The Future Is As We Now See It – Environmental Development Resiliency and Disaster Planning

Posted on June 17, 2020 by Kevin Murray

Successful real estate developers and development attorneys must effectively anticipate and manage risk. Management of visible and known risks seem simple; what separates the great from the good is the ability to anticipate, plan for, and develop contingencies for unknown risk scenarios. I have previously written about the importance of resilient development planning for extreme weather conditions and regional/national disasters. It is clear that extreme weather events affect the way we live and must be taken into consideration if we are to plan and develop our environmentally sustainable and resilient communities. Pandemic planning now finds itself a critical part of disaster planning and is likely to have a profound and lasting influence on environmental resiliency.

These environmental conditions affect physical, transactional, and legal aspects of real estate. Physical impacts appear as structural, corporeal, or earthly damages or modifications. Physical impacts present very real safety risks to site occupants such as failing structures and, exposure to life- threatening elements and hazardous substances. The recent pandemic has highlighted what was a subset of physical impacts, that is the health of the occupants as they live, work and occupy spaces.

Over the course of recent decades, mixed use developments became extremely popular with developers, municipal jurisdictions, and users. The notion of sustainable walkable communities has seen a proliferation of “self-contained communities” to support the growing desire for a more compact lifestyle where living, work and recreation coexist. The COVID Pandemic will result in the development of new regulation and a fresh look at development as a whole, but clearly with self-contained walkable communities and mixed use. Especially where users live on top of the commercial, retail, restaurant and recreational spaces they frequent.

Energy efficiency through sealed buildings had already begun to fade, air flow and fresh sources of filtered air will see increased interest and likely regulatory focus. The need to regulate how people congregate and the general flow through space may take on a regulatory aspect. Occupancy limits already exist for general safety, perhaps viral exposure may now factor into those calculations, and the imposition of formal requirements for table and general distancing in floor space. A demand for (and likely regulatory requirements), may extend into amenities that feature no touch surfaces, doors, toilets, sinks, retail checkout, retail goods selection, shelving, clothing racks, elevators, windows. Internet orders and drive up pickup may see a continued demand for convenience and safety. Ever-present hand sanitizer and disinfecting wipes will become required and as common place as a box of tissue.

The importance of all this however is to note that management of risk means mitigation. The traditional legal defenses like force majeure and impractability continue to erode in favor of reasonable foreseeability of extreme events. Successful developers and their attorneys will plan for these contingencies both to protect their uses and themselves in an ever changing regulatory environment. Proper engineering and design are necessary to protect the people that live and work in these communities and the companies and contractors that establish them. Resilient real estate development must adapt and engineer buildings and communities sustainable under foreseeable extreme conditions.

Earth Day 50: Have We Made any Real Progress?

Posted on April 22, 2020 by Christopher Davis

April 22, 2020 marks the 50th Anniversary of Earth Day. The coronavirus pandemic has consumed the world’s attention, and thus it seems likely that Earth Day and environmental issues will unfortunately get less attention than otherwise might have occurred.

The first Earth Day in 1970 changed my life. In particular, Garrett Hardin’s essay, The Tragedy of the Commons, and a little book called The Environmental Handbook, had a powerful influence on my thinking and career path.  I decided my calling was in solving environmental problems, stopping pollution and protecting nature. Over the last 50 years, this has taken me through a brief career in environmental engineering, a rewarding 30 years in environmental law, and most recently economic advocacy to leverage private sector solutions to climate change.

So where are we now, as we celebrate the 50th anniversary of Earth Day? There has certainly been progress in building environmental consciousness, institutionalizing environmental protection, developing environmental laws, building a global cadre of environmental professionals, reducing at least the most obvious forms of air and water pollution and cleaning up hazardous waste sites. In most places, at least in the developed world, the air and water are cleaner.

Yet on a macro scale, many indicators of environmental quality have declined significantly since 1970. Global greenhouse gas emissions continue to rise, the physical impacts of climate change are accelerating, and we are making little progress in implementing the Paris Agreement’s goal of limiting average global warming to well under 2 degrees Celsius. Deforestation continues to shrink the world’s tropical forests, biodiversity is being lost, species extinction is accelerating, wetlands are disappearing, and our oceans are becoming degraded. Groundwater and surface water resources are being depleted and nonpoint sources threaten water quality. Toxic pollutants are ubiquitous. By most accounts, the world’s ecosystems are in worse shape than they were in 1970. Our expanding human population has exceeded the carrying capacity of the world’s natural systems on which we all depend.

So, while we have won many battles in environmental protection and the implementation of environmental laws, we are losing the war. The imperatives of economic growth and resource consumption have overwhelmed the forces of environmental protection and conservation. Our generation has been responsible for many great technological and social advances. Yet as we mark the 50th Earth Day, our environmental legacy is troubling.

Perhaps the lessons of the coronavirus crisis—and the need for prevention, global collaboration, and commitment of resources necessary to anticipate and combat such crises-- will enable the kind of concerted action needed to successfully confront the systemic risks of climate change and global ecological degradation. We have the tools and knowledge to solve these problems; we lack only the moral imperative and collective political will to do so--and the sense of urgency that inspired me and so many others on that first Earth Day.

Cleaning Up Nature: The Swift Creek Conundrum

Posted on February 28, 2020 by Andy Fitz

 width=

Dredged spoils along the Swift Creek channel; landslide visible at upper right (author photo).

Swift Creek. The name evokes a clear, fast-moving mountain stream. 

The Swift Creek at issue, however, is hardly clear or swift for most of its length.  A massive, mile-long landslide hangs at the head of its southern fork, in the foothills of Washington’s North Cascades. The landslide has exposed a weak bed of serpentine rock, which weathers quickly into clay and delivers a heavy load of sediment to the creek—some 30,000 to 150,000 cubic yards annually. When the creek reaches the Nooksack Valley below, much of this material settles, clogging the channel, turning the creek sluggish, and creating a constant risk of flooding each winter.

In an effort to protect farms and rural homes, the affected local government, Whatcom County, began periodically dredging Swift Creek in the late 1950s, piling the dredged spoils along the channel. In 1971, the U.S. Army Corps of Engineers undertook its own large-scale dredging of the channel and further shaped the dredged spoils into levees.

width=

Swift Creek in May 2016 (author photo).

In 2006, however, this work largely came to a halt. In its place, a regulatory conundrum emerged.

Since at least the late 1970s, Swift Creek’s sediment has been known to contain a naturally occurring chrysotile form of asbestos derived from the serpentine bedrock. In 2006, the U.S. Environmental Protection Agency (EPA) sampled the dredged spoils and completed an activity-based risk assessment. That assessment, and a subsequent assessment in 2011, concluded that asbestos levels in dust generated from the sediment pose a human health threat, with the lifetime excess cancer risk approaching 8 in 1,000 under the most intensive exposure scenario. Making matters worse, naturally elevated levels of metals in the sediment retard plant growth, making the dredged spoils an attractive target for local four-wheelers and dirt-bike riders.

Left wholly to nature, there is no environmental liability associated with Swift Creek’s sediment: the “potentially responsible” entity is Mother Earth. And there is no clear environmental authority under which to address threats associated with the sediment. Under Section 104(a)(3)(A) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), EPA cannot respond to a “naturally occurring substance . . . from a location where it is naturally found.” Likewise, under Washington’s Model Toxics Control Act (MTCA), there must be intentional or unintentional “entry” of a hazardous substance “into” the environment in order to have an actionable release. RCW 70.105D.020(32).

Once humans move and reconfigure the sediment, however, potential liability
may arise from those activities. See, e.g., United States v. W.R. Grace & Co.—Conn., 280 F.  Supp. 2d 1149, 1155, 1175 (D. Mont. 2003). Therein lies the conundrum: absent human intervention, there can be unabated exposure to naturally occurring asbestos from the creek channel and flood deposits, but no authority to address the situation under cleanup laws. But any human intervention to abate that exposure is discouraged by the specter of liability under those very same cleanup laws.

For more than ten years, this conundrum stymied efforts to address Swift Creek sediment, despite continued discussion among EPA, the Washington Department of Ecology, and Whatcom County. Neither EPA nor Ecology had the authority, mandate, or resources to address what at its heart is a civil engineering effort. And the entity with the clearest public works mandate—the County—did not want to assume full ownership of a situation it did not have the resources to address by itself, with potentially open-ended liability. This concern was heightened by EPA threats of cost recovery and enforcement under CERCLA.

In 2013, Whatcom County did complete an alternatives assessment and Environmental Impact Statement (EIS) for addressing Swift Creek sediment. The preferred alternative was a series of actions to capture and manage sediment in the upper reaches of Swift Creek, before it reaches the valley floor, including sediment traps, sedimentation basins, periodic dredging of those features, and disposal of the sediment in a constructed repository. The historic dredged spoils lining Swift Creek would also be armored and covered with clean soil.

Two key developments broke the Swift Creek stalemate. First, the Department of Ecology and the Washington State Attorney General’s Office reached agreement with the County on the terms of a proposed consent decree to be lodged under MTCA. With no traditional “site” to clean up, the basis for the decree is creative. It is premised on MTCA’s authority to prevent “threatened releases”—here, releases that would inevitably arise as local government and residents are forced to deal with flood-distributed sediment, but for preventive actions. The covenant not to sue is thus prospective, providing liability protection for the County within the specific areas where sediment will be managed under the decree, for activities to be undertaken by the County under a “Swift Creek Action Plan” that largely incorporates the preferred alternative from the 2013 EIS. The County is responsible for the operations and maintenance costs associated with this sediment management, up to an annual cap.

Second, bolstered by this provisional agreement, Washington’s Legislature appropriated the first installment of capital funding for the project, totaling $6.4 million. With initial construction funds in place, the parties moved to enter the decree, which became effective on December 6, 2019. Based on the plan and decree, EPA has indicated it does not intend to exercise CERCLA authority at the “site,” such as it is.

There are challenges ahead. Full construction of the engineering controls is still dependent on further state capital appropriations, with an estimated remaining cost of $11 million. And it remains to be seen whether the engineering controls are a long-term solution or only a temporary stopgap. Based on a creative application of cleanup law, however, the Swift Creek conundrum appears to have been broken.

 width=

Conceptual layout of engineering controls to be constructed under the consent decree (sediment repository not shown). Source: Swift Creek Action Plan, Washington State Department of Ecology (December 2019).

PFAS: All you Need is Outrage?

Posted on February 6, 2020 by Kenneth Gray

To some, it’s outrageous that PFAS (Per- and Polyflouoroalkyl substances) are omnipresent in the environment, in biota, in drinking water, and in a number of past and present products.  All PFAS are highly dangerous some claim (or at least presumptively so), based on data on a limited number of the thousands of compounds. It is therefore outrageous that some of the compounds are likely present in a vast majority of Americans.

Bypassing issues of dose, cause and effect, the conclusion is that all PFAS are dangerous and unwanted.  Throw in the allegations that companies knew of hazards before phasing out manufacturing or use (of some of the chemicals) and you have a perfect storm for outrage. Ban them all! Contrary views?  The activists’ answer is that the experts have been bought off or are misleading, so public policy should be based on public opinion, right? And what politician in his or her right mind would ignore public outrage?

The fear of many, and the public in general, is undeniable. The presence of a chemical in the human body, without more information, is information of unknown significance.  For most PFAS, since we don’t have data.  Scientists are struggling currently with whether there is any basis for toxicity grouping or classes of PFAS.  For most PFAS, this is “fear of the unknown,” borne of ignorance, but heightened by uncertainty. 

Public outrage doesn’t have to be, and often isn’t, correlated to actual harm or evidence of likelihood of harm.  The media and press don’t cause outrage, but they can and do amplify it.  Add activists who are media savvy and you get the current PFAS crisis.

Here’s an equation (thanks in part to Dr. Peter Sandman):  Risk = (perceived) Hazard + Outrage.  While experienced environmental law practitioners, toxicologists, and regulators know that Risk = Toxicity X Exposure, that is not the calculus of the public.  To the public, the risk equation is fueled by outrage. To be sure, there are data for some PFAS compounds that justify concerns, but I question whether it justifies the hysteria we see.

Believe it or not, public outrage -- whether justified or not -- is never a substitute for a scientific data, or for risk assessment, or for protective environmental policy.  Lack of data and fear of the unknown don’t inform thoughtful decision making. Yet public fear is undeniable, and legislators and regulators are feeling the heat.

To quote others:  Now is the time for facts, not fear. 

Why not work on better risk communication?  The basic tools include:

  • Understanding and acknowledging the outrage
  • Acknowledging the legitimate concerns
  • Avoiding extremes
  • Sticking rigidly to the facts
  • Recognizing and reminding others that actions or decisions without a scientific and rational basis, or that can’t be implemented do more harm than good in the medium and long run, and likely to be successfully challenged in court
  • Being realistic – there are funding limitations, both public and private
  • Remembering we live in a federal system that has independent actors capable of moving at different speeds
  • If testing is to be required, making sure that we can explain to the public and the regulated community the meaning of the environmental test data produced

While I understand some of the EPA’s 2019 PFAS Listening Sessions helped in some communities, better risk communication must be an ongoing task.

Finally, what’s the role an environmental lawyer can play?  While we are advocates and counselors, the experience we bring must contribute to better decisions.  Not the least of these are the skills and lessons from analyzing environmental problems, making sure that there is credible scientific evidence to justify action, and identifying alternatives that efficiently address health and environmental risks without unnecessary costs or other adverse impacts.

We need thoughtful communication and the best information available as we work through the current PFAS regulatory issues.

Banning PFAS in Food Packaging – Should states do the job of the FDA?

Posted on August 21, 2019 by Kenneth Gray

In June, Maine joined Washington State in presumptive bans on all per- and polyfluoroalkyl substances (PFAS) in 2022, if their respective state agencies make findings that there are “safer alternatives.” These laws were adopted in response to public and environmental group pressures over the presence of some PFAS in certain food packaging, the general ubiquitous and persistent nature of other PFAS, and the desire to “do something” about PFAS.

These state PFAS laws were adopted despite the fact that the U.S. Food and Drug Administration (FDA) regulates PFAS in food contact applications. Since 2000, FDA has authorized the use of food contact substances through the Food Contact Notification program and certain PFAS are currently authorized for use in specific applications related to their non-stick and grease, oil, and water-resistant properties. For example, the Maine legislature barely considered FDA’s regulations in its deliberations on the state law.  

While some PFAS do indeed pose risks under particular exposure scenarios, these new food packaging laws cast a broad net over the entire class of compounds. Apparently applying the discredited “precautionary principle,” these laws lump all PFAS together, despite known differences in toxicity, persistence, and fate. State legislators and administrators are taking independent action even as the FDA, the U.S. Environmental Protection Agency (EPA) and other national health agencies struggle with whether the PFAS compounds have enough commonalities to even identify appropriate subclasses of PFAS compounds.

In Maine, the law leaves important decisions to the Maine Department of Environmental Protection (DEP) and the sister agencies it may call on, none of which have experience regulating manufacturing of food packaging, much less understanding or regulating health issues related to food. FDA’s work on food additives requires federal funding and expertise. Maine’s law allows the DEP to force manufacturers to provide information on chemicals, potential for harm, and alternatives, but gives the department no additional resources to analyze that information. In its determinations, the DEP may consider the extent to which the food package is adequately regulated by the federal government or a Maine agency.  This begs the question --Can DEP really do FDA’s job better?  As to PFAS regulation, there is no funding mechanism.

A curious feature of the Maine law exempts the manufacturer of a food or beverage product in a food package as long as the manufacturer has less than $1 Billion in annual national sales of such food and beverage products (presumably U.S. sales). Which raises an additional question -- If a package really poses serious risks to food or beverages, is it sensible public policy to allow manufacturers with lower revenues to market those products?

Of course, the larger question is whether we are better off with individual states regulating the components of food packaging, since a significant amount of food packaging is created for national and regional markets. Not only is there no guarantee that different states will arrive at the same levels of concern for the same chemicals, but if the differing PFAS standards for drinking water are any indication, decisions on PFAS bans and alternatives will vary. It is not hard to imagine the difficulties and frustrations that packaging formulators will have trying to get packaging products to market.

To make the future more interesting, the Maine law also creates a new program regulating food contact chemicals, adopting multiple provisions generally modeled on the state’s Toxic Chemicals in Children’s Products law. DEP may create a list of food contact chemicals of high concern (up to 10, but since structurally related chemicals are included, entire classes can be listed), based on toxicity, persistence, and other factors. The DEP may then designate such food contact chemicals as “priority,” which triggers notice to DEP if more than 100 ppm in the package as a contaminant, or if they are intentionally added above a practical quantitation limit. (If there is no notice to the DEP, the package is simply banned.) The DEP may also request information for chemicals of concern and an assessment of alternatives, or may assess a fee and then secure an assessment by a contractor. And the DEP may impose fees for its work, and for managing information it receives. Perhaps most significantly, Maine may ban priority chemicals if there is a “safer alternative.”

Surely, we live in interesting times.

New Jersey PFAS Directive

Posted on March 28, 2019 by John A. McKinney Jr

Co-authored by Robert H. Crespi – First published on the CSG Environmental Law Blog.

On March 25, 2019, the New Jersey Department of Environmental Protection (“DEP”) issued a Statewide PFAS Directive to a number of companies associated with the manufacture of poly- and perfluoroalkyl chemicals (“PFAS” which includes PFNA, PFOA and PFOS and other substances) and their replacement compounds.  Pursuant to the Directive, these companies are to reimburse DEP’s past and future costs of investigating, monitoring, testing, treating, and remediating New Jersey’s drinking water and waste systems, private drinking water wells and natural resources including groundwater, surface water, soil, sediments and biota.  The Directive requires certain information from these companies as to future costs and information related to the historic uses of PFAS and replacement chemicals including “information ranging from use and discharge of the chemicals through wastewater treatment plants, air emissions, and sales of products containing the chemicals to current development, manufacture, use and release of newer chemicals in the state.”  The Directive notes that failure to comply will increase Respondents’ potential liability to the DEP in an amount equal to three times the cost of arranging for the cleanup and removal of the discharges, which the Directive deems a “statewide public nuisance.”

This Directive states New Jersey’s resolve that these companies, and not New Jersey residents, pay the costs necessary to protect “public health and safety and the state’s environment.”  The DEP contends that this Directive will require these companies to “fund millions of dollars in assessment and cleanup efforts” pursuant to the state’s Spill Compensation and Control Act, the Water Pollution Control Act and other state environmental laws.

New Jersey has been in the forefront of states acting to address PFAS.  At the time of the Directive’s issuance, DEP Commissioner Catherine R. McCabe referenced the “near daily” finding of PFAs in New Jersey’s environment. As noted in the press release announcing the Directive’s issuance, New Jersey was “the first state to adopt a maximum contaminant level (MCL) of 13 parts per trillion for PFNA in drinking water, the strictest such standard in the nation. New Jersey's standards supersede those of the U.S. Environmental Protection Agency, which does not regulate the chemicals that have been linked to cancer and other illnesses … Earlier this month, the DEP established interim specific groundwater quality standards for both PFOA and PFOS, at 10 parts per trillion. New Jersey is among the first states to pursue regulation of these compounds.”

Of course, the Directive is only the opening salvo.  More is sure to come.

Loving that PFAS: Does EPA’s Valentine’s Day PFAS Action Plan Portend a Change of Heart?

Posted on March 6, 2019 by Tom Burack

In a February 13 blog, I focused on the substantial role that states are playing in addressing PFAS compounds, in no small measure because EPA has not to date fully asserted itself in the arena, making the acronym as much one about a “Problem for All States” as about Poly- and Perfluoroalkyl Substances.  The following day, with only limited advance notice, EPA released its “PFAS Action Plan,” a Valentine’s Day gift to all of those who have been waiting to see if EPA has much interest in spending more time, let alone falling in love, with these ubiquitous contaminants.

EPA’s plan, while comprehensive in scope, has met with mixed reviews, in no small measure because it remains unclear where this is all leading or how fast anything will happen, and whether EPA will ultimately embrace a substantial and decisive leadership role in addressing PFAS contamination across the country, or whether, in this age of cooperative federalism, it will stick more to developing the background science and largely leave the standard-setting, regulatory and enforcement actions to the States. The Plan itself includes a number of major components that focus variously on reducing future PFAS exposures, understanding PFAS toxicity as a basis for developing groundwater cleanup and drinking water standards, identifying and mitigating exposures, providing a regulatory and liability framework for cleanups (including possible Maximum Contaminant Level (“MCLs”), as well as TRI and CERCLA hazardous substance listings for PFOA and PFOS), furthering research on PFAS health effects, and improving risk communication and engagement capabilities.  Most of the planned actions are described as the next steps in various processes, not as end results or guaranteed outcomes.

For example, the Plan states that EPA will take the next step in deciding whether to issue MCL regulations for PFOA and PFOS by proposing a “regulatory determination,” which EPA says “provides the opportunity for the public to contribute to the information the EPA will consider relating to the regulation of PFAS in drinking water.”  EPA will publish a preliminary regulatory determination in the Federal Register, obtain public comment, and then decide whether or not to issue a National Public Drinking Water Regulation for either PFOA or PFOS.  In so doing, EPA will need to weigh three criteria: Whether PFOA or PFOS have an adverse effect on the health of persons; whether PFOA or PFOS occur or have a chance to occur in public water systems often enough and at levels of public health concern; and, whether, in the EPA Administrator’s sole judgment, regulation of PFOA or PFOS presents a meaningful opportunity for health risk reductions for persons served by public water systems.  (See https://www.epa.gov/dwregdev/how-epa-regulates-drinking-water-contaminants.)  While the answer to the first criterion is likely “yes,” to date the available data on occurrence have not been so compelling as to drive rapid EPA action and, accordingly, the Administrator’s ultimate judgment under the third criterion is far from predictable, and likely at least a year away.  The trade press reports a range of statements having been made by EPA leadership in recent weeks that may intimate where the agency’s heart will ultimately be on the subject, but until the next phase of the process has run its course, uncertainty will remain and states will, accordingly, continue to individually proceed to take their own responsive regulatory actions. 

And maybe this is just the way that things will or even should play out, because while EPA’s on-line cover page for its PFAS Action Plan asserts that the Agency is “taking a proactive, cross-agency approach to addressing PFAS,” it also acknowledges that the “key actions” will “help provide the necessary tools to assist states, tribes, and communities in addressing PFAS …”  Yes, EPA loves PFAS, but maybe its heart isn’t so committed that it would not also expect the states, tribes and communities to profess at least an equivalent fondness, if not an even greater passion, for regulating these chemicals and seeing to their cleanup.  Put differently, invoking the spirit of cooperative federalism, EPA’s message seems to be that the states and EPA have complementary ways of showing their love for emerging contaminants like PFAS, so there should be plenty of love to go around.

Acronymic Acrobatics: Why Poly- and Perfluoroalkyl Substances (PFAS) are becoming a Problem For All States

Posted on February 13, 2019 by Tom Burack

In an age in which the names of chemicals are so complicated that even scientists refer to them by acronyms, an entire class of manmade chemicals created to improve human lives is now in the midst of performing an acrobatic stunt, back-flipping from being the darling of industrial and consumer products to being the contaminants that are now the nemesis of many communities: Poly- and Perfluoroalkyl Substances -- commonly referred to as “PFAS” – are also coming to be recognized as something else with the same acronym, namely a “Problem For All States”.  Due to their unique chemical properties and the growing public demands for timely regulatory response actions at the local level in the absence of definitive federal leadership, PFAS compounds can be expected to remain a Problem For All States for many decades to come.

Chemical engineers, starting in the 1940s, made some remarkable discoveries: the combination of carbon and fluorine atoms into long-chained synthetic organic molecules results in compounds that variously can repel oil, water, grease or stains, resist high temperatures, and reduce friction.  These properties, combined with high durability, made these newfound PFAS compounds ideal for innumerable industrial and consumer purposes. For example, some of the most commonly used PFAS are: perfluorooctanoic acid (PFOA), as a repellent coating for textiles, paper products and cookware; and, perfluorooctanesulfonic acid (PFOS), in fire-fighting foams, carpet treatments, and mist suppressants in metal plating operations.  As a broad class, there are approximately 3,000 different PFAS compounds, some of which are precursors to other PFAS compounds, and various of which may co-occur with each other. Commonly known household products containing or made with PFAS compounds have included DuPont’s Teflon®, 3M’s ScotchGard®, and Gore’s Gore-Tex®, to name but a few. Unfortunately, some of the most commonly used PFAS compounds are also highly persistent, mobile, and non-biodegradable.  Consequently, worldwide production and uses of PFAS have resulted in their nearly ubiquitous presence throughout the environment, including in soils, sediments, surface and groundwater.

Moreover, because they can also bioaccumulate, PFAS compounds can be found in animals and humans in parts per billion (ppb) concentrations. Laboratory studies of PFAS health impacts on animals point toward elevated cholesterol levels, low infant birth weights, immune system effects, cancer (PFOA), and thyroid hormone disruption (PFOS).  While peer-reviewed human epidemiological studies of PFAS exposure have been less numerous or definitive to date, when combined with the laboratory animal studies there have been sufficient data to support the establishment of Lifetime Health Advisories for PFOA and PFOS by the US EPA in 2016 and the promulgation of regulatory limits to protect drinking water supplies by a growing number of states.

In the United States, the first health and environmental concerns arose in connection with PFAS manufacturing facilities and their waste disposal practices in West Virginia and Ohio in the late 1990’s and in Minnesota in the early 2000’s.  Between 2000 and 2002, 3M voluntarily agreed to phase out the further manufacture of most long-chain PFAS compounds, and DuPont and other US manufacturers followed suit. Today, under a set of Significant New Use Rules (SNURs) promulgated by the US EPA under the Toxic Substances Control Act (TSCA), most long-chain PFAS are allowed to be used or imported only for limited purposes and in select industries or applications.  Further restrictions have been proposed and shorter chain PFAS compounds are increasingly being used as substitutes, but even these may present significant environmental and public health concerns, as illustrated by the ongoing GenX contamination situation in the Cape Fear Watershed of North Carolina. (See, e.g., https://www.northcarolinahealthnews.org/2017/08/17/genx-pollution-what-happened-when/)

Ever-more sensitive laboratory technology can now detect PFAS at parts per trillion (ppt) concentrations, and it’s become evident that the more than five decades of unregulated use of PFAS has left an indelible signature in landfills, wastewater, waterways, and communities far and wide. To date, the New Hampshire Department of Environmental Services has amassed perhaps the largest single dataset on PFAS contamination in groundwater, surface water and soils of any state: roughly 6,000 samples from some 3,500 locations.  This continuously growing dataset already shows some noteworthy trends: sampling of 429 public water supply wells found that 7 (1.6%) contained PFOA or PFOS above 70 ppt (the US EPA LHA value which NH adopted as its groundwater cleanup standard); but NH has now proposed to lower its standard for PFOA to 38 ppt, which once all of NH’s public water systems have been sampled is likely to put another 16 or so in noncompliance.  More than 50% of the existing known contaminated industrial sites sampled so far in NH contain elevated levels of PFAS.  Every NH landfill leachate system sampled to date has a PFAS signature, and the monitoring wells around the older closed but unlined landfills indicate 46% exceed the groundwater standards.  Fire stations and training sites are also potential sources, as are municipal wastewater treatment plants, biosolids storage and application sites, car washes, airports (military and civilian), and a wide variety of other operations. Typical contamination vectors include not only historical releases directly to soils, groundwater or surface waters, but also atmospheric deposition resulting from airborne emissions of PFAS that subsequently contaminate other media, including groundwater.

Due to the combination of their durability, persistence, mobility, multiple possible release mechanisms, and extremely low detection limits, the simple reality is that if you look for PFAS in the environment you will find them.  The corollary is that if you haven’t found them, you’re probably not looking in the right places. While some public officials may believe that PFAS are not a problem in their states or regions, the public and elected officials – sensitized by the story of lead contamination in the water supply of Flint, Michigan – are asking questions, demanding answers, and expecting action. In 2018, the US EPA held a “national summit” on PFAS contamination and announced that it would consider whether to establish public drinking water standards, Maximum Contaminant Levels (MCLs), for some PFAS, and whether to list certain PFAS compounds as hazardous substances under CERCLA.  More recently, EPA officials have indicated that MCLs for PFAS are unlikely, but that EPA is considering broader use of its emergency administrative order authority under Section 1431(a) of the Safe Drinking Water Act to address PFAS contamination situations on a site-by-site basis. In the meantime, members of Congress have introduced bipartisan legislation to require US EPA to list all PFAS compounds as CERCLA hazardous substances and a growing number are joining a bipartisan Congressional PFAS Task Force.

The most consequential regulatory action, however, has been at the state level, which is where considerably more future action should be expected.  As of January 2019, at least eight states had adopted or proposed guidance values or regulations setting acceptable concentrations of various PFAS compounds in groundwater, drinking water, surface water, or soil, including Alaska, Colorado, Michigan, Minnesota, New Hampshire, New Jersey, New York and Vermont.  This list is expanding rapidly, as is the list of state legislatures that have regulated or are considering regulating the use of PFAS compounds, including California, Michigan, Minnesota, North Carolina, New Hampshire, New York, Pennsylvania, Rhode Island, Vermont and Washington.  The Environmental Council of States (ECOS), the national, nonpartisan, nonprofit association of state and territorial environmental agency leaders, has established a PFAS workgroup, and its research arm, the Environmental Research Institute of the States (ERIS) has a large and active technical team that has published a number of fact sheets on PFAS through the Interstate Technology Regulatory Council (ITRC). 

Regulatory strategies and cleanup standards for the same compounds often differ from state to state: for example, in Vermont the groundwater standard is 20 ppt for PFOA and PFOS individually or in combination, while in New Hampshire the standard for PFOA and PFOS individually or in combination is 70 ppt, and a proposed rule would lower the individual standard for PFOA to 38 ppt.  The process of setting health-based regulatory standards varies greatly by jurisdiction, and different standards are typically attributable to differences in which toxicity data are selected and how they are interpreted, differences in toxicity factors (i.e., multipliers or margins of safety), how animal test results are extrapolated to humans, exposure assumptions, life stage used, and sources of exposure (drinking water versus non-drinking water).  Should EPA choose not to adopt MCLs for PFAS compounds, it’s likely that more and more states will find themselves weighing these and other variables as they set their own regulatory standards and seek to explain why they may be either higher or lower than those of their neighboring states.

Because they are ubiquitous, PFAS compounds present a set of challenges that every state will ultimately need to quantify and regulate, all the while communicating with the public, the regulated community and elected officials about the steps they’re taking and why their approach is an appropriately protective risk management strategy.  The lack of a comprehensive national regulatory approach and federal standards for PFAS compounds makes the problem all the more challenging for states, as they will forever need to justify their own approach in comparison with those of other states.  All of which suggests that PFAS are, and for the foreseeable future will remain, a Problem For All States.

PFAS Compounds vs. Legionella -- Which is the bigger threat?

Posted on October 2, 2018 by Kenneth Gray

 

Recently, Per- and Poly-Fluoroalkyl Substance (PFAS) compounds have been dominating the national environmental news.  U.S. E.P.A. has named them as a priority for action.  In the several areas where the substances are found in groundwater, PFAS compounds dominate the local headlines.  The levels of detection and possible concern are extremely low, and the chemicals are almost ubiquitous in the environment, having been used for decades.  As manufactured chemicals, they suffer the usual popular and misguided presumption that they must therefore be bad, and there are manufacturers, industrial users, and water suppliers that have been the targets of anger and lawsuits. 

EPA’s national drinking water monitoring program for “unregulated contaminants” captured PFAS compounds several years ago, and significantly more testing is being undertaken. The former “emerging contaminants” have emerged with a vengeance.  https://bit.ly/2xnGi89  EPA soon will be providing additional guidance on risk levels for some PFAS compounds, and has recently committed to consider a national drinking water standard, among other possible regulatory actions.

Legionella pneumophila (Legionella) is a common bacteria that is found in nature, but can proliferate in certain human environments including hot water systems, shower heads and sinks, cooling towers, and hot tubs, among others, despite central treatment of drinking water.  Legionnaires Disease (LD) can and does kill, especially attacking those with weaker immune systems.  It is the most significant waterborne disease (about 60% of the outbreaks causing disease, and it is the only one causing death).  Data indicate that the disease is significantly on the rise around the country (only partly due to increased detection).   Where LD is discovered and results in illness and deaths, the disease has gotten significant press.  However, U.S. E.P.A. hasn’t yet called for national monitoring for Legionella, and there is no EPA-approved test method.  Although central treatment for bacteria and viruses is addressed in part by public water system disinfection, post-treatment testing and proliferation of Legionella hasn’t been formally addressed.

Scientists would agree that there are risks from PFAS compounds, but the toxicology is still developing and the most robust epidemiological data available do not indicate some of the risks suggested by some animal studies.  There is no such debate on Legionella – it is documented as a serious human health threat and has caused many deaths. The U.S.C.D.C. has indicated 90% of LD cases could have been prevented with better water safety management. While PFAS compounds can be tricky to test for and drinking water levels are being set in lower and lower parts per trillion, Legionella is easy and inexpensive to test for, and accurate, easy and cost-effective methods already exist.

Despite all this, PFAS compounds get more attention from media and regulators, and employ more laboratories and plaintiffs’ lawyers.  Like some current and former drinking water officials I know, I fear we are not focusing on the bigger health threat. 

Your thoughts? Let the informed debate begin.

 

Harvey and Hindsight

Posted on October 10, 2017 by Tracy Hester

There’s nothing like a good catastrophe to make your typical disaster planning look bad.

You hear the word “unprecedented” a lot in Houston these days.  Hurricane Harvey brought an astonishing 50.1 inches of rain to the Houston region over three days, which means the storm effectively provided our entire annual rainfall within the space of three weeks.  The deluge damaged 195,714 homes in Texas, forced over 7,500 Texans into emergency shelters, shut down power and transportation to thousands more, and triggered hundreds of inspiring do-it-yourself rescue missions as flooded neighbors helped each other when official high water rescue teams faced impossible demands.

The environmental cost was, also, “unprecedented.”  Even Tropical Storm Allison and Hurricane Ike did not cause the scale of refinery shutdowns, upset emissions, wastewater treatment system disruption, and chemical plant incidents (including spectacular explosions and fires at the Arkema chemical plant) that we saw in the greater Houston region during Harvey.  At least 13 CERCLA sites in the greater Houston area flooded, and EPA was unable to even access numerous sites for over a week to assess any damages or identify any releases.

“Unprecedented,” however, has a different connotation when viewed through a legal lens.  The post-Harvey environmental liability battles have only just begun, and they promise to raise a broad array of challenging legal issues.  The flooding damage lawsuits alone (including takings claims against the U.S. Army Corps of Engineers) are multiplying fast.  In particular, EPA has already contacted PRPs at some flooded CERCLA sites to demand that they respond to hazardous substance releases – which might have some ACOEL members closely scrutinizing the model reopener provisions and the scope of covenants not to sue in their clients’ consent decrees.  The Act of God defense will likely get a fresh re-examination, including arguments about how to apply it when hurricanes – even massive ones - are not exactly a surprise in the Gulf Coast region.  And fires, explosions, and discharges at facilities could turn a spotlight onto the scope of the general duty clause under Section 112r of the Clean Air Act and the legal penalties for inaccurate or delayed initial release reports under CERCLA and other statutes.

In the long run, Texas and Houston – and other coastal states, counties, cities and towns– will need to revise their disaster frameworks to anticipate and account for Harvey-type storms into the future.  These storms are no longer, unfortunately, “unprecedented,” and the standard terms of consent decrees and agreed orders on liability for secondary releases from post-remediation incidents will need a lot more scrutiny than they’ve typically received.  

From High Within the Ivory Tower, the Tenth Circuit Decides That a Third-Party Liability Policy Doesn’t Cover Third-Party Environmental Liabilities

Posted on October 9, 2017 by Thomas Hnasko

In an unpublished decision in Taos Ski Valley, Inc. v. Nova Casualty Co., the Tenth Circuit decided the so-called “owned or occupied property” exclusion in a third-party comprehensive general liability (“CGL”) policy barred coverage for the third-party damage claims asserted by the New Mexico Environment Department against Taos Ski Valley (“TSV”) because the petroleum-product contamination, through the expedient efforts of TSV, was successfully confined to the boundaries of property occupied by TSV and did not impact groundwater, a third-party resource owned by the State of New Mexico.  In so doing, the Court reasoned language added to the owned or occupied property exclusion, which barred coverage for damage to the insured’s property “for any reason,” was sufficient to disclaim coverage.

The Tenth Circuit was not persuaded by the reasoning of Judge Pozner and others that, under a CGL policy, the location of the damage is immaterial; rather, it matters only that the damage caused an immediate third-party liability instead of damage only to the insured’s first-party property interests.  Moreover, the Court was not persuaded by the argument that environmental practitioners can now advise their clients to defer environmental clean-ups until property owned by the public (as a third party), i.e., the groundwater aquifer, is damaged.  The Court summarily concluded that, in such an event, the policy would foreclose coverage on another basis, because the damage to the groundwater would be expected and intended by the insured.  Certainly any environmental practitioner knows this is pure folly.  Simply instructing an environmental consultant to schedule the groundwater sampling on Thursday, as opposed to Tuesday, might well do the trick to ensure publicly-owned water resources, as opposed to just soil, suffer environmental harm and trigger coverage under the CGL policy.  More importantly, it is unfortunate the Court actually believes the New Mexico Supreme Court, as a matter of state law, would sanction a result encouraging the pollution of our resources, instead of prompt environmental clean-ups, in order to secure insurance coverage.  Claims of environmental contamination, after all, constitute damage to the public, as a third party, whether damage occurs within or outside of the boundaries of property owned or occupied by the insured.