Workshop U The ABC’s of Contaminant Discovery, Disclosure and Disposition Tuesday, March 24, 2020 3:30 p.m. to 4:45 p.m.
Biographical Information Facilitator : Katherine (Kathy) Wiedeman Director of Environmental, Health & Safety ND Paper, 7777 Washington Village Dr., Suite 210, Dayton, OH 45459 937-528-3843 Katherine.Wiedeman@us.ndpaper.com Kathy has over 25 years of experience in the paper industry and has worked in multiple aspects of the environmental, health and safety field, including safety leadership, wastewater and landfill operations, air compliance and permitting, solid waste management, process improvement and sustainability. She began her career at the Mead Chillicothe paper mill in 1997 as a Staff Engineer and progressed to Environmental Manager in 2001. In 2006, Kathy was promoted to Director EH&S for Glatfelter’s Ohio Operations, taking on expanded responsibilities in the areas of safety and health. She recently became the Director of Environmental, Health and Safety for ND Paper. Established in the U.S. in 2018, ND Paper is a wholly-owned subsidiary of Nine Dragons Paper (Holding) Ltd and has a regional office in Dayton. She has a bachelor’s degree in Mechanical Engineering from the University of Dayton and currently lives in the Dayton area. Sharon R. Newlon, J.D., Member, Dickinson Wright, PLLC 500 Woodward, Suite 4000, Detroit, Michigan 48226 313-223-3674 SNewlon@dickinsonwright.com Ms. Newlon has been assisting companies for over 30 years in evaluating the environmental issues associated with their operations. She oversees environmental risk management in multi- million-dollar purchase, merger and financing transactions; chairs Superfund PRP Groups; serves as environmental crisis counsel on significant fire and spill incidents; and is national environmental audit counsel for chemical and manufacturing companies. She says that her degree in chemistry just helps her to properly pronounce the chemical names she works with every day, but she uses it to communicate most effectively with technical employees, consultants, expert witnesses and regulators. She holds a bachelor of science degree in chemistry from the University of Detroit and a JD from Notre Dame Law School. Ms. Newlon has served as an environmental law lecturer for the Manufacturers’ Education Council on environmental auditing and crisis management, for the International Council of Shopping Centers on Superfund landowner defenses and continuing obligations, for the Institute for Continuing Legal Education on environmental issues for small businesses, for the State Bar's Environmental Law Section on a variety of topics, for the Southwest Michigan Chapter of the Air and Waste Management Association on crisis management and state remediation law revisions, and for the National Brownfields Conference on siting renewable energy projects in Brownfields. Ms. Newlon served on the Michigan Department of Environmental Quality's Part 201 Workgroup to review Michigan's environmental remediation and redevelopment laws, on the State Bar's Environmental Law Section’s Council and as Ethics Committee Co-Chair, and as Co-Chair of the Environmental Law Committee for the Southeast Michigan Chapter of the Federal Bar Association. Ms. Newlon also serves regularly as a presenter at Explorathon, encouraging girls to explore interests in math and science related fields and as a judge for the Research Symposium at the University of Detroit Mercy, where she has served on the Alumni Board to the College of Engineering and Sciences.
The ABC’s of Contaminant Discovery, Disclosure and Disposition Sharon Newlon, Dickinson Wright PLLC
Discovery • In the spirit of recycling, five years ago you purchased a brownfield site with known impacts. • At that time, you did your Phase I assessment to qualify for the federal (and state?) bona fide prospective purchaser (BFPP) defense, and some Phase II work to establish a good baseline. • Now business is booming, and you want to expand your building footprint. You get your building permits. You’re ready to go! • Then the excavator hits something unexpected – smelly, brown ooze. • What do you do?
First steps • Safety first, always. Stop the work and remove workers from the area until you can assess what you’ve found. Secure equipment if you can safely do so. Place safety barriers and warning tape around the area. Cover if practical and safe to do so. • Assess for immediate risks – fire/explosion, acute inhalation risks, ongoing release (e.g., punctured tank), vulnerability to weather. • Notify emergency responders, if required or warranted (fire/explosion risk, acute inhalation risks). • Engage environmental response professionals.
Disclosure • Statutory Duties to Disclose: • CERCLA – Release of reportable quantity over 24 hours (15 minute trigger) • Indiana – Spills that damage waters of the state; spills to soils within facility: above CERCLA RQ, >1000 gal petroleum, spills of other “objectionable substances”; et al. • Kentucky – CERCLA RQ • Ohio – CERCLA RQs for hazardous substances, 25 gal for oil release not into navigable waters • UST‐related releases • Other – EPCRA, CWA, TSCA, AST‐related releases, fire codes • Continuing Obligations to Preserve BFPP Defenses: • Express element ‐ must meet statutory reporting obligations • Potential element – reporting as a “reasonable step”
CERCLA Continuing Obligations Common Elements Innocent Landowner - Section Common Elements and other Bona Fide Prospective 101(35)(A)(i) Contiguous Property Owner Requirements Purchaser Continuing Obligation ✔ § 101(40)(B)(i) ✔ § 101(35)(A) No disposal after acquisition Compliance with land use restrictions and not impeding ✔ § 101(40)(B)(vi) ✔ § 107(q)(1)(A)(v) ✔ § 101(35)(A) institutional controls Taking "reasonable steps" to ✔ Exercise appropriate care ✔ § 107(q)(1)(A)(iii) ✔ § 101(35)(B)(i)(II) manage releases 101(40)(B)(iv) Providing full ✔ § 101(40)(B)(v) ✔ § 107(q)(1)(A)(iv) ✔ § 101(35)(A) cooperation/assistance/access Compliance with information ✔ § 101(40)(B)(vii) ✔ § 107(q)(1)(A)(vi) requests and administrative subpoenas
CERCLA Continuing Obligations Common Elements Innocent Landowner - Section Common Elements and other Bona Fide Prospective 101(35)(A)(i) Contiguous Property Owner Requirements Purchaser Continuing Obligation Providing legally required ✔ § 101(40)(B)(iii) ✔ § 107(q)(1)(A)(vii) notices No impeding performance of ✔ § 107(r)(1) response action or natural resource restoration Did not cause/contribute to ✔ § 107(q)(1)(A)(i) contamination Third Party Defense ✔ § 107(b)(3) requirements (due care and precautions)
Common Elements Guidance 2003 • Initial guidance issued March 3, 2003 (dated March 6, 2003), with comfort/status letter attachment • Reasonable steps – requires due care to protect human health and environment, but not full remediation • Reasonable steps ‐ may require sampling and maintenance of existing environmental controls • Providing legally required notices – under applicable federal, state and local laws; may also be required as a “reasonable step”
Common Elements Guidance 2019 • New guidance issued July 29, 2019 (supersedes 2003 guidance) • When spreading of existing impacts should and should not be considered new disposal • Monitoring the effectiveness of institutional controls on at least an annual basis may be warranted • The obligation not to interfere with institutional and engineering controls applies both to those in place at the time of the purchase/lease and those imposed later in conjunction with remediation • EPA will consult on a case‐by‐case basis as to “reasonable steps” and may provide status/comfort letters • Reasonable steps will require affirmative steps to prevent exposures, prevent future releases/exacerbation, and stop continuing releases • Landlords must advise tenants of “reasonable steps” and monitor their compliance
Disposition • Continuing obligations focus on exposure controls, not remediation • Obligation to stop release • May require removal or emptying of containers discovered, removal of free product from area of release, as well as notice to government and/or responsible parties • Must assess potential exposure risks – likely to require sampling • Must address confirmed exposure risks • Removal and/or exposure controls for direct contact risks, vapor intrusion • Restrictions on use for groundwater impacts – to address potential exposure and potential exacerbation
Disposition (continued) • Document evaluation of risks and steps being taken in a written due care plan • Plan should address both one‐time actions and continuing actions, such as barrier inspections and maintenance, documentation of same • Plan is a living document – should be reviewed and updated as property uses and cleanup standards change • ASTM E2790 – Guide for Identifying and Complying with Continuing Obligations (update anticipated to be released in 2020)
Other Considerations • Permitted facilities may have additional obligations to report and/or keep records depending on permit requirements, extent of release • If statutory reporting requirements are triggered, written follow up reports may also be required (perform a consistency review and address any changes in information) • For tenants (and landlords), lease agreements may also trigger private party reporting requirements, which may not be subject to reportable quantity limitations
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