The Arkansas Department of Environmental Quality (“ADEQ”) and Sloan Valve Company (“Sloan”) entered into an April 26th Elective Site Clean-Up Agreement (“ESCA”). See LIS 17-031.
The ESCA addresses Sloan’s facility (“Site”) located in Augusta, Arkansas which is described as conducting:
. . . brass foundry and brass valve casting operations at the Site and is a Large Quantity Generator of hazardous waste.
ADEQ describes an ESCA as a means to allow participants to address historic contamination on a site without penalty and with known objectives.
Various federal and state programs (including the ESCA and others in Arkansas) use risk-based corrective action remediation standards to tailor clean-up levels according to site-specific factors. Such programs often take into account criteria such as to what extent the site is characterized and/or future land use. Typically, superimposed upon these various procedures are site-specific analyses and a requirement that the standards be protective of human health and the environment.
Agencies may be willing, in some circumstances, to provide “blessing” (subject to certain caveats) of a site’s conditions if they deem contaminants adequately delineated and/or isolated from potential exposure. The approval of site conditions will likely be based on a combination of acceptability under applicable screening levels and/or whether the property uses are compatible with these conditions. The incorporation of enforceable institutional controls (i.e., deed restrictions, restrictive covenants or easements) or controls such as barriers (pavement in a certain area, etc.) may be used to ensure continued adherence to the restrictions by the current and future real property owner.
Sloan is stated to have entered into a Consent Agreement and Final Order (“CAFO”) with the United States Environmental Protection Agency (“EPA”) on October 25, 2016, for violations of the Resource Conservation Recovery Act. The CAFO is stated to have required that Sloan submit to ADEQ a letter of intent to enter into an ESCA to address an area located around the North Baghouse that had been determined to be contaminated with lead at the Site.
Sloan submitted a letter of intent dated November 1, 2016, to ADEQ to address contamination at the site.
A “Remediation Plan for the area around the North Baghouse Concrete Pad” (“Remediation Plan”) was submitted to ADEQ in November 2016. The CAFO provides that Sloan has until November 1, 2018 to obtain a “No Further Action Determination” from ADEQ regarding cleanup of the Site.
The ESCA states that the information submitted by Sloan has been reviewed by ADEQ technical staff. It is stated to have not yet been confirmed for accuracy or sufficiency.
The ESCA requires that Sloan implement the Remediation Plan upon written approval from ADEQ and submit a report of findings to the agency within 120 days from the Remediation Plan approval date.
Additional requirements include submission of all reports, summaries, sampling results, and analytical data from prior EPA inspections during specified dates and submission of a completion report documenting the results of the implementation of the Remediation Plan.
The ESCA also includes an obligation to amend the Remediation Plan in the event it fails to accomplish remediation sufficient to protect human health and the environment based on a risk-based approach. Reporting of deed restrictions are cited as a possibility (if necessary) to restrict activities and compatible uses that will protect the integrity of any remedial action measures implemented on the property.
Upon ADEQ approval of the previously referenced requirements and the receipt of deed restrictions (if required), the agency will issue a “No Further Action” determination to Sloan. This No Further Action determination is qualified as being conditioned on a specific property use and potentially includes:
- Maintenance of existing pavement or ground cover
- Use of air monitoring instruments during excavation
- A deed restriction on use of groundwater beneath the Site for any use
- A specific property use including land use controls
Additional requirements include avoiding activities that would aggravate or contribute to contamination of the air, land, or water (including downward migration of contamination from any existing contamination on the site). Further, Sloan is prohibited from using or redeveloping the site in a manner that differs from the terms or procedures established under the ESCA.