The Georgia Voluntary Remediation Program Act of 2009 Enhanced Risk-Based Corrective Action

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

2. Welcome and VRP Basics Doug Cloud, PartnerAlston & Bird LLP

3. 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.

4. Sponsored 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

5. Vote

6. 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.

7. Road Map for Today • Presentations • 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

8. 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.

9. New VRPLegislative 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. “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.

15. “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.

16. 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.

17. 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.

18. 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.

19. 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.

20. 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.

21. 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.

22. 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.

23. VRP Brings RBCA to HSRA Larry Neal Senior Principal Environmental EngineerMACTEC

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

25. 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

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

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

28. 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

29. In conceptual form… Risk = Concentration x Toxicity x Exposure

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

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

32. 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?

33. 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

34. 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

35. 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

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

37. 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)

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

39. 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

40. 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

41. 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

42. VRP Flexibility to ChooseType 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

43. 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

44. 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

45. 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

46. 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

47. 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

48. Fate and Transport Modeling and VRP Neven Kresic Senior Principal HydrogeologistMACTEC

49. 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

50. 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