Environmental AnalysisEnvironmental AnalysisEnvironmental AnalysisEnvironmental Analysis

American Bar AssociationAmerican Bar Association

Forum on the Construction IndustryForum on the Construction Industry

American Bar AssociationAmerican Bar Association

Forum on the Construction IndustryForum on the Construction Industry

Presented By:Presented By:Geoffrey A. GlandersGeoffrey A. Glanders

August Mack August Mack Environmental, Inc.Environmental, Inc.

Daniel M. DrewryDaniel M. DrewryDrewry Simmons Drewry Simmons

Vornehm, LLPVornehm, LLP

InfrastructureCivil Works Projects for Lawyers

Alphabet Soup of Alphabet Soup of RegulationsRegulations

Clean Water ActClean Water Act

▪ Prohibits discharge of toxic pollutants

▪ Wastewater treatment management

▪ Sets mandatory water quality standards

▪ Establishes the National Pollutant Discharge Elimination System (NPDES)

Rivers and Harbors ActRivers and Harbors Act

▪ Corps of Engineers approval of any “wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty…”

▪ Corps of Engineers approval for any construction that may “alter or modify the course, location, condition, or capacity of…any navigable water of the United States”

Historic Preservation ActHistoric Preservation Act

▪ The National Historic Preservation Act establishes a program to preserve historic properties in the United States

▪ Expand and maintain a National Register of Historic Places

– Preserve, protect, develop and when possible restore or enhance the Native Coastal Zones

– The member states are all that border the Atlantic and Pacific Oceans, Gulf of Mexico, Arctic Ocean, Long Island Sound and Great Lakes

– The program is to preserve and restore coastal areas

Resource Conservation and Resource Conservation and Recovery Act (RCRA)Recovery Act (RCRA)

▪ Regulates hazardous waste disposal

▪ Creates a ‘cradle-to-grave’ tracking system

▪ Also regulates the location, design, and operation of disposal facilities for solid and hazardous wastes

– Known as Superfund– Cleanup uncontrolled or abandoned hazardous

waste sites– Conveys authority to USEPA to find violators– Act facilitates public involvement in clearing

process of hazardous sites

CERCLA CERCLA

▪ Liability for discharge of hazardous waste

▪ Require violator to pay for cleanup

▪ Innocent landowners defense

▪ Contiguous property owners (CPOs)

Clean Air Act (CAA)Clean Air Act (CAA)

▪ Regulate air emissions from stationary and mobile sources

• Carbon Monoxide

• Nitrogen Dioxide

• Ozone

• Lead

• Respirable Particulate Matters (PM-10)

• Fine Particulate Matters (PM-2.5)

• Sulfur Dioxide

Clean Air Act (CAA)Clean Air Act (CAA)– Sulfur Dioxide Cap and Trade– Permits required are major pollution sources

• New Construction

• Major Renovation

– Permits addressed • Equipment Specs

• Operation and Measurement Requirements

– Title V• Operating Permits for Major Facilities

Endangered Species ActEndangered Species Act

▪ Provides a program for the conservation of threatened and endangered plants and animals and their habitats

▪ Requires US Fish & Wildlife to maintain list of endangered species

LAND USELAND USE

• Standard, State, Zoning, Enabling Act– Districts for Local Government

– Zoning Purposes Declaration

– Procedures for Zoning Regulations

– Standard City Planning Enabling Act (SCPEA)

– Seasonal and Regional Planning

– The Powers of Planning Commission

– Regulations and Subdivisions

– Provide for Penalties

• Visual Impact Analysis– View Shed Analysis

– Corridor Studies

– Many Considerations to Protect Views

State ProgramsState Programs

– Federal Government establish the national mandates on State Governments

– States provide implementation and regulatory responsibility

– Local Government has input on specific initiatives

– Practice Tip: Ascertain whether State Law applies; check local regulations for additional requirements

Environmental Impact Environmental Impact StatementStatement

• Scoping• Draft EIS• Final EIS and

Proposed Action• Record of Decision

RemediationRemediation Licensure & Licensure & TrainingTraining

▪ State license as remediation specialist

▪ Certain activities require professional engineer

▪ Hazardous Waste Operations and Emergency Response Standard (HAZWOPER) Training

HAZWOPERHAZWOPER

▪ Clean up at uncontrolled hazardous waste site

▪ Corrective actions at RCRA sites

▪ Voluntary clean up at uncontrolled hazardous waste sites

▪ Operations involving hazardous waste at treatment, storage and disposal facilities

▪ Emergency response operations

Environmental Site Environmental Site AssessmentAssessment

• Phase I Environmental Assessment

• Preliminary Assessment

• Due Diligence

Environmental Site Environmental Site AssessmentAssessment

▪ Records Review– Current and Past Site Use– Prior Environmental Permits– Property Appraisals– Neighboring Property Assessment

▪ Site Inspection– Recognized Environmental Condition (REC)

▪ ASTM E1527

Contents of Phase I Contents of Phase I ReportReport

– Contents of Phase I report• Site specific surrounding property

• Observe potential presence of contamination

• Photos

• Environmental Database Regulatory Rulings

• Agencies Response to FOIA

• Further Site Investigation Recommendations

– ASTM E1527 -05• Signed Certificate

Site CharacterizationSite Characterization

▪ Work Plan– Identify RECs and Impacted Media

▪ Site Investigation– Investigation based on probable REC and Media

▪ Site Specific Health & Safety Plan (HASP)

▪ Phase II Report

▪ ASTM E1903

CONTAMINANTSCONTAMINANTS

– Volatile Organic Compounds (VOC)• Benzene, Toluene, Solvents

• Media: Soil, Water and Air

– Semi-Volatile Organic Compounds (SVOC)• Phenol, Naphthalene, Petroleum Hydrocarbons

• Media: Soil, Water and Sediment

CONTAMINANTSCONTAMINANTS

– Metal• Nickel, Lead, Mercury, Zinc and Arsenic

• Media: soil, water and sediment

– General Chemistry • Analyze PH, Alkali, Nitrogen and Total Organic

Compounds (TOC’s)

Remedial InvestigationRemedial Investigation

▪ Qualitative Human

Exposure

▪ Ecological Impact

▪ Remedial

Investigation/Feasibility

Study (RI/FS)

Conceptual Site ModelConceptual Site Model

▪ Contaminant transport model

▪ Pathways analysis

▪ Subsurface model

▪ Depiction of areas of contamination

▪ Depiction of pertinent infrastructure

Purpose of RemediationPurpose of Remediation

▪ Eliminate, to the extent practical, direct contact with contaminants

▪ Eliminate, to the extent practical, ingestion of contaminants

▪ Eliminate, to the extent practical, migration of contaminants

▪ Prevent, to the extent practical, groundwater contact with contaminated source materials

Remediation Standards

▪ EPA Applicable, Relevant and Appropriate Requirements (ARARS)

▪ What if ARARS have not been adopted?– Chemical specific standards, i.e Mercury 0.002

mg/L– Action specific standards, which limit

particular types of remediation action– Location specific standards, particularly

wetlands and floodplains

Review of Remedial Action Review of Remedial Action Criteria Criteria

– Chemical Specifications – Health Risks, Base Line

• Action Specified– Control of type of activity

• Location Specific– Specific Areas of Wetlands and Flood Plains

• Remedial Action Purposes – Element– Direct Control – Migration – Ground Water Control

Remedial Options

▪ No action – continued monitoring

▪ Limited action – monitoring with limitations on access and transfer

▪ Containment – isolate contaminants

▪ Removal/Treatment/Disposal

Remedial GoalsRemedial Goals

▪ Identify removal type and process

▪ Evaluation of process options – Goals to be Obtained

• Ground water resotroration• Non-degradation• Return aquifer to health based standards • Use technology based standard • Implement restore use policy • Budget consideration

Analysis of Remedial Analysis of Remedial AlternativesAlternatives

▪ Protection of Human Life

▪ Compliance with Applicable Standards

▪ Long-Term Effectiveness

▪ Reduction of Toxicity

▪ Short-Term Effectiveness

▪ Ability for Implementation

▪ Community Acceptance

▪ Costs

Design ProceduresDesign Procedures

▪ Permitting– Different Requirements for

• Surface Water

• Soil

• Air

• Ground Water

– Considerations of Site Use • Most remediation considerations

Formats for Remedial Formats for Remedial Action Action

– ROD Pathway• RI/FS

• Agency Record of Decision

• 50% to 75% Design

• 95% Design (include Contractor and Agency Comments)

• 100% Complete (include Final Agency Comments)

Remedial Action Work Plan (RAWP)

• Remedial Investigation

• Remedial Action Selection

• Remedial Action Work Plan

• Contractor Selection

• Implementation

• Voluntary Clean-up Options

Construction and Construction and DevelopmentDevelopment

▪ Final USEPA and/or State Agency Review and Approval

▪ Final Contractor Permitting

▪ Coordination of Zoning and Land Use

▪ Owner designates Construction Team

▪ Monitoring of Contractor and Construction for compliance with Permits and Approvals

Site Management PlanSite Management Plan

• If some contamination remains, prepare plan for agency approval

• Implement site or deed restrictions needed to prevent further disturbance

• Implement Operations, Maintenance and Inspection requirements

• Determine site development as allowed by permits or conditions including the means for managing future activities

Greenhouse GasesGreenhouse Gases

• Greenhouse Gases are linked to global warming

• Indication that earth’s temperature was climbing above past levels

• Typical Gases » Carbon Dioxide, Methane, Nitrous Oxide, Fluorinated

Gases, Nitrogen Oxide, Non-methane VOC

• NEPA Guidelines– Require federal agencies to integrate environmental values

into decision making process

• US Council of Environmental Quality Issued Guidelines to Evaluate Greenhouse Gases

Voluntary Emission Voluntary Emission ReductionReduction

▪ Conservation

▪ Clean Energy Incentives

▪ Market Based Approach

▪ Rebates

▪ Tax Incentives

▪ EPA/ Industry Collaboration for Greenhouse Gas Reduction

Cap and TradeCap and Trade

– EPA set discretionary yearly carbon dioxide emission limits

– Issue permits to energy producers – Producers can sell unused permits to other

producers – Program now has nine states in the Northeast

participating in a Cap and Trade approach– A way of forcing use and development of clean

renewable energies

Mandatory Greenhouse Gas Mandatory Greenhouse Gas ReportingReporting

▪ Purpose: To gather accurate data for use in making future decisions

▪ Facilities that emit ≥ 25,000 metric tons must report

Legal Issues Presented by Legal Issues Presented by Environmental Environmental ContaminationContamination

RCRA and CERCLA LiabilityRCRA and CERCLA Liability

▪ Two federal statutory schemes are implicated Two federal statutory schemes are implicated when a contractor works on a contaminated when a contractor works on a contaminated site:site:– The Resource Conservation and Recovery Act of The Resource Conservation and Recovery Act of

1976 (commonly known as RCRA) (codified at 1976 (commonly known as RCRA) (codified at 42 USC § 6901); and42 USC § 6901); and

– The Comprehensive Environmental Response The Comprehensive Environmental Response Compensation and Liability Act of 1980 Compensation and Liability Act of 1980 (commonly known as CERCLA) (codified at 42 (commonly known as CERCLA) (codified at 42 USC § 9601).USC § 9601).

RCRA and CERCLA LiabilityRCRA and CERCLA Liability

▪ Both schemes recognize that, prior to the Both schemes recognize that, prior to the commencement of construction, the owner of the site commencement of construction, the owner of the site owns any environmental hazards that exist on the site.owns any environmental hazards that exist on the site.

▪ However, under CERCLA, anyone who “arranges for However, under CERCLA, anyone who “arranges for the disposal or treatment of hazardous substances or the disposal or treatment of hazardous substances or who arranges with a transporter for disposal of who arranges with a transporter for disposal of hazardous substances” and “any transporter of hazardous substances” and “any transporter of hazardous substances” is also liable for contamination hazardous substances” is also liable for contamination arising from the transported substances.arising from the transported substances.

RCRA and CERCLA LiabilityRCRA and CERCLA Liability▪ This commonly plays out when contaminated soil is This commonly plays out when contaminated soil is

found during excavation.found during excavation.– The soil must be excavated.The soil must be excavated.

– Once excavated, the soil has to go somewhere.Once excavated, the soil has to go somewhere.

– The general contractor either hauls the soil offsite itself The general contractor either hauls the soil offsite itself (and thus becomes a transporter) or has a subcontractor (and thus becomes a transporter) or has a subcontractor haul the soil offsite (and thus becomes someone who haul the soil offsite (and thus becomes someone who arranges for transportation).arranges for transportation).

– Either way, the general contractor is now on the hook if Either way, the general contractor is now on the hook if that soil causes contamination elsewhere.that soil causes contamination elsewhere.

– The owner is always liable, as the “generator” of the The owner is always liable, as the “generator” of the contaminated soil.contaminated soil.

RCRA and CERCLA LiabilityRCRA and CERCLA Liability

▪ CERCLA is a strict liability statute.CERCLA is a strict liability statute.

▪ CERCLA also imposes joint and several CERCLA also imposes joint and several liability on all responsible parties.liability on all responsible parties.

▪ Thus, the contractor could become solely Thus, the contractor could become solely responsible for the clean-up costs.responsible for the clean-up costs.

RCRA and CERCLA LiabilityRCRA and CERCLA Liability

▪ The ideal solution for the contractor is for the The ideal solution for the contractor is for the owner to directly contract with a owner to directly contract with a transportation company to offhaul the transportation company to offhaul the contaminated soil.contaminated soil.

▪ Contractor is now neither a transporter nor an Contractor is now neither a transporter nor an arranger of transport for the soil.arranger of transport for the soil.

▪ Owners are typically not thrilled with this Owners are typically not thrilled with this arrangement.arrangement.

RCRA and CERCLA LiabilityRCRA and CERCLA Liability

▪ If the owner and contractor agree on a If the owner and contractor agree on a disposal site (preferably a licensed hazardous disposal site (preferably a licensed hazardous waste disposal facility), the contractor can waste disposal facility), the contractor can propose an indemnity agreement specific to propose an indemnity agreement specific to the contaminated soil.the contaminated soil.

Legal Issues Presented by Legal Issues Presented by Environmental Environmental ContaminationContamination

RCRA and CERCLA LiabilityRCRA and CERCLA Liability

▪ Two federal statutory schemes are implicated Two federal statutory schemes are implicated when a contractor works on a contaminated when a contractor works on a contaminated site:site:– The Resource Conservation and Recovery Act of The Resource Conservation and Recovery Act of

1976 (commonly known as RCRA) (codified at 1976 (commonly known as RCRA) (codified at 42 USC § 6901); and42 USC § 6901); and

– The Comprehensive Environmental Response The Comprehensive Environmental Response Compensation and Liability Act of 1980 Compensation and Liability Act of 1980 (commonly known as CERCLA) (codified at 42 (commonly known as CERCLA) (codified at 42 USC § 9601).USC § 9601).

RCRA and CERCLA LiabilityRCRA and CERCLA Liability

▪ Both schemes recognize that, prior to the Both schemes recognize that, prior to the commencement of construction, the owner of the site commencement of construction, the owner of the site owns any environmental hazards that exist on the site.owns any environmental hazards that exist on the site.

▪ However, under CERCLA, anyone who “arranges for However, under CERCLA, anyone who “arranges for the disposal or treatment of hazardous substances or the disposal or treatment of hazardous substances or who arranges with a transporter for disposal of who arranges with a transporter for disposal of hazardous substances” and “any transporter of hazardous substances” and “any transporter of hazardous substances” is also liable for contamination hazardous substances” is also liable for contamination arising from the transported substances.arising from the transported substances.

RCRA and CERCLA LiabilityRCRA and CERCLA Liability▪ This commonly plays out when contaminated soil is This commonly plays out when contaminated soil is

found during excavation.found during excavation.– The soil must be excavated.The soil must be excavated.

– Once excavated, the soil has to go somewhere.Once excavated, the soil has to go somewhere.

– The general contractor either hauls the soil offsite itself The general contractor either hauls the soil offsite itself (and thus becomes a transporter) or has a subcontractor (and thus becomes a transporter) or has a subcontractor haul the soil offsite (and thus becomes someone who haul the soil offsite (and thus becomes someone who arranges for transportation).arranges for transportation).

– Either way, the general contractor is now on the hook if Either way, the general contractor is now on the hook if that soil causes contamination elsewhere.that soil causes contamination elsewhere.

– The owner is always liable, as the “generator” of the The owner is always liable, as the “generator” of the contaminated soil.contaminated soil.

RCRA and CERCLA LiabilityRCRA and CERCLA Liability

▪ CERCLA is a strict liability statute.CERCLA is a strict liability statute.

▪ CERCLA also imposes joint and several CERCLA also imposes joint and several liability on all responsible parties.liability on all responsible parties.

▪ Thus, the contractor could become solely Thus, the contractor could become solely responsible for the clean-up costs.responsible for the clean-up costs.

RCRA and CERCLA LiabilityRCRA and CERCLA Liability

▪ The ideal solution for the contractor is for the The ideal solution for the contractor is for the owner to directly contract with a owner to directly contract with a transportation company to offhaul the transportation company to offhaul the contaminated soil.contaminated soil.

▪ Contractor is now neither a transporter nor an Contractor is now neither a transporter nor an arranger of transport for the soil.arranger of transport for the soil.

▪ Owners are typically not thrilled with this Owners are typically not thrilled with this arrangement.arrangement.

RCRA and CERCLA LiabilityRCRA and CERCLA Liability

▪ If the owner and contractor agree on a If the owner and contractor agree on a disposal site (preferably a licensed hazardous disposal site (preferably a licensed hazardous waste disposal facility), the contractor can waste disposal facility), the contractor can propose an indemnity agreement specific to propose an indemnity agreement specific to the contaminated soil.the contaminated soil.

Thank YouThank You