Energy and Environment Monitor

U.S. EPA Region III and WVDEP Sign Memorandum of Agreement for Voluntary Remediation Program

Following more than ten years of negotiations, the United States Environmental Protection Agency (U.S. EPA) Region III and the West Virginia Department of Environmental Protection (WVDEP) finally signed a Memorandum of Agreement (MOA) on February 24, 2010, for the West Virginia Voluntary Remediation Program (VRP). The MOA relates only to the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601 et seq. (CERCLA, also known as Superfund) and applies only prospectively. Nonetheless, the signing of the MOA marks a significant milestone for the WVDEP and the remediation of sites that are contaminated or perceived to be contaminated in West Virginia. Absent exceptional circumstances, the MOA offers liability protection for anyone cleaning up contaminated properties in West Virginia under the VRP from actions brought by U.S. EPA under CERCLA. For a copy of the MOA, click here. 

In the MOA, U.S. EPA agrees generally to refrain from bringing an administrative or judicial enforcement action under CERCLA for sites that are being cleaned up under the VRP subject to four exceptions. The specific forbearance language is found in Section IV.B of the MOA and reads as follows: “U.S. EPA does not anticipate taking an administrative or judicial enforcement action under CERCLA §§ 106(a) or 107(a) against a person regarding a specific release at an eligible response site that is being addressed by that person in compliance with the VRP requirements.” This language -- “does not anticipate taking”-- is similar to language found in U.S. EPA’s MOAs with other states for their voluntary cleanup programs.  

The four exceptions to U.S. EPA’s forbearance are set forth in CERCLA § 128(b). They are: (1) West Virginia requests U.S. EPA’s assistance in the performance of a response action; (2) contamination has migrated or will migrate across a state line or onto federal property; (3) a release or threatened release may present an imminent and substantial endangerment to public health or the environment and additional response actions are likely to be necessary to address, prevent, limit or mitigate the release or threatened release; and (4) information discovered after the approval or completion of a cleanup establishes that the contamination or conditions at the site present a threat requiring further remediation to protect public health or the environment.  

The applicability of the liability protection offered by the MOA is limited temporally and in scope. The MOA does not apply to sites that were cleaned up under the VRP before February 24, 2010, the effective date of the MOA. In addition, the MOA relates only to cleanups that satisfy CERCLA.   It does not affect hazardous waste remediation at facilities subject to the Resource Conservation and Recovery Act (RCRA) Subtitle C cleanup requirements or environmental cleanups pertaining to leaking underground storage tanks under RCRA Subtitle I. Nor does it affect cleanups of polychlorinated biphenyls (PCBs) under the Toxic Substances Control Act.  

While the MOA is not a “one cleanup program” agreement, it does document U.S. EPA’s recognition and approval of the VRP. For example, U.S. EPA Region III acknowledges in Section III.A of the MOA the “comprehensive” nature of the VRP. In particular, U.S. EPA Region III states its support for “the use of the WVDEP’s VRP 60 C.S.R. III comprehensive cleanup rules at properties where this approach is appropriate for achieving timely and protective cleanups.” (Emphasis added). Importantly, West Virginia and U.S. EPA Region III continue to discuss a separate memorandum of understanding for the VRP to address RCRA.  

The MOA applies to contaminated or potentially contaminated properties, commonly called “brownfields,” that are “eligible response sites” as defined in CERCLA and that are cleaned up under the WVDEP’s oversight pursuant to the VRP. Because the MOA offers liability protection from CERCLA, it does not apply to “[a]ny site that is the subject of a federal enforcement or response action under CERCLA.” This includes “an administrative order, a judicial order, a permit, an injunction, a consent decree, a CERCLA general or special notice letter, or an information request letter under CERCLA § 104(e).” Other sites ineligible for the liability protection offered by the MOA include: (1) a facility that is listed or proposed for listing on the NPL; (2) a facility that is subject to a unilateral administrative order, court order, administrative order on consent or judicial consent decree that has been issued to or entered into by the parties, or a facility to which a permit has been issued, under RCRA, the Federal Water Pollution Control Act, 33 U.S.C. § 1321, TSCA, or the Safe Drinking Water Act, 42 U.S.C. § 300f et seq.; (3) a facility that is subject to RCRA corrective action or to which a RCRA corrective action permit or order has been issued; (4) a land disposal unit with respect to which a RCRA Subtitle C closure notification has been submitted and closure requirements have been specified in a closure plan or permit; (5) a federal facility; (6) a portion of a facility at which there has been a release of PCBs; and (7) a portion of a facility, for which portion assistance for response activity has been obtained under RCRA Subtitle I from the Leaking Underground Storage Tank Trust Fund.  

In addition, anyone seeking CERCLA liability protection under this MOA should be careful not to rely on the “deemed” approved language in West Virginia’s Voluntary Remediation and Redevelopment Rule at 60 CSR. § 60-3-10.3.c. Under the Rule, certain work plans or reports required to be submitted under the VRP are “deemed” approved if the WVDEP fails to approve or disaapprove the document within the time period specified in the Rule “unless such work plans or reports are determined to be materially inaccurate.” This language was inserted in West Virginia’s Voluntary Remediation and Redevelopment Rule, and agreed to by the WVDEP, to help achieve cleanups in a timely manner. The MOA, however, does not apply to any plan, report, or other document required to be submitted under the VRP that is “deemed” approved. Entities wishing to obtain CERCLA liability protection will need to have all of their plans, reports, or other documents required to be submitted under the VRP approved by the WVDEP.  

This article was authored by Gale Lea Rubrecht, Jackson Kelly PLLC. For more information on the author, see here.

Status of WV Voluntary Land Stewardship Program

In previous articles I have discussed the ongoing process by the West Virginia Department of Environmental Protection (WVDEP) to develop a West Virginia Voluntary Land Stewardship Program (VLSP) in West Virginia. The WVDEP envisions that the VLSP would be a “comprehensive integrated system for implementing, monitoring, tracking, and protecting institutional and engineering controls” at formerly environmentally contaminated sites that have been closed under either State or Federal programs in West Virginia. 

In early 2009, the WVDEP established a stakeholders group, which is referred to as the Institutional Controls (IC) Work Group, to assist it in this process. The IC Work Group consists of various stakeholders from trade associations, industry, and government, which has been working with the WVDEP and its contractors. The most recent meeting of the IC Work Group with the WVDEP and its contractors was on January 27, 2010. This was the sixth meeting of the IC Work Group since its inception. As the representative of the WV Coal Association on the IC Work Group, I think it is safe to say that the WVDEP and the IC Working Group have made significant progress in a number of areas, which include: 

·     Developed the overall administrative structure of a VLSP.

·     Developed various draft documents that would be used by a VLSP.

·     Identified the range of services that the VLSP could offer to an entity (public or private) that has entered a site into the VLSP (e.g., operation and maintenance of remediation systems, environmental monitoring, reporting to WVDEP).

·     Evaluated the advantages and disadvantages of creating a 501(C)3 or 501(C)4 non-profit corporation versus a for-profit corporation to operate the fiduciary “Trust” that would be established to manage the dollars paid into the VLSP to perform the operations, maintenance, and tracking functions required under the site closure documents. 

Based on the progress made during 2009, the WVDEP anticipates that the following activities will occur during 2010: 

1)   WVDEP will continue to move forward with implementing a pilot program to further test the concept of a VLSP, most likely during the second half of 2010. At this time, both DOW Chemical and FMC Corporation have reported that they are still planning on entering two of their sites into the pilot program. In addition, the WVDEP intends to enter several former municipal solid waste (MSW) landfills into the pilot program. At the sites, it is anticipated that the VLSP will provide a mix of the following services during the term of the pilot program:

·     Maintaining the landfill cap.

·     Operating the landfill leachate collection system.

·     Implementing the provisions of the Land Use Covenants (LUCs) under the provisions of the Voluntary Remediation Program.

·     Performing groundwater monitoring. 

2)   The IC Focus Group will prepare a report for the public entitled Recommendations for Establishing a Comprehensive State Voluntary Land Stewardship Program. This document will likely address the following topics:

·     Identify the universe of State and Federal risk-based programs that include the option to use institutional and/or engineering controls to achieve site closure.

·     Discuss the challenges and benefits of a VLSP for West Virginia.

·     Survey the approaches to tracking and monitoring long-term institutional controls that are being implemented by other States.

·     Outline the administrative structure of a VLSP, the elements of the fiduciary “Trust,” and overall management issues. 

At this time, it is anticipated that the Recommendations for Establishing a Comprehensive State Voluntary Land Stewardship Program will be completed by mid-2010.  

This article was authored by Greg Tieman, Acacia Environmental Group LLC. For more information on the author see here. 

Status of WV Voluntary Land Stewardship Program

I have discussed in previous articles the ongoing process by the West Virginia Department of Environmental Protection (WVDEP) to develop/implement a West Virginia Voluntary Land Stewardship Program (VLSP) in West Virginia. As discussed previously, the VLSP would be a “comprehensive integrated system for implementing, monitoring, tracking, and protecting institutional and engineering controls” at sites that have been closed in West Virginia. In addition to sites closed under the Voluntary Remediation Program (VRP), the WVDEP envisions that sites closed under a range of regulatory programs, such as the Leaking Underground Storage Tank (LUST), Landfill Closure Assistance Program (LCAP), RCRA Corrective Action, Toxic Substances Control Act (TSCA), and mining programs could eventually be managed under a VLSP.   A “Trust” would be established that would have fiduciary responsibilities for managing funds that would be placed into the Trust by the entity responsible for any long-term institutional and/or engineering controls required to close the site. At present, it is envisioned that the VLSP would be a non-profit charitable trust that would continue into perpetuity.  

As part of the process of developing/implementing a VLSP, the WVDEP early in 2009 established a stakeholders group, which is referred to as the Institutional Controls (IC) Work Group, to assist it in this process.  The IC Work Group consists of various stakeholders from trade associations, industry, and government, which has been working with the WVDEP and its contractors. The most recent meeting of the IC Work Group with the WVDEP and its contractors was on September 23, 2009. This was the fifth meeting of the IC Work Group since its inception earlier this year.  

Although, a number of significant questions still remain, the process is now far enough along that the WVDEP is planning on moving forward with a pilot program to further test the concept of a VLSP during 2010. As of this most recent IC Work Group meeting, it appears that two former industrial sites and three former municipal solid waste (MSW) landfills will be entered into the pilot program in 2010. The former industrial sites are currently owned by private industry and the former MSW landfills are currently managed by the WVDEP under its Landfill Closure Assistance Program (LCAP). To facilitate the pilot program, the WVDEP envisions establishing the charitable trust during the first half of 2010. Each applicant to the VLSP, including the WVDEP, will enter into a contract with the VLSP for the provision of various post-closure activities that will be performed by the VLSP during the pilot program period, which is anticipated to be for one year. The range of post-closure services will likely consist of the following activities: 

·     Annual certification of compliance with any land use covenants.

·     Operation of any treatment or remediation systems (e.g., groundwater remediation or landfill leachate collection).

·     Performance of monitoring and/or maintenance activities (groundwater monitoring, grass cutting, asphalt pavement repair).

·     Preparation of monitoring and/or maintenance reports and submittal to the WVDEP. 

At the end of the pilot program, the results will be evaluated by the IC Work Group and the WVDEP, and recommendations will be prepared regarding the viability of the implementation of a full-scale VLSP.

This article was authored by Greg Tieman, Acacia Environmental Group LLC. For more information on the author see here. 

Uniform Environmental Covenants Act (UECA) Program Moving Forward

The Uniform Environmental Covenants Act (UECA) program in West Virginia came into existence on July 2, 2008, West Virginia Code §22-17. UECA was developed to allow risk-based closure of contaminated sites. These sites are likely to have land use covenants (LUCs) associated with the property following closure of the site by the West Virginia Department of Environmental Protection (WVDEP). LUCs, such as restricting the property to exclude residences or prohibiting groundwater wells are a common practice for contaminated sites using human health and ecological risk-based closure. West Virginia had no standard procedure for attaching LUCs to property deeds. UECA will provide a standard practice (hence-Uniform) for covenants placed upon the property. Additionally, there is a provision for the property owner to conduct inspections of the property on a regular basis to monitor compliance with the LUCs and report those inspections to the WVDEP after site characterization, remedial design and implementation of the remedial measures have been completed. There is a provision to discontinue the inspections, if it is determined that the inspections are no longer necessary to protect human health and ecological receptors.

UECA is very similar to the West Virginia Voluntary Remediation Program (VRP) administered by the WVDEP. The VRP became effective on July 1, 1997. The VRP also allows for closure of contaminated sites using risk-based technology and has been successful in redevelopment of numerous contaminated properties that otherwise would not have been remediated or redeveloped. Below is a comparison of major components of the VRP and UECA requirements. 

VRP

·     Under the VRP, successful closure of the site results in a Certificate of Completion (COC) for all potential historical environmental impacts that can be identified at the site and thus results in screening for an expanded analytical parameter list. The COC is a legal document that limits the ability of the regulatory agencies from re-opening of the site for regulatory enforcement.

·     Requires an application fee and reimbursement costs for DEP employee’s time and expenses associated with the project.

·     Requires a signing of a Voluntary Remediation Agreement (VRA) and use of a Licensed Remediation Specialist to manage the project. Detailed risk assessment in accordance with USEPA protocols must be performed.

·     Requires extensive QA/QC and laboratory data validation. 

UECA

·     Under UECA, successful closure results in a No Further Action at this time (NFA) for specific environmental impacts associated with an identified environmental release such as a Leaking Underground Storage Tank (LUST) site. This generally results in a limited analytical parameter list. The NFA would allow the regulatory agency to re-open the site, if environmental conditions warrant and does not provide the broader protection of the COC.

·     Requires reimbursement costs for DEP employee’s time and expenses associated with the project. There is no initial application fee, as is the case with the VRP.

·     Requires signing of an Agreement For Investigation And Remediation Activities Under W.VA. Code §22-17 & §22-22B (UECA Agreement) and use of a Licensed Remediation Specialist to manage the project. Detailed risk assessment in accordance with USEPA protocols must be performed. (same as VRP)

·     Requires extensive QA/QC and laboratory data validation. (same as VRP)

The UECA program is currently being developed by the WVDEP. The UECA Agreement became available for use in August 2009. The UECA Agreement and the Uniform Environmental Covenant Act are available through the WVDEP website at www.wvdep.org. 

At this time, no site has officially entered the UECA program, with a signed UECA Agreement. This program will provide another tool to effectively remediate contaminated sites. Each contaminated site must be evaluated for its own characteristics to determine if it would be more cost effective or logistical to use UECA, the VRP, or remediate to conventional numerical clean-up standards, which was often the only option, prior to existence of the VRP and UECA. Such factors as spreading costs over time, problems with off-site impacts that may affect neighboring properties, future land use, cost of remedial alternatives and liability issues are just a few of the considerations when determining which program may best fit your situation. 

This article was authored by William Chambers, Acacia Environmental Group LLC. For more information on the author see here.

WV Voluntary Land Stewardship Program (Trust)

Early in 2009, the West Virginia Department of Environmental Protection (WVDEP) brought together a group of stakeholders representing various business interests and trade associations (Dow Chemical Company, Exxon/Mobil, FMC Corporation, WV Coal Association, WV Chamber of Commerce, WV Manufacturers Association), WVDEP, USEPA Region III, and the WV Development Office to form an Institutional Controls (IC) Focus Group. The WVDEP tasked this Group with the following objectives: 

·     Evaluate the current status/best practices of risk-based remediation and related land use controls. 

·     Evaluate the feasibility/framework of the WVDEP developing/implementing a West Virginia Voluntary Land Stewardship Program (VLSP). 

The efforts of the IC Focus Group are supported by an IC Work Group, which consists of representatives from Marshall University, WVDEP, and a consultant who facilitates the meetings. The IC Focus Group and the IC Work Group met during February, April, June, and August 2009, and two additional meetings are scheduled for this year. The goal of this blog article is to summarize the background leading up to this effort and what a VLSP might look like.  

A.)  Background.

For years, the performance of site cleanups in West Virginia was based on achieving an unrestricted future land-use; e.g. residential level. One result of this approach was that federal and state environmental programs developed a backlog of sites that were not being addressed, since the technology to remediate soil, sediment, and groundwater to such pristine levels was often not available or could only be implemented at an unacceptable cost.  

In July 1997, West Virginia implemented the Voluntary Remediation and Redevelopment Rule (VRRR, 60CSR3). A primary goal of the VRRR was to allow the use of risk-based approaches to remediation, so that sites could be remediated to less restrictive levels (e.g., industrial) rather than residential. Any engineering or institutional controls (e.g., future land-use deed restrictions) that must be implemented to meet the level of cleanup desired (residential or industrial) are described in a Land Use Covenant (LUC). Under the VRRR, the LUC must be recorded with the property deed at the respective County Court House for the Certificate of Completion (COC) to become effective. It should be noted that the LUC remains with the property deed for as long as engineering and/or institutional controls are in place (e.g., theoretically, in perpetuity). 

Over the last several years, the WVDEP has come to believe that the COC is an imperfect way to enforce the provisions of the LUCs over time. Therefore, the WVDEP has taken several actions (some legislative, some not) in recent years to address their concern: 

·     First, West Virginia enacted the Uniform Environmental Covenant Act (UECA), which was integrated into the VRRR in July 2008. UECA modified LUCS. However, even with these modifications, the WVDEP believes that UECA still does not address the practical aspect of determining whether the provisions of LUCs are being violated over time.  

·     Second, in addition to incorporating UECA, the VRRR was revised to require regular certification by the applicant or property owner that the site is being used in compliance with the provisions of the LUC. In general, WVDEP anticipates that the inspections should be formed and certifications be submitted to the WVDEP, at a minimum, on an annual basis. 

·     Third, WVDEP recently joined Miss Utility as a participating member and now receives notification of excavation and subsurface disturbance activities at VRP sites, as the utilities do. The WVDEP (Division of Land Restoration Project Managers) is reportedly responding to approximately 300 “tickets” issued by Miss Utility per year.  

·     Fourth, although not originally envisioned when the VRRR was implemented in July 1998, the WVDEP (Division of Land Restoration Project Managers) is now performing an annual inspection at each site that has been issued a Certificate of Completion (COC) under the Voluntary Remediation Program (VRP). 

As a result of the third and fourth actions, WVDEP feels that it now has a practical way of enforcing LUCs, but WVDEP believes that some risk of exposure remains because not all site activities require excavation nor does everyone use the Miss Utility service. The WVDEP is also concerned that the time required by its current staff to implement these actions is causing time-constraints that detracts from their ability to support ongoing sites entered into the VRP. In addition, the WVDEP reports that it has not received, nor is likely to receive funding from the Legislature to perform the activities described in the third and fourth actions. 

WVDEP believes that the issue of monitoring LUCs over time has become a major concern and one that could threaten the long-term viability of risk-based closures in West Virginia, since the potential exists for such sites to be redeveloped in the future in ways that would violate the LUCs and place individuals or the environment at an unacceptable risk. WVDEP feels that this risk is further compounded by the steadily increasing number of sites being closed under the VRP, while payroll and staff available to address this issue are not increasing. WVDEP reports that nearly 50% of the Division of Land Restoration’s Project Managers are eligible for retirement within the next four years, taking their site-specific knowledge of the sites and their LUCs with them. 

Finally, a couple of pertinent facts should be noted relative to this effort to develop a West Virginia Voluntary Land Stewardship Program (VLSP): 

·     Pennsylvania had developed a similar program, referred to as the “Guardian Trust,” earlier in this decade. The program was ultimately not adopted by the State. 

·     The USEPA is hoping that West Virginia will help figure out how to monitor these sites in perpetuity, and has provided West Virginia with a $100,000 grant to assist in the process, which can include implementation of a Voluntary Land Stewardship Program (VLSP). 

B.)    What is a VLSP?

As described in the Meeting Minutes from the June 24, 2009 WVDEP IC Focus Group Meeting, the VLSP would be a “comprehensive integrated system for implementing, monitoring, tracking, and protecting institutional and engineering controls.” A “Trust” would be established that would have fiduciary responsibilities for managing funds that would be placed into the Trust by the holder of the LUC (e.g., the original VRP applicant and/or the property owner). At present, it is envisioned that the VLSP would be a 501(c) non-profit charitable trust that would continue into perpetuity.  

The funds in the Trust would then be used to perform a range of services on behalf of the applicant/property owner. The term of service and specific services would be tailored for each individual site. As currently envisioned, the VLSP might provide the following tier of services, which may expand over time: 

·     Establish or maintain any institutional controls (e.g., environmental covenants, easements, deed notices, restrictions and/or prohibitions on land-use or allowed activities) by filing such documents or updating them when the site is leased, conveyed, subdivided, or when land disturbance activities occur. 

·     Conduct physical inspections. 

·     Monitor and/or operate any treatment systems (e.g., groundwater treatment, soil vapor extraction, or monitored natural attenuation), collect environmental samples, and prepare reports. 

·     Conduct periodic review of county land records to monitor transfers or deed filings. 

·     Develop an administrative record concerning the remediation of the Site in an electronic database, respond to inquiries, and coordinate the sharing of data amongst various stakeholders, such as the WVDEP, other regulatory agencies, economic development agencies, potential purchasers, land owners, and tenants. 

·     Develop and maintain records and information for posting on the WVDEP environmental registry (publicly accessible), which is to be created, to track LUCs. 

·     Coordinate and share data with the WV Miss Utility system. 

This article was authored by Greg Tieman, Acacia Environmental Group LLC. For more information on the author see here. 

U.S EPA Region 3 Discusses Waste Issues At Annual WV Chamber Fly-In

On July 21, 2009, members of the West Virginia Chamber of Commerce (Chamber) met with U.S. Environmental Protection Agency (U.S. EPA) Region 3 staff in Philadelphia as part of the Chamber’s annual fly-in. Present for U.S. EPA Region 3 were, among others, Abraham Ferdas, Director of U.S. EPA Region 3 Land and Chemicals Division, and Kathryn Hodgkiss, Acting Director of U.S. EPA Region 3 Hazardous Site Cleanup Division. Highlights of the waste-related discussion are as follows: 

·        Memorandum of Agreement: The Chamber asked about the status of a possible Memorandum of Agreement (MOA) concerning West Virginia’s Voluntary Remediation Program between West Virginia and U.S. EPA and whether any such MOA would likely cover cleanups under the Resource Conservation and Recovery Act (RCRA) and the Toxic Substances Control Act (TSCA). Director Ferdas reported that U.S. EPA was “close to finalizing” the MOA between West Virginia and U.S. EPA. After more than ten years of negotiations, he promised that the “end is near,” by which he said he meant “before the new fiscal year” or “by September” 2009. He further stated that the MOA would be limited in scope to eligible response sites under Superfund and would not address sites under RCRA or TSCA. With respect to RCRA, he stated that while U.S. EPA had reauthorized West Virginia to administer the RCRA Corrective Action Program, the issue of groundwater leaving sites remains. He explained that PCB contamination was enforceable only under TSCA and therefore would not be covered any MOA. In addition to RCRA and TSCA, he explained that because the leaking underground storage tank (LUST) program is a state program, the MOA would not apply to it. 

·        Regulation of Coal Combustion Residuals: The Chamber inquired about the status of U.S. EPA’s review of the coal combustion fly-ash issues that have arisen since the Kingston, Tennessee spill in December 2008. William C. Earley, Acting Regional Administrator, stated that U.S. EPA is looking at options for regulating coal combustion by products. He stated that the agency wants to protect the beneficial uses of coal combustion by products. He also stated that agency is looking at fly-ash impoundments based on the following three categories: (1) structural integrity (Superfund); (2) enforcement (Clean Water Act); and (3) consequences if the impoundment fails similar to a risk management plan (Federal Emergency Management Act).

·        Definition of Solid Waste: Noting that U.S. EPA recently granted a petition to reconsider the Definition of Solid Waste Rule that was finally published in the Federal Register in October 2008 after twenty 20 years of rulemaking and litigation, the Chamber asked U.S. EPA Region 3 to explain the revisions of the DSW Rule that are anticipated. Director Ferdas responded that U.S. EPA had held a public meeting on June 30, 2009, and said that most of the comments focused on off-site management.  He stated that the issue is when the generator losses control of the wastes. He indicated he believed that the on-site provisions would likely survive the additional review. 

·        CERCLA “Arranger” Liability:   The Chamber asked whether U.S. EPA anticipated revising any formal policy, such as its policy concerning “arranger” liability, for example, in response to the U.S. Supreme Court’s decision in Burlington Northern v. U.S. Director Hodgkiss responded that the regulated community could anticipate “business as usual”. She explained that Burlington Northern involved unusual facts and therefore had limited potential applicability. She stated that the Court affirmed the principle of joint-and-several liability and held that U.S. EPA would have to prove intent to dispose to establish “arranger” liability, explaining that this analysis would be on a case-by-case basis and very fact intensive. She stated that U.S. EPA would continue to assign parties to do cleanups and would continue to pursue cost recovery if the parties did not do so. 

·        RCRA Corrective Action in West Virginia: The Chamber asked if U.S. EPA was focusing on any specific issues in the West Virginia Department of Environmental Protection Agency’s administration of the RCRA Corrective Action Program. Director Ferdas responded that U.S. EPA would continue to provide support to West Virginia. He noted that the WV DEP is organized so that permitting and remediation are handled by two different sections within WV DEP. Further, he noted that West Virginia may regulate only by permits while U.S. EPA may issue orders.  

·        Reopening of the PCB MegaRule: The Chamber indicated it understood that a notice of proposed rulemaking would be published in January 2010, reopening the PCB MegaRule, and that the existing use authorizations would be re-evaluated and possibly eliminated. The Chamber asked what approach U.S. EPA anticipated taking to evaluate the existing authorizations and possible elimination of authorized uses. For example, the Chamber asked whether U.S. EPA anticipates implementing a series of management practices for control, requiring a tiered replacement of equipment using PCBs, or possibly establishing new criteria for “PCB-contaminated” and “PCB-containing” that would mimic the current rule. Director Ferdas responded that in 2008 U.S. EPA had made a decision to transfer the cleanup of PCBs to OSWER. He further explained that under the court decision in Paralyzed Veterans, U.S. EPA is required to reopen the PCB MegaRule, stating that the Paralyzed Veterans’ decision stands for the proposition that if the agency has implemented a program one way then it cannot change how it implements the program without changing the regulations. Paralyzed Veterans of America v. D.C. Arena L.P., 117 F.3d 579, 586, (D.C. Cir.1997) (“Once an agency gives its regulation an interpretation, it can only change that interpretation as it would formally modify the regulation itself: through the process of notice and comment rulemaking”). Director Ferdas added that changing the regulations can take a long time. 

·        Land Stewardship Trust: The Chamber asked whether there were any new developments within U.S. EPA regarding the establishment of Land Stewardship Trusts. In particular, the Chamber asked whether U.S. EPA is monitoring and/or encouraging estate efforts to track, register or inspect risk-based cleanup sites and if U.S. anticipates developing its own Land Stewardship Trust Program. Directors Ferdas and Hodgkiss responded that U.S. EPA has awarded a $100,000 grant to West Virginia to study and evaluate establishing a Land Stewardship Trust Program in connection with the West Virginia Voluntary Remediation Program. They also noted that such programs are very state-specific and that Pennsylvania, for example, has the Guardian Trust. For additional information on the July 21, 2009 meeting between U.S. EPA and the Chamber, contact Gale Lea Rubrecht at galelea@jacksonkelly.com or 304-340-1200. 

This article was authored by Gale Lea Rubrecht, Jackson Kelly PLLC. For more information on the author see here.

States Privatizing Environmental Remediation

Based on a recent report, New Jersey appears to have become the poster child for a problem facing may state environmental regulatory agencies around the county, a backlog of contaminated sites that these agencies do not have the resources (personnel or financial) to address. For example, New Jersey reportedly has a backlog of more than 19,000 contaminated sites. In response to this problem, several states have recently taken steps to privatize portions of their state remediation programs in an effort to accelerate the site remediation process and reduce their backlogs. Connecticut, Massachusetts, and now New Jersey have all reportedly implemented such privatization programs. Although, the changes to these State remediation programs are reportedly similar, I’ll focus on a few aspects of the New Jersey privatization program that are of general interest. 

The Site Remediation Reform Act (“SRRA,” N.J.S.A. 58:10C-1 et seq) was signed into law on May 7, 2009. In certain cases, primary environmental investigation and cleanup oversight under SRRA will no longer be performed by the New Jersey Department of Environmental Protection (NJDEP), but will now be performed by a new class of environmental professional that has been created under SRRA: “Licensed Site Remediation Professionals (LSRPs). LSRPs will be licensed as such by a 13-member licensing board and will be subject to civil and criminal penalties for violations of SRRA. 

Under SRRA, LSRPs will supervise site remediation activities largely independent of the NJDEP and the LSRPs will certify that the site meets New Jersey’s Technical Requirements for Site Remediation. Notably, the LSRP’s obligations under SRRA will change. Although, the LSRPs will still be hired by the entity responsible for remediation, in the future the LSRP will be responsible for protecting human health and the environment, which must take precedence over client preferences, discretionary sampling decisions, efficient billing, etc. 

It should be noted that New Jersey will no longer issue “No Further Action” (NFA) letters, except for those projects completed before the full phase-in of SRRA. Instead, the LSRP will file a Response Action Outcome (RAO) with the NJDEP. The RAOs are intended to be at least as reliable as NFA letters, and are subject to review and possible revocation for the first three years after issuance, as well as providing for re-openers. 

Under SRRA, the NJDEP will inspect submissions from LSRPs, but only generally at an undefined and likely much lower level of review. However, the NJDEP will be required to perform a higher level of review at those sites that may pose a significant threat to human health and the environment, may affect sensitive populations (i.e., daycare centers), or may involve environmental justice concerns. In addition, NJDEP may also have direct oversight of sites meeting the following criteria: 

·        Chromate contamination.

·        Multiple impacted sensitive natural resources.

·        PCBs, mercury, arsenic, or dioxin impacted surface water bodies.

·        Highest ranking priority in the New Jersey Spill Act. 

Finally, implementation of SRRA raises a number of questions and concerns going forward regarding the remediation of contaminated sites in New Jersey: 

·        Since, the “highest priority” for LSRPs is to protect human health and the environment, will LSRPs become more conservative in their approach and therefore, will remedial actions become more expensive to complete. Anecdotal evidence suggest that this has been the case in Ohio since implementation of their Voluntary Assistance Program (VAP). 

·        LSRPs will have obligations to disclose information and certain data directly to NJDEP about site conditions (even after the LSRP has been discharged). Therefore, how will this requirement affect the traditional relationship between an environmental consultant and their client? 

This article was authored by Greg Tieman, Acacia Environmental Group LLC. For more information on the author see here. 

U.S. EPA Reforms IRIS Process

On May 21, 2009, U.S. EPA Administrator Lisa P. Jackson announced reforms to the agency’s Integrated Risk Information System (IRIS). IRIS is an electronic database that provides information on human health effects that may result from exposure to chemical substances in air, water, and land both from contaminated sites and from products.  

U.S. EPA’s National Center for Environmental Assessment (NCEA) within the Office of Research and Development (ORD) maintains and prepares the database. Government and private entities in the United States and around the world use IRIS to help characterize public health risks of chemical substances in a site-specific situation and support risk-management decisions designed to protect public health. In West Virginia, for example, IRIS is used in risk-management decisions under the West Virginia Voluntary Remediation and Redevelopment Program. Other examples of risk management decisions relying upon IRIS include: deciding how much of a substance a company may discharge into a river, which substances may be stored at a hazardous waste disposal facility, and to what extent a hazardous waste site must be cleaned up; setting permit levels for discharge, storage, or transport; establishing levels for air emissions; and determining allowable levels of contamination in drinking water. 

The reforms announced May 21, 2009, reverse changes to the IRIS process, including procedures formalized by the Bush EPA in an April 10, 2008, memorandum that U.S. EPA Administrator Jackson criticized as “reduc[ing] the transparency, timeliness, and scientific integrity of the IRIS process.” Administrator Jackson promised that the new process would be “more transparent and timely” and would also “ensure the highest level of scientific integrity.” While EPA will consider the scientific input of experts at other agencies and White House offices, EPA will manage the process and have “final responsibility” for the content of all IRIS assessments. The process will include the opportunity for public comment and rely on open and independent external peer review. EPA will provide a response to comments. The assessment development process will be shortened to 23 months and for fiscal year 2010, EPA resources for the IRIS program will be increased. President Obama’s 2010 fiscal year budget includes a request for an additional $5 million and 10 full-time equivalent employees for the IRIS program. 

Before the development of the draft IRIS assessment for each chemical on the proposed agenda, EPA will conduct a scientific literature search and initiate a data call-in. For the scientific literature search, ORD will appoint a chemical manager for each chemical on the proposed agenda, and that chemical manager will then direct an EPA contractor to conduct and complete a comprehensive search of the scientific literature for the chemical. The results of that literature search will be posted on EPA’s web site. After the completion of the literature search for each chemical, EPA will publish a Federal Register notice notifying the public of the availability of the completed literature search on the IRIS web site. The notice will invite the public and other agencies to submit additional scientific information on the chemical and request information on new research that may be planned, underway, or in press.  

After the literature search and data call-in are complete, EPA will begin development of the IRIS human health assessment. All IRIS human health assessments will undergo “rigorous, open, independent external peer review”. IRIS assessments considered being of major importance or high profile may be selected for peer review by panels of experts convened by EPA’s Science Advisory Board or by the National Academy of Sciences. 

IRIS assessments are to be developed under a 7-step process. This seven-step process is expected to be completed within approximately 2 years from the Step 1 start date. Because of their complexity, large scientific literature base, or high profile, some IRIS assessments may take longer than 2 years.  

·        Step 1 – Development of Draft IRIS Toxicological Review: EPA develops and completes a draft IRIS Toxicological Review. An ORD assessment team will assess the data and the scientific literature and any information submitted as a result of the data call-in and develop a draft assessment for the chemical being assessed. The draft assessment will summarize potentially important health effects, information on potential modes of action, and information about potentially susceptible populations. The draft assessment will include a quantitative assessment, including application of certain factors, default approaches, mode of action information, and dose-response modeling. The draft assessment will also identify potential uncertainties that impact the qualitative and quantitative aspects of the assessment. The development and completion of the draft IRIS Toxicological Review is expected to take 345 days. 

·        Step 2 – Internal EPA Review: Once the draft IRIS Toxicological Review has been developed, ORD submits it for internal EPA review. Scientists from EPA programs and regions review the draft Toxicological Review and identify any scientific issues to determine the level of peer review, needed panel member disciplines, and the scope of the review. Internal EPA review is expected to take 60 days. 

·        Step 3 – Interagency Science Consultation: Following the internal EPA review, EPA initiates an Interagency Science Consultation on the draft IRIS Toxicological Review. EPA sends the draft IRIS Toxicological Review and draft external peer review charge to other federal agencies and White House offices for a science consultation. This science consultation is managed and coordinated by EPA. All written comments received during the Interagency Science Consultation become part of the record. Following receipt of written comments, ORD revises the draft assessment documents as appropriate, and science questions that arise may be included as part of a charge question to the peer review panel.  

·        Step 4 – External Peer Review, Public Review and Comment, and Public Listening Session: After the Interagency Science Consultation, EPA initiates an independent external peer review of the draft IRIS Toxicological Review, releases the draft IRIS Toxicological Review for public review and comment, and holds a public listening session. The external peer review, public review and comment, and public listening session are all announced in the Federal Register and are expected to take 105 days. EPA recently announced a listening session for the draft Toxicological Review of Pentachlorophenol (74 Fed. Reg. 27317; June 9, 2009), and a listening session and peer review workshop for the draft Toxicological Review of 1, 4-Dioxan (74 Fed. Reg. 27313; June 9, 2009). 

·        Step 5 – Revisions, IRIS Summary, and Response to Comments: Following the external peer review, public review and comment, and public listening session, ORD evaluates the report of the external peer review panel and all public comments. ORD revises the draft IRIS Toxicological Review, as appropriate, and develops the IRIS Summary. ORD also develops a disposition of peer reviewer and public comments and provides these as an appendix to the IRIS Toxicological Review. The revision process and response to comments is expected to take 60 days but the length of the process may depend on the complexity of the IRIS Toxicological Review and complexity and number of comments. 

·        Step 6 – Final Internal EPA Review and EPA-led Interagency Science Discussion:  After development of the final drafts of the IRIS Toxicological Review and IRIS Summary and response to comments, ORD sends the final drafts of the IRIS Toxicological Review and IRIS Summary for final internal EPA review. This review is intended as a final check-in with Agency program and regions. Concurrent with the internal EPA review, EPA provides other agencies and White House offices with a final draft of the IRIS Summary and Toxicological Review and appendix describing disposition of peer review and public comments. Other agency and White House office scientists may provide written scientific feedback. EPA also hosts a meeting with other agencies and White House offices to discuss any scientific issues related to the final draft of the IRIS Summary and Toxicological Review and appendix. All written comments by other agencies and White House offices are documented in the record. Step 6 is expected to take 45 days. 

·        Step 7 – Completion of IRIS Toxicological Review and IRIS Summary:  EPA completes the IRIS Toxicological Review and IRIS Summary. Step 7 is expected to take 30 days. 

The reforms announced May 21, 2009, respond to criticism of the changes made to the IRIS process by the Bush EPA culminating in the April 10, 2008 memorandum. The 2008 process involved early involvement of other federal agencies and the public. In 2004, the White House directed EPA to begin routinely submitting draft assessments to the White House Office of Management and Budget (OMB) for review. Previously, the need for these reviews had been determined on a case-by-case basis. On April 10, 2008, EPA announced additional changes to the IRIS process which further involved OMB. This upset the scientific community because OMB’s staff is comprised mostly of policy analysts and economists. The 2008 IRIS process included asking other federal agencies whether an industrial chemical was critical to that agency’s mission. OMB then coordinated the agencies’ negotiations over “mission-critical” designations. If OMB and other agencies determined the chemicals in question to be “mission-critical,” then the other agencies had an opportunity to conduct their own research and to fill any identified data gaps or address any uncertainties. This prolonged the process and delayed the completion of IRIS assessments. Further, under the 2008 process, the communications during the consultations with other agencies and OMB were designated as “deliberative” and therefore not subject to a Freedom of Information Act request. The U.S. Government Accountability Office (GAO) was highly critical of an EPA’s 2008 IRIS process. In a May 21, 2008 report, GAO criticized the process as lacking transparency and limiting the credibility of IRIS assessments as well as placing the IRIS database at serious risk of becoming obsolete. GAO stated, “EPA has institutionalized a process that from the outset is estimated to take 6 to 8 years to complete.”  

For additional information on 2009 reforms to the IRIS process, contact Gale Lea Rubrecht at galelea@jacksonkelly.com or 304-340-1200. 

This article was authored by Gale Lea Rubrecht, Jackson Kelly PLLC. For more information on the author see here.

EPA Proposes Amendments to AAI Rule Under CERCLA for Phase I Site Assessment for Forest Land or Rural Property

            U.S. EPA is proposing to amend the All Appropriate Inquiry (AAI) Rule at 40 CFR Part 312 to reference a new standard by ASTM International for Phase I environmental site assessments.  The new standard, ASTM E2247-08, “Standard Practice for Environmental Site Assessment:  Phase I Site Assessment Process for Forestland or Rural Property,” addresses property uses and environmental concerns typical of large tracts of forested or rural land.  For example, the new standard provides for the use of remote sensing methods such as the use of aerial photography or flyovers. 

 

            The AAI Rule provides that ASTM International standard E1527-05, “Standard Practice for Environmental Site Assessments:  Phase I Environmental Site Assessment Process,” may be used to comply with the all appropriate inquiries requirements under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).  U.S. EPA is proposing to conclude that the new standard for large tracts of forest land and rural property is compliant with the AAI Rule. 

 

            Parties potentially affected include the forest industry, other natural resource industries, conservation organizations, forest and rural real estate professionals, lenders, resource management agencies, and environmental consultants.  Specifically, the new standard may affect parties claiming a limitation on CERCLA liability as bona fide prospective purchasers, contiguous property owners, or innocent land owners who are purchasing large tracks of forested lands or large rural properties.  In addition, any party conducting a site characterization or assessment on a property that consists of large tracks of forested or rural land with a brownfields grant awarded under CERCLA may be affected.  This would include state and local governments that receive brownfields site assessment grants.

 

            While there are differences between the regulatory requirements and the two ASTM standards, U.S. EPA maintains that the differences are “minor in nature”.  Most of the differences relate to applicability and scope.  The AAI Rule applies to all properties and includes controlled substances.  The new standard applies to 120 acres or greater of forest land or rural property or with a developed use of only managed forest land and/or agriculture.  The 120 acres do not have to be contiguous; however, the non-contiguous areas should have substantially the same general land use and be part of the same transaction.  The property may contain isolated areas of non-forest land and non-rural property.  The new standard expressly states that controlled substances are not within its scope; however, controlled substances must be included if the assessment is conducted under a U.S. EPA brownfields assessment and characterization grant and the grantee requests that controlled substances be included within the scope of the investigation.  The new standard also discusses threatened and endangered species and non-point source pollution which are not addressed in the AAI Rule. 

 

            In addition to applicability and scope, some other differences include the following:

 

ü                  Additional inquiries, 40 CFR §312.22:  The AAI Rule provides that a person seeking liability protection or conducting assessments with brownfields grants may provide to the environmental professional information on environmental cleanup liens, specialized knowledge, relationship of purchase price to fair market value, and other commonly known information to the user.  The new standard imposes upon the user the responsibility to collect the information and requires the user to report environmental cleanup liens information to the environmental professional. 

 

ü                  Interviews with past and present owners, operators, and occupants, 40 CFR §312.23:  The AAI Rule requires that the current owner and an occupant be interviewed.  The new standard states that the key site manager or someone with knowledge of the property should be interviewed.

 

ü                  Reviews of historical sources of information, 40 CFR §312.24:  The new standard provides a more detailed list than the AAI Rule of documents to be used in an historical review, including activities likely to be found on large tracts of forested or rural land, such as oil/mineral development and livestock dipping vat records.  The new standard is also more stringent than the AAI Rule with respect to the period to be covered in the review and requires that all records back to 1940 or back to the property’s first developed use, which is specifically defined to include forestry use, whichever is earlier, be used. 

 

ü                  Searches for recorded environmental cleanup liens, 40 CFR §312.25:  The AAI Rule gives the user the choice to retain the information or share it with the environmental professional.  The new standard requires the user to provide the information to the environmental professional.

 

ü                  Reviews of federal, state, tribal, and local government records, 40 CFR §312.26:  The new standard provides a more expansive list of secondary environmental records sources than the AAI Rule.  The secondary sources include records for the optional scope areas including inventory of threatened and endangered species and best management practice violations for water quality protection.  Additional record sources specifically reference Department of Natural Resources and Division of Forestry.  The new standard requires that the user notify the environmental professional before site reconnaissance of commonly known or reasonably ascertainable information about the property. 

 

            U.S. EPA’s proposed amendments would not require the use of the new standard but allows parties the option of using the new standard.  Parties purchasing large tracks of forest land or rural property may choose to follow the specific requirements of the AAI Rule or the ASTM E1527-05 standard. 

 

            U.S. EPA published the proposed rule (73 Fed. Reg. 78716) and a direct final rule (73 Fed. Reg. 78651) December 23, 2008.  Unless U.S. EPA received adverse written comment by January 22, 2009, the rule automatically takes effect March 23, 2009.  For additional information concerning all appropriate inquiries requirements under CERCLA for Phase I environmental site assessments, contact Gale Lea Rubrecht at 304-340-1200 or galelea@jacksonkelly.com.

 

This article was authored by Gale Lea Rubrecht, Jackson Kelly PLLC. For more information on the author see here.

Phase I Environmental Site Assessments All Appropriate Inquiry

Although the All Appropriate Inquiry (AAI) standard for Phase I Environmental Site Assessments has been around for two years now, many reports now being prepared in accordance with the AAI standard fall short of the current requirements.  Below is a list of provisions that became effective under the AAI standard.  If you are preparing or reviewing a report, the following issues must be identified in the report.

• Data Gaps – AAI requires more extensive documentation of data gaps – The Environmental Professional must identify data gaps, including the sources of information that were consulted to address the data gaps, for all required provision of AAI.  The Environmental Professional is required to comment on the significance of the data gaps with regard of the ability of Environmental Professional to identify conditions indicative of releases or threatened releases of hazardous substances.

• Research back first identified use or 1940, whichever is earlier.  Identify uses in 5 year intervals.  To establish the use, must use at least one of the following.

Aerial Photographs

Fire Insurance Maps

Property Tax Files

Recorded Land Title Records

USGS Topographic Maps

Local Street Directories

Building Department Records

Zoning/Land Use Records

If the fire insurance maps show the same parking garage between 1940 and 1960, the period in between does not need to be researched.

• The Phase I report is to be conducted/supervised by an “Environmental Professional”.  Although this is similar to the previous E 1527-00.  The AAI defines requirements for the Environmental Professional.  Requirements regarding training, experience and education are noted in the standard.

Environmental Professional statement is required in report, “[I, We] declare that, to the best of [my, our] professional knowledge and belief, [I, we] meet the definition of Environmental Professional as defined in §312.10 of 40 CFR Part 312…..”

 

• The shelf life of a Phase I is stated as one year.  All appropriate inquiries must be completed within one year, prior to acquisition of the property, HOWEVER, interviews, liens searches, records review and visual inspection must take place within 180 days. (Not 180 days from the date of the final report!) 

Relevant portions of the report (interviews, etc.) can be updated within the one year period in order to avoid reproduction of the entire report.

·        Interview with the owner and occupants is mandatory.

·        CERCLA landowner liability defense.  Standard E 1527-00 included petroleum products for liability protection.  New standard excludes petroleum products.

·        Either the purchaser or the Environmental Professional must conduct the search for Recorded Environmental Cleanup Liens.  If the search is performed by the prospective property owner and the results are not provided to the EP.  The lack of information to be identified as a data gap.

• Either the purchaser or the Environmental Professional must compare the purchase price of the property to the fair market value of the property, taking into consideration if the difference between the purchase price and the fair market value is due to the presence of releases or threatened releases of hazardous substances.  It is possible that the purchase price information may not be disclosed for business reasons.  This would be addressed as a data gap in the report.

• The report shall include one of the following statements:

“We have performed a Phase I Environmental Site Assessment in conformance with the scope and limitations of ASTM Practice E 1527 of [insert address or legal description], the property.  Any exceptions to, or deletions from, this practice are described in Section [  ] of this report.  This assessment has revealed no evidence of recognized environmental conditions in connection with the property,” or

“We have performed a Phase I Environmental Site Assessment in conformance with the scope and limitations of ASTM Practice E 1527 of [insert address or legal description], the property.  Any exceptions to, or deletions from, this practice are described in Section [  ] of this report.  This assessment has revealed no evidence of recognized environmental conditions in connection with the property except for the following:  (list).”

This article was authored by William Chambers, Acacia Environmental Group LLC. For more information on the author see here.