Archive for the ‘PCBs’ Category

Remedial Program Reform Proposals for EPA Administrator Pruitt

Tuesday, February 28th, 2017

Regulatory reform is at the centerpiece of the Trump Administration’s plan to stimulate economic growth. During the presidential campaign, candidate Trump vowed to rollback a variety of Obama Administration Climate Change Initiatives but said little about EPA remedial programs such as the federal Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or superfund). Based on his testimony and follow-up written response to Congress, it appears that EPA Administrator Scott Pruitt recognizes the value of brownfield programs and the need to remediate contaminated sites. There also seems to be strong bipartisan support for the brownfield program in the House committee responsible for the EPA budget.

As a result, I have shared the following recommendations to Administrator Pruitt for reforming EPA’s remedial programs. These suggestions could improve the efficiency of the remedial programs without weakening environmental protections. Some of the changes could be achieved through legislative amendments but could be administratively implemented if Congress does not have the time to address environmental issues during the current term. The proposals are not in any order of importance

  1. CERCLA Continuing Obligations Guidance– The 2002 amendments to CERCLA added the Bona Fide Prospective Purchaser (BFPP) and Contiguous Property Owner defenses. These defenses (in particular the BFPP defense) were enacted to help incentivize purchasers to acquire and remediate contaminated properties so they can be put back into productive use. While EPA promulgated an all appropriate inquiries (AAI) rule to help define the pre-acquisition obligations necessary to be able to assert these defenses, there is little guidance from EPA on how property owners or operators may satisfy their “appropriate care” or “continuing obligations” so they can maintain their liability protection after taking title or possession of property. The 2003 “Common Elements Guidance” is inadequate. The lack of guidance and recent caselaw have created uncertainty for developers and undermined the value of these defenses. EPA should issue detailed guidance on what constitutes appropriate care. Developers and property owners should not have to rely on ASTM to provide guidance on how to comply with their legal obligations.

2. Revise “Enforcement Discretion Guidance Regarding the Affiliation Language of CERCLA’s Bona Fide Prospective Purchaser and Contiguous Property Owner Liability Protections” – This memo did not sufficiently address concerns raised by the Ashley decision that purchasers of contaminated property could lose their eligibility for the BFPP by agreeing to indemnify sellers. 

3. More Robust Use of PPAs and CPO “Assurance Letters”- With the passage of the 2002 CERCLA amendments, EPA announced in guidance that it would issue PPAs or CPO assurance letters only in rare instances because the landowner liability protections were self-implementing. However, these agreements can be incredibly valuable. EPA should urge its regional offices to issue such documents where they can facilitate redevelopment such as in urban superfund sites (e.g., GowanusCanal, Newtown Creek) and where municipal governments are willing to foreclose on contaminated properties and then convey title to redevelopers. 

4. Clarify Scope of Municipal Liability Protections Under CERCLA to Encourage Taking Title of Vacant Properties and Facilitate Reuse- There is considerable uncertainty among local government community if municipalities can invoke the protections of 42 U.S.C. 9601(20)(D) and (9601(35)(A)(ii) where they take title in lieu of formal tax foreclosure proceeding since this may not be “involuntary”. Local governments might be more willing to take title and assemble vacant properties so they would become more attractive to redevelopment if they could obtain clarity on the scope of this protection. Presumably, a purchaser from a municipality would then be able to assert the BFPP or third party defense. A related problem is that the BFPP defense would not apply to local governments who took title prior to January 11, 2002.

5. Reform EPA Remedial Programs Into a Single Unified Cleanup Program- Our nation’s remedial programs were created as we became aware of new concerns. This has resulted in different cleanup standards and procedures. We have separate staffs for CERCLA, RCRA, TSCA (PCBs), USTs, etc. We now have three decades of experience remediating sites. I think we should strongly consider combining these discrete offices into one streamlined remedial office that will provide consistent regulatory approach and reduce unnecessary staff. 

6. Clarify Lender Obligations Following Foreclosure- The original EPA lender liability rule contained a “bright-line” test for lenders to follow so they can be deemed to have taken commercially reasonable steps to sell property following foreclosure, thereby staying within the safe harbor created by the secured creditor exemption. Unfortunately, when the rule was vacated and the 1996 lender liability amendments were added to CERCLA, the “bright line” test was omitted. So lenders have no guidance on how to proceed during what is the worst economic downturn since the Great Depression. Can they reject an offer that is equal to artificially depressed price? How long can they hold onto property without losing protection? Some states allow for two years while others allow up to five years to sell the property. Greater clarity will help lenders move these properties.If control of Congress changes, this can be legislative proposal.  

7. Encourage States to Adopt Licensed Professional Programs– States are facing severe staffing constraints which are creating backlogs in site remediation.  EPA could use its authority under section 128 of CERCLA (approval of state response programs) as well as its RCRA delegation authority to have states adopt licensed site professional programs like MA, NJ and CT so that states could devote their limited resources to the sites that pose the greatest risk to human health and the environment. EPA could establish a national licensing program for consultants that sets forth minimum professional requirements and states could adopt these programs as part of their remedial programs. One way to accomplish this could be by amending the All Appropriate Inquiries (AAI) Rule to revise the definition of Environmental Professional. This could avoid having to promulgate a new regulation.  

8. Revise NCP- revising the NCP. It was last revised in 1990. Since then we’ve learned a lot about cleanup and have lots of informal guidance to help streamline the process and make it more cost-effective. Doesn’t make sense to continue to follow the RI/FS lockstep process. Why review five alternatives? The NY brownfield program requires applicants tp propose remedy and an unrestricted cleanup alternative, and this approach has been able to generate robust cleanups. The NCP could be revised to incorporate streamlined provisions for brownfield sites that will produce faster and more cost-effective cleanups while preserving right of contribution. Right now, firms are incentivized to follow the lock-step approach to preserve their ability to pursue cost recovery. 

9. Revise CERCLA Disclosure Requirements With Amnesty Program To Incentivize Accelerated Cleanups- Property owners are not currently required to disclose historic contamination. As a result, many sites remain unremediated until the owner is ready to sell the property. To help accelerate cleanups, I think EPA could announce it was going to change its disclosure rules from reportable quantity approach to contaminant concentrations and at the same time provide current property owners a one year amnesty period to voluntarily disclose contamination. Much like the EPA audit policy, owners who disclose the existence of contamination that they are not responsible for would be afforded BFPP status. They would have to exercise “appropriate care” but not full cleanup. The SARA Title III program resulted in substantial reductions in pollution. It seems worth the try to experiment with an amnesty period for contaminated sites. 

10. Seek Cost Recovery from Responsible Parties When Brownfield Grants Are Awarded – According to a 2004 EPA study, there may be 300,000 contaminated sites in the nation that may cost over $200 billion (not adjusted for inflation) to remediate.  Many brownfield sites were created when corporations closed plants and either relocated elsewhere in the country or exported the jobs overseas yet remains financially viable. EPA has been granting brownfield grants to local governments without considering if there is a responsible party.  Before EPA gives away public money, it should make a determination that there are no responsible parties. If responsible parties are available, RPA should give the responsible party an opportunity to conduct an investigation and remediation of the contaminated property is has left behind. If the responsible party declines to participate int he cleanup, EPA could then award the Brownfield grant and seek cost recovery. In this way, the brownfield funding program would not have to rely entirely on Congressional appropriations.

11. Move Away from Brownfield Grants/Loans and To Tax Credits- The brownfield financial incentives are becoming like public works projects. The funding often takes too long for private development. Rather than giving funds to local government to investigate and reuse planning, EPA could incentivize the private market to do this work by expanding and extending brownfield tax credits. The New York Brownfield tax credit program has resulted in an estimated $7.5B in investment in the state at a cost of $750MM. Tax credits put the upfront risk on the developer instead of the taxpayers. 

12.Adopt National Environmental “WARN” Obligations Under RCRA- to prevent future brownfields, companies closing operations should be required to notify relevant permitting authority at least 90 days in advance of closing to ensure that appropriate closure occurs so that public money does not have to be used to address cleanup or local government seeks brownfield funds.

13. Require States To Use Parceling To Encourage RCRA Brownfields- EPA RCRA Brownfield Reforms urged states to allow owners or operators of TSDF to sell off clean parcels of their facilities (e.g., portions never used for any waste management) while the HWMUs or SWMUs were undergoing corrective action. EPA should more forcefully use its delegation authority to allow this much needed reform.  

14. Clarify RCRA liability for Generator-only sites- There is much confusion if closure obligations for a generator site run with the land. In other words, a site may have been owner or operated by a defunct generator. A prospective purchaser is interested in redevelopment but is concerned it will become subject to closure obligations for the areas where wastes were managed. Presumably, generator sites could be treated as any brownfield site without the need to undergo formal RCRA closure.  

15. Add Landowner Liability Protections to TSCA for PCB Cleanups- Purchasers often take steps to qualify for CERCLA BFPP only to learn after taking title that the property has been impacted with PCBs and they are subject to TSCA cleanup. This might require Congressional action but I do not see any reason why TSCA should not have a BFPP defense. Congress added AAI and BFPP to OPA in 2004 with little controversy.

16. TSCA PCB Reform- The PCB cleanup and disposal rules are a bit RCRA-like, a bit CERCLA-like and not well integrated. The cleanup should also not depend on the original spill concentration but on current concentrations and media. I’d like to see the entire Subpart D to 40 CFR 761 repealed, and disposal of PCB-containing material handled entirely within RCRA via the listed-waste and LDR route. 

17. Adopt Restatement (Third) of Torts Approach to Joint Liability– When CERCLA was enacted, Congress said that liability should be premised on evolving concepts of common law. At the time of its enactment, the Second Restatement was in effect which favored use of joint liability for indivisible harm. However, this was before states began adopting comparative negligence statutes. The Third Restatement states that the law has shifted dramatically from the use of joint liability and that courts should try to find a basis for apportioning liability where there is a reasonable basis. Despite the publication of the Third Restatement in 2000, federal courts continue to cling to the doctrine espoused by the Second Restatement. Recently  an appeals court declined to adopt the suggestion of an amicus brief submitted by The American Tort Reform Association to use the Third Restatement to apportion liability for the Fox River cleanup. My post on this case is at: . The Administration might want to have Congress clarify that CERCLA liability should be based on the Third Restatement or  EPA could issue interpretative guidance that it now considers the Third Restatement to be the governing law for CERCLA liability. This  would reflect the Congressional intent to follow the evolving common law and confirm the direction where the law has moved.

Has EPA Engaged In Stealth Rollback of School PCB Safequards?

Sunday, August 23rd, 2015

One of our more popular posts  (based on views) has been the 2013 discussion on EPA’s reinterpretation of the regulatory status of building materials that are contaminated by migration of PCBs from PCB bulk product waste as a PCB remediation waste. EPA recently released revised guidance which consists of the following documents:

  • PCBs in Building Materials—Questions & Answers”;
  • Fact sheet titled “Practical Actions for Reducing Exposure to PCBs in Schools and Other Buildings”; and
  • a new webpage titled “Exposure Levels for Evaluation of PCBs in Indoor School Air”

The documents are available Here.

However, according to an analysis posted by Public Employees for Environmental Responsibility (PEER), the new guidance represents a step backward in EPA’s approach to PCBs in schools and other buildings and will result in “thousands of students and teachers occupying schoolrooms containing illegal levels of PCBs”. PEER says that the new guidance:  

  • Fails to recommend testing caulk for PCBs unless the buildings are going to be demolished or reconstructed.
  • The new policy discourages air testing and instead recommends it should be considered only after consultation with the EPA regional PCB Coordinators;;
  • Downplays the need for air testing except in extreme circumstances; and
  • Downgrades the categorization of air testing from “health” or “maximum concentration” levels to factors for “thoughtful consideration” which “should not be interpreted nor applied as ‘bright line’ or ‘not-to-exceed’ criteria.”

In particular, PEER explains that the new “Practical Actions for Reducing Exposure to PCBs in Schools and Other Buildings,” recommends only 1) removal of PCB-containing florescent light ballasts 2) BMPs; 3) removal of PCB-containing building materials during planned renovations or repairs; and 4) considering encapsulation to reduce PCB exposure, which applies only to surrounding materials after PCB building materials are removed during repairs and renovations, and is to be considered on a case-by-case basis by the EPA regional PCB coordinator. Materials identification and testing is not mentioned at all

PEER points out that the old Q&A document identified “Maximum Concentrations of PCBs in School Air” and recommended that the concentrations of PCBs in indoor air be kept “as low as is reasonably achievable and that total PCB exposure be kept below  the reference dose level.” In contrast, the new document refers to “Exposure Levels for Evaluating PCBs in Indoor Air,” and emphasizes that the indoor air levels “were derived to serve as health protective values intended for evaluation purposes. They should not be interpreted nor applied as ‘bright line’ or ‘not-to-exceed’ criteria, but may be used to guide thoughtful evaluation of indoor air quality in schools.”  The new Q & A document also states “Isolated or infrequent indoor air PCB measurements that exceed the exposure levels would not signal unsafe exposure to PCBs. When measured indoor school air PCB concentrations are above these exposure levels, the EPA suggests that school building administrators take further steps to reduce PCB exposure such as reviewing, reevaluating and adjusting BMPs or taking other actions to identify and address PCB sources.”

PEER also noted that EPA has significantly raised the exposure levels for young children – doubling levels to be “thoughtfully considered” for 3 to 6-year olds and raising them for most other age groups.

Because of the changes to the guidance documents. PEER asserts that “owners and  occupants of schools and other buildings will never find out the levels of PCBs to which they are being exposed, and whether they are legally required to be removed, unless and until there is a planned renovation or demolition in which the PCB containing materials will be removed anyway.” Even if a building owner does decide to test the air, the consequences are “greatly attenuated because the standards does not automatically warrant action, but only ‘thoughtful consideration’.”

Several EPA Region offices have launched initiatives that focus on the risks posed by PCBs in schools-particularly PCBs that are found in caulk. PCBs in caulk can volatilize into the air and may be absorbed by surrounding materials, causing wood, brick, concrete and other building materials to become contaminated with PCBs. These secondary sources of PCBs can also volatilize and contaminate the air, dust, and other materials in the building. PCBs in buildings can also volatilize and be deposited into and contaminate surrounding soil. One high profile example has been the discovery of high levels of PCBs in the Malibu and Santa Monica public schools. A Lawsuit has been filed by teachers and parents under the Toxic Substance Control Act (TSCA) seeking to compel the Malibu school district to remove the source of the PCBs.  According to the complaint, testing in 2009 and 2010 revealed elevated levels of PCBs in air and soil samples at Malibu Middle and High School (“MHS”) and Juan Cabrillo Elementary School (“JCES”). Additional testing undertaken since then has revealed that caulk and other building materials used at MHS and JCES contain levels of PCBs in excess of standards adopted by the EPA. The complaint alleges that although the school district has, in consultation with the EPA, agreed to remove the PCB-containing materials from certain areas within the schools, the school district has refused or been slow to test additional areas within MHS and JCES that are also likely to contain building materials with levels of PCBs in excess of those allowed by the EPA. A federal district court recently denied a motion to dismiss filed by the school district.

It is unclear if the changes in the PCB guidance documents is a result of pushback from local school authorities concerned over the costs of complying with the PCB requirements.