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U.S. EPA Hazardous Waste Enforcement in Wisconsin

The United States Environmental Protection Agency (“U.S. EPA”) and Kerry Biofunctional Ingredients, Inc. d/b/a Kerry Bio Sciences (“Kerry”) recently entered a Consent Agreement (“CA”) addressing alleged violations of Subtitle C of the Resource Conservation and Recovery Act (“RCRA”) and its regulations implementing requirements for the management of hazardous waste. See Docket Number : RCRA-02-2017-7108.

Kerry is a subsidiary of Kerry, Inc. whose North American Headquarters is situated in Beloit, Wisconsin.

The CA provides that Kerry operates a facility in Norwich, New York (“Facility”) that has been a generator of hazardous waste.

As a result of the July 2016 inspection and Kerry’s response to the Request for Information, the Facility is alleged to have failed to:

  1. Make hazardous wastes determinations for certain waste-streams found at the Facility
  2. Keep a complete copy of each hazardous waste manifest for at least three years
  3. Meet the conditions necessary to accumulate hazardous waste without having obtained a permit or qualifying for interim status

Such alleged failures are stated to be violations of the RCRA regulations.

The CA assesses a civil penalty of $20,000.

A copy of the CA can be downloaded here.

Kerry Headquarters, Ireland

Activated Carbon-Based Technology for In Situ Subsurface Remediation

The U.S. EPA Office of Superfund Remediation and Technology Innovation recently published a fact sheet about an emerging remedial technology that applies a combination of activated carbon (AC) and chemical and/or biological amendments for in situ remediation of soil and groundwater contaminated by organic contaminants, primarily petroleum hydrocarbons and chlorinated solvents.  The technology typically is designed to carry out two contaminant removal processes: adsorption by AC and destruction by chemical and/or biological amendments.

With the development of several commercially available AC-based products, this remedial technology has been applied with increasing frequency at contaminated sites across the country, including numerous leaking underground storage tank (LUST) and dry cleaner sites (Simon 2015).  It also has been recently applied at several Superfund sites, and federal facility sites that are not on the National Priorities List.

The fact sheet provides information to practitioners and regulators for a better understanding of the science and current practice of AC-based remedial technologies for in situ applications. The uncertainties associated with the applications and performance of the technology also are discussed.

AC-based technology applies a composite or mixture of AC and chemical and/or biological amendments that commonly are used in a range of in situ treatment technologies.  Presently, five commercial AC-based products have been applied for in situ subsurface remediation in the U.S.: BOS-100® & 200® (RPI), COGAC® (Remington Technologies), and PlumeStop® (Regenesis) are the four most commonly used commercial products.  CAT-100® from RPI is the most recent product, developed based on BOS-100®.  One research group in Germany also developed a product called Carbo-Iron®.  The AC components of these products typically are acquired from specialized AC manufacturers.  These types of AC have desired adsorption properties for chlorinated solvents and petroleum hydrocarbons.  Different products also have different AC particle sizes, which determine the suitable injection approach and the applicable range of geological settings.

Example of powdered activated carbon “fracked” into the subsurface under high-pressure, causing preferential pathways into existing monitoring wells (Photo Credit: Regenesis)

 

In Situ Treatment Performance Monitoring: Issues and Best Practices

The U.S. EPA recently released an issue paper (EPA 542-F-18-002) that describes how in situ treatment technologies may impact sampling and analysis results.  The paper discusses the best practices to identify and mitigate issues that may affect sampling and analysis.

The utility of monitoring wells for performance or attainment monitoring is based on the premise that contaminant concentrations measured in the wells are representative of aquifer conditions. However, during in situ treatment, various biogeochemical and hydrogeological processes and sampling and analysis procedures may affect the representativeness of the monitoring well and sample quality, which may not be adequately considered in current remediation practice.

A properly designed monitoring network that anticipates the distribution of amendments after injection would minimize impacts to monitoring wells.  However, predicting amendment distribution prior to injection is challenging such that impacts to monitoring wells are likely.

The purpose of The U.S. EPA issue paper is to:
• describe how in situ treatment technologies may impact sampling and analysis results used to monitor treatment performance; and
• provide best practices to identify and mitigate issues that may affect sampling or analysis.

The U.S. EPA issue  paper discusses eight potential sampling or analytical issues associated with groundwater monitoring at sites where in situ treatment technologies are applied. These issues are grouped under three topic areas:
• Issues related to monitoring wells (Section 2).
• Representativeness of monitoring wells (Section 3).
• Post-sampling artifacts (Section 4).

The paper presents issues that pertain to collecting water samples directly from a monitoring well and does not discuss the use of other sampling techniques, such as passive diffusion bags or direct push groundwater sampling.

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.

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.

 

 

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.

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.”

U.S. EPA Settlement with UConn resolves Improper PCB Disposal Activity

The University of Connecticut has taken steps to ensure its PCB waste is properly disposed of in the future to settle claims by the U.S. Environmental Protection Agency (U.S. EPA) that it improperly disposed of PCBs during a 2013 renovation project at its Storrs campus.

An aerial view of the Storrs Campus on Oct. 9, 2013. (Peter Morenus/UConn Photo)Morenus/UConn Photo)

The university disposed of the waste containing polychlorinated biphenyls during a 2013 window replacement project in violation of the federal Toxic Substances Control Act.  Working with its contractors and an environmental consultant, UConn’s renovation project led to the removal of soils contaminated with PCBs from the window caulk, which are classified as PCB “remediation waste.” PCB remediation waste can be disposed of only at approved facilities, but the transportation manifest did not identify the material as such, and the material consequently was shipped to a facility not licensed for this disposal.  Earlier this year, EPA notified UConn of its potential liability under federal law.  UConn and EPA then reached an agreement to resolve the violation. UConn will also pay a penalty of $28,125 as part of this settlement.

“This action demonstrates how important it is that all parties involved with PCB waste ensure that every step in the handling and disposal of the PCBs is done consistent with the regulations,” said Deb Szaro, acting regional administrator of EPA’s New England office.  “EPA appreciates the steps UConn has taken to minimize future violations.”

Once in the environment, PCBs do not readily break down and therefore may remain for long periods of time, cycling between air, water, and soil.  PCBs are classified by EPA as a probable human carcinogen and have been shown to cause other adverse health effects on the immune system, reproductive system, nervous system, and endocrine system.

For more information about health concerns and safe handling practices for PCBs (www.epa.gov/pcbs)

SOURCE: U.S. Environmental Protection Agency

Events

Best Practices for Site Characterization throughout the Remediation Process

 

Event Name: Best Practices for Site Characterization Throughout the Remediation Process
Hosted By: U.S. EPA
Office of Superfund Remediation and Technology Innovation
Description: Best Practices for Site Characterization Throughout the Remediation Process is based on best management practices (BMP) implemented by the U.S. Environmental Protection Agency (EPA), partnership organizations, federal and state partners, and consultants. Participants will learn how to streamline projects in a legal, technically sound, and cost-effective manner. By taking the course, participants achieve the following objectives:

  • Integrate best practices into traditional project activities. This course illustrates how to use more effective sampling plan design, data collection, analysis, and management strategies at various entry points in a typical project time-line. The course highlights emerging quality assurance and quality control methods for evaluating data sufficiency and optimizing project sequencing. Case studies highlight benefits of using best practices at hazardous waste sites.
  • Effectively collect and communicate critical project information. The course stresses the use of the systematic planning process to involve key stakeholders and develop the conceptual site model (CSM). The course provides examples of CSMs and describes how they are used as the basis for project and sampling plan design, and as a tool for maintaining stakeholder consensus throughout the project life cycle. Participants will be shown how comprehensive systematic planning extends beyond normal data quality models. The course examines tools for managing the uncertainties associated with sampling, social, economic, and political factors that significantly impact hazardous waste cleanup and reuse projects.
  • Design dynamic work strategies. Systematic planning provides the foundation for designing effective dynamic work strategies (DWS). The course describes the components of a DWS, including (1) methods for verifying performance, (2) using collaborative data sets, (3) methods for real-time decision making, (4) managing sample and small-scale variability, (5) designing project and field decision logic, (6) implementing contingencies, and (7) creating streamlined work plans.
  • Recognize and overcome the challenges presented while implementing a dynamic work strategy. Controlling a project during a DWS is challenging and involves communication and planning. Participants will learn how to manage and adjust programs in the field while maintaining the project’s integrity. The course describes methods for controlling and directing work during dynamic work efforts, which include using unitized costing, setting project ceilings, and lowering project costs. Participants will examine how more focused characterization efforts can extend project funds and maximize the data collected.
  • Use BMPs to support all phases of the environmental cleanup life cycle. In addition to supporting site characterization, site characterization and remediation BMPs can directly support risk assessment, technology selection, remedial design, remedy implementation, long-term operations, and optimization efforts. The course describes specific ways practitioners can apply the BMPs to support these major project phases.

Course Outline

  1. Overview of Best Practices for Site Characterization and Remediation
  2. Systematic Project Planning
  3. Developing Dynamic Work Strategies
  4. Implementing a Dynamic Field Investigation
  5. Risk Assessment and Real-Time Data
  6. Best Practices for Remedy Design and Implementation
Registration Status: Registration Open
Event Begins: December 03, 2018 at 1:00 PM
Event Ends: December 06, 2018 at 12:00 PM
For questions about this event, please contact: Jodi McCarty (ICF)
Phone: 773-934-3091
E-mail: jodi.mccarty@icf.com
Additional Information: Daily Class Times:
Monday – 1:00 PM to 4:30 PM
Tuesday – 8:30 AM to 4:30 PM
Wednesday – 8:30 AM to 4:30 PM
Thursday – 8:30 AM to 12:00 PM
Location
This event will be held at: U.S. EPA – Region 1
5 Post Office Sq.
1st Fl. Conference Center – Leighton Hall
Boston, MA 02109

Location Contact:
Cosmo Caterino
617-918-1264
caterino.cosmo@epa.gov

Location Map:
These maps are for getting a general idea of the location – they may not be 100% accurate.
Click here to view