Maryland\'s New Hazardous Reporting Regulations

$Page 1: Maryland\'s New Hazardous Reporting Regulations$
HB977HB977

Presented by Geo-Technology Associates, Presented by Geo-Technology Associates, Inc.Inc.Geotechnical and Environmental ConsultantsGeotechnical and Environmental Consultants

April 23, 2010April 23, 2010

Maryland’s New Mandatory Maryland’s New Mandatory Hazardous Substance Release Hazardous Substance Release

Reporting RequirementsReporting Requirements

Maryland’s Voluntary Cleanup Maryland’s Voluntary Cleanup Program (VCP)Program (VCP)

Purpose:Purpose: To encourage the investigation of eligible To encourage the investigation of eligible properties with known or perceived controlled properties with known or perceived controlled hazardous substance contamination, protect public hazardous substance contamination, protect public health and the environment, accelerate cleanup of health and the environment, accelerate cleanup of properties, and provide liability releases and finality to properties, and provide liability releases and finality to site cleanup.site cleanup.

• Dry cleanersDry cleaners• Industrial facilitiesIndustrial facilities• Gas stationsGas stations• Service/maintenance facilitiesService/maintenance facilities• Perceived contaminationPerceived contamination• Contamination from off-siteContamination from off-site

Pre-Application Meeting

Submit Application

Perform Additional Studies

Submit ProposedResponse Action Plan (RAP),

Hold Public Meeting

Acceptance Into VCP

Submit Revised RAP

Certificate of Completion

No Further RequirementsDetermination (NFRD)

45-day review period45-day review period

Typically 2+ monthsTypically 2+ months

After a 30-day review periodAfter a 30-day review period



VCP OverviewVCP Overview

Typically 9+ MonthsTypically 9+ Months

Typically 4-6 MonthsTypically 4-6 Months

RAP Implementation RAP Implementation (time period varies considerably)(time period varies considerably)


When entering the VCP, expect and prepare for:When entering the VCP, expect and prepare for:• Taking more samples than you otherwise wouldTaking more samples than you otherwise would• Sampling more media …Sampling more media …• Analyzing for more parameters …Analyzing for more parameters …• Taking longer …Taking longer …• Costing more …Costing more …• Getting to know your environmental consultant and Getting to know your environmental consultant and

attorney better than you really wanted to.attorney better than you really wanted to.


There are many positives to the VCP.There are many positives to the VCP.• Regulatory endorsement of the assessment/cleanup work.Regulatory endorsement of the assessment/cleanup work.• Liability protection from regulatory enforcement.Liability protection from regulatory enforcement.• Better defense against third-party liability. Better defense against third-party liability. • Improved public perception.Improved public perception.• Financial incentive programs exist.Financial incentive programs exist.• Entering/completion of the VCP=lender financingEntering/completion of the VCP=lender financing

Case StudyCase StudyBaltimore’s Historic FillBaltimore’s Historic Fill

Site Location: Site Location: South South BaltimoreBaltimore


Notice the site is primarily capped


• Land naturally sloped downward to the south Land naturally sloped downward to the south (Gwynns Falls) (Gwynns Falls)

• Warehouse development required flat gradesWarehouse development required flat grades• Fill was placed many years ago for this purpose Fill was placed many years ago for this purpose

– typical of most urban redevelopment projects– typical of most urban redevelopment projects

NorthNorth


The fill material could have come from anywhere:The fill material could have come from anywhere:• Soil from other sites – mining or constructionSoil from other sites – mining or construction• Soil mixed with coal ash or slagSoil mixed with coal ash or slag• Rubble, debris, ash from Great Baltimore Fire (1904)Rubble, debris, ash from Great Baltimore Fire (1904)• Industrial chromium tailingsIndustrial chromium tailings• ?? Any other guesses ???? Any other guesses ??


• Fill with coal ash/slagFill with coal ash/slag• Elevated metals, especially lead, arsenic, mercuryElevated metals, especially lead, arsenic, mercury

• Fire-related debris and ashFire-related debris and ash• Elevated metals and SVOCs (from incomplete Elevated metals and SVOCs (from incomplete

combustion)combustion)• PCBs, dioxins, and furansPCBs, dioxins, and furans

• Industrial tailingsIndustrial tailings• Elevated hexavalent chromiumElevated hexavalent chromium

• All fillsAll fills• Questionable geotechnical suitability – building Questionable geotechnical suitability – building

settlementsettlement

Phase I ESA identifies fill as a potential concern.Phase I ESA identifies fill as a potential concern.

Phase II ESA shows the fill has environmental impacts.Phase II ESA shows the fill has environmental impacts.


In our warehouse scenario, what is the problem, environmentally?In our warehouse scenario, what is the problem, environmentally?• IIn place for 70+ years.n place for 70+ years.• Covered with an industrial building and parking lots – out of reach on a day-to-day basis.Covered with an industrial building and parking lots – out of reach on a day-to-day basis.• Cleanup standards are based on a worst-case exposure assumption: daily human exposure.Cleanup standards are based on a worst-case exposure assumption: daily human exposure.• No water wells or other groundwater use in the area.No water wells or other groundwater use in the area.• Nearest sensitive receptor is the Gwynns Falls – we can evaluate it for impact, but it’s unlikely.Nearest sensitive receptor is the Gwynns Falls – we can evaluate it for impact, but it’s unlikely.

Is it appropriate to call these detections evidence of a “release”?Is it appropriate to call these detections evidence of a “release”?


Definition of a “release”:Definition of a “release”:

• The addition, introduction, leaking, spilling, The addition, introduction, leaking, spilling, emitting, discharging, escaping, or leaching of any emitting, discharging, escaping, or leaching of any hazardous substance into the environment. hazardous substance into the environment.

Per the Maryland Statute (Environment Article 7-201)Per the Maryland Statute (Environment Article 7-201)


Pre-HB977Pre-HB977• Perform private Phase I and Phase II ESA to evaluate the business risk.Perform private Phase I and Phase II ESA to evaluate the business risk.• Use knowledgeable consultant and attorney to get comfortable and move ahead with the Use knowledgeable consultant and attorney to get comfortable and move ahead with the

deal.deal.• Maryland VCP is an option, especially if the parties are conservative or lender requires Maryland VCP is an option, especially if the parties are conservative or lender requires

state sign-off.state sign-off.

Post-HB977Post-HB977• Is there a release?Is there a release?• Do we report to MDE?Do we report to MDE?• Do we hold up the deal as we await word from MDE? For Do we hold up the deal as we await word from MDE? For

how long?how long?• Will MDE offer anything besides: “You need to enter Will MDE offer anything besides: “You need to enter

VCP”?VCP”?


Sites with questionable fill sources are common.Sites with questionable fill sources are common.• Small scale fill, like the warehouse siteSmall scale fill, like the warehouse site• Large scale fill, throughout Baltimore shorelineLarge scale fill, throughout Baltimore shoreline

1935 Map of Baltimore Shoreline Change1935 Map of Baltimore Shoreline Change


Lessons?Lessons?• The regulation is subject to interpretation.The regulation is subject to interpretation.• The definition of a “release” is subject to The definition of a “release” is subject to

interpretation.interpretation.• Questionable applicability to many sites.Questionable applicability to many sites.• The regulation could potentially apply to an enormous The regulation could potentially apply to an enormous

number of sites, especially if the cleanup standards are number of sites, especially if the cleanup standards are used as the reporting threshold.used as the reporting threshold.

Case StudyCase StudyYesterday’s Dry CleanerYesterday’s Dry Cleaner

Site Location: Site Location: 123 Any 123 Any StreetStreet

Anytown, MDAnytown, MD


• 20052005• Mr. X (prospective purchaser) contracts for a Phase I and Phase II ESAMr. X (prospective purchaser) contracts for a Phase I and Phase II ESA• Site had been a dry cleaner in a strip mall for 15+ years.Site had been a dry cleaner in a strip mall for 15+ years.• Sampling showed limited soil and groundwater contamination.Sampling showed limited soil and groundwater contamination.• Subslab vapor and indoor air testing showed a low risk.Subslab vapor and indoor air testing showed a low risk.

• 20062006• Mr. X purchases the building, redevelops it with a coffee shop.Mr. X purchases the building, redevelops it with a coffee shop.

• 20102010• HB977 triggers new MDE regulation requiring reporting.HB977 triggers new MDE regulation requiring reporting.• Mr. X possesses the 2005 reports.Mr. X possesses the 2005 reports.• The 2005 results are above some current reporting thresholds.The 2005 results are above some current reporting thresholds.

• What now???What now???


Mr. X must decide whether to send reports to MDE.Mr. X must decide whether to send reports to MDE.• If Mr. X sends reports, who knows what MDE will say?If Mr. X sends reports, who knows what MDE will say?

• MDE indicates there’s no problem, the site is OK. MDE indicates there’s no problem, the site is OK. • ““If you want our opinion, you must go through VCP.”If you want our opinion, you must go through VCP.”• ““You have a problem. You must go through VCP or we’ll take You have a problem. You must go through VCP or we’ll take

enforcement action.”enforcement action.”• No response.No response.• ______________ (fill in the blank).______________ (fill in the blank).

• If Mr. X does not send reports:If Mr. X does not send reports:• Risking penalty?Risking penalty?• What happens when owner wants to sell or refinance?What happens when owner wants to sell or refinance?• ______________ (fill in the blank).______________ (fill in the blank).

Case StudyCase StudyManufacturing TroubleManufacturing Trouble

Site Location: Site Location: Widgets, Inc.Widgets, Inc.East Baltimore, East Baltimore,

MDMD


• Widgets, Inc. has been an industrial manufacturer for over 60 years, Widgets, Inc. has been an industrial manufacturer for over 60 years, changing owners several times during this period.changing owners several times during this period.

• Phase I and Phase II ESAs have been performed periodically.Phase I and Phase II ESAs have been performed periodically.• During these studies and others (spill investigations, compliance During these studies and others (spill investigations, compliance

sampling, UST closures, etc.), soil and groundwater data have been sampling, UST closures, etc.), soil and groundwater data have been obtained.obtained.


Old Old DumpDump

Closed USTs with Closed USTs with residual residual contaminationcontamination

Contaminated Contaminated soil along rail soil along rail

spurspur

Site-wide, low-level Site-wide, low-level groundwater groundwater contaminationcontamination


• Widgets, Inc. possesses reports not previously submitted to MDE Widgets, Inc. possesses reports not previously submitted to MDE and must decide whether to send them to MDE.and must decide whether to send them to MDE.• How will MDE respond?How will MDE respond?• How will MDE manage to read all of the reports that will stream in from How will MDE manage to read all of the reports that will stream in from

every corner of the state?every corner of the state?• If submitted to MDE, he information is now part of the public record, If submitted to MDE, he information is now part of the public record,

exposing the company to third party lawsuits.exposing the company to third party lawsuits.

• Does the previous owner need to submit reports to MDE?Does the previous owner need to submit reports to MDE?

• What if a prospective purchaser acquires this information during What if a prospective purchaser acquires this information during the due diligence period and sends it to MDE?the due diligence period and sends it to MDE?• Deal falls through?Deal falls through?• Deal is delayed significantly?Deal is delayed significantly?• MDE demands investigation/cleanup by current owner?MDE demands investigation/cleanup by current owner?

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Maryland\'s New Hazardous Reporting Regulations

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