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How Much Environmental Investigation is Required?

Environmental Investigation Requirements: How Much Is Needed?

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“It seems like the regulator has the power to keep asking for more and more with no end in sight. I’m frustrated! Where does this all end?”

I could see my client was ready to blow up. The oversight regulator had just looked up from a figure she was contemplating and said, “Maybe we need some more samples in this area,” pointing to a small patch of the map that already had two sample locations. “There may be contamination extending beyond those sample locations.”

It was true that there may be more contamination beyond the boundary set by the sample locations, but we argued there was enough data to draw a boundary around most of the contamination and adequately characterize the extent of the contamination.

“Well I’m not sure,” said the regulator, “I’ll have to check with my supervisor.”

As we entered the elevator for a trip down to the lobby, my client let out a giant sigh, “Are you kidding me - when’s enough enough?”

“Last time she said we should be able to wrap up the investigation with the latest data - now this,” my client bemoaned. “I know you told me, but what exactly are they looking for?”

“Let’s go for a cup of coffee and I’ll try to explain.”

Guiding Policy: Understanding California Regulatory Policy for Environmental Investigation and Cleanup

We took some time to flavor our coffee and regroup from the meeting in silence. I began, “I am really sorry about this situation and I totally understand your frustration.”

“Thank you,” he said. “I really appreciate your effort, but it just seems like we haven’t budged an inch, even though we’ve done everything they’ve asked and spent a fortune.”

“Well, I know it seems like our regulator has it out for us, but really, she is following California regulatory policy,” I explained. “Our regulators are guided by the policies and procedures for investigation and cleanup described in State Water Resources Control Board Resolution  No. 92-49.”

“In general, 92-49 requires the regional water board, our regulator, to use certain policies when they oversee investigations to determine the nature and horizontal and vertical extent of a discharge. In our case, the discharge is the contamination we are dealing with,” I said.

I went on to let my client know that by “nature of contamination” they mean what is contaminated - soil, groundwater, and/or soil gas, the source or sources of contamination, the chemical composition of contamination, the magnitude of contamination, and the health risk of the contamination.

By “horizontal and vertical extent” they mean the area of contamination in soil, groundwater, and/or soil gas, and the depth of contamination in soil, groundwater and/or soil gas.

I explained that 92-49 requires that investigation and cleanup be conducted in a progressive sequence that includes a preliminary site assessment, soil and water investigation, cleanup, and monitoring. Resolution 92-49 also requires that investigation and cleanup be extended to any location affected by the contamination. Importantly, 92-49 requires that regulators only suggest means of compliance. They are not allowed to specify action such as directing where to place a sample point.

“Well, then tell me how we determined the nature and extent of contamination at my site.” my client asked. “Where is our regulator stuck?’ 

Nature of Contamination

Site Investigation and Sampling Methods Used for Describing Contamination

To describe the nature of the contamination, we reviewed records of property use and conducted interviews with users of the site, we determined where the likely source of contamination was located, and we reviewed records for nearby sites that have had an environmental investigation. This information allowed us to plan our preliminary investigation.

wellandGWmetersDuring the field portion of our preliminary investigation, we collected soil, groundwater, and soil gas samples. We initially collected soil gas samples over a wide area of the site orientated to catch the source area and anticipated direction of groundwater flow. The soil gas sample results allowed us to identify the source area, the range of contaminant levels, and the lateral distribution of contamination.

With the soil gas information, we designed a plan for soil sampling and analysis, groundwater sampling and analysis, and groundwater monitoring. The plan was approved by our regulator and we implemented the plan.

With the information we collected, we were able to describe what is contaminated, the source of contamination, the chemical composition of contamination, the magnitude of contamination, and the maximum health risk of the contamination. 

Horizontal and Vertical Extent of Contamination

Honing in on the Extent of Contamination: Investigative Results and Plan Approval

The preliminary investigation gave us information on the source area, maximum contaminant levels, and the general layout of contamination. Using the preliminary investigative results, we proposed a plan to identify the horizontal and vertical extent of contamination. The regulator approved the plan and we got the work done.

“Our meeting today was to go over the results of our last investigation to determine the vertical and horizontal extent of contamination,” I said. “The oversight regulator appears satisfied that the investigation is complete except for the one point brought up today.”

Discussion of the Investigation Results and Next Steps

Is It Enough?

“And?” said my client.

“I think the person we met with today isn’t against our argument, they just don’t have the authority to make a final decision,” I responded. “They understand that there are several buildings blocking further investigation in the area and I feel confident the area is adequately sampled. I’m quite sure they will agree.” My client still had a look of apprehension.

“Look,” I said, “92-94 says to determine the source, nature, and extent of contamination to have a basis for cleanup decisions - we argued we’ve done that by describing a cleanup boundary, based on environmental screening levels (ESLs), that surrounds the contamination.” I went on, “Based on the information for those two sample points the regulator pointed at, cleanup won’t be necessary out there.”  I told my client that according to 92-49 the Board has a responsibility to consider whether the burden to supply reports, including the cost, bears a reasonable relationship to the need for them and the benefits obtained from the reports. “I think they'll find that you reached that burden.” That seemed to satisfy my client.

“Well, thank you,” my client said as he pushed back his chair. “ I think I understand when enough is enough - at least for our case. What’s next?”

“I’ll get back to the regulator and let them know we think the investigation is complete with the last report and ask them for their concurrence in a response to our work,” I said.

Investigation of Contaminated Groundwater, Soil, and Soil Gas in California

We looked at California's guiding policy for the investigation of contaminated groundwater, soil, and soil gas at sites under State Water Resources Control Board oversight. If you are involved with environmental Investigation, it may seem like there is no end in sight. Actually, there is. Let us evaluate your situation and help prescribe a clear plan to achieve compliance. Click below for a free consultation or give us a call at (831) 475-8141.