Environmental Analysis

1. American Bar Association Forum on the Construction Industry Environmental Analysis Presented By: David Richter, PE Ninyo& Moore Stephen A. HessSherman and Howard LLC

2. Alphabet Soup of Regulations • NEPA • CWA • Rivers & Harbors Act • MPRSA • CZMA • RCRA • CERCLA • CAA • Noise Control Act • Endangered Species Act • National Historic Preservation • Wild and Scenic Rivers • Fish & Wildlife Act • Fishery Conservation & Management Act

3. Clean Water Act • Prohibits discharge of toxic pollutants • Wastewater treatment management • Sets mandatory water quality standards • Establishes the National Pollutant Discharge Elimination System (NPDES)

4. Rivers 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”

5. Historic 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

6. COASTAL ZONE MANAGEMENT ACT • 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

7. Resource Conservation and 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

8. CERCLAComprehensive Environmental Response, Compensation and Liability Act • 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

9. CERCLA • Liability for discharge of hazardous waste • Require violator to pay for cleanup • Innocent landowners defense • Contiguous property owners (CPOs)

10. 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

11. 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

12. Endangered 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

13. LAND 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

14. State 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

15. Environmental Impact Statement • Scoping • Draft EIS • Final EIS and Proposed Action • Record of Decision

16. Remediation Licensure & Training • State license as remediation specialist • Certain activities require professional engineer • Hazardous Waste Operations and Emergency Response Standard (HAZWOPER) Training

17. HAZWOPER • 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

18. Environmental Site Assessment • Phase I Environmental Assessment • Preliminary Assessment • Due Diligence

19. Environmental Site Assessment • Records Review • Current and Past Site Use • Prior Environmental Permits • Property Appraisals • Neighboring Property Assessment • Site Inspection • Recognized Environmental Condition (REC) • ASTM E1527

20. Contents of Phase I Report • 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

21. Site 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

22. CONTAMINANTS • 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

23. CONTAMINANTS • Metal • Nickel, Lead, Mercury, Zinc and Arsenic • Media:soil, water and sediment • General Chemistry • Analyze PH, Alkali, Nitrogen and Total Organic Compounds (TOC’s)

24. Remedial Investigation • Qualitative Human Exposure • Ecological Impact • Remedial Investigation/Feasibility Study (RI/FS)

25. Conceptual Site Model • Contaminant transport model • Pathways analysis • Subsurface model • Depiction of areas of contamination • Depiction of pertinent infrastructure

26. Purpose 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

27. 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

28. Review of Remedial Action 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

29. Remedial Options • No action – continued monitoring • Limited action – monitoring with limitations on access and transfer • Containment – isolate contaminants • Removal/Treatment/Disposal

30. Remedial 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

31. Analysis of Remedial Alternatives • Protection of Human Life • Compliance with Applicable Standards • Long-Term Effectiveness • Reduction of Toxicity • Short-Term Effectiveness • Ability for Implementation • Community Acceptance • Costs

32. Design Procedures • Permitting • Different Requirements for • Surface Water • Soil • Air • Ground Water • Considerations of Site Use • Most remediation considerations

33. Formats for Remedial 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

34. Construction and Development • 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

35. Site 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

36. Greenhouse 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

37. Voluntary Emission Reduction • Conservation • Clean Energy Incentives • Market Based Approach • Rebates • Tax Incentives • EPA/ Industry Collaboration for Greenhouse Gas Reduction

38. Cap 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

39. Mandatory Greenhouse Gas Reporting • Purpose: To gather accurate data for use in making future decisions • Facilities that emit ≥ 25,000 metric tons must report

40. Legal Issues Presented by Environmental Contamination

41. RCRA and CERCLA Liability • Two federal statutory schemes are implicated when a contractor works on a contaminated site: • The Resource Conservation and Recovery Act of 1976 (commonly known as RCRA) (codified at 42 USC § 6901); and • The Comprehensive Environmental Response Compensation and Liability Act of 1980 (commonly known as CERCLA) (codified at 42 USC § 9601).

42. RCRA and CERCLA Liability • Both schemes recognize that, prior to the commencement of construction, the owner of the site owns any environmental hazards that exist on the site. • However, under CERCLA, anyone who “arranges for the disposal or treatment of hazardous substances or who arranges with a transporter for disposal of hazardous substances” and “any transporter of hazardous substances” is also liable for contamination arising from the transported substances.

43. RCRA and CERCLA Liability • This commonly plays out when contaminated soil is found during excavation. • The soil must be excavated. • Once excavated, the soil has to go somewhere. • The general contractor either hauls the soil offsite itself (and thus becomes a transporter) or has a subcontractor haul the soil offsite (and thus becomes someone who arranges for transportation). • Either way, the general contractor is now on the hook if that soil causes contamination elsewhere. • The owner is always liable, as the “generator” of the contaminated soil.

44. RCRA and CERCLA Liability • CERCLA is a strict liability statute. • CERCLA also imposes joint and several liability on all responsible parties. • Thus, the contractor could become solely responsible for the clean-up costs.

45. RCRA and CERCLA Liability • The ideal solution for the contractor is for the owner to directly contract with a transportation company to offhaul the contaminated soil. • Contractor is now neither a transporter nor an arranger of transport for the soil. • Owners are typically not thrilled with this arrangement.

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

47. Legal Issues Presented by Environmental Contamination

48. RCRA and CERCLA Liability • Two federal statutory schemes are implicated when a contractor works on a contaminated site: • The Resource Conservation and Recovery Act of 1976 (commonly known as RCRA) (codified at 42 USC § 6901); and • The Comprehensive Environmental Response Compensation and Liability Act of 1980 (commonly known as CERCLA) (codified at 42 USC § 9601).

49. RCRA and CERCLA Liability • Both schemes recognize that, prior to the commencement of construction, the owner of the site owns any environmental hazards that exist on the site. • However, under CERCLA, anyone who “arranges for the disposal or treatment of hazardous substances or who arranges with a transporter for disposal of hazardous substances” and “any transporter of hazardous substances” is also liable for contamination arising from the transported substances.

50. RCRA and CERCLA Liability • This commonly plays out when contaminated soil is found during excavation. • The soil must be excavated. • Once excavated, the soil has to go somewhere. • The general contractor either hauls the soil offsite itself (and thus becomes a transporter) or has a subcontractor haul the soil offsite (and thus becomes someone who arranges for transportation). • Either way, the general contractor is now on the hook if that soil causes contamination elsewhere. • The owner is always liable, as the “generator” of the contaminated soil.