2013 -- S 0520 SUBSTITUTE A

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LC01760/SUB A/2

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2013

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A N A C T

RELATING TO HEALTH AND SAFETY - INDUSTRIAL PROPERTY REMEDIATION AND

REUSE ACT

     Introduced By: Senator Juan M. Pichardo

     Date Introduced: February 28, 2013

     Referred To: Senate Environment & Agriculture

It is enacted by the General Assembly as follows:

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     SECTION 1. Section 23-19.14-1 and 23-19.14-4 of the General Laws in Chapter 23-

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19.14 entitled "Industrial Property Remediation and Reuse Act" are hereby amended to read as

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follows:

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     23-19.14-1. Legislative findings. -- It is recognized and acknowledged by the general

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assembly that:

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      (1) In Rhode Island, there are hundreds of sites that have varying degrees of

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contamination from hazardous materials;

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      (2) The contamination is often an obstacle to redevelopment due to the liability relating

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to the sites;

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      (3) Clean up standards and objectives must be consistent with a site's current and

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reasonably expected future use;

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      (4) Financial institutions are often cautious or unwilling to lend to businesses that wish

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to expand at or relocate to sites that have or are feared to be contaminated;

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      (5) Rhode Island's urban corridor contains many sites that have been found by federal or

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state programs to be contaminated;

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      (6) The following cities and towns have numerous known sites: Cranston, East

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Providence, Johnston, North Smithfield, Pawtucket, Providence, Warwick, West Warwick,

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Woonsocket, and Central Falls. There are also many potential sites in these and other

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municipalities that may have been contaminated by historical industrial activities;

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      (7) [Deleted by P.L. 2002, ch. 186, section 1.]

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      (8) Proper redevelopment and reuse of these properties would not only benefit the state's

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economy and the employment of those who live in the urban corridor, but would also benefit the

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state's environment; and

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      (9) The redevelopment and reuse of these impacted sites will control and remove the

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existing contamination and will reduce the artificial economic incentive to develop previously

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undisturbed natural resources.

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     23-19.14-4. Objectives of environmental clean-up. -- (a) The department of

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environmental management will develop, maintain and publish numerical objectives for the most

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commonly found hazardous substances. These objectives will be applicable for the clean-up of

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contaminated properties to levels which are protective of human health and the environment

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based on current and reasonably foreseeable future use of a property and the surrounding natural

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resources. To further ensure the safety of school children while attending school, the department

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of environmental management, shall:

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     (1) Adopt numerical objectives for properties dedicated to school use equivalent to the

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numerical objectives set by the department for residential use of such properties;

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     (2) Evaluate chemicals of concern for vapor intrusion and adopt numerical objectives for

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those contaminants in soil and groundwater where such standards do not already exist in

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regulation and apply the numerical objectives for residential use established for said chemicals

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and petroleum to properties dedicated to school use; and

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     (3) Develop and adopt procedures for determining whether levels of chemicals of

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potential concern for vapor intrusion and petroleum in soil or groundwater pose a reasonable

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potential for migration of contaminated vapors or gases into structures to be utilized as school

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facilities.

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     (b) (1) The construction of any new school building; or

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     (2) Construction of an addition to any existing school building; or

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     (3) Leasing of any portion of an existing building to serve as a school shall be prohibited

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on any portion of a parcel of property for which, upon occupancy, there exists an ongoing

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potential for hazardous materials and/or petroleum to migrate as vapors or gases into the building

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from the subsurface of the parcel of property, including any potential failure of engineered

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remedies to address said vapors or gases. unless:

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     (i) At a property where concentrations of chemicals of potential concern for vapor

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intrusion or petroleum in the subsurface exceed the residential direct exposure criteria in soil,

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source areas of said chemicals or petroleum within the vadose zone of the site that includes said

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property shall be remediated:

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     (A) Through the physical removal of said chemicals or petroleum through excavation or

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in situ treatment; and

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     (B) The school building shall be equipped with both a passive sub slab ventilation system

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capable of conversion to an active system and a vapor barrier beneath the school building or

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incorporated in the concrete slab, all in compliance with an approved department of

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environmental management remedial action work plan and completed prior to the occupancy of

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the school;

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     (ii) At a property where concentrations of chemicals of potential concern for vapor

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intrusion or petroleum in the subsurface do not exceed the residential direct exposure criteria in

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soil but contamination exists on the property due to the presence of any chemicals of potential

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concern for vapor intrusion or petroleum in groundwater, the department of environmental

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management shall:

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     (A) Require the property's owner or operator to prepare a site specific conceptual site

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model and conduct soil gas sampling to determine the location of the source area of said

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chemicals or petroleum in the site’s vadose zone;

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     (B) Evaluate the results of said model and sampling to determine if levels of any

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chemicals of potential concern for vapor intrusion or petroleum could migrate as vapors or gases

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into the occupied portions of the building where the school is proposed based on procedures

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developed pursuant to this chapter; and

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     (C) Where the reasonable potential for migration of contaminated vapors or gases is

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determined to exist, the department shall require remediation to eliminate said potential as

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follows:

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     (I) Where the source area is located on the site that includes said property, requiring the

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physical removal of said chemicals or petroleum in the source area in the vadose zone through

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excavation or in situ treatment; provided, the concentrations of said chemicals or petroleum in

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said source area exceed the direct residential exposure criteria in soil; and

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     (II) Requiring the installation of both a passive sub slab ventilation system capable of

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conversion to an active system and a vapor barrier beneath the school building or incorporated in

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the concrete slab, all in compliance with an approved department of environmental management

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remedial action work plan and completed prior to the occupancy of the school; and, provided

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further, should monitoring of a passive sub-slab ventilation system indicate that active ventilation

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is necessary to protect the health and safety of users of a school equipped with a passive system,

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the department of environmental management shall require conversion of the passive system to

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an active system along with financial assurances to provide for the funding of the operation and

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monitoring of said active system for as long as active ventilation is deemed necessary by the

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department.

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     (iii) At a property where concentrations of chemicals of potential concern for vapor

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intrusion or petroleum in the subsurface do not exceed the residential direct exposure criteria in

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soil on the site that includes said property, and where the department has determined that levels of

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any chemicals of potential concern for vapor intrusion or petroleum will not present a reasonable

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potential for migration of contaminated vapors or gases into structures to be utilized as school

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facilities on the property, the property may be used for school purposes subject to any conditions

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that the department of environmental management may impose pursuant to this chapter.

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        (c) The construction of any school building, or construction of an addition to any

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existing school building, or leasing of any portion of an existing building to serve as a school on

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any portion of a parcel of property formerly used for industrial, manufacturing or landfill

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purposes that is contaminated by hazardous materials, other than on a parcel of property

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described in subsection (b) of this section, shall be prohibited unless at least thirty (30) days prior

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to selecting the location for construction or leasing the building the project sponsor undertakes all

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of the following measures with ten (10) days prior written notice to the public of each measure

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undertaken:

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        (1) Prepares and posts on the sponsor's website a written report that: (i) Projects the

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costs to acquire or lease the property, and to cleanup and maintain the property in accordance

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with the department of environmental management's Rules and Regulations for the Investigation

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and Remediation of Hazardous Material Releases (the Remediation Regulations); (ii) Projects the

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time period required to complete a cleanup of the property for school purposes prior to occupancy

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by obtaining either a an Interim Letter of Compliance, a Letter of Compliance or a Non-

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Jurisdictional Letter indicating from the department of environmental management or a

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determination by said department that the property is not jurisdictional under the Remediation

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Regulations of the department of environmental management;

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      (iii) Discusses the rationale for selecting the property for use as school purposes and an

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explanation of any alternatives to selecting said property considered by the project sponsor;

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        (2) Solicits written comments on the report prepared pursuant to subdivision (1) of this

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subsection for a period of at least thirty (30) days after posting said report on the sponsors website

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and conducts a public hearing during said thirty (30) day period at which public comment is taken

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on said report; and

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        (3) Prepares a second written report that summarizes and responds to the public

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comments received during the public comment period and at the public hearing and posts said

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second report on the sponsor's website.

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        (d) The sponsor of any school project subject to the provisions of subsection (c) of this

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section shall consider the results and findings contained in the reports required by subsection (c)

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when selecting the location of said project.

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        (e) As used in this section.

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        (1) The term "school" means any residential or non-residential school building, public,

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private or charter, of any city or town or community educational system regulated, directly or

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secondarily, by the board of regents for elementary and secondary education or the department of

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elementary and secondary education or any other state education board or local city or town

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school board or school committee or other legal educational subdivision acting under it. As used

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in this chapter, the term "school or schools" includes, but is not limited to, school playgrounds,

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school administration buildings, indoor school athletic facilities, school gymnasiums, school

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locker rooms, and similar school buildings. A school shall not include any institutions for

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education of adults (e.g. colleges, universities, graduate schools, trade schools) or child-care

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facilities as regulated by the department of children, youth and families.

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        (2) The term "landfill" means for the purposes of this section, any portion of a parcel of

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property that was used as a landfill as defined in § 23-19.1-4 or a sanitary landfill, dump or other

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disposal area where more than thirty (30) cubic yards of solid waste was disposed.

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        (3) The term "hazardous materials" means any materials defined as hazardous materials

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pursuant to § 23-19.14-3.

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        (4) The term "solid waste" means any materials defined as solid waste pursuant to § 23-

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18.9-7.

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      (5) The term "chemicals of potential concern for vapor intrusion" means those

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chemicals that the U.S. Environmental Protection Agency recommends for routine evaluation

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during vapor intrusion assessments in said Agency's most recent guidance on the assessment of

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vapor intrusion into indoor air from subsurface sources, and any other chemicals that the

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department of environmental management may recommend for said routine evaluation.

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     (6) The term "source area" means the horizontal and vertical extent of natural or man-

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made media impacted by a release of hazardous materials or causing a release of hazardous

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materials at concentrations in excess of the numerical objectives developed pursuant to paragraph

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(a) of this section.

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     (7) The term "vadose zone" means the full extent of the soil column existing above the

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elevation of groundwater. 

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     (8) The term "conceptual site model" means a written and/or illustrative representation of

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the physical, chemical and biological processes that control the transport, migration and actual or

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potential impacts of hazardous materials in soil, air, groundwater, surface water and/or sediments

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to human and/or ecological receptors at a site.

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     (f) The provisions of this section shall not apply to the renovation or reconstruction of

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any building for school purposes that was used continuously as a school for a period of at least

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twenty-five (25) years where: (1) The footprint of the building after renovation or reconstruction

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does not exceed more than five percent (5%) of the current footprint of the building; and (2) The

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site of the building is not subject to a remedial action work plan approved by the department of

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environmental management.

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     SECTION 2. This act shall take effect upon passage.

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LC01760/SUB A/2

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO HEALTH AND SAFETY - INDUSTRIAL PROPERTY REMEDIATION AND

REUSE ACT

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     This act would strengthen the safety standards which must be adhered to prior to using

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properties previously used for industrial or manufacturing purposes to construct schools.

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     This act would mandate that the properties meet the department of environmental

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managements residential use requirements as well as providing additional safeguards.

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     This act would take effect upon passage.

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LC01760/SUB A/2

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