Brownfield Agreement Requirements And Procedures

Brownfield Agreement Requirements And Procedures. A. General Requirements (1) 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. (2) The Brownfield Agreement shall contain the following: (a) A description of the Brownfield Agreement Site sufficient to serve as a legal description of that Site, (b) A description of all remediation to be conducted on or under the Brownfield Agreement Site, including: (1) A description of specific areas where remediation is to be conducted; (2) The remediation method or methods to be employed; (3) The financial, technical and managerial resources that the Brownfield Party will make available; (4) A schedule of remediation activities; (5) Remediation requirements that are based on public health and environmental risks specific to the Brownfield Agreement Site; (6) A schedule for implementation and completion of the remediation; (7) Any land-use restrictions or engineering controls constituting any part of the remediation required by MCEQ; (8) A requirement that the Brownfield Party shall notify MDEQ at least fourteen (14) days prior to the date scheduled for any field work to provide MDEQ an opportunity to observe, inspect, and/or collect split samples; and (9) A plat which identifies any part of the Brownfield Property for which use is restricted. (c) The proposed uses of the Brownfield Agreement Site after all remediation required by MCEQ is complete. (d) A schedule for administration of the Brownfield Agreement by MDEQ. (e) Requirements, as deemed appropriate by MCEQ, for reporting on the progress of remediation conducted on or under the Brownfield Agreement Site. (f) Requirements as deemed appropriate by MCEQ for reporting on the status of the Brownfield Agreement Site following completion of all remediation including the status of the institutional controls, engineering controls and monitoring. (g) Any other provisions deemed necessary by MCEQ to implement the Brownfield Agreement. (3) Prior to approval of the Brownfield Agreement by the Commission, the Brownfield Party shall submit to MDEQ, on a form prescribed by MDEQ, a statement of consent signed by all owner(s) of interests in the Brownfield Property (other than the Brownfield Party) stating that such owners have read and understand the Brownfield Agreement and that they consent to the inclusion of their property interest in the Brownfield Agreement Site. (4) Prior to execution of the Brownfield Agreement, and with thirty days written prior notice to MDEQ, the applicant may withdraw the Brownfield Agreement application. The applicant shall be required to pay all costs associated with the processing of the Brownfield Agreement application prior to the effective date of withdrawal. Failure to pay all accrued costs shall subject the Brownfield Party to remedies contained in Mississippi Code Annotated Section 49-17-43. In addition, MCEQ may proceed with any and all remedies available to it with regard to the Brownfield Property and/or Brownfield Applicant. B. Risk-based Remediation Requirements and Land-use Restrictions. (1) 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. (2) 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. (3) The three procedures for determining risk-based remediation requirements follow: (a) Tier 1 Evaluation (1) The Tier 1 human health and environmental evaluation consists of comparing the maximum or high-end concentrations or Minimum Quantitation Limits (MQLs) (if results are presented as not detected [ND]) of site-related chemicals (Chemicals of Concern [CoCs]) in soil or sediment (and groundwater or leachate, as necessary) with chemical-specific Target Remediation Goals (TRGs) for the assessment of potential risks to humans. Human health TRGs, except for surface water TRGs, are presented in MDEQ’s Risk Evaluation Procedures developed for use with these regulations. The Tier 1 TRGs may either be used as “default” remediation goals or may be used as a screening tool that will trigger a Tier 2 Evaluation. (2) The Tier 1 ecological risk screen is performed to determine whether ecological receptors of concern are present and potentially impacted. If they are present and potentially impacted, a Tier 3 assessment of ecological risk shall be performed to assess the potential ecological impact. A Tier 1 Evaluation is applicable for Sites with no known ecological receptors of concern present. (b) Tier 2 Evaluation (1) 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: (i) comparing the UCL of the Mean for a CoC utilizing statistical methods to the Tier 1 TRGs, (ii) comparing EPCs to calculated background chemical concentrations, (iii) comparing EPCs to calculated regionally prevalent chemical concentrations, (iv) utilizing site-specific variables (i.e., exposure frequency, exposure duration, etc.) to calculate site-specific RGs, (v) eliminating or minimizing exposure to contaminants, (vi) conducting an analysis of Petroleum Hydrocarbons using TPH Fractioning, or (vii) other methods approved by MDEQ. (2) Statistical Methods - If the Brownfield Applicant can demonstrate to the satisfaction of MDEQ that the Upper Confidence Level (UCL) of the Mean for a CoC utilizing statistical methods is less than the Tier 1 TRG for that CoC, then the Brownfield Applicant shall have the option of using the UCL of the Mean instead of the highest concentration on-site using Tier 1 Methodologies. The Brownfield Applicant must demonstrate to the satisfaction of MDEQ that the data are statistically normal or can be statistically normalized. (3) Site Background - CoC concentrations may be compared to site background chemical concentrations to evaluate appropriate remedial actions at the Brownfield Agreement Site in accordance with MDEQ’s Risk Evaluation Procedures. To establish background chemical concentrations, the Brownfield Applicant may collect samples from locations 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. Sites where the concentrations of CoCs are at or below background chemical concentrations are subject to Rule 2.1.1(E)(5) and Rule 2.1.2(B)(5) of these Regulations. (4) Regionally Prevalent Chemicals - CoC concentrations may be compared to regionally prevalent chemical concentrations to evaluate appropriate remedial actions at the Brownfield Agreement Site in accordance with MDEQ’s Risk Evaluation Procedures. To establish regionally prevalent chemical concentrations, the Brownfield Applicant may collect samples from locations 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. Sites where the concentrations of CoCs are at or below regionally prevalent chemical concentrations are subject to Rule 2.1.1(E)(5) and Rule 2.1.2(B)(5) of these Regulations. (5) Site-Specific Variables - If the Brownfield Applicant can demonstrate to the satisfaction of MDEQ that site-specific variables (i.e., exposure duration, exposure frequency, moisture content, etc.) are more representative of site conditions than the default variables utilized in the development of the Tier 1 TRGs, the Brownfield Applicant may utilize site-specific variables to develop RGs for the CoCs. (6) Eliminate/Minimize Exposure Routes - If the Brownfield Applicant can demonstrate to the satisfaction of MDEQ that land- use restrictions and engineering controls at the site will eliminate all complete exposure pathways or will minimize contamination exposure to levels that will be protective of human health and the environment, MDEQ may determine that further remediation is not required. The Commission considers the presence of free product to be an unacceptable potential risk to public health and the environment because it is considered to be a continuing source of contamination that may increase the level of risk that is the basis for the remediation requirements, may reduce the margin of safety provided by the remediation design, or may jeopardize the permanence of the Brownfield Agreement. Therefore, free product must be removed unless it can be demonstrated to the satisfaction of MDEQ that removal of the free product is technically impracticable. The Applicant must also demonstrate to the satisfaction of MDEQ that the contamination is confined and will remain confined within the site boundaries. Any monitoring plan must be approved by MDEQ. (7) Tier 2 TPH Fractioning – For sites that do not meet the Tier 1 TPH TRGs, the Brownfield Party may either (i) conduct a more detailed evaluation of petroleum hydrocarbons using the methodology outlined in MDEQ’s Risk Evaluation Procedures or (ii) conduct another TPH risk evaluation of approved by MDEQ. (8) Other Approved Methods - MDEQ may approve other risk evaluation methodologies under Tier 2. (c) Tier 3 Evaluation (1) A Tier 3 Evaluation is a site-specific assessment of the baseline risk of the Site (risk posed by the Site without remediation) based on current EPA risk assessment guidance, specifically those published by the Office of Emergency and Remedial Response (Superfund program), the Risk Assessment Forum, and selected EPA Regional Offices. In this evaluation, an assessment of risk for all completed exposure pathways to humans and/or ecological receptors must be calculated. (i) Human Health Evaluation - For human health, the remediation goal (RG) for each individual contaminant which is a carcinogen must be calculated to attain a Risk Level of 10-6 (i.e.,1 in a million). For a systemic toxicant, the remediation goal 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. MDEQ may consider an alternative quantitative or qualitative remediation goal (RG) for each individual contaminant, provided the Applicant can demonstrate to the satisfaction of MDEQ that the attainment of a Risk Level of 10-6 for each individual carcinogenic contaminant or a total hazard quotient of not more than 1 for each individual systemic toxicant is technically impracticable, except with regard to a background chemical concentration or a regionally prevalent chemical concentration. In no event, except with regard to background chemical concentrations, may either the cumulative (total) site carcinogenic risk exceed 1 x 10-4 for carcinogenic CoCs or the site hazard index (summation of hazard quotients) exceed 3 for non-carcinogenic CoCs affecting the same organ or organ system. (ii) Ecological Evaluation - For the assessment of ecological risk, the maximum or high-end soil, sediment, or surface water data must be compared with threshold or benchmark values for the protection of the ecological receptors of concern. The Brownfield Applicant must demonstrate either that the concentration of the affected media is below the threshold or benchmark values or that the hazard quotient for the individual CoCs is below 1 utilizing the quotient method. (2) Risk-based remediation goal - The risk-based remediation goal (RG) may be qualitative or quantitative. A qualitative RG involves the exclusion of exposure pathways by engineering controls. A quantitative RG involves calculating the maximum numerical CoC(s) concentration in a medium which would not exceed the acceptable baseline risk at the exposure point. The numerical risk- based RG may be adjusted upward or downward depending on risk management considerations as approved by the MDEQ. (3) Free Product - Free Product refers to the presence of a hazardous substance or an environmental pollutant in the environment as a floating or sinking non-aqueous phase liquid. Free Product is considered present if measurable using best available technologies or if the concentration of the chemicals of concern in groundwater or soils is at or above the solubility limit for all chemicals or soil saturation limit for all chemicals with a melting point less than 30 degrees Celsius. On a site-specific basis, MDEQ may require either the effective solubility or the aqueous solubility to be utilized. Free product must be removed from the Brownfield Agreement Site, unless it can be demonstrated to the satisfaction of MDEQ that removal of the free product is: (i) technically impracticable and that (ii) the contamination is confined and will remain confined within the site boundaries. (4) Historical data - Historical data approved by MDEQ may be submitted in lieu of collecting new data provided the Site characterization data requirements are summarized and presented in accordance with the Site Characterization Work Plan and Report Formats and the data was collected in a manner consistent with appropriate sampling protocols. All detailed information must be referenced in the reports including sampling protocols. In any event, relevant historical Site characterization reports shall be submitted with the application. (5) Site Conceptual Exposure Model (SCEM) - The Brownfields Applicant must complete a BASELINE SCEM and a REMEDIAL SCEM on the forms prescribed by MDEQ as described in MDEQ’s Risk Evaluation Procedures. (6) Petroleum Hydrocarbons - Brownfield Agreement Sites impacted with petroleum compounds must assess the area(s) and media of impact for petroleum hydrocarbon compounds (e.g., benzene, toluene, ethylbenzene, total xylenes, and polynuclear aromatic hydrocarbons). In areas where the concentration of these constituents cannot be determined due to dilution, and/or interference, the Brownfield Applicant may either; (i) use the petroleum hydrocarbon methodologies as established in MDEQ’s Risk Evaluation Procedures or (ii) another TPH risk evaluation methodology approved by MDEQ. (7) Land-Use Restrictions - Before conducting the risk-based evaluation and/or corrective action, if applicable, land-use for the Brownfield Agreement Site shall be proposed by the Applicant, in consultation with MDEQ, as either restricted or unrestricted. (i) Unrestricted land-use - The unrestricted land-use designation is available to property with contaminant concentrations at or below the Tier 1 table concentrations (provided in MDEQ’s Risk Evaluation Procedures) for unrestricted land-use. (ii) Restricted land-use - Brownfield Property that has contaminant concentrations that exceed the unrestricted contaminant concentration values in the Tier 1 table provided in MDEQ’s Risk Evaluation Procedures are classified as restricted. A Brownfield Agreement regarding restricted property must require the creation of a land use restriction referenced in the Brownfield Agreement and in the deed notice, entitled the Notice of Brownfield Agreement Site. The Brownfield Agreement, any required Consent Forms, and the Notice of Brownfield Agreement Site must be filed by the Brownfield Party in the appropriate county courthouse. The Notice of Brownfield Agreement Site must identify the contaminant(s) present at the Site above the Tier 1 table for unrestricted land-use, the media affected, and delineate the vertical and horizontal extent of the contaminant(s) on the Brownfield Property. If the contaminant(s) concentration is at or below the Tier 1 table concentration for restricted land-use, or at or below the site-specific Tier 2 or Tier 3 calculated concentration for restricted land-use, specific restrictions including, but not limited to, property access, property use, or property activities (with an acceptable human exposure duration) shall be stated in the Notice of Brownfield Agreement Site. In addition, the description, location, and maintenance, if applicable, of any engineering controls shall be included in the Notice of Brownfield Agreement Site.