Type: Law Bulletins
Date: 01/27/2020

Is IDEM Leaving Unsafe Levels of Contamination in Place to Protect the Excess Liability Trust Fund?

At the last Consultants’ Day conference, the Indiana Department of Environmental Management’s (IDEM) Petroleum Branch Chief was asked, why is IDEM allowing sites with 5,000 to 10,000 parts per billion of benzene in groundwater to remain in place without further remediation?

The question was alarming because benzene is a known human carcinogen. It has no known safe level of exposure. And by comparison, the screening level (and also closure level) for benzene in groundwater is five parts per billion under the IDEM Remediation Closure Guide.

One part per billion is the equivalent of one drop from an eyedropper into a 10,000-gallon swimming pool. So now imagine that your local gas station has 10,000 parts per billion of benzene in the groundwater. Depending on the location of the contaminated groundwater, this amount of benzene contamination could pose a risk of entering into overhead buildings as harmful vapors or entering into utility corridors and migrating into offsite homes, offices and other buildings.

The consultants participating in the conference made it sound like IDEM was choosing to leave unsafe levels of contamination in place to protect the Excess Liability Trust Fund (the Fund). As IDEM describes it, the Fund “is a dedicated state trust fund that serves as a financial responsibility mechanism for underground storage tank (UST) owners and operators. It provides their federally mandated financial assurance and a source of money to pay for cleanup or compensate third parties for any injuries or damages associated with releases from regulated USTs.” The money in the Fund is derived from fees paid by the UST owners and operators, who are the very people relying on the Fund to pay for cleanups.

So why would IDEM close sites where the concentration of benzene in groundwater is 1,000 to 2,000 times greater than the state’s permitted closure level rather than spend the money needed to clean up the sites?

IDEM’s response was that “House Enrolled Act 1162 codified risk-based remediation and closure of contaminated or potentially contaminated sites. Relatively high levels of a contaminant can remain in place if there is not an unreasonable threat of exposure to human health or the environment. Evaluation of risk is based on the known contaminants and the assessment of exposure pathways. As directed by the Indiana Legislature, IDEM cannot demand a party perform corrective action if there is no exposure to the contaminant, any exposure is mitigated, and/or future exposure [is] prevented by institutional controls, such as an ERC.” (Dec. 18, 2019 letter from IDEM Petroleum Branch Chief John Morris to Indiana Environmental Consultants Coalition.)

The term “ERC” is shorthand for an Environmental Restrictive Covenant. A commercial property owner might ask IDEM to forgo a demand for a more expensive cleanup in exchange for recording a covenant in which the owner agrees that the property will not be used in the future for residential purposes and that the groundwater will not be used for drinking, gardening or other prohibited purposes. The covenant gets recorded and runs with the land to limit the actions of future owners.

During the same Consultants’ Day conference, someone asked whether IDEM had a new policy of allowing sites that have benzene groundwater contamination at concentrations greater than the tap water concentration of five parts per billion — both onsite and offsite — to be closed without the filing of ERCs, as appears to have happened in several recent cases.

IDEM’s response was that “There is no new ‘policy’ for closure with/without ERCs. As has been the case in the past, the process and determination for whether an ERC is required is based on risk-based corrective action. [Responsible parties] (and off-site properties) may have been more willing to place ERCs on their parcels in order to achieve [No Further Action] in the past, but if a party does not wish to place the ERC on their parcel and it is not necessary to control the risk at the site, then the site can close without one. The tap groundwater screening level is based on actual ingestion and therefore only applies if someone is drinking the water or there is a risk one could ingest it in the future. Therefore, for a party on municipal water with no private source, the risk of that exposure pathway being incomplete is significantly reduced and we may evaluation for closure without the ERC, for instance. It is not the sole component, but it is a component.”

Having spoken with other environmental attorneys and consultants, we’re unaware of any site where IDEM has issued a no further action order to a private party paying for a cleanup out of pocket or through insurance where the contamination levels are 1,000 to 2,000 times greater than the closure levels, even when an ERC is offered as part of the remedy. Indeed, some consultants said that IDEM routinely requires private parties to spend two or three times as much money to close sites in comparison to what IDEM pays to close sites where IDEM is paying for the cleanup with money from the Fund.

Because IDEM is leaving such high concentrations of benzene groundwater contamination in place for cleanups subject to the Fund, people who live and work adjacent to gas stations undergoing cleanups should ask IDEM questions like what are the cleanup goals, how much contamination will be left after IDEM closes the site in comparison to the screening levels and will the remaining contamination poses any risk to human health or the environment. For their part, gas station owners who paid into the Fund and thought their properties would be cleaned up adequately through the Fund are being left with properties that are less marketable than sites undergoing more stringent cleanups.

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