stakes then emails a notification to the DEQ (and subsurface utility companies) that excavation is planned. The DEQ then emails a flyer notifying the excavator of existence and location/depth of the subsurface contamination.
The purpose of an IC is to notify future property buyers and developers about the presence of subsurface contamination. The purpose of Blue Stakes is to notify the excavator about the presence of the subsurface contamination. Through these notifications, all involved parties are advised of the subsurface contamination so that it can be planned for and properly handled.
Omaha, NE: RCRA Closure
Reason for failure: None; property owner avoided failure through proactive research.
An owner of a property parcel with inherited LUCs was proactive in determining if a proposed construction project would have the potential to disrupt the protectiveness The site, located in Omaha, Nebraska, was investigated and corrective measures were implemented as part of a RCRA consent order between the USEPA and the responsible party. The site is a former manufacturing facility and closure included restrictive covenant enacted through UECA, which included restriction on groundwater use across the entire site and limitations to soil excavation on specific areas due to a historical and defined release of volatile organic compounds.
The property has been subsequently subdivided with the current property owners of each parcel responsible for monitoring and reporting on LUCs as part of the transaction. An owner of one of the subdivided parcels was considering constructing an addition to the currently existing building. During the initial construction planning process, the property owner proactively reached out to the environmental consulting firm that originally drafted the restrictive covenant and original site ownership in order to determine if there were any LUC concerns with respect to the proposed construction.
Navy IC Program Overview
The Department of the Navy (DON) has an extensive program to implement and manage ICs at remediation sites. Major elements of this program, including an online tool, LUC Tracker, are discussed in this section. LUC Tracker is being used at many DON remediation sites for implementing, managing, and reporting.