Indiana Perspectives on the Use of Institutional Controls

for Leaking UST Sites

May 2014

ASTSWMO LUST and State Fund-Financial Responsibility Workshop

Indiana Department of Environmental Management

Remediation Programs

Office of Air Quality Office of Water Quality Office of Land Quality

Remediation Science Services Permits Compliance

Federal Programs

Excess Liability Trust Fund (USTs)

Leaking UST

State Cleanup

Voluntary Remediation

Indiana Finance Authority Brownfields

Tanks

Hazardous Waste

Risk-based Corrective Action (RBCA) • ~2000 – Transition began to broad risk program use • Site Characterization

– What contaminants? How much? Where? Mobility? • Conceptual Site Model and Risk Assessment

– Identify exposure pathways and receptors – Identify risk target levels based on land use – Does contamination pose unacceptable risk?

• Corrective Action (prior to 2009) – Reduce contaminant concentrations to land use based levels,

then – Eliminate exposure pathways to receptors with institutional

controls (ICs), typically an Environmental Restrictive Covenant (ERC)

What is an ERC? • Proprietary IC that lists restrictions and obligations for a

specific property • Uniform Environmental Covenant Act not adopted by

Indiana • Indiana code defines ERC content and IDEM’s authority • ERCs “run with the land” – binding on successor owners

and enforceable by IDEM • Signed by property owner and recorded at County

Recorder’s office; becomes part of title record • Property owner responsible for compliance • Site closure after IDEM receives copy of recorded ERC

ERC Contents • Describes property ERC covers

– Reference to deed record – Legal description attached

• Describes why ERC is in place – Lists remediation program and site number – May describe contamination remaining at

site • Common restrictions and

obligations for leaking UST sites: – No ground water use – Soil management obligations – No residential use – “Affected area” obligations, such as

caps and construction worker notice

5

Risk-based Corrective Action • 2009 Indiana law changed risk remediation objectives

• Corrective Action (after 2009) – Treatment or removal of contaminants, including free product, not

necessarily required

– Remedies that manage risk and control exposure may be proposed in lieu of, or in addition to, reducing contamination to closure levels

– IDEM must “give effect to” ERCs and newly defined Environmental Restrictive Ordinances (EROs) in evaluating remediation proposals

What is an ERO? • 2009 Indiana law defined an ERO as:

– Ordinance that controls the use of ground water to a degree that protects from exposure to hazardous substances and/or petroleum

– Requires local authorities to notify IDEM if they are enacting, amending, or terminating an ERO

• By definition, may include ordinances enacted previously for other purposes

• Size of ERO may vary from entire corporate limits to smaller areas

• Most Leaking UST sites close with ERCs – Limited ground water plume extent – Residual soil contamination

EROs – Evaluation • General evaluation considerations:

– Area covered by proposed or existing ERO? – Extent of contaminant plume? – Any influence by nearby water withdrawals? – Potable well use in ordinance area? – Plume within a wellhead protection area (WHPA)?

• ERO Challenges – DNR water well database incomplete – No well-established communication process with local stakeholders – Complicating issues such as long-term plume stability, lack of

comprehensive state well permitting, and existing or planned WHPAs

Example ERO

Rise in IC Numbers Since Risk-based Corrective Action Initiated

0

50

100

150

200

250

2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012

Number of ICs Per Year (All Remediation Programs)

IC Sites in Registry by Program • Indiana Brownfields Program

– 258 ICs

• Voluntary Remediation – 247 ICs

• State Cleanup – 101 ICs

• Federal Programs – 63 ICs

• RCRA Corrective Action – 49 ICs

• Leaking UST – 651 ICs

Number of ICs

BF LUST RCRA SCU SF VRP

1,356 ICs

Indiana UST Sites

Increased use of ICs after 2009 law changes

• ~10% of all closed Leaking UST sites used an IC

• ~ Current IC use about 45%

~2,000 active Leaking UST sites

~4,230 active UST facilities

Shift in How ICs Viewed • 2001-2007 growing number of IC sites

– No cross program tracking of ICs – Records stored in different agency program files

• 2007-2008 mounting concerns about IC awareness – Environmental agency typically not involved with local

redevelopment projects – Local government units (planning, zoning, building permits, etc.)

may be unaware of contaminated sites – Administrative records may be lost (property subdivided, etc.)

– New owners/tenants may be unaware of ERCs • 2008 IC Registry developed and electronic record storage

began

Comprehensive IC Program

IC Policy and Implementation IC Enforcement IC Outreach and

Notice Tracking ICs Monitoring ICs

IC Long-term Stewardship

Planning

A robust IC program should cover all these functional areas

•Requires a broad range of staff expertise from multiple areas – managerial, technical support, project management, and legal •IDEM currently spends majority of time on IC implementation and tracking •Indiana has no dedicated funding for majority of IC activities

IC Policy and Implementation • Most time-consuming • Individual site IC review and implementation • Agency guidance • Internal Standard Operating Procedures

IC Policy and

Implementa -tion

IC Enforcement

IC Outreach

and Notice

Tracking ICs

Monitoring ICs

IC Long-term Stewardship

Planning

IC Policy and Implementation • Lessons learned

– Selection and documentation of restrictions important

– Some sites over-restricted • Tendency to be overly conservative • Leads to problems down the road with requests for

modifications

Over-restriction Examples • Example 1- Vapor intrusion (VI) restriction

– Vapor mitigation system required for all on-site buildings – Contaminant levels below ground water VI screening levels – No vapor intrusion testing or assessment done – No documented technical staff concurrence

• Example 2 – Maintain the pavement – Subsurface soil only affected media – Minor levels (leaching to ground water not a concern) – No nearby water wells (private or community) – Contamination at 12 feet (not easily accessible, no direct contact

concern)

• Example 3 – Size of restricted area

Over-restriction – 125 acres

IC Policy and Implementation • Lessons learned (continued)

– Contract sales sites – both buyer and seller should sign ERC

– If restrictions only cover a portion of the site, clear geospatial data must be provided

Restriction Language – “Owner shall not conduct excavation in Affected Area, as shown in Exhibit B, without IDEM approval.”

Exhibit B is a ground water sampling map from an investigation report. No “Affected Area” denoted.

Long-term stewardship problem?

IC Outreach and Notice • Better communication lines with local

government units needed • IC Registry on IDEM website • IndianaMap IC layer created • Staff training • External stakeholder training

IC Policy and

Implementa- tion

IC Enforcement

IC Outreach and Notice

Tracking ICs

Monitoring ICs

IC Long-term Stewardship

Planning

Tracking ICs • IC retention schedule created 2009 • Locate IC records in different remediation

programs • IC Registry Development

IC Policy and

Implementa- tion

IC Enforcement

IC Outreach and Notice

Tracking ICs

Monitoring ICs

IC Long-term Stewardship

Planning

ERC and ERO Information Tools

• IDEM Institutional Controls Registry – Database of sites with land use controls – www.idem.IN.gov/5959.htm

• IndianaMap – Statewide map viewer to show geographic location of sites – http://www.indianamap.org/

• Virtual File Cabinet (VFC) – Online access to IDEM site records – www.idem.IN.gov/6551.htm

Institutional Controls Registry • Rolled out December 2008 • Identifies sites subject to land use restrictions

• Contains links to ERCs • Long-term plan to include EROs • Links to IndianaMap (zoomed to site) and Virtual File

Cabinet • Summary report at www.idem.IN.gov/5959.htm

25

26

County

Site Name Address & City

IC Summary Report Contents

Restriction or Engineering Control

Affected Media

Contaminant Class

Comments

IC Summary Report Contents

Click ‘View’ to open document in VFC

IC Summary Report Contents

Virtual File Cabinet • IDEM’s online portal to documents and records • Available 24 hours a day • Over 60,000,000 pages loaded • Searchable indexing, including, but not limited to:

– Primary facility name – Facility address – County, city – Program identification number

Specific Restriction Language (no drinking water wells, etc).

Click ‘Map’ to open aerial photo in IndianaMap

32

http://www.indianamap.org/

33

Click and then map icon to open site-specific information.

34

Use the ID# to search for records in VFC at IDEM website.

35

Tracking ICs – GIS Mapping • ERC legal descriptions used to create GIS

polygons – IC Registry started with single point designation for IC

sites – Changed procedure so polygons created in ERC draft

phase to verify accuracy and reduce high error rates – ~460 polygons finalized to date – GIS polygons for old

sites created as resources permit IC Policy

and Implementa-

tion

IC Enforcement

IC Outreach and Notice

Tracking ICs

Monitoring ICs

IC Long-term Stewardship

Planning

Tracking ICs – GIS Polygons for Mapping

Proposed and Final ERC Land Use Restriction Areas in Indianapolis

Tracking ICs – Legal Descriptions • Lessons Learned

– ~10% of legal descriptions submitted have errors – Typographical errors in legal description – Legal description does not cover contamination – Legal description extends to off-site parcels or

unnecessarily large acreage (over-restriction) – ERC recorded by nonowner of land

Typographical errors in legal description

Legal description does not cover contaminated area

Legal description does not cover contaminated area – incorrect parcel

Incorrect legal description AND property owner

Monitoring ICs • IDEM currently has no comprehensive IC

monitoring program (no dedicated funding)

• ~270 sites have had “partial” audits – 65 sites by UST and hazardous waste inspectors – ~135 sites by summer interns

• ~5-10% in violation or require additional follow up

IC Policy and

Implementa- tion

IC Enforcement

IC Outreach and Notice

Tracking ICs

Monitoring ICs

IC Long-term Stewardship

Planning

Audit Findings • Common issues

– Engineered barrier integrity problems

– Lack of notice to IDEM as required • Other violations

– Residential use on nonresidential properties

– Water well use • Many sites redeveloped – may

or may not have had violation in soil handling

Indiana One-call System Feasibility Study • 2012 summer intern project • Can Indiana’s 811 system be used for IC monitoring? • Challenges

– Mapping differences – Obtaining membership – Lack of exact contamination locations (depth of contamination,

etc.) – Costs and staff resources

• Benefits – Increased awareness to external stakeholders – May be able to tailor sites based on restriction type

IC Cost Challenges

• No dedicated funding for most IC activities, particularly after site closure • Minimal auditing planned • Audit site selection based on known problem areas

• Long-term stewardship needs will require agency resources • Increased report review needs • ERO communications

• IDEM staff coding elements for IC work created in 2013 to track agency costs

• Legislature passed cost recovery for ERC modification requests

ERC Modification Challenges

• Large impact on staff resources – Original project manager may have left – Competes with active site caseload – Redevelopment projects often require quick turnaround – Complexity varies by site, and if risk reassessment needed

• Confusion about what restrictions should remain in effect – Some older site closure records don’t indicate specific land use

restrictions – Past tendency to over-restrict sites

• Numerous instances of multiple ERCs recorded on properties without correctly terminating prior instrument

Types of ERC Modification Requests • Property originally subject to ERC is subdivided

– Involving areas with residual contamination, or – Involving areas outside investigative studies

• Proposed land use change • Correction of a significant omission or legal

description error • Demonstration that contamination no longer

represents a risk (additional remediation or attenuation)

Planned IC Activities for 2014 • IC planning, implementation, and tracking

continues (majority of effort) • ERC modification policy development • Long-term stewardship issues

• Create model long-term stewardship plan and guidance • Funding challenges • Follow national LTS work (IC surveys, Interstate Technology

Regulatory Council workgroup, etc.)

• Engineered cap policy development • Audit ~15 sites; focus on engineered cap sites • Follow up on audits and ongoing complaints

received

IC Data Exchange • XML data schema establishes rules so IC

documents are described in the same structure • Standard means for sharing IC information

between computer systems • Published 2013 on the Environmental

Information Exchange Network – www.exchangenetwork.net/data-exchange/ic

IDEM Contact Information

Nancy Dollar, Remediation Services Branch (317) 234-4814

ndollar@idem.IN.gov