Professional Judgment

Transcription

www.NJWEA.org
The New Jersey Water Environment Association
Site Remediation Committee Regulatory Course
June 13, 2013
Licensed Site Remediation
Professional (LSRP) Program:
Professional Judgment:
Concepts and Applications
New Jersey Water Environment Association
Site Remediation Committee
Licensed Site Remediation Professional (LSRP) Program:
Professional Judgment: Concepts and Applications
Eatontown Sheraton, Eatontown NJ
June 13, 2013
8 AM Registration and Continental Breakfast
8:30 – 9:00 Welcome and Program Updates:
Joseph Fallon, Fallon Consulting, LLC and NJWEA Co‐Chair Site Remediation Committee
David Sweeney, Assistant Commissioner – Site Remediation Program, NJDEP
9:00 – 10:15
Professional Judgment Concepts: Moderator Dave Grupp, Linde North America, Inc.
Ken Kloo, Director, NJDEP; Kenneth Goldstein LSRP, Ransom Environmental Inc., LSRPA President;
Larry Jacobs Esq., Wilentz Goldman and Spitzer
10:15 – 10:30
Break
10:30 – 11:15
State Oversight and Review of Documents: Moderator Biff Lowry, NJDEP
Len Romino, Assistant Director, NJDEP; Jorge Berkowitz Ph.D., LSRP, Langan Engineering and
Environmental
11:15 – 12:00
Compliance Assistance Moderator Ira Whitman Ph.D., P.E., LSRP, The Whitman Companies, Inc.
Linda Grayson, Bureau Chief, NJDEP; John Oberer, LSRP, GZA GeoEnvironmental, Inc.
12:00 – 1:00
Lunch
1:00 – 1:55 Application of Technical Guidance Documents and Professional Judgment
Moderator: Peter Postorino, AWT Environmental and Co‐Chair NJWEA Site Remediation Committee
Status of Documents: George Nicholas, NJDEP ; Brian Blum, LSRP Langan Engineering and
Environmental; Steve Senior, Esq. Riker Danzig
1:55 – 3:00 Vapor Intrusion Moderator Joe Hochreiter, Senior Environmental Consulting, LLC.
John Boyer, NJDEP; Richard Rago, Haley & Aldrich
3:00 – 3:15 Break
3:15 – 4:15 Compliance Attainment & Update on Cleanup Standards
Moderator Thomas Hundt, Ph.D., LSRP, Atlantic Environmental Consulting Services, LLC
Barry Frasco Ph.D., Assistant Director, NJDEP; Ted Toskos, LSRP AMEC Environmental, Inc.;
Phil Brilliant, LSRP, Brilliant Environmental, Inc.
Wine and Cheese Networking Reception/Course Discussion to follow
6/14/2013
2013 Review of New Jersey
Site Remediation and the Licensed Site
Remediation Professional Program
June 2013
David Sweeney, Assistant Commissioner
Site Remediation Program
SITE REMEDIATION
PROGRAM
Assistant
Commissioner
Division of
Enforcement,
Technical, and
Financial Support
Division of
Remediation
Management
Remediation
Oversight
Remediation Review
Enforcement and
Information Support
Hazardous Site
Science
Financial Services
Inspection and
Review
Case Management
Site Management
Case
Assignment and
Initial Notice
Ground Water
Pollution Abatement
Fiscal Support and
Contract
Administration
Field Operations
North
Remedial Action
Permitting
Environmental
Measurements and
Site Assessment
Enforcement and
Investigations
Environmental
Evaluation and Risk
Assessment
Fund Management
Field Operations
South
Brownfield Reuse
Information Systems
Data Quality
Direct Billing and
Cost Recovery
UHOT
2
Publicly Funded
Response
Dredging and
Sediment Technology
Community
Relations
1
6/14/2013
LSRP Implementation: Statistics
(as of June 1, 2013)
 Total number LSRPs
– Permanent
=
500
= 512
 Total number SRP cases
 Total number active LSRP cases
 Total number closed LSRP cases
=14,361
= 9,948
= 1,848
 Total number cases that still need to
hire LSRP
= 2,253
 Total number active UHOT cases
 Total number closed UHOT cases
= 1,806
=35,331
3
LSRP Implementation: Statistics
 Number RAOs filed
 Number RAOs inspection/review
completed
 Number RAOs invalidated
=
2711
=
=
2,343
0
4
2
6/14/2013
Technical Guidance: Round 1

Technical Guidance topics
•
Attainment (Compliance)
•
Monitored Natural Attenuation
•
Clean Fill/Alternative Fill
•
PA/SI/RI Groundwater
•
Conceptual Site Model
•
PA/SI/RI Soils
•
Ecological Investigation
•
Presumptive Remedies
•
Historic Fill
•
Receptor Evaluation
•
Immediate Environmental
Concern
•
Vapor Intrusion
•
Linear Construction
•
Analytical Methods *
•
LNAPL
•
Technical Impracticability *
* = Not completed
5
Technical Guidance: Round 2
• Topics chosen:
– Offsite source investigation
– Co-mingled ground water plumes
– Historic pesticide use
– Capping
– Performance monitoring of in-situ ground water remedial
actions
– Evaluation of contaminated ground water discharge to
surface water
6
3
6/14/2013
Heating Oil Tanks
•
•
•
•
•
Unregulated Heating Oil Tanks
Aiming to propose Winter/Spring 2013
LSRP not required
DEP issues NFA, LSRP does not issue RAO
Significant changes:
– De minimis volume can remain without need for
Deed Notice in limited circumstances
– Deed notice “lite”
– Simplify analytical requirements for No. 2 fuel oil
7
ARRCS/Technical Requirements
• Revisit when/how remedy deemed not
protective, when/how withdraw/invalidate
Response Action Outcome
• Codifying May 2014 statutory deadline for
completing remedial investigation
• Specify timeframe for hiring replacement LSRP
8
4
6/14/2013
ARRCS/Technical Requirements
• Deleting pre-implementation timeframes for
conducting public notice, beginning remedial
action
• Amend model deed notice to allow for
temporary disturbance of engineering control
• Provide Department with option to collect
investigation costs and penalties in Office of
Administrative Law (only current option is
Superior Court)
9
ISRA
• De minimis quantity exemption
– Repeal N.J.A.C. 7:26B-5.9(b)4
– Required responsible party to verify industrial
establishment not contaminated above any
standard set forth in Remediation Standards
– In response to Des Champs Laboratories, Inc.
v. NJDEP
10
5
6/14/2013
UST
• Require issuance of RAO with site
investigation report at completion of
“clean” tank removal
– SRRA requires LSRP to issue RAO “upon
completion of the remediation” (N.J.S.A.
58:10C-14d)
11
Compliance Assistance
• Current emphasis on compliance assistance
• Identify responsible entity(ies)
– Someone needs to step up
– No one steps up, all go to Enforcement
• Someone steps up: discuss issues - attempt to
bring into compliance
• Not permanent – offered during transition to
LSRP program
12
6
6/14/2013
LSRP Implementation: Enforcement
• Sites that have not yet hired LSRP – being
looked at by SRP for initial enforcement
actions
• Enforcement of Direct Oversight provisions
will be incorporated into enforcement actions
• Regulated UST sites being evaluated - UST
Registration Certificates will not be issued to
non-compliant UST owners or operators
• Remedial Priority Score (RPS) completion in
Winter 2012 will assist in defining priorities
13
LSRP Implementation: Enforcement
• Will pursue enforcement actions against
responsible entity(ies) for failure to:
– Retain LSRP
– Meet regulatory/mandatory time frames
– Meet requirements imposed by Direct Oversight
• AONOCAPAs already sent to responsible
entity(ies)
• LSRPs may be referred to SRPL Board for
disciplinary proceedings
14
7
6/14/2013
PUBLIC NOTIFICATION AND
OUTRREACH
and
PUBLIC INQUIRIES FOR
INFORMATION
15
Public Notification and Outreach
Requirements
• Moved from Technical Requirements to
ARRCS
– N.J.A.C. 7:26C-1.7
• Prescriptive requirements removed –
flexibility introduced
16
8
6/14/2013
Requirements
• Signs, notification letters, fact sheets must
include contact information for both
remediating party, LSRP
– Should not include contact information for DEP,
SRP, and/or SRP Office of Community Relations
• RPs required to conduct additional public
outreach if needed due to site-specific
circumstances
17
Requirements
• DEP will no longer have most current site
information
• LSRP in best position to answer public
inquiries
• In many cases, RPs have/will delegate
responsibility for responding to public
inquiries to LSRP
– Contractual/confidentiality issues must be
resolved
18
9
6/14/2013
Requirements
• RPs must respond to inquiries either
– Received by RP directly; or
– Received by Department and referred to RP
19
Requirements
• Since LSRP is often most familiar with current
site conditions and status of remediation:
– DEP will direct telephone inquiries to LSRP
– DEP will contact both RP, LSRP when written inquiry
received from public, media, elected official
• Failure to conduct public outreach is minor
violation
– Can result in base penalty of $10,000 to RP (see
N.J.A.C. 7:26C-9.5(b))
20
10
6/14/2013
SRP and the Waiver Rule
• One waiver request submitted to SRP
– Conflicting rule = with Land Use
– Draft written
– Undergoing legal review
21
11
6/14/2013
Document and RAO Inspection and
Review
Len Romino
Assistant Director
Documents Received Thru May
2013
•
•
•
•
•
•
•
Total Key Documents Recv’d
2013 Monthly Avg.
Total RAOs Issued
2013 Monthly Avg.
RAOs Withdrawn by LSRP
RAOs Invalidated by DEP
Avg. Inspection/Review Time
12,027
648
2711
171
91
2
45 days
2
1
6/14/2013
SRRA Review Requirements
• Shall inspect all documents upon receipt
• Inspection determines whether documents
undergo further review
• SRRA contains both mandatory and
discretionary criteria for further review
• Further review may also include referral to
other groups within SRP
3
Typical Reasons for Additional
Document Review
• Contamination from Upgradient Source
• Inconsistent answers on the Document
Form or Case Info. Doc. (CID)
• Sensitive Populations –Res./Child
Care/Schools
• Nearby Receptors- Potable Wells, VI
• Past Deficiencies on the Case
4
2
6/14/2013
Typical Reasons for Additional
Document Review
• Site Specific Remediation Standards
• Naturally Occurring or Background
Contamination
• Ecological Issues
• Potential IEC
5
Total Number of Inspections for the Month
400
350
300
250
200
150
Total Number of Inspections for the
Month
100
50
0
6
3
6/14/2013
100%
90%
Average % Inspections
resulting in review for the
Month
80%
70%
60%
50%
40%
30%
Average % Inspections
resulting in review for the
Month
20%
10%
0%
The RAO document defines
• The Site
• Remedial Action Type
• Scope of Remediation
• Limitation to the Remediation (notices)
• Other Site Conditions
8
4
6/14/2013
The Site
•
•
•
•
•
Name
Address
Lot and Block
Preferred Id (PI #)
Communication Center # (AKA DEP
Hotline, incident #)
• ISRA transaction (if applicable)
9
Remedial Action Type
• Unrestricted Use Remediation
– No restrictions
• Limited Restricted Use Remediation
– Deed notice and/or CEA (RA Permit)
• Restricted Use Remediation
– Deed notice and/or CEA (RA Permit)
– Engineering controls (RA Permit)
10
5
6/14/2013
Scope of Remediation
• Entire site vs. 1 or more AOCs
– AOC can be specific area or media
• ISRA industrial establishment - entire site
vs. leasehold
– Must include the ISRA case number specific to
the RAO being issued
11
Limitations to the Remediation
RAO Notices
• 19 notices in the model document
• 4 additional notices were introduced through a
recent Listserv message and will be included in
the RAO Guidance document
–
–
–
–
Historic fill
Soil contamination remains due to off-site source
Rail spur
DAP
12
6
6/14/2013
What to do if the model document
language doesn’t fit case specifics
• Discuss with the Department the case specific
issues (contact Myrna Campion or Len Romino
609-633-1408)
• Obtain department prior approval for changes to
RAO model language
• Document the case specifics in the Remedial
Action Report (RAR) and CID
13
Common Administrative Issues
• Information on forms/CID/reports conflict
• Incorrect Scope of Remediation (entire site vs.
AOC)
• Incorrect Remedial Action Type (unrestricted,
limited restricted, restricted)
• Incorrect communication center numbers used
– Same communication center # used in notice and
heading
• Incorrect Notices Used
• New incident not called in when identified
• Outstanding fees not paid
14
7
6/14/2013
Common Technical Issues
• Professional judgment not adequately explained
• Off-site source contamination not properly
documented
• Delineation not complete
• IEC case must be “terminated” before entire site
RAO is issued
• RA Permits must be issued by DEP prior to RAO
• CEA Lift (as applicable) must be obtained prior
to RAO
15
Amending or Withdrawing an RAO
The RAO does not accurately reflect the site
or the remediation that was conducted
• Department will request LSRP amend or
withdraw RAO within 30 days when:
– Withdraw if additional work is required that
will take longer than 30 days
– Amend for administrative aspects that are
incorrect or missing
16
8
6/14/2013
Resources
• Guidance for the issuance of response
action outcomes
• http://www.nj.gov/dep/srp/guidance/
• RAO Form
• Instruction for the RAO form
• RAO Point of Contact: Renee Wright
[email protected]
17
9
6/14/2013
June 13, 2013
Jorge H. Berkowitz, Ph.D., LSRP
989 Lenox Drive, Suite 124
Lawrenceville, NJ 08648
Jberkowitz @langan.com
609-282-8011
Protective of Public Health and the Environment
• RAO may be overturned when the department
determines that the RAO is not protective of public
health, safety, or the environment.
1
6/14/2013
Acceptable Remediation
• Remediation standards set at 1.0 x 10-6 excess cancer
risk
• Statutes do not say sites or AOCs must be
remediated to 10-6 risk.
• Order of Magnitude Evaluation = 10-5 risk
• Cannot aggregate risk:
– 1 x 10-6 (2) = 2 x 10-6 risk = Acceptable
– 1 x 10-6 (100) = 1 x 10-4 risk = Acceptable (?)
Previously issued NFAs
• ISRA requires whole site RAO
• Accept NFAs as your own
2
6/14/2013
NFA is AOC Specific
•
•
•
•
Location specific
Media specific
Contaminant specific
Time specific
Soil – Clean Fill
• Professional judgment: when to test
3
6/14/2013
Audits
• Number of RAOs
• Extent of involvement
• Not a technical review
Record Retention
• Regulatory / legal requirements vs. civil action
4
6/14/2013
5
6/14/2013
May 2014 RI
Completion Deadline
Linda Grayson, Bureau Chief
Bureau of Enforcement and Investigations
609-633-1480
[email protected]
NJWEA Conference on LSRP Professional Judgment: Concepts and Applications, June 13, 2013
SRRA 3-Year Phase in Period
• SRRA afforded a 3-year period for transition to
LSRP program, from May 2009 to May 2012
• During transition period SRP made efforts to:
• facilitate compliance
• hone enforcement tools and strategy
• prepare for May 2012
1
6/14/2013
Compliance Assistance Efforts
• 7 Mass-mailing events including issuance of
24,693 letters
• 27,063 Compliance Assistance calls
• Dataminer reports tailored to allow RPs, LSRPs
and others to determine compliance status
Results of Compliance
Assistance
• 2,919 cases brought into compliance
• Broad knowledge of SRRA requirements, even
among violators
• Improved data quality
2
6/14/2013
However……
In spite of SRP’s compliance assistance efforts, of
11,695 total cases:
• 2,057 do not have a LSRP retained (18%
noncompliance rate), and
• 1,991 cases have not conducted a receptor
evaluation (17% noncompliance rate)
Enforcement
• Approximately 20% of cases referred to enforcement
post-compliance assistance came into compliance
• BEI has issued approximately 50 enforcement actions,
with average penalties of $55,000
• Most commonly cited violations are failure to:
*Hire a LSRP *Address LNAPL *Pay Fees *Close tanks
*Conduct a receptor evaluation
• Coming soon: Direct Oversight requirements
3
6/14/2013
Advice to Avoid Enforcement
• Comply with SRRA now! (Affirmative obligation
means don’t wait for Department call or letter)
• Comply sooner rather than later (Penalties
accrue daily)
• Comply even after enforcement action is issued
(Shows good faith and improves settlement
position)
May 2014
• SRRA compels the Department to undertake
direct oversight of old cases if full site RI is not
completed by 5/2014
• SRP has a number of initiatives underway to
educate parties and help them avoid direct
oversight requirements if possible
• SRP also gearing up to enforce direct oversight
requirements
4
6/14/2013
May 2014 Prep
• Mass mailing for all cases to which SRP believes
the RI deadline applies
• Supporting documentation explains:
• to which sites the deadline applies,
• what “entire contaminated site” means,
• what “complete the RI” means,
• how to demonstrate the RI is completed
May 2014 Prep
• Letter explains how to proceed if RI is already
complete or remediation trigger occurred after
5/7/99
• 1-800 Call Center to handle questions
5
6/14/2013
To which cases does the deadline
apply?
Discharge/Contaminated Area of Concern:
• That was identified on or before 5/7/99, or
• That should have been identified on or before
5/7/99 due to an obligation to conduct a PA/SI
on or before that date, pursuant to UST, ISRA,
ACO/RA or directive
“Entire Contaminated Site”
Discharges/contaminated areas of concern, which
include all portions of environmental media* and
any location where contamination is emanating, or
which has emanated there from*, that contain one
or more contaminants at a concentration above
any remediation standard or screening criterion.
* Environmental media include soil, ground water,
surface water, sediment, and air.
*Contamination “…which has emanated there
from…” includes onsite discharges that have
migrated or are migrating offsite.
6
6/14/2013
“Complete the RI”
If the following have been determined the RI is
complete:
• The nature and extent of a discharge of a
contaminant both on and off site;
• The impacts and potential impacts to
receptors presented by the discharge; and
• The need for a remedial action, and, if one is
necessary, collection of information to support
the evaluation of possible remedial actions.
• LSRP should:
• Use applicable regulations, guidance, professional
judgment to determine when sufficient data exist
to demonstrate nature and extent of discharge of
contaminant
• Employ multiple lines of evidence, including, but
not limited to: analytical data, extrapolation or
modeling based on existing data, conceptual site
models, other means
• Include information in RIR documenting how
determined nature and extent of contamination
7
6/14/2013
Extensions
Extensions are only available:
• for regulatory timeframes, if request is
timely/complete
• for mandatory timeframes, if request is
timely/complete, for very limited and specific
circumstances
Extensions and “lengthening” are not available for
statutory RI completion timeframe
What if both pre- and post- 1999?
If both pre- and post-1999 triggers exist:
• DEP’s default assumption: 5/7/14 applies
• Argument that 5/7/14 applies only to pre-1999 AOC
must be supported
• If Dept agrees to apply 5/2014 deadline to old
discharge alone, separate future timeframes will
apply, separate annual fees will apply, and they will
not be rejoined
8
6/14/2013
What if party thinks they are not
liable?
• Department does not make liability determination
• Parties who may be liable include:
• UST owner/operator
• ISRA owner/operator
• Each person in any way responsible, including but
not limited to: discharger, property owner at time
of discharge, each subsequent owner, holder of
security interest, statutory permittee
• Party subject to order or agreement to remediate
Direct Oversight
• Conduct a feasibility study
• Implement each remedial action the Department
selects for the site
• Establish and maintain a remediation trust fund
in the amount of the estimated cost of the
remediation
• Simultaneous submission to Dept & RP
• Implement public participation plan
9
6/14/2013
GZA GeoEnvironmental, Inc.
May 2014 RI Completion Deadline
NJWEA Licensed Site Remediation Program:
June 13, 2014
By John Oberer
Proactive by Design.
Our Company Commitment.
Is My RI Complete?
• Nature and Extent of Contamination On- and Off-Site
• Which Receptors Are or May Be Affected
• No Additional Delineation Needed to Select A Remedy
1
6/14/2013
How Can the LSRP Help Achieve Compliance?
• Check Site Status in Dataminer ………………………Now!
• Know the Rules
• Use the Guidance
• Use Professional Judgment
Final Thoughts:
• Document basis for decision(s)
• This is not the time to play the delay game
• Technical Consults are available
• You don’t want to be in Direct Oversight
2
6/14/2013
Contact Info:
[email protected]
GZA. Proactive by Design.
3
New Jersey DEP
Technical Guidance Committees
George Nicholas
DEP/SRP Technical Guidance Committee Oversight
June 2013
• Composed of :
–
5 DEP Staff and 7 Stakeholders
• Topics
–
Selected via meetings w/ DEP and
Stakeholders (Fall 2010 / Summer 2012)
• Timeframe for document completion:
–
Avg. 18-24 months.
2
1
15 Round-1
Kicked off Summer 2010
1.
Vapor Intrusion
9.
Historic Fill
2.
LNAPL
10.
Technical Impractibility
3.
Receptor Evaluation
11.
MNA
4.
Presumptive Remedies
12.
Conceptual Site Model
5.
IEC
13.
Analytical Methods
6.
Clean/Alternative Fill
14.
Eco Investigation
7.
8.
Ground Water SI/RI/RA
15.
Soil (4 docs; PA, SI/RI/RA,
UST and Landfill)
(Immed. Env. Concern)
(Monitored Nat. Atten)
Attainment
7 Round-2
Kicked off Work September 2012
1.
2.
3.
4.
5.
6.
7.
Off-Site Source
Co-Mingled Plumes
Historic PesticideUse
Capping
Performance Monitoring of In-situ GW
Remedial Actions
Evaluation of GW discharges to SW
Child Care Centers (just added spring 2013)
2
Document Review Process
Draft Final Documents
–
All committee members support document
–
6 week review period
–
Sent internally to NJDEP ADs/BCs, tech guidance
oversight team, SRP Asst. Comm. Office
–
External stakeholder review coordinated by
stakeholder reps. on all Tech Guidance Comm.
–
Steering Committee reviews for “Fatal Flaws”
–
Comments evaluated, incorporated into document
or excluded with explanation
Dispute Resolution
If Tech Guidance Committee cannot resolve issue
– Guidance Committee outlines issue and
discusses w/oversight team
– Oversight team determines if issue needs to be
elevated to NJDEP management
– Once referred, decision is no longer within the
control of the Technical Guidance Committee
3
Committee Lifecycle
The guidance document is completed…
what next ?
– The Committee officially ends its
work
– Committee may be asked to
reconvene if:
– Significant updates are necessary (due to
advances in technology, new research, or
changes in Regulations
4
Licensed Site Remediation Professionals Program
Application of Technical Guidance:
The SRRA, Professional Judgment
and Legal Issues
presented for:
June 13, 2013
Steven T. Senior, Esq.
Riker Danzig Scherer Hyland & Perretti LLP
[email protected]
Use of Guidance Pursuant to the SRRA
• The SRRA requires LSRPs to apply available
and appropriate technical guidance of the
DEP, except
• in the absence of a rule requirement on point,
– if DEP has not developed guidance, or
– if the LSRP determines use of all or part of
an DEP guidance is not appropriate or
necessary,
LSRPs may use other guidance, methods and
practices protective of public health and the
environment.
N.J.S.A. 58:10C-14.c(4).
1
Use of Professional Judgment
• Code of Conduct requires LSRPs to exercise
“independent professional judgment” to remediate
contaminated sites.
• LSRPs need to use professional judgment to apply
technical requirements and guidance.
• Exercising professional judgment is an inherent and
essential part of site remediation practice.
• “The intent of the SRRA is to allow LSRPs to make
decisions regarding remediation of a site using their
professional judgment.”
44 N.J.R. 1339(b) (May 7, 2012).
Use of Guidance and Professional Judgment
• “The Technical Guidance provides
Departmentally acceptable policies and
scientifically based approaches to achieving
compliance with the Department’s rules.”
• Moving prescriptive “Technical Requirements into
various technical guidance … allows LSRPs to
use professional judgment.”
• “LSRPs have the ability to select an alternative
approach [to the DEP’s guidance] if that
approach is protective of public health and the
environment.”
44 N.J.R. 1339(b) (May 7, 2012).
2
Use of Guidance
• An LSRP’s use of guidance should be
documented in the relevant submittal.
– as a matter of good practice
– any deviation from DEP guidance
– justification for use of other guidance,
methods and practices
See N.J.A.C. 7:26C-1.2(a)(3); N.J.A.C. 7:26E-1.5(b) (applicable to
PRCR).
• “LSRPs should exercise their professional
judgment regarding the level of detail needed
to adequately justify decisions.”
44 N.J.R. 1339(b) (May 7, 2012).
Are Requirements of Guidance Enforceable?
• “[G]uidance is not enforceable.”
• “The Department will not be enforcing whether
a [PRCR] complied with a particular provision in
a guidance document.”
• “The Department will enforce the requirement
… to provide justification for a deviation from
the technical guidance.”
44 N.J.R. 1339(b) (May 7, 2012).
3
Are Requirements of Guidance Enforceable?
N.J.S.A. 52:14B-3a
• Prohibits the use of regulatory guidance
documents that have not been adopted as
rules, unless the guidance is posted on the
agency’s website.
• Any posted guidance cannot impose new or
additional requirements that are not included in
the law or rules that the guidance is intended to
clarify.
• This guidance cannot be used as a substitute
for the law or rule for enforcement purposes.
In Re N.J.A.C. 7:1B-1.1 et seq.
The Waiver Rule Decision and Guidance
• Invalidated DEP’s requirement that applicants
use Waiver Rule guidance posted on the
agency website.
• The impermissible guidances “go beyond …
implementation of the rules as claimed by
[DEP] and actually, to some extent, announce
new substantive requirements necessitating
compliance with the APA.”
• A further basis to challenge enforcement of
specific requirements of guidance.
4
Steven T. Senior, Esq.
Riker Danzig Scherer Hyland & Perretti LLP
[email protected]
(973) 538-0800
5
NJDEP Vapor Intrusion and
13 June 2013
John Boyer
[email protected]
609-984-9751
Rich Rago
[email protected]
617-719.6128
Basis for the Session
http://www.state.nj.us/dep/srp/guidance/vaporintrusion/
2
1
Vapor Intrusion (VI) Pathway
Commercial/Industrial Worker
Working over Plume
Resident Living over Plume
Basement or
Without Basement
Crawl Space
Indoor
Air
Vadose
Zone
Soil Gas
Soil / GW
Contamination
Courtesy: ITRC
The migration of volatile chemicals from the
subsurface into overlying buildings (USEPA 2002a)
3
Multiple Lines of Evidence (MLE)
• Soil gas spatial concentrations
• Groundwater spatial data
• Background (internal and
external / ambient) sources
• Building construction and
current condition
• Sub-slab soil gas data
• Soil gas data
• Indoor air data
• Constituent ratios
• Soil stratigraphy
• Temporal patterns
2
GW Trigger to VI Receptor
Evaluation
• GW may be resampled to confirm the
presence of contamination provided
the initial results do not exceed three
times (3X) the GWSL.
• Two confirmation samples should be
collected from the same monitoring
well using similar purging & sampling
techniques, evenly spaced temporally
within 60 days of the initial sampling
event.
• Average the results.
• Consistent with NJDEP Attainment/
Compliance Technical Guidance.
VIT Guidance
Section 2.1
5
Modification to Trigger
Distances
Dissolved petroleum hydrocarbons
All other dissolved compounds
30 feet
100 feet
Petroleum-based free product
30 feet
All other free product
100 feet
VIT Guidance
Section 2.4.3
The critical distance criteria are now
referred to as trigger distances
6
3
Naphthalene and
2-Methylnaphthalene
• Analysis for 2-methylnaphthalene will not be required for VI
samples collected to investigate kerosene, jet fuel, diesel fuel,
fuel oil No. 2, and heavier petroleum products. The NJDEP will
update the Technical Rules to remove this requirement. Until
the rule is updated, persons responsible can apply a variance
pursuant to N.J.A.C. 7:26E-1.7 to not perform this analysis.
• In addition to Method TO-17, the Department is developing
provisions for analyzing naphthalene using either Method TO15 or Low Level TO-15.
• Starting on July 16, 2013, sampling & analysis for naphthalene,
consistent with N.J.A.C. 7:26E-2.1(c)3, will be required.
• The NJDEP’s VI website (and related documents) have been
updated.
7
Sampling & Analysis Issues
• The initial round of VI samples shall be analyzed for
the full compound list, plus TICs [7:26E-2.1(c)3]
• VI samples include indoor air, ambient air and subslab soil gas [7:26E-2.1(c)3]
• Full laboratory data deliverables shall be submitted
for all VI sample (IA, SG & AA) analyses [7:26E2.1(a)15]
• Quality Assurance Project Plan (QAPP) required for
all sample and data collection [7:26E-2.2(a)]
8
4
Canister Pressure Issues
• Verify the vacuum in the stainless steel canister before and
after the sample collection.
• Compare the canister’s initial vacuum at the site (prior to
collecting a sample) with the lab’s reading. If the initial
vacuum at the site is in excess of 10% lower than the lab
reading, the canister should not be utilized for sampling.
• The potential for pressure loss during transit negates the
data usability from the defective canister or regulator.
• It is not necessary to maintain residual vacuum in the
canisters for soil gas samples.
VIT Guidance
Section 3.3.1.9
9
Timeframe for Analytical Data
& Result Submittals
Actions
No
Exceedance*
Vapor
Concern
Immediate
Environmental
Concern
Submittal of full laboratory data
deliverables and form to the NJDEP
with appropriate maps & figures
30 days
14 days
14 days
Submittal of result letters & summary
tables to owner/ occupants, local
health department & NJDEP
30 days
14 days
14 days
Submittal of IA & ambient air results on
CD to NJDOH with appropriate maps &
figures
14 days
14 days
14 days
* No exceedance of an IA sample OR results
of soil gas samples only (no IA samples)
VIT Guidance
Table 3-3
10
5
NJDOH Data Submittals
As required in the Technical Rules [N.J.A.C. 7:26E-1.15(h)],
the following items shall be submitted to the NJDOH in
Adobe Portable Document Format (pdf):
• all indoor and ambient air results
• all maps and figures related to the indoor air sampling
• a sample location spreadsheet
Submit the data and related information electronically to
[email protected].
Any questions can be directed to the NJDOH Standard
Setting and Risk Assessment Project at (609) 826-4920.
Please do NOT mail hardcopies of any data to NJDOH.
VIT Guidance
Section 2.4.2
11
Access for Sampling/
Mitigation
• File a legal action to obtain access to private
properties if access is not granted voluntarily
(N.J.S.A. 58:10B-16), regardless of the building’s
use (e.g., residential, commercial, retail,
industrial).
• Legal action is not necessary if owner permits
near slab SG samples instead of sub-slab SG
samples (exterior SG samples are not an
acceptable alternative).
• Pursue court ordered access of a property to
perform the mitigation when the general public
or tenants may access the building. Otherwise,
the decision to mitigate is left to property owner.
VIT Guidance
Section 2.4
12
6
Step-Out Investigations
• A “step-out” investigation required when a VC [7:26E1.15(e)6] or IEC [7:26E-1.11(a)6] condition is identified.
• VI investigation shall be completed (including sampling) for
all buildings within 100 feet of the impacted building
irrespective of the COCs involved. The trigger distance
criteria shall not be used during “step-out” investigations.
• The timeframe for completing
the “step-out” investigation is
60 days for an IEC condition
and 150 days for VC conditions.
VIT Guidance
Section 2.4.2
13
SRP ListServ
Stay
Informed!
http://www.nj.gov/dep/srp/
14
7
Discussion on VI Pathway and
Indoor Air Background Considerations
and Professional Judgment
• Some Indoor Air VISLs are very low and may be
influenced by confounding background sources
• Evaluate all indoor air data carefully and consider
multiple lines of evidence
• Supplement indoor air building surveys with the
Household Products Database of the National
Library of Medicine http://householdproducts.nlm.nih.gov
/
• Many product formulations have changed and VOC
off-gassing from products may not be apparent
8
Background Considerations and
Professional Judgment: Benzene
Benzene IASL: 2 ug/m3
Median: 1.6 ug/m3
Median: 1.8 ug/m3
Professional Judgment: Ethylbenzene
Ethylbenzene IASL: 2 ug/m3
Median: 2.17 ug/m3
Median: 2.2 ug/m3
9
Professional Judgment: Naphthalene
Naphthalene IASL: 3 ug/m3
Median: 2 ug/m3
Median: 0.4 ug/m3
Professional Judgment: TCE Site
• Industrial facility offsite VI investigation
• Trichloroethylene (TCE) main COC in groundwater,
with some 1,2-dichloroethane (1,2-DCA) also
present in some areas
• Indoor air sampling program identified 1,2-DCA in
residences outside areas of 1,2-DCA groundwater
contamination
• What would explain this?
(Doucette et al, 2009)
10
Lessons and Closure
• Investigator conducted indoor air and product
sampling to isolate consumer products emitting
1,2-DCA and to quantify the emission rates
• molded plastic holiday ornaments identified
with emission rates as high as 0.3 µg 1,2DCA/min
• Calculated that measured emission rates of
1,2-DCA from these items can lead to indoor
concentrations of regulatory concern
(Doucette et al, 2009)
Do You Investigate the House?
Scenario
Residential
Building
VOC-contaminated soil
VOCs – ND
11
Is the VI Investigation Over?
50,000 ft2 building on 10 acres
1,1-Dichloroethene is
contaminant of concern
* ***
*
* Site
*
* Site
DCE > screening level
N
8 properties sampled
* InitialDCE
< screening level
23
Redfield Rifle Scopes Site, Colorado
Redfield
Site
DCE > 7 µg/L
DCE < 0.49 µg/m³
DCE >= 0.49 µg/m³
N
•
•
24
12
Former Pressed Metal Company Site
TCE 7,000 ug/L
TCE 130,000 ug/L
TCE 3,400 ug/L
TCE for sale
13
Initial Indoor Air TCE
Concentrations
476 ug/m3
469 ug/m3
349 ug/m3
486 ug/m3
Lessons and Closure
• Temporary Remedy: $500; 9,000 cfm fan (36”)
• Concentrations reduced to ~29 ug/m3 TCE
• Concentrations increased to ~132 ug/m3 TCE
• What happened?
14
Do You Investigate the Office?
Scenario
Commercial
COCs used
Office
PCE - ??
65 ft.
No IA samples
OSHA applicable
Institutional control for
future use
ethylbenzene – 375 μg/m3
ethylbenzene – 500 ppb
ethylbenzene – 1,900 ppb
Former Electronic Parts Distributor
Existing data: GW< VISLs; Soil test boring data low-ND
Are investigation data adequate for VI?
15
Distance between buildings
Soil Vapor PCE Concentrations
27,000 ug/m3
52,000 ug/m3
210,000 ug/m3
24,000 ug/m3
1,100,000 ug/m3
400 ug/m3
490 ug/m3
16
Initial Indoor Air PCE Concentrations
120 ug/m3
120 ug/m3
930 ug/m3
Lessons and Closure
• Soil and groundwater data ignored potential for
diffusion via sources in unsaturated zone
• After building completely vacated, also observed
preferential pathway
• significant differential settlement - up to ¾” with field
PID measurements up to 40 ppm
• Improvements after removing carpet and sealing
floor slab cracks and expansion joints
• Building vacant for two years while remedy
implemented by adjacent property owner
• Some cost recovery ongoing
17
Each leasehold - IEC, VC, or . . . ?
Strip Mall
Scenario
PCE IASL
Res
9
NRes 47
Open rafters above all leaseholds
Day Care
Nail Salon
Dry
Cleaners
PCE –
30 μg/m3
PCE –
200 μg/m3
No IA
sample
PCE –
350 μg/m3
PCE –
3,300 μg/m3
PCE –
15,000 μg/m3
Donut
Shop
Headquarters
PCE –
400 μg/m3
PCE –
50 μg/m3
PCE –
5,300 μg/m3
LSRPA
PCE –
500 μg/m3
PCE RAL
Res
84
NRes 360
PCE SGSL
Res
470
NRes 2400
PCE – 540 ppb
Strip mall with former dry cleaner
• Tenants included clothing store, barber shop
and pizza parlor; Sub-slab PCE up to 150,000
ug/m3 beneath basement of pizza parlor;
indoor air PCE in restaurant space up to 45
ug/m3
• Subslab depressurization selected to mitigate
VI; diagnostic testing to design
depressurization system completed during off
hours to minimize disruption to restaurant
18
Diagnostics and mitigation system
conditions
• Diagnostic testing demonstrated effective ROI
of up to 0.016 in. H2O at 20 ft. from pilot
suction pit
• Following system startup, measureable
vacuum detected in vacuum monitoring points,
but only up to 0.008 in. H2O
• Efforts to troubleshoot did not indicate
problems with blower system
• Door difficult to open
Lessons and Closure
• System could not compensate for commercial
exhaust fan
• differential pressure readings increased and
decreased when the exhaust fan was cycled
on and off
• Solution: additional suction pits were installed
to provide better coverage and dilution air to
vacuum blower was balanced
• negative pressure field of up 0.015 in. H20
measured even while exhaust fan operating
19
How Many SSSG Sample Locations?
Scenario
Commercial
COCs not used
Building footprint –
250,000 square feet
Recommended Minimum Number of Sub-slab soil Gas Samples
20,001 – 50,000
50,001 – 250,000
250,001 – 1,000,000
6 SSSG samples
8 SSSG samples
10 SSSG samples
Deadly ethyl mertz – really, really high
Data Reduction and Multiple Lines of
Evidence (MLE)
• Simple comparison of data to screening levels may
result in complicated matters and incorrect decisionmaking
• Consider the Conceptual Site Model for VI in planning
investigations
• Consider MLEs
• Contaminant ratios
• Attenuation factors
• Modeled concentrations
• Building pressure differentials and meteorological data
• Contaminant trends
• Background sources identified
20
Summary
• Conduct of Vapor Intrusion assessments requires
careful planning
• Data reduction can be complicated based on even
“normal” vapor transport mechanism conditions
• Assessments are further complicated with IA and
OA background sources
• Planning should be informed by a CSM with nature
and extent of contamination defined, or at least,
generally understood
Questions?
21
Remediation Standards
Upcoming Rulemaking Efforts
June 13, 2013
Barry Frasco
NJDEP
Current Status:
Adopted June 2, 2008
Expires June 2, 2015
Goal:
Readopt regulation with amendments prior to rule
expiration
1
Readoption Deadlines:
• If a rule proposal is published prior to the
published rule expiration date, the rule expiration
date is extended 6 months
• Expiration date becomes December 2, 2015
• Publish rule proposal by December 2, 2014
Readoption Objectives:
• Evaluate existing policies and determine if
changes are needed
 Hierarchy of toxicity data
 Class “C” carcinogens
 Significant figures
 Rounding protocol
• Evaluate existing equations and models for
existing exposure pathways
2
• Evaluate existing equation default parameters
• Evaluate existing contaminant list
• Evaluate addition of new contaminants
 Chromium (trivalent and hexavalent)
 Dioxins
 Extractable Petroleum Hydrocarbons
 Others?
• Inclusion of additional exposure pathways
 Soil impact to ground water
 Indoor air
• Evaluation of alternative remediation standard
and interim remediation standard process
3
Stakeholder Process:
• Initial “kickoff” meeting with all interested
stakeholders
 Has not been scheduled
 Will be noticed via Listserv message and
announcement on DEP/SRP website
• Subsequent meetings with stakeholders on a
regular (monthly?) basis
• Agenda and any documents for discussion will be
made available well in advance of meetings
4
Header text if required. Max 2 lines. To
amend/delete click View >> Header & Footer>>
Notes & Handouts tab
Compliance Attainment
Ground and Surface Water
Guiding Principals
 Regulations provide the standards to be complied with
 Guidance provides suggested methodologies for accessing compliance
with standards
 Professional Judgment is used to assess whether the data makes
sense within the Conceptual Site Model, including hydrogeologic,
geochemical and analytical considerations
1
Ground Water
 Applicable Standards
 Minimum ground water remediation standards
– N.J.A.C. 7:26D-2 = 7:9C-1.7 GWQS

Class I (exceptional ecological areas; Pinelands)

Class II (potable)

Class III (aquitards; salt water intrusion)
– Interim GWQS (N.J.A.C. 7:9C-1.7(c)2)
– Alternative remediation standards not allowed (N.J.A.C. 7:26D-2.2(b))
 Vapor Intrusion Screening Levels
– Applicable at both SI and RI stages
 Compliance Options
 Single point compliance for all stages of remedial investigation (SI/RI/RA)
 Allow for temporal averaging
2
Ground Water
 Compliance logic flow chart (SI or RI)
No
GW sampling results
No
Conc >
GWQS
Yes
Proceed to next
phase
Choose to take 2
additional rounds
within 60 days and
average all 3
results?
No
Completed
Conc >
GWQS
Yes
Yes
3
Ground Water
 Remedial Action/Remedial Action Permit
 Active remediation
– System operating as designed for minimum of one year
– NJDEP issues GW Remedial Action Permit
– LSRP issues RAO
 Passive remediation (MNA)
– Either meets requirements in
– MNA technical guidance (Section 7); or
– “Issuance of Response Action Outcomes” guidance (Attachment 2)
– or NJDEP issues GW Remedial Action Permit and
– LSRP issues RAO
 Permit termination/CEA removal
– Two (2) consecutive confirmatory sampling events from all monitoring
wells < GWQS pursuant to N.J.A.C. 7:26C-7.9(f)
– NJDEP removes CEA and terminates GW RAP
4
Ground Water
 Remedial Action/Remedial Action Permit
No
Collect first round
samples per
N.J.A.C. 7:26C-7.9(f)
Conc >
GWQS
Yes
Choose to take 2
more samples
within 60 days
and average all 3
results?
Yes
Yes
No
Conc >
GWQS
Yes
No
No
Yes
Continue
Remediation
Choose to take 2
more samples
within 60 days
and average all 3
results?
Yes
NJDEP removes CEA and
terminates GW RAP
Conc >
GWQS
No
Conc >
GWQS
No
Collect second round
samples per
N.J.A.C. 7:26C-7.9(f)
Surface Water
 Applicable Standards
 Human-health based minimum remediation standards
– N.J.A.C. 7:26D-3 = N.J.A.C. 7:9B-1.14 SWQS
– Surface water sample; or
– Ground water sampler collected immediately adjacent to surface
water (where ground water has been shown to discharge into surface
water)
– Alternative remediation standards not allowed (N.J.A.C. 7:26D-3.2(b))
 Ecological surface water screening levels
– “Ecological Evaluation Technical Guidance”
6
Surface Water
 Site Investigation
 Single point
 If concentration exceeds SWQS, proceed to Remedial Investigation
 Also necessary to determine whether there is exceedance of ecological
surface water screening levels
 Remedial Investigation
 Single point; or
 Alternative site-specific method using applicable technical guidance as
specified in SRRA
 If concentration exceeds SWQS based on single point or alternative
method, proceed to Remedial Action
7
Surface Water
 Remedial Action
 Site closure
– Single point compliance, or
– Alternative site-specific method using applicable technical guidance as
specified in SRRA
 If concentration < SWQS based on single point or alternative method,
remediation complete
8
Example Site
wooded area
parking
Benzene
22 ug/l
15 ug/l
10 ug/l
VC
2.5 ug/l
1.9 ug/l
2.2 ug/l
Building
Highway
9
QUESTIONS?
10
6/14/2013
Compliance Attainment
Soil
Soil: Applicable Standards
• Direct Contact Pathway
•
•
•
Ingestion/Dermal & Inhalation
Alternative Remediation Standards Conditions
NJAC 7:26D-5: Interim Soil Remediation Standards
• Impact to Groundwater Pathway
•
•
Remediation standards developed on site specific basis
(NJAC 7:26D-1.1 b)
Various guidance documents available
1
6/14/2013
Soil: Applicable Standards
• Impact to Groundwater Pathway con’t
• Department approval required for more complex
applications: SESOIL or SESOIL/AT123D
• If multiple methods applied to derive IGW standard,
highest calculated value used as standard
Soil: Compliance
• Overall purpose: to determine if remediation
is needed or not needed
• Options to achieve compliance dependent on
phase of investigation:
• Site Investigation
• Remedial Investigation
• Remedial Action
2
6/14/2013
Soil: Compliance
• Comparison of contaminant concentrations to
most restrictive (lowest) applicable soil
remediation standard
•
•
Usually the residential direct contact or IGW
5 contaminants for which the non-residential
inhalation pathway standard is the most restrictive
(acenaphthylene,
benzo(ghi)perylene,
cobalt,
manganese and phenanthrene)
Soil: Compliance
• Site Investigation Phase
• Single-point compliance only
• If the applicable soil remediation standard is
exceeded, proceed to RI or RA
• If the applicable soil remediation standard is not
exceeded, no remediation required
3
6/14/2013
Soil: Compliance
• Before any compliance options can be used:
•
Need to complete horizontal and vertical delineation
first to the applicable soil remediation standard
Must use single-point compliance for determining
whether delineation is complete
If off-site migration determined, delineation to most
restrictive direct contact standard and IGW standard
•
•
Soil: Compliance
• For Direct Contact Pathway, delineation end points
based on different land uses:
•
•
•
Unrestrictive Use – delineate to most restrictive direct
contact standard
Limited Restrictive Use – delineate to the non-residential
standard. Delineate off site to the most restrictive direct
contact standard.
Restrictive Use
•
•
Residential – delineate to the most restrictive direct contact
standard at the boundary of the restrictive area.
Non-residential sites – delineate to the non-residential standard
at the restricted area and the most restrictive direct contact
standard at the property boundary
4
6/14/2013
Soil: Compliance
• Determine need for remedial action (all
pathways) by using these compliance options:
•
•
•
Arithmetic mean
95% UCL (upper confidence limit of mean)
Spatially weighted average
Soil: Compliance
• If applicable remediation standard is exceeded,
conduct remedial action
• If applicable remediation standard is not
exceeded, remediation complete
5
6/14/2013
Soil: Compliance
• Remedial Action verification:
•
For all pathways determine whether:
•
•
•
Compliance with applicable soil remediation standard has
been achieved or,
Whether additional remedial action is required
Compliance achieved using 1 of the 5 options:
•
•
Single point compliance or
Compliance options:
•
Arithmetic mean
•
95% UCL (upper confidence limit of mean)
•
Spatially weighted average
•
75%/10x
Soil: Compliance
• Remedial Action verification con’t:
• If applicable remediation standard is exceeded:
•
•
For the direct contact pathway – either continue with
remedial action or implement an engineering and/or
institutional control
For the IGW pathway – continue with remedial action
• If applicable remediation standard
exceeded, remediation complete
is
not
6
6/14/2013
Soil: Compliance
• Additional compliance options to demonstrate
no further remediation required for IGW
pathway:
•
•
•
“Guidance for the Evaluation of Immobile Chemicals
for the Impact to Groundwater Pathway”
“Site Soil and Groundwater Analytical Data
Evaluation – Metals and SVOCs”
“Site Soil and Groundwater Analytical Data
Evaluation – VOC including MTBE and TBA derived
from discharges of Petroleum Mixtures”
7
6/14/2013
8

Professional Judgment

Transcription

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