8/21/09 1 Tanks RBCA Rules: DNR/PSTIF Primary Issues with Rule ...

Tanks RBCA Rules: DNR/PSTIF Primary Issueswith Rule Citations1. Method of Applying Risk Based Corrective Action (RBCA): Should the rules retain astreamlined method for initially applying the RBCA process to petroleum releases?a. DNR rule stipulates full RBCA process when contaminants exceed Default TargetLevels (DTLs) or approved residential standards. See DNR rules 2.072(2) and2.062(5).b. PSTIF rule incorporates DNR’s cleanup standards, but retains the process that wasavailable in the old rules/standards, which streamlines and simplifies the initial riskbasedassessment and corrective action process. See PSTIF rules 2.052(4) and 2.073.2. Delineation Criteria: Should the required investigation of the extent of petroleum impact insoil and groundwater, (i.e., the “site characterization”), be based on the cleanup standardsapplicable to the property, or should the site characterization requirement be the same for allproperties?a. DNR’s rule stipulates that the delineation criteria are the DTLs or, where thedomestic use of groundwater pathway is demonstrably incomplete, other approvedresidential target levels. See DNR rule 2.076(14).b. PSTIF’s rule stipulates that the delineation criteria are based on the ConceptualModel, which must be submitted to and approved by DNR. See PSTIF rule 2.077(9).3. Land Use Determinations: How should the decision be made as to what the “reasonablyanticipated future use” (RAFU) of a property is?a. DNR rule specifically states that the department will make the land use decisionbased on information provided by the owner/operator and the owner of the propertyto which the determination applies. See DNR rule 2.075(9).b. PSTIF rule says the owner/operator must gather and present evidence to support aconclusion, as was required in the 2004 Tanks RBCA Guidance, and that the DNRhas the ultimate authority and responsibility to determine what the RAFU of eachproperty is. See PSTIF rule 2.076(6).4. Plume Stability Evaluations: Predominantly an issue of the type and extent of data requiredto demonstrate that a plume is stable.a. DNR rules require minimum of two years of quarterly data. Supported by statisticalmethods and experience. See DNR rule 2.076(17)(C) and 2.076(18)(D).b. PSTIF rule doesn’t specify any minimum; rather it requires the owner/operator todocument, to DNR’s satisfaction, that petroleum is not continuing to migrate. SeePSTIF rule 2.077(12)(A) and 2.077(13)(D).5. Notification of Adjacent Owners: When and how should adjacent property owners benotified that contamination has or may have migrated onto their property?a. DNR rules require notification when contaminant concentrations exceed DTLs orapproved residential target levels, and provide that DNR may be initiate thesecommunications. See DNR rules 2.076(22), 2.079(3)(C) and 2.080.b. PSTIF rules say that notice is triggered if/when it appears adjacent property(ies) mayhave been impacted by the release at levels exceeding the standards applicable to that8/21/09 1

property, (based on its current and future use), and rely primarily on procedurestraditionally used by owners and their consultants to gain legal access to thoseproperties. See PSTIF rules 2.073(1)(A), 2.076(1), 2.077(9).6. LTS: What is the purpose of “long term stewardship” and how can that purpose best beachieved?a. LTS required when contaminants will remain above residential targets. Ruledifferentiates between the need for enforceable and informational LTS. Enforceablerequired when actions could cause a pathway to become complete, when anengineered control is used, and where otherwise determined to be necessary.Otherwise, informational device sufficient – in particular when land use is onlyreason for LTS. See DNR rules 2.079(2), 2.079(5)(C), and 2.081.b. PSTIF rules do not contain any requirements for owners/operators to “do LTS” anddo not require the use of Activity & Use Limitations (AULs) under anycircumstances. Rather, AULs are allowed as one of various corrective action optionsto address risks. See PSTIF rules 2.079(3) and 2.079(11).7. Elimination of Soil-Type-Specific RBTLs: Eliminate the three sets of Tier 1 Risk BasedTarget Levels (RBTLs) developed in 2005.a. DNR rules keep the soil type dependent RBTLs in Tier 1. See DNR rule 2.075(7)(G),2.076(11), and 2.078(2)(B).b. PSTIF rules re-establish Tier 1 RBTLs as “look-up” standards and incorporate sitespecificassessment and standards into Tier 2. See PSTIF rules 2.075 and 2.077.8. Rule Language References to the Department: How should the rules describe/incorporateDNR’s role and responsibilities?a. The department’s rules include more references to the department’s role as theauthority for the RBCA process and specific minimum criteria, most related to sitecharacterization. Regarding examples of specific minimum criteria, see DNR rule2.076; references to department’s role throughout.b. The PSTIF rules require the o/o to meet DNR’s requirements and submit one or morereports to DNR, and require the Department to review and approve/ disapprove theo/o’s reports/conclusions. However, the owner/operator and his/her consultant areresponsible for deciding how to meet DNR’s requirements. See PSTIF rules2.052(4); 2.061; 2.071(2); 2.072(3); 2.074(1)(E); 2.075(2)(H), (4), (6)(A), (7)(A), (8)and (9)(F); 2.076(6)(B); 2.077(15), (16) and (17)(A); 2.078(6); 2.079(2), (5), (7)(A),(7)(B), (9)(D), and (12.)9. Rule Structure: The structure of the DNR and PSTIF rules differ. PSTIF rule structure iscleaner, but that is in part due to the elimination of certain rules and rule provisionsthroughout. In particular, DNR rules 2.081 on “Long-Term Stewardship” and 2.082 on “NoFurther Remedial Action Determinations” do not appear in PSTIF rule package)10. Inclusion of RBTLs in the Rulesa. DNR rules incorporate specific RBTLs by reference, but with qualifying language toallow the department to apply a different RBTL without an immediate rule change ifthe scientific data used to develop the original RBTL changes. See DNR rule2.012(D)2 and 2.012(R)6.8/21/09 2

. PSTIF includes DNR’s RBTLs in their rule 2.078. This method of incorporationmeans that the department could not change a RBTL without changing a rule. SeePSTIF rule 2.078(3) and Tables 1 through 6.11. PSTIF Appeal Rulea. DNR did not include an appeals rule in its rule packageb. PSTIF has proposed an appeals rule. See PSTIF rule 2.090.12. (Deleted.)13. Shall the definition of “site” be changed?a. DNR rules define “site” as “current and future areal extent of contamination…” SeeDNR rule 2.012(1)(S), p.847.b. PSTIF’s proposed rules define site as DNR traditionally defined it and in thesame way as it is defined in the PSTIF Board’s rules. See PSTIF rule 2.012(1)(S), p.8 of 9.14. Shall the term “free product” in the old rules be changed to “light non-aqueous phase liquid”(LNAPL) in the new rules?a. DNR rules change all or nearly all references in the old rules. Multiple places.b. PSTIF rules retain the old “free product” rule and add requirements to it; inaddition, separate and distinct requirements for “LNAPL” are included in the SiteCharacterization rule. For examples of where the PSTIF rules retain DNR’s currentrule language, see 2.060(1)(A); 2.061; 2.071(1)(C) and (F); 2.072(1)(D); and parts of2.074. For examples where PSTIF’s rules propose new language related to “freeproduct,” see 2.072(2)(B); parts of 2.074; 2.075(7); 2.076(4)(C) and (4)(D), (9),(10)(D)2.D and E; 2.077(2)(N); 2.077(13); 2.079(2)3; and 2.079(7).15. Shall the old public participation rule be retained or replaced?a. DNR rules replace the old rule with a new rule. See DNR rule 2.080.b. PSTIF rules retain the old rule with a change to one section. See PSTIF rule2.080.16. When USTs are removed and soil samples are collected from under the tanks and piping,what standards should the soil data be compared to?a. DNR rules require comparison with either the standards protective of thedrinking water ingestion pathway or, if that pathway is incomplete, the residentialindoor inhalation pathway. See DNR rule 2.062(5) and (7).b. PSTIF rules are similar, except the rule specifies that the current and futureland use be determined, then either the residential indoor inhalation standards or thenon-residential indoor inhalation standards are used, as appropriate, (and subject toDNR approval.) See PSTIF rule 2.052(4).8/21/09 3