The Texas Risk Reduction Program Rule
Applicability – Focus on Specific Issues
Phase II ESA Transition to TRRP
Soil Relocation and Reuse
Paul S. Lewis, P.G.
Division Support Section
Remediation Division
Texas Commission on Environmental Quality
1
Specific Issues
I.
Phase II Environmental Site
Assessment (ESA) transition to
TRRP
I.
Pre-TRRP
Establish
Applicability
Affected Property
Assessment
Tiered PCL
Evaluation
Remedy Standard
Selection
II.
Soil Relocation and Reuse
I.
Concurrent or Post-TRRP
Response Action
Post-Response
Action Care
No Further Action
2
I. Phase II ESA
Why do ESAs?



Establish defenses to CERCLA liability for commercial real
estate transactions
Lender requirement (also VCP application)
Performed in phases prior to
TRRP:


Phase 1 – identify Recognized
Environmental Condition (REC)
Phase II – sample RECs for
releases
3
Release defined
Pick your verb:

Spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping or disposing
into the environment
4
Release

Release not defined by


Concentrations, quantities, rates or durations
Other statutes, rules, guidance define actionable
thresholds. Some examples:



Statutes: TWC 26.301, THSC 361.003
Rules: 30 TAC Chapters 327, 334, 350
Guidance: “Determining Which Releases Are Subject to TRRP”
found at:
<https://www.tceq.texas.gov/remediation/trrp/guidance.html>
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Phase II Objective


ASTM E 1903 Standard Guide for Phase II ESA
Basic objective – determine by sampling if RECs released
Hazardous Substances or Petroleum Products to
environmental media



40 CFR 302 Table 302.4 lists ~800 Haz. Substances
Standard guide does not specify analytes
Common practice – use SW-846 methods as scans:




VOCs
SVOCs
PCBs
Metals
8270
8260
8082A
6020B
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Use of Professional Judgment

The Environmental Professional (EP) can use professional
judgment to conclude:



A release occurred or not
Additional assessment needed or not
Common practice to compare analytical results to
regulatory levels to aid in this decision


Organics – not naturally occurring
Problem for metals
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The Problem with Metals

Metals can occur naturally in soil – detection is likely
“Round up the usual suspects!”
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Considerations
Does Phase I review indicate the metal was used in
processes at the REC?
 Exceed the Texas median background (350.51(m))?
 Within the range of site-specific background?
 Anthropogenic background?
All things considered, is the metal reasonably anticipated to
have resulted from a release?
Use logic similar to TRRP-10 Selecting Target Chemicals of
Concern to conclude there has been a release.

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What happens after ESA Phase II


Phase II outcome is not an automatic ride to TRRP
The Environmental Professional can conclude




REC has or has not released hazardous substances
Recommend additional assessment if data insufficient, or
Justify leaving substances without additional assessment
Options if parties decide to transition to TRRP


Full TRRP in accordance with 30 TAC 350
“TRRP Lite” using the 11/19/10 memo “Determining Which
Releases Are Subject to TRRP”, subject to Program requirements
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Release Memo of 11/19/10
“TRRP Lite”
“Determining Which Releases are Subject to TRRP”




Current memo is dated 11/19/10
Intended for relatively small releases that can be resolved quickly
Does not apply to substances used as intended
 Ex: lawfully applied pesticides, fertilizers, treated wood
Specifies when TRRP standard reports (e.g., APAR) are not required
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Assumptions for Use
Notice of release was sent to TCEQ
 All source areas adequately identified
 Samples are properly collected and analyzed for COCs
 COCs assessed to less than Action Levels
 Groundwater must be sampled for COCs at source areas
where soil action levels are exceeded
If any of these assumptions are invalid for a release, use
the full TRRP process.

Note: the memo was written for use in a self-implementing,
non-enforcement context.
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Summary Table
Scenario
Trigger
Corrective
Action
Report
1
No Release
COC = MQL/Bkg
None
No Report – No
Deadline
2
< Action Levels
COC < Action Level
(Tier 1 PCLs)
None
Letter report – No
Deadline
COC > Action Level
(Tier 1 PCLs)
Remove/Decon to
PCLs or SPLP
Letter report if
corrective action
finished < 60 days
3
> Action Levels
All other situations that don’t meet Scenarios 1, 2, or 3 and the basic assumptions for
use of 11/19/10 memo must follow normal TRRP process and standard reports (e.g.,
APAR) to utilize full TRRP flexibility.
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Action Levels
Lowest applicable Tier 1 Residential PCL for 0.5 ac.
Source area and Class 1 groundwater
Media
Tot
Soil
Surface Soil
Comb
GW
X
Ground
water
X
GW
GWIng
X
Air
SoilInh-V
X
Subsurface
Soil
Media
SoilIng
Air
GWInh-V
X
Bkg/MQL
X
X
X
Bkg/MQL
X
If Bkg/MQL > PCL, use higher of Bkg or MQL as the Action Level
PCL – Protective Concentration Level GW – groundwater Bkg – background MQL –
method quantitation limit
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Scenario 1
No TRRP standardized reports required when:
 COCs are equal to or less than Bkg/MQL



Can use site-specific or Texas Median background
No other evidence of a release
No response actions used to achieve Bkg or MQL
Other Program reports could apply
(e.g., closure report).
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Scenario 2
Use Tier 1 Ecological Exclusion Criteria checklist and
Action Levels to evaluate the release


If site fails checklist, go to full TRRP
Use letter report:
 If site passes Tier 1 Eco Exclusion Criteria checklist,
 If COCs < Soil Action Levels, and
 No evidence of other affected or threatened media
Full TRRP Applies?
Yes
No
x
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Scenario 3
Any of the following make TRRP apply:




Site fails Tier 1 Exclusion Criteria checklist
No groundwater samples are collected at release or
source area when COCs > soil Action Levels
COCs in groundwater exceed Action Levels
COCs in soil exceed Action Levels, but:

Soil options not used, or failed to reach levels
Full TRRP Applies?
Yes
x
No
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Scenario 3 – Soil Options
Soil Pathway
Option
Soil Comb
Air Soil
Inh-V
Excavate
Tot
GW
SoilIng
SPLP Test* or
Excavate
* Use soil options only if groundwater testing < action level



Synthetic Precipitation Leaching Procedure (SW-846 Method 1312)
SPLP Action Level is GWGWIng
SPLP Test can be done before, after, or in lieu of excavation
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SPLP Tests

Common Practice:




Compare SPLP results to Groundwater PCL from Table 3 of
Tier 1 PCL Lookup Tables
“Drinkable Leachate” test
Tier 3 approach – does not fit definition for Tier 1 or 2
Use with other lines of evidence to show that soil is
protective of groundwater
Example – Arsenic:
Soil conc. =
100 mg/kg
Leachate =
0.008 mg/L
Water PCL =
0.010 mg/L
Is Soil protective of Groundwater?
Yes
No
SPLP – Synthetic Precipitation Leaching Procedure, EPA SW-846 Method 1312
Acid
Soil
Leachate
“Drinkable” = PCL
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Outcomes for Soil Options


Fail SPLP or Direct Comparison?
Excavate and test again



Repeat actions must be done within 60 day limit
Otherwise full TRRP will apply
If options achieve Action Levels – Document actions in a
Letter Report
Full TRRP Applies?
Yes
No
X
II. Soil Relocation and Reuse

WHAT: Moving soil for reuse purposes
Establish
Applicability

WHEN: During or after response action
Affected Property
Assessment




WHERE: From Affected Property to
another location
HOW: Make protective for new location
WHY: Alternative to landfill disposal
DETAILS: Refer to 30 TAC 350.36, RG366/ TRRP-3, Program requirements
Tiered PCL
Evaluation
Remedy Standard
Selection
Response Action
Post-Response
Action Care
No Further Action
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Remedy Standard A
Soil relocation requirements:

Meet critical soil PCLs at new location

Protect ecological receptors

Meet all requirements of 30 TAC 350.32(a)

File institutional control for commercial/industrial land use

Self-implement under certain conditions
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Self-Implementation
No prior approval needed from Agency for Standard A if:
 COCs < Standard A critical PCLs for new location
 New location on property containing Affected Property
 Owner gives written consent to Person when COCs >
background
All other cases need prior approval
 Standard A on property without Affected Property
 Standard B
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Remedy Standard B
Soil relocation requirements:
 Meet critical soil PCLs at new location
 Protect ecological receptors
 Meet all requirements of 30 TAC 350.33(a)
 File applicable institutional control for either land use
 Obtain prior approval; cannot self-implement
 Conduct post-response action care if required
 Provide financial assurance if required
 Submit post-response action care reports
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Requirements for both Standards
Within 90 days of completing the soil relocation:

Submit proof of filing the required institutional control

Prepare applicable portions of a Response Action
Completion Report (RACR)

Make the RACR available for inspection or submission
upon request
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Limitations




Landowner consent withheld
NAPL in soil will require treatment per TRRP-32
Hazardous waste (RCRA) Land Disposal Restrictions
COCs not protective for new location



Institutional controls



Human Health
Ecological
Standard A Commercial/Industrial
Standard B
Regulatory obligations continue
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Examples

Place in core of dike or levee

Road base for on-site industrial property

Land surface re-contouring for development

Fill material beneath slab foundation
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Scenarios



On which properties can Person self-implement?
Which property owners have to give consent to receive
relocated soils?
Owner #3 wants soil to build up land for a slab
foundation. Which standard to use and why?
Property #1
Property #2
Property #3
Owner #2
Owner #3
Affected Property
Owner #1 Person
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Final Scenario




Owner #3 had an open pit filled to grade
with relocated soil from Property #1 that
met Standard A residential criteria
Land is now for sale
Prospective Purchaser orders a Phase I & II
ESA
Metals are detected
What Happens Now?
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