Commingled Plumes - astswmo

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Apr 27, 2016 - Robert Reisner, Underground Storage Tank Authority. Administrator. Phone: 517-284-5141. Email: reisnerr@m
ASTSWMO LUST and State Fund-Financial Responsibility Workshop April 27, 2016







“Commingle” 1 : to blend thoroughly into a harmonious whole (Merriam Webster) “commingled” vs. “co-mingled” vs. “comingled” “plumes” vs. “plums”



Stopped accepting claims on June 29, 1995



Surprisingly, the commingled plumes issue arose on very few claims



Generally split costs 50/50 between eligible and ineligible releases if no other clear delineation could be made



Eligibility Requirements



Release discovered and reported on or after December 30, 2014



Compliance with UST registration and fee requirements



Release reported within 24 hours of discovery



Maintenance of FR for the deductible amount

1)

Releases that are being remediated with separate state funding mechanisms

2)

Ineligible substance commingled with an eligible substance

3)

Aboveground release commingled with UST release (if aboveground releases are not covered)

4)

Release that is ineligible due to the discovery date of the release or the age of the UST commingled with an eligible release

5)

Release with a non-eligible liable party commingled with an eligible release from a separate liable party

6)

Instance where a release is denied eligibility and the same liable party later has a release that is eligible

7)

Instance where a liable party has not been addressing a release(s) for many years and then files a claim for a new release upon the creation of a new state fund and the plumes are commingled (Common with MI new Fund)

Robert Reisner, Underground Storage Tank Authority Administrator Phone: 517-284-5141

Email: [email protected]

David Chambers Petroleum Remediation Section Supervisor Nebraska Department of Environmental Quality ASTSWMO LUST and State Fund-Financial Responsibility Workshop, April 27, 2016



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Like most other states, we’ve dealt with hundreds of these situations Fund covers almost every petroleum release PRS oversees every petroleum cleanup PRS controls the fund Splitting up responsibilities and costs is generally easy Most common examples are RP vs RP, orphan vs orphan, and RP vs orphan

David Chambers Petroleum Remediation Section Supervisor Nebraska Department of Environmental Quality 402-471-4258 [email protected]

SITE

Jennifer A. Marts, P.G. New Hampshire Department of Environmental Services

ASTSWMO Mid-Year Meeting Pittsburg, PA April 27, 2016



Funding



Types of Commingled Plumes



Case Studies



Types of NH Reimbursement Funds •

ODD, FOD, MOD, and GREE



Total Active Petroleum Sites: 955



Sites with Two Active Projects: 32 (3.3%) Sites with one plume Sites with two plumes



Sites not covered by Fund •

Responsible party is required to investigate and remediate (enforcement if necessary)

NHDES

RP

Working Together

Enforcement



On-site releases • •



Off-site releases impacting site • •



Two separate UST releases Petroleum and Non-petroleum

Petroleum Chlorinated

GREE Fund Releases

• • • •

Two UST releases (2003 and 2009) LNAPL discovered in MW-3 and MW-8 Recovery trench and wells installed Monitoring continues

USTs

SITE

• • •

UST petroleum release and PCE release LUST project and Hazardous Waste Remediation Bureau project opened Current groundwater monitoring under LUST project

Petroleum

Chlorinated



Small percentage of commingled plumes



Usually Fund eligible and if not, RP completes work



Enforcement (if necessary)



Work with our Hazardous Waste Remediation Bureau for non-petroleum releases

Jennifer A. Marts, P.G. New Hampshire Department of Environmental Services PO Box 95 Concord, NH 03301

Phone: 603-271-0652 Email: [email protected]

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This is the most simple, but usually the costliest. Each release obligates up to $1.5 million. Practice is to code the remediation to the first release until the cap is reached. If the cap is not reached, the second obligated amount is never used. An exception may exist if the releases are from different fuels, such as gasoline and diesel. In that case, different submittals would be coded to each release and each would have eligibility for the entire amount. This is a technical call based upon location of the tanks/contaminants.

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Louisiana employs a proportional system to allocate reimbursement. Tank numbers are totaled and the proportion of eligible tanks and ineligible tanks is calculated. (example-five tanks, four eligible, 80% reimbursement—same rule for motor fuel commingled with non-motor fuel-this can be a problem when the costs associated with the non-motor fuel are greatly in excess of costs for the motor fuel). Louisiana will deviate from this as facts dictate; for example, if the evidence from the investigation shows that the sources of the plume can be calculated with a degree of certainty, i.e., two 5000 gallon tanks for gasoline and one 100 gallon used oil tank, with sampling showing very little used oil in the plume.





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Louisiana covers all tanks holding motor fuels if they are registered prior to release, all fees are paid, they have dispensed motor fuels after July 15, 1988, and they have satisfied the owners responsibility amounts. Each release is covered for remediation and third party claims up to 1.5 million dollars. Statutes refer to the “release” in the singular. Louisiana has consistently interpreted the statute to provide coverage for each release. Louisiana does not cover above ground releases or for releases other than of “motor fuels.”

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One site, multiple releases, single owner; One site, multiple releases, different owners; One site, some tanks eligible, some not; More than one site, different owners, all eligible; and, More than one site, different owners, some sites eligible, some not. Ownership does not effect the eligibility determination. Each owner must meet eligibility requirements.

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This is the most simple, but usually the costliest. Each release obligates up to 1.5 million. Practice is to code the remediation to the first release until the cap is reached. If the cap is not reached, the second obligated amount is never used. An exception may exist if the releases are from different fuels, such as gasoline and diesel. In that case, different submittals would be coded to each release and each would have eligibility for the entire amount. This is a technical call based upon location of the tanks/contaminates.

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Two “owner’s responsibility” amounts would be assessed before the site becomes eligible. Louisiana has allowed owners to clean sites with diesel and gasoline releases without assessing a second “owner’s responsibility” amount by recognizing that in some cases the response action required for the gasoline spill will accomplish the clean up of the diesel release. In those cases, Louisiana will not accept any applications which test for diesel, but will require the owner to prove the diesel has been addressed (i.e., the testing has been done, but no claim is received for reimbursement).

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Each release would be eligible for the entire amount; Involvement of legal staff may be necessary; Allow for only one Response Action Contractor (RAC) for the site. Owners must agree. Louisiana will not accept two CAPS and two applications for reimbursement. Only one Corrective Action Plan (CAP) will be allowed (R.S. 30:2195.2(A)(1)(c)(i)). The provision requires that the department consider the cleanup using “cost effective” methods. Louisiana has interpreted that provision to require only one CAP with one RAC. Anything else will result in increased costs for duplicative billing for testing, O&M, and associated claims for reimbursement. Usually, only one system will be approved.

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Louisiana employs a proportional system to allocate reimbursement. Tank numbers are totaled and the proportion of eligible tanks and ineligible tanks is calculated. (example-five tanks, four eligible, 80% reimbursement—same rule for motor fuel commingled with non-motor fuel-this can be a problem when the costs associated with the non-motor fuel are greatly in excess of costs for the motor fuel). Louisiana will deviate from this as facts dictate; for example, if the evidence from the investigation shows that the sources of the plume can be calculated with a degree of certainty, i.e., two 5000 gallon tanks for gasoline and one 100 gallon used oil tank, with sampling showing very little used oil in the plume.









Get legal staff involved as meetings will be necessary. Issues of access, RAC selection, and remediation technology choice may need to be addressed. Louisiana will insist that one RAC and one CAP be prepared for the two or more sites with the commingled plume, just as in with multiple releases at one site with multiple owners. Agency may have to involve its Enforcement Division to bring pressure on the owners to decide on the RAC and to guarantee access. Investigation must be extensive to avoid the it’s his—no—it’s his defenses.







If the commingled plume is technically capable of being allocated by volume on the basis of location and concentration, costs will be allocated under this system. If the commingled plume is not technologically capable of being allocated, Louisiana will allocate the costs based on numbers, i.e., four stations, one fourth of the costs will be allocated to each site. Investigation is critical. Factors include concentration levels, location of the releases, type of motor fuel found, tank sizes and type of systems employed, age of tanks, etc.

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Investigation critical. Allocating between ineligible tanks and eligible tanks will be difficult. Louisiana will start with the general rule of allocation by tanks. Sites deemed eligible will be covered 100%. Only one RAC and one CAP will be allowed. Louisiana will review the investigation to see if the same actions necessary to clean up the eligible sites will also clean up the ineligible site. If so, it will allocate all reimbursement to the eligible sites even though some contamination is from the ineligible site.

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Louisiana maintains an abandoned tank program, R.S. 30:2195(F). If the ineligible site can be classified as an abandoned tank, costs associated with the remediation would be allocated with that fund on first, a proportional amount by sites, or by technical amounts based upon evidence discovered by the investigation. If the ineligible site is not an abandoned tank and cannot be remediated by the same actions remediating the other eligible site, Louisiana would have to place it on the list for Hazardous Waste Clean Up funding. This requires a ranking and would result in a significant delay.

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Hydraulic Lift contamination. If a dig and haul, Louisiana would allocate all expenses to the motor fuels cleanup if the hydraulic fluid is also in the motor fuels plume. If a recovery system is employed, to the extent that it would clean the lift contamination, it would be fully reimbursed. The fund would not reimburse for any testing for the fluid, nor would it cover costs of disposal if the material had to be taken to a hazardous waste facility. The same analysis would be employed for other contaminates that are commingled.