The Texas Risk Reduction Program Rule Applicability Focus

The Texas Risk Reduction Program Rule Applicability – Focus on Specific Issues Phase II ESA Transition to TRRP Soil Relocation and Reuse Paul S. Lewis, P. G. Division Support Section Remediation Division Texas Commission on Environmental Quality 1

Specific Issues I. Phase II Environmental Site Assessment (ESA) transition to TRRP I. Pre-TRRP Establish Applicability Affected Property Assessment Tiered PCL Evaluation Remedy Standard Selection II. Soil Relocation and Reuse I. Concurrent or Post-TRRP Response Action Post-Response Action Care No Further Action 2

I. Phase II ESA Why do ESAs? n n n Establish defenses to CERCLA liability for commercial real estate transactions Lender requirement (also VCP application) Performed in phases prior to TRRP: n n Phase 1 – identify Recognized Environmental Condition (REC) Phase II – sample RECs for releases 3

Release defined Pick your verb: n Spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing into the environment 4

Release not defined by n n Concentrations, quantities, rates or durations Other statutes, rules, guidance define actionable thresholds. Some examples: n n n Statutes: TWC 26. 301, THSC 361. 003 Rules: 30 TAC Chapters 327, 334, 350 Guidance: “Determining Which Releases Are Subject to TRRP” found at: <https: //www. tceq. texas. gov/remediation/trrp/guidance. html> 5

Phase II Objective n n ASTM E 1903 Standard Guide for Phase II ESA Basic objective – determine by sampling if RECs released Hazardous Substances or Petroleum Products to environmental media n n n 40 CFR 302 Table 302. 4 lists ~800 Haz. Substances Standard guide does not specify analytes Common practice – use SW-846 methods as scans: n n VOCs SVOCs PCBs Metals 8270 8260 8082 A 6020 B 6

Use of Professional Judgment n The Environmental Professional (EP) can use professional judgment to conclude: n n n A release occurred or not Additional assessment needed or not Common practice to compare analytical results to regulatory levels to aid in this decision n n Organics – not naturally occurring Problem for metals 7

The Problem with Metals n Metals can occur naturally in soil – detection is likely “Round up the usual suspects!” 8

Considerations Does Phase I review indicate the metal was used in processes at the REC? n Exceed the Texas median background (350. 51(m))? n Within the range of site-specific background? n Anthropogenic background? All things considered, is the metal reasonably anticipated to have resulted from a release? Use logic similar to TRRP-10 Selecting Target Chemicals of Concern to conclude there has been a release. n 9

What happens after ESA Phase II n n Phase II outcome is not an automatic ride to TRRP The Environmental Professional can conclude n n REC has or has not released hazardous substances Recommend additional assessment if data insufficient, or Justify leaving substances without additional assessment Options if parties decide to transition to TRRP n n Full TRRP in accordance with 30 TAC 350 “TRRP Lite” using the 11/19/10 memo “Determining Which Releases Are Subject to TRRP”, subject to Program requirements 10

Release Memo of 11/19/10 “TRRP Lite” “Determining Which Releases are Subject to TRRP” n n Current memo is dated 11/19/10 Intended for relatively small releases that can be resolved quickly Does not apply to substances used as intended n Ex: lawfully applied pesticides, fertilizers, treated wood Specifies when TRRP standard reports (e. g. , APAR) are not required 11

Assumptions for Use Notice of release was sent to TCEQ n All source areas adequately identified n Samples are properly collected analyzed for COCs n COCs assessed to less than Action Levels n Groundwater must be sampled for COCs at source areas where soil action levels are exceeded If any of these assumptions are invalid for a release, use the full TRRP process. n Note: the memo was written for use in a self-implementing, non-enforcement context. 12

Summary Table Scenario Trigger Corrective Action Report 1 No Release COC = MQL/Bkg None No Report – No Deadline 2 < Action Levels COC < Action Level (Tier 1 PCLs) None Letter report – No Deadline COC > Action Level (Tier 1 PCLs) Remove/Decon to PCLs or SPLP Letter report if corrective action finished < 60 days 3 > Action Levels All other situations that don’t meet Scenarios 1, 2, or 3 and the basic assumptions for use of 11/19/10 memo must follow normal TRRP process and standard reports (e. g. , APAR) to utilize full TRRP flexibility. 13

Action Levels Lowest applicable Tier 1 Residential PCL for 0. 5 ac. Source area and Class 1 groundwater Media Tot Soil Surface Soil Comb GW X Ground water X GW GWIng X Air Soil. Inh-V X Subsurface Soil Media Soil. Ing Air GWInh-V X Bkg/MQL X X X Bkg/MQL X If Bkg/MQL > PCL, use higher of Bkg or MQL as the Action Level PCL – Protective Concentration Level GW – groundwater Bkg – background MQL – method quantitation limit 14

Scenario 1 No TRRP standardized reports required when: n COCs are equal to or less than Bkg/MQL n n n Can use site-specific or Texas Median background No other evidence of a release No response actions used to achieve Bkg or MQL Other Program reports could apply (e. g. , closure report). 15

Scenario 2 Use Tier 1 Ecological Exclusion Criteria checklist and Action Levels to evaluate the release n n If site fails checklist, go to full TRRP Use letter report: n If site passes Tier 1 Eco Exclusion Criteria checklist, n If COCs < Soil Action Levels, and n No evidence of other affected or threatened media Full TRRP Applies? Yes No x 16

Scenario 3 Any of the following make TRRP apply: n n Site fails Tier 1 Exclusion Criteria checklist No groundwater samples are collected at release or source area when COCs > soil Action Levels COCs in groundwater exceed Action Levels COCs in soil exceed Action Levels, but: n Soil options not used, or failed to reach levels Full TRRP Applies? Yes x No 17

Scenario 3 – Soil Options Soil Pathway Option Soil Comb Air Soil Inh-V Excavate Tot GW Soil. Ing SPLP Test* or Excavate * Use soil options only if groundwater testing < action level n n n Synthetic Precipitation Leaching Procedure (SW-846 Method 1312) SPLP Action Level is GWGWIng SPLP Test can be done before, after, or in lieu of excavation 18

SPLP Tests n Common Practice: n n Compare SPLP results to Groundwater PCL from Table 3 of Tier 1 PCL Lookup Tables “Drinkable Leachate” test Tier 3 approach – does not fit definition for Tier 1 or 2 Use with other lines of evidence to show that soil is protective of groundwater Example – Arsenic: Soil conc. = 100 mg/kg Leachate = 0. 008 mg/L Water PCL = 0. 010 mg/L Is Soil protective of Groundwater? Yes No SPLP – Synthetic Precipitation Leaching Procedure, EPA SW-846 Method 1312 Acid Soil Leachate “Drinkable” = PCL 19

Outcomes for Soil Options n n Fail SPLP or Direct Comparison? Excavate and test again n Repeat actions must be done within 60 day limit Otherwise full TRRP will apply If options achieve Action Levels – Document actions in a Letter Report Full TRRP Applies? Yes No X

II. Soil Relocation and Reuse n n n WHAT: Moving soil for reuse purposes Establish Applicability WHEN: During or after response action Affected Property Assessment WHERE: From Affected Property to another location HOW: Make protective for new location WHY: Alternative to landfill disposal DETAILS: Refer to 30 TAC 350. 36, RG 366/ TRRP-3, Program requirements Tiered PCL Evaluation Remedy Standard Selection Response Action Post-Response Action Care No Further Action 21

Remedy Standard A Soil relocation requirements: n Meet critical soil PCLs at new location n Protect ecological receptors n Meet all requirements of 30 TAC 350. 32(a) n File institutional control for commercial/industrial land use n Self-implement under certain conditions 22

Self-Implementation No prior approval needed from Agency for Standard A if: n COCs < Standard A critical PCLs for new location n New location on property containing Affected Property n Owner gives written consent to Person when COCs > background All other cases need prior approval n Standard A on property without Affected Property n Standard B 23

Remedy Standard B Soil relocation requirements: n Meet critical soil PCLs at new location n Protect ecological receptors n Meet all requirements of 30 TAC 350. 33(a) n File applicable institutional control for either land use n Obtain prior approval; cannot self-implement n Conduct post-response action care if required n Provide financial assurance if required n Submit post-response action care reports 24

Requirements for both Standards Within 90 days of completing the soil relocation: n Submit proof of filing the required institutional control n Prepare applicable portions of a Response Action Completion Report (RACR) n Make the RACR available for inspection or submission upon request 25

Limitations n n Landowner consent withheld NAPL in soil will require treatment per TRRP-32 Hazardous waste (RCRA) Land Disposal Restrictions COCs not protective for new location n Institutional controls n n n Human Health Ecological Standard A Commercial/Industrial Standard B Regulatory obligations continue 26

Examples n Place in core of dike or levee n Road base for on-site industrial property n Land surface re-contouring for development n Fill material beneath slab foundation 27

Scenarios n n n On which properties can Person self-implement? Which property owners have to give consent to receive relocated soils? Owner #3 wants soil to build up land for a slab foundation. Which standard to use and why? Property #1 Property #2 Property #3 Owner #2 Owner #3 Affected Property Owner #1 Person 28

Final Scenario n n Owner #3 had an open pit filled to grade with relocated soil from Property #1 that met Standard A residential criteria Land is now for sale Prospective Purchaser orders a Phase I & II ESA Metals are detected Clean Fill ed Want What Happens Now? 29