The Arkansas Department of Energy and Environment – Division of Environmental Quality (“DEQ”) and Ampler Development LLC (“AD”) entered into a November 17th Electric Site Cleanup Agreement (“ESCA”). See LIS No. 21-118.
The ESCA addresses a facility located in Searcy, Arkansas (“Site”).
DEQ defines an ESCA in terms of a way to address historic contamination on a site with known objectives and without penalty.
Several federal and state programs, including ESCA in Arkansas, use risk-based remediation standards to tailor cleanup levels to site-specific factors. These programs often consider criteria such as how the site is characterized, and/or what the future land use will be. These various procedures are usually accompanied by site-specific analysis and the requirement that the standards be safe for the environment and human health.
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. Site conditions approval will likely be based on the acceptability of the conditions under the applicable screening levels and/or if the property uses are compatible. Incorporation or modification of enforceable institution controls (i.e., restrictive covenants, restrictive covenants, easements, or deed restrictions) is possible. The current and future real-estate owners might use these controls to ensure compliance with the restrictions.
The ESCA defines the Site as commercial property that included a bulk-oil station and aboveground storage tanks. This was between 1945 and the 1960s. It also includes railroad tracks and spurs from around 1913 to early 2000s.
On the Site is said to have been built a Burger King restaurant.
Ampler is stated to have provided its consultant, Environmental Works, Inc. (“EWI”), a Phase I Site Environmental Assessment (“ESA”) which identified recognized Environmental Conditions associated with the Site. EWI also completed a Phase II ESA of the Site. Such Phase II is stated to have detected volatile organic compounds (“VOCs”) and Total Petroleum Hydrocarbons-Gasoline Range Organics (“TPHGRO”).
EWI on behalf of Ampler submitted a request to DEQ for entrance into an ESCA seeking environmental regulatory closure for activities related to the Site’s historical operations.
Ampler can complete the following tasks through the ESCA:
- Within 30 days of the effective date, this ESCA requires that you submit to DEQ the Sampling and Analysis Plan. This plan is designed to determine the horizontal and/or vertical extent, rate and migration, type and concentration of any hazardous substances and pollutants found in the environment.
- Once you have received written approval from DEQ, you can implement the SAP and submit your findings to DEQ.
- Within 30 calendar days after receiving written notification by DEQ that the SAP has failed to achieve an adequate determination as referenced within the ESCA, amend this document to provide additional sampling or analysis to achieve the objectives
- After DEQ approval, you can implement the SAP amendment
- In the event the contamination is determined to have occurred, within 30 calendar days of notification by DEQ AD is required to submit a Remedial Action Plan (“RAP”) to control or remediate the contamination to the extent necessary to protect human and the environment using a risk-based approach (including an implementation schedule which shall be implemented upon written approval by DEQ)
- Within 30 days of the completion of remediation activities, a COMPLETION REPORT must be submitted to DEQ
- If DEQ determines that the RAP implementation is not achieving remediation as provided by the ESCA, DEQ will conduct any additional remedial activities it deems necessary
- AD must file a deed restrict for the Site within 30 calendar days after DEQ has notified AD in writing. This form must be acceptable to DEQ and will notify successors in title that the Site’s use will be limited to activities and uses that protect the integrity of any remedial actions taken on the Site.
- Within 45 days of DEQ’s written notification, DEQ must receive a copy the deed restriction.
- Upon approval of the Completion Report and receipt of deed restriction (if required) DEQ will issue a “No Further Action” determination to CBC
Download a copy of the ESCA Here.