1. Environmental Site Assessments in Waste Cleanup Cases July 29, 2012 Risk Assessment

2. INTRODUCTION In this presentation, we will discuss the use of Environmental Site Assessments (ESAs) in Waste Cleanup cases. Specifically, we will talk about: Phase 1 Environmental Site Assessments Standards (ASTM) Elements of a Phase I ESA All Appropriate Inquiries (AAI) What is this? Differences between AAI and Phase I ESA Legal mechanisms and aspects Phase 2 + Other ESAs Summary Types of Remediation

3. Phase I Environmental Site Assessment Phase I Environmental Site Assessments:  Also called ESAs or Phase I’s or Due Diligence.  The most common reasons for a Phase 1 ESA include: Purchase or sale of a property. Financing of a commercial property. Re-Financing or second mortgage of a commercial property. Change in use of property such as from farmland to school/daycare/playground/park/golf course etc. Evidence of clandestine (illegal) dumping, spills.  Purpose: What is the purpose of a Phase I ESA? Why might you want one?

4. Phase I ESAs Objective of a Phase I ESA: to determine if an existing or potential “recognized environmental condition” (REC) is located on the property. Standards: -Phase I ESAs are based on ASTM E 1527-05 -ASTM standards are developed by technical committees within the organization and whose members represent the stakeholders who will be using/affected by the standards. What a Phase I ESA does not address (Non-scope items): Whether a site complies with federal/state laws Asbestos Lead paint Radon Wetlands Endangered species Cultural and Historical Resources

5. Phase I ESAs A Phase I ESA is a non-invasive inspection of the property and review of both current and historical records. It does not include any sampling or testing. Questions: What types of things would you want to discuss in a Phase I ESA report? What type of activities would you perform?

6. Phase I ESAs A Phase I ESA includes: A Visual Site Inspection of property (includes photographs of site and adjacent properties) Review of federal, state, tribal, and local/municipal governmental records Review of historical records (Sanborn, topos, city directories) Interviews with past owners/governmental agencies. Review of Aerial Photographs Review of any previous Phase I ESA reports for property Documentation of all findings in a report that includes opinion and signature of environmental professional

7. Phase I ESAs ASTM 1527-05 recommended format for Phase I ESA: Summary Introduction Site Description User Provided Information Records Review Site Reconnaissance Interviews Findings Opinion Conclusions Deviations Additional Services References Signature of Environmental Professional Qualifications of Environmental Professional Appendices

8. Phase I ESAs Data Gaps: Documentation of data gaps is no longer discretionary under ASTM E1527-05 Common data gaps: Unknown site usage during certain time periods Inability to conduct visual inspection Inability to interview the key site manager, regulatory officials, etc. Data from previous site investigation not available for review

9. Phase I ESAs How Long is a Phase I ESA good for? One (1) year, with updates required after 180 days for the following activities: –Interviews –visual inspection of the subject property –historical records review –search for recorded environmental cleanup liens “Date” of inquiry is the date(s) on which activities were performed, not the report date

10. All Appropriate Inquiries WHAT IS “ALL APPROPRIATE INQUIRIES”? “All appropriate inquiries” is the process of evaluating a property’s environmental conditions and assessing potential liability for any contamination. 40 CFR 312 Phase I ESA conducted according to ASTM E 1527-05 satisfies AAI. WHY DID EPA ESTABLISH STANDARDS FOR CONDUCTING ALL APPROPRIATE INQUIRIES? The 2002 Brownfields Amendments to CERCLA (2002 Small Business Liability Relief and Brownfields Revitalization Act) required EPA to promulgate regulations establishing standards and practices for conducting all appropriate inquiries.

11. All Appropriate Inquiries HOW DID THIS RULE GET DRAFTED? –A Negotiated Rulemaking Committee consisting of 25 diverse stakeholders developed the proposed rule. –Following publication of the proposed rule, EPA provided for a three month public comment period. EPA received over 400 comments from interested parties. Based upon a review and analysis of issues raised by commenters, EPA developed the final rule. WHEN DID THE RULE BECOME EFFECTIVE? –The final rule became effective on November 1, 2006—one year after being published in the Federal Register and 4 years after the Brownsfield Amendments to CERCLA.

12. All Appropriate Inquiries What does AAI require that wasn’t done under the prior ASTM standard: enhances the inquiries by extending the scope of a few of the environmental due diligence activities, such as interview section. In addition, significant data gaps or uncertainties must be documented. EP must provide an Opinion (does not require Recommendations).

13. All Appropriate Inquiries WHO IS AFFECTED? The final All Appropriate Inquiries requirements are applicable to any party who may potentially claim protection from CERCLA liability as: 1) an innocent landowner, 2) a contiguous property owner, or 3) a bona fide prospective purchaser. Parties who receive grants under the EPA’s Brownfields Grant program to assess and characterize properties must comply with the All Appropriate Inquiries standards.

14. All Appropriate Inquiries Innocent Landowner Defense –Part of CERCLA since 1986 SARA Amendments –Property owner “did not know and had no reason to know” of contamination at time of acquisition. –Conditions: Conduct AAI prior to acquiring the property Comply with continuing obligations after purchase

15. All Appropriate Inquiries Contiguous Property Owner –Part of 2002 Brownfields Amendments –Owner of property that is or may be contaminated from property owned by someone else –Conditions: Did not cause, contribute, or consent to the contamination Not affiliated with any potentially liable party Conduct AAI prior to acquiring the property Comply with continuing obligations after purchase

16. All Appropriate Inquiries Bona Fide Prospective Purchaser For the first time since the enactment of CERCLA in 1980, a person may purchase property with the knowledge that the property is contaminated, without being held potentially liable for the cleanup of the contamination. Conditions: Acquires ownership after January 11, 2002 No disposal or waste management activities on property after property is acquired Not affiliated with responsible party Conduct AAI prior to acquiring the property Comply with continuing obligations after purchase

17. All Appropriate Inquiries Continuing Obligations (Required following acquisition): Comply with land use restrictions Do not impede effectiveness or integrity of institutional controls Take “reasonable steps” to stop on-going releases Prevent or limit human and environmental exposure to any previous releases Provide cooperation, assistance and access Comply with CERCLA information requests and subpoenas

18. All Appropriate Inquiries Phase I ESA User’s Responsibilities –In addition to information traditionally provided by the user, AAI requires the user to provide the following information to the Environmental Professional that is material in identifying recognized environmental conditions: Information concerning environmental liens or activity use limitations recorded against the property obtained either from the review of judicial and title records, or from actual knowledge. Specialized knowledge or experience the user may have. Relationship of purchase price to fair-market value of the property if it were not contaminated. Commonly known or reasonably ascertainable information within the local community. Any obvious indicators that suggest the presence or likely presence of contamination at the property. Failure to provide this information could result in a data gap.

19. All Appropriate Inquiries WHO QUALIFIES AS AN ENVIRONMENTAL PROFESSIONAL? –The final rule defines an environmental professional as someone who possesses sufficient specific education, training, and experience necessary to exercise professional judgment to develop opinions and conclusions regarding conditions indicative of releases or threatened releases on, at, in, or to a property, sufficient to meet the objectives and performance factors of the rule, AND has: (1) a professional geologist or professional engineer license or other state or tribal issued certification or license AND three years of relevant full-time work experience; or (2) a Baccalaureate degree or higher in science or engineering and five years of relevant full-time work experience; or (3) ten years of relevant full-time work experience.

20. OTHER ESAs What follows the Phase I ESA? Phase II:  Sampling of various media – soil, ground water, sediment, surface water  Chemical analysis to quantify types and magnitude of contaminants  Define the nature and extent of contamination  Quantify risk to receptors  Comparison to relevant criteria to determine need for cleanup or risk management Other Types of ESAs: Feasibility Studies: Develop RAOs, ARARs, remedial alternatives evaluation. Additional sampling and analysis to support remedy alternatives development or treatability study »Remedy Documents: Corrective Actions, Interim Removal Actions, Record of Decision – present approach to implementing remedies and results of remedial actions

21. Remediation There are several fundamental principles when it comes to selecting corrective action technologies. 1)the primary objectives at any petroleum release site are to immediately stop the release and take steps to ensure that it does not recur, and to quickly recover to the maximum extent practicable any free product that was released into the subsurface. 2)There is no "presumptive" remedy. Selection of an appropriate corrective action technology is a site-specific decision, and there may be more than one technology that could be appropriate for a given site. 3)An appropriate technology is one that will be fully protective of human health and the environment, and will meet site remediation objectives within a reasonable time frame. 4)Essential site-specific data can only be derived from a comprehensive site assessment.

22. Remediation Traditional Remediation Methods:  Contaminated Soil = Excavate, Remove and Dispose  Contaminated Groundwater = Pump & Treat Alternative Remediation Methods:  Include: soil vapor extraction (SVE), air sparging, biosparging, landfarming, biopiles, bioventing, low-temperature thermal desorption, in situ groundwater bioremediation, dual-phase extraction, monitored natural attenuation, enhanced aerobic bioremediation, and chemical oxidation.“ Other Options Include: Institutional Controls Engineering Controls

23. QUESTIONS?