The Monitor: A Terradex Blog

USEPA Releases Final Guidance for Implementing Institutional Controls

Final PIME Guidance December 2012.pdfThe USEPA issued the Final Guide to Planning, Implementing, Maintaining and Enforcing (PIME) Institutional Controls at Contaminated Sites.  This is the second of two guidance documents prepared by the USEPA to inform long-term stewardship of contaminated sites.  In 2000, the first guide was drafted with a focus toward the selection of institutional controls (ICs). In 2000 ICs were an emerging remedy component with relatively immature concepts toward implementation.  Today, based upon Terradex’s estimates, there at least 20,000 ICs in-place nationwide as part of cleanup remedies. With greater experience, the focus of this recent PIME guidance has appropriately shifted toward the implementation, maintenance and enforcement of ICs across the IC’s lifecycle.

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Terradex Gains GSA Contract Vehicle to Serve Federal Clients

Terradex, a unique and pioneering provider of information-based long-term stewardship (LTS) services, is pleased to announce its award of U.S. General Services Administration (GSA) Schedule 899 Contract for Environmental Services (Contract number GA-10F-009AA).

Through this GSA contract, federal clients can tailor and procure the Terradex LandWatch and similar LTS services they need to support remedy protection at a single site or across multiple sites.   The GSA award also makes Terradex a GSA Advantage contractor, which means that our services can be accessed through the convenient GSA Advantage online shopping and ordering system.  Procuring Terradex LTS services under the GSA approach assures the most competitive single-site and multi-site discounted rates.

LTS needs vary from site to site.  Whether a federal project officer seeks LTS services that affirmatively notify third-parties of residual hazards, or simply seeks to gather land activity data to inform and strengthen periodic remedy reviews, the flexible Terradex LandWatch service can be customized and tailored to meet site-specific LTS needs. The following are representative uses of Terradex LandWatch for LTS. Read More »

Dig Clean Excavation Advisory Begins in Delaware

As another step towards increased environmental agency integration into one-call systems, on December 17, 2012 Terradex expanded its Dig Clean service on behalf of the Delaware Department of Natural Resources and Environmental Conservation (DNREC).   Terradex Dig Clean builds near real-time advisories that it sends to contractors and designers after they submit “locate requests” but  before they actually begin any excavation work.   The DNREC deployment of Dig Clean began as a pilot covering the City of Newark, Delaware.

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Slowly But Surely: One Call Systems Increasingly Used for Environmental Cleanup Sites

Terradex launches DigClean.com as a portal for excavators to gain health and safety information when excavating at contaminated sites.

Slowly but surely, often with close involvement of Terradex, the power of one-call helps manage cleanup sites.  In every state, call-before-you-dig or “one call” laws require a phone call (or increasingly an electronic notice) of the planned dig.  State one-call centers route the resulting “excavation tickets” to the people and companies who own or operate underground lines who, in turn, send back “all clear” messages or mark the lines so excavators don’t hit or damage them.   For over ten years, many who study environmental cleanup and, in particular, post-cleanup institutional control (IC) compliance see the one-call regime as a valuable tool for cleanup site management.

Leveraging one-call for environmental cleanups makes sense.  Like one-call’s conventional focus on underground utility lines, cleanup site engineered processes and residual contamination poses an underground potential hazard to excavators and the environment.  Indeed, a series of EPA One Call Pilots concluded that “the one-call system can be utilized as an effective means for IC notification.”  And in its report on Land Use Control Management Systems, the Interstate Technology Regulatory Council concluded that:

“states need to implement LUC management systems” and “One-Call system[s] provide a ready made network that could be adapted to include LUCs … notification systems, such as Terradex” in combination with One-Call systems “would provide a high level of protection.”

More recently, EPA’s Five Year Review Supplement on Recommended Evaluation of Institutional Controls recognized the potential role of One Call.  “State one-call systems [] can protect the public and environment from uncontrolled excavation and help identify breaches to the ICs.”  Finally, ASTM’s Continuing Obligation Guide similarly identified one-call systems as possible practices for monitoring compliance with institutional controls.

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Off-site Groundwater Plumes – Terradex LandWatch Is A Risk Manager’s Best Friend

Map image of cities of Sunnyvale, Mountain View and Palo Alto California showing extent of shallow groundwater plumes containing volatile organics.

Groundwater contamination plumes often migrate off-site beyond the site where the chemicals were released.   The fate of the off-site plume poses a vexing risk management challenge for the regulator, potential responsible parties and even affected local governments.  Terradex’s LandWatch is an efficient and effective adjunct to the risk management plan for an off-site plume. LandWatch informs the risk manager when sensitive activities or uses that could compromise the plan are likely to occur. As a helpful corollary, LandWatch can report that these unsafe activities have not occurred and thereby bring greater confidence to the success of the risk management plan. Regulatory oversite agencies and local government can have greater surety that residual plumes will not impact the communities migrate beneath.

In this post we introduce some of the challenges off-site groundwater plumes pose, and show that Terradex LandWatch can be applied to to an off-site plume that migrates through both commercial and residential zones.  With Terradex LandWatch the risk management for the off-site plume is strengthened thereby raising community health and safety.

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Brownfield Developer Fails to Meet BFPP Defense; Found Liable Under CERCLA for Removing Concrete Slab Above Contaminated Soil

This Saline, Michigan case adds another decision to similar recent cases such as Ashley II and Robertshaw, which assess whether current owners of contaminated property met CERCLA’s Bona Fide Prospective Purchaser (BFPP) defense.  It also showcases the interesting legal question concerning the relation between BFPP requirements to (1) take reasonable steps, after acquisition, to prevent “releases” and (2) to show that, all “disposal” occurred prior to acquisition.

In Saline River Props., v. Johnson Controls, Inc., 2011 U.S. Dist. LEXIS 119516 (E.D. Mich. Oct. 17, 2011) 
a Federal District Court in Michigan considered, among other issues, whether a current owner could be liable under CERCLA for exacerbating pre-existing contamination caused by the prior owner.  The prior owner, Johnson Controls, Inc. (JCI), claimed that the current owner, Saline River Properties, LLC (Saline) could be liable under CERCLA for exacerbating existing vinyl chloride contamination by removing a building’s concrete slab and thereby “allowing additional rainwater into the ground that the building and slab might have partially diverted…”   The prior owner prevailed.

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USEPA Issues Policy Guidance on Evaluation of Institutional Controls

The USEPA released on September 13, 2011 new guidance titled “Recommended Evaluation of Institutional Controls: Supplement to the Comprehensive Five Year Review Guidance”  providing recommendations for the monitoring and inspection of ICs during the CERCLA five-year review process.  The new USEPA guidance recommends that “ICs be mentioned specifically in the overall protectiveness statement when long-term protectiveness hinges on compliance with ICs.”  The EPA guidance directly addresses the five year review process on Superfund sites, but in doing so it also adds a new ingredient in defining best practice for maintaining the integrity and effectiveness and assuring compliance with ICs.  EPA’s transmittal letter explains:

This guidance supplements OSWER’s 2001 Comprehensive Five-Year Review guidance and provides recommendations for conducting five -year reviews for the IC component of remedies in a manner similar to the review of engineering or other remedy components.

At Terradex, we know this guidance will meaningfully inform the continually improving best practice for ICs, thereby increasing the reliability of this often necessary remedy component.  EPA’s recommendations align with numerous technology services Terradex has constructed for states and private companies including 1) use of excavation clearance systems, 2) property mapping systems to show current owner and property boundaries, and 3) integrated communication to local government where day-to-day land use decisions are made.

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Terradex Keeps Contaminated Soil Safely Managed

We often think of Institutional Controls (ICs) as prohibiting certain uses – for example, prohibiting groundwater use, prohibiting daycare or school, etc.  But often, and importantly, ICs help make sure that contaminated soil, when excavated,  is managed properly and isn’t, for example, carried away for use as “clean fill.”  For those who deal with ICs, soil management clauses like this one will look familiar.  They often read:

No activities that will disturb the soil at or below the pavement in the restricted Areas (e.g., excavation, grading, removal, trenching, filling, earth movement, or mining) shall be allowed on the Property without a Soil Management Plan and a Health and Safety Plan.

Managing contaminated soil can be just as or more important than other IC prohibitions yet, as our experience has shown us, without monitoring and appropriate care excavations can go forward (even with local permits) without the proper regard for IC soil management clauses.

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BNA to Host September 28th Webinar On Continuing Obligations

Two Terradex leaders, Bob Wenzlau and myself (Michael Sowinski), accompanied by Tim Haley of Barnes and Thornburg, will lead a September 28th, 2pm EST webinar, hosted by BNA.  Our main focus will cover the recently published ASTM E2790-11, “Standard Guide for Identifying and Complying With Continuing Obligations.”  This Guide provides industry consensus on good methods or “best practices” for Continuing Obligations, and in particular institutional controls, engineering controls or other recognized environmental conditions (RECs).  In addition to the Guide, we’ll also overview the 2002 Brownfield Amendments, recent case law addressing Continuing Obligations (e.g., Ashley II and Robertshaw), and sample scenarios applying the steps recommended in the ASTM Guide.  Please join us.  You can register at this BNA link. Read More »

Financial Health Monitoring of Institutional Control Property Owners

The long term success of Institutional Controls (ICs) and cleanup remedies is often only as strong as the financial health of new property owners.   This is why, along with its classic suite of land monitoring, Terradex LandWatch now monitors the financial health of contaminated property owners.

When new owners take over IC sites or residually contaminated sites, the old owners (a.k.a. divested owners) and regulators depend on the new owner to properly manage the property or, in ASTM parlance, perform continuing obligations.  But if new owners run out money, ICs and engineering controls can fail and other recognized environmental conditions (RECs) can wreak inadvertent health impact.  The foreclosure process can wipe out recorded “deed restrictions,” and thereby generate a regulatory conundrum for the responsible parties and regulators who relied on their durability.   Financial failure of a property owner potentially exposes even the most careful divested property managers to “comeback” liability and could trigger the need for regulators to act.  Even the best laid remedial plans can unravel when an owner enters financial distress.

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