This blog post is a follow-up to CEC’s summary of the West Virginia Tanks Corrective Action Unit (TCAU) update to the Corrective Action Guidance Document (CAGD) for Leaking Aboveground Storage Tanks (LAST) and Leaking Underground Storage Tanks (LUST).
[Background: The TCAU released the update to the public on July 25, 2018, for immediate implementation. The stated intent of the CAGD is to better articulate West Virginia’s LAST/LUST program requirements, provide clarification on what information must be collected when investigating and cleaning up releases, and improve the consistency and quality of required reports, resulting in a more streamlined process for remediating LAST/LUST sites. The guidance discusses the processes and procedures for identifying and investigating suspected and confirmed releases, identifying appropriate cleanup levels, selecting and conducting appropriate corrective actions, and establishing reporting requirements. The CAGD is applicable to regulated Aboveground Storage Tanks (ASTs) as defined by W.Va. Code §22-30 and Underground Storage Tanks (USTs) subject to regulation by W.Va. Code §22-17 and 40 CFR 280. Note that regulated ASTs are either Level 1 or 2.]
Some of the key provisions that were added to improve efficiency and streamline the program include:
Incorporation of standardized data entry-enabled electronic forms for submitting plans, reports, and related documents
TCAU has developed and made available standardized data entry-enabled electronic forms for submitting nearly all required plans and reports, including initial site check reports, site characterization reports, initial abatement measures reports, free product monitoring reports, quarterly groundwater monitoring reports, site investigation reports, and AST closure plans. The standardization of the forms and reporting requirements is designed to simplify WVDEP’s review process and increase the efficiency and cost-effectiveness of the review process for WVDEP and the regulated community.
Providing an optional “FastTrack” approach for cleaning up low-impact sites
TCAU has developed a “FastTrack” program to allow for a quick, efficient, and cost-effective cleanup for low-impact sites. Utilizing FastTrack, a tank owner/operator reports a release, performs the initial response requirements, and then moves directly to remediation of the site, provided that the site/release meets certain conditions. TCAU anticipates that this is a viable option for certain types of releases, such as releases from spill buckets, sumps, under-dispenser containment, or limited piping, as well as tank releases encountered during tank closures and/or upgrades. In order to qualify for the FastTrack program, the release must be relatively small and confined to the site, have no potential to impact surface water or groundwater, pose little or no risk to human health or the environment, and be readily remediated by excavating contaminated soil. WVDEP has pre-approved FastTrack for releases involving refined petroleum products (gasoline, diesel, kerosene, heating oil, oil, etc.), crude oil, brine, natural gas condensate, sodium hydroxide, or sodium carbonate, although other chemicals may potentially be acceptable if approved by the Agency.
Implementation of Presumptive Remedies
TCAU has developed what amounts to an expedited approval process for Corrective Actions implementing commonly used remediation approaches for LAST/LUST cleanups including soil excavation, soil vapor extraction (SVE), low temperature thermal desorption (LTTD), air sparging (AS), dual-phase extraction (DPE), in situ chemical oxidation (ISOC), and aggressive fluid vapor recovery (AFVR). In order to employ a presumptive remedy (PR), the remediator completes an appropriate PR form that is essentially a screening process for determining whether the remedy will be effective for the site. The completed form along with a monitoring plan and appropriate site maps showing monitoring points are submitted as the Corrective Action Plan. The use of a presumptive remedy is not applicable when the contamination has migrated beyond the facility boundary unless it can be demonstrated that the presumptive remedy will address the contamination beyond the facility boundary.
If your company’s operations involve the management and oversight of aboveground or underground storage tanks in West Virginia and you would like to know more about the updated processes and procedures surrounding investigation, cleanup, corrective actions, and reporting of releases, please contact the author, Robert (Bo) Valli, at email@example.com or (412) 303-6699.
WVDEP Releases New Corrective Action Guidance Document (CAGD) for Leaking Aboveground Storage Tanks (LAST) and Leaking Underground Storage Tanks (LUST)
On July 25, 2018, the West Virginia Tanks Corrective Action Unit (TCAU) released its update to the Corrective Action Guidance Document (CAGD) for Leaking Aboveground Storage Tanks (LAST) and Leaking Underground Storage Tanks (LUST), which became effective upon publication. The stated intent of the CAGD is to better articulate West Virginia’s LAST/LUST program requirements, provide clarification on what information must be collected when investigating and cleaning up releases, and improve the consistency and quality of required reports, resulting in a more streamlined process for remediating LAST/LUST sites. The guidance discusses the processes and procedures for identifying and investigating suspected and confirmed releases, identifying appropriate cleanup levels, selecting and conducting appropriate corrective actions, and establishing reporting requirements. The CAGD is applicable to regulated Aboveground Storage Tanks (ASTs) as defined by W.Va. Code §22-30 and Underground Storage Tanks (USTs) subject to regulation by W.Va. Code §22-17 and 40 CFR 280. Note that regulated ASTs are either Level 1 or 2.
The CAGD replaces and supersedes previous AST and UST closure guidance documents and incorporates a number of concepts that shift the paradigm of how LAST/LUST sites are investigated and remediated in West Virginia.
First, TCAU has abandoned the use of total petroleum hydrocarbons (TPH)/diesel range organics (DRO)/gasoline range organics (GRO)/oil range organics (ORO) as analytes of interest in favor of individual chemicals most associated with the different TPH ranges. Analysis for TPH will still be performed to profile petroleum-contaminated waste for disposal.
Second, the TCAU has developed three tiers of new action levels for soils at LAST/LUST sites that are protective of direct contact (ingestion, dermal contact, and inhalation of volatile organic compounds/particulates) and vapor intrusion exposure pathways (inhalation of volatile organic compounds). The Tier 1 level is the most conservative of the three tiers and applies to most sites. Tier 2 provides soil action levels for sites under residential use. Tier 3 may be utilized for determining compliance with the soil action levels when the property owner has agreed to place a deed restriction on the property, appropriately restricting its use to non-residential. Tier 2 and 3 action levels are depth-dependent (0 to 8 feet and greater than 8 feet) to protect human health, and their use can be precluded by “limiting factors,” which generally consist of subsurface utilities and building or soil conditions that could result in preferential migration of volatile organic compounds into buildings.
Third, protection of groundwater is addressed entirely through the use of a 10-foot soil buffer. There is an underlying presumption that a 10-foot soil buffer is sufficient to prevent contaminants in soil from leaching into groundwater and causing groundwater contamination irrespective of the concentrations in the soil. Under this approach, if contamination (defined as “detectable”) is detected within 10 vertical feet of the water table, or free product is present at the water table, a groundwater investigation must be conducted. For circumstances where contamination is not detected within 10 vertical feet of the water table, it is presumed that meeting Tier 1, 2, or 3 action levels is protective of groundwater.
In addition to the concepts discussed above, the guidance establishes various quality control procedures related to collecting environmental samples, constructing monitoring wells, and validating laboratory data.
Be advised that the above discussion is a broad-brush synopsis of the primary elements and concepts that comprise the CAGD, and that there are many intricacies and caveats that are part of the CAGD that are not mentioned in this blog post, not the least of which is how keywords such as “soil,” “contamination,” and “product” are defined.
If your company’s operations involve the management and oversight of aboveground or underground storage tanks in West Virginia and you would like to know more about the CAGD update and clarifications, please contact the author, Robert (Bo) Valli, at firstname.lastname@example.org or (412) 303-6699.
CEC has developed a follow-up post on key provisions added to streamline the WV LAST/LUST program. Click the link to read this additional information or paste the following into your browser: https://blog.cecinc.com/2018/08/08/key-provisions-added-to-wv-last-lust-program.
On April 1, 2014, West Virginia Gov. Tomblin signed Senate Bill No 373, known as the Water Resources Protection Act (Act), into law. This legislation includes the new Aboveground Storage Tank Act (WV Code Chapter 22, Article 30) including definitions and the following requirements:
- existing tank inventory and registration,
- tank permitting and performance standards,
- annual inspection and certification,
- financial responsibility,
- corrective actions program for releases, and
- spill response planning
The requirements of the Aboveground Storage Tank (AST) Act are expected to apply to a broad range of industries in West Virginia including, but not limited to, natural gas, manufacturing, mining, power, solid waste, and public institutions with aboveground storage tanks containing more than 1,320 gallons of fluids. Shipping containers, process vessels and mobile tanks meeting certain requirements will be exempt. The requirements of the AST Act will be effective June 6, 2014.
The AST Act establishes requirements and deadlines for the West Virginia Department of Environmental Protection (WVDEP) and tank owners. Deadlines are as followed:
- WVDEP completes the inventory and registration form – July 6, 2014
- Tank Owners are to submit completed registration forms for existing tanks – October 1, 2014
- Tank Owners are to submit spill prevention and response plans – December 3, 2014
- Tank Owners submit annual inspection and certification forms – January 1, 2015
The details and requirements of the registration forms, registration fees and annual inspection and certifications remain to be completed and will need to be monitored as the regulations are developed.
Based on the provisions of the AST Act, the following are expected to be required by the WVDEP:
- Tank inventory and registration that will include tank location, age, type of construction, capacity, type of fluid stored and distance to nearest groundwater or surface water source used for public water supply
- A permitting program that will include performance standards for tank design, construction, installation, corrosion prevention, release detection, secondary containment and recordkeeping
- Annual inspection and certifications submitted by the owners of ASTs prepared by a registered professional engineer, qualified individual working under the engineer’s supervision or individual certified to perform the inspections.
- Evidence that AST owners have adequate financial responsibility to take corrective actions in the event of a fluid release.
- The development of corrective action plans taking into consideration releases of fluids and plans for prompt actions in response to releases.
- The preparation and submittal of spill response plans that are updated every three years. These plans will include requirements for establishing a facility chain of command, preventative maintenance program for tanks and notification requirements for water supply companies.
The AST Act does include some waivers from the permitting requirements for specific categories of ASTs that either “do not represent a substantial threat of contamination” or “are currently regulated under standards which meet or exceed the protective standards and requirements set forth in this article.” These waivers include: certain pipeline facilities; liquid traps and associated gathering lines related to oil or gas production and gathering operations; surface impoundments, pits, ponds or lagoons; and ASTs for which SPCC plans are required under 40 CFR Part 112 (unless located within a zone of critical concern). It is important to note that the waiver is only for permitting requirements. The remaining requirements of the AST Act, including registration and annual inspections, will still be applicable.
The legislation also includes a second new article, the “Public Water Supply Protection Act WV Code Chapter 22, Article 31” (PWS Act), which includes the following requirements:
WVDEP is required to inventory “potential sources of significant contamination” (PSSC) located within “zones of critical concern” for public water systems with water withdrawals from a surface water supply source or a surface water influenced groundwater supply source. Additionally, the new article will result in more water users being classified as large-quantity water users. The criterion for large-quantity users is now 300,000 gallons per day in any 30-day period versus the previous criteria of 750,000 gallons per day.
A PSSC is defined as “a facility or activity that stores, uses or produces compounds with potential for significant contaminating impact if released into the source water of a public water supply.”
Sites within a “zone of critical concern” that have ASTs will not be eligible for coverage under General NPDES Permits, and any existing General Permit holders will have to apply for an Individual NPDES Permit by September 1, 2014.
Tracking the progress of the developing regulations, registration and inventory requirements will be important toward meeting the compliance requirement of the AST Act and the PWS Act. If you have questions about additional requirements of these new Articles, please contact Mr. Tom Maher, P.G., of CEC’s Pittsburgh office at 412-429-2324 or email@example.com.
A December 30, 2013, EPA final rule (78 FR 31112) amended 40 CFR Part 312 (All Appropriate Inquiries [AAI]) to reference ASTM International’s E1527-13 Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment (ESA) Process. The AAI amendment was effective December 30, 2013.
Per the final rule, EPA recognizes the newly issued ASTM E1527-13 as compliant with AAI. Therefore, “persons conducting all appropriate inquiries may use the procedures included in the standard to comply with the All Appropriate Inquiries Rule.”
ASTM published the revised E1527 standard on November 1, 2013. ASTM E1527-13 reflects the consensus of its technical committee, and as such is the industry-accepted standard of care for conducting Phase I ESAs.
EPA stated that “the ASTM E1527-13 standard is similar to the ASTM E1527-05 standard in format, process, and areas of coverage.” In general, the revisions included:
- New and revised terminology related to Recognized Environmental Conditions (RECs)
- Clarification related to the applicability of the vapor pathway to ASTM E1527
- Language regarding file reviews including agency file reviews and judicial records
EPA’s amendment offers the option of using ASTM E1527-13 to conduct all appropriate inquiries; however, the December 30, 2013 rule does not require use of ASTM E1527-13. Although not required, EPA’s final rule included the following:
- “ASTM E1527-13 provides an improved process for parties who wish to undertake AAI.”
- The “changes enhance the usefulness of the standard” in identifying potential and threatened releases
- “ASTM E1527-13 improves upon the previous standard and reflects the evolving best practices and level of rigor that will afford prospective property owners necessary and essential information when making property transaction decisions”
- “EPA views these enhancements and clarifications to the ASTM standard as valuable improvements and strongly encourages prospective purchasers of real property to use the updated ASTM E1527-13 standard”
- “EPA recommends that environmental professionals and prospective purchasers use the ASTM E1527-13 standard.”
Additionally, EPA also announced its intent to publish a proposed rule, in the near future, that will propose removing the previous reference to the 2005 standard from AAI; thus supplanting the 2005 standard with the 2013 standard.
If you have any questions about ASTM E1527-13 and how it may impact an upcoming project or Phase I ESAs in general, please contact Jennifer A. Ewing, P.G., (firstname.lastname@example.org) at 800-365-2324.
A final rule issued by USEPA on July 31, 2013 addresses the management of solvent-contaminated wipes. In the final rule, USEPA conditionally excludes from the definition of solid waste solvent-contaminated wipes that are cleaned and reused, and conditionally excludes from the definition of hazardous waste solvent-contaminated wipes that are disposed. The rules affect nearly 100,000 generators and handlers of an estimated 2.2 billion rags and wipes per year. EPA estimated in 2003 that 88% of these were reusable.
Proper management of solvent wipes has been debated since the early 1980’s. Petitions filed by Kimberly Clark (1985) and Scott Paper (1987) led to an EPA 1994 memo deferring to the States with authorized RCRA programs. Printing industry efforts toward standardization led to a 2003 proposed rule. Following a 2009 Risk Assessment, minor changes to the 2003 proposal were finalized and published on July 31, 2013. The new rules will take in effect six months from publication, on January 31, 2014.
To maintain the conditional exclusion, certain management practices must be followed:
- Store in non-leaking, closed containers
- Label containers “Excluded Solvent-Contaminated Wipes”
- Document accumulation less than 180 days
- No free liquids per Paint Filter Liquids Test (9095B)
- Document procedure employed to assure no free liquids
- Free liquids managed as solid or hazardous waste
- Document reusables sent to handler (laundry, dry cleaner) with permitted discharge
- Document disposables to permitted handler (combustor, landfill)
During accumulation, a closed container means the cover makes complete contact between the fitted lid and the rim, even if not sealed. Containers with flip-top or spring loaded lids or with a self-closing swinging door may be acceptable during accumulation. Bags may be considered closed when the neck of the bag is sealed preventing emission of solvent vapors. No container may leak free liquid. After accumulation and during transportation, a container must be sealed with rings clamped or bolted to the container.
The conditional exclusion may apply to solvent-contaminated wipes which contain listed solvents or exhibit a hazardous waste characteristic. Free liquid spent solvent is not excluded nor are wipes containing listed waste other than solvent or that exhibit a characteristic from other than solvent. Wipes contaminated with trichloroethylene are not excluded.
You should also check with your state for rules that they may have regarding solvent-contaminated wipes, since many state requirements are more stringent than the federal program. If you have any questions about RCRA Waste Determination requirements, please contact the Chicago office at 630-541-0626.
Clients routinely ask us about management practices and regulations applicable to clean construction and demolition debris. Unlike hazardous and solid wastes, requirements vary by State. We will be doing a series of blogs outlining the requirements on a state-by-state basis. First up is the Land of Lincoln, Illinois:
In the State of Illinois, the rules changed in August 2012. Owner/operators need to assure compliance with these new requirements.
Illinois regulations define clean construction or demolition debris (CCDD) as uncontaminated broken concrete without protruding metal bars, bricks, rock, stone, reclaimed or other asphalt pavement, or soil generated from construction or demolition activities. If clean soil is mixed in, it is also CCDD. Uncontaminated soil that is not mixed with other CCDD materials is not CCDD. CCDD used as fill below grade is not a waste if the area is not within the setback zone of a drinking water well and CCDD is covered within 30 days with clean soil, pavement, or other structure(s). [35 IAC 1100]
Common questions which are addressed below are:
- What exactly are the pre-acceptance requirements?
- Why do the requirements vary by fill site?
- Are all facilities accepting this material regulated?
- Are fill sites required to perform groundwater monitoring?
Owner-operators may seek to determine if the material qualifies to be managed as CCDD using one of two options:
1) Sample and test the soil for pH and self-certify that the source site is not a potentially impacted property and soils are presumed uncontaminated;
2) Engage an Illinois Registered Professional Engineer or Licensed Professional Geologist to perform sampling and analyses as appropriate to support an uncontaminated soil certification.
Under the first option, the Owner operator may certify that the site is not a potentially impacted property using Form LPC-662 based on the current and past uses of the site and nearby properties. Testing for pH must also be performed to demonstrate the soil pH is between 6.0 and 9.0.
If the soils cannot be self-certified, then waste characterization is needed.
Under the second option, a licensed professional certifies the soil is uncontaminated. Soil samples are obtained and tested to determine whether the material can be managed as CCDD or as an industrial waste stream:
- Based on the estimated volume of material, the licensed professional will determine the representative number of soil samples and selected analyses.
- The selected analysis is based on site condition and history of operations, and may include volatile organic compounds (VOCs), semi-volatile organic compounds (SVOCs) including polynuclear aromatic hydrocarbons (PAHs), Resource Conservation and Recovery Act (RCRA) metals, and pH.
- Samples of soil may be taken in-situ or from staged piles.
Analytical results for up to 133 parameters are compared to IEPA criteria within the Summary of Maximum Allowable Concentration of Chemical Constituents in Uncontaminated Soil Used as Fill Material at Regulated Fill Operations in 35 Illinois Administrative Code (IAC) 1100, Subpart F.
If the soil can be certified as CCDD, the licensed professional prepares and seals the Uncontaminated Soil Certification (LPC-663), allowing the soils to be used as fill at a CCDD facility. If the soils cannot be certified as CCDD, waste characterization is needed.
The results of the analysis, as well as other pertinent data, can be prepared and submitted to an appropriate Subtitle D landfill for acceptance of the waste stream.
Fill Site Requirements?
The above are the minimum requirements set by the IEPA. However, like most rules, they are subject to some interpretation and each CCDD owner/ operator may interpret the rules more or less conservatively. For example, fill sites may request additional analytical than initially performed which may cause delays. We recommend as part of any certification, the site owner/ operator coordinate with the intended fill site early in the process to avoid any “surprises”.
Regulatory status of fill sites?
Regulated CCDD Fill sites are subject to:
- Pre-acceptance criteria;
- Operational standards;
- Permitted final grades (no higher than surrounding grades);
- Storm water management [NPDES Permit for discharges];
- Annual reports;
- One year post closure care period; and
- Payment of Fees to the State of Illinois of $0.20/ CY or $0.14/ ton [Part 1150 and 22.51 of Act].
Uncontaminated Soil Fill Operations are subject to similar requirements. The Rules do not apply to “CCDD or uncontaminated soil that is not used as fill material in a current or former quarry, mine, or other excavation”. Basically, certain “unregulated” facilities legally exist by filling areas that are not a “former quarry, mine, or other excavation”. CEC strongly recommends that the site owner/ operator understand the regulatory status of any facility they are using.
Are fill sites required to perform groundwater monitoring?
The issue of whether CCDD fill sites should be required to perform groundwater monitoring was one of the most debated issues during the rulemaking process. Groundwater monitoring is not required by the current rules. However, the Illinois Pollution Control Board opened a subdocket to the rulemaking proceeding to continue its examination of the issue of groundwater monitoring at CCDD and uncontaminated soil fill operations. A hearing was held on May 20, 2013 to elicit more information from stakeholders regarding this issue. CEC will be tracking results from this proceeding.
If you have any questions about the CCDD management issues, please contact John Hock with the Chicago office at (877) 963-6026.
Useful Illinois Links:
On July 9, 2013, the Illinois Environmental Protection Agency (IEPA) is hosting a public hearing for the Impaired Waters of Illinois Draft 2014 Integrated Report. Interested parties can submit verbal comments on the Draft 2014 Integrated Report at the July 9, 2013 meeting. Written comments must be postmarked or e-mailed by midnight, August 8, 2013. Information on the public hearing and where to submit written comments may be found at the IEPA’s website.
The IEPA is required under Sections 303(d), 305(b), and 314 of the federal Clean Water Act to assess waters of the state and evaluate compliance with applicable water quality standards and designated uses. The Clean Water Act also requires each state to review and update the water quality standards every three years. IEPA, in conjunction with the United States Environmental Protection Agency (USEPA), identifies and prioritizes those standards to be developed or revised during this three-year period.
Designated uses of state waters include:
- aesthetic quality;
- aquatic life;
- fish consumption;
- primary contact (e.g., swimming, water skiing);
- public and food processing;
- water supplies; and
- secondary contact (e.g., boating, swimming).
Sources of impairment to Illinois waters include:
- atmospheric deposition of toxins;
- hydromodification such as channelization;
- municipal point sources;
- urban runoff/storm sewers;
- impacts from hydrostructure flow regulation/modification; and
- surface mining.
Surface mining can impact Illinois waterbodies through the discharge of mining effluent, which may lower dissolved oxygen and pH and/or increase phosphorus, manganese, iron, and total suspended solids concentrations, resulting in excessive siltation, algal blooms, and fish kills.
The degree of compliance with a designated use in a particular stream segment is determined by analysis of various types of information, including biological, physicochemical, physical habitat, and/or toxicity data. When sufficient data are available, applicable designated uses in each segment are assessed as Fully Supporting (good), Not Supporting (fair), or Not Supporting (poor). Waters in which at least one applicable use is not fully supported are called impaired and are discussed in the Integrated Report.
In accordance with Section 303(d) of the Clean Water Act, waters that are deemed impaired for specific chemical constituents may have restrictions of additional loadings (i.e., discharges) for those parameters. In addition, waters identified in accordance with Section 303(d) are subject to the development of Total Maximum Daily Loads (TMDLs). A TMDL is the sum of the allowable amount of a single pollutant that a waterbody can receive from all contributing sources and still meet water quality standards or designated uses. TMDLs are listed in a site’s National Pollutant Discharge Elimination System (NPDES) Permit. If a TMDL is lowered due to a waterbody being designated as impaired, mining companies may incur additional NPDES violations, potentially resulting in costly fines.
Mine operators and NPDES permit holders are encouraged to compare the 303(d) list in the Draft 2014 Integrated Report with the list in the 2012 Integrated Report to ensure that their discharges will not come under tighter scrutiny. If your watershed does not have an approved TMDL, it is imperative that you understand the TMDL development process as it relates to your discharges. If it has an approved TMDL, you need to understand how that affects your future discharges during your NPDES permit cycle.
If you have any questions about the 2014 Proposed Integrated Report or how the revised Illinois TMDLs may affect your NPDES discharges, please contact Dana Sincox or John Gefferth with CEC’s St. Louis office at (866) 250-3679. The Draft 2014 Integrated Report is reviewable at the IEPA’s web site.