EPA has initiated a three-year strategy, called the Integrated Cleanup Initiative, to identify and implement improvements to the Agency’s land cleanup programs. The Initiative will identify and implement opportunities to integrate and leverage the Agency’s land cleanup authorities to accelerate cleanups, address a greater number of contaminated sites, and put these sites back into productive use while protecting human health and the environment.
Item 2B indicates that the evaluation to determine if VI should be expressly addressed in the HRS has been made and that a notice will be issued in January to begin the public process of moving forward with this revision.
Item 3 also indicate that regional offices will be expected to perform more robust PRP searches and that metrics will be established to measure progress on this goal
Items 12A/B and 13 reaffirm the enforcement first policy and suggests this will be done earlier in the remedy process
Showing posts with label superfund. Show all posts
Showing posts with label superfund. Show all posts
Monday, December 27, 2010
Tuesday, October 19, 2010
GAO Recommends EPA Use Vapor Intrusion Pathway for Listing Superfund Sites
The Government Accountability office issued a report on the Superfund program in May that recommended that vapor intrusion should be considered when ranking sites for the federal superfund list which is formally known as the National Priorities List or NPL.
According to the report, 60 sites currently on NPL may pose potential for VI. Based on current data, an additional 37 sites would be eligible for listing based on VI. 13 sites are being addressed as part of EPA removal actions. An undetermined number of construction complete sites may pose risk of VI.
In response, EPA staff have indicated that they are considering revising the Hazardous Ranking System that is used to score sites for the NPL. Currently, the pathway is not evaluated and contaminated groundwater that is used for drinking water remains the most important factor for scoring sites.
The complete report is available at: http://www.gao.gov/new.items/d10380.pdf
Due Care, Continuing Obligations and the CERCLA landowner defenses
There have been alot of ASTM standards issued the past few years but one of the more important ones will likely be the Continuing Obligations practice that is currently in draft form. It is important because it is critical for landowners to maintain their liability protection after they take title.
It is important for consultants, attorneys and landowners to realize that the landowner liability protections are affirmative defenses-that means the person seeking to assert the defense has the burden of proving that they qualify for the liability protection. I suspect the caselaw under the third party defense and innocent landowner defenses will serve as an example of how courts are going to interpret the scope of the reasonable steps/continuing obligations obligations. If so, the courts will narrow construe the defenses-in other words make it hard for parties to establish that they are not liable.
The decisions in U.S. v. Honeywell, 2008 U.S. Dist. LEXIS 13432 (C.D. Ca. 2/22/08) and the 2006 AMCAL v. Pacific Clay, 457 F.Supp.2d 1016. (E.D.Ca. 2006) illustrate that there is plenty of liability remaining out there for purchasers of contaminated property who move around contaminated soil. I think we would do a disservice to clients if potential users of the practice if we suggest that all they need to do is erect a fence or notify the authorities.
It should also be pointed out that some jurisdictions still hold that passive migration is disposal though a majority of courts that holds passive migration is not a release. Landowners in jurisdictions where mere migration is disposal will probably have to implement more rigorous actions to satisfy 'reasonable steps' (i.e. Stop ongoing releases) than those in jurisdictions following the majority rule.
Thus, landowners need to be very careful not to inadvertantly forfeit their liability after they take title. Obviously, the determination of what steps are 'reasonable' will be site-specific. However, we can probably make some general observations.
As part of the reasonable steps obligations, landowners have to stop continuing releases, prevent any threatened future releases and prevent or limit exposure to releases of hazardous substances. It would seem from any reading of the legislative language, history and the 1995 EPA Guidance on Contaminated Aquifers that a BFPP, ILO or CPO do not have to remediate groundwater. On the other end of the spectrum, it is also probably clear that simply erecting a fence or notifying the authorities is probably not going to satisfy the reasonable steps requirement in most cases.
The big question is what does such a party have to do about contaminated soil? I think it is fair to suggest that they would also not have to engage in long-term remedial measures such as would have to be implemented as part of a RI/FS. It would seem to me that landowners seeking certainty about whether they have implemented 'reasonable steps' should probably anticipate that they will have to perform the equivalent of removal actions or interim remedial measures such as removal of USTs, excavation of grossly contaminated soils and probably installation of vapor mitigation systems. I think source removal and eliminating the exposure pathway should be the admission price for liability relief
It is important for consultants, attorneys and landowners to realize that the landowner liability protections are affirmative defenses-that means the person seeking to assert the defense has the burden of proving that they qualify for the liability protection. I suspect the caselaw under the third party defense and innocent landowner defenses will serve as an example of how courts are going to interpret the scope of the reasonable steps/continuing obligations obligations. If so, the courts will narrow construe the defenses-in other words make it hard for parties to establish that they are not liable.
The decisions in U.S. v. Honeywell, 2008 U.S. Dist. LEXIS 13432 (C.D. Ca. 2/22/08) and the 2006 AMCAL v. Pacific Clay, 457 F.Supp.2d 1016. (E.D.Ca. 2006) illustrate that there is plenty of liability remaining out there for purchasers of contaminated property who move around contaminated soil. I think we would do a disservice to clients if potential users of the practice if we suggest that all they need to do is erect a fence or notify the authorities.
It should also be pointed out that some jurisdictions still hold that passive migration is disposal though a majority of courts that holds passive migration is not a release. Landowners in jurisdictions where mere migration is disposal will probably have to implement more rigorous actions to satisfy 'reasonable steps' (i.e. Stop ongoing releases) than those in jurisdictions following the majority rule.
Thus, landowners need to be very careful not to inadvertantly forfeit their liability after they take title. Obviously, the determination of what steps are 'reasonable' will be site-specific. However, we can probably make some general observations.
As part of the reasonable steps obligations, landowners have to stop continuing releases, prevent any threatened future releases and prevent or limit exposure to releases of hazardous substances. It would seem from any reading of the legislative language, history and the 1995 EPA Guidance on Contaminated Aquifers that a BFPP, ILO or CPO do not have to remediate groundwater. On the other end of the spectrum, it is also probably clear that simply erecting a fence or notifying the authorities is probably not going to satisfy the reasonable steps requirement in most cases.
The big question is what does such a party have to do about contaminated soil? I think it is fair to suggest that they would also not have to engage in long-term remedial measures such as would have to be implemented as part of a RI/FS. It would seem to me that landowners seeking certainty about whether they have implemented 'reasonable steps' should probably anticipate that they will have to perform the equivalent of removal actions or interim remedial measures such as removal of USTs, excavation of grossly contaminated soils and probably installation of vapor mitigation systems. I think source removal and eliminating the exposure pathway should be the admission price for liability relief
Monday, October 18, 2010
EPA Considering Revising HRS to Include Vapor Intrusion Pathway
The Hazardous Ranking System (HRS) is a regulation issued by EPA for scoring sites for inclusion on the National Priorities List (NPL). Risks posed by various exposure pathways are assessed and then numerical values are assigned. Sites are evaluated that score above 28.50 on the HRS are eligible for proposal to the NPL.
The principal driver for a high score on the HRS is contamination of drinking water. Because vapor intrusion was not a regulatory concern when the HRS was revised in 1990, the vapor intrusion pathway is not one of the pathways that are evaluated when scoring a site. However, in a critical report earlier this year, the GAO suggested that the vapor pathway be evaluated when ranking sites for the NPL.
I learned today at a vapor intrusion meeting at EPA region 2 that EPA is in the evaluating revising the HRS to specifically include the vapor intrusion pathway. If this change is implemented, it could mean that sites could be listed solely on the basis of vapor intrusion. This could dramatically expand the universe of sites eligible for the NPL. For example, GAO estimated in its report that if the VI pathway was used to rank sites, possibly 20 sites in New Jersey alone could be eligible for inclusion on the NPL.
The principal driver for a high score on the HRS is contamination of drinking water. Because vapor intrusion was not a regulatory concern when the HRS was revised in 1990, the vapor intrusion pathway is not one of the pathways that are evaluated when scoring a site. However, in a critical report earlier this year, the GAO suggested that the vapor pathway be evaluated when ranking sites for the NPL.
I learned today at a vapor intrusion meeting at EPA region 2 that EPA is in the evaluating revising the HRS to specifically include the vapor intrusion pathway. If this change is implemented, it could mean that sites could be listed solely on the basis of vapor intrusion. This could dramatically expand the universe of sites eligible for the NPL. For example, GAO estimated in its report that if the VI pathway was used to rank sites, possibly 20 sites in New Jersey alone could be eligible for inclusion on the NPL.
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