March 15, 2011
On March 8, 2011 the EPA announced its latest round of potential Superfund sites – nominees to be listed on the National Priorities List (NPL) under the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA), commonly known as the Superfund statute. The proposed sites included the New Cassel/Hicksville groundwater contamination site (NCH Site), located in Nassau County, New York. According to EPA records the NCH Site includes approximately 10 million square feet of aquifer contaminated by chlorinated compounds, including perchloroethylene (PCE) and trichloroethelyne (TCE).
EPA’s nomination of the NCH Site reflects an emerging trend toward large, multiparty Superfund sites in the New York metro area. In addition, since 2009 the rate at which EPA has been adding sites to the NPL has increased from prior years, and the recent nominations reinforce this trend.
Complex, multiparty sites were relatively common in the two decades following CERCLA’s enactment in 1980. EPA listed many former landfills, casting a broad liability net over dozens of potentially responsible parties (PRPs) at a time, and these sites often involved tens or hundreds of millions of dollars in response costs. However, while listings continued, by 2005 practitioners and commentators had noted a dropoff in large government-led cleanups.[1] Around this time, intense economic pressures to develop property also resulted in many voluntary cleanups by parties who had no prior connection to the contamination. The focus of CERCLA practice shifted accordingly, from EPA-led megasites to voluntary cleanups, with courts scrutinizing the legal avenues of recovery for volunteers under the statute’s cost recovery and contribution provisions.[2]
More recently, the EPA has named several large, complex, and costly sites in the New York metropolitan area to the NPL, including the Gowanus Canal and Newtown Creek, each estimated to involve cleanups costing hundreds of millions of dollars. EPA is also pursuing efforts to investigate and remediate portions of the Lower Passaic River, as part of the Lower Passaic River Restoration Project. At another large cleanup site, in July 2010, 100 PRPs signed on to conduct a Remedial Investigation/Feasibility Study for the Berry’s Creek study area in Bergen County, NJ. The first phase of dredging of the Hudson River Superfund site by General Electric began in 2009 and cost approximately $560 million. As the above examples illustrate, EPA’s Region 2 appears increasingly focused on contaminated waterways, which by their nature involve complex and costly cleanups.
The rising number of Superfund sites is not just a local development; the number of listings is on the rise nationwide. Between 2003 and 2008 EPA listed an average of 14.6 new sites per year. By contrast, in the first few months of this year, 25 sites have already been proposed or listed, and if all those sites are listed average new listings per year since 2009 will jump to 21.6—50% over the previous five years. Of course, more sites may also be listed in the remaining nine months of 2011.[3]
[1] See, e.g., David A. Dana, State Brownfields Programs as Laboratories of Democracy?, 14 N.Y.U. Envtl. L.J. 86, 87-89 (2005) (analyzing “decline” of government-led CERCLA cleanups and enforcement).
[2] See, e.g., United States v. Atlantic Research Corp. 551 U.S. 128 (2007); Consolidated Edison v. UGI Utilities, Inc. 423 F.3d 90 (2d. Cir. 2005).
February 7, 2011
For over two decades, the Environmental Protection Agency (“EPA”) has considered four exposure pathways in determining whether to list contaminated sites on the Superfund National Priorities List (“NPL”): groundwater, surface water, soil and air. In a Federal Register notice published January 31, 2011, EPA solicited public comment on the potential addition of a fifth pathway: soil vapor intrusion.
The migration of vapors from subsurface contamination into overlying buildings, known as vapor intrusion, is a growing concern for federal and state environmental regulators. Vapor intrusion is most common at sites with elevated levels of volatile organic compounds – including chlorinated solvents and sometimes gasoline – which enter indoor air through openings around sewer lines, cracks in a building’s foundation or basement, or other preferential pathways.
Under the federal Superfund law, EPA screens contaminated sites for listing on the NPL through its Hazard Ranking System, assigning each site a score based upon its perceived threat to human health and the environment. The risk of vapor intrusion, however, does not currently factor into this determination. A May 2010 Government Accountability Office (“GAO”) report found that, given EPA’s inability to designate NPL sites on the basis of vapor intrusion, “States may be left to remediate those sites without federal assistance, and given states’ constrained budgets, some states may not have the ability to clean up these sites on their own.”
From now through April 16, 2011, EPA will be collecting public comment on the potential revision of the Hazard Ranking System (“HRS”) to account for vapor intrusion. It plans to hold three public listening sessions on the topic. While it has not proposed specific regulatory changes at this point, the Agency “will consider the information gathered from this Notice, listening sessions, and other sources before making a decision to issue a proposed rulemaking to add subsurface contaminant intrusion to the HRS.”
EPA is also in the process of revising its draft guidance for the evaluation of vapor intrusion risks, which was initially released in 2002 but has yet to be finalized. EPA outlined a number of likely changes to that document last October, and it plans to issue updated guidance by November 2012.
Finally, the New York State Department of Environmental Conservation is continuing to reevaluate vapor intrusion pathways, and has reopened several sites that had already been remediated and delisted to require additional monitoring or mitigation measures. For more information on these reopenings, or on federal and state vapor intrusion policy developments, contact Christine Leas, Jeffrey Gracer, or Michael Bogin.
November 19, 2010
On November 17, 2010, New York State and ExxonMobil entered into a settlement agreement to resolve a lawsuit concerning ExxonMobil’s liability for cleanup, remediation, and other costs associated with a massive oil spill in Greenpoint, Brooklyn. Under the terms of the consent decree, which was filed in the U.S. District Court for the Eastern District of New York, ExxonMobil has agreed to pay a total of $25 million to the State and to expand its existing cleanup obligations in the area.
The subject site, which is adjacent to the Newtown Creek Superfund site, has been home to heavy industry since the mid-1860’s and has a long history of contamination. According to the New York State Department of Environmental Conservation, (“DEC”) approximately 17 million gallons of petroleum products have been released, over time, to the subsurface of the northeastern area of Greenpoint, resulting in a spill area that extends over 52 acres. The spill was discovered in 1978, and product recovery systems have been in place since 1979. Currently, cleanup operations are being conducted by ExxonMobil, BP, and Texaco under DEC supervision.
The State has long played a role in seeking to spur efforts to clean up the spill. In 1990, ExxonMobil’s predecessor, Mobil, and the New York State Department of Environmental Conservation (“DEC”) entered into two consent orders whereby Mobil agreed to investigate and remediate petroleum-related “free product” – contaminated petroleum material that floats on top of groundwater – associated with a former Mobil refinery. In 2007, the State filed in Federal court the action which has now been settled, alleging that ExxonMobil was liable for response, remediation, and other costs incurred by the State in connection with the entire spill. These claims were brought pursuant to the Resource Conservation and Recovery Act (“RCRA”), the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA), the Oil Pollution Act, the New York State Navigation Law, the New York State Environmental Conservation Law, and the New York common law of public nuisance, indemnification, and restitution.
Key features of the consent order include the following:
- ExxonMobil is presumptively responsible for the investigation and remediation of “contamination in all media” at the Site, delineated by an attached map, within ExxonMobil’s “Historic Footprint” (the portion of the Site formerly or currently owned or operated by ExxonMobil or its predecessors). The obligation extends not only to free product, but also to contaminated groundwater, soil, and soil vapors.
- ExxonMobil is presumptively responsible for the investigation of contamination within the Site where DEC has a technically reasonable basis to conclude that existing contamination emanated from the Historical Footprint and followed a preferential pathway such as a utility or pipeline.
- In portions of the Site outside of the Historical Footprint, ExxonMobil is presumptively responsible for the investigation and remediation of petroleum-related groundwater contamination, petroleum-related soil vapor contamination, and petroleum-related contamination in media located in an area specified as the “Retention Zone.” ExxonMobil’s obligation to investigate and remediate soil contamination is limited to the historic extent of the mapped free product plume.
- To ensure an expeditious cleanup, ExxonMobil must adhere to a schedule and meet specific milestones in its operations.
- ExxonMobil must pay a total of $25 million to the State, to be allocated as follows:
- $19.5 million to fund Environmental Benefit Projects to improve the environment in Greenpoint. Projects should address issues that include, but are not limited to, water quality, groundwater, open space, reduction of toxic pollution, and air quality.
- $1.5 million to compensate the State for past cleanup costs related to the spill.
- $3.5 million to fund future oversight costs.
- $250,000 in penalties to be deposited in New York’s Oil Spill Cleanup Fund and Marine Resources Account.
- $250,000 in damages, which will be used to fund projects to compensate for damaged natural resources in Greenpoint.
The consent order is also notable for the items it does not address or require, including the following:
- The consent order does not address ExxonMobil’s obligations with respect to Newtown Creek, which is now listed as a federal Superfund site. The State reserves all of its rights with respect to Newtown Creek in the consent order.
- The consent order limits to some extent ExxonMobil’s responsibility for the investigation and remediation of those contaminated properties at the Site identified as the “BP Property”, the “Peerless Property”, the “100-120 Apollo St. Property” and the “Metro Property.”
For more information, visit the following links:
November 11, 2010
The New York State Department of Environmental Conservation (“DEC”) recently issued CP-51/Soil Cleanup Guidance, which applies to each of the remedial programs administered by DEC’s Division of Environmental Remediation (including, inter alia, the Inactive Hazardous Waste Disposal Site Remediation Program, the Brownfield Cleanup Program and the Spill Response Program). The new guidance replaces Technical Administrative Guidance Memorandum (“TAGM”) 4046: Determination of Soil Cleanup Objectives and Cleanup Levels, dated January 24, 1994.
By providing for defined remedial approaches and uniform standards, CP-51 marks an important departure from TAGM which provided recommended soil cleanup objectives (“RSCOs”), but did not explain how the Department would use those RSCOs in any particular remedial program or in any particular case. Promulgation of the new Part 375 Soil Cleanup Objectives (“SCOs”) in 2007, which specified that they applied to the Brownfield Cleanup Program and the State Superfund Program, lead to an odd situation in which different programs administered by Department (for example the Spills and Brownfield Cleanup Programs) applied different soil cleanup objectives in similar locations and matters without any explanation how or why this was being done.
The new guidance sets forth the procedure for selecting the appropriate soil cleanup levels under each remedial program, as well as for determining whether the standards for protection of ecological resources or protection of groundwater should apply. It also discusses soil cleanup levels to address “nuisance conditions” such as odors and staining, polycyclic aromatic hydrocarbons (“PAHs”) and polychlorinated biphenyls (“PCBs”).
CP-51 supplements the regulatory soil cleanup objectives (“SCOs”) by establishing supplemental SCOs (“SSCOs”) for those chemical compounds for which Recommended Soil Cleanup Objectives had been established under TAGM, but were excluded from DEC’s Part 375 regulations. Parties may also elect to determine site-specific soil cleanup levels, but must do so in accordance with the same approach utilized by DEC in establishing the SCOs and SSCOs.
In an apparent effort to address recent BCP case law to the contrary, DEC emphasizes that SCOs and SSCOs are merely screening tools and that:
The exceedance of one or more applicable SCOs or SSCOs…alone does not trigger the need for remedial action, define “unacceptable” levels of contaminants in soil, or indicates that a site qualifies for any DEC remedial program…
(CP-51/Soil Cleanup Guidance at 12.)
A copy of the CP 51 is available here.
November 9, 2010
Governor-elect Andrew Cuomo released a 160-page environmental agenda for New York on Saturday, October 30, three days before he was elected to be New York’s next Governor on January 1st, 2011. The document allows some insight into the vision and priorities of the next administration with regard to the environment.
One of the most significant components of the agenda is an overall vision of promoting and talking about environmental protection in the context of economic development in the State. It emphasizes that “environmental protection can benefit our economy—creating green jobs while reducing pollution …”[1] The environmental agenda, like other parts of Cuomo’s published agenda for reforming New York State, proposes review and reform of the state’s environmental bureaucracy to maximize environmental protection and coordination among agencies, and create cost savings. The Governor-elect would task the state’s Spending and Government Efficiency Commission with this review of existing agencies and procedures.[2]
The document also suggests that Governor-elect Cuomo will be as much about the carrot as the stick when it comes to promoting conservation. He proposes a “Cleaner Greener Communities Competitive Grant Program” to help create incentives for sustainable communities, encourage smart growth, and reduce sprawl. The grants would support innovative comprehensive regional plans which incorporate sustainability, transportation, emissions and efficiency issues into the planning framework.[3] Where the funds for such a grant program will come from is not spelled out.
Cuomo’s environmental agenda supports the continuation of New York’s Brownfield Cleanup Program (“BCP”), including the tax credits component, while streamlining the BCP process to ensure its effective use on those sites that need it most.[4] The document does not address the State’s participation in the Federal Superfund program, from which current Governor David Paterson has proposed to withdraw.
On Marcellus Shale, the Cuomo agenda takes a middle road, stating that “New York State must ensure that, if and when the Shale’s natural gas is obtained, it does not come at the expense of human health or have adverse environmental impacts.”[5] Potential impacts to watersheds are given special mention, suggesting that drilling in the New York City watershed and other watersheds will be given enhanced scrutiny. On another energy-related issue, Cuomo restates a longstanding position that Indian Point nuclear plant be shut down.[6]
Cuomo also proposes a review of the State Environmental Quality Review Act (“SEQRA”) process to expand SEQRA considerations to include environmental justice, and strengthen the current Environmental Justice Policy “so it gives more robust assurance that adequate consideration is given to environmental justice.”[7]
While budget and political realities will no doubt impact Cuomo’s implementation of his agenda, the Governor-elect’s proposed agenda nonetheless provides a window into his environmental policy preferences in advance of his taking office on January 1st. This preview suggests a potential that the new administration will take a broader view of environmental protection that goes beyond regulation to promoting smart growth and sustainable development as part of an overall statewide focus on economic development.
- Download a copy of the agenda here (pdf)
[1] Cuomo 2010, Cleaner Greener NY, at 1 (2010).
[2] Id. at 7.
[3] Id. at 91-92.
[4] Id. at 94.
[5] Id. at 96.
[6] Id. at 95.
[7] Id. at 97-98.
November 5, 2010
In a radio interview last week, outgoing New York Governor David Paterson announced his plans to eliminate the state’s participation in the federal Superfund cleanup program. The proposal is one of several cuts designed to reduce the state’s budget deficit and accommodate the proposed layoffs of an additional 898 state employees by the year’s end, including 150 in the Department of Environmental Conservation (“DEC”).
The immediate impact of Paterson’s announcement on ongoing and future site cleanups is unclear, and DEC said that “no final decision has been made” on the issue. The state and federal governments currently operate their own Superfund programs, created through separate statutes, and it appears that cleanup will continue as planned for sites listed exclusively under the state program.
According to the Albany Times Union, however, there are 114 federal Superfund sites in New York, with the state and federal governments often cooperating on remedial efforts. For instance, DEC is listed as a support agency in the ongoing, federally-led Hudson River Superfund cleanup, with state officials assisting in the development and oversight of General Electric’s cleanup work. Under Paterson’s plan, “the state will not be involved” at federally listed sites moving forward.
Because the federal Superfund law is not a formally delegated program like the Clean Air Act or Clean Water Act, Paterson’s plan should not require legislative or administrative action, but could instead be accomplished primarily through a reallocation of funds within DEC. However, federal law requires that states fund 10% of the Environmental Protection Agency’s remedial costs for federal sites where the potentially responsible parties cannot be identified or held financially responsible. See 42 U.S.C. § 9604(c)(3). Those funding obligations, memorialized through State Superfund Contracts (“SSCs”), would continue despite Paterson’s planned withdrawal. Of course, the ultimate decision on the state’s participation in the federal Superfund program will rest with the new governor-elect Andrew Cuomo.
October 4, 2010
Four years ago, New York’s Department of Environmental Conservation (“DEC”) and Department of Health (“DOH”) issued new guidance on soil vapor intrusion, triggering the ongoing reevaluation of over 400 contaminated sites and the reopenings of dozens for new testing or mitigation. Now, the U.S. Environmental Protection Agency (“EPA”) is taking the first steps towards revising its own vapor intrusion guidance.
On August 30, 2010, EPA’s Office of Solid Waste and Emergency Response released its Review of the Draft 2002 Subsurface Vapor Intrusion Guidance. The Review highlights areas of existing guidance that EPA plans to update or change over the next two years.
In 2002, EPA released draft guidance for detecting and responding to vapor intrusion, caused by the migration of subsurface contamination into overlying buildings. Vapor intrusion is most commonly found at sites with elevated levels of volatile organic compounds – including chlorinated solvents and gasoline – in the soil or groundwater.
In response to recent scientific developments, last year the EPA Inspector General recommended that the agency update and finalize its guidance, which remains in draft form. EPA hopes to complete that process by November 2012, with the recent Review highlighting various assumptions and methodologies that are subject to change. For instance, the agency plans to incorporate multiple lines of evidence into vapor intrusion screening determinations, expand its guidance related to non-residential and yet-to-be-constructed buildings, and provide for the collection of indoor air samples earlier in the investigation process.
As it moves forward, EPA intends to solicit public comment and hold hearings on the guidance revisions in 2011. The agency asserts it is not required to take comment on guidance documents, but often does so for higher profile issues.
Meanwhile, New York continues its process of re-evaluating contaminated sites for vapor intrusion pathways, including many properties that had previously been remediated and de-listed. Purchasers and lenders are also increasingly investigating vapor intrusion as part of their Phase 1 environmental site assessments.
Thus far, EPA has not announced plans to re-open Superfund sites to investigate vapor intrusion. Where low levels of contamination are left at a remediated site, however, the Superfund statute requires a site review every five years, at which point additional work may be needed to address vapor intrusion threats based on new guidance.
Sive, Paget & Riesel represents a number of property owners on vapor-intrusion evaluations and re-openings. For more information on this topic, please contact Christine Leas, Jeffrey Gracer or Michael Bogin.
« Newer Posts — Older Posts »
|
|
| |
|
