Beyond Horse Trading: Legal Defenses to Natural Resource Damages Claims
Neal H. Weinfield, Greenberg Traurig, LLP, Chicago, IL  

PCBs in Precipitation and Surface Waters in Georgia:  Are Water Quality Standards Achievable?
Mark B Meyers, Quantitative Environmental Analysis, LLC, Montvale, NJ

Urban Polycyclic Aromatic Hydrocarbons (PAHs):  A Florida Perspective
Christopher Teaf, Florida State University, Tallahassee, FL  

Review of EPA-Approved Risk-Based Cleanups for PCBs Under TSCA
Mary B. Hayes, ENSR, Westford, MA

Changes to EPA’s Spill Prevention, Control, and Countermeasure (SPCC) Program
Melanie Morash, U.S. EPA New England Oil Program, Boston, MA  

US Environmental Protection Agency Response to the Danversport Explosion Site
Alex Sherrin, US EPA Boston, Boston, MA

Beyond Horse Trading: Legal Defenses to Natural Resource Damages Claims

Neal H. Weinfield,  Greenberg Traurig, LLP, 77 W. Wacker Drive, Suite 2500, Chicago, IL  60601, USA, Tel:  312-456-6585, Fax: 312-456-8435, Email:  weinfieldn@gtlaw.com

There has been a  rapid rise in NRD claims over the past few years.  Often the best method of resolving NRD claims is through  an exchange of broad brushed estimates of ecological and groundwater damages.  However, there are powerful legal defenses to NRD liability that may pose a serious impediment to governmental recovery.  This presentation discusses the viability of such defenses under the Oil Pollution Act (OPA) and CERCLA.  Defenses under OPA include: the  exemption from liability for parties that do not currently own the facet or were not the last parties to own the facility before it was abandoned, the absence of the Trustee's jurisdiction over oil releases that were not into navigable waters, and failure to comply with NOAA's  rigorous procedural requirements.  Defenses under CERCLA include: the petroleum exclusion, CERCLA's prohibition on recovering NRD for pre-1980 releases, the statute of limitations, failure to comply with DOI's procedural requirements, and  failure to select a cost effective remedy.  The presentation will also discuss the recent holding in  New Mexico v. General Electric, as well as the defenses that the defendant may not have caused the contamination in the first place.  Knowing the full range of legal defenses is critical to achieving a fair result in negotiations and litigation.  

PCBs in Precipitation and Surface Waters in Georgia :  Are Water Quality Standards Achievable?

Mark B. Meyers, Quantitative Environmental Analysis, LLC, 305 West Grand Avenue, Montvale, NJ 07645, Tel:  201-930-9890, Fax: 201-930-9805, Email: mmeyers@qeallc.com
David Glaser, Quantitative Environmental Analysis, LLC, 305 West Grand Avenue, Montvale, NJ 07645, Tel:  201-930-9890, Fax: 201-930-9805, Email: dglaser@qeallc.com
John P. Connolly, Quantitative Environmental Analysis, LLC, 305 West Grand Avenue, Montvale, NJ 07645, Tel:  201-930-9890, Fax: 201-930-9805
Randy McAlister, General Electric Company, 3135 Easton Turnpike, W1L, Fairfield, CT 06431, Tel: 203-373-3855, Fax: 203-373-2683

PCBs are ubiquitous in natural waters due to their presence in the global atmosphere.  Studies have demonstrated that PCB levels in precipitation reflect a regional background signal supplemented by local sources that are evident in the vicinity of urban areas.  Background (non-urban) PCB levels in precipitation are on the order of 500 pg/L.  The contribution of precipitation to PCB levels in receiving waters is potentially significant in that the background PCB concentrations in precipitation tend to be higher than PCB water quality standards established to be protective of fish consumption.  For example, the USEPA water quality criterion for the protection of human health is 64 pg/L, and the Georgia water quality standard is 173 pg/L.  PCB concentrations in Georgia surface waters distant from known point sources exceed water quality standards.  To evaluate whether precipitation likely accounts for these PCBs, PCB levels were monitored in both precipitation and in surface waters in Georgia .  Based on the observed similarities in both total PCB concentration and PCB composition, it was concluded that the primary source of the PCBs to these surface waters is the atmosphere.  This has significant implications for the TMDL program, as well as point source discharge permitting.  In Georgia , waters with fish tissue levels considered insufficient to warrant fish advisories under risk-based action levels (and therefore not listed for TMDL development) contain PCB levels in the water exceeding water quality standards.  Thus, regulatory efforts to establish appropriate water quality standards for protection of human health resulting from fish consumption are confounded by the inconsistency between the various methodologies used to develop risk-based criteria, standards and advisories, as well as the available water quality and fish tissue data.  It is critical to consider achievability, necessity and reliability in our efforts to ensure clean water.

Urban Polycyclic Aromatic Hydrocarbons (PAHs):  A Florida Perspective

Christopher M. Teaf, Center for Biomedical & Toxicological Research, Florida State University, 2035 Dirac Dr., Tallahassee, FL, 32310, Tel: 850-644-5524, Fax: 850-574-6704, Email: cteaf@mailer.fsu.edu.
Douglas J. Covert, Hazardous Substance & Waste Management Research, 2976 Wellington Circle West, Tallahassee, FL, 32309, Tel: 850-681-6894, Fax: 850-906-9777, Email: dcovert@hswmr.com.
Srikant Kothur, Hazardous Substance & Waste Management Research, 2976 Wellington Circle West, Tallahassee, FL 32309, Tel: 850-681-6894, Fax: 850-906-9777

Over the past decade, polycyclic aromatic hydrocarbons (PAHs) have steadily climbed in importance for the CERCLA list of hazardous substances.  Those biennial rankings, comprised of chemicals deemed to pose the greatest potential risk to human health, have seen the PAHs go from 10th in 1997 to 7th in 2005.  Though the listing does not necessarily imply that these chemicals exhibit the greatest degree of toxicity, such recognition by ATSDR and USEPA is predicated at least in part on their overwhelming ubiquity in association with many very common sources, coupled with toxicity considerations. Regulatory agencies increasingly are under pressure to define and interpret data describing urban background level, and to appropriately determine the relative importance of waste-producing activities and concentrations resulting from typical natural and/or human activity. Three case studies from Florida sites are presented that confirm the ubiquity of the PAHs at low levels, and that demonstrate the need for more sophisticated and transparent treatment by regulatory agencies.  We discuss assessment and risk assessment activities related to two urban redevelopment projects (one in north-central Florida and one in central Florida), as well as one property transaction project in west-central Florida.  In each case, considerable sampling of surficial soils and sediment identified total benzo(a)pyrene-equivalent (BaPeq) concentrations in the range of less than one part per million (ppm) to about the 5 ppm.  Although those concentrations frequently exceeded the default Florida cleanup target level for both residential and commercial/industrial land use by a wide margin, it was concluded that they are completely consistent with levels reported in a great many urban settings.  There is an ongoing need to consider the development of a default urban background level for PAHs in areas characterized by busy roadways or multiple industrial facilities, in much the same way that geological or anthropogenic background levels are established for some inorganics. 

Review of EPA-Approved Risk-Based Cleanups for PCBs Under TSCA 

Mary B. Hayes, ENSR, 2 Technology Park Drive , Westford , MA 01886 , Tel: 978-589-3000, Fax: 978-589-3100, Email: mhayes@ensr.aecom.com
Michelle Snyder, ENSR, 2 Technology Park Drive , Westford , MA 01886 , Tel: 978-589-3000, Fax: 978-589-3100, Email: msnyder@ ensr.aecom.com
Erin Coughlan, ENSR intern and student, McGill University , Montreal , Canada , Email: ecoughlan@ensr.aecom.com

The Toxic Substances Control Act and its implementing regulations (40 CFR 761) govern the investigation, remediation, storage and disposal of polychlorinated biphenyls (PCBs).  While TSCA was designed to control the distribution of PCBs in commerce, it also governs hazardous waste site cleanups, which can be a painful fit!    

Under TSCA, there are three approaches for cleanup and disposal of PCB Waste (761.61): self-implementing, performance-based, and risk-based.  The self-implementing approach requires the least amount of EPA involvement, but it has the most stringent requirements, limited disposal options, and only addresses soil.  The performance-based approach limits disposal options to incineration or disposal at a TSCA or RCRA Subtitle C Landfill (very costly).  The risk-based approach allows the greatest flexibility to design a cost-effective remedial approach for your site.  It potentially allows targeted PCB characterization sampling, less expensive treatment technologies, and less stringent cleanup standards.  John H. Smith of EPA Headquarters encourages the use of TSCA risk-based approaches, as well as “mixing and matching” elements of risk-based and self-implementing approaches.  Many consultants are unfamiliar with how to implement these approaches.  What’s involved? How long will it take?  What are the benefits?

To answer those questions, we reviewed PCB cleanups conducted with EPA review in EPA Region 1 ( New England ), conducted under either TSCA or CERCLA.  The review was undertaken to find out what approaches were approved by the EPA, including alternative PCB characterization and verification sampling, and alternative treatment technologies.  We also identified the methodologies to support the risk-based determinations, including recommended geostatistical analysis software.  This review will help consultants to efficiently use the TSCA risk-based approach to design cost-effective, protective solutions for their PCB waste sites.    

Changes to EPA’s Spill Prevention, Control, and Countermeasure (SPCC) Program

Melanie Morash, U.S. EPA New England Oil Program, One Congress Street (HBR), Boston, MA 02114, Tel: 617-918-1298, Fax: 617-918-0298, Email: morash.melanie@epa.gov

For more than three decades, EPA’s Spill Prevention, Control, and Countermeasure (SPCC) Program has worked at several hundred thousand oil storage facilities throughout the country to prevent the discharge of oil into the waters of the United States .  EPA’s SPCC Regulation was promulgated under the authority of the Clean Water Act and became effective on January 10, 1974.  Oil storage facilities subject to the SPCC Regulation must prepare written SPCC plans detailing the facility’s spill prevention and control measures and have the plans certified by a licensed Professional Engineer.  Certain facilities may now be eligible to self-certify their own SPCC plans.  Facilities must fully implement their written SPCC plans including: constructing secondary containment or diversionary structures to contain spills from tanks, piping, transfer areas, and loading racks; training oil-handling employees; and conducting regular inspections of oil storage, handling, and transfer areas.  Substantial revisions to the SPCC Regulation were passed on July 17, 2002, December 12, 2006, and May 10, 2007, in the first instance revising the Regulation with stricter spill control requirements but extending the compliance date for certain facilities to October 31, 2007, in second case providing relief to many qualified facilities within the regulated community, and in the last instance further extending the compliance date for certain facilities to July 1, 2009.  This presentation will review the history and scope of the SPCC Regulation, describe the streamlined, alternative methods now available to facilities for compliance with the new requirements, and clarify the eligibility criteria for facilities wishing to take advantage of the July 1, 2009 compliance date extension.

US Environmental Protection Agency Response to the Danversport Explosion Site

Mike Nalipinski, US EPA Region I New England, One Congress Street, Boston, MA 02114, Tel: 617-918-1268, Email: nalipinski.mike@epa.gov
Ted Bazenas, US EPA Region I New England, One Congress Street, Boston, MA  02114, Tel: 617-918-1230, Email: bazenas.ted@epa.gov
Dan Wainberg, US EPA Region I New England, One Congress Street, Boston, MA 02114, Tel: 617-918-1283, Email: wainberg.dan@epa.gov
Catherine Young, US EPA Region I New England, One Congress Street, Boston, MA 02114, Tel: 617-918-1217, Email: young.catherine@epa.gov
Alex Sherrin, US EPA Region I New England, One Congress Street, Boston, MA 02114, Tel: 617-918-1252, Email: sherrin.alex@epa.gov

On early Wednesday morning, November 22, 2006, an explosion at the CAI Incorporated facility in Danversport , Massachusetts destroyed the facility and severely damaged many surrounding buildings and homes.  The explosion was large enough to register 0.5 on the Richter scale at the Boston College observatory, almost 30 miles away in Weston, and resulted in a 10 alarm fire.  Residents of the densely populated area were evacuated to protect them from the fire and exposure to hazardous materials.  

The US Coast Guard, Massachusetts Department of Environmental Protection (MA DEP) and US Environmental Protection Agency (US EPA) all responded to assist the local and State emergency response teams.  The MADEP and US EPA began ambient air monitoring early on the morning of the explosion to assess the potential exposure of the neighborhood and responders to air-borne contaminants.  In addition, water and sediment samples were collected from Waters River to assess releases to the marine environment.  The clean up consisted of removal of drums, above ground vats and product from underground storage tanks, and excavation of contaminated soil.   This paper will discuss the response and the results of the environmental monitoring and clean up.

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