Hot Environmental nm nt Issues for Defense Communities

Transcription

1 Environmental Update

2 Hot Environmental nm nt Issues s for Defense Communities

3 SPEAKERS Mr. Chris Wendelbo, J.D., LL.M., The Session Law Firm Ms. Shawna Bligh, J.D., LL.M., The Session Law Firm Mr. Jeffrey A. Bolin, M.S., CHMM, Vice President - Technical Operations, The Dragun Corporation Mr. Steve Rinne, P.E., Business Development Officer, Port Authority of Kansas City

4 Agenda EPA Priorities for FY2010 FY 2011 Vapor Intrusion New Construction/Development Storm water Effluent Guidelines Building/Demolition Issues CERCLA-Related Issues Redevelopment Site Coordination Discussion/Question & Answer

5 MANAGING REDEVELOPMENT OF MILITARY PROPERTY Seeing is no longer believing

6 MANAGING A REDEVELOPMENT OF MILITARY PROPERTY What is the potential of the land?

7 MANAGING REDEVELOPMENT OF MILITARY PROPERTY It depends Not so much on what we see or what we believe to be true It is what we know based on data and current regulations.

8 EPA Priorities riti for FY

9 Renewed Focus on Environmental Issues Obama Administration has renewed focus on environment and environmental matters. EPA Budget increased by 34% to $10.5 billion largest in EPA s 39-year history Result = Increased regulatory focus and increased enforcement activities. Among the EPA priorities that impact LRA s are: Taking Action on Climate Change: Using the Clean Air Act, EPA focused on mobile source rules. EPA will continue to focus on reducing GHG emissions from large stationary sources like power plants.

10 FY 2011 Environmental Priorities Improving Air Quality: EPA developing a comprehensive strategy for strengthen our ambient air quality standards for pollutants such as PM, SO2 and NO2. Improved monitoring, permitting and enforcement will be critical building blocks for air quality improvement. Protecting America s Waters: America s waterbodies are imperiled as never before. Water quality and enforcement programs face complex challenges, from nutrient loadings and stormwater runoff, to invasive species and drinking water contaminants. EPA has initiated measures to address post- construction runoff and stronger drinking water protection.

11 FY 2011 Environmental Priorities Take actions over the next two years to improve water quality, initiating review of at least four drinking water standards, and increasing the percentage of Clean Water Act discharge permit enforcement actions from 20 percent to 25 percent for discharges into impaired waterways. Initiate 20 enhanced brownfields community-level projects that will include a new area-wide planning effort to benefit under-served and economically disadvantaged communities.

12 FY 2011 EPA Enforcement Priorities Air Toxics Environmental Justice Community Based Approach Mineral Processing Municipal Infrastructure New Source Review/Prevention ention of Significant nt Deteriorationtion Resource Conservation and Recovery Act (RCRA) Enforcement Resource Conservation and Recovery Act (RCRA) Financial Assurance Surface Impoundments Wetlands Worker Protection Standards)

13 Legal / Regulatory / Technical Overview

14 Hot Issues Vapor Intrusion New Construction/Development Storm Water Effluent Guidelines Building/Demolition Issues CERCLA-Related Issues

15 VAPOR INTRUSION What is Vapor Intrusion and How Does it Happen? Regulation of Vapor Intrusion Vapor Intrusion Guidance Managing Vapor Intrusion Conditions ( VICs )

16 What is Vapor Intrusion? Vapor intrusion is the migration of volatile chemicals from the subsurface into overlying buildings. See OSWER Draft Guidance for Evaluating the Vapor Intrusion to Indoor Air Pathway from Groundwater and Soils (Subsurface Vapor Intrusion Guidance).

17 How Does Vapor Intrusion Happen? How Does it Happen? What Are Some Factors?

18 Vapor Intrusion Plumes can be Large Potential Impact to: Existing Buildings New Construction Building Use

19 Regulation of Vapor Intrusion Multiple Sources of Regulation OSHA EPA State Regulations

20 Vapor Intrusion Guidance Environmental Protection Agency ( EPA ) OSWER Draft Guidance for Evaluating the Vapor Intrusion to Indoor Air Pathway from Groundwater and Soils (Subsurface Vapor Intrusion Guidance Interstate Technology & Regulatory Council ( ITRC ) Vapor Intrusion Pathway: A Practical Guide (VI-1, 2007), and a companion document, Vapor Intrusion Pathway: Investigative Approaches for Typical Scenarios (VI-1A, 2007). Department of Defense ( DOD ) Vapor Intrusion Handbook ASTM International E Standard Practice for Assessment of Vapor Intrusion into Structures on Property Involved in Real Estate Transactions

21 Managing Vapor Intrusion Conditions How Do You Evaluate It? Johnson-Ettinger Model

22 Managing Vapor Intrusion How Do You Evaluate It? Sub-slab Sampling

23 Managing Vapor Intrusion Conditions How Do You Evaluate It? Sub-slab Sampling

24 Managing Vapor Intrusion Conditions Summa Canisters How Do You Evaluate It? Indoor Air Sampling Be Aware of Changing Criteria Tedlar Bags

25 Managing Vapor Intrusion Conditions How Do You Deal With It? Vapor Barrier Seal Floors Passive venting systems Active venting systems HVAC adjustments

26 How Do You Deal With It? How Do You Deal With It? Clean It Up

27 Hot Issues Vapor Intrusion New Construction/Development Storm Water Effluent Guidelines Building/Demolition Issues CERCLA-Related Issues

28 Storm Water Why is it Regulated? Aquatic Impacts Waterway Blockage

29 Storm Water Fines! Panama City, FL., West Bay, Sep. 19, 2009 The Department of Environmental Protection is fining Phoenix Construction $1.7 million for environmental permit violations at the new airport under construction near West Bay. N. Idaho developers fined for storm water violations, February 11, 2010 Nearly $45,000 in storm water violations fines has been levied against seven Idaho developers

30 Storm Water Effluent Limitations it ti Guidelines and Standards d for the Construction and Development Published on December 1, 2009 Effective February 2010 Penalties $32, 500 per day per violation EPA estimates proposed rule would cost $1.9 billion dollars per year

31 Storm Water Disturbance of one or more acres required to use best management practices (BMPs). Owners and operators of regulated sites have discretion to choose BMPs that will minimize the discharge of pollutants based on the characteristics of the particular site. National Menu of Best Management Practices for Stormwater Phase II ( Sediment Control, Example:»1. Brush Barrier, Compost Filter Berms, Compost Filter Socks, Construction Entrances, Fiber Rolls, Filter Berms, Sediment Basins and Rock Dams, Sediment Filters and Sdi Sediment Chambers, Sediment Sdi Traps, Silt Fences, Storm Drain Inlet Protection, Straw or Hay Bales, and/or Vegetated Buffers.

32 Storm Water Disturbance of twenty (20) or more acres required to comply with the monitoring requirement and the numeric effluent limitation Effective August 2011 Turbidity cannot exceed 280 Nephelometric Turbidity Units ( NTUs ). Disturbance of ten (10) or more acres at one time Effective February 2014 Must also comply with monitoring requirement and effluent limitations

33 Storm Water The Way it Is (Was) SWPPP Silt Fence Inspections

34 Storm Water What Will It Be? What it was plusl Controlled Water Flow and Capture Retention Basins Sampling and Reporting

35 Hot Issues Vapor Intrusion New Construction/Development Storm Water Effluent Guidelines Building/Demolition Issues CERCLA-Related Issues

36 Building/Demolition Issues Asbestos Lead-Based Paint PCBs Mercury Chemical Storage Waste Disposal Sewers Security Notifications

37 Building/Demolition l Issues Lead-Based Paint, as Example October 28, 2009: EPA issues proposed revisions to the 2008 Lead Renovation, Repair and Painting i Rule ( LRRP ). Intended to further increase protections for children and their families from lead-based paint hazards associated with home renovation and repair. Proposed rule would expand the coverage of the LRRP by eliminating the opt-out provision. Proposed rule would also require renovation firms to supply a copy of the records demonstrating compliance with the training and work practice requirements of the LRRP rule to the owner and/or occupant of the building being renovated. Comment period for the proposed revisions ended on November 27, 2009.

38 Hot Issues Vapor Intrusion New Construction/Development Storm Water Effluent Guidelines Building/Demolition Issues CERCLA-Related Issues

39 CERCLA Section 120(h) of CERCLA Defenses to CERCLA Liability Brownfields Program

40 CERCLA Section 120(h) of CERCLA Applies to Property Transferred by Federal Agencies Governs Sales or Other Property Transfers (e.g. Leases) To the extent known, the Federal Agency Must Notify Recipient of Type and Quantity of Hazardous Substances stored, released or disposed of at the property, including the time of storage, release or disposal

41 CERCLA Section 120(h), Continued Deed transferring property must contain: Notice of Type and Quantity of Hazardous Substance; Time at which such storage, release or disposal took place; Description of remedial action taken, if any Covenant warranting: All remedial action necessary to protect human health and environment has been taken before the date of transfer (subject to deferral ); and Any remedial action necessary after transfer will be conducted by the U.S. No covenant requirement for transfer of property p to PRP No covenant requirement for lease transfers Clause granting U.S. access to property to conduct further remedial or corrective action

42 CERCLA Defenses to CERCLA Liability Section 107(b) Release or Threat of Release of Hazardous Substance Were Caused By: Act of God; Act of War; Act or Omission of Third Party» Other than employee or agent of defendant; or» Act or omission i occurs in connection with contractual t relationship.

43 CERCLA Small Business Liability Relief and Brownfields Revitalization Act Landowner Liability Protections (LLPs) Bona Fide Prospective Purchaser- may purchase property with knowledge of contamination Contiguous Property Owner - must have no knowledge or reason to know of contamination Innocent Purchaser - must have no knowledge or reason to know of contamination

44 CERCLA At Time of Acquisition, Must Undertake All Appropriate Inquiry (AAI) Satisfaction of AAI: Standards and Practices for All Appropriate Inquiries ( AAI Rule ) Effective November 1, 2006 Found at 40 CFR Part 312 Codifies federal environmental due diligence standards and practices for AAI Must be followed by persons seeking CERCLA Landowner Liability Protections (LLPs) and those receiving federal Brownfields grants Satisfy AAI by performing Phase I Environmental Site Assessment pursuant to ASTM E

45 CERCLA ASTM E , Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process The scope of the Phase I ESA will include: Interview with the User of the Phase I ESA report and review of User provided information A historical review of the property and adjoining properties back to 1940 or first known development, whichever is earlier A review of Standard Environmental Record Sources from Local, State and Federal Agencies within the ASTM Approximate Minimum Search Distances Site reconnaissance of the property and observations of the neighboring properties.

46 CERCLA Interviews with current and historical owners and occupants of the property p and adjoining i properties p (if applicable) abl A review of previous environmental assessments completed for the Subject Property, if available Preparation of a written report that includes an executive summary, findings, opinions, conclusions and supporting documentation Results of the Phase I ESA will conclude either: That no RECs are present; therefore no further inquiry is necessary; or That RECs are identified, which require further inquiry to evaluate the RECs and determine whether they have actually impacted the Subject Property» Further inquiry could be completing a Phase II ESA (soil and/or groundwater sampling and analysis) or obtaining additional documentation.» New version of the ASTM Phase II is in Development

47 Redevelopment Coordination n

48 Richards-Gebaur As Received

49 Building/Site Issues

50 Building/Site Issues

51 Building/Site Issues

52 Building/Site Issues

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54 Building/Site Issues

55 Process Flow Diagram Legend: Yellow = Existing Agreements Purple = Transaction documents/actions Blue = Conditions of Closing KANSAS CITY, MISSOURI PORT AUTHORITY/ INTERMODAL GATEWAY TRANSACTIONS 1. Economic Development Conveyance Agreement (EDCA) [2005] 2. Quit-Claim Deed (2005) 3. Bill of Sale (2005) 1. Leases 2. Amendments to Leases Tenant 1. Environmental Services Cooperative Agreement 2. Consent to DSA 3. Consent to LELA 1. Lease Agreement (KSC Land) [1999] Tenant UNITED STATES AIR FORCE BRAC PROPERTY (184 + A) Quit-Claim Deed 1. Quit-Claim Deed/Release Tenant Tenant Tenant Tenant Tenant Tenant Tenant Indenture/2005 Deed of Release Memorandum of Agreement Deed of Release 1. FAA Release USA/GSA GSA PORTION (136 + A.) 1. Cooperative & Purchase Agreement (CPA) (1,.318 Acres, m/l) 2. Assignment & Assumption of Leases 3. Conveyance Deed 4. Re-Conveyance Deed (escrowed) 5. Funding Agreement 1. Limestone Extraction Lease Agreement (LELA) (100 Acres, m/l + subsurface & mineral rights) 2. Roadway Easement Agreement 3. Airshaft Facilities Easement Agreement 4. Funding Agreement 5. MBE/WBE Participation Agreement HUNT MIDWEST REAL ESTATE DEVELOPMENT USA/FAA FUDS PROPERTY ( A) 1. Infrastructure Agreement 2. Economic Incentives PORT AUTHORITY 1. Applications for Mineral Rights Bureau of Land Management (mineral rights all R-G Property) 1. Lease Agreement (sublease) [1999] 2. Development Agreement [1999] 3. Amendment to Lease Agreement [2005] 1. Development & Sale Agreement (DSA) (1318 Acres, m/l) 2. Funding Agreement 3. Excess Property Maintenance Agreement 4. MBE/WBE Participation Agreement 1. VCP Application 2. MO Brownfields Program 1. 2 ND Amendment to Lease Agreement MDNR 1. Obtain Mineral & Subsurface Rights Kansas City Southern 1. Plans for enhanced & expanded intermodal rail center 2. Strategic national marketing program re intermodal & related industrial park developments CENTERPOINT PROPERTIES TRUST CALVARY BIBLE COLLEGE (2.83 A) USMC (48 A) Port Authority/Richards Gebauer/Miscellaneous/Transaction Overview Pwrpt ( )

56 Communications Challenge Organization/Company Title City CH2M HILL Project Manager St. Louis MO CH2M HILL Senior Consultant St. Louis MO CH2M HILL Staff Geologist Kansas City MO HQ AFCEE/EXC Program Manager Brooks City-Base TX MO Dept. of Natura Resources/Federal Facilities Environmental Specialist Jefferson City MO MO Dept. of Natura Resources/Brownfields Voluntary Cleanup Program Environmental Specialist Jefferson City MO S.S. Papadopulos & Associates Associate Bethesda MD Kingston Environmental Engineering KC MO Port Authority of KC Project Manager KC MO HydroGeoLogic, Inc. Project Manager Austin TX CenterPoint Properties SVP Oak Brook Il MOBCOM Facility Mgr Kansas City MO HydroGeoLogic, Inc. Project Scientist Kansas City MO BAH Engineer Belton MO NAVFAC MW Program Manager Great Lakes IL Booz Allen Hamilton Associate Sta te

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58 Project Coordination Site Status Matrix Former Richards-Gebaur Air Force Base Updated December 10, 2009 (MDNR) Redvel. Par Site cel Site Type Jurisdiction Property Owner Approval Authority SS Hazardous Material Storage Area Phase 4 BRAC GW AF KCPA Marine ST Petroleum, Oils, and Lubricants Yard (POL Yard) SS Oil Saturated Area Phase 2 BRAC Soil AF KCPA BRAC GW N/A BRACC GW AF for Marine Marine Skeet Range Phase 6 FUDS USACE KCPA Northeast Landfill Phase 6 FUDS USACE KCPA FT Fire Training Area Phase 1 BRAC Soil KCPA CenterPoint

59 Richards-Gebaur - Anticipated Build-Out

60 Discussion / Questions & Answers

61 SPEAKERS

62 SPEAKERS Chris Wendelbo The Session Law Firm Telephone:

63 SPEAKERS Mr. Steve Rinne, PE Business Development Officer The Port Authority of Kansas City, Missouri Telephone:

64 SPEAKERS Mr. Jeffrey A. Bolin The Dragun Corporation Telephone:

65 SPEAKERS Ms. Shawna Bligh The Session Law Firm Telephone: