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David R. Gillay, Esq. david.gillay@btlaw ; (317) 231-7474

IN Association of Environmental Professionals 1 st Quarter 2010 General Membership Meeting Risk Based Closures – Implementation Issues Associated with HEA 1162 February 25, 2010. David R. Gillay, Esq. david.gillay@btlaw.com ; (317) 231-7474. Topics Overview.

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David R. Gillay, Esq. david.gillay@btlaw ; (317) 231-7474

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  1. IN Association of Environmental Professionals 1st Quarter 2010 General Membership MeetingRisk Based Closures – Implementation Issues Associated with HEA 1162February 25, 2010 David R. Gillay, Esq. david.gillay@btlaw.com; (317) 231-7474

  2. Topics Overview This presentation summarizes key changes to Indiana’s remediation programs flowing from and/or affected by the following developments: House Enrolled Act 1162 [Effective July 2009] Proposed Remediation Regulations [Stayed] IDEM’s December 7, 2009 Draft Interim Guidance implementing HEA 1162 Ongoing overhaul to the RISC guidance manuals [Tech and User’s Guides]

  3. New Remediation Statute: HEA 1162 Substantial changes to Voluntary Remediation Program (VRP) statute “Remediation Objectives” (I.C. 13-25-5-8.5) Strengthens Indiana’s commitment to risk-based clean-ups Emphasizes risk based decision making at characterization and closure phases

  4. HEA 1162 Summary of Changes: Site Characterization Risk-based clean-ups Use of local ordinances Increased flexibility for petroleum sites ERC law “Conditions Subsequent”

  5. Changes to Title 13 Important Notes: These changes apply to “all remediation projects” conducted under all of IDEM’s other major cleanup programs – RCRA TSD closures and corrective actions; LUST and petroleum site cleanups; and the State Cleanup Program IDEM has developed draft interim guidance to implement HEA 1162 (more later)

  6. Local Ordinances Local ordinances used to control exposure pathways Creates new type of ordinance - “Environmental Restrictive Ordinance” (ERO) ERO used in remediation projects

  7. Local Ordinances Local ordinances used to control exposure pathways (continued) The new law requires that local governments provide advance notice to IDEM before considering the repeal or amendment of an ERO so that IDEM may determine how such action might affect a remediation that relies on the ERO Minor revisions proposed in General Assembly Model ERO [Work in Progress]

  8. Brownfields Redevelopment Facilitates petroleum site redevelopment: Extends the statutory bona fide prospective purchaser (BFPP) and contiguous landowner protections under CERLCA to petroleum sites In the past, these “safe-harbor” protections only applied to “hazardous substances”, which does not include petroleum

  9. Brownfields Redevelopment Facilitates petroleum site redevelopment: The Indiana Brownfields Program can now issue comfort letters to eligible purchasers of petroleum-contaminated sites to inform the purchaser of the steps it needs to take to maintain its status as a non-liable party under state law Connersville Comfort Letter

  10. Real Estate Changes to ERC law: IDEM is limited to reviewing and approving the “activities and land use restrictions” provisions to be included in the ERC, but will no longer have legal authority to review and approve the balance of the ERC Model ERC/Template IDEM ERC database [www.in.gov/idem/5959.htm]

  11. Proposed Remediation Rule First notice published on June 11, 2008 Stakeholder comments were due Sept. 12, 2008 B&T’s comments focused on ensuring that Indiana has a viable risk-based program that is cost-effective and that fosters economic development, particularly brownfields redevelopment (available on request) IDEM’s objectives are to develop rules for its remediation program that are clear, consistent, and transparent

  12. Proposed Remediation Rule IDEM is working on responses to comments it received on and before September 12, 2008 IDEM plans to withdraw the First Notice released on June 11, 2008 and restart the rulemaking process with a new First Notice after Tech Guide is revised The new First Notice is likely to focus more on administrative/procedural matters and less on substantive changes which will be addressed in the Tech Guide revisions

  13. Draft Interim 1162 Guidance On Dec. 7, 2009, IDEM released a 31 page interim guidance implementing HEA 1162. On Dec. 9, 2009, IDEM provided a full day of training for external environmental professionals including an 89 page PPT. IDEM intends to use this draft guidance on an interim basis together with the Tech Guide to evaluate risk-based remediation proposals. The draft guidance is a bridge between the 2001 Tech Guide and a future revision – which may be released in draft at the end of the year. IDEM notes that portions of draft guidance will be refined and incorporated into the revised Tech Guide.

  14. Highlights Statute requires that you “adequately characterize” the COCs. Delineate soil/groundwater to land-use specific closure levels based on exposure pathway assessment Develop CSM/ Guidance lays out factors to consider Professional judgment/reduce “ping pong” submissions Statute provides more flexibility on remedy selection. Remedial measures on equal footing with ICs This does not mean “pave and wave” Professional judgment and technical assessment of current and anticipated future uses Burden is on consultant/legal team to develop effective remedy

  15. Highlights Statute allows “conditional closures” for NFA determinations and COC/CNTS. Key issue is how to manage future risk Expanded set of tools – ERCs, EROs, annual reports, and other appropriate measures CERCLA Five Year Review Vapor Intrusion can be a remedy driver Need for financial assurance? When, How Much, and How Long?

  16. Overhaul to the RISC Tech Guide Process started internally at IDEM in 2006; preliminary draft released to small external working group on August 31, 2007 MSECA outreach to IDEM resulting in a series of technical work groups working on a variety of complex topics, including: Site Characterization Vapor Intrusion Plume Stability Background Sampling TPH Closure levels Default Closure levels

  17. How do these changes help you and your clients achieve closure? Efforts to characterize nature and extent can be tailored to land use and remediation objectives Consultants can use professional judgment and demonstrate that COCs are adequately characterized Burden on consultant/legal team to present and explain remediation proposal Clear advantages when you take “reasonable measures” to address “true source areas” and reduce long-term tail obligations Ability to achieve quicker closures with “conditions subsequent” option ERO can be effective for off-site groundwater ERC process was streamlined Other appropriate measures opens door for innovation

  18. Questions or Comments Thank you for this opportunity. If you have any questions, comments, or would like additional information on any of the topics covered today, please contact me directly at (317) 231-7474 or dgillay@btlaw.com Upcoming Events: March 24 : MSECA Meeting [1162 Panel] April 14 : IDEM Consultants Day

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