Walter G. Wright
Arkansas Environmental, Energy, and Water Law
The Arkansas Department of Environmental Quality (“ADEQ”) and Oak Forest Cleaners and Laundry, Inc. (“Oak Forest”) entered into a July 18th Elective Site Clean-Up Agreement (“ESCA”). See LIS No. 19-065.
The ESCA addresses an Oak Forest commercial dry cleaning and laundry facility (“Facility”) in Little Rock, Arkansas, that is stated to have operated since 1986.
Various federal and state programs (including Arkansas) use risk-based corrective basis remediation standards to tailor clean-up levels according to site-specific factors. Such programs often take into account criteria such as to what extent the site is characterized and/or future land use. Typically, superimposed upon these various procedures are site-specific analyses and a requirement that the standards be protective of human health and the environment.
Agencies may be willing, in some circumstances, to provide “blessing” (subject to certain caveats) of a site’s conditions if they deem contaminants adequately delineated and/or isolated from potential exposure. The approval of site conditions will likely be based on a combination of acceptability under applicable screening levels and/or whether the property uses are compatible with these conditions. The incorporation of enforceable institutional controls (i.e., deed restrictions, restrictive covenants or easements) or controls such as barriers (pavement in a certain area, etc.) may be used to ensure continued adherence to the restrictions by the current and future real property owner or lessee.
The ESCA states that Oak Forest’s consultant Trileaf Corporation completed a Phase I Environmental Assessment (“EA”) at the Facility.
The EA is stated to have determined that dry cleaning solvents were used on the Facility as follows:
- Valcene 1986 - 1990
- Perchloroethylene 1990 – 2012
- DF-2000 and Solvon K4 dry cleaning solvents – Currently
Oak Forest on January 29, 2019, through correspondence to ADEQ, entered into an ESCA to remediate Chemicals of Concern from the soil and groundwater, including volatile organic compounds (VOCs).
The ESCA provides sequential tasks for Oak Forest to undertake which include:
- Within thirty (30) calendar days of the effective date of this ESCA, the company will submit a Sampling and Analysis Plan (SAP) to ADEQ designed to determine the horizontal and vertical extent, rate of migration, type, and concentration of any hazardous substance or pollutant present in the environment.
- Implement the SAP upon receipt of written approval from ADEQ and submit a written report of findings to the agency within 120 calendar days from the SAP approval date.
- Within thirty (30) calendar days of receiving written notification from ADEQ that the SAP fail to accomplish an adequate determination of the extent, type, or concentration of released hazardous substances or pollutants in the areas investigated, Oak Forest is required to amend the document to provide for additional sampling and analysis to accomplish these requirements and implement the SAP amendment upon agency approval.
- After notifying ADEQ that contamination of the environment has occurred, Oak Forest shall submit a Remedial Action Plan (“RAP”) to control or remediate such contamination to the extent necessary to protect human health and the environment using a risk-based approach (including an implementation schedule).
- Within thirty (30) calendar days following completion of remediation activities a report must be submitted to the agency documenting results.
- Failure of the RAP to accomplish remediation sufficient to protect human health or the environment, based on a risk-based approach, may generate a requirement from ADEQ to conduct additional remedial activities necessary to protect human health and the environment from the release of hazardous substances or pollutants at the site.
- Within thirty (30) calendar days of written notification by ADEQ, Oak Forest is required to file a deed restriction for the site if necessary (in a form acceptable to the agency) which provides notice to successor and titles that use of the site is restricted to activities and compatible uses that will protect the integrity of any remedial action measures implemented on the site.
Upon approval of the Completion Report, and receipt of deed restrictions if required, ADEQ will issue a “No Further Action” determination to Oak Forest (which is related to the identified areas of concern and conditioned on specific site uses).
Oak Forest is required to take all steps necessary during the ESCA process to prevent aggravating or contributing to the contamination of the air, land, or water (including downward migration of contamination from any existing contamination on the site.
A copy of the ESCA can be found here.