The Data Don’t Lie: Has MNA Science Outpaced Site Decision-Making?

Posted on July 26, 2016 by Charles Efflandt

The importance of a thorough technical evaluation of monitored natural attenuation (MNA) at chlorinated solvent and other groundwater-contamination sites cannot be overestimated. Regulatory acceptance of MNA as a preferred remedial alternative can save millions of dollars in response costs compared to common presumptive remedies. Because “active” remediation technologies rarely achieve complete contaminant treatment or removal, MNA is an implicit, if not specifically evaluated, component of most groundwater remedial actions. A proposal to use MNA as the primary cleanup mechanism, however, is often met with resistance from regulators, notwithstanding years of supportive data.  Such resistance may be attributable to antiquated agency policies or, perhaps, an inadequate evaluation of evolving MNA science.

The use of MNA at groundwater sites has typically required a showing of a stable or shrinking plume, source control, sustainable natural attenuation conditions, and acceptable risk to health and the environment. Today, mathematical and modeling tools can systematically establish data trends demonstrating that remedial action objectives will be achieved through natural attenuation in a reasonable time frame.

Unfortunately, even if confronted with irrefutable data, many state regulators will reject meaningful consideration of MNA unless the attenuation mechanism can be pigeon-holed into  policies that focus on the demonstration and scoring of anaerobic biodegradation conditions at a site.  That is because after almost two decades, EPA’s 1998 Technical Protocol for Evaluating Natural Attenuation of Chlorinated Solvents in Ground Water remains the framework for MNA evaluations and decision-making in many states. Because the 1998 Protocol presumed that the primary effective mechanism for natural attenuation was anaerobic biodegradation, the Protocol has unduly restricted state policies for screening and approval of MNA remedial action.

Numerous studies since the publication of  the 1998 Protocol, however,  have shown that a viable MNA remedial strategy can be supported by attenuation mechanisms other than anaerobic biodegradation These studies have documented other viable contaminant-destructive attenuation mechanisms and evaluation tools, such as aerobic cometabolism enzyme degradation, magnetic susceptibility, compound specific isotope analysis, and improved sampling and modeling techniques. Greater awareness of these scientific developments by regulators and environmental professionals will result in MNA being an increasingly important remedial tool at many groundwater sites.

We have learned the hard way that it’s much more difficult and expensive to clean up sites using default remedies than first thought. Fortunately, it is becoming increasingly apparent that nature has an ability to degrade various chemicals more quickly and effectively than previously believed.   Regulatory acceptance should not, and need not, include unreasonable technical hurdles, such as imposing  attenuation “causation” requirements that are neither feasible nor necessary to support what cannot be disputed. That a proposed MNA remedy does not neatly fit into the traditional anaerobic degradation box, and cannot with precision be attributed to one or more alternative degradation mechanisms potentially active at a site should not be determinative. At the end of the day, the data don’t lie. The MNA determination ought to begin with, and remain focused on, the empirical data and data trends.

Connecticut Adopts Municipal Brownfield Liability Relief Program

Posted on March 13, 2015 by Gregory Sharp

Many states and the federal government have struggled with the challenge of how to adapt statutory strict liability schemes imposing clean up obligations on property owners in such a way that will enable new investors to redevelop brownfields sites without fear of litigation over previous releases.

The Connecticut General Assembly has recently provided liability relief to municipal entities to encourage them to redevelop brownfield sites by removing potential liability concerns which might otherwise arise from acquiring title to previously contaminated property.

The Connecticut legislation defines brownfields as “any abandoned or underutilized site where redevelopment, reuse or expansion has not occurred due to the presence or potential presence of pollution in the buildings, soil or groundwater that requires investigation or remediation before or in conjunction with the redevelopment, reuse or expansion of the property.”

Historically, municipalities and their affiliates, such as redevelopment agencies, were reluctant to acquire brownfields properties by foreclosing tax liens, or through arms- length transactions, because the State’s Clean Water Act imposes joint and several liability on owners of contaminated property, even if they did not own the property at the time of the releases.  As such, if a municipal entity took title to contaminated property, it would run the risk of receiving an abatement order from the Department of Energy and Environmental Protection (“DEEP”) or being sued by third parties.

Under the new Municipal Brownfield Liability Relief Program, a municipality, or a qualified municipal affiliate, which qualifies for the program may take title to a brownfield property free of claims by the State or third parties for contamination existing on the property prior to the acquisition.

Assuming the property meets the definition of a brownfield under the statute, the municipality must meet four conditions to enter the program: a) that it intends to redevelop or facilitate redevelopment of the property, b) that it did not contribute to the contamination at the site, c) that it has no legal affiliation with a party responsible for the contamination, and d) that it is not under a previous obligation to remediate the property.

Another significant benefit of the new program is that it exempts a participating municipal entity from having to comply with the Connecticut Transfer Act.  That Act requires a seller of certain classes of property defined as an “establishment” under the Act to make a filing with the Department of Energy and Environmental Protection.  The filing requires that if there has been a release of hazardous waste at the property which has not been remediated, a party to the transaction must provide a certification that it will accept responsibility to conduct a full investigation and remediation under prevailing standards and guidelines.

Another benefit of the program is that a municipal entity is not required to fully investigate and remediate the property under the State’s Remediation Standard Regulations.  However, it must make good-faith efforts to minimize the risk to public health and the environment.  It also must submit a plan and schedule to facilitate both redevelopment and remediation, and it must also notify DEEP of any exceedances of Significant Environmental Hazard thresholds.

The legislature authorized the program in 2013, and DEEP provided application forms for the program in September of 2013.  So far the response has been discouraging, with only two municipalities entering a total of three sites in the program to date.  The lack of a robust response is likely attributed to the difficulty an underfunded DEEP faces in reaching out to the state’s 169 towns.

Whether the new liability relief program will eventually encourage more municipalities to participate in redeveloping and remediating brownfield properties remains to be seen.  However, along with a recently announced round of grants from the Department of Economic and Community Development of up to $7.5 million, it should at least open the door for  municipalities to take a second look at unproductive properties.

Voluntary Cleanup – A Bluesy Ballad

Posted on March 29, 2013 by Parthenia Evans

At the time when Superfund was flexing its muscle and impacting the ability of successful completion of property transfers, most states developed some form of voluntary cleanup program or “VCP”.  Those programs were supposed to allow for rapid and effective assessment and remediation, and furnish liability releases or covenants with liability protection.  Sounded good huh?

And how many of our clients have a small collection of such sites that they volunteered to assess and address with the sweet promise of walking away, and quickly?  Some used the voluntary cleanup program as a risk allocation tool in property transfers.  Others wanted the promised release or covenant in order to obtain an environmentally worry-free, and thus more valuable, property that was theirs to sell.

Some states have had the fortitude to reform their voluntary cleanup programs by privatizing the process.  In those states licensed professionals determine whether property investigations and remediation are necessary and when they are complete.  They then issue some form of certification that leads to a covenant not to sue or a release. [See "New Jersey Follows Massachusetts into the World of Licensed Environmental Consultants and Privatized Cleanup Oversight", David Farer ,July 9, 2009]. 

In other states the agencies have not overcome their dependence on the fees generated by voluntary cleanup programs, utilizing those fees to pay the salaries of agency personnel engaged in the oversight of voluntary cleanup activities.  In these states "voluntary" really means "hooked and can't get out."  Let's look at a familiar ballad - best read while listening to Eric Clapton's Voodoo Chile (Live from Madison Square Garden):

Well on the day I signed up
For the Voluntary Cleanup Plan
Well I was promised fast and efficient
Get you out of a jam
It gives you certainty and freedom
And you'll be able to transfer worry free

Lord I'm a VCP chump
Oh Lord, I'm a VCP chump

Well I had a grain elevator
With a little dab of carbon tet
Oh Yeah, just a little dab
In the shallow soil
VCP had me test it
Oh, just a little dab at low levels

Lord I'm a VCP chump
Oh Lord, I'm a VCP chump

And I said I am finished
But VCP said not so fast
So I started on the groundwater
Even though it was 200 feet down
Yeah I started drilling
And haven't hit bottom yet

Now it's 10 years later
From the time I began
Yeah, it's 10 years later
And I haven't found that carbon tet yet
But I 'm gonna keep goin
Cause I'm in the money so deep

My heirs and assigns ask me
Say – what's goin on?
I have to tell them
My sad, sad song

Lord I'm a VCP chump
Oh Lord, I'm a VCP chump

So, most ballads eventually come to an end.  How can we continue VCP reform in states where the VCP Bluesy Ballad still is being sung?