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U.S IDEM Interim Implementation Document Clarifies Impact of House Enrolled Act 1162 on Remediation and Closure of Contaminated Sites

02.01.2010

On December 7, 2009 the IDEM released the House Enrolled Act (“HEA”) 1162 Interim Implementation Document (“Implementation Document”). According to the IDEM, the Implementation Document is intended to be a bridge between the existing Risk Integrated System of Closure (“RISC”) 2001 Technical Guide and a revised Technical Guide currently under development.

On July 1, 2009, HEA 1162 became effective and amended several statutes governing Indiana’s remediation programs including the Voluntary Remediation Program (“VRP”), the State Cleanup Program, the Leaking Underground Storage Tank Program, the Excess Liability Trust Fund, and actions taken pursuant to the Resource Conservation and Recovery Act. Generally, under the provisions of HEA 1162, the IDEM: (1) must consider as valid approaches to site closure remedies that manage risk and control existing or potential exposure pathways; (2) will approve remedies that are effective in mitigating risks; and (3) will not rely on fixed risk-based remediation objectives but will consider site-specific conditions that may lead to several possible closure scenarios.

The Implementation Document discusses the IDEM’s interpretation of HEA 1162’s impact on a variety of components of site remediation and closure including the following:

• Soil and Groundwater Investigations
The Implementation Document provides that the IDEM must consider the remediation objectives when evaluating the adequacy of nature and extent investigations. For soils, depending on site-specific circumstances, the IDEM may not require delineation of on-site soil contamination to residential closure levels at commercial/industrial sites. For groundwater, depending on site-specific circumstances, the IDEM may not require delineation of groundwater contaminants within an area of exposure control to residential levels if it can be reasonably inferred that contaminants will not migrate beyond the area of exposure control at concentrations exceeding the residential closure levels and the groundwater is not used as a potable water source.

• Unconditional Site Closures
Under the Implementation Document, unconditional site closure may be available for sites where non-permanent remedies are used. Proposed remedies will be evaluated for effectiveness. For soils, such an evaluation will consider the following: (1) confirm that there is no current exposure to impacted soil; (2) evaluate the potential for vapor intrusion if constituents are volatile; (3) evaluate contaminant fate and transport; (4) demonstrate ability to prevent exposure to contamination; and (5) consider financial assurance where appropriate (long-term obligations). For groundwater, such an evaluation will consider the following: (1) confirm that there is no current exposure to impacted groundwater; (2) demonstrate the ability to control access to the contaminant plume; (3) evaluate the potential for vapor intrusion if constituents are volatile; (4) evaluate preferential pathways; (5) conduct a susceptible area evaluation; and (6) consider financial assurance where appropriate (long-term obligations).

• Closure of Sites Impacted by Free Product
According to the Implementation Document, HEA 1162 impacts how the IDEM grants conditional site closure where free product is present. For sites impacted by free product, responsible parties will not be required to remove free product to the extent practicable in all circumstances and the IDEM must consider a risk-based approach when evaluating free product.

• Use of Environmental Restrictive Covenants (“ERCs”)
HEA 1162 revised the ERC definition and limited the IDEM’s authority to approve ERCs. Under the revised definition, ERCs must include the following additional provisions: (1) grant the IDEM access to the subject land; (2) require notice to a transferee of the land or an interest in the land of the existence of the ERC; and (3) identify how relevant files at the IDEM may be located. In addition, ERCs are no longer subject to IDEM approval in their entirety. Instead, the IDEM has the limited authority to: (1) approve or disapprove the use or activity restrictions contained in ERCs; (2) review ERCs to determine if they meet the statutory definition of a restrictive covenant; and (3) for certain properties (existing or former hazardous waste facilities and CERCLIS-listed sites) require an owner to record an ERC on the property if the IDEM determines one is necessary to protect human health and the environment. According to the Implementation Document, the IDEM will continue to provide ERC templates and will require copies of recorded ERCs be provided if a responsible party intends to rely on an ERC to obtain site closure.

• Use of Environmental Restrictive Ordinances (“EROs”)
HEA 1162 provides a definition of EROs and requires the IDEM to consider and give effect to EROs in evaluating risk-based remediation proposals. According to the Implementation Document, the IDEM will review EROs individually for effectiveness as institutional controls at each site upon which the use of an ERO is proposed as part of a risk-based remediation.

• Covenants Not to Sue and No Further Action Letters
Prior to the enactment of HEA 1162, the IDEM Voluntary Remediation Program (“VRP”) would not grant site closure, and would not issue a Covenant Not to Sue or No Further Action Letter, to applicants where the selected remedy involved ongoing obligations. Based on provisions added to the Voluntary Remediation Program statute under HEA 1162, the IDEM may include in a Covenant Not to Sue or No Further Action Letter conditions that must be performed or maintained after issuance of the certificate or covenant.

General questions regarding Implementation Document may be directed to Jeff Sewell, Section Chief, Office of Land Quality, Science Services Branch at (317) 234-1000. Questions related to the application of the Implementation Document to specific remediation sites should be directed to the IDEM project manager assigned to the project.

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