The Indiana Department of Environmental Management’s State Cleanup Section rolled out the new Independent Closure Process (ICP) on April 15, 2010, with the hope of accelerating investigation, remediation and closure at low-priority sites. Key elements of the ICP are:
- A low-priority site ranking based on the criteria in Indiana’s Priority Ranking System
- Responsible party (RP) and consultant self-completion and self-certification of investigations and cleanups
- Adherence to the default closure levels and guidance of Indiana’s Risk Integrated System of Closure (RISC)
- IDEM’s issuing a “Completion of ICP” letter [not a “No Further Action” (NFA) letter] for successful ICP cleanups
In general, low-priority sites are those having only contaminated soil. IDEM estimates that approximately 200 sites are eligible for the ICP. Cleanups at many of these sites have stalled as the agency has redirected its resources to medium- and high-priority sites. IDEM’s hope is that cleanups at low-priority sites that are stagnant will resume without the agency’s direct oversight. It is important to note that the ICP does not relieve RPs or consultants from any existing legal requirements for reporting releases or for site investigation and remediation.
After an ICP cleanup is completed, the RP and consultant submit an ICP Site Closure Form and appropriate supporting closure documents to IDEM for review. The RP and consultant must certify on the Site Closure Form that the cleanup was conducted per RISC to the appropriate closure levels. IDEM estimates that closure determinations will be completed within 60 days after the agency receives the Site Closure Form and documents. IDEM will issue a Completion of ICP letter if the required closure documents are complete and cleanup goals have been achieved. The Completion of ICP letter is similar to an NFA but states that the closure decision was based on RP and consultant certifications.
We believe there are several potential benefits and risks associated with the ICP.
- Streamlined pathway to closure for low-priority sites
- Avoiding IDEM’s lengthy review and comment/response process for reports and closure plans
- Avoiding IDEM’s oversight charges
- RPs and consultants must self-certify (i.e., self-approve) all work performed, not IDEM
- It’s not clear whether lenders and developers will accept RP and consultant certifications and the “Completion of ICP” closure status in lieu of “No Further Action” status
- At the end of the ICP process, IDEM may not issue or may revoke a Completion of ICP letter if:
- Unacceptable risks remain at a site
- Incomplete or inaccurate information is provided to IDEM
- The terms of an Environmental Restrictive Covenant placed on a site are not enforced or managed
In addition, at any time during investigation or remediation, as new information is collected, a site may be elevated to medium or high priority and will no longer be ICP eligible.
Wilcox provides assistance in evaluating whether sites currently in the State Cleanup program are eligible for, and will benefit from, participation in the ICP.