The Georgia Voluntary Remediation Program Act of 2009 Enhanced Risk-Based Corrective Action Wednesday, April 22, 2009 Alston & Bird LLP

Welcome and VRP Basics Doug Cloud, Partner Alston & Bird LLP

HB 248 - VRP Act In 2009, bipartisan group of Georgia legislators and industry representatives spearheaded passage. Streamlined and privatized path for voluntarily remediating sites through the use of registered environmental professionals. Incorporates exposure risk principles which will decrease site costs while still protecting human health and the environment. No out-of-pocket cost to EPD.

Sponsored By In Senate By Terry Barnard 166th Earl Ehrhart 36th Karla Drenner 86th Melvin Everson 106th Bobby Reese 98th Gerald Greene 149th In Senate By Ross Tolleson 20th

Vote Yeas Nays House 166 1 Senate Sub. 48 4 House Agree 161

Effective Date Sent to Governor (4/13/09) This Act shall become effective on the first day of the month following the month in which it is approved by the Governor or in which it becomes law without such approval.

Road Map for Today Presentations Panel Discussion, Q&A Reception History: How We Got Here VRP Basics; Special Initiatives Exposure risk principles Break Focus on Fate and Transport Modeling Legal Rights Panel Discussion, Q&A Reception

Rearview Mirror HSRA enacted 1992; rules ‘94. Per 2008 Hazardous Site Inventory (approximate) 3417 notifications 224 delistings (avg. 15/yr) 575 remain on HSI At this rate, 23 years to clear HSI with no new listings (avg. 23 new/yr). 60% delisted took ≥ 5 years.

New VRP Legislative Purpose (Sec. 101) to encourage the voluntary and timely investigation and remediation of properties for the purpose of reducing human and environmental exposure to safe levels, to protect current and likely future use of groundwater, to ensure the cost-effective allocation of limited resources, that provisions of this part shall take precedence over any conflicting provisions, regulations, or policies.

VRP Basics Qualifying Property (Sec. 105) Listed on the HSI; or Brownfields; or Otherwise have a release of regulated substances into the environment. Excluded: NPL or EPA-ordered response activity; Facility required to have hazardous waste permit; and First satisfy any HSRA or GUST lien.

Participant Criteria (Sec. 106) Property owner of the VRP property; or Have express permission to enter to perform corrective action or implement controls pursuant to written lease, license, order, or indenture. Not be in violation of any order, judgment, statute, rule, or regulation subject to the enforcement authority of the director.

Enrolling (Sec. 107) $5,000 + Voluntary Remediation Plan prepared by registered professional engineer or geologist who has experience in responsible charge of the investigation and remediation of such releases; in streamlined form prescribed by EPD, describing those actions planned to bring the property into compliance with the applicable cleanup standards, in accordance with the provisions, purposes, standards, and policies of the VRP. Upon EPD approval property enrolled and applicant a participant.

Financial Assurance (Sec. 107) The director may issue an order requiring the participant to submit proof of financial assurance for continuing actions or controls. Insurance, trust funds, surety bonds, letters of credit, performance bonds, certificates of deposit, financial tests, and corporate guarantees.

“Engineering Controls” (Sec. 102) Any physical mechanism, device, measure, system, or actions taken at a property that minimize the potential for exposure, control migration or dispersal, or maintain the effectiveness of other remedial actions. caps, covers, physical barriers, containment structures, leachate collection systems, ground water or surface water control systems, solidification, stabilization, treatment, fixation, slurry walls, vapor control systems. Engineered property development features, if physically control or eliminate potential for exposure to COC or control migration.

“Institutional Controls” (Sec. 102) Legal or administrative measures that minimize the potential for human exposure to contaminants of concern or protect and enhance the integrity of a remedy or engineering controls. easements, covenants, deed notices, well drilling or groundwater use prohibitions, zoning restrictions, digging restrictions, orders, building permit conditions, land-use restrictions.

Georgia UECA (Sec. 107) Any voluntary remediation property or site relying on controls, including groundwater use restrictions for the purposes of certifying compliance with cleanup standards, shall execute a covenant restricting such use in conformance with UECA. EPD to maintain an inventory of such properties.

Implementation (Sec. 107) Participant causes one or more RPs to oversee plan implementation in accordance with VRP. RP submits semi-annual status reports. Upon completion, CSR confirming consistency of the corrective action with VRP and certifying compliance with cleanup standards. CSR public participation requirements.

Endgame (Sec. 107) Upon receipt of CSR, a decision of concurrence with the report and certification shall be issued on evidence satisfactory to the director that it is consistent with the provisions, purposes, standards, and policies of the VRP. Within 90 days of concurrence, listed property removed from HSI.

Other Fees (Sec. 107) Director may, at any time, invoice for costs to EPD in reviewing application or subsequent documents that exceed the initial $5,000 fee, with detailed itemization and justification. Failure to pay within 60 days may cause rejection from VRP. No concurrence if fee outstanding.

Termination (Sec. 107) Participant may terminate at any time. Director may terminate prior to CSR approval, if determines that: participant has failed to implement the plan in accordance with the VRP; or Such continued enrollment would result in a condition which poses an imminent or substantial danger to human health and the environment.

Special Initiatives (Sec. 107) Director shall remove the VRP property from the HSI if the participant demonstrates at the time of enrollment that a release exceeding a RQ did not exist at the property, unless the director issues a decision that such release poses an imminent or substantial danger to human health and the environment.

Special Initiatives (Sec. 107) If VRP property listed for soil but not groundwater, and demonstration made at enrollment that groundwater release exceeding RQ does not exist, the participant is not required to perform corrective action or to certify compliance for groundwater. Annual monitoring for up to 5 years unless director determines more is necessary to protect human health and the environment.

VRP Brings RBCA to HSRA Larry Neal Senior Principal Environmental Engineer MACTEC

VRP Act Brings Risk-based Corrective Action (RBCA) Features RBCA principles incorporated but RBCA not defined in VRP

Think of RBCA as a decision making process …used to assess actual or likely human and/or ecological risk of exposure to a chemical release and to determine appropriate remedial actions accordingly

Protection vs. Restoration Goal? RBCA is exposure-protection centric while current HSRA has become more media-restoration centric, irrespective of exposure

RBCA Consensus Standard Now Available ASTM Standard Guide E2081 (2004) Risk-Based Corrective Action for Chemical Releases

What is Risk? The risk of harm to a person or other living receptor is the multiplied product of chemical concentration in the contaminated media multiplied by the chemical-specific toxicity multiplied by the receptor exposure to the contaminated media

In conceptual form… Risk = Concentration x Toxicity x Exposure

How Can Risk Be Reduced to Safe Levels? As concentration, toxicity, or exposure is reduced to zero, risk also reduces to zero.

Begs the Question… If risk is truly zero and will stay zero, why remediate beyond risk-based need?

Plenty of Possible Reasons… Statutory/regulatory requirements? Agency policy or precedent? Natural resource restoration objectives? Marketability of properties? Company policy? Lender requirements? Future litigation concerns? Non-owned properties? Contamination stigma? Community relations? Long-term cost to maintain property controls? Other reasons?

RBCA-Derived Definitions Are Key for VRP Act (Section 102) Constituents of Concern…those specific regulated substances that may contribute to unacceptable receptor exposure Exposure…contact of a constituent of concern with a human or sensitive organism (receptor) Exposure pathway…a route by which a receptor comes into contact with a constituent of concern

Institutional and engineering controls…measures that minimize the current and future potential for receptor exposure Exposure domain…a contaminated geographical area of a site that can result in exposure of a particular receptor by way of a specified exposure pathway

Point of exposure (for ground water)…the nearest of the following locations: Closest existing downgradient drinking water well 2. Closest downgradient location for future drinking water well where public supply not likely to be available or 3. Hypothetical point of drinking water exposure located 1000 feet downgradient from delineated site contamination

Point of demonstration wells… groundwater monitoring wells located between the source of groundwater contamination and the downgradient point of exposure

Representative concentration…the average concentration to which a specified receptor is exposed over an exposure duration within a relevant exposure domain for soils or at an established point of exposure for groundwater (consistent with USEPA guidance for determination of average exposure concentration)

Other RBCA Features Available as VRP Options (Section 108)…

Site Delineation Options… May delineate to anthropogenic background not affected by the subject site release May delineate metals in soils to concentrations for GA undisturbed native surficial soils in USGS Boerngen & Shacklette Report (1981) May delineate to HSRA Type 1 generic residential risk reduction standards

No Further Evaluation Required for Incomplete Exposure Pathways An exposure pathway is complete (only) if there are no discontinuities or impediments to constituent movement from contamination source to receptor, including consideration of controls; otherwise, exposure pathway is incomplete and requires no (further) evaluation

Site-Specific Average Exposure Concentration Compliance with HSRA Type 2 (residential) and Type 4 (nonresidential) “site-specific” risk reduction standards may be determined on the basis of representative (average) concentrations in soils and groundwater, rather than point-by-point maxima under current HSRA

VRP Flexibility to Choose Type 5 Standards May choose to use Type 5 risk reduction standards without demonstrating that Type 1 – 4 risk reduction standards are inappropriate or impracticable, as required under current HSRA

Depth-Specific Residential Soil Criteria Available Compliance with HSRA Type 2 (residential) or Type 4 (nonresidential) “site-specific” soil cleanup standards may be based on depth-specific soil criteria, provided controls are applied to maintain compliance

Source Material Flexibility for Type 2 and Type 4 RRSs Source material requirements may be satisfied for Type 2 residential or Type 4 nonresidential RRSs by removal, decontamination, or immobilization in the subsurface, to the extent practicable – current HSRA requires removal or decontamination of all source material

VRP Broadens Use of Fate and Transport Modeling (Section 108) ...for calculation of risk-based concentrations at the point of exposure, point of demonstration, soil source area,RQSM flow-path analysis, stream protection criteria, vapor pathway, and “what-if” testing of remediation and control alternatives including natural attenuation

Fate and Transport Modeling as Workhorse From the very simple to the technically complex, fate and transport modeling has evolved as a basic multipurpose tool for informed RBCA decision making

Our Next Speaker, Dr. Neven Kresic …will be our expert guide for a non-technical orientation to the highly-technical field of fate and transport modeling in the context of RBCA and the new VRP

Fate and Transport Modeling and VRP Neven Kresic Senior Principal Hydrogeologist MACTEC

Fate and Transport Modeling RBCA process should consider both data collection and modeling options for meeting information needs F&T models are most often used to simulate or predict the distribution of constituent concentrations in environmental media (air, soil, surface water, groundwater) in both space and time

Fate and Transport Modeling RBCA advocates a gradual process of using models, starting with simple analytical equations and proceeding to complex numeric models if needed. Complexity of selected models should balance the quantity and quality of available data with the model output

Fate and Transport Modeling Quantity and quality of available field data may eliminate the need for F&T modeling In some cases F&T models may not be applicable (e.g., when model calibration and verification are not possible)

Screening-Level Models “Simple” analytical equations (e.g. Domenico equation for F&T of constituents dissolved in groundwater)

Screening-Level Models Sand-box approach Assume direct and complete flowpath between source and receptor Cannot simulate many common boundary conditions (interaction between surface water and groundwater, pumping wells, recharge) Cannot simulate realistic 3D flow fields

Screening-Level Models Were often expected to be used in a conservative mode (to over-predict constituent concentrations on purpose)??? A Zone of Release B Travel Zone C Receptor Zone Unsaturated Zone Uniform distribution of Hydraulic gradient Hydraulic conductivity Effective porosity Fate parameters “Sand Box” Saturated Zone

Screening-Level Models Examples include BIOSCREEN (AT), BIOCHLOR, BIOBALANCE RemChlor

Screening-Level Models BIOSCREEN AT (exact Domenico solution)

Complex Numeric Models Used for realistic field conditions Some of the factors determining if the contaminant will actually reach a well and be detected: - Recharge (dilution/dispersion) - 3D directions of groundwater flow - Heterogeneity of porous media - Anisotropy of porous media - Well design - Well pumping rate/capture zone - Wellbore dilution - Ongoing groundwater remediation -Groundwater-surface water interactions Plume Aquitard Sand/Gravel Silts Clay Aquitards Well screen

Complex Numeric Models Columns 1 2 3 4 5 6 7 8 9 1 Rows 2 3 } D n k 4 5 1 2 Layers 3 D c i 4 5 Aquifer Boundary Active Cell Explanation Inactive Cell D r j

Complex Numeric Models Final equation for each cell in the model: X equations with X unknowns where X is the number of cells

Conceptual Site Model Physical-chemical properties and geometry of the system hydraulic conductivity, effective porosity, storage spatial extent of sediment layers (rock units) contaminant sources, plumes, F&T parameters Various inputs of water (boundary conditions) from precipitation/infiltration from adjacent aquifers from streams (channels, ponds) artificial inputs (injection wells, infiltration basins) Various outputs of water (boundary conditions) discharge into streams, via springs, wells evapotranspiration from water table discharge to adjacent aquifers

Numeric Model Model parameters and boundary conditions have to be assigned by the modeler to each cell in the model. Based on this information, the model (computer program) calculates the hydraulic head (groundwater level) and contaminant concentration for each cell. The validity (success) of the model is judged by comparing the calculated hydraulic heads and contaminant concentrations with those actually measured in the field.

Numeric Model Process of adjusting model parameters and boundary conditions in order to match field- observed hydraulic heads and contaminant concentrations is called model calibration (But when carried to extremes it would be characterized as model manipulation)

Model Calibration R = residual mean residual = observed - calculated R = residual mean s = standard deviation of residuals n = number of residuals

Model Calibration Purpose Acceptable Error ASTM Standard E 978-92 Evaluating Mathematical Models for the Environmental Fate of Chemicals Purpose Acceptable Error Screening Multiple of 2 or 3 Classifying +/- 35% to 50% Predictive +/- 5% to 15%

3D Numeric Models Can have hundreds of layers and millions of cells Layer 1 = 10 ft Layer 2 = 15 ft Layer 3 = 15 ft Layer 4 = 15 ft Layer 5 = 15 ft Layer 6 = 15 ft Layer 7 = 10 ft Injection Well (Q = 200 gpm) Extraction Well (Q = 200 gpm)

3D Numeric Models Solution displayed as contour maps of hydraulic head and contaminant concentrations Extraction Well Layer 2

3D Numeric Models Solution displayed as contour maps Injection Well Layer 7

3D Numeric Models Solution displayed as particle tracks (flowpaths) Traces of particles coming to the extraction well (from upgradient and from the injection well)

3D Numeric Models Solution displayed as particle tracks (flowpaths) Traces of particles leaving the injection well (upward to the extraction well and downgradient).

3D Numeric Models Solution displayed as particle tracks (flowpaths) Note extensive mixing zone

3D Numeric Models Solution displayed as contaminant concentrations (plumes) Without Degradation

3D Numeric Models Solution displayed as contaminant concentrations (plumes) With Degradation

3D Numeric Models Solution displayed in 3D Courtesy Chiang et al., 2002. 3D Master – A Computer Program for 3D Visualization and Real-time Animation of Environmental Data

Fate and Transport Parameters sorption degradation transformation (dilution) Transport advection diffusion dispersion volatilization (dilution is for the most part caused by dispersion and it is not assigned as a parameter; however, all processes that bring non-contaminated water into the system, such as infiltration from rainfall, should be modeled adequately)

Fate and Transport Parameters Characterization of the Source Terms is Crucial

Fate and Transport Parameters Characterization of the Source Terms is Crucial USEPA, 1977. The report to Congress: waste disposal practices and their effects on ground-water. EPA 570977001

Fate and Transport Parameters Sources of Data Site-specific always preferred. Some, like degradation rates, required to be site-specific by most agencies. In the absence of site-specific data, use of most probable literature values is expected. HOWEVER

Fate and Transport Parameters Sources of Data Literature values are often conflicting and ambiguous Most site-specific data have upscaling problems or cannot be feasibly obtained Best professional judgment is always required Dialogue with clients and regulators is crucial

Fate and Transport Parameters Sources of Data Example Variation in Subsurface Migration Period of Dissolved TCE Due to Varying Reported Koc values Source Log Koc [mL/g] Koc [mL/g] Retardation Coefficient Time to migrate 100 m [years] (USEPA, 2008) 1.94 87 10.2 28 2.18 150 16.9 46 (Baker et al., 1997) 1.81 65 7.8 21 (SRC, 2007) 2.02 104 12 33 2.16 145 16.4 45 (Sabljic et al., 1995) 1.95 90 10.6 29 (Seth et al., 1999) 1.46 4 11 2.06 116 13.3 36 Note: The following conditions were assumed: Linear groundwater velocity = 10 cm/day Effective porosity = 25% Soil bulk density = 2.5 g/cm3 Soil fraction organic carbon = 0.01

Fate and Transport Parameters Sensitivity They are ALL sensitive and should be analyzed (used) accordingly From Franke, O.L., et al., 1998. Estimating areas contributing recharge to wells; lessons from previous studies. U.S. Geological Survey Circular 1174, 14 p.

Fate and Transport Parameters Dispersion Sensitivity Longitudinal = 50 feet Transverse = 5 feet Vertical = 0.5 feet Longitudinal = 10 feet Transverse = 1 feet Vertical = 0.1 feet Longitudinal = 5 feet Transverse = 0.5 feet Vertical = 0.05 feet

Fate and Transport Parameters Dispersion Sensitivity Longitudinal = 10 feet Transverse = 1 foot Vertical = 0.1 feet Pumping well Longitudinal = 20 feet Transverse = 2 feet Vertical = 0.2 feet Pumping well

Fate and Transport Parameters Dispersion Sensitivity Pumping well Pumping well Aquitard further split into six 5-foot layers; everything else is the same (longitudinal = 20 feet, transverse = 2 feet, vertical = 0.2 feet)

Vadose Zone Modeling Often ignored or overly simplified Vadose zone may serve as long-term secondary source or contaminant sink Often crucial for risk-based corrective action Dialogue with clients and regulators is crucial (data needs, acceptance)

Vadose Zone Modeling Numeric models capable of simulating variably saturated flow are superior and should be applied by default Calculations of groundwater impacts external to the model are avoided Advances in software development and affordable pricing (including excellent public- domain programs) Examples include new MODFLOW and VS2D from USGS

Vadose Zone Modeling Clay lens Water table Contaminant infiltration from the land surface for 15 years followed by complete removal and natural infiltration from rainfall

Vadose Zone Modeling Water table Contaminant loading at the land surface for 12 years followed by capping

Vadose Zone Modeling Water table Secondary source in the vadose zone impacting groundwater due to water table rise

VRP: An Appealing Program – Legal Considerations Related to Potential Enrollment in Georgia’s New Voluntary Remediation Program Wednesday, April 22, 2009 Bob Mowrey Alston & Bird LLP

VRP: New Rights of Appeal HSRA Decisional History and AG Positions on Limitations on Right of Pre-enforcement Appeal: Appeal available to property owner only. Limited to the determination that “corrective action is necessary” and that a deed notice is therefore required. Scope of the appeal, if authorized, limited to whether or not the deed notice would be placed, and would not extend to issues around the corrective action itself. Effect: Very little bargaining power created by the possibility of administrative or judicial litigation.

VRP: New Rights of Appeal Section 12-8-107(g)(3): “The limitations provided under [O.C.G.A. §12-2-2(c)(3)(B)] shall not apply to the director’s decisions or actions under this part.” “[T]his part” refers to the entirety of the statutory provisions of VRP bill. Section 12-2-2(c)(3)(B) prevents appeals for: Listing of site on HSI. Orders issued by Director under HSRA § 12-8-96.

Potentially Appealable EPD Actions Accepting or rejecting a property in the VRP. Delineation requirements Exposure pathway analysis Application of exposure averaging concepts Selection of cleanup standards Terminating participation in the VRP. Approving or rejecting a voluntary remediation plan. Concurring or not concurring in certifications of compliance. Removing or failing to remove sites from inventory under subsection (g). Decisions on relieving party from groundwater obligations at sites that did not exceed RQSM for groundwater.

Limitations on Appeal Rights The same limits that have always applied to appeals under Georgia law still apply: Appeals are available within 30 days of an “order or action” of the Director. Generally construed to be limited to “final” actions. This limitation may create uncertainty about when VRP appeal rights accrue and when they may expire. When is correspondence staking out an EPD position a final action of the Director? Appeals are limited to parties “aggrieved or adversely affected” by an order or action, which is a standing concept.

Sites Versus Properties: Cross-Border Contamination and Non-Owned Sites Note that the VRP bill in various places refers to “properties” while HSRA refers to “sites.” VRP also refers to “sites” in certain locations. HSRA definition of “site” is by reference to area of impact of hazardous substances. “Property,” in all likelihood, would be considered a reference to legal ownership and parcels of property as thought of in a real estate context.

Sites Versus Properties: Cross-Border Contamination and Non-Owned Sites This distinction raises a few different issues: Will multi-property sites require separate applications per property? This is largely an administrative detail, but the agency will have to make a judgment on it. Larger issue is whether a site is qualified for VRP treatment: Section 12-8-106(1) requires that a “participant” must be “the property owner of the [VRP] property or have express permission to enter another’s property to perform corrective action including, to the extent applicable, implementing controls for the site pursuant to written lease, license, order, or indenture.” Thus, permission relating to implementing VRP for cross-border situations is vital. This may give the neighboring property more leverage than usual.

Multi-Party Sites The enrollment in the VRP is done by an “applicant.” Other references to the performing party is to the “participant.” Taking these provisions together with the provision that allows use of VRP where express permission is secured from owner, in all likelihood, a “group” could be deemed the applicant, although EPD will have to go along with that interpretation. Does every member of the group have to be qualified to be a participant? (More on that later). Other difficulties associated with multi-party sites will largely be the same as under HSRA. For example, financial assurance can be cumbersome in that context.

Interaction with Other Programs VRP not available for: NPL listed sites. Sites under order by EPA for response activities. Sites required to have a hazardous waste TSDF permit. Note that the use of VRP may affect eligibility for brownfields groundwater liability provisions under the Georgia Hazardous Site Reuse and Redevelopment Act. Is meeting a “cleanup standard” that is modified using the principles in the VRP the same as meeting a “risk reduction standard” for soil or source material, which is an operative provision of the HSRRA? On the other hand, HSRRA provides that a party must meet “all applicable rules and regulations adopted by the Board.” To the extent the Board adopts rules under VRP, a property might arguably be considered eligible also under HSRRA.

Finally, a Potential Trip-Up To qualify for VRP, a participant must “not be in violation of any order, judgment, statute, rule or regulation subject to the enforcement authority of the director. . . .” Who decides? Adjudicated? Materiality? Multi-Party Sites – does one participant’s problem infect group? Presumably, determination of ineligibility on this basis is subject to appeal provisions. Thus, could have appeal on entirely unrelated issue.