Proposed U.S. Infrastructure Plan Supports Reuse of Brownfields and Superfund Sites

The Trump Administration released its ambitious $1.5 trillion infrastructure plan on Feb. 12, 2018 – a plan that includes many provisions focused upon encouraging the reuse of contaminated brownfields and Superfund sites.  On the same day, the Administration released its proposed budget for Fiscal Year (FY) 2019, which called for a 23 percent cut from FY 2018 levels in the U.S. Environmental Protection Agency’s (U.S. EPA) budget.  The U.S. EPA also released its final Strategic Plan for 2018-2022, emphasizing a focus upon the agency’s core mission, cooperative federalism and the rule of law.  What does all of this mean for the redevelopment of contaminated sites in the United States?

Infrastructure Plan

 Financial Incentives

The infrastructure program would establish an Incentives Program that could be very beneficial for state and local reuse of contaminated sites.  Up to $100 billion would be set aside for the Incentives Program, which would fund a wide range of projects, including brownfields and Superfund sites, stormwater facilities, wastewater facilities, flood control, water supply, drinking water supply and transportation facilities.  The funds would be divided among the U.S. Department of Transportation (U.S. DOT), the U.S. Army Corps of Engineers and the U.S. EPA.  The infrastructure plan suggests criteria by which applications would be evaluated, with substantial weight (70 percent) being given to obtaining commitments for non-federal revenue for sustainable, long-term funding for infrastructure investments and for operations, maintenance and rehabilitation. In order to motivate performance, the grant recipient would need to enter into an infrastructures incentives agreement with the lead federal agency and to agree to achieve progress milestones. If the milestones are incomplete after two years, the agreement will be voided unless there is good cause to extend the agreement for another year. No individual state could receive more than 10 percent of the total amount available under the Incentives Program.

Additional funds would be set aside for a Rural Infrastructure Program, including funds for brownfields and land revitalization as well as stormwater and wastewater facilities, drinking water, flood risk management and water supply.  States would be required to develop a comprehensive rural infrastructure investment plan (RIIP). Some funds would also be provided for tribal infrastructure and the infrastructure needs of U.S. territories.

Superfund, Brownfield, and RCRA Sites in the U.S. (U.S. EPA, 2013)

Yet another category of funds would be set aside for the Transformative Projects Program – projects that are likely to be commercially viable but have unique technical and risk characteristics that might deter private sector investment.  Projects that could be covered by this program could fall within commercial space, transportation, clean water, drinking water, energy or broadband.  A total of $20 billion would initially be set aside for this program, with the U.S. Department of Commerce chairing the program.  Funds could be used for demonstration, project planning, capital construction, or all three.  If a project receives financial assistance for capital construction, it would be expected to enter into a value share agreement with the federal government and would be required to publish performance information upon achieving milestones and finishing the project.

The federal government would also dedicate $20 billion from existing federal credit programs, and broaden the use of Private Activity Bonds, to assist complex infrastructure projects. These sources of funding would include: the Transportation Infrastructure Finance and Innovation Act (TIFIA); Railroad Rehabilitation and Improvement Financing (RRIF); Water Infrastructure Finance and Innovation Act (WIFIA); Rural Utility Service (RUS) lending; and Private Activity Bonds (PABs).

The Administration would amend TIFIA to make loans and credit assistance available for other types of projects – such as passenger terminals, runways and related facilities at non-federal waterways and ports as well as airport projects – until FY 2028.  Similarly, the Administration is proposing to amend RRIF to cover the credit risk premium for short-line freight and passenger rail project sponsors, thereby incentivizing more project sponsors to apply for RRIF credit assistance.  It would also like to amend WIFIA (33 U.S.C. 3905) to include flood mitigation, navigation and water supply, and to eliminate the requirement that borrowers be community water supply systems.  The Administration would like to make WIFIA funds available for remediation of water quality contamination by non-liable parties.  It would remove the current spending limit of $3.2 billion, which was put in place when WIFIA was a pilot program, and would amend the restriction upon using WIFIA funds to reimburse costs incurred prior to loan closing.

Liability Relief

The Administration proposes establishing a Superfund Revolving Loan Fund and Grant Program and authorizing sites that are on the National Priorities List (NPL) to be eligible for brownfields grants.  It would amend the Small Business Liability Relief and Brownfields Revitalization Act in order to do so. This would allow non-liable parties to tap into a low-interest source of funds to perform removals, remedial design, remedial action and long-term stewardship.  The program would be targeted toward portions of NPL sites that were not related to the response action; to portions that could be parceled out from the response action site; to areas where the response action was complete but the site had not yet been delisted; or to areas where the response action was complete but the facility was still subject to a consent order or decree.

The Administration would also propose additional liability protections to states and municipalities acquiring contaminated properties in their capacity as sovereign governments by clarifying and expanding the current liability protections in the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) Section 101(20)(D).  These governmental entities would be eligible for grants and would be protected from liability, so long as they meet the obligations imposed upon bona fide prospective purchasers (BFPPs), including exercising appropriate care with regard to releases, so long as they did not contribute to the contamination.

The Administration would also give EPA express authority to enter into administrative settlement agreements with BFPPs or other third parties who wish to clean up and reuse contaminated Superfund sites.  This could include partial and early remedial actions.

The Administration’s infrastructure proposal would encourage greater flexibility in funding and execution requirements, as infrastructure needs should be integrated into cleanup design and implementation. Better integration would allow third-party financing and promote site reuse.

Expedited Permitting

The Administration proposed a “one agency, one decision” environmental review structure, in which a single federal lead agency would complete the environmental review within 21 months and issue either a Finding of No Significant Impact (FONSI) or Record of Decision (ROD).  The lead agency would then have another three months to issue any necessary permits, including state permits issued under federal law pursuant to a delegation of authority.  The agency would not be required to evaluate alternatives outside the scope of the agency’s authority or the applicant’s capability.

The Council on Environmental Quality (CEQ) would be directed to revise its regulations to streamline the National Environmental Policy Act (NEPA) process to increase the efficiency, predictability and transparency of environmental reviews.  The Administration would eliminate what it considers to be duplicative reviews by EPA under Section 309 of the Clean Air Act.  It would also encourage each federal agency to increase its use of categorical exclusions (CEs) and would allow any federal agency to use a CE established by another federal agency without undergoing the CE substantiation and approval process.

The Administration would also recommend amending the law to allow federal agencies to accept funds from non-federal entities to support review of permit applications and other environmental documents to expedite project delivery and defray costs.

The Administration would also make changes under the Clean Water Act to eliminate redundancy and duplication. For example, it would allow federal agencies to select nationwide permits without the need for additional Army Corps review. It would authorize the Secretary of the Army to make jurisdictional determinations under the Clean Water Act and would eliminate EPA’s ability to veto a Section 404 permit under Section 404(c). It would allow the same document to be used for actions under Sections 404 and 408 of the Clean Water Act.  The Administration would lengthen the term of a National Pollutant Discharge Elimination System (NPDES) permit from five years to 15 years and provide for automatic renewals.

Similar changes would be made under the Clean Air Act. For example, the Administration would amend the Clean Air Act so that state departments of transportation (state DOTs) and metropolitan planning organizations (MPOs) would need only to demonstrate conformity to the latest National Ambient Air Quality Standards (NAAQS), rather than to old and new standards for the same pollutant. Similarly, MPOs would be allowed to demonstrate conformity in a newly designated non-attainment area within one year after EPA has determined that the emissions budget is adequate for conformity purposes.

The Administration proposes eliminating overlapping Section 4(f) review by the U.S. Department of the Interior, U.S. Department of Agriculture and U.S. Department of Housing and Urban Development before the DOT can be authorized to use parklands or historic sites unless there is no prudent or feasible alternative. This process can add an extra 60 days to the project development review process, even when those agencies have little direct involvement in the project. Another layer of review is required under Section 106 of the National Historic Protection Act (NHPA) for historic properties that is not aided by the Fixing America’s Surface Transportation (FAST) Act. The Administration recommends that an action taken under a Section 106 agreement should not be considered a “use” under Section 4(f), therefore eliminating some duplication and delay.

The Administration would expand the NEPA assignment program to allow DOT to assign, and states to assume, a broader range of NEPA responsibilities, including project-level transportation level conformity determinations as well as determinations regarding flood plain protections and noise policies to make the NEPA assignment program more efficient.

Also proposed by the Administration is a pilot program with up to 10 pilot sites that would be expected to meet performance standards and enhanced mitigation, in lieu of complying with NEPA and relevant permits or other authorizations.

The Administration also proposed judicial reforms, including limiting injunctive relief to exceptional circumstances and revising the statute of limitations to 150 days (rather than a statute of limitations of up to six years).

Proposed Budget

The Administration also released its “Efficient, Effective, Accountable: An American Budget” on Feb. 12, 2018, in which it proposed a 23 percent cut in EPA’s budget compared to FY 2018.  The White House added $724 million to EPA’s budget in a supplemental request, including $327 million for the Superfund program and $397 million for State and Tribal Assistance Grants for Clean Water and Drinking Water State Revolving Funds (SRFs).  At the same time, the Administration proposed cuts of 16 percent in grants to states (to $2.9 billion) and proposed cuts of 35 percent in funding to state and local agencies for air quality management (to $152 million).  The Administration requested $151 million for enforcement at Superfund sites and $20 million for the WIFIA program.

U.S. EPA’s Final Strategic Plan

The FY 2018-2022 EPA Strategic Plan, also released on Feb. 12, 2018, continued to emphasize three main goals: the agency’s Core Mission, Cooperative Federalism, and the Rule of Law and Process.  Among its two-year priority goals, The U.S. EPA intends to make an additional 102 Superfund sites and 1,368 brownfields sites ready for anticipated use (RAU) by Sept. 30, 2019. The U.S. EPA intends to use a “Lean” management system designed to deliver measurable results that align with the Strategic Plan.

Objective 1.3 is particularly relevant to the issues discussed above with regard to redevelopment of brownfields and Superfund sites. Objective 1.3 is to revitalize land and prevent contamination by providing better leadership and management to properly clean up contaminated sites to revitalize and return the land back to communities.  The strategic plan identifies both strategic measures and strategies for achieving these goals. First, it announces the number of sites the agency intends to have RAU by Sept. 30, 2022:

  • 255 additional Superfund sites
  • 3,420 additional brownfield sites
  • 536 additional Resource Conservation and Recovery Act (RCRA) corrective action facilities
  • 56,000 additional leaking underground storage tank (LUST) sites meeting risk-based corrective action standards

The U.S. EPA then announced the strategies by which it intends to achieve these goals, including the use of new technologies and innovative approaches; prioritizing sites that have been on the NPL for five years or more without significant progress; and reprioritizing resources to focus on remedial actions, construction completions, ready for reuse determinations and NPL site deletions.  The U.S. EPA will award competitive grants for the assessment, cleanup and reuse of brownfields sites, and will focus on sites subject to RCRA corrective action and LUST sites.  The U.S. EPA will review more than 12,500 risk management plans (RMPs) to help prevent releases and train RMP inspectors, and it intends to update its RCRA hazardous waste regulations to protect the health of the 20 million people living within 1 mile of a hazardous waste management facility. It will also issue polychlorinated biphenyls (PCB) cleanup, storage and disposal approvals, since this work cannot be delegated to states or tribes.  The U.S. EPA acknowledged that many of the sites that remain on the NPL are large, more complex and may contain multiple areas of contamination, and may contain emerging contaminants such as per- and polyfluoroalkyl substances (PFAS).  The U.S. EPA promised to engage stakeholders at all levels in making cleanup and land revitalization decisions.

As part of Objective 3.1, compliance with the law, the U.S. EPA stated that it would continue to follow an “enforcement first” approach under CERCLA to maximize the participation of responsible parties to perform and pay for cleanups. It indicated it would focus its resources on the highest priority sites that present an immediate risk to human health and the environment, and return these sites to beneficial use as expeditiously as possible.  It will also use advanced monitoring technologies to ensure compliance and work with the Environmental Council of the States (ECOS) and state associations to modernize ways to improve compliance.

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About the Authors

Amy L. Edwards is the co-chair of the firm’s National Environmental Team, as well as its Military Housing and Installations Redevelopment Team. She is a partner in the firm’s Public Policy & Regulation Group, which has been ranked among the top law and lobbying firms in Washington, D.C., by numerous publications. Ms. Edwards has been recognized as a leading environmental lawyer for several years by Chambers USASuper Lawyers and Best Lawyers. After holding several other leadership positions, she will become the Chair of the American Bar Association’s Section of Environment, Energy and Resources (SEER), the pre-eminent national organization representing lawyers in these fields, in 2018-2019.

Nicholas Targ is a San Francisco attorney with more than 20 years of experience assisting clients in the public and private sectors efficiently achieve their land use, environmental and policy goals. He co-chairs Holland & Knight’s national environmental team. Mr. Targ’s practice focuses on complex redevelopment projects, environmental compliance and government advocacy. His representative work includes strategic legal advice on brownfields redevelopment, Superfund compliance, and state and federal grant and policy advocacy. Mr. Targ has successfully advocated for infill funding and policy initiatives on behalf of public, private and nonprofit coalition clients.

This article was first published on the Holland & Knight LLP website.

CHAR Technologies Acquires The ALTECH Group

The ALTECH Group of companies (“Altech”) and CHAR Technologies Ltd. (“CHAR”) are now working together!  CHAR Technologies Ltd. (TSXV:YES) has acquired The ALTECH Group in an effort to expand the offering of cleantech environmental technologies, including SulfaCHAR and CleanFyre.  The ALTECH Group provides environmental engineering solutions to industry in North America in the areas of air pollution control, industrial energy efficiency, and process water recycling.  The new combined entity provides cleantech solutions to industrial environmental engineering challenges.

CHAR currently produces SulfaCHAR®, a bio organic product, similar to activated carbon, competing on cost and performance with other air pollution control solutions.  SulfaCHAR is specially designed to remove hydrogen sulfide from renewable natural gas (ie. biogas from anaerobic digesters and landfill gas, as well as other contaminants from industrial air emissions).  CleanFyre® is an exciting new bio-coal product that is a cost effective substitute with similar energy potential to coal as a fossil fuel.  The major advantage of bio-coal is that it is Greenhouse Gas (GHG) neutral.  Companies replacing coal with CleanFyre will be eligible to earn GHG Credits in the fight for Climate Change.  This is an important product advancement in the fight to significantly reduce Greenhouse Gases.

 

The merged entity has over 30 years of experience throughout North America in delivering full-service engineering and turnkey technology installations to corporations interested in sustainable and cost effective solutions.  As the holder of a number of patents, ALTECH and CHAR have unique, cost effective solutions for effluent air and water problems.  The combined entity has the ability to design, fabricate, and install leading edge cleantech solutions, solving complex environmental problems in very cost effective ways.  As a group that is constantly innovating, this partnership of cleantech firms continues to develop and apply world class solutions that make sense from a cost savings point-of-view.

 

 

 

Contact:

 

Mr. Alex Keen:   akeen@altech-group.com

Mr. Andrew White:   andrew.white@chartechnologies.com

 

Recent Trends in the Selection of Remedies at Superfund Sites

The U.S. Environmental Protection Agency (U.S. EPA) recently issued the 15th edition of its Superfund Remedy Report (SRR).  The report is a compilation of over 300 remedies selected in decision documents for contaminated sites on the National Priorities List (NPL) from October 2011 to September 2014.

Summary

Remedies included in the document relate to soil, groundwater, and sediment.  The remedies were counted by specific technology or approach, and also grouped into categories, such as treatment, on-site containment, off-site disposal, monitored natural attenuation (MNA), and institutional controls (ICs). The study analyzed remedies by media (i.e., soil, sediment, and groundwater), and the types of contaminants of concern (COCs) in those media. The evaluation also included vapor intrusion mitigation remedies.

The SRR compiles data on remedies and presents separate analyses for contaminants overall and contaminants in select media (soil, sediment and groundwater). This edition also includes a separate analysis of remedy and response action data for large sediment sites.

Dredging PCB-Contaminated sediment on the Hudson River

For the majority (78 percent) of the 1,540 Superfund sites with decision documents available, treatment has been selected, often in combination with other remedies. Most of these sites have more than one contaminated media, most frequently groundwater and soil. Most sites also have different types of contaminants of concern (COCs): more than half of sites address volatile organic compounds (VOCs), semivolatile organic compounds (SVOCs) and metals, while a quarter of sites address two of these groups.

For FYs 2012 to 2014, remedies were selected in 308 decision documents, including 242 RODs and ROD Amendments, and 66 ESDs with remedial components. Of the 308 decision documents, 188 (61 percent) include a remedy for source materials (such as soil and sediment) and 160 (52 percent) for groundwater. Remedies were also selected for soil gas and air related to vapor intrusion.

Source Remedies

For this three-year period, nearly half of decision documents with source remedies include treatment. A quarter of all source decision documents include in situ treatment. Soil vapor extraction, chemical treatment, and in situ thermal treatment are the most frequently selected in situ treatment technologies for sources with soil being the most common source medium addressed. Physical separation, recycling, and solidification/stabilization (S/S) are the most common ex situ treatment methods. Metals, polycyclic aromatic hydrocarbons (PAHs) and halogenated VOCs are the COCs most commonly addressed.

Table 1: Summary of Source Control Remedies

Treatment
• Chemical, biological, or physical means to reduce toxicity, mobility, or volume of contaminated source media

• Can be either in situ or ex situ

• examples include chemical treatment and in situ thermal treatment

On-site containment
• Examples include the use of caps, liners, covers, and landfilling on site
Off-site disposal
• Includes excavation and disposal at an off-site facility
Monitored natural attenuation (MNA)
• Reliance on natural processes

• Natural attenuation processes may include physical, chemical, and biological processes

Monitored natural recovery (MNR)
• Reliance on natural processes to reduce risk from sediments

• Natural attenuation processes may include physical, chemical, and biological processes

Enhanced monitored natural recovery (EMNR)
• Combines natural recovery with an engineered approach for sediments

• Typically includes placing a thin layer of clean sediment to accelerate the recovery process

Institutional controls
• Nonengineered instruments, such as administrative and legal controls, that help minimize the potential for human exposure to contamination and protect the integrity of the remedy

• Examples for source media include land use restrictions and access agreements

Other
• Source control remedies that do not fall into the categories of source control treatment, on-site containment, off-site disposal, MNA, MNR, EMNR, or engineering controls

• Examples include wetlands replacement and shoreline stabilization

Sediment Remedies

Of the 188 recent source decision documents, 39 include a remedy for sediments. Most of the sediment decision documents (87 percent) include dredging, excavation, off-site disposal or on-site containment as part of the selected remedy. Some treatment was also selected — for example, in situ amended caps and ex situ and in situ S/S. Examples of other remedies include wetlands replacement and enhanced or monitored natural recovery (EMNR or MNR). Two-thirds of the sediment decision documents include institutional controls (ICs). Metals, PAHs and polychlorinated biphenyls are the COCs most frequently addressed.

EPA also analyzed newly acquired remedy and response action data on the largest sediment sites, known as Tier 1 sediment sites. The data include 112 actions for 66 sites. Some of these actions have progressed to design or implementation. Most remedies for these sites include dredging and excavation (84 percent), 48 percent include residual caps, and 29 percent include engineered caps designed to isolate contaminants from the waterway. A quarter of the Tier 1 sites include MNR and 18 percent include EMNR.

The U.S. EPA analyzed the contaminants of concern (COCs) addressed by sediment remedies in recent decision documents.  Over three-quarters of these documents include metals. PCBs and PAHs are the next most frequent categories of COCs with 44 percent each, as seen in the Figure below.

Figure 1: Detailed COCs in Decision Documents with Sediment Remedies

Groundwater Remedies

For the 160 groundwater decision documents signed in FYs 2012 to 2014, the groundwater remedies continue to be primarily a mix of in situ treatment, pump and treat (P&T), and monitored natural attenuation; most also include ICs. The use of in situ groundwater treatment continues to rise and is now selected in over half of groundwater decision documents. Of these, bioremediation and chemical treatment remain the most frequently selected. The majority of in situ bioremediation remedies specify anaerobic bioremediation, and more than half of chemical treatment remedies specify in situ chemical oxidation. The selection of P&T in groundwater decision documents has decreased significantly since the early 1990s and reached its lowest, 17 percent, in FY 2014. Containment technologies (vertical engineered barriers such as slurry walls) were selected at a few sites. By far, halogenated VOCs (primarily chlorinated VOCs) are the most common type of groundwater COC, addressed in 72 percent of recent groundwater decision documents.

Table 2. Summary of Groundwater and Vapor Intrusion Remedy Categories

Groundwater
In situ treatment
• Treatment of groundwater in place without extraction from an aquifer

• Examples include in situ chemical oxidation and in situ bioremediation

Pump and treat (P&T)
• Pumping of groundwater from a well or trench, followed by aboveground treatment

• Examples of aboveground treatment include air stripping and granular activated carbon

Monitored natural attenuation (MNA)
• Reliance on natural attenuation processes

• Natural attenuation processes may include physical, chemical, and biological processes

Containment
• Containment of groundwater using a vertical, engineered, subsurface, impermeable barrier
Institutional controls
• Examples include drilling restrictions and water supply use restrictions
Alternative water supply
• Examples include installing new water supply wells, providing bottled water or extending a municipal water supply
Other
• Groundwater remedies that do not fall into the categories of in situ treatment, P&T, MNA, containment, institutional controls, or alternative water supply

• Examples include drainage/erosion control and wetlands restoration

Vapor intrusion
Mitigation
• Mitigation of soil gas or indoor air to reduce exposure to vapor contamination in buildings

• Examples include active depressurization technologies and passive barriers

Institutional controls
• Examples include land use restrictions and vapor intrusion mitigation for new buildings

Vapor Intrusion Remedies

EPA selected vapor intrusion mitigation for existing structures in nine of the recent decision documents, and ICs for either existing structures or future construction in 34 of these documents. Some ICs restrict the future use of structures to avoid vapor intrusion exposure and others require the installation of mitigation systems as part of future construction. Active depressurization was the most common mitigation method specified, followed by passive barriers and subslab ventilation systems.

Combined and Optimized Remedies

In this report, the U.S. EPA also discusses the use of combined remedies and optimization reviews. The combined remedy highlights provide examples of recent decision documents where remedies are combined spatially or in sequence. The optimization highlights provide examples of how optimization efforts have informed remedy decisions in recent decision documents.

The remedy and site information provided in this report can help identify program needs for expanded technical information and support. For example, growing use of in situ groundwater technologies suggests the need for additional knowledge and support associated with those technologies. This analysis also provides information of value to stakeholders including technology developers; consulting and engineering firms; and federal, state, and tribal remediation professionals. In particular, developers and service providers can gain insight into the demand for specific remedial technologies.

 Conclusions

The analysis of most recent Superfund decision documents shows continued selection of a full range of treatment, containment, and disposal technologies and approaches for both source material and groundwater. Selection of some remedies is increasing in frequency (such as in situ groundwater technologies), while others are decreasing (such as pump-and-treat). Remedial approaches, including in situ bioremediation, are often combined in time or space to address different areas of the site or applied sequentially. Remedy optimization and reevaluation has resulted in changes to previously selected or implemented cleanup approaches. Overall, most Superfund sites contain different types of COCs: more than half of sites with remedies address VOCs, SVOCs, and metals/metalloids, and almost a quarter of sites address two of these groups.

 

 

Successful Demonstration of Enhanced Soil Vapour Extraction

Researchers at Integrated Science & Technologies Inc. recently presented the findings from a field demonstration project that showed that enhanced soil vapour extraction significantly reduced the concentration of 1,4-Dioxane in soil.

1,4-Dioxane is often called simple dioxane because the other dioxane isomers (1,2- and 1,3-) are rarely encountered.  1,4-Dioxane is a synthetic industrial chemical that is completely miscible in water.  It is used as a solvent for a variety of applications.  1,4-Dioxane is a likely contaminant at many sites contaminated with certain chlorinated solvents (particularly 1,1,1-trichloroethane [TCA]) because of its widespread use as a stabilizer for chlorinated solvents

With respect to remediation, some 1,4-dioxane can be removed from pore water found in the vadose zone (unsaturated zone) in the subsurface by conventional soil vapor extraction (SVE), remediation is typically inefficient.  SVE extracts vapors from the soil above the water table by applying a vacuum to pull the vapors out.

SVE is inefficient at removing 1,4-dioxane from pore water in the subsurface vadose zone.  1,4-dioxane has a low Henry’s Law constant at ambient temperature.  This means that there is a low concentration of dissolved 1,4-dioxane gas proportional to its partial pressure in the gas phase.

To enhance the extraction for 1,4-dioxane in the subsurface, the researchers used heated air injection and more focused SVE extraction (XSVE).  The pilot teste was conducted at the former McClellan Air Force Base located in the North Highlands area of Sacramento County, 7 miles (11 km) northeast of Sacramento, California.

Soil Vapor Extraction unit at former McClellan Air Force Base, Calif. (U.S. Air Force Photo by Scott Johnston)

The pilot test consisted for four peripheral heated air injection wells of the XSVE system surrounded a 6.1 m x 6.1 m x 9.1 m deep treatment zone with a central vapor extraction well.

Soil temperature measurements were taken during the pilot test.  Soil temperatures reached as high as ~90°C near the injection wells after 14 months of operation and flushing of the treatment zone with ~20,000 pore volumes of injected air.  Results post treatment showed dioxane reductions of ~94% and ~45% decrease in soil moisture.  See additional information in slides at http://www.contaminantssummit.com/images/presentations/3_RobHinchee.pdf .

The Supreme Court of Canada to Decide who pays to Clean-up Toxic Industrial Sites

The Supreme Court of Canada is hearing a controversial case this week concerning who is responsible for cleaning up toxic industrial sites when a company goes bankrupt.

At stake is potentially billions of dollars in environmental clean-up costs. And entities ranging from governments to Canada’s big banks to oil and gas companies and farmers are all looking to ensure that they don’t end up on the hook for cleaning up toxic sites – many of them in remote rural and northern areas of the country.

The case itself focuses on a small Alberta oil company, Redwater Energy, which entered creditor protection in 2015. Only a few of the company’s assets had value, so the bank wanted to sell those wells to recover some of its debt and abandon the rest of the oil and gas sites. The question became whether Redwater’s assets should help pay its debts or be used to pay for the cleanup cost of its worthless oil and gas wells?

The case will address a fundamental public policy dilemma about what happens when a resource company bites the dust. For instance, every mine in the country has environmental regulations attached to its licence about reclaiming the site when the mine closes.

But if the company goes belly up, does the bank take over those end-of-life responsibilities? If not, is the site abandoned or do taxpayers pick up the hefty tab?

The question for the Government of Alberta and area farmers that had Redwater oil and gas wells on their land became whether Redwater’s assets should help pay its debts or be used to pay for the clean-up cost of its worthless and contaminated work sites?

The Supreme Court case addresses a fundamental public policy dilemma about what happens when a resource company fails. Every mine operation in Canada has environmental regulations attached to its licence about reclaiming the site when the mine closes. But if the company goes belly up, does the bank take over those end-of-life responsibilities? If not, is the site abandoned or do taxpayers pick up the hefty tab when the provincial government pays to clean it up? And how much cost should farmers and other landowners bare for clean-up and reclamation costs?

“We need to be able to ensure the people of Alberta, collectively, are protected,” Alberta Premier Rachel Notley told reporters earlier this week.

The Alberta Energy Regulator (AER) says there are approximately 1,800 abandoned oil and gas sites in that province alone and pegs the cost to remediate them at $8.6 billion.

If the Supreme Court sides with previous court rulings, the AER will likely respond by increasing the orphan levy imposed on well licensees. However, a portion of the expense will inevitably fall to the provincial government, and thus to taxpayers. But if the Supreme Court decides to reverse the decision, it will create hesitancy among lenders. Financial institutions will likely respond by tightening their purse strings as they begin pricing the risk into new loans made out to the industry.

This case has consequences that reach far beyond one small energy company. The Redwater case could act as precedent in other provinces. If the previous rulings are upheld, it will send a clear signal to natural resource companies’ creditors that bankrolling fossil fuel infrastructure, mining projects, and pulp and paper mills without accounting for clean-up costs is not only acceptable, but encouraged in a legal climate where the public—not the polluter—pays.

“The Redwater decision impacts Alberta’s constitutional right to manage its own resources,” said AER spokeswoman Cara Tobin, adding that “By rejecting the polluter pays principle that underlies virtually all of Alberta’s oil and gas legislation, it’s shifted liability from the polluter to innocent third parties and the public.”

The provincial governments of Ontario, which currently has about 2,400 oil and natural gas producing wells, along with British Columbia and Saskatchewan have also joined the Supreme Court Case, which will be heard in Ottawa this week. The Canadian Association of Petroleum Producers is also an intervener in the legal case.

Who is Charge of Harbour Clean-ups in Ontario?

As reported by the CBC, Environment and Climate Change Canada (ECCC) does not consider itself as the lead for the clean-up of Hamilton Harbour or Thunder Bay harbour.  ECCC says, while it is leading an ongoing harbour cleanup in Hamilton, it’s not a role the federal agency usually assumes.

That comes as proponents of cleaning up historical pollution in the harbour in Thunder Bay, Ont., try and sort out who is responsible for spearheading similar efforts in the northwestern Ontario city.

“If your question is, does it need a champion? It absolutely does,” Hamilton Mayor Fred Eisenberger said of the importance that an organization with jurisdiction over a polluted site push for a cleanup. “It needs one organization to keep pushing it along.”

“If it continues to be work that is just secondary work for someone off the corner of their desk, then it’s going to be a long, hard, arduous process.”

Efforts to clean up historical industrial pollution at the Randle Reef site in Hamilton’s harbour date back at least 15 years, said Eisenberger, who also used to be the chair of the board for the Hamilton Port Authority.  For years, he said, the port effectively served the lead agency role, coordinating local stakeholders and senior levels of government to move the project forward.

Environment Canada took the reins well into the project’s lifespan, according to Eisenberger and a spokesperson with the federal agency, and only after the involvement of the Hamilton port — who owns the harbour bed at Randle Reef.

In Thunder Bay, determining who should be that advocate has been difficult; the water lots where 400,000 cubic metres of mercury-contaminated pulp fibre sit in the harbour’s north end are owned by Transport Canada but administered by the Thunder Bay Port Authority.

Transport Canada has told CBC News spearheading a cleanup is up to the port, while port officials say they’ve been told by Transport Canada to advise on — not lead — remediation efforts.  The port has pointed to Environment Canada as the most appropriate lead agency, citing its role in Hamilton.

Approximate Area of Contaminated Sediment in Thunder Bay Harbour

‘No standard model’

Just because Environment Canada takes a leadership role in one project doesn’t necessarily mean it will in all cases, a spokesperson with the agency said.

“There really is no standard model for remediating contaminated sites other than that governments try to apply, where possible, the polluter-pay principle,” Jon Gee, Environment Canada’s manager of the Great Lakes area of concern wrote in an email to CBC News.

In Thunder Bay, the industrial companies largely responsible for the legacy pollution no longer exist.

Environment Canada’s lead role in Hamilton was the result of “a long negotiation between the Government of Canada and the other organizations,” Gee wrote. “It is not a role that the Department usually undertakes.”

The jurisdictional confusion in Thunder Bay has caught the attention of at least one legislator in the area.  Officials with the office of Thunder Bay-Superior North MP Patty Hajdu said she has met with members of the Thunder Bay Remedial Action Plan’s public advisory committee and that she will also discuss the matter with the federal ministers of transport and the environment.

Construction of the Randle Reef cleanup project in Hamilton Harbour

Gee said Environment Canada “remains committed” to working with government and other stakeholders on the project.

In Hamilton’s case, funding for the $139 million Randle Reef project is being split among the federal and provincial governments, as well as Hamilton, Burlington, the Hamilton Port Authority and Stelco, a steel company based in Hamilton. It’s expected to be complete in 2022.

In Thunder Bay, a number of remediation options were presented in 2014 to the public, with feedback going into a report.  Environment Canada has said no preferred option was identified because there is no lead agency on the project. Cost estimates at the time ranged anywhere from $30 million to $90 million.

Status of Hamilton Harbour Clean-up

As reported in the Hamilton Spectator, Hamilton Harbour still has an undetermined number of years to go before it can meet water quality and ecological standards acceptable to the International Joint Commission.  The Canada/U.S. bilateral agency that oversees cross-border water issues said in a statement this week that — after three decades — it is growing restless about the slow pace of Great Lakes water improvements on both sides of the border.

“The IJC identifies specific gaps in achieving the human health objectives … for drinkable, swimmable and fishable waters, and recommends that the governments set an accelerated and fixed period of time for effectively achieving zero discharge of inadequately treated or untreated sewage into the Great Lakes,” the agency says.

More than 30 years ago, the commission deemed 43 “areas of concern” on the Great Lakes — including Hamilton Harbour — and only seven sites have so far been delisted, three of which are in Canada.

Two big projects currently underway in Hamilton harbour are expected to lead to major improvements in its water quality. The first is the ongoing work encapsulating the highly toxic coal tar blob at Randle Reef. The Randle Reef Contaminated Sediment Remediation Project is scheduled for completion in 2022 at a total cost of $138.9 million spread out over three phases.

The other ongoing big-ticket item is Woodward Avenue Wastewater Treatment Plant, which is in the second year of a five-year, $340-million upgrade that will raise treatment to a modern tertiary level. This is expected to dramatically reduce discharges into the bay with most notably a reduction of 65,000 kilograms of phosphorus per year.

Status of Thunder Bay Harbour Clean-up

As reported in TB News Watch, the recommendations in a clean-up report of mercury in Thunder Bay, Ontario harbour have yet to be acted upon.  It has been more than three years since a consultant’s report identified options for the management of 400,000 cubic metres (14 million cubic feet) of mercury-contaminated sediment.

Thunder Bay is located at the northwest corner of Lake Superior and has a population of approximately 110,000.

The source of the mercury in the sediment was industrial activity along Thunder Bay’s north harbour for over 90 years including pulp and paper mill operations.  The sediment is contaminated with mercury in concentrations that range from 2 to 11 ppm at the surface of the sediment to 21 ppm at depth and ranging in thickness from 40 to 380 centimeters and covering an area of about 22 hectares (54 acres).

The preferred solution in the consultant’s report was to dredge the sediment and transfer it to the Mission Bay Confined Disposal Facility (CDF) at the harbour’s south end.  That came with an estimated cost of $40 million to $50 million, and was considered the best choice based on factors such as environmental effectiveness and cost.  The consultants also looked at other options, including building a new containment structure on the shoreline adjacent to the former Superior Fine Papers mill.

U.S. EPA Sees New Challenges Ahead for Superfund

by  Loren R. Dunn and Eric L. Klein, Beveridge & Diamond PC

The U.S. EPA released a four-year “strategic plan” in mid-February that continues to emphasize the Superfund program as one of Administrator Scott Pruitt’s top priorities.  While it has been clear since last summer’s Superfund Task Force report that the agency’s new leadership wants to accelerate Superfund site cleanups, the agency’s new strategic plan reveals for the first time that the U.S. EPA also sees emerging challenges ahead for Superfund.

“A number of factors may delay cleanup timelines,” the agency wrote in its strategy document.  These factors include the “discovery of new pathways and emerging contaminants” such as vapor intrusion and per- and polyfluoroalkyl substances (PFAS), and new science such as “new toxicity information or a new analytical method.”

Photo Credit: Michael Paulsen / Houston Chronicle

According to the strategic plan, the emergence of this kind of new information can reopen previously settled remedy determinations – and the Superfund sites that still remain on the National Priorities List (NPL) already tend to be the harder cases, with more difficult patterns of contamination and more complex remedies.  The U.S. EPA flagged in particular its waste management and chemical facility risk programs, where “rapidly changing technology, emerging new waste streams, and aging infrastructure present challenges[.]”

It remains to be seen whether the agency’s cautions in the Superfund section of its strategy document represent a meaningful shift in the agency’s frequently-stated intention to reinvigorate the Superfund program.  Early in his tenure, Mr. Pruitt charged his Superfund Task Force with generating a series of recommendations centered around Mr. Pruitt’s goals for Superfund: faster cleanups, the encouragement of cleanup and remediation investments by PRPs and private investors, and a process centered on stakeholder engagement and community revitalization.  In December 2017, in response to one of the Task Force’s recommendations, the agency released a list of 21 high-priority NPL sites that Mr. Pruitt targeted for “immediate and intense attention,” according to an U.S. EPA press release.  The cautionary notes in this week’s strategic plan are a subtle shift in tone for the U.S. EPA.

At the same time, the document also sets forth a plan for improving the consistency and certainty of EPA’s enforcement activities in the regulated community.  It remains to be seen how U.S. EPA intends to achieve consistency while being responsive to state and tribal interests.

These goals, of course, will depend on the details of implementation, which are not set forth in the strategic plan.  And such details will depend on the agency’s budget, which remains in flux for 2019 and beyond.  For example, U.S. EPA’s proposed budget for fiscal year 2019 sought a roughly $327 million cut in the Superfund program, but the funds were added back into the budget proposal as part of last-minute budget agreement reached in Congress last week, securing the program’s funding in the short-term.   Last year, the administration proposed a 30% cut in the agency’s funding  but Congress balked and eventually approved a budget that cut roughly 1%.

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About the Authors

Loren R. Dunn represents regional and national companies at locations throughout the country in environmental regulation and litigation issues.  Loren’s environmental projects have involved hazardous waste and large multi-party toxics cleanup sites, including marine and fresh water sediment sites, landfills, and natural resource damages claims. He has also conducted extensive work obtaining permits for key facility operations. He has particularly deep knowledge of the following industries: manufactured gas facilities, regulated utilities, smelters and metals refineries, pesticide sites, and large area contamination sites.

Eric L. Klein is an environmental civil litigator and regulatory counselor in the Washington, D.C. office of Beveridge & Diamond, P.C.  He has handled cases in state and federal courts throughout the United States, litigating a variety of complex civil and commercial matters before juries, trial and appellate courts, arbitrators and administrative tribunals.  Mr. Klein frequently litigates both statutory and common law claims, and specializes in challenging and defending technical experts in the litigation of complex environmental torts.

This article was first published on the Beveridge & Diamond PC website.

Tracing Contaminated Soil in Quebec

As reported in LaPresse, the Quebec Environment Minister, Isabelle Melancon, recently announced that the Quebec government will soon begin a pilot project to improve the “traceability” of contaminated soil from construction sites.

An earlier story in LaPresse stated the provincial authorities lost track of 3,000 tonnes of contaminated soil from a the Baril School in Hochelaga-Maisonneuve.  Management of the soil had been taken over by the company of a former Hell’s Angels partner, OFA Environment Management.

Remediation work at the Baril Elementary School in Hochelaga-Maisonneuve, Montreal

Soils were to be shipped to a Quebec-based company, accredited by the Quebec Ministry of the Environment. Instead, they were moved to another company with the same name, but located near East Hawkesbury, Ontario.  The firm apparently operated from a place that does not have an address.

There is no prohibition on shipping contaminated soil to Ontario, where the rules governing their treatment are less stringent than in Quebec. But in the case of the Hochelaga-Maisonneuve school, the contract specified that the floors were to be arranged in accordance with the Quebec law, according to the company in charge of supervising the construction site.

“We can not pretend that nothing is happening,” said Melançon at the end of a meeting of the Council of Ministers.

Last fall, La Presse revealed that “highly contaminated” soils had been dumped illegally on the banks of the Achigan River in Sainte-Sophie, in the Laurentians.

“[You have to] know where it’s going, what happened,” said the minister.  “We have to follow the soil better because, as we can see, this is the second horror story I am confronted with. ”

Quebec is currently in talks with potential suppliers to set up a “traceability” program. The pilot project should be launched shortly.

US officials consider robots to prevent mine spills

As reported by the Associated Press, Crumbling mine tunnels awash with polluted waters perforate the Colorado mountains and scientists may one day send robots creeping through the pitch-black passages to study the mysterious currents that sometimes burst to the surface with devastating effects.

One such disaster happened at the inactive Gold King Mine in southwestern Colorado in 2015, when the United States Environmental Protection Agency (U.S. EPA) accidentally triggered the release of 3 million gallons of mustard-colored water laden with arsenic, lead and other toxins. The spill tainted rivers in three states.

a man in a hard hat sprinkling lime (white power) into a pool of muddy water next to a culvert. Here, lime is added to a settling pond to assist in the pH adjustment of the water (Credit: Eric Vance/U.S. EPA)

Now the U.S. EPA is considering using robots and other sophisticated technology to help prevent these types of “blowouts” or clean them up if they happen. But first, the agency has to find out what’s inside the mines, some of which date to Colorado’s gold rush in the 1860s.

Wastewater laden with toxic heavy metals has been spewing from hundreds of inactive mines nationwide for decades, the product of complicated and sometimes poorly understood subterranean flows.

Mining creates tainted water in steps: Blasting out tunnels and processing ore exposes long-buried, sulfur-bearing rocks to oxygen. The sulfur and oxygen mix with natural underground water flows to create sulfuric acid. The acidic water then leaches heavy metals out of the rocks.

To manage and treat the wastewater, the U.S. EPA needs a clear idea of what’s inside the mines, some of which penetrate thousands of feet into the mountains. But many old mines are poorly documented.

Investigating with robots would be cheaper, faster and safer than humans.

“You can send a robot into an area that doesn’t have good air quality. You can send a robot into an area that doesn’t have much space,” said Rebecca Thomas, project manager for the U.S. EPA’s newly created Gold King Superfund site, officially known as the Bonita Peak Mining District.

Instruments on the robots could map the mines and analyze pollutants in the water.

They would look more like golf carts than the personable robots from “Star Wars” movies. Hao Zhang, an assistant professor of computer science at the Colorado School of Mines, envisions a battery-powered robot about 5 feet long with wheels or tracks to get through collapsing, rubble-strewn tunnels.

Zhang and a team of students demonstrated a smaller robot in a mine west of Denver recently. It purred smoothly along flat tunnel floors but toppled over trying to negotiate a cluttered passage.

“The terrain is pretty rough,” Zhang said. “It’s hard for even humans to navigate in that environment.”

A commercial robot modified to explore abandoned mines — including those swamped with acidic wastewater — could cost about $90,000 and take three to four years to develop, Zhang said.

Robot in underground mine (Photo Credit: Tatlana Flower/AP File)

Significant obstacles remain, including finding a way to operate remotely while deep inside a mine, beyond the reach of radio signals. One option is dropping signal-relay devices along the way so the robot stays in touch with operators. Another is designing an autonomous robot that could find its own way.

Researchers are also developing sophisticated computerized maps showing mines in three dimensions. The maps illustrate where the shafts intersect with natural faults and provide clues about how water courses through the mountains.

“It really helps us understand where we have certainty and where we have a lot of uncertainty about what we think is happening in the subsurface,” said Ian Bowen, a U.S. EPA hydrologist. “So it’s a wonderful, wonderful tool.”

The U.S. EPA also plans to drill into mines from the surface and lower instruments into the bore holes, measuring the depth, pressure and direction of underground water currents.

Tracing the currents is a challenge because they flow through multiple mines and surface debris. Many tunnels and faults are connected, so blocking one might send water out another.

“You put your finger in the dike here, where’s the water going to come out?” Thomas said.

Once the U.S. EPA finishes investigating, it will look at technologies for cleansing the wastewater.

Options range from traditional lime neutralization — which causes the heavy metals dissolved in the water to form particles and drop out — to more unusual techniques that involve introducing microbes.

The choice has consequences for taxpayers.  If no company is found financially responsible, the EPA pays the bill for about 10 years and then turns it over to the state.  Colorado currently pays about $1 million a year to operate a treatment plant at one Superfund mine. By 2028, it will pay about $5.7 million annually to operate plants at three mines, not including anything at the Bonita Peak site.

The U.S. EPA views the Colorado project as a chance for the government and entrepreneurs to take risks and try technology that might be useful elsewhere.

But the agency — already dealing with a distrustful public and critical politicians after triggering the Gold King spill — said any technology deployed in Colorado will be tested first and the public will have a chance to comment before decisions are made.

“We’re certainly not going to be in the position of making things worse,” Thomas said. “So when I say we want to take risks, we do, but we want to take calculated, educated risks and not worsen water quality.”

Transport Canada publishes quick reference guide for first responders

As part of the Government of Canada’s ongoing commitment to providing first responders and emergency planners with the tools and resources they need to respond to a dangerous goods emergency, Transport Canada convened a meeting of the Steering Committee on First Responder Training today.

The meeting brought together stakeholders and government representatives to help steer the development of a national training curriculum for personnel who respond to railway incidents involving the transportation of dangerous goods.

At the meeting, Transport Canada announced the publication of a quick reference guide, You’re Not Alone!, which is designed to help first responders at the scene of an incident involving flammable liquids.  The guide outlines important safety measures and groups them into five steps as part of emergency planning.

The guide was added to Safety Awareness Kits published by Transport Canada in 2017 and is aimed at first responders and communities.

Transport Canada published these kits and the quick reference guide to raise community awareness of existing available resources on dangerous goods.

The Honourable Marc Garneau, Minister of Transport, in a statement said: “Communities and first responders need to know that if a dangerous goods incident occurs, they’re not alone, and there are resources available to help. The safe transportation of dangerous goods by rail remains one of my top priorities.  We all share a common goal of making sure everyone is prepared for a dangerous goods emergency and the ‘You’re Not Alone!’ quick reference guide is an important piece of that preparation.”

The reference guide can be accessed here.