TITLE 23
Health and Safety

CHAPTER 23-19.14
Industrial Property Remediation and Reuse Act

SECTION 23-19.14-4


§ 23-19.14-4 Objectives of environmental clean-up.

(a) The department of environmental management will develop, maintain and publish numerical objectives for the most commonly found hazardous substances. These objectives will be applicable for the clean-up of contaminated properties to levels which are protective of human health and the environment based on current and reasonably foreseeable future use of a property and the surrounding natural resources. To further ensure the safety of school children while attending school, the department of environmental management, shall:

(1) Adopt numerical objectives for properties dedicated to school use equivalent to the numerical objectives set by the department for residential use of such properties;

(2) Evaluate chemicals of concern for vapor intrusion and adopt numerical objectives for those contaminants in soil and groundwater where such standards do not already exist in regulation and apply the numerical objectives for residential use established for said chemicals and petroleum to properties dedicated to school use; and

(3) Develop and adopt procedures for determining whether levels of chemicals of potential concern for vapor intrusion and petroleum in soil or groundwater pose a reasonable potential for migration of contaminated vapors or gases into structures to be utilized as school facilities.

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

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

(3) Leasing of any portion of an existing building to serve as a school shall be prohibited on any portion of a parcel of property for which, upon occupancy, there exists an ongoing potential for hazardous materials and/or petroleum to migrate as vapors or gases into the building from the subsurface of the parcel of property, unless:

(i) At a property where concentrations of chemicals of potential concern for vapor intrusion or petroleum in the subsurface exceed the residential direct exposure criteria in soil, source areas of said chemicals or petroleum within the vadose zone of the site that includes said property shall be remediated:

(A) Through the physical removal of said chemicals or petroleum through excavation or in situ treatment; and

(B) The school building shall be equipped with both a passive sub slab ventilation system capable of conversion to an active system and a vapor barrier beneath the school building or incorporated in the concrete slab, all in compliance with an approved department of environmental management remedial action work plan and completed prior to the occupancy of the school;

(ii) At a property where concentrations of chemicals of potential concern for vapor intrusion or petroleum in the subsurface do not exceed the residential direct exposure criteria in soil but contamination exists on the property due to the presence of any chemicals of potential concern for vapor intrusion or petroleum in groundwater, the department of environmental management shall:

(A) Require the property's owner or operator to prepare a site specific conceptual site model and conduct soil gas sampling to determine the location of the source area of said chemicals or petroleum in the site's vadose zone;

(B) Evaluate the results of said model and sampling to determine if levels of any chemicals of potential concern for vapor intrusion or petroleum could migrate as vapors or gases into the occupied portions of the building where the school is proposed based on procedures developed pursuant to this chapter; and

(C) Where the reasonable potential for migration of contaminated vapors or gases is determined to exist, the department shall require remediation to eliminate said potential as follows:

(I) Where the source area is located on the site that includes said property, requiring the physical removal of said chemicals or petroleum in the source area in the vadose zone through excavation or in situ treatment; provided, the concentrations of said chemicals or petroleum in said source area exceed the direct residential exposure criteria in soil; and

(II) Requiring the installation of both a passive sub slab ventilation system capable of conversion to an active system and a vapor barrier beneath the school building or incorporated in the concrete slab, all in compliance with an approved department of environmental management remedial action work plan and completed prior to the occupancy of the school; and, provided further, should monitoring of a passive sub-slab ventilation system indicate that active ventilation is necessary to protect the health and safety of users of a school equipped with a passive system, the department of environmental management shall require conversion of the passive system to an active system along with financial assurances to provide for the funding of the operation and monitoring of said active system for as long as active ventilation is deemed necessary by the department.

(iii) At a property where concentrations of chemicals of potential concern for vapor intrusion or petroleum in the subsurface do not exceed the residential direct exposure criteria in soil on the site that includes said property, and where the department has determined that levels of any chemicals of potential concern for vapor intrusion or petroleum will not present a reasonable potential for migration of contaminated vapors or gases into structures to be utilized as school facilities on the property, the property may be used for school purposes subject to any conditions that the department of environmental management may impose pursuant to this chapter.

(c) The construction of any school building, or construction of an addition to any existing school building, or leasing of any portion of an existing building to serve as a school on any portion of a parcel of property formerly used for industrial, manufacturing or landfill purposes that is contaminated by hazardous materials, shall be prohibited unless at least thirty (30) days prior to selecting the location for construction or leasing the building the project sponsor undertakes all of the following measures with ten (10) days prior written notice to the public of each measure undertaken:

(1) Prepares and posts on the sponsor's website a written report that: (i) Projects the costs to acquire or lease the property, and to cleanup and maintain the property in accordance with the department of environmental management's Rules and Regulations for the Investigation and Remediation of Hazardous Material Releases (the Remediation Regulations); (ii) Projects the time period required to complete a cleanup of the property for school purposes prior to occupancy by obtaining either an Interim Letter of Compliance, a Letter of Compliance or a Non-Jurisdictional Letter indicating that the property is not jurisdictional under the Remediation Regulations of the department of environmental management; (iii) Discusses the rationale for selecting the property for use as school purposes and an explanation of any alternatives to selecting said property considered by the project sponsor;

(2) Solicits written comments on the report prepared pursuant to subdivision (1) of this subsection for a period of at least thirty (30) days after posting said report on the sponsors website and conducts a public hearing during said thirty (30) day period at which public comment is taken on said report; and

(3) Prepares a second written report that summarizes and responds to the public comments received during the public comment period and at the public hearing and posts said second report on the sponsor's website.

(d) The sponsor of any school project subject to the provisions of subsection (c) of this section shall consider the results and findings contained in the reports required by subsection (c) when selecting the location of said project.

(e) As used in this section.

(1) The term "school" means any residential or non-residential school building, public, private or charter, of any city or town or community educational system regulated, directly or secondarily, by the board of regents for elementary and secondary education or the department of elementary and secondary education or any other state education board or local city or town school board or school committee or other legal educational subdivision acting under it. As used in this chapter, the term "school or schools" includes, but is not limited to, school playgrounds, school administration buildings, indoor school athletic facilities, school gymnasiums, school locker rooms, and similar school buildings. A school shall not include any institutions for education of adults (e.g. colleges, universities, graduate schools, trade schools) or child-care facilities as regulated by the department of children, youth and families.

(2) The term "landfill" means for the purposes of this section, any portion of a parcel of property that was used as a landfill as defined in § 23-19.1-4 or a sanitary landfill, dump or other disposal area where more than thirty (30) cubic yards of solid waste was disposed.

(3) The term "hazardous materials" means any materials defined as hazardous materials pursuant to § 23-19.14-3.

(4) The term "solid waste" means any materials defined as solid waste pursuant to § 23-18.9-7.

(5) The term "chemicals of potential concern for vapor intrusion" means those chemicals that the U.S. Environmental Protection Agency recommends for routine evaluation during vapor intrusion assessments in said Agency's most recent guidance on the assessment of vapor intrusion into indoor air from subsurface sources, and any other chemicals that the department of environmental management may recommend for said routine evaluation.

(6) The term "source area" means the horizontal and vertical extent of natural or man-made media impacted by a release of hazardous materials or causing a release of hazardous materials at concentrations in excess of the numerical objectives developed pursuant to paragraph (a) of this section.

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

(8) The term "conceptual site model" means a written and/or illustrative representation of the physical, chemical and biological processes that control the transport, migration and actual or potential impacts of hazardous materials in soil, air, groundwater, surface water and/or sediments to human and/or ecological receptors at a site.

(f) The provisions of this section shall not apply to the renovation or reconstruction of any building for school purposes that was used continuously as a school for a period of at least twenty-five (25) years where: (1) The footprint of the building after renovation or reconstruction does not exceed more than five percent (5%) of the current footprint of the building; and (2) The site of the building is not subject to a remedial action work plan approved by the department of environmental management.

History of Section.
(P.L. 1995, ch. 187, § 1; P.L. 1997, ch. 41, § 1; P.L. 1997, ch. 60, § 1; P.L. 2012, ch. 163, § 1; P.L. 2012, ch. 179, § 1; P.L. 2013, ch. 296, § 1.)