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The Arkansas Department of Energy and Environment - Division of Environmental Quality (“DEQ”) and Univar Solutions USA Inc. (“Participant”) entered into a June 30th Elective Site Clean-Up Agreement (“ESCA”). See LIS 21-075.
The ESCA addresses a facility located in Jacksonville, Arkansas (“Site”).
The ESCA states that between 1973 and 2019 Participant and its corporate predecessors occupied the Site. Operations are stated to have included bulk handling and repackaging of chemicals. Further, the Site is stated to have included a warehouse building and an aboveground storage tank (“AST”) farm.
The Site is stated to be currently vacant. Further, the ASTs have been removed.
Participant’s consultant (EHS Support) is stated to have conducted a limited Environmental Site Assessment (“ESA”) in January 2020. The purpose of the ESA was to evaluate indoor air, sub-slab and soil vapor. Further, soil was sampled.
Participant is stated to have entered into an ESCA with DEQ on November 30, 2020, seeking environmental regulatory closure for activities related to its historical operations.
Various federal and stated 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.
The Participant in this DEQ ESCA is required to submit a Sampling and Analysis Plan (“SAP”) to the agency designed to:
- Determine the horizontal and vertical extent
- Rate of migration
- Type and concentration of any hazardous substance or pollutant present in the environment at the Site
Participant is required to implement the SAP upon receipt of a written approval from DEQ. Further, it is required to submit a report of findings to DEQ according to dates established in the approved SAP.
If the SAP fails to accomplish an adequate determination of the extent, type or concentration of released hazardous substances or pollutants in the areas investigated per the approved SAP, Participant is required to amend the document to provide for additional sampling and analysis to accomplish the relevant requirements. The amended SAP must be implemented upon DEQ approval and findings reported.
A Remedial Action Plan (“RAP”) is required to be submitted to DEQ to mitigate, prevent migration, and remediate the contamination at the Site to the extent necessary to protect human health and the environment using a risk-based approach. An implementation schedule is required. Upon completion of the remediation activities, Participant must submit a completion report documenting the relevant results.
DEQ’s determination that the RAP has failed to accomplish remediation requires that Participant conduct additional remedial activities. The standard is whether or not DEQ determines that the remediation has protected human health and the environment from hazardous substances or pollutants from the Site.
Within a specified period of time (as per the ESCA) DEQ may require (if necessary) a deed restriction to provide notice to successors in title that use of the Site will be restricted to certain activities and uses that will protect the integrity of any remedial action measures implemented. Such deed restriction is required to be recorded in the property records in the county in which the Site is located.
DEQ will issue a “No Further Action” determination upon approval of the Completion Report and receipt of relevant deed restrictions (if required). The Participant and owner are required to take all steps necessary to prevent aggravating and contributing to contamination of the air, land, or water in regards to existing contamination.
A copy of the ESCA can be downloaded here.
