How Brown is Brown Enough? An Update on the IRA ITC Adder for Brownfield Sites

It is now almost 18 months since Congress enacted the Inflation Reduction Act.  One of the IRA’s provisions was an adder to the ITC for renewable energy projects located in an “energy community”.  One way to be in an energy community is to be a brownfield.  The IRA defined a brownfield simply as a facility that meets the definition of a brownfield under CERCLA. 

And what does that mean?  I defined it pretty simply in the title of our blog post about the brownfield adder:  “It’s good to be a brownfield site – as long as it’s not too brown.”  In other words – and you should read the original post to get all of the gory details – if hazardous substances (or pollutants or contaminants) are present or potentially present at a site, then it’s a brownfield, but only if there aren’t so much of the hazardous substances that the site is a Superfund site, or a RCRA site, or a TSCA site, or … you get the idea.

Since enactment, the IRS has issued three guidance documents concerning the definition of an “energy community”, IRS Notice 2023-29, IRS Notice 2023-45, and IRS Notice 2023-47.  While these guidance documents included a range of useful information, most importantly they provided a number of “safe harbors”.  There are three for brownfield sites (all of which remain subject to the statutory exclusions):

  • Sites included on federal or state lists of brownfield sites;
  • Projects for which an ASTM Phase II assessment has been performed, where the Phase II assessment confirmed the presence of a hazardous substance or a pollutant or contaminant; and
  • Projects with nameplate capacity of not greater than 5MW (AC), for which an ASTM Phase I assessment has been performed, where the Phase I assessment identified the presence or potential presence of a hazardous substance or a pollutant or contaminant.

So, what’s the state of the market 18 months after enactment?  The process is still evolving, but there are a number of points worth noting.

  1. First, and most importantly, it’s important to emphasize that the IRA provisions are working. They are clearly driving renewable energy developers towards projects that utilize brownfield sites.  I’ve been doing this type of work for more than 35 years and EPA has been encouraging use of contaminated land for renewable energy development for more than 20 of those years, but the level of activity post-IRA has increased markedly.
  1. For many projects, it is more difficult to determine if any of the exclusions apply than it is to determine whether a hazardous substance is present, such that a site would qualify – as long as no exclusions apply. Thus, it is a disappointment that the IRS has not provided any guidance to date on the applicability of the exclusions.
  1. The Safe Harbors were intended by the IRS to be essentially a sure way to qualify for the ITC adder; as logicians would say, a sufficient condition to qualifying for the adder. However, the market has turned the Safe Harbor into something of a necessary condition.  In at least some cases, parties providing project financing have been reluctant to do so, even where the facts clearly supported the applicability of brownfield adder provision, because the project did not qualify for one of the safe harbors.  Beware unintended consequences.
  1. Somewhat relatedly, the practice of ASTM Phase I and Phase II site assessments is changing to reflect the new reality created by the brownfield adder and the IRS safe harbor guidance. It used to be that developers wanted a clean Phase I report.  Now, at least for renewable energy projects, developers want a dirty report – as long as it’s not too dirty.  Also, more developers are finding it prudent to request Phase II reports where there may be minor red flags raised by a Phase I report, but where, prior to the IRA, developers would skip the Phase II and deal with any minor contamination as part of site development work.
  1. Finally, it’s also worth noting that insurance companies appear to be stepping up to the plate, bridging the gap between project developers and financial partners, and offering to ensure against the risk that the IRS might take the position that the brownfield adder is not available.

Overall, as noted above, the IRA appears to be achieving its related goals of encouraging renewable energy development and driving such development toward brownfield sites.  However, there’s still some work to do to smooth out some of the rough spots and answer some of the unanswered questions about what’s a brownfield and what isn’t.

EPA Lowers the PM2.5 NAAQS: Goldilocks Can Sleep Soundly

Yesterday, EPA finalized a rule lowering the primary annual National Ambient Air Quality Standard for PM2.5 to 9.00 ug/m3.  This is a significant reduction from the current 12.00 ug/m3 standard and a victory for environmentalists, even though they had advocated for larger reduction.

There is substantial evidence supporting the reduction, both in the legal and the common sense understanding of this term.  The evidence in support of a lower standard has been piling up for some time.  The 9.00 ug/m3 limit is within the range recommended by the Clean Air Science Advisory Committee, historically a solid harbinger of a rule’s prospects for surviving judicial review.

Notwithstanding howls of outrage by some members of Congress regarding the costs that the more stringent NAAQS will ultimately impose, it’s worth remembering that the Supreme Court ruled in Whitman v. American Trucking Associations that EPA may not consider costs in setting NAAQS.  The opinion in Whitman was written by Justice Scalia and the holding that EPA may not consider costs was unanimous.  Moreover, Justice Scalia’s opinion makes clear that the statutory language is unambiguous, so this is not a ruling that would be at risk should the Supreme Court overturn Chevron.

As I’ve noted previously, I’m willing to go out on a limb and predict that this rule will survive judicial review.  EPA has indeed found the Goldilocks PM2.5 NAAQS.

Significant emitters of PM2.5 would be wise to start preparing for State Implementation Plans requiring reductions in PM2.5 emissions.

One More Problem with the Climate Superfund Act

In my discussion yesterday of the shortcomings of the Climate Superfund Act, I actually ignored arguably its biggest flaw.

While the Act certainly looks much like a tax, I failed to point out that the Act omits what is typically the biggest selling point of a carbon tax – its impact on prices and consumption behavior.  Putting a tax on the future consumption of fossil fuels raises their price and decreases consumption.  However, the Climate Superfund Act taxes production that’s already occurred.  It thus fails to send the price signal necessary to decrease fossil fuel consumption going forward.

It appears that lawmakers are still wary of trying to get consumers to recognize the social cost carbon in their own purchasing decisions.

The Original Superfund Worked So Well; Let’s Replicate It to Deal with Climate Change!

As I’ve noted many times, criticizing CERCLA is like shooting fish in a barrel.  Apparently, however, my criticism is not universally shared.  According to WBUR, some legislators around the country are so pleased with how well CERCLA works that they have proposed a “Climate Superfund Act,” replicating CERCLA in order to fund climate resiliency projects as well as projects to repair damages caused by climate change.  Nearly identical legislation has been introduced in a number of states, including Vermont and Massachusetts.

I am so taken aback by these proposals as to be almost – but not quite – speechless.  And lest you think that advocates could take the concepts of Superfund while implementing them in a more logical way, let me assure you that I have read several versions of these acts several times and I still can’t really make sense of them.

Fundamentally, the legislation is reasonably straightforward.  Large producers of carbon-based fuels will be required to pay “damages” that reflect each producer’s percentage share of carbon emissions from 2000 through 2018 or 2019 divided by a denominator intended to reflect that state’s expected climate damages.  For example, in Massachusetts, a “responsible party” would have to pay the percentage of $75 billion equal to that party’s share of emissions during the relevant period.

Aside from my general concern about the idea of replicating Superfund to address climate damages, there is at least one major issue that needs to be clarified.  Is the intent of the statute to replicate the tax on chemical producers that was part of Superfund before its expiration and that actually funded the “Superfund”?  Or is it a liability mechanism intended to require carbon emitters to pay damages for the carbon that they have emitted.  The statutes use the language of damages, but the statute does not provide much of a trial and there is no attempt to link the payments to specific harms.

In fact, the payments really do appear closer to the tax on chemicals used to fund the Superfund.  Indeed, it’s hard to avoid the conclusion that the payments are in fact a retroactive tax on the production of carbon-based fuels.

In fairness, imposition of some kind of tax would just be another way to put a price on carbon, even if it were somewhat awkwardly constructed.  In any case, the problem with calling the payments a tax is that the legislation as introduced seems very intentionally to avoid use of the word “tax”, and legislation imposing a retroactive tax of this sort might face all sorts of problems, both political and legal.

However, if it walks like and duck and talks like a duck, let’s have the courage of our convictions and call it putting a price on carbon.  I can say from experience, calling it the “Climate Superfund Act” would just be asking for trouble.

Each Federal Agency Should Use Its Judgment in Determining the Social Cost of Carbon — How’s That Going to Work Out?

Late last month, the Interagency Working Group on Social Cost of Greenhouse Gases quietly released a three-paragraph memo on how agencies should determine the social cost of greenhouse gas emissions.  I hesitate to call it “guidance.”  Here’s the operative language:

As agencies consider applying the SC-GHG in various contexts, agencies should use their professional judgment to determine which estimates of the SC-GHG reflect the best available evidence, are most appropriate for particular analytical contexts, and best facilitate sound decision-making.

I know about states as the laboratories of democracy, but since when did each agency become its own laboratory for determining how to measure the SC-GHG?  I’ve always been told by government attorneys that we have a unitary government at the federal level.  But now each agency gets to measure the cost of carbon according to its own judgment?

According to ClimateWire (subscription required), the IWG memorandum “opened the door for agencies to use EPA’s figures”.  As those following this issue know, EPA put a much higher price on carbon than that previously developed by the IWG under Obama.  I happen to think that EPA’s estimate of the SC-GHG is closer to the mark than the prior IWG figures, but if the Administration really believes that, then why doesn’t it have the courage of its convictions and adopt the EPA estimate as the government’s estimate, rather than leave it to the “professional judgment” of EPA and whichever agencies want to go along with EPA.

Is this any way to determine how to calculate the social cost of greenhouse gases?

The Energy Policy and Conservation Act – Still – Preempts Berkeley’s Ban on New Natural Gas Connections

Last week, the 9th Circuit voted against rehearing en banc its decision from last April finding the City of Berkeley’s ban on natural gas connections in new construction to be preempted by the Energy Policy and Conservation Act.  Judge Friedland, joined by seven other judges (and three senior judges!) dissented from the denial, writing a lengthy opinion fairly explicitly directed at judges from other Courts of Appeal that might hear cases addressing similar bans. 

Here’s the crux of the disagreement.  Judge Bumatay, writing for the majority, stated that:

States and localities can’t skirt the text of broad preemption provisions by doing indirectly what Congress says they can’t do directly. EPCA would no doubt preempt an ordinance that directly prohibits the use of covered natural gas appliances in new buildings. So Berkeley can’t evade preemption by merely moving up one step in the energy chain and banning natural gas piping within those buildings. Otherwise, the ability to use covered products is “meaningless” if consumers can’t access the natural gas available at the meter on the premises.

Judge Friedland disagreed:

EPCA would not preempt a direct prohibition on natural gas appliances enacted for the reasons Berkeley had here. Even such a direct prohibition would not affect the “energy use” of any appliance.

The basis for Judge Friedland’s decision is difficult to summarize in a short blog post, but at its heart is the proposition that “energy use” is a technical term that fundamentally measures the theoretical efficiency of an appliance, without regard to how much energy the appliance in fact consumes.  Thus, Judge Friedland concludes that EPCA does not preempt Berkeley’s ban, because the ban does not regulate the “energy use” of appliances.

Now that is throwing down the gauntlet.  However, putting my personal views aside and focusing purely on whether most appellate judges, and particularly most Supreme Court judges, would agree, consider me skeptical.  Is prohibiting consumers from using gas appliances really not regulating the energy use of those appliances?

Post-Sackett, Who Will Speak for the Clean Water Act?

Earlier this month, in Lewis v. United States the 5th Circuit issued a decision interpreting the Supreme Court’s decision in Sackett v. EPA.  The 5th Circuit decision is a model of clarity and demonstrates what I’ll call the good side of Sackett.  And clarity is definitely the right word here.  One might say clarity is the holy grail that critics of EPA’s and the Corps’ efforts to interpret WOTUS have focused on.

Stamford, CT, USA – November 18, 2012: “The Lorax” balloon is one of the many hot air balloons participating in the city of Stamford annual “Thanksgiving Day Parade” held in the downtown area of the city. Since the first parade in 1993 with only a few hundred spectators the parade has become the country’s second largest annual event now attracting well over 100,000 of the city citizens and those from the surrounding towns

I largely represent private interests in these matters and I fully get the importance of clarity in investment decisions.  Moreover, one would have to be fairly hard-hearted, reading the background to the Lewis decision, not to sympathize with the plight of Garry Lewis with regard to his efforts to develop his property.  It’s a short history of everything people love to hate about government bureaucracy.

However, now that we have Sackett, and Lewis, and with a nod to Dr. Seuss, I’d like to ask, “Who speaks for the Clean Water Act?”  After all, certainty with respect to CWA jurisdiction is hardly the sole interest the government is trying to protect here.  When the Federal Water Pollution Control Act was amended in 1972, creating the Clean Water Act as we know it, overwhelming majorities in both the House and Senate voted in favor, and without doubt they identified another type of certainty as paramount – certainty that we would stop polluting our nation’s waters and instead get them cleaned up.

It’s worth noting that the permitting program established by the EPA to implement the CWA is – still – known as the National Pollutant Discharge Elimination System.  In case anyone failed to notice, the “E” in NPDES stands for “Elimination”.  Even as a callow law student, I recognized that we hadn’t eliminated and weren’t really planning to eliminate all polluting discharges.  At the same time, however, it’s fairly clear that that’s what Congress had in mind.

Similarly, I haven’t seen any cogent arguments that the science behind the Obama administration WOTUS rule was significantly flawed in any way.  To the contrary, that science makes clear that one result of the Sackett decision is going to be significant further degradation of our nation’s waters.

It seems likely that, if Sackett had been decided in 1973, Congress would quickly have amended the CWA to overrule the meaning of WOTUS provided in Sackett.  One hopes that Congress would have done so in a way that provided some clarity and certainty to property owners, but there’s little doubt that Congress would have provided greater protection to the nation’s waters than is provided by Sackett.

Department of Energy Releases Final Guidance on Designation of National Interest Electric Transmission Corridors

On December 19, 2023, the U.S. Department of Energy (DOE) released long-awaited final guidance on its process to designate National Interest Electric Transmission Corridors (commonly referred to as “NIETCs,” pronounced \NIT-sees\). Once designated, these corridors will bolster federal permitting authority over transmission projects in areas most in need of additional capacity.

As we’ve previously noted, DOE has statutory authority to designate NIETCs in transmission-constrained or congested geographic areas,… More

IRS Releases Guidance on SAF Tax Credit and Signals Forthcoming Revisions to GREET Model for Determining Lifecycle GHG Emissions Reductions

On December 15, 2023, IRS published Notice 2024-06, a brief but important guidance on Section 40B, the Inflation Reduction Act (“IRA”) tax credit for sustainable aviation fuel (“SAF”). The guidance establishes a safe harbor for SAF that generates RINs under the federal Renewable Fuel Standard program (“RFS”). It also announces that the Department of Energy (“DOE”) will release an updated GREET model in early 2024 that meets Section 40B’s requirements for determining SAF’s lifecycle greenhouse gas (“GHG”) emissions reductions.… More

More Litigation Concerning Plastic Pollution: Can Claims Be Both Novel and Traditional at the Same Time?

Last month, I advised plastics manufacturers to prepare for more litigation.  Although I am generally loath to speculate, it already looks as though this prediction is coming true.  Earlier this month, PennEnvironment and Three Rivers Waterkeeper filed suit against BVPV Styrenics and its parent company.  BVPV manufactures expandable polystyrene at its facility in Monaca, Pennsylvania. 

The complaint alleges a number of violations of the Clean Water Act, but all of them relate to allegations that BVPV discharged nurdles – an excellent neologism that will soon be part of common vocabulary.  The legal claims assert both that BVPV failed to identify its discharge of nurdles in its permit application, resulting in unpermitted discharges, and that the discharge of nurdles violated specific permit conditions prohibiting discharges of floating solids and discharges of any substances in harmful amounts.

What’s noteworthy about this case is not just that, according to Lexis/Nexis (subscription required), the plaintiffs are explicitly conveying that the point of the suit is to send a message; it’s that the complaint seems actually to succeed in doing so.  This isn’t like the case brought by New York State, which tries to fit the round sale of plastic products into the square peg of public nuisance law.

Whatever the ultimate merits of the complaint, the plaintiffs here have done what appears to be a very solid job of preparing their case and fitting their claims into traditional Clean Water Act citizen suit jurisprudence.  The only thing different about this case is that the discharges that are the subject of the suit are not traditional toxic or carcinogenic compounds.  I’m not going to go into all the details alleged, but any lawyer who works in this area, whether for environmental groups or industrial dischargers, will understand how PennEnvironment and Three Rivers Waterkeeper put together their case.

And what this means is that plastics manufacturers really do have to prepare for more litigation.  It may not be novel claims such as those brought by New York.  It may be bread and butter CWA citizen suit claims.  Still, that the claims fit squarely into existing CWA jurisprudence doesn’t mean that they’re not new and important.

There’s no doubt that another front has been opened in the battle over alleged plastic pollution.

Another Study Regarding the Health Impacts of PM Emissions From Power Plants: What Impact Will It Have On Regulation and Litigation?

An article in Science published last week indicates that the mortality risk from exposure to PM2.5 from coal-fired electric generating units is roughly twice as high as the risk posed by PM2.5 from other sources.  According to the article, there were roughly 460,000 excess deaths in the United States from 1999-2020 resulting from exposure to PM2.5 from coal-fired EGUs.  Prior models would have indicated roughly half that number. 

I’m not qualified to opine on the technical merits of the study, but it does suggest a number of implications.  First, in significant part, this is a good news story.  A substantial majority of the excess mortality occurred prior to 2008; as coal-fired EGUs increasingly installed scrubbers to control sulfur dioxide emissions, excess mortality declined rapidly, by more than 85%.  Given that much of the world, particularly India and China, will still be relying on coal for some time, regulators in countries still utilizing coal for energy production should insist on state-of-the-art sulfur dioxide controls.

Second, as the authors suggest, in the United States, EPA may want to consider a more refined measurement than total PM2.5 in its setting of National Ambient Air Quality Standards.  NAAQS that reflect the risks posed by the specific chemical constituents of PM2.5 would seem to be in order.

Finally, I wonder whether this research might revive public nuisance litigation over PM2.5 emissions.  In 2010, I rightly predicted the end of public nuisance claims aimed at emissions alleged to be causing risks at concentrations below NAAQS levels.  While I cheered that result at the time, my cheering was premised on the notion that public nuisance law is a very blunt instrument, particularly compared to specific NAAQS standards that go through a thorough scientific vetting process.

I still would rather rely on EPA’s process for setting NAAQS standards than judicial review under a vague public nuisance standard.  However, I can imagine plaintiffs, particularly in EJ communities, bringing public nuisance claims where EPA has not addressed the risks posed by specific constituents of PM2.5 emissions.  And I can also imagine judges being responsive to such claims, where the evidence indicates that the overall PM2.5 NAAQS does not adequately protect against the risks posed by specific constituents of PM2.5 emissions.

Is Litigation the Solution to Plastic Pollution?

Earlier this week, New York State Attorney General Letitia James filed suit against PepsiCo.  At the core of the case are allegations that PepsiCo.’s widespread use of single-use plastics has created or contributed to a public nuisance in the Buffalo River. 

I don’t doubt that plastic-related conditions in the Buffalo River constitute a public nuisance.  Without diving into the facts, it seems totally plausible.  However, that doesn’t mean that PepsiCo. is necessarily liable for the nuisance.  More importantly, even if PepsiCo. might be found liable for a public nuisance, that doesn’t mean that such litigation is the best way to solve the problem posed by single-use plastics.

I recognize that there are historical examples of the use of litigation to prod Congress and/or regulatory agencies to enact legislation or promulgate regulations to address pollution problems.  What seems different today is that it does not seem at all likely that this litigation, or others like it, will succeed in prodding Congress into action.  In short, this litigation seems to be trying to fill the gap left by a failure to legislate or regulate, rather than as a prod to legislation and regulation.

Does anyone think that this litigation can result in a comprehensive and appropriate solution to the problem of plastic waste?  On the other hand, those who would complain about activist judges can hardly complain when judges provide the only potential pathway towards a remedy.  When Congress takes a pass, it’s difficult to complain when those harmed seek a judicial remedy.

And whether it’s PepsiCo. and plastics or DuPont and PFAS or some other manufacturer of some other useful compound alleged to cause adverse impacts, my advice would be to prepare for more litigation.  Whether such litigation succeeds or not, nuisance cases will be more than just a nuisance for defendants.

Ubi jus ibi remedium.  You can look it up.

What Will Be the Real Consequences of an EPA Decision to List PFAS as Hazardous Substances Under CERCLA?

Last week, Inside EPA (subscription required) reported that EPA will reopen CERCLA cleanups due to the presence of PFAS on a case-by-case basis.  The article reported on the gnashing of teeth among the regulated community at the prospect of seeing a significant number of sites reopened.  As a card-carrying member of the regulated community, I am prone to teeth-gnashing as well.  And I agree with my friend Jeff Porter, who was quoted by Inside EPA as saying that reopening Superfund sites due to PFAS could have “monumental implications.” 

Taking that as a given, I still think it’s useful to try to get past the gnashing of teeth and delve into the details a bit.

First, while I’m sympathetic to concerns about listing a class of PFAS as a hazardous substance and to concerns about listing many individual compounds about which we know very little, I am very skeptical about challenges to the listing of PFOA and PFOS, which is EPA’s currently pending proposed rule.  The odds that a court, even in the person of a very conservative judge, is going to find that EPA was arbitrary and capricious in listing PFOA and PFOS are slim to none.

It would be better for the regulated community to develop cogent and credible arguments against cleanup standards in the parts per quadrillion range than to challenge the threshold listing decision.

Second, the monumental implications of reopening Superfund sites are going to be unavoidable.  The Inside EPA article focused on EPA’s authority to require additional work if the remedy is not protective.  I think that PRPs might well have defenses to claims that EPA can require additional work to address PFAS.

However, what Inside EPA did not discuss is the standard reservation of rights for “unknown” conditions.  Use of the unknown conditions reopener by EPA would require EPA to assert new claims, but this does seem to be exactly why the unknown conditions reopener exists, and I think we’re going to see a lot of such cases, unless settling defendants decide to address PFAS under an existing consent decree even though there might be grounds to dispute EPA’s authority to require additional work.

Which brings me to what’s really at issue here.  CERCLA is a terribly written statute that has led parties to spend millions of dollars without much evidence at all that the cleanups provide significant benefit.  And EPA has significant powers of coercion under the statute.  EPA’s repeated willingness to use its powers of coercion is part of the reason why there is such opposition to the listing proposal.  It’s why the original Sackett decision happened.  And it’s part of the explanation for growing opposition to the modern administrative state.

So I advise the regulated community to get used to the idea of PFAS as hazardous substances under CERCLA and to the likely need to remediate PFAS at Superfund sites thought to be closed, but I also advise EPA to avoid sowing the wind, lest it end up reaping the whirlwind.

Oil and Hazardous Substances; Never the Twain Shall Meet

Late last month, in Munoz v. Intercontinental Terminals Company, the 5th Circuit Court of Appeals held that the liability provisions of CERCLA and the Oil Pollution Act do not overlap and that, consequently, where oil and hazardous substances commingle, the sole remedy is under CERCLA.

As the Court correctly noted, it has long been the case under CERCLA that petroleum commingled with hazardous substances is subject to CERCLA jurisdiction as a hazardous substance.  However, it is not obvious why there cannot be any overlap between the liability provisions of CERCLA and the OPA.

In Munoz, a fire occurred at a tank farm.  There were tanks containing hazardous substances and other tanks containing oil.  Based on the facts recited in the opinion, it appears that all of the tanks were surrounded by a single combined secondary containment area.  As a result of the fire, the proverbial chemical soup accumulated in the containment area and, when containment was breached, the soup flowed into the Houston Ship Channel.

I don’t doubt that the chemical soup should be considered a hazardous substance subject to jurisdiction under CERCLA, but does that necessarily mean that the oil lost its status as “oil” such that it was no longer subject to jurisdiction under the OPA?  Consider the following hypothetical, which seems totally plausible.  Many tank farms have separate containment areas for each tank.  What should the outcome be if there’s a large tank farm with one tank containing waste TCE and another tank some distance away that contains oil?  If they both have releases that breach secondary containment, and the TCE and oil each separately enter the water, that would seem to constitute two separate spills, one subject to CERCLA and one subject to the OPA.

But what happens over time, when the two releases merge?  Does the oil magically lose its status as oil, so that the combined release is subject only to CERCLA?  What happens to the part of the release closer to shore that remains pure oil.  Is that still subject only to the OPA?

As far as one can tell from the opinion, the plaintiffs in Munoz did not present this question to the Court.  The Court in any case did not address it.  Perhaps the next plaintiffs will read this blog and present the question to the next appellate court that must decide this issue.

Connecticut Issues RFP for 2 GW of Offshore Wind

Earlier today, the Connecticut Department of Energy & Environmental Protection (“DEEP”) issued an RFP for up to 2 GW of offshore wind. The RFP solicits bids to enter into long-term power purchase agreements for energy, renewable energy certificates (RECs), and related environmental attributes. Responses to the RFP will be evaluated by various state agencies and the electric distribution companies (“EDCs”), with the ultimate selection to be made by the Commissioner of DEEP.… More