Tucked away in the recesses of the Inflation Reduction Act is a provision that reminds everyone why they love Superfund so much. On its face, it’s simply an incentive for renewable energy development, giving an adder to the amount of the investment tax credit (ITC) or production tax credit (PTC) to which certain renewable energy projects would otherwise be entitled, if they are located in an “energy community”. … More
Category Archives: Brownfields
EPA Proposes to List PFOA and PFOS as Hazardous Substances: What Could Possibly Go Wrong?
EPA announced today that it is proposing to list PFOA and PFAS as hazardous substances under CERCLA. EPA appears to be sanguine about how the listing will play out in the real world.
EPA is focused on holding responsible those who have manufactured and released significant amounts of PFOA and PFOS into the environment. EPA will use enforcement discretion and other approaches to ensure fairness for minor parties who may have been inadvertently impacted by the contamination.… More
MassDEP Issues Guidance on Performing Response Actions During COVID-19
Just a straightforward informational post. MassDEP has issued a concise, helpful, guidance on performing response actions during COVID-19. Here are the highlights:
- All release notifications are still required within MCP deadlines.
- MassDEP is still taking oral notice of Immediate Response Actions and issuing oral approvals. It is still reviewing written IRA plans. If MassDEP does not respond to a within plan 21 days,…
It’s Better to Be the Plaintiff Than the Defendant in Massachusetts Superfund Cases
In the early days of Superfund, defense lawyers used to joke that all government lawyers had the same oral argument script. It was three sentences long.
Good afternoon, your honor. My name is _____ and I represent the government in this case. We win.
Lawyers in Massachusetts rightly feel that that pretty much remains the state of affairs in Massachusetts, at least for private cost recovery or property damage claims. … More
The Members of EPA’s Superfund Task Force Had Really Good Memories
In July, EPA released the recommendations of the Superfund Task Force. Public Employees for Environmental Responsibility filed a FOIA request, looking for documents related to the operation of the Task Force. This week, the AP reported on EPA’s defense of the inevitable law suit that PEER filed when EPA did not turn over any documents.
It turns out that, according to Johnny Walker,… More
Real Superfund Reform Would Not Place It At the Center of EPA’s Core Mission
Earlier this week, Scott Pruitt released the results of the Superfund Task Force he established in May. Though skeptical, I was pleased at the creation of the task force and goals he established for it. With the release of the report, my skepticism has returned.
First, the report and Pruitt’s memo about it repeat the claptrap about restoring “the Superfund program to its rightful place at the center of the agency’s core mission.” Since he keeps repeating that statement,… More
Superfund Reform, Part 2: Giving Credit Where Credit Is Due
Last week, I offered less than fulsome praise of EPA Administrator Pruitt’s announcement that he was taking control of remedial decisions for big Superfund sites. Now, he’s followed up with a memorandum announcing establishment of a task force to look at ways to reform Superfund implementation. While he’s still plainly wrong in putting Superfund “at the center of the agency’s core mission,” I have to confess that I think he otherwise has pretty much hit a home run with the latest memorandum.… More
When Is Gasoline Not Oil (At Least In Massachusetts)? When It’s Leaded, Of Course.
Unlike CERCLA, the Massachusetts Superfund law, Chapter 21E, does include oil within its ambit. However, oil is not treated exactly the same as hazardous materials. One difference is that, in 2007, MassDEP revised the Massachusetts Contingency Plan to provide that, in certain circumstances, where “Contamination is limited to oil,” the exposure point concentration is measured at the Public Water Supply well, rather than in each of the monitoring wells, as is otherwise the case.… More
MassDEP Releases Long-Awaited LNAPL Guidance
MassDEP recently published its final guidance for Light Nonaqueous Phase Liquids (LNAPL). The document provides guidance on investigating and assessing the presence and migration of LNAPL at disposal sites regulated under the Massachusetts Contingency Plan (MCP).
When MassDEP amended the MCP regulations back in 2014, it included some changes to address petroleum sites with LNAPL. Previously, sites with 1/2” or more of LNAPL present were stuck at a temporary solution.… More
EPA To Rename OSWER: How About “The Office That Should Be Eliminated As Soon As Possible”?
According to the Daily Environment Report (subscription required), EPA is going to change the name of the Office of Solid Waste and Emergency Response to the Office of Land and Emergency Management. What a grand name; surely it is an improvement.
I don’t think that this quite rises to the level of rearranging deck chairs on the Titanic (though I certainly have clients who would not object if OSWER sank without a trace),… More
Superfund Rant For a New Congress
So the new Congress will be controlled by the GOP. The House and Senate will consider various bills to rein in EPA authority. Here’s one relatively modest suggestion for congressional consideration: amend CERCLA to limit EPA’s authority to recover oversight costs.
How many of us in the private sector have been in meetings with EPA where EPA had more technical people in attendance than the PRPs who were performing the remedy? … More
CERCLA Preempts Local Cleanup Bylaws; PRPs Everywhere Breath a Sigh of Relief
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.… More
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. … More
ASTM 1527-05 Is Dead (Almost). Long Live ASTM 1527-13
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,… More
MassDEP Formally Proposes MCP Reforms: It’s About Time? Job Well Done? Definitely Both.
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,… More
MassDEP Tightens TCE Indoor Air Regulation: The $64,000 Question? What About Closed Sites?
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. … More
Another Dispatch From the Guidance Front: Is EPA’s Vapor Intrusion Guidance Ready For Prime Time?
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. … More
Little Ado About Very Much: EPA Reinterprets Its PCB Guidance
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. … 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.… More
EPA Issues Two New Superfund Guidance Documents: Plus Ca Change, Plus C’est La Meme Chose
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,… 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.… More
MassDEP Issues Vapor Intrusion Guidance: Don’t Worry; It’s Only Guidance
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.… More
Democracy In Action: Environmental Legislation Edition
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.… 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.… More
Score One For Affordable Housing: Chapter 40B Trumps Vague Local Environmental Concerns
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,… 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,… More
Hurray! A District Court Actually Follows Burlington Northern
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. … 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,… More
A Twofer: Indoor Air and Guidance v. Regulation
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.… 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,… More
Just What We Need: More Community Engagement in Superfund Sites
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,… More
EPA Issues a New Policy on Superfund Negotiations: Time For Another Rant?
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,… More
Nanotechnology and Site Remediation: Is the Promise Beginning to Come to Fruition?
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.… More
Another Rant on Superfund; Federalist Version
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,… More
The Bailout Bill Attempts to Bail Out Brownfields Properties
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,… More