Posts

U.S. EPA Updates the Superfund National Priorities List

The U.S. Environmental Protection Agency (U.S. EPA) recently announced that it is adding seven sites to the Superfund National Priorities List (NPL) where releases of contamination pose human health and environmental risks.

The NPL includes the United States’ most serious uncontrolled or abandoned releases of contamination. The list serves as the basis for prioritizing U.S. EPA Superfund cleanup funding and enforcement actions. Only releases at sites included on the NPL are eligible to receive federal funding for long-term, permanent cleanup.

“By adding these sites to the National Priorities List, we are taking action to clean up some of the nation’s most contaminated sites, protect the health of the local communities, and return the sites to safe and productive reuse,” said U.S. EPA Administrator Andrew Wheeler. “Our commitment to these communities is that sites on the National Priorities List will be a true national priority. We’ve elevated the Superfund program to a top priority, and in Fiscal Year 2018, EPA deleted all or part of 22 sites from the NPL.”

The following sites are being added to the NPL:

· Magna Metals in Cortlandt Manor, New York

· PROTECO in Peñuelas, Puerto Rico

· Shaffer Equipment/Arbuckle Creek Area in Minden, West Virginia

· Cliff Drive Groundwater Contamination in Logansport, Indiana

· McLouth Steel Corp in Trenton, Michigan

· Sporlan Valve Plant #1 in Washington, Missouri

· Copper Bluff Mine in Hoopa, California

McLouth Steel Corp in Trenton, Michigan (Photo Credit: CREDIT TRANSKOHR / WIKIMEDIA COMMONS)

Superfund cleanups provide health and economic benefits to communities. The program is credited for significant reductions in birth defects and blood-lead levels among children living near sites, and research has shown residential property values increase up to 24% within 3 miles of sites after cleanup.

Redeveloped Superfund sites can generate a great deal of economic activity. Thanks to Superfund cleanups, previously blighted properties are now being used for a wide range of purposes, including retail businesses, office space, public parks, residences, warehouses, and solar power generation. At 529 Superfund sites returned to productive use, 8,600 businesses operate and 195,000 employees earn more than $13 billion in annual income.

The Superfund Task Force is working to improve the Superfund program. The U.S. EPA has implemented nearly half of the Task Force’s recommendations to expedite site cleanups and redevelopment and expects to complete the remaining recommendations by July 2019.

Source: U.S. EPA

U.S. DOE seeking contractor to provide supplemental organic treatment at Superfund Site

The United States Department of the Energy (U.S. DOE) Washington River Protection Solutions LLC recently issued an Expressions of Interest (EOI) from contractors capable of providing a supplemental organic treatment system for one the 200 Area effluent treatment facility (ETF) at the Hanford Superfund Site.

The Hanford Site is a decommissioned nuclear production complex operated by the United States federal government on the Columbia River in Benton County in the U.S. state of Washington.

The main treatment train at ETF currently eliminates the hazardous characteristics of the waste and allows for delisting the effluent. Beginning around January 2022, the ETF will receive a new wastewater stream that will be generated nearly continuously for a period of ~40 years and is anticipated to contain at least four organic constituents-acetonitrile, acrylonitrile, acetone, and methylene chloride-in concentrations that exceed the expected performance range for the existing system.

Input is requested from Industry to enable an evaluation of an off-the-shelf procurement and a procurement/design activities solution to meet the future requirement. Expressions of interest are due by 9:00 AM PT on May 6, 2019.

More information is available here: https://www.fbo.gov/spg/DOE/CHG/ORP/EOI-KJF-19-04-01/listing.html

About the Hanford Site

Established in 1943 as part of the U.S. Manhattan Project in Hanford, south-central Washington, the site was home to the B Reactor, the first full-scale plutonium production reactor in the world.

Most of the reactors were shut down between 1964 and 1971. The last reactor at the Hanford site operated until 1987. Since then, most of the Hanford reactors have been entombed (“cocooned”) to allow the radioactive materials to decay, and the surrounding structures have been removed and buried.

In 1989, the State of Washington (Dept. of Ecology), the U.S. Environmental Protection Agency (EPA), and the U.S. Department of Energy (DOE) entered into the Tri-Party Agreement which sets targets, or milestones, for cleanup. The U.S. EPA and State of Washington Dept. of Ecology share regulatory oversight based on Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, also referred to as Superfund) and the Resource Conservation and Recovery Act (RCRA).

The U.S. Department of Energy (DOE) Office of River Protection (ORP) operates the 200 Area ETF. The ETF has been treating wastewaters from processing activities at the Hanford Site since 1994. The main treatment train at ETF includes, in order: pH adjustment; coarse filtration; ultraviolet/hydrogen peroxide oxidation (UV/OX); pH adjustment; excess peroxide decomposition; degasification; fine filtration; reverse osmosis (RO); and, ion exchange (IX).

To date, $15 billion (U.S.) has been spent on clean-up efforts at the Hanford site. In 2014, the estimated cost of the remaining Hanford clean was $113.6 billion (U.S.). Clean-up was estimated to occur until 2046. There are over 10,000 workers on site to consolidate, clean up, and mitigate waste, contaminated buildings, and contaminated soil.

U.S. EPA Releases Annual Superfund Program Report for 2018

The United States Environmental Protection Agency (U.S. EPA) recently released a summary report of its accomplishments the 2018 fiscal year. The U.S. EPA has made Superfund a priority of the Agency.

Under the Superfund Program, the U.S. EPA is responsible for cleaning up some of the most contaminated sites in the U.S. and responding to environmental emergencies, oil spills and natural disasters. To protect public health and the environment, the Superfund program focuses on making a visible and lasting difference in communities.

For the 2018 Fiscal Year, the U.S. EPA reported that all or part of 22 sites from the National Priorities List (NPL) were were remediated and deleted from the NPL list.

Regional milestones in the Superfund Program for fiscal year 2018 include:

  • Furthering partnerships with state counterparts and local governments in identifying sites for expedited cleanup activities. (Mississippi Phosphates Corporation Pascagoula, Miss. and Fairfax St. Wood Treaters Jacksonville, Fla.)
  • Stepping up efforts to return sites to productive use and deleting sites from the National Priorities List (NPL). (Davis Timber Company (Hattiesburg, Miss.) Reasor Chemical Company (Castle Hayne, NC) Whitehouse Oil Pits (Whitehouse, Fla.)
  • Enhancing emergency response and preparedness efforts using innovative tools, comprehensive training sessions and rigorous exercises to respond to natural disasters such as Hurricane Florence and Hurricane Michael.

Highlights of EPA’s 2018 accomplishments include:

  • Improving human health for people living near Superfund sites by controlling potential or actual human exposure risk at 32 additional Superfund National Priorities List (NPL) sites and controlling the migration of contaminated groundwater at 29 sites.
  • Deleting 18 full and four partial sites from the NPL – the largest number of deletions in one year since 2005 – signaling to the surrounding communities that U.S. EPA has completed the job of transforming these once highly contaminated areas.
  • Returning sites to communities for redevelopment by identifying 51 additional sites as having all long-term protections in place and meeting our “sitewide ready for anticipated use” designation, the highest annual result since 2013.
  • Completing or providing oversight of 242 Superfund removal actions at sites where contamination posed an imminent and substantial threat to human health and the environment.
  • Quickly and effectively responding to large scale emergencies brought on by hurricanes, wildfires, and other natural disasters in California, North Carolina, Puerto Rico and elsewhere.
  • Moving many sites closer to completion by making decisions that have been delayed, including West Lake Landfill in Bridgeton, Mo.; USS Lead in East Chicago, Ind.; and San Jacinto Waste Pits in Channelview, Texas.

The U.S. EPA Acting Administrator Andrew Wheeler has recused himself from working on 45 Superfund sites as a result of his history of lobbying for International Paper Co. and Xcel Energy Inc., among other companies.

In addition, in July 2018, on the one-year anniversary of the agency’s Superfund Task Force Recommendations, the U.S. EPA issued a report covering Task Force accomplishments to date and laying out its plan for completing the remaining recommendations in 2019.

Click here to read the full report.

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.

 

Despite Efforts to Roll-Back Other Program Requirements, U.S. EPA Administrator Scott Pruitt Continues to Prioritize Superfund Cleanups

by Van P. Hilderbrand, Jr. and Marian C. Hwang

 

 

U.S. Environmental Protection Agency (“EPA”) Administrator Scott Pruitt has made it clear that one of his top priorities during his tenure is to expedite cleanups at contaminated sites across the country. To achieve this goal while facing potential budget cuts, he has made several significant decisions over the last year to overhaul and restructure the Superfund cleanup program from within.

First, as we discussed in our earlier post, A New Budget, a New EPA Administrator, and New Uncertainty for Superfund Cleanups, Administrator Pruitt issued a memorandum on May 9, 2017 centralizing decision-making on major Superfund remedies to EPA headquarters. Specifically, final decisions on remedies exceeding $50 million are to be made by Administrator Pruitt or the Deputy Administrator, not by Regional Administrators. According to the memorandum, this change is designed to improve the remedy selection process by promoting increased oversight and accountability and by “enhancing consistency in remedy selection across states and the regions.”

Next, Administrator Pruitt specially convened an EPA Superfund Task Force on May 22, 2017. In our post, EPA’s Task Force Recommendations to Revamp and Expedite Superfund Cleanups and Process – A Welcome Change, we discussed the Task Force Report, issued on July 22, 2017, which identified 5 goals, 13 strategies, and 42 recommendations to (1) expedite Superfund cleanups; (2) re-invigorate responsible party cleanup and reuse; (3) encourage private investment; (4) promote redevelopment and community revitalization; and (5) engage partners and stakeholders. We have seen many of these recommendations realized, including the development and issuance of a priority list of Superfund sites targeted for immediate attention by Administrator Pruitt.

Recent EPA Realignment in Approval Process Sees the Administrator’s Role Expanding

Composite image map showing TRI facilities in blue and Superfund NPL sites in red

In a recent shift to expand the influence of the Administrator’s Office, Administrator Pruitt issued a second memorandum on April 26, 2018 clarifying that EPA’s Office of Land & Emergency Management and regional offices should “coordinate and consult with the Administrator’s Office early on when developing” other significant actions (in addition to remedies) related to costly Superfund cleanups. Such actions would include Amendments to Records of Decision (“ROD”) or Explanations of Significant Differences (“ESD”) that are projected to either increase the estimated cost of a remedy to greater than $50 million or are projected to increase the estimated cost of a remedy that is already greater than $50 million by any amount.

The memorandum also specifically notes that consultations should occur when developing Non-Time-Critical Removal Actions (“NTCRA”) estimated to exceed $50 million. As in the earlier 2017 memorandum, Administrator Pruitt says the additional coordination and cooperation will result in “more accountability and consistency throughout the EPA’s regions.” What this means for potentially responsible parties (“PRPs”) at large Superfund sites is that Administrator Pruitt will play an increasingly important role in the decision-making process.

Neither memorandum addressed any change in the role of the National Remedy Review Board (“NRRB”) and the interplay between the NRRB and the increasing oversight and decision-making role of Administrator Pruitt. The NRRB is an internal EPA peer review group that reviews and comments on remedial actions and NTCRAs costing more than $25 million. Questions remain whether the NRRB only reviews actions costing between $25 and $50 million, as not to impede Administrator Pruitt’s review, or do both NRRB and Administrator Pruitt review actions costing in excess of $50 million?

Uncertainty in the Superfund Program

This step comes amid increased turmoil and uncertainty in the Administrator’s Office and the Superfund program. Administrator Pruitt’s top advisor on the Superfund program and chairman of the Superfund Task Force, Albert “Kell” Kelly, resigned unexpectedly in early May, leaving questions regarding who will run the approximately $1 billion program. Further, Administrator Pruitt himself is facing numerous investigations into his own actions and ethical violations; causing many to wonder just how much longer he will be in his current job and whether he will see any of these policy changes implemented.

It is easy to see, therefore, why every decision from the Administrator’s Office comes under significant scrutiny. Many opponents believe these moves are simply ways to reduce costs and time in the cleanup process, and they question whether “expedited” cleanups actually mean less rigorous cleanups. In his first year or so, there are examples where Administrator Pruitt has approved strengthened measures and cleanup requirements at some sites, despite pushback from industry and companies involved in the cleanup, but there are also examples of site decisions that cast doubt on his ability to be independent and impartial. In any case, as long as Administrator Pruitt is in his current role, it is clear that the Superfund program will see continued change and that he will use the authority of that role to expedite cleanups.

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. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.

This story is was first published on the Miles Stockbridge website.

____________________

About the authors

member of Miles & Stockbridge Products Liability & Mass Torts Practice Group, Van P. Hilderbrand, Jr. 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.

Marian Hwang has been an environmental attorney with the Miles & Stockbridge since 1987 and chairs its Environmental Practice. The breadth of her experiences representing multinational and national clients enables her to develop practical solutions to complex issues, whether involving complicated real estate/corporate acquisitions or divestitures or commercial financing matters to complex multi-defendant toxic tort claims, litigation, and multi-facility compliance matters. Marian works extensively with and appears before Federal and State regulators, and courts, has been certified as a LEED Green Associate by the U.S. Green Building Council, and has served as outside national environmental counsel to the firm’s major clients.

 

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%.

______________________

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.

U.S. EPA Targets Superfund Sites for Immediate Clean-up

The United States Environmental Protection Agency (U.S. EPA) recently released a list of Superfund Sites targeted for immediate, intense action, as of December 8th 2017. The list is a response to July’s Superfund Task Force Recommendations. The U.S. EPA considers the sites listed to benefit from Administrator Scott Pruitt’s direct engagement, requiring timely resolve of specific issues to streamline cleanup and redevelopment and protect human health and the environment.

3D Image of NAPL contamination at the B.F. GOODRICH facility in Calvert City, KY

The list, spanning all ten EPA regions across the United States, with accompanying plans, issues, and categorizations associated with each site, can be found here.

As reported in the Washington Post, the push is part of Administrator Scott Pruitt’s promise to prioritize the decades-old cleanup program, even as the Trump administration shrinks the size and reach of the EPA. The 21 sites highlighted by the agency span the country, from a former tannery site in New Hampshire to a contaminated landfill from the World War II-era Manhattan Project in St. Louis to an abandoned copper mine in Nevada.

“By elevating these sites, we are sending a message that EPA is, in fact, restoring its Superfund program to its rightful place at the center of the agency’s mission,” Pruitt said in a statement. “Getting toxic land sites cleaned up and revitalized is of the utmost importance to the communities across the country that are affected by these sites.”

The U.S. EPA said that it developed the list using sites “where opportunities exist to act quickly and comprehensively.” Notably, the agency also acknowledged that “there is no commitment of additional funding associated with a site’s inclusion on the list.”