Environmental Update Environmental Update pp

H t En ir nm nt l Iss s H t En ir nm nt l Iss s Hot Environmental Issues for Defense CommunitiesHot Environmental Issues for Defense Communities

SPEAKERS

• Mr. Chris Wendelbo, J.D. , LL.M., The Session Law FirmLaw Firm

• Ms. Shawna Bligh, J.D., LL.M., The Session Law FirmFirm

• Mr. Jeffrey A. Bolin, M.S., CHMM, Vice President - Technical Operations The Dragun Corporation- Technical Operations, The Dragun Corporation

• Mr. Steve Rinne, P.E., Business Development Officer Port Authority of Kansas CityOfficer, Port Authority of Kansas City

Agenda

• EPA Priorities for FY2010 – FY 2011

• Vapor Intrusion

• New Construction/Development Storm water Effl G id li Effluent Guidelines

• Building/Demolition Issues

A l d• CERCLA-Related Issues

• Redevelopment Site Coordination

• Discussion/Question & Answer

MANAGING REDEVELOPMENT OF MILITARY PROPERTYOF MILITARY PROPERTY

Seeing is no longer believing…

A AMANAGING REDEVELOPMENT OF MILITARY PROPERTY

What is the “potential” of the land?

MANAGING REDEVELOPMENT OF MILITARY PROPERTY

It depends…

Not so much on what we see or what we believe to be true…

It is what we know based on dataIt is what we know based on dataand current regulations.

EPA Pri riti s f r FY 2010 2011EPA Pri riti s f r FY 2010 2011EPA Priorities for FY 2010 -2011EPA Priorities for FY 2010 -2011

Renewed Focus on Environmental Issues

• Obama Administration has renewed focus on environment and environmental matters and environmental matters.

• EPA Budget increased by 34% to $10.5 billion – largest in EPA’s 39-year history

• Result = Increased regulatory focus and increased enforcement activities.

Among the EPA priorities that impact LRA’s are:• Among the EPA priorities that impact LRA’s are:

– Taking Action on Climate Change: Using the Clean Air Act, EPA focused on mobile source rules. EPA will ,continue to focus on reducing GHG emissions from large stationary sources like power plants.

FY 2011 Environmental Priorities

– Improving Air Quality: EPA developing a comprehensive strategy for strengthen our ambient air quality standards for pollutants such as PM, SO2 and NO2 . Improved monitoring, permitting and enforcement will be critical building blocks for air quality improvement.

– Protecting America’s Waters: “America’s waterbodies are imperiled as never before.” Water quality and enforcement programs face complex challenges, from nutrient loadings and stormwater runoff, to invasive species and drinking water contaminants. EPA has initiated measures to address post-

ff d d kconstruction runoff and stronger drinking water protection.

FY 2011 Environmental Priorities

• Take actions over the next two years to improve water quality, initiating review of at least four drinking water standards, and increasing the percentage of Clean Water Act discharge permit enforcement actions from 20 percent to 25 percent for discharges into impaired waterways.

• Initiate 20 enhanced brownfields community-level projects that will include a new area-wide planning effort to benefit under-served and economically disadvantaged communities.

FY 2011 EPA Enforcement Priorities

• Air Toxics

• Environmental Justice—Community Based ApproachJ y d pp

• Mineral Processing

• Municipal Infrastructure

Ne Source Re ie /Pre ention of Signific nt Deterior tion• New Source Review/Prevention of Significant Deterioration

• Resource Conservation and Recovery Act (RCRA) Enforcement

• Resource Conservation and Recovery Act (RCRA) Financial AAssurance

• Surface Impoundments

• Wetlands

• Worker Protection Standards)

L l / R l t r / T hni l L l / R l t r / T hni l Legal / Regulatory / Technical Overview

Legal / Regulatory / Technical Overview

Hot Issues

• Vapor Intrusion• New Construction/Development Storm Water • New Construction/Development Storm Water

Effluent Guidelines

• Building/Demolition Issues u d g/ e t ssues

• CERCLA-Related Issues

VAPOR INTRUSION

• What is Vapor Intrusion and How Does it What is Vapor Intrusion and How Does it Happen?

• Regulation of Vapor Intrusion • Regulation of Vapor Intrusion

• Vapor Intrusion Guidance

d• Managing Vapor Intrusion Conditions (“VICs”)

What is Vapor Intrusion?

• “Vapor intrusion is the migration of volatile chemicals • Vapor intrusion is the migration of volatile chemicals from the subsurface into overlying buildings.” See OSWER Draft Guidance for Evaluating the Vapor Intrusion to Indoor Air P h f G d d S il (S b f V I i Pathway from Groundwater and Soils (Subsurface Vapor Intrusion Guidance).

How Does Vapor Intrusion Happen?

How Does it How Does it Happen?

What Are Some Factors?

Vapor Intrusion

Plumes can be LargePlumes can be Large

Potential Impact to:

• Existing Buildings

• New Construction

• Building Useg

l fRegulation of Vapor Intrusion

• Multiple Sources of RegulationMultiple Sources of Regulation• OSHA

• EPA• EPA

• State Regulations

dVapor Intrusion Guidance

• Environmental Protection Agency (“EPA”)

– OSWER Draft Guidance for Evaluating the Vapor Intrusion to Indoor Air Pathway from Groundwater and Soils (Subsurface Vapor Intrusion Guidance

• Interstate Technology & Regulatory Council (“ITRC”)

– Vapor Intrusion Pathway: A Practical Guide (VI-1, 2007), and a companion document, Vapor Intrusion Pathway: Investigative Approaches for Typical Scenarios (VI-1A, 2007).

• Department of Defense (“DOD”)

– Vapor Intrusion Handbook

• ASTM International• ASTM International

– E 2600-08 Standard Practice for Assessment of Vapor Intrusion into Structures on Property Involved in Real Estate Transactions

M i V I i Managing Vapor Intrusion Conditions

How Do You Evaluate It?

• Johnson-Ettinger Model

Managing Vapor Intrusion

H D Y E l t It?How Do You Evaluate It?

• Sub-slab Sampling

M i V I i Managing Vapor Intrusion Conditions

How Do You Evaluate It?

• Sub-slab Sampling

Managing Vapor Intrusion ConditionsConditions

Summa Canisters

How Do You Evaluate It?

• Indoor Air Sampling

• Be Aware of Changing Criteria

Tedlar Bags

Managing Vapor Intrusion Managing Vapor Intrusion Conditions

• How Do You Deal With It?• How Do You Deal With It?– Vapor Barrier

– Seal Floors– Seal Floors

– Passive venting systems

Active venting systems– Active venting systems

– HVAC adjustments

How Do You Deal With It?

• How Do You Deal With It?– Clean It Up

Hot Issues

• Vapor Intrusion

• New Construction/Development Storm Water Effluent Guidelines

• Building/Demolition Issues

• CERCLA-Related Issues

Storm Water

Why is it Regulated?

• Aquatic Impacts

• Waterway Blockage

Storm Water – Fines!

• Panama City, FL., West Bay, Sep. 19, 2009The Department of Environmental Protection is fining – The Department of Environmental Protection is fining Phoenix Construction $1.7 million for environmental permit violations at the new airport under construction near West Bay.

• N. Idaho developers fined for storm water i l ti F b 11 2010 violations, February 11, 2010

– Nearly $45,000 in storm water violations fines has been levied against seven Idaho developerslevied against seven Idaho developers

Storm Water

Effl t Li it ti G id li d St d d f th – Effluent Limitations Guidelines and Standards for the Construction and Development

• Published on December 1 2009• Published on December 1, 2009

• Effective February 2010

• Penalties $32, 500 per day per violation$ , p y p

• EPA estimates proposed rule would cost $1.9 billion dollars per year

Storm Water

•Disturbance of one or more acres required to use best management practices (BMPs).

–Owners and operators of regulated sites have discretion to choose BMPs that will minimize the discharge of pollutants based on the characteristics of the particular sitecharacteristics of the particular site.–National Menu of Best Management Practices for Stormwater Phase II (http://cfpub.epa.gov/npdes/stormwater/menuofbmps/index.cfm)

• Sediment Control, Example:, p»1. Brush Barrier, Compost Filter Berms, Compost Filter Socks, Construction Entrances, Fiber Rolls, Filter Berms, Sediment Basins and Rock Dams, Sediment Filters and S di Ch b S di T Sil F S Sediment Chambers, Sediment Traps, Silt Fences, Storm Drain Inlet Protection, Straw or Hay Bales, and/or Vegetated Buffers.

Storm Water

• Disturbance of twenty (20) or more acres required to comply with the monitoring requirement and the numeric effluent limitation

– Effective August 2011Effective August 2011

– Turbidity cannot exceed 280 Nephelometric Turbidity Units (“NTUs”).

Di t b f t (10) t ti• Disturbance of ten (10) or more acres at one time

– Effective February 2014

– Must also comply with monitoring requirement and Must also comply with monitoring requirement and effluent limitations

Storm Water

The Way it Is The Way it Is (Was)…

• SWPPP• Silt Fence• Inspections

Storm Water

Wh Will I B ?What Will It Be?

Wh i l• What it was…plus

• Controlled Water Flow and Capture

• Retention Basins• Sampling and Reporting

Hot Issues

• Vapor Intrusion

• New Construction/Development Storm Water Effl G id li Effluent Guidelines

• Building/Demolition Issues • CERCLA-Related Issues

Building/Demolition Issues• Asbestos

• Lead-Based Paint

• PCBs

• Mercuryy

• Chemical Storage

• Waste Disposal• Waste Disposal

• Sewers

• Security• Security

• Notifications

ld / lBuilding/Demolition Issues

• Lead-Based Paint, as Example

– October 28, 2009: EPA issues proposed revisions to the 2008 Lead R i R i d P i i R l (“LRRP”)Renovation, Repair and Painting Rule (“LRRP”).

– Intended to “further increase protections for children and their families from lead-based paint hazards associated with home

i d i ” renovation and repair.”

– Proposed rule would expand the coverage of the LRRP by eliminating the “opt-out” provision.

– Proposed rule would also require renovation firms to supply a copy of the records demonstrating compliance with the training and work practice requirements of the LRRP rule to the owner

d/ f h b ildi b i dand/or occupant of the building being renovated.

– Comment period for the proposed revisions ended on November 27, 2009.

Hot Issues

• Vapor Intrusion

• New Construction/Development Storm Water Effl G id li Effluent Guidelines

• Building/Demolition Issues

d• CERCLA-Related Issues

ACERCLA

S i 120(h) f CERCLA• Section 120(h) of CERCLA

• Defenses to CERCLA Liability

• Brownfields Program

ACERCLA

• Section 120(h) of CERCLA– Applies to Property Transferred by Federal pp p y by

Agencies• Governs Sales or Other Property Transfers (e.g.

Leases)

• To the extent known, the Federal Agency Must Notify Recipient of Type and Quantity of Notify Recipient of Type and Quantity of Hazardous Substances stored, released or disposed of at the property, including the time of storage,

l d lrelease or disposal

ACERCLA

• Section 120(h), Continued

– Deed transferring property must contain:

N ti f T d Q tit f H d S b t• Notice of Type and Quantity of Hazardous Substance;

• Time at which such storage, release or disposal took place;

• Description of remedial action taken, if any

C t ti• Covenant warranting:

– All remedial action necessary to protect human health and environment has been taken before the date of transfer (subject to deferral ); andto deferral ); and

– Any remedial action necessary after transfer will be conducted by the U.S.

– No covenant requirement for transfer of property to PRPq p p y– No covenant requirement for lease transfers

• Clause granting U.S. access to property to conduct further remedial or corrective action

ACERCLA

• Defenses to CERCLA LiabilityDefenses to CERCLA Liability– Section 107(b)

• Release or Threat of Release of Hazardous Substance Were Caused By:

– Act of God;– Act of War;Act of War;– Act or Omission of Third Party

» Other than employee or agent of defendant; orA t i i i ti ith t t l» Act or omission occurs in connection with contractual relationship.

ACERCLA

– Small Business Liability Relief and Brownfields – Small Business Liability Relief and Brownfields Revitalization Act

• Landowner Liability Protections (LLPs)• Landowner Liability Protections (LLPs)– Bona Fide Prospective Purchaser- may purchase property

with knowledge of contamination

Contiguous Property Owner - must have no knowledge or – Contiguous Property Owner - must have no knowledge or reason to know of contamination

– Innocent Purchaser - must have no knowledge or reason to know of contaminationto know of contamination

ACERCLA

• At Time of Acquisition, Must Undertake All Appropriate Inquiry (AAI)Inquiry (AAI)

– Satisfaction of AAI:• Standards and Practices for All Appropriate Inquiries (“AAI Rule”)

– Effective November 1, 2006

– Found at 40 CFR Part 312

– Codifies federal environmental due diligence standards and i f AAIpractices for AAI

– Must be followed by persons seeking CERCLA Landowner Liability Protections (LLPs) and those receiving federal Brownfields grantsBrownfields grants

– Satisfy AAI by performing Phase I Environmental Site Assessment pursuant to ASTM E 1527-05

ACERCLA

• ASTM E-1527-05, Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process

– The scope of the Phase I ESA will include:• Interview with the User of the Phase I ESA report and review of User

provided informationp f

• A historical review of the property and adjoining properties back to 1940 or first known development, whichever is earlier

• A review of Standard Environmental Record Sources from Local State • A review of Standard Environmental Record Sources from Local, State and Federal Agencies within the ASTM Approximate Minimum Search Distances

• Site reconnaissance of the property and observations of the neighboring • Site reconnaissance of the property and observations of the neighboring properties.

ACERCLA

• Interviews with current and historical owners and occupants of the p p t a d adj i i p p ti (if appli abl )property and adjoining properties (if applicable)

• A review of previous environmental assessments completed for the Subject Property, if available

f h l d• Preparation of a written report that includes an executive summary, findings, opinions, conclusions and supporting documentation

• Results of the Phase I ESA will conclude either: – That no RECs are present; therefore no further inquiry is necessary; or

– That RECs are identified, which require further inquiry to evaluate the RECs and determine whether they have actually impacted the Subject Property

» Further inquiry could be completing a Phase II ESA (soil and/or groundwater » Further inquiry could be completing a Phase II ESA (soil and/or groundwater sampling and analysis) or obtaining additional documentation.

» New version of the ASTM Phase II is in Development

R d l pm nt C rdin ti n R d l pm nt C rdin ti n Redevelopment Coordination Redevelopment Coordination

Richards-Gebaur – As Received

ld /Building/Site Issues

ld /Building/Site Issues

ld /Building/Site Issues

ld /Building/Site Issues

ld /Building/Site Issues

Process Flow Diagram

KANSAS CITY, MISSOURI

PORT AUTHORITY/INTERMODAL GATEWAY TRANSACTIONS

Legend:

Yellow = Existing Agreements

Purple = Transaction documents/actions

Blue = Conditions of Closing

Tenant Tenant TenantUNITED STATES AIR FORCEBRAC PROPERTY

(184 + A)

1. Economic Development Conveyance Agreement (EDCA) [2005]2. Quit-Claim Deed (2005)3. Bill of Sale (2005)

Tenant Tenant Tenant

Tenant

Tenant

Tenant

1. 1985 Quit-Claim Deed

1. Quit-Claim Deed/Release

1. Leases

1. Lease Agreement (KSC Land) [1999]

2. Amendments to Leases

1. Environmental Services Cooperative Agreement2. Consent to DSA3. Consent to LELA

PORT AUTHORITY

HUNT MIDWEST REALESTATE DEVELOPMENT

USA/FAAFUDS PROPERTY

1. FAA Release USA/GSAGSA PORTION

(136 + A.)

1. 1985 Indenture/2005 Deed of Release2. 2000 Memorandum of Agreement 3. 2005 Deed of Release

1. Cooperative & Purchase Agreement (CPA) (1,.318 Acres, m/l)2. Assignment & Assumption of Leases3. Conveyance Deed4. Re-Conveyance Deed (escrowed)5. Funding Agreement

1. Limestone Extraction Lease Agreement (LELA)(100 Acres, m/l + subsurface & mineral rights)

2. Roadway Easement Agreement3. Airshaft Facilities Easement Agreement4. Funding Agreement5. MBE/WBE Participation Agreement

PORT AUTHORITYBureau of Land Management

(mineral rights – all R-G Property)

MDNR

FUDS PROPERTY(1200 + A)

1. Lease Agreement (sublease) [1999]2. Development Agreement [1999]3. Amendment to Lease Agreement [2005]

1. 2ND Amendment to Lease Agreement

1. Lease Agreement (sublease) [1999]2. Development Agreement [1999]3. Amendment to Lease Agreement [2005]

1. Infrastructure Agreement2. Economic Incentives

1. Applications for Mineral Rights

1. VCP Application2. MO Brownfields Program

1. Development & Sale Agreement (DSA) (1318 Acres, m/l)

2. Funding Agreement3. Excess Property Maintenance Agreement4. MBE/WBE Participation Agreement

CENTERPOINTPROPERTIES TRUST

USMC(48 A)

Kansas City Southern

1. Plans for enhanced & expanded intermodal rail center2. Strategic national marketing program re intermodal &

related industrial park developmentsCALVARY BIBLE COLLEGE

(2.83 A)

Port Authority/Richards Gebauer/Miscellaneous/Transaction Overview Pwrpt (03-26-07)

1. Obtain Mineral & Subsurface Rights

Communications ChallengeCommunications ChallengeChallengeChallenge

Organization/Company Title CityState

CH2M HILL Project Manager St. Louis MO

CH2M HILL Senior Consultant St. Louis MO

CH2M HILL Staff Geologist Kansas City MO

HQ AFCEE/EXC Program Manager Brooks City-Base TX

MO Dept. of Natura Resources/Federal Facilities Environmental Specialist Jefferson City MO

MO Dept. of Natura Resources/Brownfields Voluntary Cleanup Program Environmental Specialist Jefferson City MO

S.S. Papadopulos & Associates Associate Bethesda MD

Kingston Environmental Engineering KC MO

Port Authority of KC Project Manager KC MO

HydroGeoLogic, Inc. Project Manager Austin TX

CenterPoint Properties SVP Oak Brook Il

MOBCOM Facility Mgr Kansas City MO

HydroGeoLogic, Inc. Project Scientist Kansas City MO

BAH Engineer Belton MO

NAVFAC MW Program Manager Great Lakes IL

Booz Allen Hamilton Associate

Project Coordination

Site Status Matrix

Former Richards-Gebaur Air Force BaseFormer Richards Gebaur Air Force Base

Updated December 10, 2009 (MDNR)

Redvel. Par

Site cel Site Type Jurisdiction Property Owner Approval Authority

SS 006 - Hazardous Material Storage Area

Phase 4 BRAC GW AF KCPAMarine

ST 005 - Petroleum, Oils, and Lubricants Yard

Phase 2 BRAC Soil AF KCPAand Lubricants Yard (POL Yard) BRAC GW

SS 003 - Oil Saturated Area

N/A BRACC GW AF for Marine Marine

Skeet Range Phase 6 FUDS USACE KCPA

Northeast Landfill Phase 6 FUDS USACE KCPA

FT-002 - Fire Training Area Phase 1 BRAC Soil KCPA CenterPoint

Richards-Gebaur - Anticipated Build-Out

Discussion / Questions & Answers Discussion / Questions & Answers Discussion / Questions & Answers Discussion / Questions & Answers

SPEAKERS SPEAKERS SPEAKERS SPEAKERS

ASPEAKERS

Chris Wendelbo

The Session Law FirmThe Session Law Firm

Telephone: 816.842.4949

Email: cwendelbo@session.com

www.session.com

SPEAKERS

Mr. Steve Rinne, PE

Business Development Officer

The Port Authority of Kansas City,

Missouri

Telephone: 816.691.2129p

Email: srinne@edckc.com

www.kcportauthority.com

ASPEAKERS

Mr. Jeffrey A. Bolin

The Dragun Corporationg p

Telephone: 248.932.0228

Email: Jbolin@dragun.com

dr gun comwww.dragun.com

ASPEAKERS

Ms. Shawna Bligh

The Session Law Firmw

Telephone: 816.842.4949

Email: sbligh@session.com

e ion comwww.session.com