Infrastructure American Bar Association Civil Works Projects for
Infrastructure American Bar Association Civil Works Projects for Lawyers Forum on the Construction Industry Environmental Analysis Presented By: David Richter, PE Ninyo & Moore Stephen A. Hess Sherman and Howard LLC
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
Clean 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 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 Act ▪ The National Historic Preservation Act establishes a program to preserve historic properties in the United States ▪ Expand maintain a National Register of Historic Places
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
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
CERCLA Comprehensive 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
CERCLA ▪ ▪ Liability for discharge of hazardous waste Require violator to pay for cleanup Innocent landowners defense Contiguous property owners (CPOs)
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) – 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 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 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 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 Statement • Scoping • Draft EIS • Final EIS and Proposed Action • Record of Decision
Remediation Licensure & Training ▪ State license as remediation specialist ▪ Certain activities require professional engineer ▪ Hazardous Waste Operations and Emergency Response Standard (HAZWOPER) Training
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
Environmental Site Assessment • Phase I Environmental Assessment • Preliminary Assessment • Due Diligence
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 E 1527
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 E 1527 -05 • Signed Certificate
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 E 1903
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
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)
Remedial Investigation ▪ Qualitative Human Exposure ▪ Ecological Impact ▪ Remedial Investigation/Feasibility Study (RI/FS)
Conceptual Site Model ▪ ▪ ▪ Contaminant transport model Pathways analysis Subsurface model Depiction of areas of contamination Depiction of pertinent infrastructure
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
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 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 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 Alternatives ▪ ▪ ▪ ▪ Protection of Human Life Compliance with Applicable Standards Long-Term Effectiveness Reduction of Toxicity Short-Term Effectiveness Ability for Implementation Community Acceptance Costs
Design Procedures ▪ Permitting – Different Requirements for • • Surface Water Soil Air Ground Water – Considerations of Site Use • Most remediation considerations
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
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
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
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
Voluntary Emission Reduction ▪ ▪ ▪ Conservation Clean Energy Incentives Market Based Approach Rebates Tax Incentives EPA/ Industry Collaboration for Greenhouse Gas Reduction
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
Mandatory Greenhouse Gas Reporting ▪ Purpose: To gather accurate data for use in making future decisions ▪ Facilities that emit ≥ 25, 000 metric tons must report
Legal Issues Presented by Environmental Contamination
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).
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.
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.
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.
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.
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.
Legal Issues Presented by Environmental Contamination
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).
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.
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.
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.
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.
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.
Thank You
- Slides: 54