“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.

 

BBA and EBC welcome the new EPA Regional Administrator Alexandra Dunn

Tom Mackie and Peter Durning were honored to be a part of the Boston Bar Association and Environmental Business Council of New England’s co-sponsored program on February 15, 2018 welcoming the new EPA Regional Administrator, Alexandra Dunn.

Tom, Chair of the EBC, gave opening remarks welcoming over 200 guests from the legal and environmental consulting community to the event.

Peter, the Co-Chair of the BBA’s Energy and Environmental Law Section, provided closing remarks and a sincere thank you to Regional Administrator Dunn, following a 40-minute presentation and a robust question and answer period.

In her speech, Alex Dunn stressed the need to address core water quality concerns by focusing on nutrients in stormwater, stormwater runoff, and water infrastructure projects.  She also outlined other initiatives for her tenure as Regional Administrator, including emerging contaminants, environmental justice, interstate air shed issues, and finally closing out and potentially redeveloping the remaining Superfund sites in New England.

Is There a Liability Exemption for Emerging Contaminants Under G.L. c. 21E; and Oh, Gosh, Do I Need to Notify the DEP If I Find Them?

As you are surely by now aware, the federal and most state governments have recently begun to regulate several new classes of chemicals, including Per- and Poly-Fluoroalkyl Substances (“PFAS”). Regulators have also lowered the concentrations at which certain chemicals historically listed as hazardous materials/substances are considered to pose a risk, such as 1, 4 dioxane and TCE. Last spring, I authored MassDEP’s TCE Closed Site Review: The Legalities which concluded that a landowner of a permanently closed TCE site revisited by the MassDEP should be entitled to the liability exemption under G.L. c. 21E, §5C even though the MCP purports to require further response actions.

What my article did not discuss is whether the liability exemption under Section 5C of G.L. c. 21E would protect such an “eligible” owner from liability for an emerging contaminant that is first discovered and first considered to be a hazardous material like PFAS after the site achieved a permanent solution. Likewise, my article did not address whether such an owner would have to report its knowledge of the presence of such contaminants to the MassDEP. I conclude that because of the narrow language of Section 5C those owners should be prepared to address emerging contaminants under the MCP and c. 21E or risk liability to the MassDEP and they must notify the MassDEP if the concentrations pose or could pose an imminent hazard.

Liability Exemption?
Section 5C of c. 21E states that “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 . . .” For the liability exemption to apply, the “permanent solution or remedy operation status” and the “waste site cleanup activity opinion” must exist and be maintained for “any release of oil or hazardous material at the site.” The statute does not appear to exempt the owner from liability from the entire site but only exempts the owner from liability “for any release of oil or hazardous material” for which a permanent solution or remedy operation status exists and is maintained. Whether the Legislature’s reference to “any release of oil or hazardous material at the site” is broad enough to exempt the owner from liability for releases of hazardous materials that were not actionable at the time the permanent solution or remedy operation status were filed or only those that were actually assessed is unclear. Heavy emphasis on “any” hazardous material would support the application of the exemption. A more narrow reading (which is ordinarily applied by the courts in reviewing public health and safety legislation) would only exempt the owner from liability for releases of oil and those hazardous materials that were actually assessed as part of a waste site cleanup activity opinion in support of the permanent solution or remedy operation status. This differs from the case of a reopened TCE site because a permanent solution or remedy operation status “exists and is maintained” for “the release of oil or hazardous material [i.e. TCE] at the site” in accordance with the waste site cleanup activity opinion. The same legal framework and analysis for the lowered action levels for TCE should apply equally to contaminants such as 1,4 dioxane, that have historically been listed by the MassDEP as hazardous materials but have recently been assigned much lower action levels. Both must be properly addressed as part of the LSP Opinion.

Notification Required?
Chapter 21E, § 2 defines “hazardous material”

material including but not limited to, any material, in whatever form, which, because of its quantity, concentration, chemical, corrosive, flammable, reactive, toxic, infectious or radioactive characteristics, either separately or in combination with any substance or substances, constitutes a present or potential threat to human health, safety, welfare, or to the environment, when improperly stored, treated, transported, disposed of, used, or otherwise managed. The term shall not include oil. The term shall also include all those substances which are included under 42 USC Sec. 9601(14), but it is not limited to those substances.

Under this broad definition, PFAS are hazardous material because of their toxicity.

Chapter 21E, § 7 requires notice to the MassDEP of releases of hazardous materials:

Any owner or operator of a site or vessel, and any person otherwise described in paragraph (a) of section 5, . . ., as soon as he has knowledge of a release or threat of release of oil or hazardous material, shall immediately notify the department thereof.
However, under that same section the MassDEP has published in the MCP “regulations establishing thresholds below which notification shall not be required by this section.”

Without diving into the numerous and complex exceptions to notification, generally under 310 CMR 40.0311, notification is only required for a release or threat of release of a hazardous material for which MassDEP has promulgated either a Reportable Quantity or Reportable Concentration or if the hazardous material exhibits one or more of the characteristics of hazardousness at 310 CMR 40.0347 (ignitability, corrosively, reactivity, toxicity, or infectiousness). Because MassDEP has not promulgated Reportable Quantities or Concentrations for PFAS (and they are not characteristically hazardous), mere detection of PFAS does not require notification. However, two hour notification is required if the PFAS “poses or could pose an imminent hazard.” 310 CMR 40.0311(7). An “imminent hazard” is defined in relevant part as “a release to the environment of oil and/or hazardous material which poses a significant risk to human health when present for even a short period of time, as specified in 310 CMR 40.0950.” 310 CMR 40.0321 (1)(d). 310 CMR 40.0950 requires that a Method 3 risk assessment method shall be performed to determine if an imminent hazard to human health exists. A Method 3 risk assessment includes use of Reference Doses and Reference Concentrations for toxicity and Carcinogenic Slope Factors and Unit Risk Values for cancer risk. According to MassDEP’s Draft Fact Sheet Guidance on Sampling for PFCs, the USEPA has established a Reference Dose of 0.00002 mg/kg/day, documented in the Drinking Water Health Advisory, which would serve as the basis of a MCP Risk Characterization.

In conclusion, eligible persons who own sites where emerging contaminants are discovered are not exempt from liability or notification of the detection of such contaminants. If there are no promulgated RCs or RQs for the contaminant, a Method 3 risk assessment will be required to determine if an imminent hazard exists and notification is required. In that case, 2 hour notice is required. If an imminent hazard exists, the responsible party will need to notify and perform an immediate response action and follow on MCP assessment and possible remediation. Even if no notification is required, the responsible party is required under the MCP to carry out response actions and is not exempt from liability to the MassDEP for failure to take such actions.

Afterward
When I first started to dive into this dense analysis (apologies to the reader), I experienced cognitive dissonance. I simply could not get my mind around the concept that decades old closed sites could present a whole new set of engineering, legal and financial problems. I felt like Marty McFly in Back to the Future. Although CERCLA has statutory “reopeners,” that concept seems foreign to the Massachusetts site clean up arena under the MCP and c. 21E. Not until I read the EPA’s Health Advisory on PFOA, did the potential public health risks start to sink in and my head clear.

I am not sure that the liability framework under CERCLA and c. 21E is the best means to address emerging contaminants. Aside from creating cognitive dissonance, I wonder if it is fair (as if CERCLA and 21E were ever fair) at this time, to require somewhat remote parties (i.e. people other than manufacturers who released these chemicals to the environment) to be legally responsible for exceedingly low concentrations of ubiquitous chemicals that were in the stream of commerce as products, and had nothing to do with waste disposal decisions. Regardless, for now, LSPs, responsible parties and their non-environmental counsel need to clear the mental fog and take their reporting and response obligations for emerging contaminants seriously – – at least until we invent a better mouse trap. For if this is just the beginning of a much bigger long-term trend, I fear that the existing “polluter pays” approach will not be workable.

By Tom Mackie

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Environmental Law Update – Fall 2017

On October 19, 2017, NH DES released a letter to Responsible Parties, Owners and Permittees of certain classes of properties to conduct testing for Per- and Poly-flouroalkyl substances (PFAS).  “Landfills (lined, unlined, active, and/or closed) that are subject to groundwater monitoring requirements” are identified as sites where NH DES will require the initial screening.  As noted in the letter, NH DES “strongly encourages stakeholders to sample and analyze, at a minimum, for the expanded list of nine PFAS analytes outline in the Guidance” provided by NH DES.

On October 18, 2017, the Rhode Island DEM established a 70 parts per trillion Groundwater Quality Standard for PFOA, PFOS or any combination of these compounds in groundwater classified as GAA or GA (groundwater suitable for drinking water use without treatment). Read More → “Environmental Law Update – Fall 2017”