A Brownfield Model Collapses Under the Weight of Litigation: City of Wichita v. Trustees of the Apco Oil Corporation Liquidating Trust 
Neal H. Weinfield, Greenberg Traurig, LLP, Chicago, IL

Evaluating Data Usability and Representativeness Under the New MCP Guidelines
Susan D. Chapnick, New Environmental Horizons, Inc., Arlington, MA
Ian M. Phillips, Roux Associates, Inc., Burlington, MA  

EPA's New "All Appropriate Inquiry" Standards: When Have You Done Enough?
John G. Nevius, Anderson Kill & Olick, PC, New York, NY

An Overview of DEP's Proposed Asbestos in Soil Regulations and the Implementation of Innovative Asbestos Impacted Soil Remediation Methods
James R. Fair, Weston & Sampson Engineers, Inc., Peabody, MA

Dams and Contaminated Sediments: Regulation, Removal and Liability
Andrew Skroback, Hunton & Williams, New York, NY

A Brownfield Model Collapses Under the Weight of Litigation: City of Wichita v. Trustees of the APCO Oil Corporation Liquidating Trust

Neal H. Weinfield, Greenberg Traurig, LLP, 77 West Wacker Drive, Suite 2500, Chicago, IL 60601, Tel: 312-456-6585, Fax: 312-899-0322, Email: weinfieldn@gtlaw.com

This presentation will focus on the City of Wichita’s largely failed efforts to collect its response costs for remediating the Gilbert & Mosley Site (“Site” ), one of the premier Brownfield redevelopment models.  In City of Wichita v. Trustees of the Apco Oil Corporation Liquidating Trust, 306 F. Supp. 2d 1040 (D. Kansas 2003), the Court held that if properly used, computer models are invaluable in estimating the size of overlapping contaminant plumes.  Both parties used computerized groundwater modeling to determine the plume sizes allegedly migrating from each source, and mathematical computations to allocate orphan shares within the Site.  Both parties agreed that where plumes overlapped, the overlapped area should be divided by the number of PRPs whose plumes contributed to the overlap.  However, the parties then parted ways.  The City proposed two allocation models; the Trustees evaluated six allocation models.  The City’s groundwater modeling expert modeled parent CVOCs for some sources, and daughter CVOCs for others; the Trustees’ expert modeled parent CVOCs for some sources, and daughter CVOCs for others; the Trustees’ expert modeled both parent and daughter CVOCs for all sources.  The City saddled the last two defendants remaining at trial with the entire orphan share; the trustees argued that they should be saddled with little if any orphan share.  Both parties used the same computer model, but inputted different variables.  Faced with competing modeling, the Court reasoned that “even in the best of circumstances, a model is only an estimate and the accuracy of the estimate depends to a considerable extent on the data selected for sue in the computer model, the quality and reliability of that data and, of course, the skill of the modeler.”  Ultimately, the Court rejected the City’s modeling base don Daubert, holding that “To be reliable, the expert’s testimony must be based on the ‘methods and procedures of science’ and reflect more than the witness’’ ‘subjective belief or unsupported speculation.’”  After examining glaring errors in the City’s modeling, the Court rejected the City’s methodology because it was not based on any guidelines or standards, but rather on poor quality “professional judgment”.  The presentation will delve into groundwater modeling, modeling presentation, allocation, Daubert principles, and witness creditability.   

Evaluating Data Usability and Representativeness Under the New MCP Guidelines. 

Susan D. Chapnick, New Environmental Horizons, Inc., 2 Farmers Circle, Arlington, MA 02474, Tele: 781-643-4294, Fax: 908-874-4786, Email: s.chapnick@comcast.net
Ian M. Phillips, Roux Associates, Inc., 25 Corporate Drive, Suite 230, Burlington, MA 01830, Tele: 781-270-6600, Fax: 781-270-9066, Email: iphillips@rouxinc.com
Nancy C. Rothman, New Environmental Horizons, Inc., 34 Pheasant Run Drive, Skillman, NJ 08558, Tele: 908-874-5686, Fax: 908-874-4786, Email: n.rothman@patmedia.net

In April 2006, the Wave 2 updates to the Massachusetts Contingency Plan (MCP) were promulgated.  Within these regulations (subpart K of 40.1056) is the requirement that all Class A, B, or C Response Action Outcomes (RAOs) include a Data Usability Assessment to document that the data used are scientifically valid and defensible and “of a sufficient level of precision, accuracy, and completeness to support the RAO”. In addition, an evaluation of Representativeness must be included to demonstrate that adequate, usable data have been collected to represent the nature, extent, and risk from contamination at a Disposal Site.  The Massachusetts Department of Environmental Protection (MADEP) formed a workgroup to develop guidance identifying the measures that need to be evaluated and documented in a Data Usability Assessment and Representativeness Evaluation. This presentation will illustrate the application of quantitative (analytical quality control results such as surrogate recoveries and laboratory blank spikes) and qualitative (conceptual site models, site history, etc.) measures that may be used to demonstrate data usability and representativeness.  We will discuss the interpretation of the MADEP guidance for different site scenarios and offer recommendations to enhance the generation of data that will be considered both usable and representative to support a RAO.

EPA’s New “All Appropriate Inquiry” Standards:  When Have You Done Enough?

John G. Nevius, Anderson Kill & Olick, P.C., 1251 Avenue of the Americas, New York, NY 10020-1128, Tel: 212-278-1508, Fax: 212-278-1733, Email: jnevius@AndersonKill.com

No one wants to buy into a Superfund site.  However, when buying or investing in property you can never be absolutely certain of what’s in the ground.  So how do you protect yourself and your clients?  What does it take to meet a due diligence requirement?  When have you done enough?  It just got clearer as this presentation will explain.

The Environmental Protection Agency (“EPA”) recently published a Final Rule establishing an “all appropriate inquiry” (“AAI”) standard.  The rule addresses minimum due diligence for so-called innocent or contiguous landowners as well as bona fide prospective purchasers seeking liability protection from the reach of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA” commonly known as “Superfund”).  The AAI Rule will take effect on November 1, 2006, but can be utilized now!

On January 11, 2002, President Bush signed into law the Small Business Amendments Liability Relief and Brownfields Revitalization Act (the “Act”).  The Act provides for protection from liability under CERCLA for purchasers of properties ultimately found to be contaminated by Hazardous Substances.  To qualify for the Act’s protection, prospective purchasers must take reasonably diligent steps, including undertaking “all appropriate inquiry” to determine whether property may be contaminated.

Environmental Professionals hired to undertake all appropriate environmental inquiries must now conduct interviews with a wider range of individuals than they would have had to under the prior American Society of Testing and Materials (“ASTM”) “Phase 1” guidelines.  They must also undertake a more thorough visual inspection of properties adjoining the subject property, review a broader array of governmental records and expressly acknowledge areas of uncertainty that may have an effect on their conclusions.

The new AAI standards go further than the prior ASTM guidelines and have the advantage of being final EPA Rules promulgated pursuant to federal law.  Properly undertaking all appropriate inquiry should go a long way toward alleviating the uncertainty associated with property contamination and potential Superfund liability.  Environmental professionals of all stripes would be well-advised to become more familiar with this important new development.

An Overview of DEP’s Proposed Asbestos in Soil Regulations and the Implementation of Innovative Asbestos Impacted Soil Remediation Methods.

James R. Fair, PE, Weston & Sampson Engineers, Inc., 5 Centennial Drive, Peabody, MA, 01960, Tel: 978-532-1900 ext. 2334, Fax: 978-977-0100, Email: fairj@wseinc.com
George D. Naslas, PG, LSP, Weston & Sampson Engineers, Inc., 5 Centennial Drive, Peabody, MA, 01960, Tel: 978-532-1900 ext. 2279, Fax: 978-977-0100, Email: naslasg@wseinc.com

The Department of Environmental Protection (DEP) is in the process of significantly revising the regulations governing asbestos contaminated soil. We will review the proposed changes to the Air Quality, Solid Waste and the Massachusetts Contingency Plan (MCP) Regulations, and will present examples of innovative remediation methods utilized at large scale Massachusetts asbestos contaminated sites. The presentation will cover current analytical methods for asbestos fibers in soil, and will review options for demonstrating No Significant Risk (NSR) for site closure under the MCP, including the use of Pilot Studies and quantitative risk assessments utilizing the Superfund (Elutriator) Method to measure asbestos in respirable dust. In addition, we will discuss Best Management Practices (BMPs) and a proposed Pilot Study at a local Municipal landfill to assess the use of soil containing low levels of unconsolidated asbestos fibers as landfill grading and shaping material or possibly daily cover.

Dams and Contaminated Sediments:  Regulation, Removal and Liability

Kathy Robb, Hunton & Williams, 200 Park Avenue, New York, NY 10003, Tel: 212-309-1128, Email: krobb@hunton.com
Andrew Skroback, Hunton & Williams, 200 Park Avenue, New York, NY 10003, Tel: 212-309-1228, Email: askroback@hunton.com

There are tens of thousands of dams in the United States, more than 75,000 of which are greater than six feet high.  Each of these dams is a potential repository for contaminated sediments from upstream sources that are washed into the waterbody it spans.  These contaminants can include everything from pesticides to heavy metals to polychlorinated biphenyls (“PCBs”).  An estimated eighty-five percent of the Nation’s dams will be over 50 years old by 2020.  As these dams age, and as pressure mounts to remove dams from the Nation’s rivers, more and more regulatory attention will be paid to the contaminated sediments gathering behind them and to the potential liabilities associated with them.

The proposed article, “Dams and Contaminated Sediments:  Regulation, Removal and Liability,” would examine the sources of potential liability and its application to a variety of parties, including dam owners and operators, abutting property owners, and up-stream dischargers.  The scope and application of liabilities associated with the contaminated sediments impounding behind the Nation’s dams is not clear.  Accordingly, the article will provide guidance on a number of questions, including:

• When are dam owners liable for the contaminated sediments gathering behind their dams?

• Are dam owners or operators – current and past – liable for releases of contaminated sediments through normal dam operation, including drawdowns that resulted in re-release of sediments gathered behind their dams?

• Who is responsible if a dam fails?

• What are the potential statutory and common law bases of liability?

• Does the Clean Water Act regulate discharge of water through dams?

• Are municipalities or other government agencies protected from liability through sovereign immunity?

• What liabilities do dischargers face for contaminants released upstream and now settled out in the sediments located behind the dams?  Can this include POTWs?

• Can the liability protections adopted in the Brownfields Revitalization and Environmental Restoration Act of 2001 limit liabilities related to sediments gathering behind dams?

• How does the Endangered Species Act affect the fate of the Nation’s aging dams?

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