SECTION 165:10-10-9. Assessment and remediation of site

(a)   Qualifications. All Brownfield assessment and remediation projects will be overseen by a qualified environmental professional, defined by EPA as someone who possesses sufficient specific education, training, and experience necessary to exercise professional judgment to develop opinions and conclusions regarding conditions indicative of releases or threatened releases of deleterious substances on, at, in, or to a property, sufficient to meet the objectives and performance factors of the EPA's All Appropriate Inquiries rule (40 CFR Part 312) and ASTM E1527-05. Qualified environmental professionals must have one of the following:

(1)   A state or tribal issued certification or license (including Professional Engineer, Professional Geologist, and PST Division of the Corporation Commission licensed Remediation Consultant) and three years of relevant full-time work experience; or

(2)   A Baccalaureate or higher degree in science or engineering, including geologists as defined in 25 O.S. § 35 and engineers as defined in 59 O.S. § 475.1 et seq., and five years of relevant full-time work experience; or

(3)   Ten years of relevant full-time work experience.

(4)   Individuals who do not meet the above requirements must work under the supervision or responsible charge of an individual who meets the requirements for an environmental professional.

(b)   Assessments.

(1)   The appropriate Commission staff may conduct initial site inspections to evaluate and recommend those sites that qualify for the Brownfield program; Brownfield staff will approve inspections and assessments and list each approved site in the database.

(2)   Qualified environmental professionals will perform an assessment (Phase I and/or Phase II) of each property.

(3)   Governmental entities, quasi-governmental entities, and non-profit organizations may be eligible for a Targeted Brownfield Assessment (TBA) conducted by either the Commission or EPA.

(4)   OERB's qualified staff or contractor may perform assessments on abandoned exploration and production (E&P) sites.

(5)   Assessments of former retail petroleum storage tank sites will be overseen by and coordinated with the Commission's PST Division staff.

(6)   EPA's All Appropriate Inquiry (AAI) Rule appearing in 40 CFR Part 312 shall be complied with as per the Commission's guidance.

(7)   If during an initial investigation or Phase I or Phase II assessment pollution is discovered and immediately removed from the site, as confirmed with sample analytical results, the site may qualify for No Further Action (NFA) status.

(c)   Phase I. Basic site and assessment information is necessary for exploration, production, and/or pipeline sites known or suspected to be contaminated by substances defined in OAC 165:10-10-2(a), and for PST sites. Initial site assessment information includes, but is not limited to:

(1)   Analyses from one or more soil and water background samples;

(2)   A certified survey or the results of a GPS survey defining the area of pollution,

(3)   The present and proposed uses of the site;

(4)   The operational history of the site and current use of areas contiguous to the site; and

(5)   Detailed historical and records reviews as per AAI, which may be waived by Brownfield staff until after the basic physical environmental/pollution assessment is completed and Commission staff concludes its review of sample data pertaining to the site.

(6)   A Category Index Table must be submitted for all oil and gas and pipeline sites likely or definitely polluted above action levels. The Category Index Table appears in the Commission's Guardian Guidance document, which is available on the Commission's website or by request.

(7)   Sites that are determined by the Brownfield staff to need no remediation following an acceptable Phase I assessment can be issued no action necessary certification once the Brownfield staff receives appropriate documentation.

(d)   Phase II. Phase II sites are those sites where the Phase I assessment demonstrates the need for additional assessment, action level determination, and (often) remediation guidance.

(1)   Phase II oil and gas sites and pipeline (crude and refined product and produced water) sites will be overseen by the Oil and Gas Conservation Division's Brownfield staff;

(2)   Phase II retail petroleum storage tank sites will be referred to the Commission's PST Division and will adhere to the Oklahoma Risk-Based Corrective Action guidelines for assessment and remediation;

(3)   Necessary information generally includes but is not limited to concentrations of pollutants in the soils, surface water or groundwater at the site; the vertical and horizontal extent of pollution in the soils, surface water or groundwater at the site; a determination that risk based criteria to protect human health and the environment at and around the site are or are not being met; and recommendations on how to meet risk based criteria, including remediation as needed;

(4)   Sites that are determined by the Brownfield staff to need no remediation following appropriate environmental and risk assessment can be issued no action necessary certificates once the Brownfield staff receives appropriate documentation.

(e)   Status of site when no action is necessary.

(1)   A no action necessary determination is appropriate for a site if at the conclusion of the initial inspection, TBA, Phase I or Phase II investigation, or subsequent to the immediate removal of pollution from a site, the Brownfield staff or other appropriate Commission staff finds or concurs that the site poses no significant risk to human health or safety or the environment according to the proposed use of the site.

(2)   Brownfield staff will issue a no action necessary certificate when the site is restored for beneficial use and other required program elements, if any, are completed.

(f)   When pollution is likely present or is present above action levels. If pollution is likely present or is present above action levels at a site, further assessment and remediation will adhere to one of the following regimens:

(1)   The Oil and Gas Conservation Division's Guardian Guidance document and rules for petroleum and produced water site assessment and remediation oversight, enforcement, approval and verification; or

(2)   The PST Division's guidance document and rules for site assessment and cleanup oversight, enforcement, approvals and verification; or

(3)   For E&P sites where there is no RP, the OERB Voluntary Environmental Program may, in its sole discretion, submit to the Commission's Brownfield program those abandoned E & P sites which have qualified for the OERB's program, which is limited to surface restoration in order that such sites may be assessed and remediated by OERB in accordance with the Commission's Brownfield rules; and

(4)   The Commission's Brownfield staff will act as the regulator for the Brownfield program and ensure that applicable Brownfield laws and rules are followed.

[Source: Added at 25 Ok Reg 2187, eff 7-11-08; Amended at 33 Ok Reg 593, eff 8-25-16]