250 R.I. Code R. 250-RICR-140-30-1.13

Current through December 26, 2024

Section 250-RICR-140-30-1.13 - Special Requirements for Managing Arsenic in Soil

§ 1.13 of this Part shall only apply for the investigation and remediation of Source Area(s) involving only exceedances of the contaminant arsenic. All other exceedances and reportable contaminants of concern shall be addressed as required elsewhere in these regulations.

1.13.1Background

A. Arsenic is a naturally occurring element in soil. Because background levels for arsenic across the state have been determined to be above the calculated risk-based value, per §1.9.1 of this Part, the Method 1 Residential, and Industrial/Commercial Exposure Criterion are set at 7.0 ppm. This value represents the 95th percent upper confidence limit when natural background data across the state are statistically evaluated. Based on the numerous samples evaluated by the Department in making this determination, and the prevalence of arsenic in the environment, the special requirements of § 1.13 of this Part shall apply to address arsenic in soil.

B. Plan and Approval Requirements

1. The Performing Party shall:

a. Notify the Department of the Release in accordance with § 1.6 of this Part;

b. Obtain property Owner approval to complete all investigation and remedial work required;

c. Public Notice - Provide public notice to all abutters prior to commencing remedial measures required by §1.13.4 of this Part. Public notice shall include, at a minimum, proposed remedial measures to be implemented under §1.13.4 of this Part, approximate schedule, and contact information of the Performing Party. For Contaminated-Sites where exceedances of the arsenic standard is the only known contaminant of concern, public notice under this provision shall constitute full Public Involvement, as otherwise required by §1.8.7 of this Part, except for locations identified in §1.8.7(A)(3) of this Part.

d. Implement and complete the applicable remedial measures required by §1.13.4 of this Part.

e. Prior Department approval shall not be required for remedial measures implemented under §§1.13.4(B)(1) through (6) of this Part, and §§1.13.4(C)(1) through (4) of this Part. Prior plan approval shall be required for implementing all other proposed remedial measures under these rules.

f. File a post-closure report in both hard copy and electronic format

(as specified by the Department) with the Department. The report shall document:

(1) All analytical results,

(2) Sampling dates,

(3) Sample locations with depths,

(4) Performing Party certification specifying the specific remedial measures completed (i.e. Rule #), and date,

(5) Performing Party certification that public notice to abutters was completed, and

(6) Details of institutional controls required (ELUR's per §1.13.6 of this Part if required).

1.13.2Sampling Requirements

A. The Performing Party shall ensure that the number, location, depth, and distribution of arsenic samples taken as part of the site investigation are adequate to properly characterize the site, the Release, and all specific areas of concern. The Performing Party shall ensure an appropriate rationale has been utilized for selecting sample locations.

B. Minimum Sampling Frequency: The following number of samples, at a minimum, shall be collected and analyzed for arsenic * to evaluate site conditions against the standard. Additional samples may be required based upon site-specific conditions.

Site Size (acres)	Minimum of Site Samples Required
1 acre or less	8 samples minimum
1 to 5 acres	8 samples + 2 per additional acre over 1^st acre
Greater than 5 acres	16 samples + 1 per additional acre
over 5^th acre
*Given the statistically significant number of arsenic samples on file at the Department and evaluated to make the background determination for arsenic across the state, the requirements herein have been set to evaluate site-specific arsenic conditions against the standard, in lieu of the minimum 20 samples required per §1.9.6 of this Part.

1.13.3Determining Compliance with the Standard

A. Given the statistically significant number of arsenic samples evaluated by the Department across the state to determine natural background levels, the following procedures may be utilized for evaluating data collected in accordance with §§1.13.2(A) and (B) of this Part, to determine compliance with the 7.0 ppm Method 1 Direct Exposure Criterion for arsenic. Site arsenic conditions meeting all these requirements shall be deemed consistent with state background levels, and hence be non-jurisdictional for arsenic:

1. No individual sample result from the data set shall be greater than fifteen (15) ppm,

2. No greater than 25% of sample results from the data set shall exceed 7.0 ppm, and

3. The average of all sample results shall be 7.0 ppm or less.

B. The laboratory method reporting limit shall be set at or below the standard (i.e. no greater than 7.0 ppm). Analytical results indicating "non-detect", shall be evaluated at half the method reporting limit value when determining compliance with the standard above. A Performing Party may address exceedances of §1.13.3(A)(1) of this Part, and then re-evaluate compliance with the standard.

1.13.4 Remedial Options for Jurisdictional Arsenic Releases Above 7.0 ppm

A. When arsenic is jurisdictional, the following remedial options may be utilized to address the arsenic Release. The Performing Party shall maintain adequate dust control measures, and ensure soils are kept sufficiently moist and damp during soil disturbance activities.

B. Average Source Area arsenic levels between 7 and 15 ppm:

1. Excavation and removal of all contaminated soils with elevated arsenic levels, with proposed confirmation sampling to determine compliance with the standard.

2. Encapsulation of existing soils with four inches (4") minimum of Clean Soil that has arsenic levels less than 7.0 ppm, preventing erosion with adequate vegetation and/or mulch, and recording of an appropriate Environmental Land Usage Restriction (ELUR if required per §1.13.6 of this Part) to maintain said engineering controls.

3. Encapsulation of existing soils with six inches (6") minimum of mulch, and recording of an appropriate Environmental Land Usage Restriction (ELUR if required per §1.13.6 of this Part) to maintain said engineering controls.

4. Encapsulation of existing soils with a minimum of two inches (2") of asphalt, concrete pavers, or concrete, and recording of an appropriate ELUR to maintain said engineering controls (if required per §1.13.6 of this Part).

5. Soil blending or tilling of wet/damp soil, with re-sampling per §1.13.2 of this Part to determine compliance with the standard.

6. Phytoremediation with re-sampling per §1.13.2 of this Part to determine compliance with the standard.

7. A site-specific remediation plan that has been reviewed and approved in writing by the Department.

C. Source Area arsenic levels between 15 - 43 ppm:

1. Excavation and removal of all contaminated soils with elevated levels of arsenic, with proposed confirmation sampling to determine compliance with the standard.

2. Encapsulation of existing soils with six inches (6") of Clean Soil, preventing erosion with adequate vegetation and/or mulch, and recording of an appropriate ELUR to maintain said engineering controls (if required per §1.13.6 of this Part).

3. Encapsulation of existing soils with four inches (4") of gravel with a minimum of two inches (2") of asphalt, concrete pavers or concrete, and recording of an appropriate ELUR to maintain said engineering controls (if required per §1.13.6 of this Part).

4. Encapsulation of existing soils with four inches (4") of Clean Soil over a geo-fabric material with minimum puncture strength of 120 lbs., and burst strength of 400 psi, and recording of an appropriate ELUR to maintain said engineering controls (if required per §1.13.6 of this Part).

5. Soil blending or tilling of wet/damp soil, with re-sampling per §1.13.2 of this Part to determine compliance with the standard.

6. A site-specific remediation plan that has been reviewed and approved in writing by the Department. Capping alternatives proposed shall include measures equivalent to the protectiveness outlined above.

D. Source Area arsenic levels above 43 ppm:

1. Excavation and removal of all contaminated soils with elevated levels of arsenic, with proposed confirmation sampling to determine compliance with the standard.

2. Encapsulation of existing soils with two feet (2'") of Clean Soil, preventing erosion with adequate vegetation and/or mulch, and recording of an appropriate ELUR to maintain said engineering controls.

3. Encapsulation of existing soils with six inches (6") of Clean Soil (as sub-base) with a minimum of four inches (4") of asphalt or concrete, and recording of an appropriate ELUR to maintain said engineering controls.

4. Encapsulation of existing soils with one foot (1') of Clean Soil over a geo-fabric material with minimum puncture strength of 120 lbs., and burst strength of 400 psi, and recording of an appropriate ELUR to maintain said engineering controls.

5. A site-specific remediation plan that has been reviewed and approved in writing by the Department. Capping alternatives proposed shall include a two-foot (2') soil cap, or equivalent.

1.13.5 Certification Requirements for Sites Formerly Jurisdictional

An Owner of a Contaminated-Site formerly jurisdictional under this Part for arsenic in soil (as the only contaminant of concern), may record on the property title a completed Release Form which can be found on the Department's Office of Land Revitalization and Sustainable Materials Management Site Remediation Program web page to certify compliance with the current arsenic standard if they meet the requirements of §1.13.3 of this Part, after forwarding said release form to the Department. This rule applies to sites where a previously approved remedy required the recording of an ELUR on the title to address arsenic in soil.

1.13.6Institutional Control Requirements - Environmental Land Usage Restrictions, and Owner Notification Requirements

A. The following institutional control requirements shall be required to maintain capping and engineering controls, at Contaminated-Sites where jurisdictional arsenic is the only remaining contaminant of concern above standards.

1. Residential Properties with Four (4) Units or Less

a. Property Owners shall maintain all capping and engineering controls required under §1.13.4 of this Part.

b. Property Owners of sites remediated under §§1.13.4(B) or (C) of this Part, shall be required to comply with R.I. Gen. Laws Chapter 5-20.8 (Real Estate Disclosures), and at the time of any property transfer, provide the buyer with a copy of the post closure report required in §1.13.1(B)(1)(f) of this Part.

c. Property Owners of sites remediated under §1.13.4(D) of this Part, shall record on the property deed, an ELUR approved by the Department.

2. Residential Properties with Five (5) units or more, and Recreational Properties

a. Property Owners shall maintain all capping and engineering controls required under §1.13.4 of this Part.

c. The Owner shall perform annual inspection of all capping and engineering controls for three (3) consecutive years following completion of the remedy. The Owner shall file the results of said inspection with the Department's Office of Land Revitalization and Sustainable Materials Management, and indicate compliance with the requirements of the remedy, or note any deficiencies and include a schedule to return to compliance.

d. Property Owners of sites remediated under §1.13.4(D) of this Part, shall record on the property deed, an ELUR approved by the Department.

3. Industrial/Commercial Properties

a. Property Owners shall maintain all capping and engineering controls required under §1.13.4 of this Part.

b. Prior to submission of the site post closure report, required by §1.13.1(B)(1)(f) of this Part, the property Owner shall record on the property deed, an ELUR approved by the Department, to maintain required capping and engineering controls.

250 R.I. Code R. 250-RICR-140-30-1.13

Amended effective 4/22/2020