The World of AUL Presentation by: Atul Pandey, P.E. PANDEY Environmental, LLC 2016 Ohio Brownfield Conference April 7, 2016

AUL – Activity and Use Limitation What is it? When is it needed? How is it recorded? Who is responsible? What are some examples of AUL?

AUL – What Is It? “Activity and use limitations” are one or more restrictions or obligations created under sections to of the Revised Code with respect to real property. Activity and use limitations eliminate or mitigate exposure to a release of hazardous substances or petroleum. Examples of activity and use limitations include but are not limited to land use limitations and ground water use restrictions. The term is known as institutional controls in rules , , , , , and of the Administrative Code.

When Is It Needed? When there is a remedy or demonstration of compliance obligation In the VAP Timing of recordation of AUL is post NFA issuance

How Is It Recorded? In the form of an Environmental Covenant (EC) On the deed of the property Usually within 30 days, if part of a Covenant Not to Sue (CNS) package CNS not effective unless EC recorded

Who Is Responsible? The Volunteer(s) as named on the CNS CP NOT responsible unless explicitly retained by Volunteer to do so

Examples of AUL Commercial/ Industrial Land Use Prohibition on Groundwater Use Prohibition on Subsurface Structures for human occupancy, i.e., basements Vapor Intrusion (VI) Pathway AUL

Vapor Intrusion (VI) AUL Usually proposed when VI risk identified for current or reasonably anticipated land uses Remedy is proposed or active remedy not taken Either could not reach source due to buildings or other site factors Or cost Or unknown development (usually the case)

VI AUL If the NFA letter did not demonstrate future buildings complies with VI standards Assess VI risk once development becomes known

VI Pathway AUL Limitation on building occupancy – remedy or demonstration obligation Occupancy may occur after: Engineering control installed and made subject to O&M plan and agreement or Demonstration by CP that no (more) remedy is needed to meet the standards

Time For a New Building? Which AUL option fits? Active remedy? Engineering control?

Time for a New Building After CNS, a new building is planned Assessment (active remedy, if needed) supports that VI standards are met without any controls CP makes demonstration Submits to Ohio EPA – Life goes on...

Time for a New Building If active remedy is implemented to meet VI standards Revise the O&M agreement if it exists Swap out ‘parts’ with the older O&M agreement

Time for a New Building What if? O&M plan just wasn’t needed for NFA letter (AUL used) Create O&M Plan/Agreement Execute agreement, amend CNS

Case Study Former State Road Shopping Center Cuyahoga Falls, OH aka Portage Crossing Development

Property Overview Approx. 24 acres of historically commercial / industrial land Contained a variety of vacant and occupied retail stores with potential environmental impact including: Dry cleaners Auto service stations Auto fueling station Adjacent to historical sites with potential environmental impacts including: Dry cleaners Auto service stations Auto fueling stations

Areas of Concern (Identified Areas)

Groundwater Contamination Concentrations of perchloroethylene were found to exist on the property at high concentrations. Phase II investigations revealed that off-property historical dry cleaning sources were responsible for the majority of the contamination.

Groundwater Solutions Due to contamination sources being comingled, J&E modeling was used to show that the on-site maximum concentration passed vapor intrusion risk thresholds on most of the property (but not all). Institutional controls proposed include: Vapor barrier on future building footpads (in VI failing areas) Commercial / Industrial end use No groundwater use allowed on property

In Conclusion… An NFA Letter was issued in 2013 With soil remediation completed and proposed groundwater restrictions in place, acceptable risk levels were met for development CNS issued by Ohio EPA in 2014

In Conclusion CNS issued with EC with VI pathway AUL (no building yet) Later that year….development’s first building was ready to open for business, but did not yet complete AUL obligations Volunteer contacted CP, who coordinated with Ohio EPA on approach CP drafted O&M plan and proposed agreement with close coordination with Ohio EPA CP submitted certification of effective VI controls

CNS for State Road Shopping Center AUL Language

Portage Crossing Development Underway! In 2014, 7 building projects announced and construction quickly began

Portage Crossing Development Only 5 of 7 buildings within the VI AUL area Further complications arise when multiple tenants in a building are planned

Portage Crossing Development CP contacts Ohio EPA – informs them of plans at site What should we do Uncharted territory

Portage Crossing Development Ohio EPA NEDO & CO work with CP & Volunteer to develop an O&M plan for engineering control Engineering control for each building is a Vapor Barrier (Geo-Seal TM ) system

Portage Crossing Development Each tenant unit in each building treated as its own ‘certification unit’ Each tenant unit has its own ‘engineering control’ Vapor Barrier system has vapor vents that penetrate through the floor slab and discharge to the atmosphere through roof vents (stacks) running along building columns

Portage Crossing Development Each ‘stack’ treated as its own compliance point in the O&M plan Some units have more than 1 stack

Portage Crossing Development The O&M plan provides a schedule for frequent testing of stacks Once every quarter/semi-annually thereafter If no exceedances, then sampling of stack can cease

Portage Crossing Development The stack ‘exit’ criteria are soil gas concentrations for select chemicals of concern Applicable standards for indoor air and associated soil gas values* Contaminant of Concern (COC) Soil Gas Screening Value (Stack Vent) in pg/m 3 Indoor Air Standard pg/m 3 Benzene52016 Tetrachloroethylene (PCE) Trichloroethylene (TCE) *values listed are for single chemical. Adjustment must be made for the presence of multiple chemicals when reporting results.

Portage Crossing Development Unit Certification Process Each tenant unit is sprayed with Geo-Seal TM Vapor Barrier The Vapor Barrier system consists of a venting layer with venting layer with vent risers (stacks) These vent risers discharge to the rooftop and run through the building along a column support

Portage Crossing Development Unit Certification Process We prepare and submit a ‘Unit Certification Report’ to OEPA-NEDO once engineering control is implemented OEPA reviews and approves OEPA invoices the volunteer for review costs under a Technical Assistance account

Portage Crossing Development Upon completion of review, OEPA issues an approval letter of Unit Certification Report Unit cannot be occupied for routine human occupancy until Engineering Control is implemented

Portage Crossing Development Soon after occupancy, the stack testing protocol kicks in

Portage Crossing Development - Status Several units have been constructed, unit certified, and occupied

Portage Crossing Development - Status Several units have passed quarters of stack testing If things go as anticipated, O&M plan/agreement should terminate in 2018

Portage Crossing Development Vapor Barrier Install Example

Portage Crossing Development Vapor Barrier Install Example

Portage Crossing Development Vapor Barrier Install Example

Portage Crossing Development Vapor Barrier Install Example

Portage Crossing Development Vapor Barrier Install Example

Portage Crossing Development Vapor Barrier Install Example

Questions?