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Brownfields Road Map (U.S. EPA, 2018)

Prepared by the U.S. Environmental Protection Agency (U.S. EPA) Office of Land and Emergency Management, The Brownfields Road Map 6th Edition breaks down Brownfields site investigation and cleanup into an easy to understand, step-by-step process that provides valuable and up-to-date information to a wide range of Brownfields stakeholders involved in or affected by the redevelopment of Brownfields sites. It introduces readers to a range of considerations and activities, and provides links to online technical resources and tools.

The first edition of the Road Map, published in 1997, provided a broad overview of the U.S. EPA Brownfields Program and an outline of the steps involved in the cleanup of a Brownfields site. Designed primarily for stakeholders who were unfamiliar with the elements of cleaning up a Brownfields site, the Road Map built awareness of the advantages offered by innovative technologies. As the EPA Brownfields Program
matured, the second (1999), third (2001), and fourth (2005) editions were published to update information and resources associated with the program, innovative technologies, and emerging best practices. The fifth edition, published in 2012, streamlined the publication to make it more accessible to users, providing additional resources covering new technology applications and methods.

This edition builds off the streamlined approach of the fifth edition, providing updated content and guidance on the Brownfields remediation process. New features include an updated list of “Spotlights,” highlighting and describing key issues. This edition provides updated information on Brownfields funding and best management practices (BMPs), with guidance on how to incorporate greener cleanups and new standards into the cleanup process.

This edition of the Road Map will help:

  • New and less experienced stakeholders. The Road Map will help these users learn about the technical aspects of Brownfields by introducing general concepts and methods for site investigation and cleanup.
  • Decision-makers who are familiar with the EPA Brownfields Program but are also interested in obtaining more detailed information. The Road Map provides these users with up-to-date information about the applicability of technologies and access to the latest resources that can assist them in making technology decisions. In addition, it highlights BMPs that have emerged in recent years.
  • Community members. The Road Map helps to encourage community members to participate in the decision making process by providing information about the general site cleanup process and tools and alternatives to site cleanup, as well as guidelines and mechanisms to promote community involvement.
  • Tribal leaders. The Road Map offers information on technical and financial assistance specific to tribes for implementing cleanup and restoration activities on tribal lands, as well as successful remediation examples highlighting the potential community restoration opportunities associated with Section 128(a) Response Program funding.
  • Stakeholders who hire or oversee site cleanup professionals. The Road Map includes information to help stakeholders coordinate with many different cleanup practitioners, such as environmental professionals, cleanup service providers, technology vendors or staff of analytical laboratories. The Road Map provides these stakeholders with a detailed understanding of each phase in a typical Brownfields site cleanup and presents information about the roles that environmental practitioners play in the process.
  • Regulators. The Road Map will increase the understanding by regulatory personnel of site characterization and cleanup technologies and approaches. The Road Map also serves as a resource that regulators can use to provide site owners, service providers and other stakeholders with useful information about the EPA Brownfields Program. The Road Map also provides links and pointers to additional information on specific technologies, approaches, and issues.
  • Other potential Brownfields stakeholders. The Road Map helps other stakeholders, such as financial institutions and insurance agencies, by providing information for their use in assessing and minimizing financial risks associated with Brownfields redevelopment.

The Road Map draws on the EPA’s experiences with Brownfields sites, as well as Superfund sites, corrective action sites under the Resource Conservation and Recovery Act (RCRA), and underground storage tank (UST) sites to provide technical information useful to Brownfield stakeholders. Specific conditions—such as the nature and extent of contamination, the proposed reuses of the property, the financial resources available, and the level of support from neighboring communities—vary from site to site. Readers of the Road Map are encouraged to explore opportunities to use the BMPs described in the following pages in accordance with applicable regulatory program requirements. The use of BMPs and site characterization and cleanup technologies may require site specific decisions to be made with input from state, tribal, and/or local regulators and other oversight bodies.

 

Examples of Groundwater Remediation at National Priorities List Sites

The U.S. EPA recently issued a report that report highlights a select number of example National Priorities List (NPL) sites where EPA has used innovative and established technologies to restore groundwater for use as a source of drinking water. In these examples groundwater was successfully restored for drinking water use at 17 NPL sites and significant progress toward groundwater restoration was made at an additional 13 NPL sites where contaminants remain above safe drinking water levels. These sites demonstrate how the Superfund program can overcome challenges related to difficult contaminants of concern and complex hydrogeologic settings (May 2018, 114 pages).

The report documents where innovative and established technologies have been used to restore groundwater to beneficial use. This report includes a select number of example National Priorities List (NPL) sites where the remedial action objective (RAO) and associated cleanup levels were to restore groundwater for use as a source of drinking water. Groundwater was restored for use as drinking water at 17 NPL sites and significant progress toward groundwater restoration has been made at an additional 13 NPL sites where contaminants remain above safe drinking water levels in only a few groundwater wells. The RAO of restoring groundwater for beneficial use was achieved under the Superfund program, including the successful treatment of groundwater to federal and state maximum contaminant levels for drinking water. These sites are examples of where the Superfund program overcame difficult remediation challenges, such as groundwater contaminated with chlorinated solvents (including the presence of dense non-aqueous phase liquids [DNAPLs]) and complex hydrogeologic settings.

One of 114 Superfund sites in New Jersey, former Edgewater manufacturing site Quanta Resources has been on the National Priorities List since 2002.

The NPL sites discussed in this report were selected based on several criteria, including the use of innovative cleanup technologies or approaches to remedy concentrated groundwater plumes. The most commonly occurring contaminants of concern at these sites were chlorinated volatile organic compounds, which were present at 26 of the 30 sites. The less frequently occurring contaminants included metals, non-chlorinated volatile organic compounds, semivolatile organic compounds, polychlorinated biphenyls, and polycyclic aromatic hydrocarbons, with dioxins or pesticides only present at one site.

The restoration of groundwater was achieved most often by combining remedial technologies. For example, soil excavation and groundwater extraction and treatment (i.e., pump-and-treat) were used to restore groundwater at 17 of the 30 NPL sites. Given that many of these sites were cleaned up during the period from 1983 to 2000, the remedies used at these sites represented state of the art technologies at that time. These traditional technologies were often modified or replaced with innovative technologies such as in situ bioremediation, in situ chemical oxidation (ISCO), in situ thermal treatment (ISTT) or monitored natural attenuation (MNA) at some sites. The application of remedial technologies at these sites decreased contaminant concentrations from 90% up to 99.99% (i.e., one to more than four orders of magnitude).

DNAPLs were found or suspected at eight of the 30 sites. A combination of excavation and pumpand-treat was used most often to remediate these sites along with at least one other technology or approach such as vertical engineered barrier, air sparging, in situ bioremediation, STT, or MNA. Of the eight DNAPL sites, groundwater was restored for use as drinking water at three sites and significant progress towards restoration has been made at five sites. These findings indicate that the Superfund program has achieved the cleanup of sites with DNAPLs.

The time required to restore groundwater for use as drinking water at the 17 NPL sites ranged from three to 27 years with a median time of eight years. Cleanup time generally increased as the amount of contaminant removed increased with the exception of four sites where contaminant concentrations were decreased by nearly 99.99% in less than eight years. Cleanup times were generally shorter for sites with less complex hydrogeologic settings with the exception of three sites with mild heterogeneity that required more than 15 years to restore groundwater. Also, in most cases, cleanup times were shorter for lesser reductions in concentration.

All of the 30 sites, with the exception of two, have achieved the status of sitewide ready for anticipated reuse (SWRAU), and 12 of these sites have been returned to use either in whole or in part. Reuse includes industrial and commercial redevelopment, recreational use, alternative energy use, and lifting of groundwater use restrictions.

View or download at http://www.epa.gov/remedytech/examples-groundwater-remediation-npl-sites.

 

U.S. EPA Guidance Documents Are Not Enforceable Rules Says DOJ

by Van P. Hilderbrand, Jr. and Russell V. Randle at Miles & Stockbridge P.C.

Companies regulated by the U.S. Environmental Protection Agency (U.S. EPA) have long complained that U.S. EPA too often uses guidance documents improperly, both to expand regulatory requirements beyond what the law permits and to avoid judicial review of such expansions. Moreover, regulated parties often argue that the U.S. EPA rigidly enforces such guidance as binding federal rules, but ignores such guidance when it likes. Without expressly referencing the U.S. EPA, the Department of Justice (DOJ) has now taken action that will make it harder for such alleged misuse to occur, whether by the U.S. EPA or by other agencies whose rules the DOJ enforces in federal civil cases through civil penalties and injunctive relief.

Guidance documents serve an essential role in environmental regulation, given the great complexity of the ecosystems to be protected and the intricacies of the industries regulated. The U.S. EPA often publishes policy and guidance documents to clarify enforcement authority, to encourage compliance, and to offer the official interpretation or view on specific issues. Over time, these policies and guidance documents have become a key tool in the DOJ’s enforcement toolbox. DOJ attorneys have used non-compliance with these policies and documents as evidence that the underlying regulation or statute has been violated.

Regulated parties have long objected to this practice because, unlike the underlying regulations, these guidance documents seldom are subject to the notice-and-comment procedures of the Administrative Procedure Act (APA) or judicial review before an enforcement case is brought, when a challenge to the EPA interpretation is a very high stakes gamble.

On January 25, 2018, the DOJ offered the regulated community some relief from this practice. Ironically, it did so in a Policy Memorandum – a guidance document – entitled, “Limiting Use of Agency Guidance Documents in Affirmative Civil Enforcement Cases.” This policy memo prohibits DOJ attorneys from relying on agency guidance documents as the sole basis for their civil enforcement actions. In other words, DOJ attorneys can no longer bring enforcement actions that require compliance with agency policy and guidance in lieu of clearly articulated requirements in properly promulgated and binding federal rules. The Policy Memorandum’s impact across various regulated industries such as healthcare, finance, and tax will differ and remains uncertain; however, we see a particularly significant effect on DOJ’s ability to enforce environmental regulations and statutes administered by the U.S. EPA.

What does the Policy Memorandum say?

The Policy Memorandum memorializes what the regulated community has argued for many years – that “[g]uidance documents cannot create binding requirements that do not already exist by statute or regulation” – and provides a list of how DOJ attorneys may and may not use agency guidance in future and pending affirmative civil enforcement actions. According to the Policy Memorandum, DOJ may not:

  • Use its enforcement authority to effectively convert agency guidance documents into binding rules;
  • Use noncompliance with guidance documents as a basis for proving violations of applicable law in civil enforcement cases; and
  • Treat a party’s noncompliance with an agency guidance document as presumptively or conclusively establishing that the party violated the applicable statute or regulation.

The Policy Memorandum does not impose an absolute bar against using agency guidance; instead, DOJ attorneys may “continue to use agency guidance documents for proper purposes in such cases.” For example, guidance documents are often used as evidence that a regulated party had “requisite knowledge of the mandate.” This use is expressly still allowed. So is the use of guidance documents that simply explain or paraphrase the legal requirements in the four corners of the existing statutes or regulations, as long as the guidance doesn’t create new requirements.

What does the Policy Memorandum mean for the regulated community?

In practice, the new policy may reduce the use of civil enforcement actions to advance new EPA policy interpretations, interpretations which typically push the boundaries of the U.S. EPA’s legal authority. This effect may be particularly noticeable in connection with claimed violations under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund), the Clean Water Act, and the Clean Air Act.

Enforcement under these statutes relies heavily on thousands of pages of the U.S. EPA guidance documents. The interpretations of these guidance documents are often a moving target because very few have been subject to comment by the regulated community and the public or judicial review, as DOJ routinely argues that they are not “really” binding or justiciable.

The Superfund program, in particular, relies upon guidance documents to flesh out its requirements for removal and remedial work, rather than relying upon rules established under APA procedures. The government will have a more difficult time arguing that violations of EPA guidance constitutes a violation of CERCLA requirements; in practice, such guidance often imposes very detailed and sometimes onerous requirements not mentioned in the statute or any implementing regulation.

Similarly, the U.S. EPA and the U.S. Corps of Engineers are no longer relying upon the controversial 2015 rule defining “waters of the United States,” but instead rely upon guidance documents. The DOJ Policy Memorandum may have significant and unanticipated effects in that context, since the court decisions are divided as to what constitutes waters of the United States and what may constitute a jurisdictional wetland subject to permit requirements for dredge and fill work under Section 404 of the Clean Water Act.

It will also make it more difficult for DOJ to enforce settlement documents, consent decrees, and unilateral administrative orders since they are typically based on compliance with requirements discussed in dozens of EPA policies and guidance documents.

Although the DOJ Policy Memorandum does not address the U.S. EPA’s use of its own guidance documents in settlement discussions, in administrative enforcement proceedings, and when issuing notices of violations, DOJ’s announced unwillingness to rely upon the U.S. EPA guidance documents in subsequent civil enforcement actions should restrain such use, and force the U.S. EPA enforcement personnel to focus on clearer potential violations than in the past. That said, nothing in the Policy Memorandum prohibits a regulated party from citing agency guidance documents in its defense.

The Policy Memorandum is part of this Administration’s deregulatory agenda.

DOJ enforcement capability was already constrained by a November 16, 2017 “Prohibition of Improper Guidance Documents” which prevented DOJ from relying on its own published guidance documents. This policy memorandum issued by Attorney General Sessions prohibited DOJ attorneys from:

  • Issuing guidance documents that effectively create rights or obligations binding on the public without undergoing the notice-and-comment rulemaking process;
  • Creating binding standards by which DOJ will determine compliance with existing statutory or regulatory requirements; and
  • Using its guidance documents to coerce regulated parties into taking any action or refraining from taking any action beyond what is required by the terms of the applicable statute or lawful regulation.

It is no secret that the current Administration has set out a broader regulatory reform agenda focused on regulatory rollbacks to reduce unnecessary regulatory burdens. The recent February 2018 Policy Memorandum is an extension of the limitations imposed by the November 16, 2017 memorandum, and follows on the heels of other regulatory reform measures such as the establishment of various reform task forces and Executive Order (EO) 13771, “Reducing Regulation and Controlling Regulatory Costs,” which requires that any new incremental costs associated with a new regulation be offset by eliminating two existing regulations. Either by EO or by DOJ mandate, the current Administration continues to charge ahead with a deregulatory agenda that establishes less-restrictive rules for the regulated community.

Conclusion

As a result of this new policy, successful enforcement by the U.S. EPA and its enforcement counsel at DOJ will have to focus on clearer and it is hoped, more substantive violations of the U.S. EPA rules, and rely far less on requirements sought to be imposed by agency guidance documents. The impacts may be most pronounced in the Superfund and wetlands contexts, but will be a factor in almost every environmental regulatory program, given the complexity of these programs, and the undeniable need for agency guidance about practical implementation

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS.

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About the Authors

Van P. Hilderbrand, Jr. is a member of Miles & Stockbridge  Products Liability & Mass Torts Practice Group.  He focuses his practice on environmental litigation, regulatory compliance issues, and advising on the environmental aspects of business and real estate transactions. His work also includes consulting on renewable energy project development and project finance transactions, conducting due diligence and assisting with permitting issues. He represents clients in a wide range of industries, including energy, manufacturing, consumer products, pharmaceuticals, chemicals, transportation, technology and real estate.

Formerly an associate with Sullivan & Worcester LLP in Washington, D.C., he previously practiced environmental law at Parker Poe Adams & Bernstein LLP in Charlotte, North Carolina.

Russell V. Randle is a seasoned environmental and export control practitioner with decades of experience managing litigation, regulatory compliance and transactional due diligence for his clients.

He has extensive experience with Superfund and contaminated properties, including many on the National Priorities List. Russ also has handled numerous matters arising under the Clean Air Act, Clean Water Act and Oil Pollution Act, as well as antimicrobial issues under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA).

In his export controls and sanctions practice, Russ covers the full spectrum of compliance, enforcement actions and audit issues related to defense trade, financial transfers and non-governmental organizations working in areas affected by U.S. sanctions.

 

This article was first published on the Miles & Stockbridge P.C. website.