In an important decision yesterday, Judge Douglas Woodlock of the District of Massachusetts confirmed that CERCLA preempts local cleanup bylaws. The case involved one aspect of the cleanup of the W.R. Grace Superfund Site in Acton, Massachusetts. In 2005, EPA issued a Record of Decision requiring operation of a groundwater pump and treat system in what is known as the Northeast Area of the Site. However, EPA recognized that the contamination in the area was limited and stated in the ROD that the treatment system might be turned off in three years if certain criteria were met. After three… More
Category Archives: Brownfields
I Thought Redeveloping Brownfields Was a Good Idea: Apparently the Boston Globe Hasn’t Gotten the Message
In an article earlier this week, the Boston Globe reported on concerns that the Massachusetts Department of Environmental Protection is planning to weaken cleanup standards for hazardous waste sites in Massachusetts, seemingly in response to pressure from developers. The article is so wrong and the concerns are so misplaced that some response is necessary.
First, we expect MassDEP to regulate in the face of uncertainty. That means that MassDEP must set cleanup standards without perfect knowledge. As a result, most people – and certainly the environmentalists complaining about the regulatory changes – would expect MassDEP to err on the… More
For those of you who were skiing or snorkeling (snorkeling in my case) and missed it, on December 30, EPA announced a direct final rule incorporating the new ASTM 1527-13 standard for site assessments into its all appropriate inquiries rule. Following ASTM’s release of the new standard, EPA’s action was expected, but remains important.
The biggest issue here is what EPA will do regarding the prior standard, ASTM 1527-05. The answer for now is nothing; use of ASTM 1527-05 remains valid. However, the new rule states that EPA “recommends” use of ASTM 1527-13. EPA also stated that it… More
On Friday, MassDEP issued the formal public comment draft of its package of regulatory reforms under the Massachusetts Contingency Plan. Overall, it’s certainly a good package, which will facilitate getting to an endpoint with reduced transaction costs, but no decrease in environmental protection. It’s not perfect (and you have until May 17, 2013 to provide comments to help make it more perfect), and it took far too long, but congratulations are still due to MassDEP.
MassDEP’s summary organizes the proposed changes into five broad categories. Highlights in each area include the following:
Permit, Tier Classification, and Numerical… More
Last week, MassDEP released new guidance on how it is assessing exposures to TCE in light of EPA new assessment of TCE risks released in September 2011. The biggest issue is that concerns about fetal exposure have caused MassDEP to tighten the imminent hazard threshold for indoor air exposures to 2 ug/m3. That’s an order of magnitude reduction from the prior standard of 20 ug/m3.
MassDEP has apparently thus far taken the position that it is not planning on reopening closed sites based on the new IH criterion. However, they are going to be under a lot of pressure… More
A story in Tuesday’s BNA Daily Environment Report notes that several representatives of industry interests are asking EPA to hold off on issuing its much-anticipated vapor intrusion guidance until it can be subject to public comment. Apparently, the current draft was sent to regional offices – but not distributed to the public – for review. Someone at Inside EPA leaked it to Fox Rothschild and asked for comment. Fox Rothschild attorneys then submitted a letter to EPA requesting a formal opportunity for public comment.
To me, the episode illustrates what I’ll humbly call Jaffe’s Iron… More
On Tuesday, EPA issued its “reinterpretation” of its understanding of what building wastes constitute “PCB bulk product waste” under TSCA regulations, as opposed to “PCB remediation waste.” Previously, when PCBs migrated from building products, such as caulk, the caulk would be considered PCB bulk product waste, while the underlying contaminated building material would be considered PCB remediation waste. Now the building material will also be considered PCB bulk product waste. Indeed, EPA has slightly expanded the reinterpretation from its draft proposal; it now allows the building substrate to be characterized as PCB bulk product… More
Who Knew? The National Research Council Discovers That Many Groundwater Cleanups Will Take More Than 100 Years
Daily Environment Report today noted that the National Research Council has produced a study, Alternatives for Managing the Nation’s Complex Contaminated Groundwater Sites, which assesses the scope of the groundwater contamination problem and our ability to address it. One significant takeaway from the report is that
Significant limitations with currently available remedial technologies persist that make achievement of MCLs throughout the aquifer unlikely at most complex groundwater sites in a time frame of 50-100 years. Furthermore, future improvements in these technologies are likely to be incremental, such that long-term monitoring and stewardship at sites with groundwater contamination should be expected.
EPA recently released two guidance documents relevant to Superfund practitioners. One establishes revised procedures regarding how EPA will manage negotiations with PRPs. The second updates EPA’s guidance on how it will handle Alternative Sites. To me, both have the flavor of deck chair management on the Titanic.
The RD/RA negotiation guidance has to be seen to be believed. It’s a document that seems reasonable on its face, but when you step back and take a big picture look, you have to ask whether there isn’t something wrong with a program requiring a 10-page set of details regarding the timeline for how to negotiate a… More
Is EPA Considering Allowing PCB Cleanups to Proceed Under RCRA, Rather Than TSCA? I’ll Believe It When I See It (And I Hope I See It)
One headline in today’s Daily Environment Report stated that “EPA Considers PCB Regulatory Reform Amid State Regulator Criticism of Program.” Even my advanced sarcasm skills failed me on reading this. I’ll therefore settle for “about bloody time.”
The original fault certainly lies with Congress, not EPA. The notion that Congress needed a separate statutory regime to deal with one specific compound (ok, family of compounds) was always foolish. TSCA and RCRA were enacted with 10 days of each other in 1976. No one has ever justified the PCB provisions of TSCA, given the contemporaneous passage of RCRA. The… More
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… More
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… More
Watch What You Do With That Shovel (Or Heavy Equipment): Another Developer Faces Superfund Liability For Site Redevelopment
More than 20 years ago, in the Tanglewood East decision, the 5th 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… More
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… More
Vapor Intrusion and the National Priorities List: Why Should the Biggest Superfund Problem Not Be Regulated Under Superfund?
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… More
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… More
Toto, I’ve a Feeling We’re Not in Massachusetts Anymore: Exceeding a Cleanup Standard Is Not Necessarily An Imminent Hazard
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… More
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… More
No Irony Intended, I’m Sure: EPA Must Focus Systematically on Environmental Justice in Order to Encourage Economic Development
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… More
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,… More
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… More
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… More
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… More
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,… More