“SUPERFUND IS SEXY AGAIN.”

According to a senior US EPA official, “Superfund is sexy again.” Newly discovered health risks attributed to so-called “emerging contaminants” are causing federal and state agencies to revisit long closed Superfund sites and evaluate the environmental and human health risks at myriad new locations.  These ubiquitous environmental contaminants, including perfluoronated compounds and 1,4-dioxane, present a significant risk to human health at very low concentrations.  So much so, that US EPA Administrator, Scott Pruitt, recently held a Leadership Summit to discuss these new emerging contaminants and develop a coordinated response across EPA regions.

The US EPA and several state environmental agencies are establishing very low guidelines or standards for these contaminants.  They are also beginning to require responsible parties to test for these chemicals at existing (and in some cases closed) state and federal superfund sites, and, if present, to develop plans to address the attendant risks.  Eventually, the government will restrict the discharge of these contaminants in waste water and the air, which will pose another significant layer of compliance headaches and expenses.   While this may be good news for government regulators, environmental attorneys and consultants, this news is bad for landowners and developers.

One of these emerging contaminants is actually comprised of an entire class known as the per- and poly-fluoroalkyl (“PFAS”) compounds, such as perfluorooctanoic acid (“PFOA”) and perfluorooctane sulfonate (“PFOS”).  Until their use was phased out in the United States over the last two decades, manufacturers used these compounds in non-stick cookware, water repellent fabrics, firefighting foams and a variety of other applications.  PFAS are often found in elevated concentrations near military bases, airports, firefighting academies, metal plating plants, landfills and manufacturing facilities where they were used.   In a perfect storm of problems for responsible parties who have to deal with these emerging contaminants, they are highly persistent in the environment, expensive to monitor and test, difficult to treat and pose potential health risks at very low concentrations.  For example, the US EPA Lifetime Health Advisory for PFOA and PFOS is 70 parts per trillion (“PPT”).

Another emerging contaminant is 1,4-dioxane.  1,4-dioxane is often found along with other industrial solvents such as TCE, but it is also present in consumer products, such as shampoos and cleaning agents.  Because of their widespread consumer use, these compounds are found just about everywhere.  For example, 1,4-dioxane can be found in private septic systems and associated groundwater.  The MassDEP groundwater clean up standard for 1,4-dioxane is 300 PPT in potential or existing water supply areas.

To date, the US EPA has not set a Maximum Contaminant Level for PFAS under the Safe Drinking Water Act.  Thus, as far as the federal government is concerned, there is no enforceable standard.  However, as a result of a number of exceedances of the Lifetime Health Advisory level found by public water suppliers when they performed required monitoring for PFAS under EPA’s Unregulated Contaminant Monitoring Rule, those water suppliers have taken action to limit public exposure.  For example, the Towns of Westfield, MA, near Barnes Air Force Base, and Ayer, MA, have both stopped using public water supply wells where detections of PFAS exceeded the Lifetime Health Advisory.  The Town of Westfield has recently filed a lawsuit against the manufacturers of AFFF firefighting foam to recover damages.

The law and regulations governing site assessments and remediation for these contaminants is still “emerging.”  While some states, such as New Hampshire, have promulgated legally binding cleanup standards for certain PFAS, others, like Massachusetts, are still in the process of developing guidance and have not yet begun the official process of establishing a legally binding regulatory standard.  In early June, MassDEP issued “Final Recommendations for Interim Toxicity and Drinking Water Values” for testing as part of the Unregulated Chemical Monitoring program.  But this Interim Guidance does not establish clear enforceable standards.  Until standards are promulgated, the question of whether or not to test for these contaminants as part of a site assessment falls to the good judgment of the professional environmental consultant.  Thankfully, most environmental consultants are sufficiently knowledgeable about the potential presence of these contaminants to design an appropriate sampling and analytical program to protect their clients.

Because PFAS are not yet consistently regulated across the states and are not defined as a “hazardous substance” under the federal Comprehensive Environmental Response, Compensation and Liability Act, (CERCLA or “Superfund”) administered by the US EPA, regulatory authority to compel assessment and remediation of PFAS varies from state to state and from site to site.  According to Regional Administrator Dunn, the Agency is reading the language of individual Superfund consent decrees to determine whether the responsible parties agreed to reopeners for only “hazardous substances,” or also for other “pollutants or contaminants,” which would encompass PFAS.  She emphasized that, at sites where the EPA concludes it does not have the legal authority to compel responsible parties to take further response actions, the relevant state may have authority to take such action.  She indicated that there has been some discord between the federal and state governments over this issue.

PFAS can be in solid waste.  The federal Resource Conservation and Recovery Act currently does not include PFAS within the definition of a hazardous waste.  Currently, only Vermont and New York states reportedly regulate PFAS as “hazardous wastes” under their parallel state programs.  Conceivably, this means that in all other 48 states, an industrial or other waste generator is not required to evaluate whether or not its waste streams contain PFAS, or make any special arrangements for storage, transportation or disposal of those wastes (such as using a RCRA permitted hazardous waste facility).  This challenges solid and hazardous waste disposal companies with the question of whether they want to handle wastes which may have PFAS, and expose themselves to the potential future worker exposure or environmental release liability that may ensue.

To make matters even more difficult, most states have not adopted surface water quality criteria, discharge or other limits, on the emissions of PFAS to water bodies, or to the air.  A few states, such as Vermont, have established policy limits on the concentrations of PFAS, which can be in landfill leachate discharged to a waste water treatment facility, but this is the exception to the rule.

These emerging contaminants present a real challenge on a number of fronts.  Because of the potentially very high cost of monitoring and remediation, prospective purchasers should first obtain clear environmental consulting guidance whether emerging contaminants should be tested for in a site assessment.  Second, in the process of performing environmental due diligence in a corporate transaction, attorneys and consultants may need to advise their clients that new site assessments be performed, including this testing, to avoid reliance on reports that pre-date the emergence of these contaminants and testing protocols.  Third, if emerging contaminants are found to have caused a very significant impact, such as loss of a water supply, consider whether or not the costs can be recovered.

Franklin’s adage that “an ounce of prevention is worth a pound of cure,” certainly applies to emerging contaminants.  Until the science is settled and the regulations are clear, there is simply too much uncertainty about the environmental and public health risks, potential liability and costs to remain ignorant about the possible presence of PFAS in whatever environmental media you are dealing with.

 

MassDEP’s TCE Closed Site Review: The Legalities

MASSDEP’S TCE CLOSED SITES REVIEW: THE LEGALITIESIn April 2016, the MassDEP initiated an effort to evaluate closed TCE sites. The Department is “screening nearly 1,000 closed sites with known trichloroethylene contamination to determine at which sites TCE has the potential to pose an Imminent Hazard based on the current understanding of health risks, even if a site was previously closed properly under earlier standards.”  Its strategy is to “systematically review past closures and, where necessary, work with site stakeholders to identify and eliminate any ongoing Imminent Hazards.”

It certainly stands to reason that the MassDEP’s duty to protect public health, welfare, and the environment, encompasses the authority to require responsible parties to take necessary and appropriate response actions at sites where newly understood hazards exist, even though former science might have justified regulatory closure.  But how can that basic principle be reconciled with our general understanding that a permanent solution provides a “liability endpoint” for a responsible party?

The 2006 brownfields amendments, codified in Section 5C of chapter 21E, provide a liability endpoint for persons who properly perform MCP response actions to completion.  Specifically, under Section 5C (a) “an eligible person shall be exempt from liability . . . pursuant to this chapter . . . for any release of oil or hazardous material at the site or portion of a site owned or operated by said eligible person, as delineated in a waste site cleanup activity opinion, for which a permanent solution or remedy operation status exists and is maintained or has been achieved and maintained in accordance with such opinion . . .”  Permanent solutions are achieved under Section 3A of the statute by achieving a level of no significant risk at a site. The import of these sections taken together is that a person’s liability ends if his or her site poses “no significant risk” such that a “permanent solution” has been achieved and maintained.

So if an eligible party reaches a condition of no significant risk, achieves such a permanent solution and is statutorily “exempt from liability,” how can the MassDEP require that same person to later take further response actions (absent an audit finding or other violation of the MCP)?  Is there something in the statute or Massachusetts Contingency Plan that provides the MassDEP with a reopener if science reveals that the level of TCE once considered no significant risk, is later determined to pose a significant risk?

The MassDEP’s definition of “no significant risk” appears to support a conclusion that later adopted standards cannot be the justification for MassDEP enforcement against a site owner who properly achieved a permanent solution. “No significant risk” requires that no “identified substance of concern” shall present a “significant risk of damage to health, safety, public welfare, or the environment during any foreseeable period of time.”  Critically, in making such a determination, the MassDEP “shall consider existing public health or environmental standards where applicable or suitably analogous . . .”

Since the definition of “permanent solution” depends upon a determination of whether or not a significant risk exists based upon “existing public health or environmental standards,” it seems quite clear that the legislature intended to provide an exemption from liability under c. 21E to persons if they properly rely upon “existing” standards, and to protect them against reopening of liability based upon new standards that may be adopted by later regulatory changes.

Does the MCP contain a backdoor mechanism whereby closed sites must be reopened by responsible parties who would otherwise be exempt from liability because they properly achieved a permanent solution?  40.0137 of the MCP requires a new release notification for an already closed site (and therefore, reopening of a site) under the following circumstances: (1) changes in activities, uses or exposures at the disposal site; or (2) the presence of such oil and/or hazardous material would negate or change prior risk determinations or statements were that presence taken into account in the preparation of the permanent solution.  Neither of these two provisions for new notification appears to apply based merely upon promulgation of a new standard.  The first only requires notification at a closed site if the exposure scenario changes. Under the second, the promulgation of a later lower risk based standard would not “negate or change the determinations or statements” in the permanent solution because the known concentrations met the existing risk based standard when the permanent solution (or RAO) was filed.  There is no other MCP provision that expressly requires a responsible party to give notice or take response actions merely as a result of a later published risk threshold.

Unfortunately, the MassDEP takes the position that even though notification and compliance with the MCP may not be required for some sites, “under 310 CMR 40.0370 appropriate steps must be taken at these sites to eliminate or mitigate risks, if necessary, though these actions do not usually require notification to or approval by the Department.”  40.0370 provides that “(1) response actions shall be undertaken for releases or threats of release of oil and/or hazardous material that do not require notification under 310 CMR 40.0300 if the releases or threats of release pose a significant risk to health, safety, public welfare, or the environment, as described in 310 CMR 40.0900.” There is no time limit on this provision, i.e. it appears to be what my law professor called a “springing” provision, waiting to spring up when least expected.

Thus, read literally, the MCP is a Möbius loop. Despite the statute’s liability endpoint, under the MCP “once a disposal site, always a disposal site.” Like the tar baby, under the MCP a site owner will never be able to shake off the label and attendant potential exposure.

Let’s review the bidding, at the outset, if notification is required, the responsible party must perform response actions in accordance with the MCP until he or she achieves and properly documents that a condition of no significant risk has been achieved.  To do this, the responsible party would compare site contamination levels to existing standards to demonstrate the level of risk.  By necessity, the responsible party would rely on the standards then in existence.  If the responsible party demonstrates a condition of no significant risk, he or she may close out the site under a permanent solution and becomes exempt from liability under the statute.  At least theoretically, if at a later time there is a change in the relevant standard which the site does not meet, under Section 40.0370 the responsible party would be required to perform a new risk assessment using the newly existing standards, and if the site posed a significant risk, perform additional response actions to eliminate that risk.  Thus, the MCP appears to leave responsible parties permanently exposed to the requirement to take further response actions under 40.0370, and appears to require a continuous reassessment of risk posed by the site conditions, regardless of prior closure.  How the MassDEP would actually enforce such a requirement remains subject to significant question, especially since, under the statute, the responsible party is “exempt from liability.”

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…Oh, Boston you’re my home.

Since 1997, Red Sox Nation has celebrated home victories with the post-game anthem “Dirty Water,” the 1966 cynical paean to the Charles River and Boston Harbor.  “Well, I love that dirty water; Oh, Boston you’re my home.”

Beginning in the 1800’s, the Charles River and Boston Harbor were polluted by domestic, municipal and industrial wastes.  Raw sewage, chemical discharges, and leaching riverbank landfills turned the river into a toxic sluiceway flowing into the nastiest harbor in the world.
Read More → “…Oh, Boston you’re my home.”

If the Fat Lady is off the stage, why is the band still playing?

Earlier this year, MassDEP quietly let it be known in an advisory committee meeting that it would be re-visiting old MCP sites with trichloroethylene (TCE) releases to determine if the level of TCE on the property complied with the evolving standards that have lowered the threshold values for TCE.  In particular, MassDEP is concerned with the possibility that vapor intrusion of TCE into indoor air could have an impact on human health, particularly with vulnerable populations.  While the ripple from this announcement caused an initial shock that MassDEP’s actions would undermine investment backed expectations on achieving lasting solutions to hazardous contaminants, MassDEP has always retained the ability to act to protect human health.  Thus far, we have not seen a torrent of activity from MassDEP on this front, but more time will tell how extensive its review will be.  It is a good reminder to be mindful of the long-tail complications that can arise from contaminated properties – even after extensive remedial activities and achieving an RAO and Permanent Solution under the MCP.

While the initial focus of MassDEP’s recent comments was on TCE, we are also witnessing emerging “contaminants of concern,” like Perfluorooctanesulfonic acid (“PFOS”), Perfluorooctanoic acid (“PFOA”) and 1, 4 Dioxane, that may result in re-opening sites that were closed after addressing the initial releases that brought the properties under the MCP.  PFOS and PFOA do not have federal regulatory detection limits, but there are health-related studies showing that they are toxic and carcinogenic.  MassDEP has set a regulatory guideline for 1, 4 Dioxane in drinking water, as well as groundwater and soil cleanup standards in the MCP.  As more information is developed about all three of these contaminants, the regulatory requirements are likely to increase, which may result in returning to sites that were previously closed under the MCP and M.G.L. c. 21E. Read More → “If the Fat Lady is off the stage, why is the band still playing?”

EPA’s ECHO Website Opens a Window into Your Industrial Facility

Have you Googled yourself lately?

You might find race results from an old turkey trot or an article about an awards ceremony, or you might find unflattering (or compromising) photos of yourself – particularly if you went to college in the age of digital cameras on cell phones.

But how often have you Googled your business or industrial facility to see what the web reveals about your environmental compliance history?

With the continued emergence of technology and the federal government’s push for greater transparency, most of the environmental compliance documentation maintained by the Environmental Protection Agency (“EPA”) is now available on the web.

EPA’s Enforcement and Compliance History Online or “ECHO” database curates and correlates several different federal reporting regimes and federal environmental compliance data for individual industrial facilities in one place. [http://echo.epa.gov/]

The database includes filings under RCRA, the Clean Air Act, and the Clean Water Act, as well as data from the Toxics Release Inventory and Greenhouse Gas Reporting Program, among several others.  In addition to stating a facility’s compliance history, including required periodic reports and disclosures, the ECHO website also includes information on inspections and enforcement actions conducted by EPA.

All of this information is easily available to the general public with a simple search.  The data can be accessed by company or facility name, but it is also searchable by state, city or ZIP Code.  This capability makes it easy for individuals to learn about facilities in their neighborhood, or perhaps to allow competitors to find out information about a rival’s compliance history.

Another significant use for this database is by groups seeking to bring citizen suit enforcement actions against industrial actors.  For example, in the Clean Water Act arena, the Conservation Law Foundation (“CLF”) and Clean Water Action, have both been very active in bringing citizen suits under the Clean Water Act against industrial facilities that either failed to file under the multi-sector general permit (“MSGP”) for discharges to waters of the United States, or facilities that have permits, but have not met their reporting obligations, or their obligations to undertake corrective actions.

Simply using the information available through the ECHO database CLF, Clean Water Action, and others can identify industrial facilities that should have permits under the National Pollution Discharge Elimination System (“NPDES”) program.  Using the ECHO search tools, the citizen suit organizations can quickly find the reporting history for any industrial facility that holds a NPDES permit.  This is particularly relevant in Massachusetts and New Hampshire where EPA is the NPDES permitting authority.

Just letting their fingers do the walking from their desktop computer, the environmental organizations can assess whether a facility has filed the requisite number of quarterly reports, complied with its annual reporting obligations, and even assess whether or not the facility has exceedances of benchmark monitoring values.

As an illustration, here are the ECHO search results for industrial facilities in Newburyport, MA.  A user can click on each orange marker and learn about the business’s compliance and enforcement history.  Since many of these facilities may have discharges that lead to waters of the United States, environmental organizations searching for Clean Water Act compliance might be particularly interested in canvassing this area for compliance targets.

After a quick assessment of the compliance history available from ECHO, it is easy for the environmental organization to prepare a 60-day notice letter and initiate the process of bringing a suit under the Clean Water Act.  Once that process is started, the environmental organization will stand in the shoes of the federal regulator and impose a financial penalty on the facility for failure to comply with the requirements of the MSGP.  In most instances, the environmental organization will also demand operational or structural changes to eliminate or reduce pollutants in a facility’s discharges, and require Supplemental Environmental Projects (“SEP”) related to the impacted water-body to offset impacts to the environment.  In addition, under the federal Clean Water Act, the environmental organizations are entitled to recover their attorneys’ fees and legal costs for bringing these private enforcement actions.  All of these components result in significant financial burdens on the target facilities.

With the new MSGP permit promulgated by EPA earlier this year, industrial facilities in MA and NH have even greater obligations to provide transparency for their compliance with the Clean Water Act.  The 2015 MSGP requires facilities to either post the contents of their stormwater pollution prevention plan (“SWPPP”) on the web, or include the contents of the SWPPP in the facility’s Notice of Intent for coverage under the 2015 MSGP.  The 2015 MSGP also requires online reporting of quarterly and annual monitoring events.  With the transition to all online reporting, all of a facility’s Clean Water Act reporting obligations will be available with the click of a mouse.

The 2015 MSGP set September 2, 2015 as a deadline for facilities with existing MSGP permit to file a new Notice of Intent for coverage under the new general permit.  For facilities with an existing MSGP permit, this is an easy target for citizen groups seeking to make a quick strike.  We are aware of two actions against industrial facilities simply for failing to meet the September 2, 2015 deadline for filing a new Notice of Intent under the 2015 MSGP.  Similarly, even though facilities may have met the benchmarking requirement of four consecutive quarters without any exceedance under the old 2008 MSGP, which allows the facility to transition to annual rather than quarterly monitoring, the new permit re-starts the clock and facilities must show a minimum of four consecutive quarters of monitoring data to demonstrate compliance with the benchmark values for the particular facility before shifting to annual reporting.

While the general availability of all this data sounds alarm bells about the tidal wave of compliance information on the web and the increased potential for citizen suit actions, there are also some business advantages that web-savvy companies can reap from this wealth of data.

For example, companies looking to make an acquisition can use the ECHO database to perform quick due diligence on an industrial facility before any formal deal negotiations take place.  A review of the ECHO database will allow a potential acquirer to identify good targets, or to recognize a facility to avoid, given their compliance history.

Similarly, companies in the certain industries can use the information available through ECHO to evaluate the compliance history of the facilities receiving their outputs as part of their due diligence obligations to establish defenses under the Superfund Recycling Equity Act (“SREA”).  Armed with a potential receiving facility’s compliance history under Federal environmental laws, an arranger can make an informed choice about whether or not to sell scrap products to a particular customer.  Generators of solid and hazardous wastes can also check the compliance status of handling and disposal facilities, perhaps avoiding the cost of a full facility audit or the liability that would arise from shipments to a non-compliant facility.

Lastly, the ECHO database can also serve as a public relations tool.  Since this compliance data is available to the general public, industrial facilities should be aware of the potential public relations burden and benefit these disclosures can provide.

In addition to the importance of maintaining strong environmental controls, we recommend that industrial facilities monitor how their business information is presented in the ECHO database.  Proper management could lead to new opportunities and positive public relations, while lax attention to monitoring and reporting obligations could invite citizen suits to environmental organizations trawling the ECHO database for new victims.