Law and the Environment : Environmental Lawyer & Attorney : Foley Hoag Law Firm : Boston, Washington D.C.

Last week, MassDEP finally issued its long-awaited vapor intrusion guidance. Including appendices, it is 148 pages. There is a separate 52-page response to comments on the draft guidance. MassDEP has certainly learned that guidance must at least be described as guidance. The disclaimer runs a full page, and includes the following text:

MassDEP generally does not intend the guidance to be overly prescriptive. Use of such words as “shall,” “must,” or “require,” however, indicates that the text is referring to a specific regulatory and/or statutory requirement, rather than a suggested approach and/or optional measure. Use of the words “should” or “recommend” indicates aspects of a method or approach that are considered appropriate and protective, based on MassDEP’s experience and/or sound technical practices, but do not correspond to a specific regulatory and/or statutory requirement.

The guidance is not a regulation, rule or requirement, and should not be construed as mandatory. Accordingly, this document does not create any substantive or procedural rights, and is not enforceable by any party in any administrative proceeding with the Commonwealth.

My take? 

I was tempted to say “trust, but verify.” However, to be honest, I think I have to say instead, “I’ll believe it when I see it.”

For example, one of the most contentious issues has been how to address potential future vapor intrusion issues when there is currently no building on the site and there are no current plans for a specific building. MassDEP has created a three-tiered approach. Owners of property in Category A, with concentrations below GW-2 standards (GW-2 standards, for readers who are not MCP aficionados, are specifically designed to protect against indoor air exposures), need take no additional precautions prior to building. Owners of Category B sites, with concentrations greater than GW-2 standards, but less than 10 times the GW-2 standards, “should” include the installation of a vapor barrier and an active sub-slab depressurization, or SSD, system. Sites with concentrations greater than 10 times the GW-2 standard will be in Category C.  Buildings on these sites “would be constructed with a vapor barrier and active SSD system” and the site “should” be sampled over a two-year period. 

Don't you just love the artful use of the passive voice here?  Who the heck is actually building the buildings?  Perhaps the the vapor barrier and SSD will build themselves.

Is this a rule or guidance? Time will tell. My prediction? The first time MassDEP varies from its “shoulds” and “woulds” will be one more time than I expect will ever happen. The street-level bureaucracy at MassDEP is still the law west of the Pecos – or at least east of the New York border – and I do not foresee much flexibility. I would be pleased to be wrong.

(And good luck and best wishes to former Foley lawyer Ben Ericson, now Assistant Commissioner for Waste Site Cleanup, as he tries to implement this guidance -- as guidance.)

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What follows is the full text of Bill S.325, introduced in the Massachusetts legislature this term. 

SECTION 1. LIABILITY RELIEF In the event an individual or group of individuals unknowingly purchase contaminated residential land that does not qualify for Brownsfield funding and are not the polluter, they must be relieved of liability and fines in connection with said pollution. The Department of Environmental Protection(DEP) must be proactive in balancing public safety with feasibility. Specifically, where you have residential land that naple is present on part of the land. And, the innocent land owner wants to build over the area naple is not present and designate through an activity use limitation (AUL) the area with naple subsurface as a parking area, the DEP must accept, in a timely manner, this as a permanent solution where there is no eminent danger to environment and man.

SECTION 2. MANDATE FUNDING In the event, where the DEP desires additional testing (fishing expedition) the DEP must perform said testing without cost or harm to the innocent land owner.

SECTION 3. LICENCE SITE PROFESSIONAL CONFLICT(LSP) In order to prevent the appearance of a conflict of interest, there should be a different LSP at each phase of the permanent solution steps.

I invite readers to top this as a model of succinct legislative drafting. Fortunately, this bill is not in eminent danger of being enacted.

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More than 20 years ago, in the Tanglewood East decision, the 5^th Circuit Court of Appeals held that a developers could potentially be liable under CERCLA for conducting site development activities that moved contamination on the site, exacerbated conditions, and required additional cleanup. There have not been many reported cases on this issue since then, so the decision earlier this week in Saline River Properties v. Johnson Controls seemed noteworthy. 

The factual discussion was pretty sparse, but it seems undisputed that Johnson Controls had previously owned the property, the property was contaminated, and Johnson Controls was remediating it under a state administrative order. Saline became the operator of the property and at some point “destroy[ed] the building slab.” Johnson Controls alleged that this resulted in migration of contamination that would not otherwise have occurred. 

For the court, these allegations were sufficient for Johnson Controls’ claim to survive Saline’s summary judgment motion.  The court distinguished cases holding that “passive migration” does not constitute disposal:

Here, more is alleged than just passive migration. [Johnson Controls] alleges that Saline took the affirmative action of breaking up the concrete slab, which caused hazardous substances beneath the barrier to migrate into additional soils and groundwater. The Court concludes that [Johnson Controls] has created a genuine issue of material fact as to whether Saline caused a release or disposal at the facility.

I don’t regard the decision as a surprise, but it is a useful lesson (if costly to Saline) for developers.  Perform your due diligence before purchasing contaminated property and make certain that your redevelopment plans are appropriate given site conditions.

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In an interesting decision issued today, in Zoning Board of Appeals of Holliston v. Housing Appeals Committee, the Massachusetts Appeals Court held that a local zoning board of appeals cannot use vague local environmental concerns as a basis for denying a comprehensive permit under the Massachusetts affordable housing statute, Chapter 40B. As those practicing in this area know, Chapter 40B consolidates all local permitting before the zoning board of appeals. The board can deny permits based on local needs, but there is a presumption that the need for affordable housing trumps local needs if the stock of affordable housing is less than 10% of total housing in the municipality.

There is no dispute that the stock of affordable housing was less than 10% in Holliston. Nonetheless, the ZBA in Holliston denied on the project, asserting environmental concerns about existing contamination, wetlands protection, and stormwater. The essence of the case was that, as the Court noted, plans submitted to the ZBA are generally preliminary. Details get filled in later. Here, the developer basically said that it would comply with Chapter 21E and the Massachusetts Contingency Plan and obtain a condition of no significant risk, and that it would comply with the Wetlands Protection Act and stormwater requirements and subject its detailed plans to review by the local Conservation Commission and DEP at a later date. The Town said that this was not sufficient. 

Judge Kafker (a former Foley associate, I feel compelled to note) made short work of the Board’s arguments. With respect to the contamination, the Court noted that there in fact is no local by-law that even purports to regulate the scope of remedial work. Since the ZBA review is limited to local concerns, it essentially was without jurisdiction to review the remedial plans. 

With respect to wetlands and stormwater, Holliston has a local bylaw and regulations that are more stringent than the state requirements. However, as the Court noted, the Board “failed to demonstrate that the safeguards the local by-law provides to wetlands interests over and above the protections afforded by the WPA outweigh the community’s need for low or moderate income housing.” Noting that Chapter 40B “curtails” local authority, the Court provided the coup de grace:

It is not enough to simply point out a lack of compliance with local regulations or complain that the local board’s power has been taken away. The board must show that the impacts on the local wetlands outweigh the local need for affordable housing.

The notion that 40B trumps local by-laws is not new. However, this case is the most comprehensive analysis that I have seen regarding the interplay between Chapter 40B and local environmental regulations. The short answer? Local environmental bylaws and regulations do not justify a NIMBY denial of affordable housing projects.

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As I have previously mentioned, EPA is considering including criteria related to vapor intrusion (VI) in the hazard ranking system scoring used to determine which sites should be added to the National Priorities List. As I noted when this first became news, it’s pretty much an obvious step for EPA to take. These are precisely the types of sites on which EPA should be focusing. At a certain level, I’d be happy – relatively – if EPA limited CERCLA to sites imposing threats to public water supplies and sites posing VI problems, and jettisoned everything else. 

The National Association of Manufacturers and the Aerospace Industries Association have now sent EPA a letter opposing inclusion of VI as a criterion for HRS scoring. The basis for their opposition is curious. It’s not that VI sites aren’t a problem. It’s that VI sites are a problem – but that CERCLA is not the right vehicle to address VI, because CERCLA cleanups take too long. 

NAM and AIA are right, of course. CERCLA decisions take forever. While NAM and AIA don’t point out the irony, it’s got to be uncomfortable for EPA that the principal federal program to clean up contaminated properties is not well-suited to address what is arguably the most significant health risk from the existence of contaminated properties.

Why should this be so? Could it be because CERCLA is the last bastion of almost totally pure command and control regulation? Might CERCLA remedy decisions take less time if EPA did not have to select remedies, but instead only identified appropriate cleanup standards and let PRPs select the remedy? Might cleanups get implemented faster if the PRPs’ obligation was simply to meet cleanup standards and provide sufficient information to EPA or 3^rd party auditors to demonstrate that the cleanup standards have in fact been met? 

Oh, and, by the way, in these troubled budget times, might EPA be able to oversee the CERCLA program with about ¼ of its current staff if it set cleanup standards and got out of the way, rather than micromanaging every element of every cleanup?

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Recently, I expressed concern that District Courts, which traditionally have never seen a CERCLA plaintiff they didn’t like, would ignore the Supreme Court’s Burlington Northern decision – at least until there is another Supreme Court decision affirming that Supremes really meant the two-part holding in Burlington Northern: (1) divisibility isn’t that hard and (2) parties aren’t liable as arrangers unless they actually intended to dispose of hazardous material. 

Although it shouldn’t be earthshaking, I was therefore encouraged to see last week’s decision in Schiavone v. Northeast Utilities Service Company. In Schiavone, the defendants sold used transformers to a scrap yard. Their policy was to drain the transformers before sale. The Court concluded that there remained a material dispute whether the defendants sent PCB-containing transformers to the site. Nonetheless, the Court granted the defendants’ motion for summary judgment on the ground that there was no evidence that the defendants intended to dispose of PCBs. Citing to Burlington Northern, the Court stated that:

The defendants’ specific intent to dispose of the transformers themselves is not enough to make them “arrangers” under § 9607(a), even if the defendants had knowledge that oil was in the used transformers when they sold them…. The plaintiffs have produced no evidence that could support a conclusion that the defendants had as a purpose in their dealings with [the scrap yard] disposing of transformer oil containing PCBs.  Consequently, the plaintiffs have not created a genuine issue of material fact as to whether the defendants arranged for the disposal of a hazardous substance.

Sometimes, justice does triumph. I am hopeful that arranger cases where the defendant wasn’t actually intending to dispose of hazardous substances will start to fade away. I remain less optimistic about the divisibility side of Burlington Northern, but one can always hope.

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In an interesting decision issued earlier this month, Judge Lewis Babcock of the District of Colorado ruled, in County of La Plata v. Brown Group Retail, that detection of contamination at levels exceeding state cleanup standards does not, by itself constitute an imminent and substantial endangerment under RCRA. I think that Judge Babcock is correct, but I can’t help but feel that the decision might be different in the blue state of Massachusetts. I was particularly taken by Judge Babcock’s description of the nature and purpose of state regulatory standards:

Regulatory screening levels, action levels, and standards do not identify real or actual risks to human health. Rather, these regulations are designed to protect the public health by identifying the level of chemical exposure at which there is no threat of harm with a large margin of error. Exceedance of regulatory screening levels, action levels, or standards therefore does not demonstrate a real or actual risk to human health.

Tell it to MassDEP.

I think it’s wonderful that a federal judge has said that “regulatory … standards do not identify real or actual risks to human health.” He’s right, of course, and we often forget that when conservative assumption is piled on top of conservative assumption in the establishment of a standard, the standard may end up having only the most tenuous connection to any actual concern about human health.

I wish I could make equally kind statements about Judge Babcock’s handling of the CERCLA claims in the same case. Like many judges implementing the Supreme Court’s decision in Burlington Northern, Judge Babcock shrugged off the defendant’s divisibility arguments, notwithstanding that the arguments the defendant made were well within the ambit of the types of considerations the Supreme Court said were relevant in Burlington Northern. I feel we are destined to continue the cycle of lower court decisions which simple-mindedly whack the defendant, followed every few years by a Supreme Court decision that says fairly simply: No, that’s not the way it’s supposed to be.

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Vapor intrusion is the issue de jour at federal and state Superfund sites. On the federal side, EPA announced in January that it was considering adding vapor intrusion criteria to its calculation of hazard ranking scores. Frankly, as a concept, it’s hard to dispute. In fact, aside from when actual public water supplies are contaminated, indoor air is probably about the only risk associated with Superfund sites that we should care about. Every analysis EPA has ever done has shown that risks associated with Superfund sites are otherwise overestimated and it is not a cost-effective place to be putting environmental protection dollars. The question of course is how to go about regulating indoor air.

MassDEP is attempting to answer this question at the state level as we speak. In December, MassDEP released its draft vapor intrusion guidance document. The Guidance, including appendices, totals 142 pages and 2.2 MB of pdf files. You probably know where I’m headed with this. How can any set of documents that long be appropriate for guidance, you may ask. Like Tevye in Fiddler on the Roof, I’ll tell you. I don’t know.

Today, NAIOP provided MassDEP with 54 single-spaced pages of comments on the draft guidance. Kudos to NAIOP’s 21E Committee, and particularly Ned Abelson, for truly herculean efforts in putting together these comments. The problems I identify below are all described in detail in the NAIOP comments.

There are many substantive issues with the Guidance. Here are two high-level ones:

It would be another step away from the risk-based program that Massachusetts pioneered almost 20 years ago. Whatever MassDEP officials may say, there’s a lot of evidence that those actually running the program simply don’t trust the privatized risk-based system that has been such a success.

The Guidance will make it very difficult for sites with even potential VI issues to achieve regulatory closure. The difficulty in obtaining closure will, in turn, discourage brownfields redevelopers from pursuing VI sites. The disincentive will, in turn, mean that fewer sites will actually be cleaned up. How will that achieve MassDEP’s goals?

In any case, how can this possibly be implemented as guidance? Simply put, anyone who thinks that the Guidance will not be rigidly implemented by MassDEP is delusional. My favorite discussion of this issue is contained in the 2000 Appalachian Power decision. In dismissing EPA’s contention that the guidance document at issue in that case was not binding, the Court said this in response to EPA’s reference to its boilerplate statement that the guidance created no rights: 

“[R]ights” may not be created but “obligations” certainly are…. The entire Guidance, from beginning to end – except the last paragraph – reads like a ukase.

Here’s just one example, to wrap up an already overly-long post. In determining whether basements should be evaluated for VI purposes as living spaces, the Guidance provides that “any basement with at least seven feet of head room in an occupied residential dwelling should be considered a living space.” What’s the likelihood that any street-level bureaucrat at MassDEP will ever allow any basement with at least seven feet of headspace to be considered as anything other than a living space? 

Sounds like a rule to me. Sounds like regulation – not guidance. 

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Daily Environmental Report noted earlier this week that Bob Perciasepe, EPA Depute Administrator, has told the National Environmental Justice Advisory Council that environmental justice is the “largest remaining challenge” that EPA must address systematically. This is not particularly surprising, since Lisa Jackson has made EJ a priority.

However, I was left nearly speechless by the statement in Daily Environment Report that Perciasepe indicated that

Polluted communities are also not likely to be targeted for business investment, meaning those communities have limited economic opportunities in addition to disproportionate pollution burdens.”

Once again, I’m left wondering what planet EPA is from. Those in the private sector would be stunned by linking the need for EJ with the need for more economic development in poor communities. EJ can be a real issue. Where racial minorities suffer disproportionate burdens because of their race, everyone should be concerned.

At the same time, however, EPA has to realize that EJ requirements are far more likely to retard economic development than encourage it. Where EJ concerns prevent economic development because organized groups label them as LULUs, or Locally Unwanted Land Uses, that may be an EJ success, but it doesn’t contribute to economic development. We can’t wave a magic wand and make the private sector want to site a nice clean office park in a distressed area, just because the residents would prefer that to some slightly messier use.

Even where properties are already contaminated, my experience is that EJ concerns are more likely to discourage redevelopment than encourage it. Brownfields properties are challenging enough without an additional layer of EJ review. One would think that anyone cleaning up contaminated property for almost any kind of economic development would be welcomed by the communities surrounding such properties. However, EJ requirements too often scare aware Brownfields developers. Again, this may be an EJ victory and it may be what the communities want, but to suggest that systematic integration of EJ issues into EPA’s programs will increase economic development in poor communities is, to put it gently, wishful thinking.

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Last week, EPA’s Office of Solid Waste and Emergency Response announced release of its Community Engagement Implementation Plan. Who could be against community engagement? It’s as American as apple pie. It’s environmental justice. It’s community input into decisions that affect the community. It’s transparency and open decision-making.

Call me a curmudgeon, but I’m against it. Study after study shows that, in terms of the actual risks posed by Superfund sites, we devote too many of our environmental protection dollars to Superfund sites, when we should be focusing on air and water. Why do we keep doing this? Because the community demands it. As Peter Sandman has noted, perceptions of risk are driven only partly by the actual hazard posed. To a significant degree, those perceptions are more driven by outrage over the situation. In some circumstances, what Sandman calls outrage management makes sense, but I’m skeptical that EPA’s community engagement initiative is really about outrage management.

In any case, here’s the public policy question of the day. Does it really make sense to spend scarce environmental protection resources, not to reduce risk, but to reduce outrage?

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Late last week, Elliott Gilberg, Acting Director of EPA’s Office of Site Remediation Enforcement (OSRE) issued an Interim Policy on Managing the Duration of Remedial Design/Remedial Action Negotiations. Members of the regulated community may not be surprised by the contents of the memo, but they certainly will not be pleased. In brief, the memorandum fundamentally makes two points:

EPA wants to shorten the duration of RD/RA negotiation

EPA is going to use the heavy hammer of unilateral administrative orders, or UAOs, to keep PRPs’ feet to the fire and ensure that negotiations move quickly.

PRPs will likely agree that shortening the duration of negotiations would be a good outcome in the abstract – but achieving it by greater use of UAOs? I don’t think so.

I can only wonder if EPA has even considered the impact of the Burlington Northern decision here. Is this a perverse reaction from EPA? A metaphorical throwing down the gauntlet to PRPs? It certainly feels that way.

I have a different suggestion, if EPA truly wants to shorten negotiations. First, acknowledge Burlington Northern and compromise on the merits in those great majority of cases where there are legitimate divisibility arguments. Second, stop acting like the last bastion of command and control regulation. Set cleanup standards and then, to the maximum extent permitted by existing law, let PRPs clean up to those standards, without micromanaging every detail of the cleanup process.

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As a confirmed optimist and believer in technology, I’ve long thought that we can meet the challenge posed by global climate change – as long as we implement the right policies to provide incentives to develop the necessary technologies. Having the wide engineering knowledge that being a lawyer – as well as one of six political science graduates from MIT my year – provides, I have assumed that nanotechnology would play a substantial part in whatever the ultimate solution turns out to be.

Climate change is a big problem and we’re not there yet – especially since the incentives aren’t yet in place. Contaminated site remediation presents a more manageable set of problems, and nanotechnology finally does seem to be making significant headway in the remediation arena. According to a report just published in Environmental Health Perspectives, in-situ nanotechnology can reduce soil and groundwater remediation costs, as well as help to reach the cleanup end point more quickly. The study identifies a number of nano-scale materials that are being used for remediation, but the most common at this point and the one discussed in most detail in the study is zero valent iron.  The study is not definitive, but is based on a review of 45 sites at which nanotechnology has been used or is in process.

In conjunction with the study, the Project on Emerging Nanotechnologies has also produced a map showing the location of sites at which nanotechnology has been used as a remediation technology and providing some information about each site.

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Earlier this month, the New Jersey legislature enacted a privatized system, modeled on Massachusetts approach, for cleaning up state superfund sites. Score one for truth, justice and the American Way. If that were all, the NJ legislation might be worth just a brief mention, but I thought it noteworthy that the Greenwire article concerning implementation of the program focused not on the spread of the privatized program approach, but on the outrage being mustered by the environmental community at the sell-out to polluters by the NJ government.

I like to think that I’m not naïve on such matters, but I find such articles unspeakably depressing. Why must there be such a knee-jerk reaction to what is unambiguously progress, allowing cleanups to proceed more quickly and cost-effectively, and saving governmental resources for the places where they are really needed? 

For those who care, the statistics on the Massachusetts program demonstrate that, although MassDEP audits frequently find paper violations and sometimes require more field work to assuage MassDEP concerns, additional cleanup is almost never required as the result of audits. In other words, private cleanups do the job and protect public health and the environment.

I’ll therefore get on my soapbox once more and ask why Lisa Jackson, late of NJ, and now with a really bully pulpit, cannot praise the NJ statute? Rather than being defensive about it, she could even suggest it as a model for appropriate changes to the federal Superfund statute, CERCLA.

I can dream, can’t I?

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As pretty much everyone knows, in order to improve its prospects for passage, the Senate added certain tax provisions to the financial bailout bill – also know as the Emergency Economic Stabilization Act of 2008, or H.R. 1424 – enacted earlier this month. One of the provisions included in the EESA was an extension of the brownfields tax incentive.

The brownfields tax incentive, originally enacted as part of the Taxpayer Relief Act of 1997, and codified as Section 198 of the internal revenue code, allows developers to immediately expense the cost of remedial work at brownfields sites, rather than having to capitalize such costs. The incentive actually expired as of December 31, 2007, but the EESA provision extends that date to December 31, 2009.

Historically, this tax incentive has been used only rarely used. In a report from 2007, the Congressional Research Service identified several possible reasons why. One issue is that the taxpayer must obtain certification from the relevant state environmental agency that the property qualifies as a brownfields site. However, more relevant here, the report noted that Congress’s failure to make the provision permanent – it has expired and been renewed several times at this point – is a significant factor in its limited utility. 

Given that the EESA renewal of the provision only continues this stop and start quality, it is not obvious that the provision will find any greater utility now than previously. Nonetheless, for those who are aware of it and whose property qualifies, extension of the provision is certainly good news.

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