PFAS & Other Regulatory Strategies

Fortune 100 Industry, MA:

Mr. Graham provided assistance to an industry who was contacted by MassDEP as being potentially a source of PFAS in a local watershed and water supply area. As PM his team had previously conducted extensive groundwater evaluation, including geophysics, monitoring well testing, and dye testing to pinpoint both deep bedrock VOCs and optimum location for in-situ chemical oxidation injections; established adjacent lake elevations; and based on pump testing and permeability studies, had reclassified the site from GW-1 to GW-2. Using this data, and a Conceptual Site Model, the team was able to demonstrate through a potentiometric groundwater analysis correlated to surface water data, that groundwater flow could not migrate toward upgradient town water supply wells. Information from MassDEP’s own database on upgradient and downgradient lake testing and rainwater and stream PFAS studies were also used to formulate a response. Based on this information, MassDEP withdrew its request to involve this industry as a potential source of PFAS. 

 

Industrial Facilities, AZ, CO, MA, NH:

Mr. Graham was PM for ASTM Phase I and/or II ESAs conducted for two former fire fighting equipment distributors at two separate Massachusetts locations, an industrial manufacturer in New Hampshire, and existing and former industrial manufacturers in Colorado and Arizona. For all five facilities, the potential for PFAS existence was either triggered by U.S. EPA Enforcement and Compliance History (ECHO) listings or by the property acquisition team’s desire to rule out its possibility from historical plating or pulp mill operations. He prepared an analysis for four sites based on regulatory compliance records and inventories (waste disposal, purchasing records) which demonstrated PFAS was either not present or could not have been generated by on-site operations. For two of these sites, the acquiring developer (MA) or current owner (CO) implemented an environmental insurance policy to address the potential risk of future PFAS regulator action. For the AZ site, his team demonstrated that extreme depth to groundwater, lack of state standards, and prior soil No Further Action determination ruled out PFAS as a concern. AZ DEQ was solicited and provided an opinion which supported this position.

 

Soil Disposal Avoidance, MA, RI & NH:

Even sites with a “clean” Phase I ESA, can during re-development be found to contain previously “unknown” contaminants such as oily soils, heavy metals, PCBs, or gasoline compounds. The original Purchase and Sale Agreement typically calls out unknown conditions as being the prior owner’s responsibility, but the legal and business costs which result to obtain compensation from that seller, while also registering with regulators, can lead to lengthy delays and unanticipated charges. Mr. Graham has in such situations in three states assisted in revising construction plans to treat or minimize excavation or removal of impacted soils which otherwise due to building footprint or geotechnical unsuitability would require off-site disposal. Treatment can include amendment of unsuitable soils, or in-situ treatment of organic chemicals; capping of low levels of metals or petroleum compounds and applying environmental deed restrictions can reduce treatment and excavation.

 

Cleanup Standard Alteration, CA, ME, MS, VA:

If regulatory standards can be altered, as allowed under many state regulatory frameworks, cleanup requirements and associated costs can be significantly reduced. Examples include:

 

• An 18-acre site partially containing wetlands was designated on MassDEP resource maps as a Potentially Productive Aquifer, thus a Groundwater (GW)-1 classification applied. Mr. Graham led a team which conducted pumping tests which demonstrated to regulator acceptance that the site was not a high yield groundwater source, and therefore a GW-2 classification could instead be applied. This raised the applicable regulatory standards and lowered the associated cleanup cost for volatile organic compounds (VOCs) present in groundwater, providing substantial savings to the client and allowed resale of the property to proceed.

• At other VOC sites in MA and ME, for indoor air, soil, and groundwater, Mr. Graham as PM has applied the tool of risk assessment to alter cleanup standards to less stringent levels as allowed under state regulatory programs, through evaluation of site-specific parameters (soil porosity, permeability) compared to the chemical toxicity, duration, pathway, and type of receptor (worker vs. resident, adult vs. child) exposure. This strategy alone has saved clients literally millions of dollars.

• A client in Central Massachusetts wished to sell its property which contained an Activity and Use Limitation (AUL) deed designation that diminished its resale value; the AUL has been applied due in part to arsenic presence at levels above established regulatory levels. However, Mr. Graham applied the MassDEP policy which allows properties within a mapped “arsenic belt”, reflecting natural bedrock conditions, to utilize higher regulatory standards for that parameter, despite the client’s property lying outside that designated area. A review of eight other sites immediately surrounding the property showed that natural arsenic was present in those unmapped locations similar to the client property: a successful petition to the agency obtained approval to apply the higher standard.  

• Clients acquiring properties in Virginia and Mississippi were concerned about VOC presence in groundwater which according to U.S. EPA VISL calculations for this urban groundwater indicated the possibility of indoor air intrusion. Data from soil gas sampling beneath floor slabs and indoor air as needed was utilized in a Risk Assessment which demonstrated to state regulators’ acceptance that no impact above applicable levels would occur to existing or future commercial workers.