EPA Evaluation Concludes Revisions to Federal Solid Waste Management Regulations of Oil and Gas – July 2019


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Section 2002(b) of the Resource Conservation and Recovery Act (RCRA) requires every regulation promulgated under the Act to be reviewed and, where necessary, revised at least every three years. In 2016, EPA was sued for its alleged failure to review and, as necessary, revise its federal nonhazardous solid waste (Subtitle D of RCRA) regulations for wastes associated with the exploration, development and production (E&P) of crude oil, natural gas, and geothermal energy. The lawsuit was, in part, driven by the significant advancements in the production of crude oil and natural gas from hydraulic fracturing and directional drilling used to access black shale, tight oil and other “unconventional” formations. These advancements and the volume of wastes currently generated were not fully envisioned in 1988 when EPA issued a regulatory determination exempting E&P wastes from Subtitle C (hazardous waste regulations) of RCRA.

In response to the 2016 lawsuit, EPA entered into a consent decree to conduct the review and formally document whether revisions to the federal solid waste management regulations are necessary at this time. To support this effort, EPA conducted a literature review of government, industry and academic sources to supplement information available from previous agency actions related to the issue. The review evaluated factors such as waste characteristics, management practices, damage cases and the coverage of state programs. The review focused primarily on E&P wastes from crude oil and natural gas, as available data indicate that geothermal production remains limited to a few states and has not undergone a similar surge in production.

On April 26, 2019, EPA released the results of its required review of E&P wastes in a 279-page report entitled Management of Oil and Gas Exploration, Development and Production Wastes: Factors Informing a Decision on the Need for Regulatory Action. EPA concludes in the report that although the oil and gas industry has undergone a significant transformation in recent years, states have also revised their regulatory programs to adapt to the challenges posed by these technological advancements and that revisions to the federal regulations for the management of E&P wastes of crude oil, natural gas and geothermal energy under Subtitle D of RCRA (40 CFR Part 257) are not necessary at this time. 

Because of situations like ‘Flint Michigan’ states are reacting much faster than the U.S. EPA on the establishment of maximum contaminant levels (MCLs) for PFAS compounds and are establishing their own safe drinking water limits. As a result, there are a multitude of PFAS drinking water limits across the nation, ranging from 660 nanograms per liter (ng/L) in Nevada to 10 ng/L in New York. The ubiquitous nature of PFAS compounds and the establishment of such low drinking water limits requires the use of strict sampling and handling procedures to minimize cross contamination in the field and laboratory.

Recently, Cox-Colvin completed a study using our onsite monitor well to evaluate the influence of different sampling procedures and equipment for the collection of PFAS groundwater samples. To minimize the study variables, all the samples were submitted to the same laboratory for analysis using their “modified” method 537[1]. Two compounds, perfluorobutanoic acid (PFBA) and perfluorohexanesulfonic acid (PFHxS), were reported at trace concentrations in all the groundwater, field quality assurance and quality control (QA/QC), and laboratory QA/QC samples. Because the compounds were present at similar concentrations in the laboratory method blanks, it appears the source of PFBA and PFHxS contamination in this case is laboratory-related rather than groundwater- or field-method-related. Laboratory cross contamination by some compounds is to some degree common at the part-per-trillion reporting limits required for PFAS analyses.

The low drinking water limits combined with the absence of EPA accredited analytical methods, makes the sampling and analysis of environmental samples for PFAS extremely challenging.  Although proper sample collection and handling procedures are important, strict laboratory QA/QC procedures are absolutely necessary to prevent reporting of false positives. Until the EPA develops standardized methods for PFAS analysis, rigorous laboratory QA/QC protocols (i.e., use of appropriate laboratory QC samples) are key to the successful analysis and interpretation of PFAS analytical results. In addition, reporting to the practical quantitation limit (PQL) instead of the method detection limit (MDL) may be a good way to limit false positives. Lastly, performing detailed data validation is highly recommended as a way to ensure the quality of the data.

Published in the July 2019 Cox-Colvin & Associates Newsletter: Focus on the Environment


[1] Currently, there is not a US EPA accredited laboratory method for PFAS analysis of non-drinking water and/or solids (i.e. soil & sediment). Consequently, laboratories have had to develop their own “modified” methods based on US EPA approved Method 537.1.  In June 2019, EPA posted draft validated SW-846 Method 8327 (non-potable water matrices) for a 30-day public comment period. 

On June 26, 2019, Ohio EPA released a draft final version of its updated “Sample Collection and Evaluation of Vapor Intrusion to Indoor Air for Remedial Response and Voluntary Action Programs Guidance Document” (Ohio EPA VI Guidance or Guidance). Comments were requested by no later than July 15, 2019.  Cox-Colvin & Associates commented on the document and we hope others in the regulated community did as well. 

The Ohio EPA VI Guidance was first released in 2010.  The Ohio EPA VI Guidance was developed for sites under the oversight of Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), the Resource Conservation and Recovery Act (RCRA), and the Voluntary Action Program (VAP), carried out under the supervision of Ohio EPA Division of Environmental Response and Revitalization (DERR).  This is the second update to the 2010 Guidance. In May 2016, Ohio EPA rescinded Chapters 10 (data evaluation) and 11 (modeling the VI pathway using the Johnson and Ettinger [J&E] model). Ohio EPA considered Chapters 10 and 11 out of date and no longer appropriate for projects seeking cleanup under any of the DERR programs.

The 2019 draft final Ohio EPA VI Guidance has been significantly expanded and, in many ways, improved. I can appreciate the difficulty and effort that went into the rewrite, given the continued rapid evolution in the science of vapor intrusion and in the underlying human health toxicity factors for which there seems to be little consensus. Provided below are some of the more significant changes to the Guidance.

  • The Guidance incorporates Ohio EPA’s somewhat controversial imminent hazard indoor air action levels published in the August 2016 Ohio EPA “Recommendations Regarding Response Action Levels and Timeframes for Common Contaminants of Concern at Vapor Intrusion Sites in Ohio.”   The August 2016 Ohio EPA established response actions and timeframes for concentrations of common chemicals (TCE and others) encountered during VI investigations when receptors are present.  When EPA updated the risk assessment for trichloroethene (TCE) in 2011, they based the non-carcinogenic Hazard Index on a controversial study that ties TCE to fetal heart defects.  This lowered the acceptable maximum concentration of TCE in indoor air for many programs, but more importantly, it raised the issue of exposure duration.  Most TCE screening levels were previously tied to cancer, which is generally associated with years or decades of exposure.  Non-carcinogenic effects from chemical exposure can take place more rapidly, and in the case of TCE, fetal heart defects could potentially result from exposure periods of weeks or days.  Incorporation of the August 2016 response action guidelines is primarily by reference as the actual response action levels (concentrations) are not included in the draft final Ohio EPA VI Guidance. 
  • The Guidance seems to reflect a welcome and fundamental shift in the significance of subslab sampling, with greater emphasis on the use of sub-slab data, and less emphasis on groundwater, bulk soil, and exterior soil gas data. Historically, investigations have typically started with soil sampling and then progressed to groundwater sampling and finally vapor intrusion sampling. Increasingly, sub-slab sampling is seen as a more appropriate first step in environmental assessment that is often easier and quicker to perform than soil sampling.
  • The Guidance now includes an entirely new Section addressing VI from petroleum releases, based in part on the 2015 US EPA Technical Guide for Addressing Vapor Intrusion at Leaking Underground Storage Tank Sites.  Once released, petroleum hydrocarbons behave differently in the environment and are generally less toxic and less mobile than chlorinated solvents.  Because of the effectiveness and speed of aerobic biodegradation in biologically active soils, Ohio EPA recommends, consistent with US EPA and ITRC Guidance, reduced lateral and vertical investigation distances at petroleum VI sites with relatively small petroleum releases than for chlorinated solvent sites.
  • The Guidance now includes the following critical statements related to the evaluation of VI data.  “For Ohio EPA DERR RP (remedial program) sites, when considering concentrations measured in sub-slab, soil gas, or ground water, the VISLs should be applied corresponding to an excess lifetime cancer risk (ELCR) of 1E-5 and a hazard quotient (HQ) of 1.  If the measured concentrations in the sampled media are less than the appropriate VISLs set at an ELCR of 1E-05 and a HQ of 1 for the appropriate exposure scenario, Ohio EPA DERR considers the pathway to be ‘incomplete’ and additional investigation or risk estimation of this pathway is not warranted.”  Although Ohio EPA DERR has consistently utilized an ELCR of 1E-5 and a HQ of 1 in VI work, I believe this is the first time this has been clearly stated in the guidance.  A similar comment is included for Ohio VAP sites which includes reference to the VAP-required multiple chemical adjustment.
  • The Guidance, for the first time, addresses the vast difference in concentration between OSHA permissible exposure limits and VI defined acceptable indoor air concentrations for commercial/industrial receptors. For example, the Ohio EPA commercial/industrial indoor air standard for TCE associated with VI is 8.8 µg/m3,while the comparable OSHA PEL, also for a 40 hour a week exposure, is over 500,000 µg/m3.  The Guidance also presents Ohio EPA’s position on the Ohio EPA/OSHA jurisdiction issue when it comes to indoor air contamination derived from vapor intrusion.  You may or may not agree with the position, but at least it’s out in the open.
  • The Guidance includes an all new Remedy section organized largely around the concept of risk level and time frame, including imminent, acute, chronic, and unknown.
  • Included in the Remedy section are discussions of monitoring requirements for engineering controls (mapping of the depressurization field and indoor air sampling) and post-mitigation sampling (pressure and/or indoor air sampling to demonstrate system effectiveness through seasonal variation).
  • The Guidance covers (to a limited degree), as Section 13, the seldom discussed, but critically important topic of long-term management and exit strategies at VI sites where mitigation measures are installed.
  • Included as appendices to the Guidance are special considerations for evaluating residential properties, a VI conceptual site model checklist, Ohio EPA’s field standard operating procedures, Ohio EPA’s field data collection forms, comparison of tubing type to vapor absorption, and soil gas analytical methods and reporting limit ranges.  

Finally, regarding the ever-present use of guidance as regulation issue, Section 2 states the Ohio EPA VI Guidance document

“… is a guidance document and does not impose any requirements or obligations on the regulated community.  Other technically equivalent sampling and engineering procedures exists and those investigating vapor intrusion may use other technically sound approaches.”

This is simply not true.  Like it or not, the Guidance does impose requirements or obligations, on the regulated community investigating and/or remediating the VI pathway.  To their credit, Ohio EPA does consider and allow technically equivalent sampling and engineering procedures to be used.  However, it is typically not the sampling and engineering procedures that are problematic in the same way as the critical policy issues such as attenuation factors, acceptable risk levels, sampling/seasonal frequency, separation distance, etc. from which Ohio EPA will typically not deviate.  The good news here is that the values utilized in the Guidance are generally consistent with federal and most state requirements.

Published in the July 2019 Cox-Colvin & Associates Newsletter: Focus on the Environment

If you have been involved with a vapor intrusion (VI) investigation or air sampling, you are likely familiar with EPA Analytical Method TO-15. The “TO” stands for “toxic organics”. The first EPA compendium on this method was published in 1999 and refers to the sampling and analysis of any of 97 compounds identified as volatile organic compounds (VOCs). The compounds are taken from the hazardous air pollutants (HAPs) listed in Title III of the 1990 Clean Air Act Amendments. However, an investigator must exercise caution when requesting a TO-15 analysis from a laboratory; the compounds that are included in this analysis vary considerably between labs. This article will focus on the analytical portion separate from the sampling component of Method TO-15.

Differences in analyte lists can have drastic consequences, as seen in the following real-world example:

A consultant was conducting a vapor intrusion investigation at a former industrial site, using their preferred lab. Several sub-slab soil gas and air samples were taken. Several years later, a different consultant, using a different lab, took over the investigative work and began noticing detections of another chemical, acrolein, in sub-slab soil gas and indoor air samples, with concentrations exceeded screening levels. The facility had not been in operation between these two investigations, and the site conditions did not appear to change. Samples were collected by both clients using Vapor Pins® and stainless-steel evacuated canisters. Both consultants requested analysis by Method TO-15 from their respective labs.

Was there an unknown acrolein release during the interim? Unlikely. Acrolein did not suddenly “show up” in indoor air. It was always there, but due to the variance in the “TO-15 list” between labs, acrolein was not reported by the first laboratory.

When analyzing a sample via Method TO-15, labs do not analyze for all the compounds listed under the method. Often, a lab will report a “standard list” of common VOCs. This is done to keep costs down for the lab and the client. The usual VI suspects are among them: perchloroethylene (PCE), trichloroethylene (TCE), benzene, chloroform, xylenes, etc. Labs do not want to waste time and resources to calibrate an instrument for a compound that is rarely present. However, depending on the specific history of the site or industry, less common chemicals of concern, such as acrolein, could in fact be present. These chemicals may not be included in the lab’s “standard TO-15 list” and will not be reported in the analytical report unless specifically requested. The consultant must be diligent in their research of the site’s history and function and in requesting laboratory services. Some labs include additional analytes at no cost, but they must be specifically requested by the consultant. Other labs will include “non-standard” VOCs in their analyses for added cost, but again, these must be specifically requested, and may not be fully supported by QA/QC. Another important point worth noting is that an investigator must ensure that the reporting limits provided by the lab are sufficiently low enough to meet screening levels, however, this discussion is for another day.

Method TO-15 is an extremely rigorous and useful sampling and analytical method for gas media. However, when requesting this analysis, one must remember that no two laboratory TO-15 lists are alike. The onus is on the investigator to know what compounds will be included in the analysis from their lab and to understand the site’s historical usage well enough to know if other compounds should be added.

Published in the July 2019 Cox-Colvin & Associates Newsletter: Focus on the Environment

The Ohio EPA recently released Interested Party versions of some solid waste rules as part of the required five-year rule review process. The proposed rule updates include that of “Rule 13”, which is currently Rule 3745-27-13 of the solid waste rules. The Ohio EPA has also proposed changes to several of the municipal solid waste rules. Most of those changes are minor, but there are substantial changes to Rule 3745-27-08, “Sanitary Landfill Facility Construction”, as well as a few key changes to a few other rules.

“Rule 13” Changes

At the beginning of July, the Ohio EPA (Agency) released draft changes to the rules regarding filling, grading, excavating, building, drilling or mining on property where a solid or hazardous waste landfill has been operated. In essence, Rule 13 requires notification to and approval by the Agency of any work that would breach or compromise the integrity of the landfill cap prior to commencement of the work. The current rule requires the submittal of an application to the Agency in effect notifying them of upcoming work; however, there are differing requirements for different classes of landfills and upcoming work, and it is not always clear which set of requirements apply to a given landfill. An interesting aside is that Rule 13 applies to all landfills in Ohio, historic or operating, licensed or unlicensed, and whether solid or hazardous waste was disposed at the site. Rule 13, however, does not apply to sites of indiscriminate roadside dumping or littering.

A major change in the proposed rule is that it will be reorganized under the multi-program rules as its own chapter: Chapter 3745-513 of the OAC. The Agency’s fact sheet regarding the changes to Rule 13 can be found here. The draft rules define the differences between modern and historic facilities, however most of the requirements listed are the same. There are a few additional requirements for modern facilities. Proposed rule 3745-513-02 “Definitions” defines the terms “historic” and “modern,” which were not used in the current rule. The differences are based on dates that rules were originally promulgated. For example, an historic solid waste landfill ceased waste acceptance prior to July 29, 1976, whereas a modern solid waste landfill accepted waste after July 29, 1976. In addition, the draft amendments include a new rule requiring that the plans require the seal of a professional engineer if the “scope of the chapter 513 activities proposed in the application constitutes the practice of engineering pursuant to Chapter 4733. of the Revised Code.”

The proposed rules have been written so that the requirements for the application, implementation, and reporting are more direct and clearer than in the current rule, so the uncertainty determining what needs to be included in the Rule 13 application should be reduced.

The rule-making process regarding Rule 13 started with an “Early Stakeholder” outreach in May 2017 when the Agency requested comments on the initial conceptual changes to the rule. At that time, the Agency accepted comments through July 2017. For this set of proposed rules, the Agency accepted comments on the draft rules through July 3, 2019. The agency will review the rules and make any necessary changes prior to filing the proposed rules with the Joint Committee on Agency Rule Review (JCARR), the Legislative Service Commission, and the Secretary of State. When the draft rules are posted, there will be another opportunity to make comments on the rules. As such, the regulated community has had/will have ample opportunity to participate in this rule-making process.

Municipal Solid Waste Landfill Rule Update

As part of the Agency’s requirement to review their rules every five years, the Agency has proposed changes to several of the currently effective municipal solid waste (MSW) landfill rules. These include the following:

  • 3745-27-02      Permit to install
  • 3745-27-05      Applicability and relation to other laws
  • 3745-27-06      Sanitary landfill facility permit to install application
  • 3745-27-07      Additional criteria for approval of sanitary landfill facility permit to install application
  • 3745-27-08      Sanitary landfill facility construction
  • 3745-27-09      Sanitary landfill operating record
  • 3745-27-11      Final closure of a sanitary landfill facility
  • 3745-27-14      Post-closure care of sanitary landfill facilities

Most of the changes are minor updates, however, in Rule 3745-27-05 there is a new reference to technologically enhanced naturally occurring radioactive material (TENORM); and there are significant proposed changes to Rule 3745-27-08. The proposed changes included in Rule 08 include a reduction of the stability factor from 1.5 to 1.3; addressing piping failures because of seepage forces and settling; changes in thickness of the recompacted soil liner from five to three feet; added standards for flexible membrane liners; added design specifications for leachate ponds; and added specifications for gas extraction well design; amongst others.

On July 8, 2019, the Ohio EPA held an informational webinar to discuss the changes to the MSW landfill rules. It was a very good presentation, and it was made clear that the Agency would like to receive comments regarding the proposed changes. The presentation slides will be posted on the Interested Party tab of the Division of Materials and Waste Management’s rule website.

The Agency’s fact sheet on the MSW landfill rule changes discusses the changes to each of the rules. The text of the proposed MSW landfill rule changes can be obtained at the Agency’s interested party release website. Comments on the proposed changes to the MSW landfill rules are being accepted through July 31, 2019.

Published in the July 2019 Cox-Colvin & Associates Newsletter: Focus on the Environment

On May 6, 2019, the Environmental Working Group and the Social Science Environmental Health Research Institute at Northeastern University released the latest update of their interactive map  documenting the publicly known contamination from PFAS chemicals in the United States.   At least 610 locations, including public water systems, military bases, military and civilian airports, industrial plants, dumps, and firefighter training sites, are known to be contaminated.  The map is color coded to distinguish between PFAS contamination at military sites, in drinking water and at other known sites.  The user can navigate to areas of interest and click the site icon and a window pops up with the available information, including the site name, location, the PFOS/PFOA concentration range, and the suspected PFAS source. 

Michigan leads the country with 192 locations, which is 145 more than California, the state with the second most sites (47).  The numbers for Michigan, however, are likely skewed because of their ongoing, comprehensive PFAS testing program.  Beginning in April 2018, the Michigan Department of Environment, Great Lakes, and Energy (EGLE) launched a statewide sampling program to test Michigan’s public water supplies.  In February 2019, ENGL announced that 1,114 public water systems, 461 school wells and 17 tribal water systems had been tested.  In addition to the public water systems, municipal waste-water treatment plants, permitted NPDES dischargers and industrial facilities, military bases and landfills known to have used or disposed of PFAS containing materials had been targeted for sampling.  Imagine what the national map might look like if every state had a PFAS sampling program like Michigan. 

Published in Cox-Colvin’s May 2019 Focus on the Environment newsletter.

There are, or have been, thousands of small commercial dry cleaning operations throughout the U.S. – nearly every neighborhood had one. Most of them are, or were, small family owned businesses that started in the 30s, 40s, or 50s.  Many of these facilities became ‘anchor’ stores of small shopping centers that are now being redeveloped.  The first step in the redevelopment process should be the Phase I Environmental Site Assessment. However, many times this essential first step is requested after the deals are well along their way.  As an environmental professional, we find ourselves fielding calls that begin with “We’re closing next week, and need a Phase I done.”  What could go wrong?

In this series of articles, we will examine the pitfalls of real estate transactions involving former dry cleaner operations.  The first step in the process should be the Phase I Environmental Site Assessment (ESA), conducted by a qualified environmental professional.  The Phase I ESA is a desktop evaluation and site inspection that provides the prospective new buyer with information concerning past environmental concerns at a property generally known as “recognized environmental conditions” (RECs).

A standard step in the Phase I ESA is a review of environmental databases conducted through a third party service.  These databases searches, which are typically completed within a day, are very informative, and generally reveal if the property was once occupied by a former dry cleaning operation.  If a former dry cleaning operation is identified, this is the first clue that a REC is present on the property and that further actions should be taken (e.g., Phase II ESA) to evaluate the REC more closely. If there is an impending deadline approaching, this database search report may be the only tool relied upon to form a decision about the property; however, this is only the first clue that something may be up with this property. 

Other elements of the Phase I ESA should be reviewed very carefully as they may identify prior uses of the property that may not have been revealed in the database search alone.  The three most informative elements to review next are fire insurance maps, historical city directories and historical aerial photography. 

Fire insurance maps, where available, provide a great deal of detail about businesses that occupied the property in the past including the name and/or business activity, the shape of the buildings, as well as information concerning where products were stored and used.  Many times, these maps are more informative than aerial photography; however, if the property is not within a historically urban or industrial setting, their coverage may be limited.

City directories are important in that they provide the business name and more importantly the address of the operation.  If you have a former dry cleaning operation associated with your strip mall property, don’t be surprised to see the name and address change slightly through time.  For example, in 1956 – ABC Cleaners was located at 563 Maple Street; in 1975 – Atomic Cleaners was located at 571 Maple Street, then in 1995 – Super Dry Clean is located at 561 Maple Street.  During the site inspection the environmental professional located Super Dry Clean at 561 Maple Street.  Did people putting together the city directories make a mistake?  Probably not.  Aerial photography may help you clear this up.

A review of the aerial photography can help you sort out historical details because they provide photographic evidence of how the property was occupied at any given period of time.  In general, try to: 1) obtain enough photography to cover the range of years from pre-development to the present day; and 2) obtain photography with sufficient clarity to identify individual buildings with certainty.  In general, clarity is inversely related to the altitude of the flight line.  The higher the flight’s altitude, the lower the level of detail captured by the photography.  Obtaining the right photography can take some time and should be researched thoroughly.  Most third party database search firms provide aerials at an additional cost, but not all firms have access to good quality photography.    

In our example, there were no fire insurance maps available; however, it appears that the dry cleaner operation may have moved periodically based on the city directories.  Using the information from city directories while reviewing the aerial photography it was revealed that in 1950s, there was a single building resembling a house located at the location that would have had an address of 563 Maple Street (ABC Cleaners). By the 1970s, the location of that building, which been demolished, was now a parking lot for the current strip mall, whose range of addresses included 561 (Super Dry Clean) through 571 (Atomic Cleaners). The Phase I ESA has revealed not one, but three separate RECs associated with former dry cleaning operations.  These three RECs involve most of the property and could likely extend off-site.  The next step is to perform a Phase II ESA to better understand how these operations may have affected the property and the surrounding area.  Luckily for us, the prior owner conducted a Phase II ESA. 

Next month we will examine the Phase II ESA, what may have been missed, how it could affect your client, and how to plan for the future …the deal is heating up and the clock is ticking. 

Published in Cox-Colvin’s May 2019 Focus on the Environment newsletter.

The term PFAS refers to per-and polyfluoroalkyl substances, which comprise thousands of synthetic chemicals that have been used in a wide variety of consumer and industrial products since the 1940s.  PFAS is quickly becoming  the hottest topics in the environmental field  due in part  to numerous State-lead initiatives, work groups, and EPA’s February 14, 2019 PFAS Action Plan.  Two of the more commonly discussed PFAS, perfluorooctanoic acid (PFOA) and perfluoroctane sulfonate (PFOS), already have a 70 part per trillion (ppt) Health Advisory for drinking water and will be further evaluated by EPA to determine if a maximum contaminant level (MCL) is needed.  Several states have established their own MCLs and cleanup levels for various PFAS.  With these emerging contaminants headed toward increased regulation, questions regarding treatability are at the forefront.  This article is intended to provide a non-exhaustive elementary overview on PFAS treatability in environmental media by commonly employed technologies. 

PFAS have oil and water repellency, temperature resistance, friction reduction properties, and one of the strongest bonds in nature (fluoride-carbon).  These properties all contribute to PFAS resistance to treatment.  Most of the technologies that have demonstrated some level of  effectiveness are associated with ex-situ (i.e., above-ground) treatment of water contaminated with PFAS.  These technologies include activated carbon, reverse osmosis, and ion exchange.  However, the ability to achieve a desired removal rate or effluent concentration is highly site-specific and may not be scalable.  Additionally, these technologies all generate wastes that contain concentrated PFAS, which require management (likely by costly offsite thermal destruction).  While these resource- and energy-intensive “pump-and-treat” technologies are often associated with the treatment of other constituents in municipal drinking water systems, the remediation industry has generally moved away from pump-and-treat for more cost-effective and sustainable in-situ (i.e., in-ground) technologies.  If we are required to rely on these pump-and-treat technologies at commercial and industrial sites based purely on necessity, it would be a step backwards in the evolution of site remedies. 

The traditional approaches used for in-situ treatment of groundwater and soil have shown little promise for treatment of PFAS.  Like it’s ex-situ counterpart, activated carbon that is used in-situ does not on its own destroy contaminants, it merely transfer’s them from one media to another.  For this reason, activated carbon is often impregnated with other material to support contaminant destruction (e.g, zero valent iron).  However, the impregnated activated carbon products that are currently in commercial use have not been demonstrated to be effective on PFAS.  Therefore, if activated carbon (granular-, micro-, or nano-scale) were used in-situ, the result would be a concentrated mass of PFAS, which may require removal or replenishment of the activated carbon to ensure continued treatment.  Studies are ongoing to understand the long-term leachability of PFAS from various types of activated carbon and other forms of adsorbents.  It’s possible that with a change in subsurface geochemical conditions, including the introduction of other competing contaminants, PFAS could desorb from the treatment media and become remobilized.

To date, there does not appear to be  isolated bacterial strains that are capable of degrading PFAS.  Therefore, biotic natural attenuation, biostimulation, or bioaugmentation are not amendable treatment technologies for PFAS in soil and groundwater.  Some fungi strains may be capable of PFAS degradation; however, practical application to environmental media is a significant challenge.  The low volatility and high solubility of PFAS prohibits the use of air sparging and soil vapor extraction (in-situ) and air-stripping (ex-situ).  Various chemical oxidants are routinely used to treat contaminants in soil and groundwater.  However, studies suggest that there is either no or incomplete destruction of PFAS via chemical oxidation.  In a laboratory setting, when certain engineered conditions are present, specific types of oxidants may result in some degree of PFAS destruction.  However, practical scale-up to a natural system has yet to be successfully demonstrated.  To the best of my knowledge, excavation with landfill disposal or thermal destruction has been the only full-scale commercial technology to address PFAS in soil.  The pump-and-treat technologies previously identified show promise but have yet to be employed commercially for the intended purpose of treating PFAS.        

A complicating factor related to treatment of PFAS, is the presence and role of “precursors.”  Precursors are included within the thousands of substances that comprise the overall PFAS families.  However, unlike many of the PFAS that are currently or may be regulated by EPA and State agencies, precursors are not regulated and can readily degrade/transform biotically and abiotically under aerobic and anerobic conditions.  The problem becomes that precursor degradation/transformation creates more recalcitrant PFAS, such as those within the same regulated chemical groups as PFOA and PFOS.  Although this process can occur naturally, an unintended consequence of some treatment technologies is creation of additional PFAS from precursors that are present. 

Government agencies, universities, work groups, and private companies are all diligently working to better understand PFAS.  Like most other contaminants, there will likely not  be a “silver bullet” for PFAS treatment.  But hopefully, there will be new technologies developed or modifications of existing technologies that can treat environmental media contaminated with PFAS in a cost effective and sustainable manner while achieving the extremely low cleanup standards.          

Published in Cox-Colvin’s May 2019 Focus on the Environment newsletter.

Ohio EPA is in the process of performing their scheduled 5-year review of the Voluntary Action Program (VAP) rules. The proposed rules are currently available for Interested Party Review, with comments due by close of business, May 29, 2019. The majority of changes are to clean up language and make them more readable, although there are other notable changes that emphasize the importance of complying with institutional controls at VAP properties.

The rule definitions have been updated to include central management entities and land uses. As the VAP program has matured over the last couple of decades, engineering and institutional controls have become commonplace to manage the cost of remediation versus cleanup to unrestricted standards. While the concept of different land uses and exposure scenarios is nothing new, moving their definitions into Rule 1 emphasizes the importance of understanding their nuances and ensuring appropriate mechanisms and entities are in place to prevent inadvertent violation of the restrictions. In the VAP, using a property for an unapproved use, such as hosting a daycare on a portion of an industrial property, can quickly lead to the voidance of a Covenant Not to Sue. Additional land uses are now included in the rule, and defined land uses now include:

  • Residential land use (single family homes, condominiums, etc.)
  • Restricted residential land use (typically used for multi-tenant facilities like apartment buildings)
  • Unrestricted residential land use (protective for any land use without restriction)
  • Commercial land use (retail facilities, offices, warehouses, etc.)
  • Commercial land use with high frequency child exposure (schools, daycares, etc.)
  • Industrial land use (factories, power plants, marine port facilities, railroad yards, etc.)
  • Recreational land use (parks, play fields, amphitheaters, wildlife areas, etc.)

Of the defined land uses, “commercial land use with high frequency child exposure” and “recreational land use” were not previously discussed in the rules. The former may allow more flexibility for commercial properties where daycares or schools may be built (such as strip malls), while the recreational land use will require a site-specific risk assessment but could promote development of ball fields and wildlife areas where child exposures tend to be infrequent and shorter in duration.

The definition of “imminent hazard” has been modified to specifically reference risk from volatilization of chemicals from environmental media into occupied structures at acute health levels. This is consistent with agency efforts over the last few years to identify and assess vapor intrusion threats related to trichloroethylene.

Included in the draft rules is an option for laboratories to receive VAP certification based upon their NELAP accreditation. This has the potential to simplify certification for laboratories, and reduce a potential lag time for updates to laboratory SOPs receiving VAP approval.

Rule language relative to Phase I assessments has been modified to be more similar to All Appropriate Inquiry and ASTM E1527 requirements, although the VAP Phase I process remains more extensive than a standard due-diligence assessment.

The VAP rules now include generic cleanup standards for sediment, in addition to soil, groundwater and air. This helps to simplify evaluation of risk to ecological receptors.

Additional chemicals of concern have been added for petroleum, including lead scavengers for gasoline used prior to 1996. This brings the VAP rules in line with the most recent Ohio UST (BUSTR) rule revisions.

If you are considering entering a property in the VAP, or looking for assistance in ensuring continued compliance of a property that has already gone through VAP, contact us. Cox-Colvin has extensive experience with brownfields and the VAP. We regularly work with clients who are considering purchase of VAP properties to define the impact and cost of use restrictions on their redevelopment plans.

On April 25, 2019, US EPA (EPA)  released, for public comment, draft recommendations for addressing  groundwater contaminated with perfluorooctanoic acid (PFOA) and/or perfluoroctane sulfonate (PFOS) under federal cleanup programs, including the Comprehensive Environmental Response Compensation and Liability Act (CERCLA or Superfund) and site-wide corrective action under the Resource Conservation and Recovery Act (RCRA).  Development and publication of per-and polyfluoroalkyl substances (PFAS) groundwater cleanup guidance was identified in EPA’s February 2019 PFAS Action Plan as a priority action item for EPA. 

Broadly, the draft guidance provides interim recommendations for screening levels, and preliminary remediation goals (PRGs) to inform final cleanup levels for PFOA and/or PFOS contaminated groundwater that is a current or potential current source of drinking water.  Screening levels are conservative, typically risk-based levels used for the process of identifying and defining areas, contaminants, and conditions at a particular site that may warrant further evaluation.  Under CERCLA, RCRA and other regulatory programs, at sites where contaminant concentrations are below appropriate risk-based screening levels, no further action or study is generally warranted.  PRGs are initial targets for cleanup, which may be adjusted on a site-specific basis as more information becomes available.   

The guidance is poorly written and is, at best, confusing.  It is important to pay particular attention to the “ands” and “ors” when discussing PFOA and/or PFOS, and this document is no exception. From my read of the draft guidance, the recommendations are as follows (I have added the underlined text as emphasis):

  • Site screening should be conducted using a screening level set to a Hazard Quotient of 0.1 for PFOA or PFOS individually, which is currently 40 ng/L or parts per trillion (ppt);
  • Use of the EPA 2016 PFOA and PFOS health advisory of 70 ppt for the (combined concentration) of PFOA and PFOS as the PRG for groundwater that is a current or potential source of drinking water and where no state or tribal MCL or other applicable or relevant and appropriate requirements (ARARs) exist.
  • In situations where groundwater is being used for drinking water, EPA expects that responsible parties will address levels of PFOA and/or PFOS (individually or combined) over 70 ppt.

Missing from draft guidance is a CERCLA removal action level.  The removal action level is the level at which EPA would step in to take action without waiting for a responsible party to be identified and action by the responsible party to be taken.  As it turns out, a removal action level of 400 ppt (individual or combined) was included in the initial draft of the guidance but was removed prior to publishing the April 25 version for public comment.  A redline version of the original document is included in the regulatory docket.  The addition of RCRA Corrective Action to the discussion of federal cleanup programs to which the guidance would be applicable also appears to have been a late addition or afterthought.  The wholesale removal of the action level discussion as well as EPA’s effort to shoehorn RCRA Corrective Action into what started out as a CERCLA guidance document is clearly part of the reason for the confusion, but since when has that been a viable excuse?   

Due to the lack of federal leadership on the subject, some states have promulgated state-specific groundwater cleanup and drinking water standards for the compounds.  For these states, the guidance is likely to be considered too little too late.   Other states have taken more of a wait and see approach.  These states are just now likely wondering if the wait was worthwhile.   The draft document is open for public comment until June 10, 2019.  Submit your comments, identified by Docket ID No. EPA-HQ-OLEM-2019-0229, at https://www.regulations.gov.

Published in Cox-Colvin’s May 2019 Focus on the Environment newsletter.


They Call them Emerging Contaminants for a Reason – July 2019

  • By: Steve
  • Posted: 07/17/19

Because of situations like ‘Flint Michigan’ states are reacting much faster than the U.S. EPA on the establishment of maximum contaminant levels (MCLs) for PFAS compounds and are establishing their own safe drinking water limits. As a result, there are a multitude of PFAS drinking water limits across the nation, ranging from 660 nanograms per […]

Ohio EPA Significantly Revises Vapor Intrusion Guidance – July 2019

On June 26, 2019, Ohio EPA released a draft final version of its updated “Sample Collection and Evaluation of Vapor Intrusion to Indoor Air for Remedial Response and Voluntary Action Programs Guidance Document” (Ohio EPA VI Guidance or Guidance). Comments were requested by no later than July 15, 2019.  Cox-Colvin & Associates commented on the […]

What does Method TO-15 really mean? – July 2019

  • By: Henry
  • If you have been involved with a vapor intrusion (VI) investigation or air sampling, you are likely familiar with EPA Analytical Method TO-15. The “TO” stands for “toxic organics”. The first EPA compendium on this method was published in 1999 and refers to the sampling and analysis of any of 97 compounds identified as volatile […]

Ohio EPA Solid Waste Rule-Making Updates – July 2019

  • By: Steve
  • Posted: 07/12/19

The Ohio EPA recently released Interested Party versions of some solid waste rules as part of the required five-year rule review process. The proposed rule updates include that of “Rule 13”, which is currently Rule 3745-27-13 of the solid waste rules. The Ohio EPA has also proposed changes to several of the municipal solid waste […]

Updated Map Tracks PFAS Contamination in the U.S.

  • By: Doug
  • Posted: 05/22/19

On May 6, 2019, the Environmental Working Group and the Social Science Environmental Health Research Institute at Northeastern University released the latest update of their interactive map  documenting the publicly known contamination from PFAS chemicals in the United States.   At least 610 locations, including public water systems, military bases, military and civilian airports, industrial plants, […]

The Dry Cleaner Dilemma

  • By: Craig
  • Posted: 05/21/19

There are, or have been, thousands of small commercial dry cleaning operations throughout the U.S. – nearly every neighborhood had one. Most of them are, or were, small family owned businesses that started in the 30s, 40s, or 50s.  Many of these facilities became ‘anchor’ stores of small shopping centers that are now being redeveloped.  […]

PFAS – Can it be treated?

  • By: Nick
  • Posted: 05/16/19

The term PFAS refers to per-and polyfluoroalkyl substances, which comprise thousands of synthetic chemicals that have been used in a wide variety of consumer and industrial products since the 1940s.  PFAS is quickly becoming  the hottest topics in the environmental field  due in part  to numerous State-lead initiatives, work groups, and EPA’s February 14, 2019 […]

Ohio EPA VAP Rules to be Updated

  • By: Nate
  • Ohio EPA is in the process of performing their scheduled 5-year review of the Voluntary Action Program (VAP) rules. The proposed rules are currently available for Interested Party Review, with comments due by close of business, May 29, 2019. The majority of changes are to clean up language and make them more readable, although there […]

EPA Releases Draft Recommendations for Groundwater Contaminated with PFOA and PFOS

On April 25, 2019, US EPA (EPA)  released, for public comment, draft recommendations for addressing  groundwater contaminated with perfluorooctanoic acid (PFOA) and/or perfluoroctane sulfonate (PFOS) under federal cleanup programs, including the Comprehensive Environmental Response Compensation and Liability Act (CERCLA or Superfund) and site-wide corrective action under the Resource Conservation and Recovery Act (RCRA).  Development and […]

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