Draft: December 31, 2001

NEWMOA Research Brief

PotentialSite Characterization Process and Possible Barriers and Opportunities forto the Use of

Innovative Site Characterization Methods and Technologiesy in the NEWMOA States[1]

January 23Final Draft: December 31, 20021

Introduction

Inadequate site characterization upfront can lead to long delays, unnecessarily expensive remediation, and uncertain results. The high cost of using the traditional site characterization approach[2]to provide enough information to address financial uncertainties can also discourage site redevelopment in “brownfields” areas. A combination of improved upfront project planning, the use of innovativesampling methods and field-based analytical technologies, and the ability to adapt the workplan in the field has the potential to reduce the time and cost of performing a quality site characterization whilesimultaneously providing better information upon which to make decisions. A quality site characterization upfront can also lead to a cleanup that protects the environment and the public’s health in a more cost-effective and efficient manner. However, regulatory and institutional barriers to the adoption of innovative hazardous waste site assessment methods and technologies can, under some circumstances, deter their use. Therefore, building upon and communicating the successful use of new methods and technologies by state agencies and the consulting community is crucial to ensuring progress toward improved site characterization.

Over the past several years NEWMOA has worked with its member states and the U.S. EPA to increase the understanding of the factors that discourage the use of innovative methods and technologies, to improve the quality of site characterization, and to promote the use of innovative technologies. In 1999 NEWMOA established a Technology Review Committee (TRC) consisting of one or more staff members from each of the Northeast states to coordinates state review of selected innovative technologies. To date the TRC has focused on three field-based analytical technologies, immunoassay, x-ray fluorescence, and GC and GC/MS, and an innovative sample collection method, passive diffusion bag samplers. The TRC has issued advisory opinions on each technique and has sponsored a hands-on training for state staff and consultants on their use. The TRC Advisory Opinions are available at:

The TRC has been successful in focusing state attention on specific innovative technologies. However, the NEWMOA states recognize that educating state staff or the consulting community on a particular innovative technology is often not adequate to ensure its increased use. Therefore, in 2001, NEWMOA sponsored two meetings between the member states and U.S.EPA Technology Innovation Office (TIO) and Regions 1 and 2 to focus on improving the overall quality of site characterization. In April 2001, NEWMOA held a summit meeting with EPA and the states to learn more about each states program and examine how it might encourage or discourage the use of innovative technology, and to develop ideas for further work that would improve the quality of the site characterizations performed. In September 2001 a follow-on meeting was held to further develop the ideas that emerged from the April meeting, and additional activities are planned for 2002 as discussed at the conclusion of this research brief. The information obtained in preparing this brief has helped inform and focus the state/EPA discussions and the plans for future work.

To prepare this brief, NEWMOA researched the site cleanup statutes, regulations, guidance documents, and implementation policies in each state to determine if they contain language regarding environmental testing /monitoring. NEWMOAalso collaborated with state program managers to understand thesite investigation process in each state and identify the possible key interaction and decision points where there might be institutional barriers to the use of new site characterization technologies. This research brief examines the language contained in state environmental statutes, regulations, and guidance documents in each of the northeast states and outlines requirements to use specific measurement methods or technologies that could present a significant barrier to the acceptance and use of innovative site characterization technologies. The brief also highlights examples of language that is technology neutral or that could promote the use of innovative technology. The next sections outline NEWMOA’s findings regarding the site characterization process in each of the Northeast states along with steps that states are taking to mitigate the potential barriers that might exist.

Connecticut

A significant portion of the site characterization and remediation voluntarily undertaken by responsible parties in Connecticut is delegated to Licensed Environmental Professionals (LEPs)privatized, meaning that Department of Environmental Protection (DEP) is not directly involved in approving and overseeing the work. In Connecticut there are two formal voluntary cleanup programs, a property transfer program, and a state-ordered sites program each of which is described below.[3]

Connecticut General Statutes (CGS) Section 22a-133y: This voluntary program is an elective process by which environmental assessment and remediation of properties in areas which have a GB or GC ground water classification are performed by an Licensed Environmental Professional (LEP) hired by the responsible party. CGS 22a-133y requires the submission of a remedial action plan and remedial action report to the Commissioner. Voluntary remediation under 22a-133y has less DEP involvement than remediation under 22a-133x or the Property Transfer Program. Real property that has been subject to a spill must meet the following criteria in order to participate in this program:

  • the property is located in an area where groundwater is classified as GB or GC; and
  • the property is not subject to any order, consent order or stipulated judgement issued by the Commissioner regarding such spill.

CGS Section 22a-133x: This program gives owners of certain contaminated sites the option of entering a voluntary remediation program by submitting an Environmental Condition Assessment Form (ECAF) and a $2,000 review fee to the Commissioner. When DEP receives an ECAF, the Department decides whether to retain oversight of the project or to delegate oversight to an LEP hired by the responsible party.[4] If oversight is delegated to an LEP, a work plan and schedule for the investigation and remediation must be submitted, technical plans and reports related to the investigation and remediation of the parcel must be submitted annually, and a notice of any change to the schedule must also be submitted. However, DEP does not approve a submittal before the next phase of work is undertaken. This program can be utilized by owners of sites which are:

  • owned by a municipality, or
  • defined as establishments (sites subject to property transfer requirements) pursuant to CGS Section 22a-134, or
  • on the inventory of hazardous waste disposal sites maintained pursuant to CGS Section 22a-133c, or
  • located in a GA or GAA groundwater area.

Property Transfer Program (CGS 22a-134): Whenever an establishment is transferred, the parties involved must submit one of four forms to the DEP. Form I is for sites where no contamination is present and Form II is for sites where remediation is completed and approved by the DEP or verified by an LEP. Filing of Property Transfer Forms III or IV requires submission of a completed ECAF along with the appropriate fees. As with the 22a-133x program, DEP can decide to retain oversight of the project or to delegate oversight to an LEP.[5]

On average, the DEP receives about 130 ECAFs each year through the voluntary and property transfer programs, and has retained oversight at approximately 28 percent of those sites. LEP verifications may be subject to audit.

State-Ordered Sites: As mentioned above, DEP can choose to retain oversight authority at sites that come to its attention through the voluntary and property transfer programs.[6] DEP can also use its enforcement authority (CGS 22a-432) to require responsible parties to investigate and remediate sources of pollution that it becomes aware of through the voluntary programs, the Property Transfer Program, or other sources.[7] When a responsible party cannot be located, or the responsible party cannot or will not investigate and or remediate a site that poses a significant risk to public health and the environmente, the site may be addressed under the State Superfund program (CGS 22a-133a through j). For these sites, DEP uses state funds to pay one of its contractors to investigate and remediate the pollution at the site.

At virtually all state-ordered sites, a consultant develops the site characterization workplan(s) that DEP reviews and approves before the work begins. Generally, DEP is not directly involved with choosing the proposed investigative technique(s) and does not push consultants to try new methods. However, DEP encourages consultants to evaluate their data quality objectives and choose investigative techniques that will satisfy those objectives. When something innovative is proposed, the DEP project manager consults informally within DEP to determine whether the data will be of a quality that is appropriate for the purpose of the investigation. When something innovative is proposed, the DEP project manager consults informally within DEP to determine its appropriateness and the QA/QC that should be required. Generally, DEP reports that consultants do not propose many innovative techniques to DEP.

Regulations and Guidance: The DEP has issued a draft Site Characterization Guidance Document (June 12, 2000) that outlines the types of information that should be collected and evaluated in a site characterization. The document also highlights the various deficiencies DEP often encounters with site characterizations. This guidance is directed at the LEP community, but it applies to the consultants working at state-ordered sites as well. The guidance can be found on the Internet at The guidance promotes quality site characterization by advocating the Conceptual Site Model (CSM) approach, stating that "It is the process of developing and validating a CSM that is integral to the process of adequately characterizing the environmental conditions at a site." The sections detailing the components of a Phase I Assessment, a Phase II Investigation, and a Phase III Investigation specify a CSM approach, essentially stating that the resulting report should be the CSM for that point in the investigation.

DEP expects that the Phase II Investigation report will include a sampling rationale and information used to evaluate each Area of Concern (AOC) and characterize the extent and degree of contamination emanating from each AOC). The guidance does not specify the type of sampling or analysis that must be done. DEP states that they are open to the use of any method for which there is an adequate rationale and that can be backed up with quality assurance and quality control documentation. The guidance supports the use of on-site characterization techniques where that data is of a quality suitable for the purpose of the investigation. In particular, DEP recommends that the soil sampling program in a Phase III investigation "use field screening for dynamic real-time feedback to refine sampling location.". The guidance appears to support the use of on-site characterization techniques through this statement: "To conclude that at an AOC a release has occurred may require less sensitive data. Simple observations or field screening results may provide sufficient data for such a conclusion."

DEP expects that the Phase III Investigation report will include the data and rationale to support the conclusions reached. Again, the guidance does not specify the type of sampling or analysis that must be done and DEP states that they are open to the use of any method for which there is an adequate rationale and that can be backed up with quality assurance and quality control documentation, particularly to reach a conclusion that contamination is present and requires remediation. Under a Phase III Investigation, DEP recommends that the soil sampling program "use field screening for dynamic real-time feedback to refine sampling location."

Connecticut has Remediation Standard Regulations (RSRs)[8] that establish numerical criteria related to soil and groundwater that define the minimum performance standards that must be achieved through site remediation. A site must meet RSRs in order for the remediation to be considered complete. Thereforere, at all stages of the process, data collected to verify that a remediation is complete, data that is used to conclude that no release has occurred, and data that is used to conclude that contamination at an AOC is below RSR criteria, should use analytical protocols that provide the lowest practical detection limits using specific EPA test

methods or using methods approved by DEP.[9] In practice, data of this quality is achieved at state-certified analytical laboratories. However, field GC/MS data can be of a suitable quality and with appropriate QA/QC documentation has been used to document compliance with the RSRs. In the RSR, "analytical detection limit" is defined as:

"... the minimum concentration of a substance that can be quantified consistently and reliably using methods approved by EPA and which concentration shall be (A) for a substance in ground water, equal to or less than the ground-water protection criterion for such substance determined (i) for a sample of ground water in a GA area using analytical methods specified in subpart C of 40 CFR part 141 or (ii) for a sample of ground water in a GB area using methods established pursuant to "Test Methods for Evaluating Solid Waste: Physical/Chemical Methods", SW-846, U.S. Environmental Protection Agency, Office of Solid Waste, Washington D.C. 20460; or (B) for a substance in soil, equal to or less than the residential direct exposure criteria or the applicable pollutant mobility criteria, whichever is lower using methods established pursuant to "Test Methods for Evaluating Solid Waste: Physical/Chemical Methods", SW-846, U.S. Environmental Protection Agency, Office of Solid Waste, Washington D.C. 20460.”.

In practice, DEP expects that these types of samples are analyzed at a state-certified analytical laboratory. LEPs are certifying compliance with the regulations and therefore should use a state-certified analytical laboratory for these types of samples and analyses. However, there is a provision in the RSRs for the use of other test methods approved by the Commissioner.

Conclusions: DEP's draft Site Characterization Guidance Document is relatively new. The strong support in the guidance for a CSM and flexible/dynamic workplan approach should lead to the greater use of field-based analytical technologies for screening purposes. The RSR's specification of "methods approved by EPA" and "using methods established pursuant to "Test Methods for Evaluating Solid Waste: Physical/Chemical Methods, SW-846" makes the use of field-based analytical technologies to verify the completion of remediation, or for other definitive purposes highly unlikely. DEP reports that changing this aspect of the RSRs is also highly unlikely. However, the DEP is committed to streamlining and expediting the investigation and remediation of contaminated sites, including the consideration of alternative characterization approaches, and the DEP generally supports field based analytical technologies, particularly for screening purposes to better target more traditional sampling and analysis efforts DEP's draft Site Characterization Guidance Document strongly recommends that sites be investigated through the development and verification of a conceptual site model. The guidance also emphasizes the need for carefully evaluating data quality objectives for all stages of the investigation. Such an approach should lead to the greater use of field-based analytical technologies for screening purposes. The RSR's requirement to achieve the lowest quantifiable concentration using specific EPA methods or other methods approved by DEP makes the use of less sensitive field-based analytical technologies to verify the completion of remediation unlikely. However, the DEP supports field based analytical technologies for characterizing the distribution of pollutants on a site during the investigation, provided such techniques meet the data quality objectives.

Maine

Contaminated sites come to the attention of the Department of Environmental Protection (DEP) through real estate due diligence reporting or other mechanisms. Most sites have a cooperative responsible party who performs the characterization and remediation work and DEP reviews and approves all workplans and reports. For sites without a cooperative responsible party, the DEP often performs the assessment work with in house staff. Contractors are often used to perform many of the sub-tasks involved with the investigation such as providing direct-push technology, performing a geophysical investigation, or operating a mobile laboratory. Occasionally, the DEP contracts out the entire site characterization to a consulting firm. The work at all waste sites in Maine is performed or overseen by the DEP. At sites with a cooperative responsible party, a consultant develops the site characterization workplan(s) that DEP reviews and approves before the work begins. At these types of sites DEP is not usually not directly involved with choosing the proposed investigative techniques. At sites at which DEP is performing the work, DEP does attempt to use methods to reduce the time and cost of the project.

The Site Assessment and Support Services Unit holds regular staff meetings where site activities are discussed. When something innovative is proposed at a responsible party site, the DEP project manager consults informally within DEP to determine its appropriateness and the quality assurance/quality control (QA/QC) procedures and documentation that should be performed. When a fixed-site laboratory is not used for all samples, then the burden of proof is on the user to show that the method is accurate and defensible for the purpose intended. What is appropriate depends upon what the data is used for. Data used to certify that the cleanup is complete, or is used for risk assessment purposes, requires the highest standard of accuracy.

The DEP would like to see one main field characterization event at a site and supports the use of a flexible workplan in the field. DEP encourages the use of a field-based analytics for screening and deliniation purposes, with adequate fixed-site laboratory confirmation. DEP staff have extensive experience with the use of geoprobes for sampling and XRF for metals analysis. DEP reports that there has not been much use of immunoassay in Maine.