Indiana Perspectives on the Use of Institutional Controls for Leaking UST Sites ASTSWMO LUST and State Fund-Financial Responsibility Workshop May 2014
Indiana Department of Environmental Management Remediation Programs Office of Air Quality Office of Land Quality Office of Water Quality Remediation Science Services Permits Compliance Tanks Federal Programs Hazardous Waste Leaking UST State Cleanup Excess Liability Trust Fund (USTs) Voluntary Remediation Brownfields Indiana Finance Authority
Risk-based Corrective Action (RBCA) ~2000 Transition began to broad risk program use Site Characterization What contaminants? How much? Where? Mobility? Conceptual Site Model and Risk Assessment Identify exposure pathways and receptors Identify risk target levels based on land use Does contamination pose unacceptable risk? Corrective Action (prior to 2009) Reduce contaminant concentrations to land use based levels, then Eliminate exposure pathways to receptors with institutional controls (ICs), typically an Environmental Restrictive Covenant (ERC)
What is an ERC? Proprietary IC that lists restrictions and obligations for a specific property Uniform Environmental Covenant Act not adopted by Indiana Indiana code defines ERC content and IDEM s authority ERCs run with the land binding on successor owners and enforceable by IDEM Signed by property owner and recorded at County Recorder s office; becomes part of title record Property owner responsible for compliance Site closure after IDEM receives copy of recorded ERC
ERC Contents Describes property ERC covers Reference to deed record Legal description attached Describes why ERC is in place Lists remediation program and site number May describe contamination remaining at site Common restrictions and obligations for leaking UST sites: No ground water use Soil management obligations No residential use Affected area obligations, such as caps and construction worker notice 5
Risk-based Corrective Action 2009 Indiana law changed risk remediation objectives Corrective Action (after 2009) Treatment or removal of contaminants, including free product, not necessarily required Remedies that manage risk and control exposure may be proposed in lieu of, or in addition to, reducing contamination to closure levels IDEM must give effect to ERCs and newly defined Environmental Restrictive Ordinances (EROs) in evaluating remediation proposals
What is an ERO? 2009 Indiana law defined an ERO as: Ordinance that controls the use of ground water to a degree that protects from exposure to hazardous substances and/or petroleum Requires local authorities to notify IDEM if they are enacting, amending, or terminating an ERO By definition, may include ordinances enacted previously for other purposes Size of ERO may vary from entire corporate limits to smaller areas Most Leaking UST sites close with ERCs Limited ground water plume extent Residual soil contamination
EROs Evaluation General evaluation considerations: Area covered by proposed or existing ERO? Extent of contaminant plume? Any influence by nearby water withdrawals? Potable well use in ordinance area? Plume within a wellhead protection area (WHPA)? ERO Challenges DNR water well database incomplete No well-established communication process with local stakeholders Complicating issues such as long-term plume stability, lack of comprehensive state well permitting, and existing or planned WHPAs
Example ERO
Rise in IC Numbers Since Risk-based Corrective Action Initiated 250 Number of ICs Per Year (All Remediation Programs) 200 150 100 50 0 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012
IC Sites in Registry by Program Indiana Brownfields Program 258 ICs Voluntary Remediation 247 ICs State Cleanup 101 ICs Federal Programs 63 ICs RCRA Corrective Action 49 ICs Leaking UST 651 ICs Number of ICs 1,356 ICs BF LUST RCRA SCU SF VRP
Indiana UST Sites ~4,230 active UST facilities ~2,000 active Leaking UST sites Increased use of ICs after 2009 law changes ~10% of all closed Leaking UST sites used an IC ~ Current IC use about 45%
Shift in How ICs Viewed 2001-2007 growing number of IC sites No cross program tracking of ICs Records stored in different agency program files 2007-2008 mounting concerns about IC awareness Environmental agency typically not involved with local redevelopment projects Local government units (planning, zoning, building permits, etc.) may be unaware of contaminated sites Administrative records may be lost (property subdivided, etc.) New owners/tenants may be unaware of ERCs 2008 IC Registry developed and electronic record storage began
Comprehensive IC Program IC Long-term Stewardship Planning IC Policy and Implementation IC Outreach and Notice Tracking ICs Monitoring ICs IC Enforcement A robust IC program should cover all these functional areas Requires a broad range of staff expertise from multiple areas managerial, technical support, project management, and legal IDEM currently spends majority of time on IC implementation and tracking Indiana has no dedicated funding for majority of IC activities
IC Policy and Implementation Most time-consuming Individual site IC review and implementation Agency guidance Internal Standard Operating Procedures IC Long-term Stewardship Planning IC Policy and Implementa -tion IC Outreach and Notice Tracking ICs Monitoring ICs IC Enforcement
IC Policy and Implementation Lessons learned Selection and documentation of restrictions important Some sites over-restricted Tendency to be overly conservative Leads to problems down the road with requests for modifications
Over-restriction Examples Example 1- Vapor intrusion (VI) restriction Vapor mitigation system required for all on-site buildings Contaminant levels below ground water VI screening levels No vapor intrusion testing or assessment done No documented technical staff concurrence Example 2 Maintain the pavement Subsurface soil only affected media Minor levels (leaching to ground water not a concern) No nearby water wells (private or community) Contamination at 12 feet (not easily accessible, no direct contact concern) Example 3 Size of restricted area
Over-restriction 125 acres
IC Policy and Implementation Lessons learned (continued) Contract sales sites both buyer and seller should sign ERC If restrictions only cover a portion of the site, clear geospatial data must be provided
Restriction Language Owner shall not conduct excavation in Affected Area, as shown in Exhibit B, without IDEM approval. Exhibit B is a ground water sampling map from an investigation report. No Affected Area denoted. Long-term stewardship problem?
IC Outreach and Notice Better communication lines with local government units needed IC Registry on IDEM website IndianaMap IC layer created Staff training External stakeholder training IC Long-term Stewardship Planning IC Policy and Implementation IC Outreach and Notice Tracking ICs Monitoring ICs IC Enforcement
Tracking ICs IC retention schedule created 2009 Locate IC records in different remediation programs IC Registry Development IC Long-term Stewardship Planning IC Policy and Implementation IC Outreach and Notice Tracking ICs Monitoring ICs IC Enforcement
IDEM Institutional Controls Registry ERC and ERO Information Tools Database of sites with land use controls www.idem.in.gov/5959.htm IndianaMap Statewide map viewer to show geographic location of sites http://www.indianamap.org/ Virtual File Cabinet (VFC) Online access to IDEM site records www.idem.in.gov/6551.htm
Institutional Controls Registry Rolled out December 2008 Identifies sites subject to land use restrictions Contains links to ERCs Long-term plan to include EROs Links to IndianaMap (zoomed to site) and Virtual File Cabinet Summary report at www.idem.in.gov/5959.htm
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IC Summary Report Contents County Site Name Address & City 26
IC Summary Report Contents Affected Media Contaminant Class Restriction or Engineering Control Comments
IC Summary Report Contents Click View to open document in VFC
Virtual File Cabinet IDEM s online portal to documents and records Available 24 hours a day Over 60,000,000 pages loaded Searchable indexing, including, but not limited to: Primary facility name Facility address County, city Program identification number
Specific Restriction Language (no drinking water wells, etc).
Click Map to open aerial photo in IndianaMap
http://www.indianamap.org/ 32
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Click and then map icon to open site-specific information. 34
Use the ID# to search for records in VFC at IDEM website. 35
Tracking ICs GIS Mapping ERC legal descriptions used to create GIS polygons IC Registry started with single point designation for IC sites Changed procedure so polygons created in ERC draft phase to verify accuracy and IC Long-term reduce high error rates ~460 polygons finalized to date GIS polygons for old sites created as resources permit IC Policy and Implementation IC Outreach and Notice Stewardship Planning Tracking ICs Monitoring ICs IC Enforcement
Tracking ICs GIS Polygons for Mapping
Proposed and Final ERC Land Use Restriction Areas in Indianapolis
Tracking ICs Legal Descriptions Lessons Learned ~10% of legal descriptions submitted have errors Typographical errors in legal description Legal description does not cover contamination Legal description extends to off-site parcels or unnecessarily large acreage (over-restriction) ERC recorded by nonowner of land
Typographical errors in legal description
Legal description does not cover contaminated area
Legal description does not cover contaminated area incorrect parcel
Incorrect legal description AND property owner
Monitoring ICs IDEM currently has no comprehensive IC monitoring program (no dedicated funding) ~270 sites have had partial audits 65 sites by UST and hazardous waste inspectors ~135 sites by summer interns ~5-10% in violation or require additional follow up IC Long-term Stewardship Planning IC Policy and Implementation IC Outreach and Notice Tracking ICs Monitoring ICs IC Enforcement
Common issues Audit Findings Engineered barrier integrity problems Lack of notice to IDEM as required Other violations Residential use on nonresidential properties Water well use Many sites redeveloped may or may not have had violation in soil handling
Indiana One-call System Feasibility Study 2012 summer intern project Can Indiana s 811 system be used for IC monitoring? Challenges Mapping differences Obtaining membership Lack of exact contamination locations (depth of contamination, etc.) Costs and staff resources Benefits Increased awareness to external stakeholders May be able to tailor sites based on restriction type
IC Cost Challenges No dedicated funding for most IC activities, particularly after site closure Minimal auditing planned Audit site selection based on known problem areas Long-term stewardship needs will require agency resources Increased report review needs ERO communications IDEM staff coding elements for IC work created in 2013 to track agency costs Legislature passed cost recovery for ERC modification requests
ERC Modification Challenges Large impact on staff resources Original project manager may have left Competes with active site caseload Redevelopment projects often require quick turnaround Complexity varies by site, and if risk reassessment needed Confusion about what restrictions should remain in effect Some older site closure records don t indicate specific land use restrictions Past tendency to over-restrict sites Numerous instances of multiple ERCs recorded on properties without correctly terminating prior instrument
Types of ERC Modification Requests Property originally subject to ERC is subdivided Involving areas with residual contamination, or Involving areas outside investigative studies Proposed land use change Correction of a significant omission or legal description error Demonstration that contamination no longer represents a risk (additional remediation or attenuation)
Planned IC Activities for 2014 IC planning, implementation, and tracking continues (majority of effort) ERC modification policy development Long-term stewardship issues Create model long-term stewardship plan and guidance Funding challenges Follow national LTS work (IC surveys, Interstate Technology Regulatory Council workgroup, etc.) Engineered cap policy development Audit ~15 sites; focus on engineered cap sites Follow up on audits and ongoing complaints received
IC Data Exchange XML data schema establishes rules so IC documents are described in the same structure Standard means for sharing IC information between computer systems Published 2013 on the Environmental Information Exchange Network www.exchangenetwork.net/data-exchange/ic
IDEM Contact Information Nancy Dollar, Remediation Services Branch (317) 234-4814 ndollar@idem.in.gov