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Caveats of Eco-Legislature: PCBs, Brownfields, and Superfunds

Welcome back, ecoSPEARS readers! For this blog installment we’re going to be covering the complex processes by which PCBs and other toxic contaminants are identified and addressed. We’re also going to help break down the various ways through which contamination sites are categorized and the series of steps the EPA and municipalities go through to reach the milestone of remediation on-site.

Now, fair warning: the rules and regulations regarding environmental remediation are some of the most lengthy and complicated legal literature in the archives of the United States’ legislation. Since PCBs were banned in 1979 several series of legislative measures including the Toxic Substances Control Act (TSCA) and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) were placed into effect to ensure proper handling of removing and disposing of PCBs and other contaminants. This is not only due to the risk of continued exposure or ingestion of these substances, but also to mitigate the ability of these substances to persist in our environment or – even worse – leech from storage into previously uncontaminated areas. When we say lengthy, we mean that even the synopsis of handling PCBs in buildings is upwards of seventy (70) pages.

We’ve also covered before that the only two means currently accepted by the EPA for PCB remediation are dredging and capping. According to the US EPA’s 2005 guidance document for Contaminated Sediment Remediation Guidance for Hazardous Waste Sites, dredging as a remediation method can help achieve site-specific goals of site cleanup in terms of concentration, most often measured in parts-per-million. Environmental dredging can also (literally) pave the way for future navigational dredging that may have to be done at the site, if any. However, it is also known that dredging as a remediation method is a costly and lengthy alternative which often results in continued absorption of contaminants into fish and wildlife. There’s also the issue of resuspension as dredging machinery stirs up sediment allowing an uncertain amount of toxins to be reintroduced into the environment.

The process of capping is exactly what it sounds like: a large cap is created and placed over the contamination area of the site in the hopes that it will prevent the spread of toxins into the surrounding ecosystem. Capping is rarely used as a standalone alternative and more often than not used in conjunction with dredging to address contamination.

A diagram showing how dredging and capping are used together as a remediation tactic.

Although both of these processes are accepted as means as remediation, we believe that that’s exactly what they are: means. Not solutions. Dredging and capping do provide aid in mitigating the issue of PCB contamination but neither have shown to be 100% successful in removing toxic substances. That being said, science will tell you that nothing is ever truly 100% successful, only tried time and again until it is able to move past the status of “theory.” Dredging and capping both are well beyond the theoretical stage of alternatives, but that doesn’t mean they couldn’t be better.

To move on from these two methods, let’s dive a bit more into regulation of PCB cleanup. While the EPA possesses final oversight of PCB cleanup insofar as identifying contaminated sites and prioritizing specific sites given their needs, under CERCLA the liable party is the original generator of the PCBs on-site. These parties, often referred to as potentially responsible parties (PRPs) are under legal liability to address the issue PCB contamination themselves. More times than not, the first thing PRPs will do when they are found to be liable generators of PCBs is retain a number of environmental consultants who, as any other type of consultant, specialize in aiding PRPs reach mandated site goals for contamination levels. The consultant’s work will vary depending on PRP and site needs almost every time. Much like snowflakes, no two sites in need of environmental remediation are quite the same.

The US EPA has a few different ways in which remediation sites are categorized and prioritized for cleanup. See, folks? Not everything in modern politics is sheer chaos. The three most common categories most Americans are likely to be familiar with are Emergency Response, RCRA Corrective Action, and Oil Spill. The first is most often kicked into gear after natural disasters and was so just last year after the events of Hurricanes Harvey and Irma in conjunction with EPA and FEMA.

Demographic showing FEMA’s response to the 2017 Hurricane season.

RCRA, which stands for the Resource Conservation and Recovery Act, not only set the foundation for non-hazardous waste management, but allows for the EPA to take charge of handling hazardous waste from its generation through its life cycle. Two amendments made to RCRA in 1984 identified and began to physically address the need for less-hazardous waste disposal methods as well as the need for waste minimization processes to limit or outright prevent a future hazardous waste population. Again, since our blog posts are limited to a handful of pages every other week, we won’t go into full detail about all of the fine-tuned laws, rules, and regulations that make up each of these acts individually. We do insist that all of our readers take the time to look over the separate sections of RCRA and learn for themselves how it came to be and how it is used today in the management of non-hazardous and hazardous waste removal. RCRA is implemented and overseen by the Office of Resource Conservation and Recovery (ORCR).

The last category most people today are all-too familiar with is the EPA’s work to prevent and response in oil spills in correspondence with the Spill Prevention Control and Countermeasure (SPCC) program. Oil spills and even the building of oil pipelines are two very touchy caveats in the environmental world. Many environmental activists would likely do away with oil as a fossil fuel altogether but its presence as a highly valued resource in our world today maintains the need for pipelines and tighter regulations surrounding those pipelines, especially with leaks and spills being a relatively common occurrence.

There are, however, two other categories we really want to flesh out for the sake of you, the reader, who may or may not be familiar with. These are the Superfund and Brownsfield remediation sites as designated by the US EPA. We’ve touched on Superfund sites a bit in the past. Superfund sites are named such for the literal super-fund established decades ago by the federal US government for the sake of addressing toxic contamination at these designated sites – many of which were at the time and still remain abandoned. Two abandoned sites we have discussed in previous posts are two manufacturing plants along the Hudson River in New York which were owned and operated by GE during the 20th-century.

The EPA divides the United States and its surrounding territories into ten (10) regions. Given all the talk of PCBs and much-needed remediation in and around New York, you may not find it surprising to find that EPA Region 2 consists solely of New York and New Jersey. This region also contains the highest concentration of Superfund sites in the United States.

This picture maps all known and designated Superfund sites in the continental US.

EPA lists the goals of the Superfund task force to be four-fold: 1. “Protect human health and the environment by cleaning up polluted sites,” 2. “Make responsible parties pay for cleanup work,” 3. “Involve communities in the Superfund process,” and 4. “Return Superfund sites to productive use.” Step 4 is also referred to as the Superfund Redevelopment Initiative.

The actual cleanup process of Superfund sites as detailed by EPA is broken down into nine (9) steps: 1. Preliminary Assessment/Site Investigation, 2. NPL Site Listing Process, 3. Remedial Investigation/Feasibility Study, 4. Records of Decision, 5. Remedial Design/Action, 6. Construction Completion, 7. Post Construction Completion, 8. NPL Deletion, and 9. Site Reuse/Redevelopment.

Each Superfund site is originally evaluated to see what threat (if any) it poses to the surrounding environment and human health, and if these threats require immediate attention or the gathering of more information. The site is then often placed on the NPL and categorized to allow EPA to see which site(s) and/or areas of those sites require more drastic and immediate attention. A feasibility study is then conducted which allows for a deeper analysis of the environment in and around the site as well as gathering concentration levels of toxic contaminants and the risk these post to human health and the environment, as well as what can be done to best address – or hopefully – remove them.

A Record of Decision (ROD) is then drafted which explains which cleanup alternatives will be used for the specific site on the NPL. This fourth step is often conducted before periods allowing the public community to comment on issues surrounding the site, but a final draft of the ROD is drafted after taking public comments into consideration as these may or may not shift the proposed alternatives. After this, the proposed alternatives are drafted into a design for action at the site before being implemented to remediate the contamination found there. This fifth step is where the action is – this is the step where every site in need of remediation for toxic contaminants wants to be. The following sixth step is the completion of construction at the site and is widely considered a huge milestone for sites on the NPL list by the EPA, local governments, and community members.

After hitting this milestone, the seventh step involves routine monitoring of the site to ensure remedial methods and action at the site upheld protection of the environment and human health. It is also where post-action reviews and indefinite site restrictions can be drafted. If goals at the site have been achieved, the site is then deleted from the NPL and – if there are no site restrictions impeding the final step – redevelopment of the area at and around the site can finally begin.

Before and after photos of a Brownfield site in Somerville, MA.

The last category of site we’ll cover today are referred to as Brownfield sites. The EPA defines these sites as “real property, the expansion, redevelopment, or reuse of which may be complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant.” The “presence” of these chemicals mentioned is determined through a very delicate and in-depth process known as an environmental site assessment (ESA), as under CERCLA the owner of a “real property” still remains liable for the necessary cleanup if no other generator of contaminants can be found, contacted, or otherwise addressed. The ESA often allows the property owner to deny assumed liability.

While Brownfields have the potential to be anywhere and be any size, they are more commonly abandoned or rarely-used commercial or industrial facilities. Do you live in an urban area with a number of old, abandoned factories? Or perhaps you’re more fond of suburban living but still haven’t been able to find out why the old laundry mat around the corner hasn’t had its lights on in the better part of a decade? Chances are these areas either already are (or are likely to soon be) designated Brownfields sites. Currently there are over a million listed Brownfield sites in the United States as designated by the EPA; however, it’s likely that the actual number of these sites is much higher as those listed are only sites for which an ESA has been conducted.

As with Superfund sites, the endgame and final step in the cleanup of Brownfield sites is redevelopment and reuse of the land on and around the site. The reason so many of these sites sat around unused for decades is because the cost of assessing and cleaning them was – and in many instances remains – higher than the landowner can afford. That being said, a large portion of designated Brownfield sites sit either directly on or close to areas known for prime real estate and large workforces. Almost every American, regardless of where they grew up or currently live now, has a story about one area in their town where no one goes “and for good reason” as many will add. Whether it’s the fenced off lot where the gas station used to be before it was torn down, or the old steel manufacturer on the other side of town where you wish they would start building new homes instead of the same five blocks getting more and more cramped with new families every year.

It stands to say that the process of environmental remediation is indeed complex, lengthy, and costly but remains an achievable and noble goal for agencies like EPA to strive for. With hundreds of thousands, if not millions of sites in need of remedial action simply in the continental United States alone, and an eventual endgame of cleanup and redevelopment for each one…well, it’s unlikely that we would see even 10% of these sites reach endgame within our lifetime. But that doesn’t mean it shouldn’t be done and neither does it mean it can’t be done. It can.

It takes all of us to do everything we can to learn about the issues, teach others about these issues, and work together to find permanent solutions to these issues each and every day.

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Interested in meeting our team? ecoSPEARS will be attending the following conferences and trade shows:

April 8-12: Conference on Remediation of Chlorinated and Recalcitrant Compounds Palm Springs Convention Center 277 North Avenida Caballeros Palm Springs, CA, 92262

August 22-24, 2018: Georgia Environmental Conference Jekyll Island, GA

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