“Evolving Regulations and

Emerging Contaminants”Vermont Department of Environmental Conservation

Waste Management and Prevention Division

Sites Management Section

Evolving Regulations AST Rule – Matt Moran, Environmental Program Manager, SMS

LEAN / ANR On Line – Matt Moran, Environmental Program Manager, SMS

Groundwater Rule -Matt Moran, Environmental Program Manager, SMS

Hazardous Waste Management Regulations - Trish Coppolino, Environmental Program Manager, SMS

Solid Waste Rule -Trish Coppolino, Environmental Program Manager, SMS

Net Metering Rule -Trish Coppolino, Environmental Program Manager, SMS

Natural Resource Damages (NRD) – Trish Coppolino, Environmental Program Manager, SMS

Legislative Changes (S.10)-Trish Coppolino, Environmental Program Manager, SMS

IRule – James Donaldson, Environmental Scientist

Extended talk to cover background soil study – Matt Moran/Trish Coppolino/James Donaldson

Evolving Regulations – AST Rule

New Inspection &

Certification

Standards

(Act 76 – H.531)

Current Status

Approved by ICAR

Public Hearing - April 5, 2017

Public Comment Period

Ended - April 19, 2017

Finalizing:

Responsiveness Summary

Rule Draft

Filing with LCAR first week of June

2016 Heating Oil Release Data

58 Heating Oil AST Releases

39 from indoor basement ASTs

19 from kerosene outdoor ASTs

53 Heating Oil UST Releases

Costs of AST Releases

Based on data from past 5 years

• Average annual heating oil cleanup

expenditures ~$1.4M

• Average annual heating oil cleanup

revenue - $1.3M

• Average annual AST HO cleanup

expenditures - ~$0.93M

Act 76 - RequirementsAdopt rules for AST inspections by 7/1/17

Requires inspections that must follow newly

promulgated protocol.

Delivery prohibition to noncompliant ASTs

ANR keeps public database of noncompliant ASTs

Heating oil ASTs and piping must be removed at

time of conversion to natural gas

When Inspections are RequiredAs of July 1, 2017, all storage tank systems shall be inspected at the following times:

(1) Immediately after tank system installation;

(2) Immediately after initial delivery of fuel to the tank system;

(3) Prior to the initial delivery of fuel to the tank system when the tank owner switches fuel carriers;

(4) If not otherwise required under (1) to (3) above, the tank system shall be inspected once every three years; and

(5) Upon removal of a tank system – essentially to check for evidence of a release.

Five Red-Taggable

Inspection Findings

1.) All four legs of the tank

are located on a stable

foundation

Five Red-Taggable Inspection Findings

2.) The tank and tank legs are free of any cracks and of significant corrosion or pitting, rust, and spores; dents or bulges; and all tank fuel filter, fittings, and valves are free of drips or leaks and any other sign of an actual or suspected release of hazardous material;

Five Red-Taggable Inspection

Findings

3.) All tank fuel lines below grade are

installed with a plastic coating or

within a protective sleeve made of

non-corrodible material;

Five Red-Taggable Inspection

Findings4.) The tank is installed with a vent alarm

or whistle terminating not more than 12

feet from the fill pipe and at a point

visible from the fill port.

Five Red-Taggable

Inspection Findings5.) The fill pipe and the vent pipe shall

be at least 1-1/4 inches in diameter.

The fill pipe shall have a liquid-tight

cap and the vent pipe shall have a

weatherproof and insect-proof cap.

For indoor tanks, the fill and

vent lines must terminate outside

the structure.

ANR Environmental Research Tool

Aboveground Storage Tankshttps://anrweb.vt.gov/DEC/ERT/AST.aspx

Flood Prone Area Changes NORARecommended Practices adopted for indoor ASTs with

respect to tank securement methods, e.g., foot flanges, concrete anchors, hold down straps, etc.

Emphasis was placed on prevention of indoor/basement ASTs from becoming buoyant due to much greater impact on human health, property and the Petroleum Cleanup Fund.

Outdoor AST “compliance” would be much costlier due to much thicker concrete pads needed. Also, cost/benefit of prevention is marginal since most outdoor releases have marginal impact due to massive dilution, and when pools of product remain it is readily cleaned up.

Protection from Ice Damage

ASTs installed outdoors

after 7/1/17 must either

be installed on the gable

end, or have protection

from ice/snow falling off

the eaves

Evolving Regulations – LEAN/ANR

Online

Evolving Regulations – Groundwater

Rule A final draft has not yet been filed with ICAR to begin formal rulemaking

The most significant change for us relates to the GW Reclassification

Section

Current draft would require reclassification of hundreds of sites to Class IV

Changing Enforcement Standards – Once Rule is in effect, changes

include:

MTBE – from 40 ug/L to 11.3 ug/L

Trimethylbenzenes – from 2 isomers at 350 ug/L to 3 isomers at 5.1 ug/L

1,4-dioxane – from 20 ug/L to to 0.3 ug/L (though interim was 3 ug/L)

Impact of new standards low given IRULE changes.

The VALs are also being added to the rule for point of use (we already

manage to this for private wells).

Evolving Regulations - Hazardous

Waste Rule

PFOA and PFOS are listed hazardous wastes when in liquid form and above

20 ppt.

There are several exemptions to the Hazardous Waste Listing:

Consumer products that were treated with PFOA and are not specialty products;

Remediation wastes managed under a CAP or disposal plan approved by the

Secretary; and

Sludges from wastewater treatment facilities, residuals from drinking water

supplies, or leachate from landfills when managed under a plan approved by

the Secretary.

The Secretary is in the process of adopting guidance on the management

of landfill leachate at wastewater treatment facilities.

Evolving Regulations – Solid Waste Rule

Preliminary stakeholder and public comment

was completed this spring (2017)

Currently going through Internal legal review

Formal rule making process to begin in late

Fall 2017

* will include language on categorical facilities that can be

permitted to receive development soils

Evolving Regulations – Net Metering

New Net Metering Rules January 2017

Encourage solar development on “preferred sites”

Preferred Sites-Brownfields, Landfills, NPL sites, gravel pits, rooftops, parking lots

Incentives for preferred site development, expedited permit process, generate power up to 500kW

Certification from ANR Secretary that the site is a Brownfield, Landfill, NPL site

Look for solar developer to conduct a Phase I, Phase II and Corrective Action(if necessary)

Shawn Donovan, Shawn.Donovan@Vermont.gov (802-522-5683)

Evolving Regulations – Natural

Resource Damages

Evolving Regulations – Natural

Resource Damages

“Natural resources” means any

natural resource held in the

public trust, such as fish, wildlife,

habitats that support fish and

wildlife, biota, vegetation, air,

surface water, groundwater,

wetlands, drinking water supplies,

or State-held public lands.

“Natural resource damage

assessment” means the process

of collecting, compiling, and

analyzing information, statistics,

and data through prescribed

methodologies to identify the

scope of injury to natural

resources and associated services

in order to determine the amount

of damages for injuries to natural

resources.

Evolving Regulations – Natural

Resource Damages

These Rules apply to any party liable for a release of hazardous materials pursuant to 10 V.S.A. § 6615

The purpose of these Rules is to make the environment and public whole for injuries to natural resources and loss of services resulting from the release of hazardous material.

NRD establish processes to assess injuries to natural resources, to assess alternatives for restoring injured natural resources and services lost, and to pursue implementation and funding of a restoration plan by potentially responsible parties.

These Rules also provide opportunities for soliciting input from the public and other interested parties in conducting a damage assessment and selecting restoration alternatives.

Upon notification of a release or

discovery of a release of

hazardous materials, the

Secretary may conduct pre-

assessment to determine whether

to conduct a damage

assessment and restoration.

Where appropriate, the Secretary

may first require early restoration

actions prior to any such damage

assessment and restoration

planning.

Evolving Regulations -Legislative

Updates S.10 Creates strict liability for cost of public drinking water line extension for person who released

PFOA and caused potable water supply to fail.

Amends definition of hazardous material, 10 V.S.A.§ 6602(16), to include “a chemical or substance that, when released, poses a risk to human health or other living organisms and that is listed by the Secretary by rule.”

Amends the definition of disposal, 10 V.S.A.§ 6602(12), to include the word “emitting.”

Amends the brownfield statute, 10 V.S.A.§ 6652(b), by adding the following sentence: “The Secretary may establish land use restrictions in the certificate of completion for a property, but the Secretary shall not acquire interests in the property to establish a land use restriction.”

Amends the brownfield statute, 10 V.S.A.§ 6653(a), by adding a release from natural resource damages for a brownfields applicant who has obtained a certificate of completion.

Amends the groundwater classification statute, 10 V.S.A.§ 1392(d), by removing outdated language related to the natural resources board’s review of ANR rules.

Amends the groundwater classification statute, 10 V.S.A.§ 1394(a), by allowing the Secretary to authorize, subject to conditions, the use of Class IV waters as a source of potable water supply.

Investigation and Remediation of

Contaminated Properties Rule (I-Rule)

James Donaldson, Environmental Analyst

Sites Management Section

Department of Environmental Conservation

History

The Investigation and Remediation of Contaminated

Properties Procedure (IROCPP) has been VT DEC’s long

standing guidance document for site investigation and

remediation.

Act 52, passed in 2015, required that the VT DEC

develop procedures for managing “development soils”

and establish statewide background concentrations for

arsenic, lead, and polycyclic aromatic hydrocarbons

(PAHs).

With Act 52 mandating the promulgation of a Rule, the

SMS and VT DEC management elected to include the

provisions of the IROCPP guidance document with the

procedures for managing development soils.

Today

ANR is currently finalizing both the responsiveness

summary and I-Rule documents.

Responsiveness summary should be made available to

the public by June 2, 2017.

Targeted submission date to LCAR for the I-Rule is June 2,

2017.

I-Rule will be posted to the DEC website concurrent with

LCAR filing.

Development Soils - DEC and environmental community

meeting scheduled for May 31, 2017.

What is the Investigation and Remediation

of Contaminated Properties Rule?

The procedural and substantive requirements on a

responsible party and Agency for the cleanup of a site.

Takes the previous Investigation and Remediation of

Contaminated Properties Procedure and makes it a rule.

Rule in the final stages of the adoption process (public

comment closed, pending filing with LCAR).

Anticipated Legislative adoption in July 2017.

Major Changes between Procedure

and Rule

Streamlined cleanup of releases from heating oil tanks.

Corrective action feasibility investigation (now evaluation of

corrective action alternatives).

Public notice process consistent with Act 150.

All sites leaving contamination in place must have an institutional

control plan.

Included development soils and eased some requirements from

former policy.

Reimbursement process for municipal water line extensions.

VDH/EPA values now standards.

Subchapter 1 – General Provisions

Provides authority and purpose for rule. Includes

prohibitions, reporting obligations, emergency response

provisions, and liability.

Releases of hazardous materials are prohibited. 10

V.S.A. §6616

Any person with knowledge of a release (lenders) and

who may be liable for the release is required to report

the release to the Secretary of Natural Resources. 10

V.S.A. § 6617

Subchapter 1 - Emergency Corrective

Action Authority

“Spills” authority now in rule. Expanded to include other emergency

responses.

Agency of Natural Resources can respond to emergency situations

under its emergency response authority. ANR must determine that

there is an “immediate and serious threat of harm to human health

or the environment” to exercise the authority.

No notice to responsible party required, however, if additional work

beyond emergency response then ANR must notify responsible

party.

Subchapter 3 - Site Investigation Site Investigation work plans must be submitted to the Secretary

within 30 days of the discovery of the release.

Once approved, the SI must be implemented in 60 days.

Submission of the SI report is required within 90 days of final laboratory data.

Required elements of the SI report have been expanded.

o Requires detailed data on the site and results of the investigation.

o Must include an evaluation of potential for release to have impacted the bedrock aquifer.

The SI Report presents conclusions and recommendations to ANR. Based on this and revisions to the CSM, ANR will determine

o There are no impacts to sensitive receptors requiring corrective action and the Site can be closed;

o Additional investigation is required; or

o There are risks to sensitive receptors and a CAP is required.

Subchapter 4 – Response Actions,

Releases of Heating Fuels Applicable only to release of heating fuels from Category 4 USTs, or ASTs

that contain heating fuels and service residential or farm properties.

Allows for removal of accessible impacted soils above the water table during AST spill response or UST removal.

Requires post-excavation analytical sampling to document effective source removal or residual contamination.

Bedrock impacts evaluated through drinking water supply sampling.

If impacts cannot be addressed during initial response a streamlined SI process is required.

Pending results of the initial response actions and/or SI, the ANR will determine:

o No further action required (Spill closure);

o Complete SI in accordance with Subchapter 3 is required (Site listing); or

o Impacts to sensitive receptors require additional corrective action (Site listing).

Subchapter 5 – Corrective Action

I-Rule allows for exemptions from corrective

action requirements in certain circumstances.

Defines the objectives of corrective action.

Change in terms from “Corrective Action

Feasibility Investigation” to “Evaluation of

Corrective Action Alternatives (ECAA)”.

Corrective Action - Exemptions

Emergency responses;

Heating fuel releases;

RCRA corrective actions;

CERCLA / Superfund cleanups;

Where an SI Report demonstrates

o No exceedance of any applicable drinking water standard at a drinking water source;

o Groundwater contamination confined to

property where release

occurred;

o No off-site migration above

standard;

o No direct contact threats;

o ANR approves Institutional

Control Plan.

Corrective Action - Objectives

Hierarchy of Cleanup Priorities.

Treat to the maximum extent practicable.

Remove and properly dispose of materials.

Use engineered controls to contain hazardous materials

and prevent exposure.

Use legal controls (institutional controls) to control

access and limit exposure.

Evaluation of Corrective Action

Alternatives - Exemption

No impacts to drinking water sources, vapor intrusion, or other

impact to human health.

Impacts confined to site where release occurred or will be at the

site where the release occurred within five years of the completion

of the Site Investigation;

There are no direct contact threats (unless those can be mitigated

through limited source removal); and

The PRP documents that the proposed remedy has been

successfully used at other sites and has a history of being reliable,

cost-effective, and technically effective.

Evaluation of Corrective Action

Alternatives

Must evaluate at least 2 alternatives: (1) reduces the toxicity,

mobility, or volume through treatment and minimizes long term

maintenance; and (2) minimizes treatment and addresses exposure

through engineered or institutional controls or long-term monitoring.

Alternatives must analyze the following factors: (1) compliance with

legal requirements; (2)overall protection of human health and

environment; (3) long-term effectiveness and permanence; (4)

reduction of toxicity, mobility, volume through treatment; (5) short

term effectiveness; (6) implementability; (7) cost; (8) environmental

impact and sustainability; and (9) community acceptance.

Approval of Evaluation of Corrective

Action Alternatives

ANR makes final remedy selection based on alternatives

analysis.

ANR can require additional alternatives be considered.

ANR can require greater evaluation of one of the

alternatives.

Corrective Action Plan /

Implementation

The CAP is the document directing how the selected remedy will be implemented. The CAP has to address the following:

o how the performance standards will be achieved for the site (or that they are not applicable).

o how waste from the site and from construction will be managed.

o a maintenance plan for any portion of the remedy requiring maintenance.

o an institutional control plan, if necessary.

o a redevelopment and reuse plan, if applicable.

o a QA/AC plan and a cost estimate

The CAP is noticed and receives public comment.

Corrective Action Plans - Public Notice

CAP Public notice process revised to meet the requirements of Act 150.

ANR will provide notice to all interested persons once drafty approval of the

CAP has been granted.

Interested parties will have 30 days from the date of notice to provide

comment on the draft.

Any interested party may request a public hearing within 14 days of the

date of notice.

At the close of the comment period, ANR will consider comments and

provide final approval of the CAP along with a response to comments if

necessary.

ANR will provide notice of the final approved CAP to interested parties.

Subchapter 6 – Institutional Controls

Sites needing Institutional Controls will be required to develop a

LUR/Stewardship Plan.

Plan will identify the IC or series of ICs to ensure the protection of

human health and the environment.

Acceptable ICs:

o Notice to Land Records

o Deed Restriction/Environmental Easement

o Zoning ordinances

o Water ordinances

o Groundwater reclassification

o Judicially approved controls

o Certificate of Completion

Subchapter 7 – Site Closure

Sites Management Activity Completed (SMAC) designation

remains.

All SMAC letters will be recorded on the property deed upon site

closure.

For Site closure requiring a Notice to Land Records - the SMAC letter and a site figure will document the residual contamination.

Certificate of Completion (COC) – Brownfields sites.

The COC will serve as the Land Use Restriction

Background Soils – Act 52

Act 52, passed in 2015, required that” On or before July 1, 2017, the

Secretary shall adopt rules that allow for the management of excavated

soils requiring disposal that contain PAHs, arsenic, or lead in a manner that

ensures protection of human health and the environment and promotes

Vermont’s traditional settlement patterns in compact village or city

centers.” At a minimum, the rules shall:

include statewide or regional background concentration levels for PAHs, arsenic,

and lead that are representative of typical soil concentrations and found

throughout existing development areas;

specify that development soils with concentration levels equal to or lower than

the background concentration levels established by the Secretary shall not be

defined as or required to be treated as solid waste;

include criteria for determining site-specific maximum development soil

concentration levels for PAHs, arsenic, and lead;

(continued)

Background Soils – Act 52

Act 52, passed in 2015, required that” On or before July 1, 2017, the

Secretary shall adopt rules that allow for the management of excavated

soils requiring disposal that contain PAHs, arsenic, or lead in a manner that

ensures protection of human health and the environment and promotes

Vermont’s traditional settlement patterns in compact village or city

centers.” At a minimum, the rules shall:

include statewide or regional background concentration levels for PAHs, arsenic,

in addition to disposal at a certified waste facility, adopt procedures for the

management or disposal of development soils that have concentration levels

that exceed residential soil screening levels, but are below the site-specific

maximum development soils concentration levels;

adopt a process to preapprove sites to receive development soils from multiple

developments; and

be designed to provide that the criteria established under subdivision (3) of this

subsection and the process developed under subdivision (4) of this subsection

shall be no less protective of human health and the environment than the

standard for development soils and the process established under subsection (b)

of this section.

Background Soils – Act 52

“Development soils” means unconsolidated mineral and organic matter

overlying bedrock that contains PAHs, arsenic, or lead in concentrations

that:

(A) exceed the relevant soil screening level for residential soil;

(B) when managed :

(i) pose no greater risk than the Agency-established soil screening value for the intended reuse of the property; and

(ii) pose no unreasonable risk to human health through a dermal, inhalation, or ingestion exposure pathway;

(C) does not leach compounds at concentrations that exceed groundwater

enforcement standards; and

(D) does not result in an exceedance of Vermont groundwater enforcement

standards.

Background Soils – Act 52

Act 52 also created the following “disposal” options for development soil:

Categorical Solid Waste Facility

Development soils as defined in 10 V.S.A. § 6602(39) shall be eligible for disposal at a categorical disposal facility certified by the Secretary of Natural Resources for the disposal of development soils pursuant to 10 V.S.A. § 6605c.

Alternative Daily Cover

Development soils as defined in 10 V.S.A. § 6602(39) shall be eligible to be used as alternative daily cover at a solid waste facility certified pursuant to 10 V.S.A. § 6605.

Receiving Sites

Property that has equal or greater concentrations of PAH, Arsenic, Lead can “receive” soils from a site with development soils

Background Soils Study - Design

Samples were collected spatially throughout Vermont to determine

background concentrations of PAHs, arsenic, and lead from locations

presumed to not have had a known release or land use that would have

been a source of these contaminants.

Study design:

o A 100 square mile grid was overlain on the state map of Vermont which

created 115 grids;

o The largest municipality in each grid was identified for sample

collection;

o Properties targeted for sample collection included State/Municipal

parks and greens, State/Municipal building lawns, school lawns,

cemeteries, and State/Town forests.

o A total of 130 samples and 17 duplicate samples (13%) were collected.

Background Soils Study – Data and

Evaluation

EPA’s ProUCL version 5.0 software was utilized to statistically review the data

and allow for reproduction by outside parties.

Outliers were omitted from the data sets by using a combination of Rosner’s

Outlier Test and visual inspection of the histogram and box and whisker

plots. 95% confidence interval and 95% coverage were utilized in

determining the background threshold value.

Each data set of analytical results (Arsenic, Lead, and TEQ PAHs) was

evaluated to determine whether the data reflected a statistically

significant separation, as a result of discernable land use patterns.

Background Soils Study – Spatial

Evaluation

The Density of Habitable Buildings GIS layer, located on the ANR Atlas, was

used to establish areas of high population density in Vermont and were

considered “urban”.

Areas outside of this layer were considered “rural”.

Sample locations inside or within an approximate 500-foot buffer of the

Density of Habitable Buildings GIS layer were considered Urban.

Sample locations that were engulfed, or surrounded by the Density of

Habitable Buildings GIS layer were also considered Urban.

Other sample locations (not inside, engulfed, or within 500 feet of the

density layer) were considered Non-Urban or “Rural”.

In the case of arsenic, two tailed t-test analysis indicated that there is no

statistically significant difference between the datasets, and that one

statewide (residential and commercial/industrial)background level applies.

Background Soils Study – Spatial

Evaluation

Background Soils Study – Spatial

Evaluation

Background Standards for Lead,

Arsenic, and PAHs

Arsenic: statewide background value: 16 ppm

Lead: Urban background value: 111 ppm

Lead: Non-urban background value: 41 ppm

PAHs: Urban background value: 580 ppb

PAHs: Non-urban background value: 26 ppb

Development Soils – “Urban”

Background

Create an “urban” background;

Concentrations of PAHs below this

background value will not be

regulated – BUT there may be

some reporting associated with

movement of soils

Movement of soils below

background can happen within

designated “urban” areas

Map “Urban” areas using:

Density of Habitable Buildings

Layer AND

2010 Census Maps for Urbanized

Area

2010 Census Maps for Urbanized Area

2010Census

Maps:https://www.censu

s.gov/geo/maps-

data/maps/2010ua.html

22 Urban Maps for

Vermont