December 09, 2019

Adequacy of Characterizing Contaminants When Drafting a Self-Implementing Plan Pursuant to § 761.61(a) of the Toxic Substances Control Act

Brian C. Quiros

Over the last several years, politicians have popularized the concept of “don’t ask don’t tell” in a wide variety of circumstances.  Meanwhile, investigation and identification of environmental contaminants has become serious business.  Evolving regulation and the increased cost of disposing certain contaminants, such as polychlorinated biphenyls (“PCBs”), has made some projects economically impossible.  Regardless, the relevant regulations must be applied on every applicable project.  This article discusses the clean up of such contaminants and the applicable regulations at play. 

Identification of Contaminants

A predicate to any cleanup is determining the existence of contaminants on the site and then disclosing that existence to the United States Environmental Protection Agency (“EPA”) in order to obtain authorization to clean up a site in compliance with 40 C.F.R. § 761.61(a) of the Toxic Substances Control Act (“TSCA”).  The owner of contaminated property must notify the EPA of all known and suspect sources of contamination. The site must be “adequately” characterized as a first step in preparing a self-implementing plan (“SIP”) seeking authorization for cleanup work and subsequent disposal of contaminated material.  The question presented by the regulations is how much effort has to be put into determining contaminants on a proposed site. 

Remediating Contaminants

There are three different approaches for remediating contaminants. Regardless of which approach is used, the owner of the property has obligations to determine and provide for remediation and removal of the contaminants found on the prospective clean-up site. 

The Self-Implementing Plan and Conceptual Side Model

As explained above, the SIP seeks authorization to clean up a site.  The SIP provides basic information about the site.  The SIP informs the EPA of the contaminates expected on the site, the history of the site, the owner of the site, the intended future use of the site, and the general process to be followed to clean up the site.

The contamination information disclosed in the SIP is often derived based on a conceptual site model (“CSM”).  A CSM “expresses a site-specific contamination problem through a series of diagrams, figures, and narratives consistent with the United States Environmental Protection Agency (USEPA) Office of Solid Waste and Emergency Response (OSWER) remedial investigation and feasibility study guidance.” The CSM is used to project and estimate the nature and extent of contamination.  In a document entitled “Guidance for Conducting Remedial Investigations and Feasibility Studies Under CERCLA,” The EPA’s Office of Solid Waste and Emergency Response identified a CSM as:

Information on the waste sources, pathways, and receptors at a site is used to develop a conceptual understanding of the site to evaluate potential risks to human health and the environment.  The conceptual site model should include known and suspected sources of contamination, types of contaminants and affected media, known and potential routes of migration, and known or potential human and environmental receptors.  This effort, in addition to assisting in identifying locations where sampling is necessary, will also assist in the identification of potential remedial technologies. 

Thus, a CSM – and therefore a SIP – must include both “known” and reasonably expected sources of contamination.

“Adequately” Characterizing the Site

“[A]ny person conducting self-implementing cleanup of PCB remediation waste must characterize the site adequately to be able to provide the information required by paragraph (a)(3) of this section.”  “Adequately” as used in 40 C.F.R. § 761.61(a)(2) has not been analyzed to provide a working definition or practical interpretation.  In other words, no court has defined “adequately” to explain what it means. 

However, “adequately” as used in other sections of TSCA has been analyzed: 

Any person who manufactures, processes, or distributes in commerce a chemical substance or mixture and who obtains information which reasonably supports the conclusion that such substance or mixture presents a substantial risk of injury to health or the environment shall immediately inform the Administrator of such information unless such person has actual knowledge that the Administrator has been adequately informed of such information.

Applying this standard, Judge Scheindlin found that there was nothing to indicate that the EPA received information about the claimed contamination.  The court found that the EPA had in its possession information regarding the effect of MTBE on water, just no information in its possession regarding the level at which MTBE contaminates water as alleged by the plaintiff. Following Judge Scheindlin’s logic, to be "adeqiately informed," the EPA must have documents evidencing knowledge of a given set of facts.   

This interpretation is consistent and supported by a document entitled “TSCA Section 8(e) Reporting Guide.”  In that document, the EPA provides examples of being “adequately informed”:  information contained in an EPA study or report, published in the open scientific literature, submitted previously to the EPA under another mandatory reporting provision, contained in a formal publication or report made available to the general public by another federal agency, is corroborative of a well-established adverse effect, or for which the EPA Administrator waived compliance with § 2607(e) upon request and determination of the President of the United States and such waiver is required in the interest of the national defense.

Thus, by analogy, “adequately,” as used in 40 C.F.R. § 761.61(a)(2), means that a party must provide the EPA with documents or data that fully informs the EPA of a given set of facts and that nothing can be assumed or omitted.  The corollary is that without information in its hands, the EPA has not been “adequately informed.”  40 C.F.R. § 761.61(a)(2).

The history and regulatory rulemaking process behind TSCA further supports the need for an adequate characterization of all contaminants at a site.  In its December 6, 1994 Notice of Proposed Rulemaking (“NPRM”), the EPA made it clear that site characterization must include determination and analysis of all contaminants at a site:

  • “There are two questions associated with any cleanup.  The first question is to what level must contamination be cleaned …”
  • “Section 761.61 would apply to the cleanup and disposal of all PCB remediation wastes regardless of when the disposal, spill, or contamination occurred.”
  • “Currently, based on the results of site sampling, historical, or other data, EPA may presume that PCBs are illegally disposed of at a site and require remediation under TSCA. In that case, the burden is on the site owner or operator to establish, through persuasive evidence, that the PCBs are not illegally disposed of under TSCA.  Today, EPA proposes to address all PCB remediation waste, regardless of concentration, physical state or date of disposal … under § 761.61, based on the risk of exposure or injury they now pose.”
  •  “EPA acknowledges the need for responsibly operated metal recycling facilities. As such, EPA is reiterating that all wastes containing 50 ppm PCBs or greater, including shredder wastes, as well as demolition wastes and large volumes of other PCB non-remediation wastes impregnated with PCBs (e.g., insulation), are regulated for disposal.”
  • “At the end of their current useful life, all such PCB materials with a PCB concentration of 50 ppm or greater, and materials that came in contact with 50 ppm or greater PCBs, including leak collection systems, PCB-containing paint and other encapsulation materials, and all materials used during decontamination or cleanup procedures would have to be handled, stored, and disposed of in accordance with the PCB storage requirements at 40 C.F.R. § 761.65 and the disposal requirements at § 761.60 or § 761.62.”

In May 1998, the EPA confirmed that site characterization must include both sampling and an appreciation of site knowledge and history: 

Comment 20: Site characterization should be based on best engineering judgement (sic) rather than just sampling.  Best engineering judgement (sic) would allow for site knowledge and history to be factored into the characterization process rather than relying on extensive and costly sampling.
….
Response 20: Today’s rule requires any person conducting self-implementing cleanup of PCB remediation waste to characterize the site adequately to be able to provide the information necessary for the Regional Administrator to review the cleanup plan.  The proposal required detailed small scaled information, such as numbers of characterization sample results (proposed Appendix II).  Today’s rule is more flexible, providing subpart N as a reference point for the assessment of sampling data but allowing other sampling methods that are as effective at characterizing contamination at the site.  The final rule does not require a specific number of precleanup characterization samples.  Because of the self-implementing nature of this option, it is important to start out with adequate accurate information about the PCB concentrations at the site to provide both the RA and the owner of the site knowledge on the effective methods to cleanup the site.  Well-meaning, but incorrect, estimates or predictions of PCB concentrations have often taken cleanup actions by surprise during cleanup verification sampling, which will always be required under § 761.61(a)(6). 

In Response # 20, the EPA does not state that site characterization can be based solely on site knowledge and history.  The EPA does not, however, require sampling to categorize a site.  The EPA’s Response suggests a combination of both for proper characterization.

The TSCA requires a party to characterize paints because it often includes PCBs.  40 C.F.R. § 761.1(b)(1).  40 C.F.R. § 761.61(a)(3)(A) states:

At least 30 days prior to the date that the cleanup of a site begins, the person in charge of the cleanup or the owner of the property where the PCB remediation waste is located shall notify, in writing, the EPA Regional Administrator, the Director of the State or Tribal environmental protection agency, and the Director of the county or local environmental protection agency where the cleanup will be conducted. The notice shall include: (A) The nature of the contamination, including kinds of materials contaminated.

The term “nature of the contamination” has been analyzed by courts in Comprehensive Environmental, Response, Compensation and Liability Act (“CERCLA”) litigation, a comparable statute concerning environmental contamination.  40 C.F.R. § 761.61(a)(3)(A).  For example, in U.S. v. Union Corp., the United States sued defendants Irvin Schorsch, Jr., John Schorsch, and corporate defendants Union Corporation and Metal Bank of America, Inc., seeking reimbursement for past and future response costs to investigate a superfund site in Philadelphia and for enforcement pursuant to § 107 of CERCLA.

The Eastern District Court of Pennsylvania has explained:

CERCLA imposes strict liability where: 1) the defendant is a “covered person” pursuant to 42 U.S.C. § 9607(a); 2) the site is a “facility” within the meaning of 42 U.S.C. § 9601(9)(B); 3) there is a “release” or “threatened release” of hazardous substances into the environment within the meaning of 42 U.S.C. § 9601(14) or (22); and 4) as a result of the release or threatened release, the United States has incurred some response costs.  42 U.S.C. § 9607.  CERCLA is a remedial statute and must be construed liberally to effectuate its goals. (citation omitted).  Thus, “a CERCLA plaintiff need not establish a direct causal connection between the defendant’s hazardous substances and the release or the incurrence of response costs.”  (citation omitted).  “[T]he Government must simply prove that the defendant’s hazardous substances were deposited at the site from which there was a release and that the release caused the incurrence of response costs."

In holding that the defendants were liable under CERCLA, the court’s (Giles, C.J) memorandum of decision included a comprehensive analysis of the nature of the contamination which included identifying the contaminants at the site, the quantity of contaminants at the site, and the location of the contaminants at the site. Through years of testing, sampling, and investigating, it was determined the site at issue in Union Corp. was contaminated with PCBs, polycyclic aromatic hydrocarbons (“PAHs”), semi-volatile organize compounds (“SVOCs”), volatile organize compounds (“VOCs”), petroleum hydrocarbons (“TPH”), metals (arsenic, cadmium, copper, lead, and mercury), dioxins and furans.

In Sealy Connecticut, Inc. v. Litton Industries, Inc., the property owner brought suit to recover its remediation costs under § 107 of CERCLA and various state law claims.  Sealy sought to recover its costs of remediating the soil and groundwater contamination of its real property from parties alleged to have formerly “owned, operated and/or controlled industrial facilities on the site whose operations are alleged to have caused the contamination.” The only issue in the case was “what portion of Sealy’s remediation costs [to date and in the future] would be recoverable under CERCLA.” In holding that the costs the plaintiff expended for remediating the site were recoverable under CERCLA, the court (Arterton, J) found that the property owner’s investigation of the nature of the contamination of the site indicated the presence of heavy metals (cadmium, chromium, cooper, lead, nickel, zinc, cyanide, TPH) contamination, VOCs, and PAHs in the soil and groundwater.

In Dexter v. Cosan Chemical Corp., the property owner sued to recover damages from the prior property owner pursuant to CERCLA due to soil and groundwater contamination. The court (Debevoise, J) entered judgment in part, and denied in part, the plaintiff’s CERCLA