TITLE 329 SOLID WASTE MANAGEMENT BOARD

CONTINUATION OF FIRST NOTICE OF COMMENT PERIOD

LSA Document #08-422

The Indiana Department of Environmental Management (IDEM) solicited public comment at DIN: 20080611-IR-329080422FNA on new rules at 329 IAC 17 for use in the assessment, cleanup, and closure of contaminated soil, sediments, and water. Due to extensive public interest, the IDEM is extending the 30 day comment period as stated at the end of this notice. The IDEM is also clarifying the language to where it is now shown in items 12(a), 12(b), 12(c), and 12(d) of this notice regarding demonstration of impracticability and the expectation for cleanup to risk-based levels, as well as adding language to include the Office of Enforcement (OE) to the list of areas of the department that may use the proposed rule. IC 13-18-17-5 is added to the authority line.

This rulemaking would establish consistent general standards, goals, and expectations under which the assessment, cleanup, and closure of contaminated soil, sediments, or water can be performed. Property owners or other persons responsible for the release of contaminants (defined in IC 13-11-2-42) are required, by various IDEM programs, to take steps to clean up the contaminants and to prevent harm to human health or the environment. Indiana law provides that contamination be cleaned up to background or naturally occurring levels or to risk-based levels. Risk-based levels are centered on reducing the contaminants to a level of exposure that ensures the health and safety of the population. The IDEM currently provides a framework for risk-based environmental assessments and closure in the Risk Integrated System of Closure (RISC) nonrule policy document.

Rules will be based on environmental risk assessment principles to assure that sites are cleaned up or, if cleanup to risk-based closure levels is impracticable, closed with controls or restrictions such as land or water use restrictions so as to meet a level of exposure to remaining contaminants that assures continued protection of human health and the environment. Consistent with the charge of IC 13-12-3-1, the expectation will be for cleanups that provide for the most beneficial use of the air, land, and water resources of Indiana.

Approximately 30 other states have rules regarding risk-based assessment, cleanup, and closure of contaminated sites.

The Indiana rules for risk-based remediation and closure would be used, to varying degrees, by the following programs that provide oversight and closure approval for such industrial, commercial, or residential sites:

(1) Voluntary Remediation Program (VRP).

(2) Leaking Underground Storage Tanks (LUST).

(3) State Cleanup.

(4) Brownfields.

(5) Superfund.

(6) Defense Environmental Restoration Program (DERP).

(7) Hazardous Waste Closure and Corrective Action (Resource Conservation and Recovery Act (RCRA)).

The proposed rules would also be used by the IDEM's OE in appropriate cases.

Utilization of environmental risk assessment methodology provides flexible approaches and encourages creative solutions for site cleanup. When the various IDEM programs utilize a risk-based closure system, the opportunity for consistent decision making throughout the IDEM programs is maximized.

These rules will include topics that will continue to be addressed in detail in guidance documents issued by the department. The IDEM anticipates the rulemaking will address the following:

(1) Definitions of critical terms.

(2) Applicability of the rules to the existing IDEM programs.

(3) Transition into rules; transition from guidance to rules.

(4) Program specific triggers that cause a site to become subject to the rules.

(5) General requirements for, and applicability of, environmental site assessment activities including presampling, site screening, and determining nature and extent of contamination.

(6) Requirements for timely response actions to mitigate hazards in situations where contamination may pose an imminent and substantial threat to public safety, human health, or the environment.

(7) Risk-based methodology for calculating contaminant-specific closure levels; default versus site-specific closure levels; land use-specific closure levels; and applicability of closure levels.

(8) Required submittals to the IDEM.

(9) Requirements for the specified submittals to the IDEM, including completeness, time frames, and reasons for rejection; reporting requirements and site activity notifications.

(10) Requirements for environmental sampling and reports regarding sampling.

(11) Circumstances under which submission of a community relations plan would be required.

(12) Requirements for addressing contamination that exists as source material or in excess of risk-based levels. "Source material" refers to material that includes or contains hazardous substances, pollutants, or contaminants that act as a reservoir for migration of contamination to ground water, to surface water, to air, or acts as a source for direct exposure. "Risk-based levels" refers to residential, industrial, or recreational default or site-specific closure levels as appropriate considering the land use. These requirements may include:

(a) Requirements for submittals to the IDEM related to selection of remedial alternatives, remediation plans, and technical impracticability demonstrations.

(b) Criteria for the approval or denial of proposed remediation plans consistent with the IDEM's expectation that, to the extent practicable, source material and contamination that exceeds risk-based levels will be addressed, in preferential order, by removal or treatment, containment, engineering controls, and institutional controls, such as environmental restrictive covenants.

(c) Prohibition of use of institutional controls as the sole remedial alternative to address contamination in excess of risk-based levels unless removal, treatment, and engineering controls are impracticable.

(d) General criteria for the IDEM to apply in determining if a remedial alternative is impracticable.

(13) Standards for the IDEM to apply in approving or denying requests for closure and the various related mechanisms for documenting closure and imposing any conditions of closure such as land use restrictions or engineering controls to prevent human exposure to contaminants.

(14) Requirements for post-closure reporting, monitoring, inspection, certification, maintenance, and financial assurance to prevent human exposure to contaminants, for sites that have closed with an environmental restrictive covenant or other controls.

(15) Credential or experience requirements for persons completing work or preparing submittals related to assessment, cleanup, and closure.

Alternative 1. Putting the department's general risk-based closure standards into rule.

Alternative 2. Continuing to use guidance for clean up and closure of contaminated sites.

There is no comparable federal law.

Potential fiscal impact of all alternatives: There is no fiscal impact to the regulated community with this rulemaking. The cleanup and closure of contaminated soil, sediments, and water is already statutorily required by the programs that utilize RISC. This rulemaking establishes consistent general standards, goals, and expectations under which these assessments, cleanups, and closures can be performed.

The IDEM established a compliance and technical assistance (CTAP) program under IC 13-28-3. The program provides assistance to small businesses and information regarding compliance with environmental regulations. In accordance with IC 13-28-3 and IC 13-28-5, there is a small business assistance program ombudsman to provide a point of contact for small businesses affected by environmental regulations. Information on the CTAP program, the monthly CTAP newsletter, and other resources available can be found at:

www.in.gov/idem/compliance/ctap/index.html

Small businesses affected by this rulemaking may contact the Small Business Regulatory Coordinator:

Alison Surface

IDEM Compliance and Technical Assistance Program - OPPTA

100 North Senate Avenue, MC 60-04

Indianapolis, IN 46204-2251

(317) 234-1191 or (800) 988-7901

ctap@idem.in.gov

The Small Business Assistance Program Ombudsman is:

Megan Tretter

IDEM Small Business Assistance Program Ombudsman

MC 50-01 – IGCN 1301

100 North Senate Avenue

Indianapolis, IN 46204-2251

(317) 234-3386

mtretter@idem.in.gov

The IDEM will establish a workgroup with representation from all interested persons to address the issues presented by this rulemaking. If you are interested in participating, please contact Lydia Kuykendal, Rules, Outreach, and Planning Section, Office of Land Quality at (317) 234-5345, or (800) 451-6027 (in Indiana).

IC 13-14-8-4 requires the board to consider the following factors in promulgating rules:

(1) All existing physical conditions and the character of the area affected.

(2) Past, present, and probable future uses of the area, including the character of the uses of surrounding areas.

(3) Zoning classifications.

(4) The nature of the existing air quality or existing water quality, as the case may be.

(5) Technical feasibility, including the quality conditions that could reasonably be achieved through coordinated control of all factors affecting the quality.

(6) Economic reasonableness of measuring or reducing any particular type of pollution.

(7) The right of all persons to an environment sufficiently uncontaminated as not to be injurious to human, plant, animal, or aquatic life or to the reasonable enjoyment of life and property.

At this time, the IDEM solicits the following:

(1) The submission of alternative ways to achieve the purpose of the rule.

(2) The submission of suggestions for the development of draft rule language.

(3) The submission of comments on the fiscal impact of this rulemaking.

Mailed comments should be addressed to:

#08-422(SWMB) (Risk-based closure Rulemaking)

Marjorie Samuel

Rules, Outreach, and Planning Section

Office of Land Quality, MC 65-45

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, Indiana 46204-2251.

Comments may be submitted by facsimile at the IDEM fax number: (317) 232-3403, Monday through Friday, between 8:15 a.m. and 4:45 p.m. Please confirm the timely receipt of faxed comments by calling the Rules, Outreach, and Planning Section at (317) 232-7995.

Comments must be postmarked, faxed, or hand delivered by September 12, 2008.

Additional information regarding this action may be obtained from Lydia Kuykendal, Rules, Outreach, and Planning Section, Office of Land Quality, (317) 234-5345, or (800) 451-6027 (in Indiana).

Bruce H Palin

Assistant Commissioner

Office of Land Quality

DIN: 20080813-IR-329080422FCA

Composed: May 02,2024 3:39:55AM EDT

A PDF version of this document.