December – 2016 – Synergy Environmental Inc

Tips for Addressing a Contaminated Property through a State Voluntary Cleanup Program

Posted on December 20, 2016

Greensfelder Hemker & Gale PC
Shannon L. Haney

December 5, 2016

Whether your company recently acquired a piece of contaminated property or discovered contamination at a property you have operated for years, remediation of the site through one of the state voluntary cleanup programs (VCPs) might be a good option.

Although each state program is different, the goal of entry into a VCP is to investigate and remediate the property for purposes of receiving a closure letter. In the letter, the state agency declares the property remediated to state standards, thereby removing any stigma resulting from the prior contamination. These closure letters take multiple forms, such as a “no further action letter” or “certificate of completion.” Another goal is to protect the property owner from receiving an environmental violation or having enforcement proceedings instituted against it by the state environmental agency as a result of the contamination. Generally, the state agency agrees not to take enforcement action if the property is timely progressing through the state VCP.

EPA Eases Path to Superfund Listing: Vapor Intrusion Component Added to the Hazardous Ranking System

Posted on December 20, 2016

Seyfarth Shaw LLP
Andrew H. Perellis, Kay R. Bonza and Craig B. Simonsen

December 9, 2016

Seyfarth Synopsis: With the EPA adding the consideration of vapor intrusion in its Superfund site investigations, hundreds of sites that previously would not rank high enough to qualify for listing on the National Priorities List of contaminated sites would now likely qualify.

The U.S. Environmental Protection Agency (EPA) has just released a pre-publication version of its final rule to add a subsurface intrusion (SsI) component to the Superfund Hazard Ranking System (HRS). EPA defines subsurface intrusion as the migration of hazardous substances, pollutants, and contaminants from the unsaturated zone or the surficial (shallow) ground water into overlying structures. The most common form of subsurface intrusion is vapor intrusion. Vapor intrusion occurs when vapor-forming chemicals from sources including dry cleaning solvents and industrial de-greasers in ground water or soil migrate into buildings and other enclosed spaces, posing a threat to indoor air quality.

We had blogged previously when the Agency proposed this new rule. See EPA Plans to Ease Path to Superfund Listing: Vapor Intrusion Component to be Added to the Hazardous Ranking System. Before this rulemaking, the EPA addressed SsI at sites only when those sites were listed on the National Priorities List (NPL) for another contamination issue. By adding the consideration of vapor intrusion to the HRS, hundreds of sites that previously would not rank high enough to qualify for listing on the NPL could now qualify based soley on the threat of vapor intrusion. NPL listing is a prerequisite to EPA spending sums over $2 million to investigate and conduct remedial actions under Superfund. NPL-listed sites are generally more expensive to remediate and more difficult to sell than are other environmentally distressed properties.

EPA Proposes Prohibiting Use of TCE

Posted on December 20, 2016

Bergeson & Campbell PC
Lynn L. Bergeson, Charles M. Auer and Margaret R. Graham

December 8, 2016

On December 7, 2016, the U.S. Environmental Protection Agency (EPA) announced it would be issuing a rule proposing to prohibit the manufacture, processing, and distribution in commerce of trichloroethylene (TCE) for certain uses under Section 6 of the Toxic Substances Control Act (TSCA), due to its determination that there are significant health risks associated with TCE use in aerosol degreasing and for spot cleaning in dry cleaning facilities. The proposed action is significant for several reasons, including that it represents the first use in a very long time of TSCA Section 6 as well as the first Section 6 control action taken under new TSCA. Specifically, EPA is proposing to prohibit the use of TCE in “aerosol degreasing and for use in spot cleaning in dry cleaning facilities; to prohibit commercial use of TCE for aerosol degreasing and for spot cleaning in dry cleaning facilities; to require manufacturers, processors, and distributors, except for retailers of TCE for any use, to provide downstream notification of these prohibitions throughout the supply chain; and to require limited recordkeeping.” We look forward to a close reading of the proposed rule and to evaluating the arguments, the policy points, and the evidence provided by EPA to satisfy the various legal requirements, including those under Section 6(c) and Section 26.

Dirty Dirt or Clean Fill – Absent Proof It’s Dirty, New Jersey Court Says No Liability for Disposal of Clean Fill

Posted on December 20, 2016

Riker Danzig Scherer Hyland & Perretti LLP
Alexa Richman-La Londe

December 7, 2016

In recent years, the New Jersey Department of Environmental Protection (“NJDEP”) has focused on addressing the improper disposal of contaminated soil, which can result in soil piles that create environmental and health risks from polluted run-off. To address one such site, in 2011 the NJDEP filed suit alleging that an approximately 60-foot high contaminated soil stockpile in Woodbridge, New Jersey had been operated as an illegal landfill for over 11 years. NJDEP filed suit against the property owner and the business operator, seeking to hold them responsible for violating environmental laws and for the cleanup of the site. NJDEP also sought the same relief against several companies that brought material, usually from utility line or roadway projects, to the site for disposal (the “Contractor Defendants”). In a recent decision, the Court granted the Contractor Defendants’ motion for summary judgment finding there is no liability resulting from the disposal of “clean fill” at the site. New Jersey Department of Environmental Protection v. LWS Spector-Woodbridge Company, LLC et al., Docket No. C-107-11 (Ch. Div. Sept. 15, 2016).