Tagged: Superfund

On July 20, 2018

On June 18, 2018, the United States Environmental Protection Agency’s (“EPA”) held the last of eight listening sessions on the recommendations of its Superfund Task Force. This last listening session concerned Part 2 of Recommendation 16-2018, which calls for improvement in the process of implementing cleanup agreements under which potentially responsible parties (PRPs) commit to carry out site cleanups under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). EPA speakers included Ellen Stern (Office of Regional Counsel, Region 10), Ken Patterson (Office of Site Remediation Enforcement (OSRE), Douglas Dixon (OSRE), and Charles Howland (Office of Regional Counsel, Region 3). They noted a number of reasons for delays in the completion of cleanups under such agreements, ranging from the submission of multiple versions of the same deliverable and time-consuming dispute resolution procedures to lax (or, conversely, excessively stringent) enforcement of deadlines and imposition of stipulated penalties. They also acknowledged EPA’s reluctance to exercise its most extreme enforcement tool – taking over the work and using financial assurance established by the PRPs. Outside participants called on EPA to expand the number of PRPs that are called upon to perform cleanups (including municipalities) to reduce the financial burden on any one PRP. The Superfund Task Force was created in May 2017 to propose recommendations for streamlining and strengthening the...

Superfund Task Force Listening Session on Recommendation 21: Encouraging PRPs to Integrate Reuse Opportunities into Cleanups

Posted in Development/Redevelopment / Environmental and Green Issues

On June 14, 2018

On June 11, the U.S. Environmental Protection Agency (EPA) held the fourth of its listening sessions on the recommendations of its Superfund Task Force to improve the implementation of the federal Superfund program. This session focused on Recommendation 21, which is to encourage Potentially Responsible Parties (PRPs) to integrate reuse opportunities into their cleanup plans. The EPA presenters began by providing the background of the Superfund Task Force Report and its five overall goals: (1) expediting cleanup and remediation; (2) reinvigorating PRP cleanup and reuse; (3) encouraging private investment; (4) promoting redevelopment and community revitalization; and (5) engaging partners and stake holders. The EPA presenters identified why PRPs may have an incentive for incorporating reuse into their cleanup plans. They also posed two questions: (1) why do PRPs not routinely consider re-use when performing site investigations and cleanups; and (2) what options and incentives can EPA use to assist PRPs in integrating re-use into their decision-making process? A copy of the slide presentation accompanying EPA’s oral presentations is available here. EPA then opened the floor for questions and comments from the participants in the listening session. There was only one comment made during the call: a lawyer from Northwestern Pritzker Law School commented that it was not clear that emphasizing reuse of sites is consistent...

Superfund Task Force Listening Session – Exploring CERCLA Environmental Liability Transfer Approaches

Posted in Development/Redevelopment / Environmental and Green Issues

On June 12, 2018

On June 5, 2018 the Superfund Task Force held another of its eight scheduled public listening sessions intended to solicit public and stakeholder input relating to recommendations contained in the Task Force’s July 2017 report. The listening session focused on Recommendation 22, which suggests exploring Environmental Liability Transfer (ELT) approaches and other risk management tools. While Recommendation 22 addresses a variety of risk management approaches Potentially Responsible Parties (PRPs) might use to transfer responsibilities, the listening session honed in on ELTs specifically. Participants in the listening session were able to follow along with a presentation from Greg Wall of OSRE’s Regional Support Division, Erik Hanselman of OSRE’s Policy and Program Evaluation Division, and Charlie Howland from the Region 3 Office of Regional Counsel, who described the general function of ELTs and offered details from two case-studies where ELTs were used effectively to spur cleanup by private parties at sites with unique challenges. As detailed by the presenters during the session, an ELT is a mechanism whereby PRPs contractually transfer their cleanup response obligations to a specialized third party for a negotiated price. The upside to the public of such arrangements is that they encourage cleanup by specialized private parties who are particularly motivated to cleanup and redevelop properties as expeditiously as possible, all of which helps to...

Superfund Task Force Recommendation 27 Listening Session: New Tools to Encourage Private Investment in Cleaning Up and Reusing Superfund Sites

Posted in Development/Redevelopment / Environmental and Green Issues

On June 8, 2018

The Environmental Protection Agency (EPA) held a listening session concerning the Superfund Task Force (“Task Force”) Recommendation 27 on June 5, 2018 focusing on new tools for reusing Superfund sites through private investment. The EPA created the Task Force in May 2017, and it is comprised of senior representatives from various EPA offices associated with Superfund policy and enforcement. The Task Force intends to streamline and strengthen the Superfund program. In July 2017, the Task Force issued a report containing five goals and forty-two recommendations. The Task Force’s five goals are to: i) expedite the cleanup and remediation process; ii) reinvigorate responsible party cleanup and reuse; iii) encourage private investment; iv) promote development and community revitalization; and v) engage parties and stakeholders. Recommendation 27 seeks to implement some or all of the five goals by identifying tools for third parties interested in opportunities that support the cleanup or reuse of priority sites. EPA understands potential investors have concerns about uncertain liabilities, and looks to identify those specific concerns and to identify tools that may address such concerns. For example, the agency may determine standard language to include in agreements that would facilitate financing, and may create public-private partnership investment opportunities and structure. During the listening session, EPA noted that there are existing tools to clarify...

Superfund Task Force Holds First of Eight Listening Sessions for Stakeholders, Focused on Expediting Settlement Negotiations

by Susanne Peticolas

Posted in Development/Redevelopment / Environmental and Green Issues

On May 29, 2018

The Superfund Task Force, created in May 2017, issued a report in July 2017 proposing recommendations to streamline and strengthen the Superfund program. The Report contained five goals and 42 recommendations. In order to obtain input from stakeholders and the public and to increase transparency and improve communications, USEPA has convened eight listening sessions being held from May 21 to June 18, 2018. The Gibbons Environmental Department will be covering these listening sessions and blogging about them. The first listening session, which focused on expediting settlement negotiations, was held on May 21, 2018. The five goals of the Superfund Task Force Report are: (1) expediting cleanup and remediation process, (2) reinvigorating responsible party cleanup and reuse, (3) encouraging private investment, (4) promoting redevelopment and community revitalization, and (5) engaging partners and stakeholders. The first listening session focused on Goal 2 through the strategy of encouraging responsible party clean-up with expedited negotiations. Christina Skaar from OSRE’s Regional Support Division and Elizabeth McKenna, Region 10 Office of Regional Counsel, made a short presentation at the beginning of the listening session. Recommendation 16.2 covers strategies to focus on and decrease the time involved in negotiating cleanup agreements and implementing cleanup work once agreement is finalized. Ms. Skaar noted the benefits of expediting settlements: earlier response to contamination, greater protection of human...

Budget Act Makes Changes to Federal Brownfield Program

Posted in Development/Redevelopment / Environmental and Green Issues

On April 10, 2018

As noted in last week’s blog, the recently-passed Consolidated Omnibus Appropriations Act made a number of modifications to the federal brownfield program. That blog focused on the expansion of lessees’ ability to qualify for Bona Fide Prospective Purchaser (BFPP) status (and thereby obtain protection from Superfund liability). However, the Act made other changes that are of interest to brownfield site owners, developers, states, municipalities, and potential applicants for federal brownfield grant money. These modifications are found in Division N of the legislation, entitled “the Brownfields Utilization, Investment, and Local Development Act of 2018” (“BUILD Act”). They include the following: eliminating state and local government Superfund liability for sites acquired through seizure or otherwise in connection with law enforcement activity. State and local governments were previously protected only with respect to sites acquired “involuntarily”; eliminating the restriction for grants to petroleum sites that a site must be “relatively low risk” as compared with other petroleum-only sites in a state; allowing grants to be used for the cleanup of publicly-owned properties even if the public owner is not a BFPP; increasing the maximum federal brownfield grant per site from $200,000 to $500,000, which limit can be waived by EPA up to a maximum of $650,000 per site; authorizing multi-purpose brownfield grants of up to $1 million per...

Federal Budget Act Expands Lessees’ Ability to Claim Superfund Exemption as Bona Fide Prospective Purchasers

Posted in Development/Redevelopment / Environmental and Green Issues

On April 6, 2018

The recently-enacted Consolidated Omnibus Appropriations Act made headlines in extending funding for federal government programs through September 30, 2018. Less widely noted were the myriad changes wrought by the Act to the administration of many federal programs. Among the programs affected was the federal brownfields program. The major substantive change in the Act was the expansion of the Bona Fide Potential Purchaser (BFPP) protection for lessees of properties. BFPP status exempts from Superfund liability parties who become owners or operators of facilities after the discharge of contaminants, so long as they are unrelated to parties responsible for the discharge, conduct “all appropriate inquiries” (e.g., a Phase I environmental site assessment) prior to closing, and observe certain other protocols post-closing. Until now, lessees were precluded from qualifying as a BFPP unless the property owner was also a BFPP. Now, if a lessee performs the required actions, it can obtain BFPP protection irrespective of whether its landlord is similarly exempted. This change will have a major impact on the liability exposure of lessees, particularly those who are developing and operating properties under long term ground leases. Most of the Act’s other brownfield-related provisions concern the funding of federal brownfield grants. Non-profit organizations are now eligible for such grants. The eligibility of grants for petroleum-related sites has been expanded. The...

EPA Provides Look Into Pending Financial Assurance Regulations

On June 13, 2016

Recently, the United States Environmental Protection Agency (“EPA” or “the Agency”) shared some preliminary details regarding its impending proposal of financial assurances regulations for the hardrock mining industry. These regulations, which are still under consideration by the Agency, will likely serve as a harbinger of the financial assurances requirements EPA intends to impose on other industries, and collectively, they have the potential to have a significant financial impact on parties responsible for cleaning up contaminated properties.

5th Circuit Rules that Sale of Chemical is Not Disposal

On January 26, 2015

On January 14, the U.S. Court of Appeals for the 5th Circuit ruled that the sale of a useful chemical did not make the seller an “arranger for disposal” under Superfund, even where seller knew that some of that chemical would be spilled during its use. Vine Street LLC v. Borg Warner Corp., 2015 BL 8885, involved the sale of dry cleaning machines and PCE, a dry cleaning fluid, by Norge, a predecessor of Borg Warner. Norge equipped the machines with water separators, which it knew were not 100% effective. It continued to work with the dry cleaner to reduce spillage by modifying the separators’ design. Nonetheless, contamination resulted, and Vine Street, a successor landowner, sued Borg Warner for contribution to the cost of cleanup. The District Court held Borg Warner liable for 75% of the cost of cleanup based on its knowledge that some contamination resulted from these sales.

Sixth Circuit Becomes Latest Federal Appeals Court to Rule That CERCLA’s Contribution and Cost Recovery Provisions Provide Mutually Exclusive Remedies to PRPs