Groundwater Cleanups - What If Drinking Water Standards Cannot Be Met?

Posted on April 20, 2010 by Charles Tisdale

EPA began the CERCLA program in 1980 with the view that all sites could be remediated to stringent cleanup standards, including drinking water standards for contaminated groundwater. The primary remedy selected for groundwater contamination was extraction and treatment. Consent Orders typically required groundwater remediation to be conducted for 30 years, if necessary, to achieve drinking water standards.

            New technologies are being used to remediate groundwater and there has been much progress. However, there are still sites where it is clear that drinking water standards will not be met in 30 years and where the cost of continued treatment produces only limited reduction of contaminant levels.  CERCLA is 30 years old and there are many case histories to use in the evolution of policies developed when the program began. 

            EPA provides relief for contaminated groundwater that exceeds drinking water standards through technical impracticability waivers, alternative concentration limits and monitored natural attenuation. However, these mechanisms have not provided the relief that many expected at sites where the facts show that standards will not be met.

            EPA and states have changed their original position with respect to cleanup of soil to stringent limits in all locations. Environmental agencies now look at issues of risk and actual exposure to contaminated soil rather than theoretical exposure. Some states have developed new policies with respect to groundwater remediation which include more thorough considerations of risk and actual exposure.

            There is growing concern over the availability of water, even in areas of the United States which have not experienced water supply problems in the past. Thus, there are strong reasons for remediating contaminated groundwater to drinking water standards. However, there are a number of sites where long term remediation will not achieve drinking water standards.

            Is there a need for new policies and procedures for sites where contamination levels can be reduced but drinking water standards will not be achieved? What elements are appropriate for a new policy? Should there be a procedure for environmental agencies to restrict the use of groundwater where there is no risk to actual drinking water supplies? Should EPA provide guidance to encourage the use of technical impracticability for these sites? Should the agency consider a policy to control the plume of contamination rather than requiring drinking water standards to be met throughout the contaminated groundwater?

In Search of Mitigation: Savannah Harbor Deepening Project

Posted on April 15, 2010 by Drew Ernst

With the anticipated Panama Canal expansion (expected to be completed by 2014), the Port of Savannah, Georgia is preparing for the new super-sized container vessels coming its way. Part of that preparation includes a proposed harbor deepening project (“Savannah Project”). The Savannah Project carries with it a price tag of $588,000,000 with a sizable portion of this amount earmarked for mitigation.

 

The primary component of the Savannah Project is deepening the existing entrance channel from forty-two feet up to forty-eight feet. The concern with any large-scale project like this, however, is the impact it will have on the surrounding environment and how that impact can be appropriately managed and mitigated. Adding to the mix is the tremendous economic impact the Savannah Harbor has on the entire State of Georgia. Georgia's deepwater ports support over 286,000 jobs and contribute 14.9 billion dollars in income to the State of Georgia.

 

Mitigation is both a hot topic in environmental law, and in many cases, a moving target. The Savannah Project provides a unique case study for both the process of approving a large-scale project like the Savannah Project and the creative and innovative ways mitigation can be discussed and hopefully achieved. 

 

With respect to the Project, the concomitant mitigation plan includes mitigation for cultural resources, natural resources mitigation, an impact avoidance plan, and in an unusual move, a monitoring and adaptive management plan. Primary concerns include the potential loss of freshwater marsh due to intrusion and an increase in salinity levels; potentially decreased dissolved oxygen levels in the Savannah River; potential harm to the Striped Bass and Shortnose Sturgeon population; and cadmium levels in dredged sediment. As an example, without mitigation of any kind, deepening the channel to 48 feet would impact approximately 1,212 acres of freshwater wetlands. With mitigation, the impact could be limited to 337 acres.

 

Proposed mitigation measures include altering the flow of fresh and saltwater through a variety of cuts and contouring, construction of a fish bypass structure, closing of selected channels connecting the Savannah River and its tributaries and opening cuts between various adjacent waterways. To specifically address concerns about dissolved oxygen, proposed mitigation efforts call for oxygen injection in several places in the Savannah River through a “bubbler” system made up of injection cones. Each cone would inject up to 15,000 pounds of oxygen into the river per day.

 

Further mitigation efforts call for the purchase and/or preservation of freshwater wetlands in the upper harbor basin to offset the impact of the Savannah Project on existing freshwater estuaries and the creation of a new 80.5 acres of saltwater marsh to reclaim marshland which will be lost. Further, in a somewhat unusual move, the adaptive management plan would monitor the success of mitigation not only during the construction phase of the Savannah Project, but for up to five years after it is completed. 

 

The Savannah Project is not without opposition. Beginning with a lawsuit filed in March 2000 to forestall decision-making on the Savannah Project (which was eventually dismissed), critics remain concerned that the Savannah Project will not be appropriately mitigated and are not convinced that mitigation success can be measured in a meaningful way. How the Savannah Project will shape and develop after the draft EIS is issued in the next few months is yet to be seen. However, all involved will continue to search for mitigation.

A full overview of the Savannah Project and its proposed mitigation efforts can be found here.

EPA Completes Six-Year Review of National Primary Drinking Water Regulations

Posted on April 14, 2010 by Jarred O. Taylor, II

EPA recently completed a six year review of the National Primary Drinking Water Regulations (NPDWRs) “to identify those NPDWRs for which current health effects assessments, changes in technology, and/or other factors provide a health or technical basis to support a regulatory revision that will support or strengthen public health protection.” This six-year review is mandated by the Safe Drinking Water Act. The first six year review was completed in 2003. The sixty-plus page March 29, 2010 Federal Register issuance of the notice and request for comments can be found here.

 

EPA reviewed the 85 NPDWRs, included in the Federal Register Statement a detailed explanation for 71, and is proposing that four of them be considered for revision. Not surprisingly, the proposed revisions are to decrease the maximum contaminant level (MCL) closer to the maximum contaminant level goal (MCLG). As a reminder, the MCLG is “set at the level at which no known or anticipated adverse effects on the health of persons occur and which allows an adequate margin of safety.” The MCL, a term with which many are more familiar, is the highest allowed level of a contaminant in water delivered to one using a public water system, and is supposed to be as close to the MCLG as possible. MCLs, however, are not used by regulators just to judge official public drinking water systems, but also groundwater. If you are involved at a site where cleanup standards have been set, or are in the process of being set, for these four NPDWRs, be prepared for some re-negotiation. And, it will not be long after any such changes are made that many states will follow.

 

The primary reason an MCL is higher than an MCLG is technology—our testing methods and analytical abilities cannot detect as low as the MCLG, many of which are zero—aka the practical quantitation limit (PQL). Thus, one of the pieces of EPA’s six year review was whether technology had advanced, with sufficient confidence, to allow a reduction in the MCL closer to the MCLG.

 

The four contaminants EPA is proposing receive revised NPDWRs are acrylamide, epichlorohydrin, and two more common contaminants with which most of us have run into before—tetrachloroethylene (PCE), and tricholorethylene (TCE). PCE and TCE received almost identical recommendations, and both have a current MCLG of 0.0, and an MCL of 0.005 mg/L because of PQL. EPA made no final recommendation on PCE and TCE because the risk assessment for these two contaminants was still in progress and, thus, EPA could not determine whether revised MCLs would gain potential health benefits. However, EPA concluded that advancements in analytical and treatment technologies were such that “analytical feasibility could be as much as ten times lower [than the current MCL] (~ 0.0005 mg/L)”, noting that its review also concluded that levels of PCE and TCE in the environment at this reduced level are “relatively widespread”. EPA is giving stakeholders the opportunity to submit information to it about what laboratories “can reliably and consistently achieve.”

 

Stay tuned—technology’s exponential increase in our ability to detect smaller and smaller concentrations of contaminants in the environment may very well exponentially increase treatment costs and higher costs at cleanup sites. Whether health risks decrease sufficiently from driving down MCLs is yet to be determined, but the writing appears on the wall for now.

BLM Suspends Sixty-One Oil and Gas Leases to Perform Climate Change and Greenhouse Gas Analyses in Montana

Posted on April 2, 2010 by James Spaanstra

Authored by:

Robert D. Comer
James R. Spaanstra

Recently, the Bureau of Land Management ("BLM") and several Montana environmental groups agreed to suspend 61 Montana oil and gas leases as settlement of a case challenging lease issuance for failure to consider climate change effects. The leases, which had been issued, were suspended while BLM conducts additional analysis of greenhouse gas fugitive emissions and climate change impacts under the National Environmental Policy Act. As part of the settlement, BLM also asserts "authority to void or terminate any lease, if it determines upon review that such an action is appropriate.

On March 18, 2010, Judge Molloy of the United States District Court for the District of Montana entered an order dismissing the case based on the settlement agreement, despite the absence of the oil and gas industry from the settlement discussions. BLM and the environmentalist parties are seeking to keep confidential the deliberations that led to the settlement. This stands in contrast to prior positions taken by the United States regarding the release of settlement discussion documents under the Freedom of Information Act (FOIA) pursuant to the U.S. Supreme Court Klamath decision in 2000.

Unlike the 77 Utah leases that were voided by BLM in 2009, the agency did not admit to error in the NEPA process leading to issuance of the leases. The takeaway from these BLM actions is to make sure that your company has solid NEPA analysis that fully considers climate change and greenhouse gas issues, including those resulting from production and gathering operation fugitive emissions, when applying for leases and APDs. The willingness to suspend or void leases represents a new chapter in available remedies BLM is willing to use, whereby even already issued leases may now be at risk. Click here to review the settlement and click here to review the order.

BLM Suspends Sixty-One Oil and Gas Leases to Perform Climate Change and Greenhouse Gas Analyses in Montana

Posted on April 2, 2010 by James Spaanstra

Authored by:

Robert D. Comer
James R. Spaanstra

Recently, the Bureau of Land Management ("BLM") and several Montana environmental groups agreed to suspend 61 Montana oil and gas leases as settlement of a case challenging lease issuance for failure to consider climate change effects. The leases, which had been issued, were suspended while BLM conducts additional analysis of greenhouse gas fugitive emissions and climate change impacts under the National Environmental Policy Act. As part of the settlement, BLM also asserts "authority to void or terminate any lease, if it determines upon review that such an action is appropriate.

On March 18, 2010, Judge Molloy of the United States District Court for the District of Montana entered an order dismissing the case based on the settlement agreement, despite the absence of the oil and gas industry from the settlement discussions. BLM and the environmentalist parties are seeking to keep confidential the deliberations that led to the settlement. This stands in contrast to prior positions taken by the United States regarding the release of settlement discussion documents under the Freedom of Information Act (FOIA) pursuant to the U.S. Supreme Court Klamath decision in 2000.

Unlike the 77 Utah leases that were voided by BLM in 2009, the agency did not admit to error in the NEPA process leading to issuance of the leases. The takeaway from these BLM actions is to make sure that your company has solid NEPA analysis that fully considers climate change and greenhouse gas issues, including those resulting from production and gathering operation fugitive emissions, when applying for leases and APDs. The willingness to suspend or void leases represents a new chapter in available remedies BLM is willing to use, whereby even already issued leases may now be at risk. Click here to review the settlement and click here to review the order.