Some readers and environmental lawyers are familiar with the term Superfund Site, which is a site needing remediation to address high levels of hazardous material(s) in the site’s water or soil which threaten human health or the environment. In Rhode Island, the RIDEM is the agency which enforces the state’s Remediation Regulations. Today, we’ll discuss what the regulations require, and little-known exemptions to the notification requirements (even amongst environmental lawyers).
The Investigation and Remediation Process Under the Regulations
Any time RIDEM discovers, or is informed of, a “release” of a hazardous substance on any given site in Rhode Island, it triggers jurisdiction. This jurisdiction requires RIDEM to oversee the investigation and remediation of that site under the Remediation Regulations. RIDEM determines who the Responsible Parties are, and then sends each one a Letter of Responsibility. This letter details why the party was designated a Responsible Party and what their obligations are.
The Remediation Regulations further define terms in the regulations, including “Responsible Party,” “Hazardous Material,” and “Release.” The Responsible Parties are strictly liable, jointly and severally, for remediation costs, regardless of the party’s negligence or intent. A Responsible Party often hires an environmental lawyer to assist them in the process. This is because the strict liability can be confusing to a party that thinks lack of knowledge is a defense.
Once the Responsible Parties are brought to the table, they work with environmental consultants and an environmental lawyer to conduct site investigations. This typically includes characterizing the topography, groundwater, and soils on the site, conducting sampling to determine the extent of hazardous material on the site and which contaminants are present on-site and in what amounts.
A Site Investigation Report is submitted to RIDEM for approval once the work is completed. From there, a Remedial Action Work Plan is developed to carry out the preferred remediation methodology, which must also be submitted to and approved by RIDEM. Then, work begins to remediate the site.
Throughout the investigation and remediation process, there are several different formal requirements for notification to interested parties, depending on what stage of the process one is in. When a Release has been discovered, a Responsible Party must report it to RIDEM in writing within 15 days of the discovery of the Release.
However, many people do not know that there are instances of a Release which are exempt from this notification requirement. Even an environmental lawyer may not know of these exemptions, as they are not common in other states.
First, any release that is solely the result of an underground injection control system or a leaking underground storage tank is exempt from the notification requirement. Releases leading to concentrations of hazardous substances generally require notification to RIDEM. Unless any of the 8 exemption conditions are all met, notification must occur:
If the Release impacted an area of industrial/commercial activity;
- The reasonably foreseeable future use of that property is industrial/commercial;
- The groundwater under the site is classified as GB;
- There are no known well head protection areas or active wells within 500 feet;
- There are no GA/GAA groundwater areas within 500 feet of the Release;
- The abutting properties are all industrial/commercial;
- There are no wetlands or surface waters within 500 feet of the Release, or;
- The hazardous substances of concern meet the requirements of Section 5.01(B)(v) of the Remediation Regulations.
For Releases that impact/threaten to impact groundwater, Responsible Parties must notify RIDEM under the three scenarios listed in Section 5.01(C) of the Remediation Regulations.
To learn more about the exemptions to the notification requirement, or for other questions related to the Remediation Regulations, contact an environmental lawyer at Desautel Law today. We are available by email or phone at 401.477.0023.