Section 101. Purpose
The purpose of these regulations is to promote the voluntary remediation of contaminated sites in Mississippi. The regulations establish remediation requirements that are based on public health and environmental risks specific to the Brownfield Agreement Site. The formats and procedures set forth in these regulations are designed to advise a person, prior to submitting an application, of the information necessary to achieve the adequate and cost-effective characterization and remediation of a Brownfield Agreement Site. All information requirements may not be applicable for all Brownfield Agreement Sites as long as the Applicant provides written justification.
Section 102. Authority
The Mississippi Department of Environmental Quality (MDEQ) and the Mississippi Commission on Environmental Quality (MCEQ) are authorized to administer the requirements of the Act and the regulations promulgated there under as set forth in Mississippi Code Annotated Section 49-35-1 through 27.
Section 103. Definitions
As used in these regulations, the following terms have the specified meaning, except where otherwise indicated.
Absorption factors mean the chemical-specific values that represent the fraction of the chemical from an environmental medium such as soil that can pass across the exchange boundaries of the organism (e.g., skin, lungs, gut) for absorption. The relevant absorption factors for chemicals into humans will be those published by EPA (e.g., the EPA’s Dermal Exposure Assessment: Principles and Applications [EPA/600/8-91/011B), EPA Region 4's Supplemental Guidance to Risk Assessment Guidance to Superfund [RAGS]), those published in peer-reviewed literature, or other appropriate values as approved by MCEQ.
Act means the Mississippi Brownfields Voluntary Cleanup and Redevelopment Act, Miss. Code Ann. Sections 49-35-1 through 27.
AIHC means American Industrial Health Council.
Application means forms prescribed by MCEQ or MDEQ, the accompanying information specified in the forms, and other additional information requested by the MCEQ or the MDEQ pursuant to Section 49-35-7 of the Act.
Applicant or “Brownfield Applicant” means the person(s) who has applied to become a Brownfield Party.
Aqueous Solubility means the solubility of a pure substance in water. It is the maximum amount of a chemical that will dissolve in pure water at a temperature of 30 degrees Celsius.
Assessment endpoint means the explicit expressions of the actual environmental value that is to be protected. See also the definition for measurement endpoint.
ASTM means the American Society for Testing and Materials.
Background chemical means a substance which is: (a) consistently present in the environment at and in the vicinity of the Brownfield Agreement Site; and (b) attributable to geologic or natural conditions.
Bioconcentration means the uptake and accumulation or concentration of a chemical in an individual organism.
Biomagnification means the accumulation of a chemical (that has the property to bioconcentrate) in humans or an animal through the food chain, i.e., from the ingestion of organisms or other animals tainted with the chemical.
Brownfield Agreement or “Agreement” means an agreement between the Applicant and MCEQ for the remediation of a Brownfield Agreement Site.
Brownfield Agreement Order or “Agreement Order” means an Order issued by the Commission which embodies a Brownfield Agreement.
Brownfield Agreement Site or “site” means Brownfield Property that is remediated under a Brownfield Agreement. The Site shall consist of the Brownfield Property that is the subject of the application and any other Brownfield Property:
Section 104. Acronyms
CAP Corrective Action Plan
CERCLA Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (Superfund) (Public Law 96-510), as amended by the Superfund Amendments and Reauthorization Act of 1986
CoC Chemical of Concern
EPA United States Environmental Protection Agency
MCEQ Mississippi Commission on Environmental Quality
MCL Maximum Contaminant Level
MDEQ Mississippi Department of Environmental Quality
NPL EPA’s National Priorities List
OSWER EPA’s Office of Solid Waste and Emergency Response
QAPP Quality Assurance Project Plan
QMP Quality Management Plan
QA/QC Quality Assurance/Quality Control
RBCs Risk-Based Concentrations
RCRA Resource Conservation and Recovery Act of 1976, as amended, 42 USC 6901 et seq.
RG Remediation Goal
SCEM Site Conceptual Exposure Model
TPH Total Petroleum Hydrocarbon
TRGs Target Remediation Goals
VEP Mississippi Uncontrolled Site Voluntary Evaluation Program
UCL Upper Confidence Level
Section 105. Applicability
a) The following sites are not eligible for inclusion in a Brownfield Agreement Site:
Section 201. General Requirements
a) Brownfield Agreement applications must be filed in the format prescribed by MDEQ. Prior to approval, the application must be complete and must contain all of the information required by MDEQ, including, but not limited to, information necessary to demonstrate the following:
Section 202. Procedural Requirements
a) Within thirty (30) days after the date an application is submitted to MDEQ, MDEQ shall review the application to determine whether the application is a complete application and forward a letter to the Applicant advising either (1) that the application is complete or (2) that the application is incomplete and listing the specific sections that must be submitted or supplemented to make the application complete.
b) Within thirty (30) days after the date that MDEQ forwards a letter to the Applicant advising that the application is complete, MCEQ shall issue an order which sets forth a schedule for:
Section 203. Brownfield Consulting Firm Requirements
a) In order to be listed on the approved list of Brownfield Consulting Firms, a firm must, at a minimum,
Section 301. General Requirements
a) Once MDEQ has completed its review of the application and any other information required to be submitted by the Applicant, MDEQ shall prepare a proposed Brownfield Agreement.
b) The Brownfield Agreement shall contain the following:
Section 302. Risk-based Remediation Requirements and Land-use Restrictions
a) A Brownfield Agreement shall establish remediation requirements that are based on public health and environmental risks specific to the Brownfield Agreement Site and in accordance with Mississippi Code Annotated Section 49-35-7. In establishing the risk-based remediation requirements in a Brownfield Agreement, MCEQ shall consider the use of appropriate land-use restrictions and/or engineering controls proposed by the Brownfield Party. MCEQ may determine that permanent engineering controls in conjunction with appropriate land-use restrictions satisfy the remediation required by MCEQ in the Brownfield Agreement. These risk-based remediation requirements may include contaminant-specific, state-specific, site-specific and/or likelihood-of-risk methodologies for the implementation of these risk-based remediation requirements. Any party to a Brownfield Agreement who complies with the requirements of a Brownfield Agreement may rely on these risk-based remediation requirements, land-use restrictions and engineering controls as governing the extent of remediation required to be performed by the Brownfield Party on or under the Brownfield Agreement Site for all purposes of the Act. Any risk-based remediation requirements, land-use restrictions and engineering controls implemented under a Brownfield Agreement shall be conducted in a cost-effective manner, consistent with projected future uses of the Brownfield Agreement Site.
b) Remediation options include, but are not limited to, the use of appropriate land-use restrictions, engineering controls, monitored on-site containment, excavation, monitored natural attenuation, soil vapor extraction, dual-phase extraction, pump & treat, phytoremediation, landfarming, and/or any other remediation option or combinations thereof approved by MCEQ.
c) The three procedures for determining risk-based remediation requirements follow:
Section 401. Public Notice Requirements
a) Public Notice by the MCEQ:
Section 501. Decision on Brownfield Agreement
a) The approval of a Brownfield Agreement shall be based on a complete application which MDEQ determines to contain all information required under the Act or these regulations. If MCEQ finds that the proposed Brownfield Agreement complies with the Act and these regulations, the MCEQ, by order, shall approve the proposed Brownfield Agreement. After approval of the Brownfield Agreement, the Executive Director and the Brownfield Party shall execute the Brownfield Agreement.
b) MCEQ may consider an Applicant’s financial resources, technical resources, managerial resources and compliance history in determining whether or not to approve a Brownfield Agreement.
c) Prior to approval of the Brownfield Agreement, MCEQ may require the applicant to demonstrate to the satisfaction of MCEQ that contamination (the source of which is not environmental contamination or activities on or under the Brownfield Property that is the subject of the application but which is contributing or potentially contributing to contamination on or under the Brownfield Property that is the subject of the application) will not migrate onto the Brownfield Property or otherwise compromise the level of remediation of the Brownfield Property required by the Brownfield Agreement. This demonstration may include institutional controls, engineering controls or other preventive measures. In the event information is presented to MCEQ that migration of contamination has occurred or the level of remediation required under the Brownfield Agreement is being compromised, MCEQ may reopen the Brownfield Agreement.
d) MDEQ shall consider all environmental contamination on or under the Brownfield Property that is the subject of the application to be attributed to activities on or under said Property, unless the Brownfield Applicant can demonstrate to the satisfaction of MDEQ that (1) the source of environmental contamination is off-site and (2) that conditions on or under said Property have not and will not exacerbate or contribute to the contamination. MCEQ may, as it deems appropriate, inspect or require inspections; investigate or require investigations; evaluate or require evaluations; and/or issue orders regarding properties which are a source of contamination on or under the Brownfield Agreement Site.
e) MCEQ may enter into a Brownfield Agreement as proposed by MDEQ or may modify that agreement before entering into it. MCEQ subsequently may modify any Brownfield Agreement by entry of an order. The MCEQ orders issued under this Act shall be reviewable as provided in Section 49-17-41.
f) MCEQ may disapprove a proposed Brownfield Agreement or decline to enter into a Brownfield Agreement by entry of an order. In the order, MCEQ shall state the reasons for disapproval of the agreement or declining to enter into the agreement.
Section 502. Filing of Notice of Brownfield Agreement
Until the Executive Director issues a "no further action" letter under Section 702 of these regulations, the Brownfield Party shall submit written notice to MCEQ at least thirty days prior to any sale, conveyance or other change in surface ownership of any portion of the Brownfield Agreement Site. Approval from MCEQ shall be required for any sale, conveyance or other change in surface ownership of any portion of the Brownfield Agreement Site owned by the Brownfield Party desiring to make the change in ownership, if the new surface owner will be required to or will assume an obligation to perform any obligations under the Brownfield Agreement. In that case, the Brownfield Party and the new surface owner jointly shall provide information satisfactory to MCEQ that the new surface owner has the financial, managerial and technical resources to complete performance of the Brownfield Agreement obligations to be transferred and that the new surface owner agrees to complete this performance. The new surface owner shall also submit a statement to MDEQ on a form prescribed by MDEQ which sets forth the requirements of the Brownfield Agreement for which it accepts responsibility. The Brownfield Party shall remain responsible for the payment of all reasonable direct and indirect costs of MDEQ associated with administration of the Brownfield Agreement until MDEQ receives a form from the new surface owner by which the new surface owner accepts responsibility for the payment of such costs. If MCEQ determines that the new surface owner has the necessary financial, managerial and technical resources, and an appropriate compliance history, to complete the performance of the Brownfield Agreement and that the new owner has agreed to do so, the MCEQ shall issue an order approving the transfer.
Section 504. Prospective Purchaser Notice
The Brownfield Party shall provide written notice of the Brownfield Agreement Site’s status as Brownfield Property to any prospective purchaser of any interest in the Brownfield Agreement Site.
Section 505. Executive Director Authority
Except for orders issued under subsections 501(b), 501(c), and 1002(c) of these regulations, MCEQ, under any conditions it may prescribe, may authorize the Executive Director to issue any orders required under this Act. A decision by the Executive Director shall be a decision of MCEQ and shall be reviewable as provided under Section 49-17-41.
Chapter 6. MODIFICATION OF BROWNFIELD AGREEMENT
Section 601. Conditions for Modifications
a) A Brownfields Agreement may be modified by order of MCEQ, if:
Section 701. Liability Protection
a) Except as provided under Section 701(e) and Section 1002(c) of these regulations, a Brownfield Party who executes a Brownfield Agreement shall be relieved of liability to all persons other than the United States for:
Upon completion of the Brownfield Agreement, the Brownfield Party may petition MCEQ to determine that the Brownfield Party has completed performance of the Brownfield Agreement. If MCEQ determines after conducting an inspection of the Brownfield Agreement Site that the Brownfield Party has completed the Brownfield Agreement, MCEQ shall issue an order stating MCEQ’s conclusion. Following issuance of an order by MCEQ, the Executive Director shall issue a "no further action" letter. The letter shall include the following statement: "Based upon the information provided by [Brownfield Party] concerning property located at [location], it is the opinion of the Commission on Environmental Quality that [Brownfield Party] has successfully and satisfactorily implemented and completed the approved Brownfield Agreement. No further action is required to assure that the remediation required under the Brownfield Agreement is protective of public health and the environment in accordance with the existing and proposed uses of this property.”
Chapter 8. CANCELLATION OF NOTICE OF BROWNFIELD AGREEMENT
Section 801. Cancellation
If a Brownfield Party remediates a Brownfield Agreement Site to a risk level of unrestricted use, the Brownfield Party may petition MCEQ to cancel the Notice of Brownfield Agreement Site. If MCEQ issues an order canceling the notice, the current owner of the Brownfield Agreement Site shall file a statement issued by the Executive Director in accordance with MCEQ’s order canceling the notice in the office of the chancery clerk in any county in which the Brownfield Agreement Site is located. The Executive Director’s statement shall contain the names of the owners of the Brownfield Agreement Site as shown in the Notice of Brownfield Agreement Site and reference the book and page where the notice is recorded. After collecting the proper fee fixed in Section 25-7-9, the chancery clerk shall record the Executive Director’s statement as provided in subsection (e) of this section. The chancery clerk shall make a marginal entry on the Notice of Brownfield Agreement Site showing the date of cancellation and the book and page where the Executive Director’s statement is recorded, and the chancery clerk shall sign the entry.
Chapter 9. FEES AND TRUST FUND
Section 901. Fees
a) The Brownfield Party who submits a Brownfield Agreement application shall pay all reasonable direct and indirect costs of MDEQ associated with the processing of the Brownfield Agreement application and administration of the Brownfield Agreement less the advance costs required in Section 901(b) of this section, unless another funding source (e.g., EPA Cooperative Agreement) is available, acceptable, and approved by MDEQ.
b) A Brownfield Party who submits a Brownfield Agreement application for review by MDEQ shall pay advance costs of Two Thousand Dollars ($2,000.00) at the time the application is submitted to MDEQ. MDEQ will apply the Two Thousand Dollar ($2,000.00) advance costs to the final invoice as determined by MDEQ.
c) MCEQ shall set by order a schedule of costs for the processing of the Brownfield Agreement applications and the administration of Brownfield Agreements by MDEQ.
d) Reasonable direct and indirect costs shall include the cost of MDEQ’s utilization of the services of an independent contractor and/or contractual worker to evaluate information associated with the processing of the Brownfield Agreement application and administration of the Brownfield Agreement less the advance costs required in Section 901(b) of this section.
e) MCEQ may delegate to MDEQ responsibility for the collection of costs in Section 902(a)(1) and (2).
f) All costs under Section 902(a)(1) shall be due before a date specified by MDEQ, which shall be no less than thirty (30) days following the invoice date. If any part of the costs that are imposed is not paid within thirty (30) days after the due date, a penalty of up to twenty-five percent (25%) of the amount due may be imposed and added to that amount. Any penalty collected under this section shall be deposited into the Brownfields Cleanup and Redevelopment Trust Fund created by Miss. Code Ann. Section 49-35-25(4). If MDEQ pursues legal action to collect costs incurred, reasonable attorney's fees and costs may be assessed against the delinquent party pursuant to Miss. Code Ann. Section 49-35-25(7).
g) Any person required to pay costs under this section who disagrees with the calculation or applicability of the costs may petition MCEQ for a hearing in accordance with Section 49-17-35.
h) Costs collected under this section shall not supplant or reduce in any way the general fund appropriation to the MDEQ for the administration of this program, pursuant to Miss. Code Ann. Section 49-35-25(9).
i) MDEQ shall suspend any activities or actions related to the processing of the Brownfield Agreement application or administration of a Brownfield Agreement, if the Brownfield Party or Parties fails to pay any required costs or penalties imposed under this section. In addition, the MCEQ shall issue an order in accordance with Section 1002(b) requiring the Brownfield Party to pay the required costs within a certain time. Failure to comply with the order may subject the Brownfield Party to remedies set forth Mississippi Code Annotated Section 49-17-43 and removal of liability protection set forth in Section 701.
j) MDEQ shall submit a final invoice to the Brownfield Party within sixty (60) days of the issuance of a “No Further Action Letter” for Sites that do not require post-closure activities or compliance monitoring. For those Sites that require post-closure activities or compliance monitoring, MDEQ and the Brownfield Party shall agree upon reasonable direct and indirect costs associated with the administration of post-closure activities or compliance monitoring as outlined in the Brownfield Agreement.
k) Nothing in this section affects any existing program at MDEQ or affects any authority of MCEQ or MDEQ to take any action authorized by law.
Section 902. Brownfields Cleanup and Redevelopment Trust Fund
a) Pursuant to Miss. Code Ann. Section 49-35-25(4), there is created in the State Treasury a fund to be designated as the "Brownfields Cleanup and Redevelopment Trust Fund," referred to in this section as "fund," to be administered by the Executive Director.
b) Monies in the fund shall be utilized to pay reasonable direct and indirect costs associated with the processing of the Brownfield Agreement applications and the administration of Brownfield Agreements.
c) Expenditures may be made from the fund upon requisition by the Executive Director.
d) The fund shall be treated as a special trust fund. Interest earned on the principal shall be credited by the Treasurer to the fund.
e) The fund may receive monies from any available public or private source, including, but not limited to, collection of costs, interest, grants, taxes, public and private donations, judicial actions and appropriated funds.
f) Monies in the fund at the end of the fiscal year shall be retained in the fund for use in the next succeeding fiscal year.
g) All monies collected under this section shall be deposited into the fund.
Chapter 10. HEARINGS AND ENFORCEMENT
Section 1001. Hearings
Any person or interested party aggrieved by any order of MCEQ pursuant to the Act or these regulations may file a request for hearing or notice of appeal pursuant to Miss. Code Ann. Section 49-17-41. Any person who disagrees with any other action of MCEQ pursuant to the Act or these regulations may file a petition with MCEQ for a hearing pursuant to Miss. Code Ann. Section 49-17-35.
Section 1002. Enforcement and Agency Reporting
a) Any material failure of a Brownfield Party or the agents or employees of a Brownfield Party to comply with the Brownfield Agreement constitutes a violation of this section by the Brownfield Party. If a Brownfield Party violates this section, MCEQ may issue an order requiring the Brownfield Party to correct the violation in an appropriate time period established by the order.
b) If the Brownfield Party fails to comply with an order issued under Section 1002(b) or provides false information to MCEQ or MDEQ during the application process or in reports required by the Brownfield Agreement or by state or federal law, MCEQ may remove the liability protection afforded by the Brownfield Agreement under Section 701, require additional remediation, and/or assess civil penalties pursuant to Miss. Code Ann. Section 49-17-43.
c) This section shall not create a defense against the imposition of criminal or civil penalties or other administrative remedies authorized by law for violations of law caused by the Brownfield Party while implementing or failing to implement the Brownfield Agreement.
d) Any land-use restriction or engineering control in a Brownfield Agreement and in a Notice of Brownfield Agreement Site filed under this section may be enforced by MCEQ by initiating an administrative proceeding or by filing a civil action without first having exhausted all available administrative remedies.
e) A land-use restriction or engineering control shall not be declared unenforceable due to lack of privity of estate or contract, due to lack of benefit to particular land, or due to lack of any property interest in particular Brownfield Property within the Brownfield Agreement Site. Any person who owns or leases Brownfield Property within the Brownfield Agreement Site subject to a land-use restriction or engineering control under this section shall abide by the land-use restriction or engineering control.
f) MCEQ may terminate a Brownfield Agreement by order issued pursuant to Section 1002(c). The order shall direct the executive director to issue a notice of cancellation of Brownfield Agreement. Any order to terminate shall provide that all liability protection provided by the Brownfield Agreement has been removed. The statement issued by the executive director shall direct the chancery clerk to make a marginal entry of termination on the Notice of Brownfield Agreement Site and the Brownfield Agreement. In the event a Brownfield Agreement is terminated, the Brownfield Party shall be responsible for notifying the following parties of the termination:
Chapter 1. GENERAL
Section 101. Introduction
a) The Mississippi Brownfields Voluntary Cleanup and Redevelopment Program (Brownfields Program) utilizes risk-based criteria for Site evaluation and remediation. The risk-based procedures and rationale for evaluating environmental contamination on or under a Site are presented in this Subpart II. This evaluation is necessary to develop remediation requirements that are protective of human health and the environment. All remediation and/or corrective actions must be approved by MDEQ.
b) In considering the risk-based evaluation of conditions on or under a Site, the following must be addressed:
Chapter 2. BROWNFIELD SITE EVALUATION
Section 201. Site Conceptual Exposure Model (SCEM)
a) The SCEM is a graphical representation of actual and potential Site conditions based on available data and an understanding of those Site conditions. A BASELINE and a REMEDIAL SCEM must be completed and are provided in forms prescribed by MDEQ. The BASELINE SCEM represents the risk and exposure conditions that exist prior to the implementation of remediation. The REMEDIAL SCEM represents the risk and exposure conditions that exist or are expected to exist after the implementation of remediation. Items to be identified in the SCEM include the following:
a) BASELINE SCEM - The following sections describe the criteria for evaluating the completeness and potential completeness of contaminant exposure for the Site. All potential exposure pathways should be evaluated for completeness, as identified in the SCEM worksheets. The Applicant should provide as much detail as possible. Indicate all sources, transport mechanisms, pathways and receptors that are complete or potentially complete. If information is not available to support a pathway as incomplete then that pathway should be considered to be potentially complete and should be identified for evaluation until such information becomes available. A description of each of the BASELINE SCEM criteria is provided in the following sections.
a) A Site Characterization must be conducted to delineate the nature and extent (vertically and horizontally) of contamination on and under the Site. Site characterization data should be collected and presented in accordance with the Quality Assurance Project Plan (QAPP) and Site Characterization Report formats. In general, the Applicant must demonstrate that the data are representative of the actual and/or potential contamination conditions at the Site. Collected data must include information describing and delineating the contaminant source area. Information pertaining to the characteristics of the CoCs, including the chemical and physical properties as well as the potential of the CoCs to migrate and transport to receptor locations through or in the affected media, must also be provided.
b) The degree of contamination in surface and subsurface soil should be determined by performing soil boring(s) down to the depth of groundwater in the saturated zone. Surface soil is defined as the soil located at the surface and extending to a depth of six (6) feet below the ground surface. The subsurface soil depth is any depth beyond six feet. The Applicant must address ingestion, potential dermal contact, and inhalation (through volatilization and particulates) of hazardous chemicals present in the surface soil. In addition, CoCs in the surface soil may be transported off-site through precipitation runoff.
c) The Applicant must demonstrate that groundwater is not impacted by the site-related contaminant; or that if groundwater is impacted, the impacted groundwater is confined and will remain confined within the Site. Groundwater contaminant concentrations should be determined by collecting groundwater samples.
d) Measured data are those data collected from temporary or permanent (monitoring) wells. The Applicant should install wells, as necessary, to delineate the vertical and horizontal extent of groundwater impact and to determine flow direction and groundwater quality. Wells must be installed, developed, purged, and sampled in a manner consistent with EPA Region IV, Science and Ecological Support Division, Environmental Investigations Standard Operating Procedures and Quality Assurance Manual, May 1996, as amended, or other procedures approved by MDEQ. Measured groundwater data must be based on unfiltered groundwater samples.
e) The site characterization data should be collected in accordance with data quality objectives (DQOs) stipulated in the QAPP. The DQOs shall, at a minimum, identify the number of field and quality control samples, quantitation limits, analytical methods, and sample collection, preservation, and handling methods. Matrix interferences shall be minimized to the extent feasible by modified sample extraction and preparation methods in accordance with EPA or MDEQ approved analytical methodologies.
f) The data collection strategy should be based on the Site Conceptual Exposure Model (SCEM) that hypothesizes or describes how the source chemicals or CoCs are released, transported, and exposed to the receptors.
g) The Applicant must demonstrate that the analytical laboratory data have been reviewed for compliance with the DQOs. In the Site Characterization Report, the Applicant shall identify data that meet DQOs.
h) To establish background chemical concentrations, the Applicant may collect samples from locations, as approved by MDEQ, outside of the influence of known contaminated areas and regionally prevalent chemicals and must analyze these samples using the same analytical methods as the CoC analyses.
i) To establish regionally prevalent chemical concentrations, the Applicant may collect samples from locations, as approved by MDEQ, throughout a substantial geographic region and outside the influence of known contaminated areas and must analyze these samples using the same analytical methods as the CoC analyses.
j) Historical data approved by MDEQ may be submitted in lieu of collecting new data provided that: (1) the Site characterization data requirements are summarized and presented in accordance with the Quality Assurance Project Plan and Site Characterization Report Formats; and (2) the data was collected in a manner consistent with appropriate sampling protocols, as approved by MDEQ. All detailed information must be referenced in the reports including sampling protocols. In any event, relevant previous site characterization reports should be submitted along with the application. Deviations from the required methodologies in the Quality Assurance Project Plan, Site Characterization Report, or Corrective Action Plan formats must be presented to and approved by MDEQ.
Section 204. Site Ecological Checklist
The Ecological Checklist is used to determined if ecological receptors of concern are present and potentially impacted (See Appendix D). If such receptors are present, MDEQ will make a determination as to whether a Tier 3 assessment of ecological risk should be performed to assess the potential ecological impact. Tier 1 and Tier 2 Evaluations are applicable for Sites with no known ecological receptors of concern.
Chapter 3. TIER 1 EVALUATION
Section 301. Tier 1 Evaluation Target Risk Level
The TRGs presented in the Tier 1 TRG table, Appendix A, are based on either (1) a 1x10-6 target risk level for each carcinogenic chemical, (2) a hazard index not to exceed 1 for each systemic toxicant, or (3) constituent TRG concentrations established through federal/state programs (i.e., Safe Drinking Water Act). The values presented in the Tier 1 TRG table will be modified periodically based on EPA updates of toxicity values obtained from the sources presented in Section 502(c)(2) of this Subpart II.
Section 302. Tier 1 Evaluation Procedures
a) The basic methodology for a Tier 1 Evaluation shall be the comparison of the highest concentration of each contaminant in each media to the TRGs provided in the Tier 1 TRG table. Results of the comparison will be used to determine if the site specific data are:
Section 401. Tier 2 Evaluation Target Risk Level
For human health, the remediation goal (RG) for each individual contaminant which is (1) a carcinogen must be calculated to attain a Risk Level of 10-6 (i.e.,1 in a million) and (2) a systemic toxicant must be calculated to attain a total hazard quotient of not more than 1 except with regard to a background chemical concentration or a regionally prevalent chemical concentration. In cases where contaminants with corrective action concentrations established through federal and/or state programs (i.e., Safe Drinking Water Act maximum contaminant levels (MCLs)) are present, the MDEQ will determine the appropriate corrective action concentration on a contaminant by contaminant basis. In no event, except with regard to a background chemical concentration, may either (1) the cumulative (total) site carcinogenic risk exceed 1 x 10-4 for carcinogenic CoCs or (2) the site hazard index (summation of hazard quotients) exceed 3 for non-carcinogenic CoCs affecting the same organ or organ system without the use of both an engineering control and an institutional control.
Section 402. Tier 2 Evaluation Options
a) Tier 2 Evaluation is a more in-depth evaluation of site-specific conditions beyond the Tier 1 Evaluation methodology. The Tier 2 Evaluation may include, but is not limited to, an evaluation of site-specific conditions by (1) determining the Upper Confidence Limit (UCL) of the Mean for a CoC utilizing statistical methods and comparing the UCL to the Tier 1 TRGs, (2) comparing EPCs to calculated background chemical concentrations, (3) comparing EPCs to calculated regionally prevalent chemical concentrations, (4) utilizing site-specific variables (i.e., exposure frequency, exposure duration, etc.) to calculate site-specific RGs, (5) eliminating or minimizing exposure to contaminants, (6) conducting an analysis of Petroleum Hydrocarbons using TPH Fractioning, or (7) utilizing other methods approved by MDEQ.
Chapter 5. TIER 3 EVALUATION
Section 501. Tier 3 Evaluation Target Risk Level
a) Human Health
a) The Applicant may choose to conduct a site-specific risk assessment (Tier 3), develop and meet site-specific RGs, and have the site-specific RGs approved by MDEQ. This Tier 3 option may entail additional costs to the applicant for MDEQ to subcontract the review of the toxicological and/or risk assessment evaluation. These additional costs shall be paid by the Applicant.
b) For a human health evaluation of the site or areas within the site (if the site characterization data support such area delineations), the Applicant shall perform risk characterization and present information on risk assessment uncertainty in accordance with the following options:
a) For the entire Site or areas within the Site (if the site physical characteristics support delineations of different ecosystems), the Applicant shall perform screening and/or more in-depth ecological risk evaluations and present uncertainty associated with the evaluations in accordance with the following options:
Section 504. Tier 3 Risk Assessment Data Requirements
a) The basic procedure for the assessment of human health and ecological receptors of concern for a Tier 3 risk assessment shall be to obtain representative site characterization data in order to perform a screening or more in-depth risk assessment. Specific requirements for performing a Tier 3 risk assessment include, but are not limited to, the following:
Section 601. Risk-Based Remediation Goals
a) Risk-based remediation goals (RGs) may be quantitative for chemical-specific RGs or qualitative for remedial action-specific RGs. The methodology for quantifying the chemical-specific RGs involves solving for the concentration term given a defined risk level in a deterministic or probabilistic risk assessment and shall be proposed for the principal threat chemicals or all CoCs if the principal threat chemicals cannot be identified. The chemical-specific RG may be modified upward or downward based on risk management considerations by MDEQ. A qualitative RG is established by describing the objectives for engineering controls that reduce site risk to an acceptable level. Risk-based remediation goals shall accompany the proposed remedial action(s) in the Site Characterization Report and/or the Corrective Action Plan (CAP).
b) Quantitative RG - Site-specific information that is relevant to the future use of the Site shall be used in the risk methodology.
Section 701. Introduction
a) Specific procedures and evaluation criteria have been developed for sites with petroleum hydrocarbon contamination. This criteria has been developed to simplify the contaminant analyses required to characterize the site and to establish site-specific remediation goals (RGs). Petroleum hydrocarbon indicator compounds (i.e., Benzene, Toluene, PAHs, etc.) may not be quantifiable at the Tier 1 TRG Table concentrations because high petroleum hydrocarbon concentrations in the sample may cause analytical interferences resulting in either of the following:
Section 702. Petroleum Hydrocarbon Evaluation Procedures
a) The Applicant shall utilize the procedures presented herein for the evaluation of potential human health and environmental risks from petroleum hydrocarbons in soil and groundwater.
b) A Tier 1 Evaluation of indicator compounds of petroleum hydrocarbons and TPH is required to establish the vertical and horizontal extent of indicator compound concentrations and TPH below the unrestricted values of the Tier 1 TRG Table.
c) A Site Ecological Checklist must be completed.
d) Petroleum-impacted soil and groundwater shall be assessed using the petroleum hydrocarbon indicator compounds, TPH-GRO, and TPH-DRO as presented in Appendix B, Table 1. Petroleum hydrocarbon categories presented in Appendix B, Table 1 represent typical hydrocarbon products. The Applicant shall correlate the site-specific hydrocarbon release and/or knowledge of the released hydrocarbon product to the appropriate category listed in Appendix B, Table 1. If the specific product that has been released is unknown, then a complete analytical evaluation must be conducted.
e) The Applicant shall perform soil and groundwater laboratory testing for the following indicator compounds:
Section 703. Tier 1 Petroleum Hydrocarbon Evaluation
a) A Tier 1 Evaluation of indicator compounds of petroleum hydrocarbons, TPH-GRO, and TPH-DRO is required to establish the extent of indicator compound concentrations and TPH-GRO/DRO below the Tier 1 TRG Table.
b) Results of the indicator compound analysis, TPH-GRO, and TPH-DRO shall be compared with the TRGs presented in the Tier 1 TRG Table in Appendix A utilizing the Tier 1 Evaluation Procedures outlined in Section 302 of this Subpart II.
c) The Applicant shall address a hydrocarbon release using TPH analyses using SW-846 Method 8015B or other Method approved by MDEQ and by analyzing the indicator compounds as described in Section 701.
d) In areas of the site where the indicator compounds cannot be quantified to the Tier 1 Target Remedial Goal concentrations, the Applicant has the option of either:
Section 704. Tier 2 Petroleum Hydrocarbon Evaluation - TPH Fractioning
a) A Tier 2 Petroleum Hydrocarbon Evaluation is primarily utilized in cases as described in Section 701 of this Subpart II where indicator compound concentrations cannot be determined due to dilution and interference and where the concentrations of TPH-GRO/DRO exceed the restricted Tier 1 TRG levels for TPH-GRO/DRO. Along with the required comparison of indicator compounds as described in Section 703(b) of this Subpart II, the Applicant shall have the option of utilizing the TPH Carbon Fraction TRGs in Table 2 of Appendix B.
b) Massachusetts Method
Section 705. Tier 3 Petroleum Hydrocarbon Evaluation
a) Alternative petroleum hydrocarbon Remedial Goals (RGs) may be established using a Tier 3 Risk Assessment approach. The alternative RGs shall be reviewed and approved or disapproved by MDEQ on a case-by-case basis.
American Society for Testing and Materials (ASTM), Standard Guide for Risk-Based Corrective Action Applied at Petroleum Release Sites (ASTM E 1739-95), 1995.
Agency for Toxic Substances and Disease Registry (ATSDR), Toxicological Profile for Mineral Oil Hydraulic Fluids, Organophosphate Ester Hydraulic Fluids, and Polyalphaolefin Hydraulic Fluids, 1994.
Massachusetts Department of Environmental Protection, Characterizing Risk posed by Petroleum Contaminated Sites: Implementation of MADEP VPH/EPH Approach, 1996.
Louisiana Department of Environmental Quality, April 1998, Risk Evaluation/Corrective Action Program (Proposed), April 1998.
U.S. Environmental Protection Agency (EPA), Handbook of RCRA Ground-Water Monitoring Constituents, Chemical and Physical Properties, 40 CFR Part 264, Appendix 9. September 1992.
U.S. Environmental Protection Agency (EPA), Soil Screening Guidance: Technical Background Document (EPA/540/R-95/128), May 1996.
U.S. Environmental Protection Agency (EPA), Supplemental Guidance to RAGS: Calculating the Concentration Term, EPA 1992, 9285.7-081 (EPA, 1992a).
TIER 1 TARGET REMEDIAL GOAL TABLE
PETROLEUM HYDROCARBON TABLES
PETROLEUM HYDROCARBON INDICATOR COMPOUNDS1