Minnesota Department of Transportation!Office of Environmental Services!Environmental Investigation Unit"

Contaminated Property Management!

Pre-Design and Design!Identify known or potentially contaminated properties"

Right of Way Acquisition !Reduce liability risk from purchase of contaminated properties!

Construction - Develop cleanup plans, write contract Special Provisions, obtain regulatory agency approvals, monitor cleanup actions, document disposal"

Phase I Environmental Site Assessment Review"

Phase I Environmental Site Assessment!

!All Appropriate Inquiry (AAI) !!(2002 Federal Brownfields Amendments to CERCLA e"ective November 1, 2006)!!A standardized federal process by which a property’s potential for environmental contamination is investigated prior to purchase!

!Full AAI compliance is part of the requirements to give you protection from CERCLA liability as an innocent landowner, a contiguous property owner, or a bona fide prospective purchaser !

!ASTM E1527-05!

REC --Recognized Environmental Condition !

!The presence or likely presence of any hazardous substances or petroleum products on a property under conditions that indicate an existing release, a past release, or a material threat of a release of any hazardous substances or petroleum products into structures on the property or into the ground, ground water, or surface water of the property. The term includes hazardous substances or petroleum products even under conditions in compliance with laws. The term is not intended to include de minimis conditions that generally do not present a threat to human health or the environment and that generally would not be the subject of an enforcement action if brought to the attention of appropriate governmental agencies. Conditions determined to be de minimis are not recognized environmental conditions. #

Phase I ESA has 3 Research Areas!

1. !Historic Land Use!

2. Current land Use!

3. Regulatory History!

Phase I Research Summary!n! Historic Land Uses!

n! Fire Insurance Maps (late 1800s to 1960s)!n! Historic Aerial Photographs (1930s to present)!n! Building and Assessor’s Records (late 1800s to

present)!n! City Directories (early 1900s to present)!n! Historic Topographic Maps (late 1800s to present)!

n! Current Land Uses!n! Site Inspection (Good Housekeeping, Environmental

Setting)!n! Interviews!

n! Regulatory History!n! State-Listed Contaminated Sites (Superfund, VIC, LUST

programs, etc.)!n! Tanks, Leaks, Spills, Dumps, LQG, Violations!

Regulatory History!

Minnesota Pollution Control Agency Website"

What's in My Neighborhood?!http://www.pca.state.mn.us/backyard/neighborhood.html!

Minnesota Aboveground / Underground Storage Tank Site Search!

http://www.pca.state.mn.us/programs/lust_pSearch.cfm!

Regulatory History!

Minnesota Department of Health Website"Welcome to County Well Index Online "http://www.health.state.mn.us/divs/eh/cwi/!

Minnesota Department of Agriculture Website"What's in My Neighborhood? !http://www.mda.state.mn.us/chemicals/spills/

incidentresponse/!

What types of Sites are Typically Associated with what Types of Contaminants? "

Volatile Organic Compounds—VOCs"

Petroleum, solvents, paints, paint thinner, degreasing agents, alcohol, freon, propellants, adhesives, foams!

§! Gas stations!§! Bulk Oil Storage !§!Vehicle Service and Repair !§!Dry Cleaners !§!Manufacturing associated with electronics, !plating, plastics, printing!§!Dumps!§!Historic Urban Fill !

Semivolatile Organic Compounds—SVOCs"

Petroleum or Creosote Oils, Tar, Bitumin, Pitch!Phenols, Polynuclear Aromatic Hydrocarbons (PAHs) Plasticizers (Pthalates)!

§!Wood treatment sites!§!Refineries!§!Coal Gasification Plants!§!Rail Yards!§!Industrial sites where incomplete combustion of organic fuels (coal, petroleum) can occur !§! Historic Urban Fill (demo debris, cinders, foundry sand, etc.)!

"Metals !Antimony, Arsenic, Beryllium, Cadmium, Chromium, Copper, Lead, Mercury, Nickel, Selenium, Silver, Thallium, Zinc"

Batteries, Ash, Thermometers, Fluorescent lighting, Pigments, Dyes, Paints, Inks, Photography!

§!Foundries!§!Scrapyards!§!Recyclers!§!Metal fabrication, molding, and plating!§!Petroleum (Lead additive)!§!Railyards!

Polychlorinated Biphenyls—PCBs"

Formerly used in transformer, hydraulic, cutting and transmission oils; can be associated with waste oils!

§!Rail yards!§!Dumps!§!Salvage yards (burning wire)!§!Auto Flu"!§!Transformers—associated with electrical utility lines!§!Older fluorescent light ballasts!§! Caulk!

Pesticides, Herbicides"

§! Bulk pesticide/herbicide dealers!§! Rail yards!§! Greenhouses!§! Garden centers, orchards!

Asbestos"

§!Transite siding, water pipe!§!Caulk!§!Ceiling tile!§!Floor tile!§!Wallboard!§!Insulation!§!Mastics!§!Roofing felt and cement!§!Transite conduit!§!Culvert lining!§!Boiler lining!§!Bridges (cements, putties, insulation)!

Other Contaminants of Concern"

n! Explosives!n! Dioxins/Furans!n! Detergents and Non-Hazardous Janitorial

Chemicals!n! Cyanides!n! Fertilizers!n! Medicines and Antibiotics!n! Inorganic Salts!n! Methane and Propane Gases!

Joint and Several Liability"

Legal obligation under which a party may be liable for the payment of the total judgment and costs that are associated.!

n! Petroleum Storage Tanks!n! Brownfields!n! MERLA!n! CERCLA!

Petroleum Tank Release Cleanup Act Minn. Stat. ch. 115C"

“...a person is responsible for a release from a tank if the person is an owner or operator of the tank at any time during or after the release.”!

Minnesota Environmental Response and Liability Act (MERLA)!Minn. Stat. ch. 115B"

“...a person is responsible for a release or threatened release of a hazardous substance, or a pollutant or contaminant, from a facility if the person:!! !(1) owned or operated the facility...”!

Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)!U.S.C. Title 42 ch. 103 sec. 9601 et.seq."

“...(1) the owner and operator of a vessel or a facility, (2) any person who at the time of the disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of, (3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment...from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance, shall be liable for – (A) all costs of removal or remedial action incurred by the United States Government or a State or an Indian tribe not inconsistent with the national contingency plan;...”!

Petroleum Tank Release Cleanup Act Minn. Stat. ch. 115C.021 subd. 3a!effective June 1, 1997"

“The department of transportation is not responsible for a release from a tank under this section solely as a result of the acquisition of property or as a result of providing funds for the acquisition of such property either through loan or grant, if the property was acquired by the department through exercise of the power of eminent domain...”!

Minnesota Environmental Response and Liability Act (MERLA)!Minn. Stat. ch. 115B.175 Land Recycling Act 1992!Voluntary Investigation and Cleanup Program (VIC)"

“Subject to the provisions of this section, a person who is not otherwise responsible...for a release or threatened release will not be responsible under those sections for the release or threatened release if the person undertakes and completes response actions to remove or remedy all known releases and threatened releases at an identified area of real property in accordance with a voluntary response action plan approved by the commissioner.”!

CERCLA §§ 101(40)(B), 107(q)(1)(A)(viii), 101(35)(A)(i),(B)(i)."

!To meet the statutory criteria of a bona fide prospective purchaser, contiguous property owner, or innocent landowner, a person must perform “all appropriate inquiry” into the previous ownership and uses of property before acquisition of the property, AND meet continuing obligations.!

Continuing Obligations under CERCLA"

n! Land Use Restrictions and Institutional Controls !

n! Reasonable Steps (Stop continuing releases, Prevent threatened future releases, and Prevent or limit human, environmental, or natural resource exposure to earlier hazardous substance releases)!

n! Cooperation, Assistance, and Access !n! Compliance with Information Requests

and Administrative Subpoenas !n! Providing Legally Required Notices !

Buyer Beware! Once on the Chain of Title, You are Tied to the Land Forever"

1885"

1930"

1951"

1969"

Actual statements (paraphrased) we have heard!By persons who will remain anonymous"

n! “We never tell the contractor about contamination we know about, because we don’t want them to make a big deal about it.” (city engineer)!

n! “We know there’s probably contamination on the project, but we’re not going to test for it or put anything into the contract because then the bids will be too high.” (city consultant)!

n! “We can’t a"ord to do a Phase II investigation so we’ll just assume all the soil on our project is contaminated.” (city consultant)!

n! “We don’t have to worry about contamination on our project because we’re not buying any new right of way.” (county)!

Actual statements (paraphrased) we have heard!By persons who will remain anonymous (contd.)"

n! “We know there are five gas stations with releases in the corridor, but that won’t a"ect our project because it’s just a mill and overlay (--oh, and with new sanitary, storm and water too)” (city)!

n! “It doesn’t matter if we run into contamination because the Superfund will pay for it all. Right?” (civil engineer)!

n! The site has regulatory closure, so it’s clean. Right?” (civil engineer)!

n! “It’s OK to buy part of a Superfund site because the part we’re buying is clean. Right?” (city engineer)!

Actual statements (paraphrased) we have heard!By persons who will remain anonymous (contd.)"

n! Why do we need to worry about liability if we’re in VIC? (real estate person)!

n! Why do we have to deal with the contamination? We didn’t put it there.” (project engineer)!

n! When I worked for the City/County, we never worried about contamination, why is Mn/DOT worried?”!

Environmental Investigation Unit#O$ce of Environmental Services#

Minnesota Department of Transportation!

Brian Kamnikar (Supervisor): 651-366-3617!Keri Aufdencamp (Contamination): 651-366-3627!David Liverseed (Contamination): 651-366-3640!Karlene French (Contamination): 651-366-3609!Nancy Radle (Contamination): 651-366-3621!Mark Vogel (Asbestos/Reg. Waste): 651-366-3630!Jackie Klein (Asbestos/Reg. Waste): 651-366-3637!Summer Allen (Tank Compliance): 651-366-3635!Robert Edstrom (Toxicology): 651-366-3608!