This Saline, Michigan case adds another decision to similar recent cases such as Ashley II and Robertshaw, which assess whether current owners of contaminated property met CERCLA’s Bona Fide Prospective Purchaser (BFPP) defense.  It also showcases the interesting legal question concerning the relation between BFPP requirements to (1) take reasonable steps, after acquisition, to prevent “releases” and (2) to show that, all “disposal” occurred prior to acquisition.

In Saline River Props., v. Johnson Controls, Inc., 2011 U.S. Dist. LEXIS 119516 (E.D. Mich. Oct. 17, 2011) 
a Federal District Court in Michigan considered, among other issues, whether a current owner could be liable under CERCLA for exacerbating pre-existing contamination caused by the prior owner.  The prior owner, Johnson Controls, Inc. (JCI), claimed that the current owner, Saline River Properties, LLC (Saline) could be liable under CERCLA for exacerbating existing vinyl chloride contamination by removing a building’s concrete slab and thereby “allowing additional rainwater into the ground that the building and slab might have partially diverted…”   The prior owner prevailed.

Introduction

Saline, the current owner, purchased a 22 acre parcel from JCI.  Years before, EPA issued an administrative order on Consent (AOC), which required JCI to perform various cleanup measures.  Saline sued JCI for failing to comply with the AOC but JCI counterclaimed that Saline, as the current owner, was liable under CERCLA for response costs because, JCI claimed, Saline exacerbated existing vinyl chloride contamination by removing a concrete slab that covered contaminated soil and thereby “allowing additional rainwater into the ground that the building and slab might have partially diverted…”

No Evidence Offered for BFPP Defense

Saline, as a brownfield developer, argued that it qualified as a BFPP.   As the Court here explained, to qualify as a BFPP the BFPP defense-seeker must show, by a preponderance of the evidence, each of the enumerated BFPP criteria which includes a list of “continuing obligations“, including, among many others, but as most relevant here:

• All disposal of hazardous substances occurred before the person acquired the facility, and
• After acquisition, the person seeking the defense exercised appropriate care with respect to hazardous substances found at the property by taking reasonable steps to prevent any threatened future release.

Saline, the Court explained, offered no evidence that it took any reasonable steps to prevent releases of existing contamination. Without any evidence of reasonable steps, Saline instead argued that any exacerbation it caused could not qualify as either a “release” or a “disposal” of hazardous substances because Saline didn’t actually put vinyl chloride in the ground. Rather, they argued, because the contamination already existed in place, they couldn’t have released or disposed it.

The Court disagreed, reasoning that Saline could be liable under CERCLA even if it didn’t actually put the contamination into the ground, because it took the action to remove the concrete slab which in turn, according to allegations supported by evidence, caused hazardous substances beneath the slab to migrate.

Taking Reasonable Steps to Prevent “Releases” Could Have Put the Current Owner In A Better Position To Show Post-Acquisition “Disposal” Did Not Occur

If Saline took reasonable steps to prevent “releases”, it probably would have been much better off.  Taking reasonable steps, while not the sole BFPP criteria needed to be met, is a critical element of the BFPP defense and could support the additional required showing that all “disposal” occurred prior to acquisition.

Notice, the BFPP defense requires both that (1) after acquisition, the defense-seeker took reasonable steps to prevent future threatened releases, and  (2) all disposal occurred before acquisition. 42 U.S.C. 9601(40).  This dual requirement addressing “release” and “disposal” raises interesting legal issues.

First, consider reasonable steps to prevent “releases.”  While it’s difficult to predict what a Court would find as appropriate “reasonable steps,” hypothetically in this case reasonable steps could have involved measures to prevent rain form contacting the soil and/or the timely installation of other engineering controls to act in a manner similar to the concrete pad.   ASTM’s E 2790 guides users and environmental professionals through the process of preparing a continuing obligations plan to, among other things, address site-specific threatened releases.  Further, EPA’s Common Element guidance explains that when taking reasonable steps new owners “are not expected to … undertake other response actions that would be more properly paid for by the responsible parties who caused the contamination.”

If reasonable steps were taken, new owners in positions like Saline’s could turn to the more focused (and some would say legally interesting) question of whether the reasonable steps to prevent “releases” were enough to show that no post-acquisition “disposal” occurred.

“Release” and “disposal” while defined differently, overlap.  As the Court here explained (and as other Courts explain, see e.g., Carson Harbor Village, Ltd. v. Unocal Corp., 270 F.3d 863, 878 (9th Cir. 2001)) the definition of “release” is broader than “disposal” because “disposal” is included within the definition of “release” – even though both definitions have several words in common.  Disposal, the Saline Court explained (under precedent for 6th Circuit), requires “human intervention,” meaning that “disposal” doesn’t occur simply because contamination “passively migrates” but, rather, requires human intervention – such as destroying the building foundation to help cause migration.  With its broader meaning, “release” the Court explained (as have others) could possibly occur even without human intervention.

If new owners like Saline could offer evidence to show that they took reasonable steps to prevent “releases” (a broader term), they could be in a position to argue the preventative reasonable steps eliminated any “human intervention” and, therefore, prevented “disposal.”

Whether this argument would carry the day remains uncertain – no BFPP cases address whether post-acquisition “disposal” nonetheless occurred even when the BFPP-seeker exercised post-acquisition reasonable steps to prevent “releases”.   But without any evidence of having performed reasonable steps, new owners reduce their chance of showing that no post-acquistion disposal occurred and, otherwise, seem to have slim chances of successfully asserting the BFPP defense.

Extrapolating to the Case for Engineering and Institutional Controls

If the removal of a concrete pad above contaminated soil can trigger CERCLA liability because rainwater could spread contamination, it’s hardly a stretch to imagine that excavating into or failing to prevent or fix cracks in engineering controls (such as concrete or asphalt “caps”) could similarly impose CERCLA liability on new owners.  Indeed, in Ashley II, the Court cited the failure to maintain a stormwater-diverting crushed rock and gravel “ROC” cover as one factor to support its imposition of CERCLA liability upon the new owner.

Parties failing to adhere to engineering controls would potentially have the added problem of not complying with Land Use Restrictions (LURs) or impeding the effectiveness of Institutional Controls (ICs), because LURs and ICs typically accompany engineering controls – recording the requirement, for example, to maintain engineering controls in good condition or to prevent their destruction.  Failing to comply with LURs or impeding the effectiveness of ICs are also grounds to lose the BFPP defense.

ASTM’s E2790 advises users to monitor and perform field inspections of LURs and ICs for activities that could compromise engineering controls or conflict  with land use limitations. See LandWatch for Continuing Obligations for more details on the monitoring and inspection process.

Additional Information

• Ashley II v. PCS Nitrogen (current owner failed to satisfy BFPP defense)
• Imperial v. Robertshaw (current owner satisfied BFPP defense)
• USEPA Common Elements Guidance  (discussing BFPP defense and Continuing Obligations)
• ASTM E 2790 (providing guidance on Continuing Obligations)
• United States v. Honeywell Int’l, Inc., 542 F. Supp. 2d 1188, 1198-99 (E.D. Cal. 2008) (development-related excavation and grading qualifies as disposal)
• ABA Newsletter,  Ninth Circuit and Passive Migration as CERCLA “disposal” (discussing varied Circuit Court holdings on passive migration)
• LandWatch for Continuing Obligations (describing procedures and tools for monitoring and inspecting ICs, LURs, ECs, and Reasonable Steps)
• Watch What You Do With That Shovel (Or Heavy Equipment): Another Developer Faces Superfund Liability for Site Redevelopment (summarizing the Saline case)

This guidance supplements OSWER’s 2001 Comprehensive Five-Year Review guidance and provides recommendations for conducting five -year reviews for the IC component of remedies in a manner similar to the review of engineering or other remedy components.

At Terradex, we know this guidance will meaningfully inform the continually improving best practice for ICs, thereby increasing the reliability of this often necessary remedy component.  EPA’s recommendations align with numerous technology services Terradex has constructed for states and private companies including 1) use of excavation clearance systems, 2) property mapping systems to show current owner and property boundaries, and 3) integrated communication to local government where day-to-day land use decisions are made.

So what led to this new guidance?  USEPA staff  began working on this supplement around 2005,  and again the effort was galvanized in  2008.    In 2001, when the Five-Year Review guidance was issued, the primary focus of the guidance tended to be on the physical remedy components like the pumping and treatment of ground water, while ICs were often considered to be secondary in focus. If an IC was planned but not in place, for example, this situation may not have been flagged in the five-year review and evaluated as part of the ultimate protectiveness finding. The problem was that the five year review guidance did not address ICs explicitly in the 2001 guidance. Since that time, there has been an emergence of a new perspective that lift ICs to being as equal and integral to the remedy as the engineered or physical components.   The supplemental guidance provides parity with physical remedy components; the supplemental guidance offers methodologies to evaluate integrity and effectiveness of ICs in a manner similar to the physical remedy components.

The USEPA had also in November 2010 released separate interim guidance entitled  ”Institutional Controls: A Guide to Planning, Implementing, Maintaining, and Enforcing Institutional Controls at Contaminated Sites (PIME).” The principles captured within the two guides interrelate. The PIME guidance is interim, and however must be viewed in light of the relatively extensive comments received by the agency.

The new USEPA guidance describes methods to evaluate IC integrity and effectiveness during document review, site interviews, inspections, and ultimately the generation of a protectiveness determination.  The guidance brings new rigor to IC evaluation, including: 1) assuring clarity of use restrictions and exposure pathways, 2) identifying property information, Site parcels, and mapping of these properties, and 3) adequacy of the long-term stewardship of the ICs.  And the guidance defines roles for both USEPA toward their regulatory duty, and the potentially responsible parties (PRPs) to support the protectiveness finding.

Questions A , B, and C of the Technical Assessment, which are also posited in the 2001 five-year review guidance, are now couched in terms of IC-specific situations.  Evaluating these considerations can help lead the reader to an appropriate protectiveness determination.

Recommended Questions for the Technical Assessment to Evaluate Protectiveness for a Site based on the IC component of the selected Remedy.

Through these questions and other recommendations the EPA guidance first intends to assure that ICs properly protect residual risks.  To do this, it directs that “All IC instruments should be reviewed to ensure that clear language is used to state the required use restrictions and that legal descriptions reflect current conditions at the sites (e.g. groundwater ordinance covers the entire current plume area).”  The guidance, in turn, places new demands on the monitoring and evaluation of ICs which break down as follows:

• Status of IC Implementation. Have dated copies of ICs (e.g. a proprietary control with a recorder’s mark) been obtained to confirm that each has been implemented as envisioned in the decision documents?
• Compliance with IC Obligations. Review any monitoring, reporting (e.g. recent inspection), enforcement and certification requirements to ensure compliance with and and/or use restrictions.
• Long-term Effectiveness and Enforceability of ICs. Ensure that the parties identified in the remedy decisions documents have followed through with their obligations , which included implementing, maintaing and enforcing ICs. For example, a zoning ordinance could be amended or repealed in between five-year review reports, thereby undermining its use as an effective IC.

At Terradex, we quickly noticed and felt pleased to learn that EPA’s IC evaluation recommendations match up with the type of IC compliance monitoring performed by our LandWatch Service. LandWatch evaluates the Status of IC Implementation through property map-based queries for current owners. It helps to evaluate the condition of IC instrument in our practice for clients.  In the arena of Compliance with IC Obligations, for years LandWatch has monitored land uses and activities for conflicts with ICs.  And through our more recent continuing obligations module to LandWatch provides inspection and reporting capabilities that synthesize and document field inspections along with land monitoring, ultimately providing a web-based documentation tool to support IC review.

Finally, LandWatch provides monitoring tools that bolster the reliance an agency can place on the Long-term Effectiveness and Enforceability of ICs. For example, where the snapshot nature of Five Year Reviews makes it difficult to know events during the 5-year interim, LandWatch continually works during the interim to identify activities such as zoning amendments or variances, permits, excavations, wells and other activities which, in turn, inform the “A, B, C” questions listed in the EPA guidance and ultimately protect the remedy and inform the FYR.

The ability to support IC evaluations has been emerging in new web map services Terradex has built.  Below is a screenshot from the Cleanup Deck (access is by authorization).  The Cleanup Deck can provide national mapping to property information, sensitive use information, and the regular LandWatch monitored activity and use data stream.  This Cleanup Deck supports an expedient review of IC compliance to enable protectiveness determinations.

The Cleanup Deck provides property, sensitive uses and land activity data that overlay the boundaries of Institutional Controls. The tool can support the Five Year Review process or equivalent IC integrity evaluations.

No activities that will disturb the soil at or below the pavement in the restricted Areas (e.g., excavation, grading, removal, trenching, filling, earth movement, or mining) shall be allowed on the Property without a Soil Management Plan and a Health and Safety Plan.

Managing contaminated soil can be just as or more important than other IC prohibitions yet, as our experience has shown us, without monitoring and appropriate care excavations can go forward (even with local permits) without the proper regard for IC soil management clauses.

There’s good reason for these soil management clauses.   For those on Larry Schnapf’s Environmental Issues in BusinessTransaction LinkedIn list, you’ll recall a discussion about supposed “clean fill.”   Supposed “clean fill” was actually contaminated, wreaking havoc as it was unwittingly carried away and brought to new construction areas.

In yet another example of effective IC compliance management, Terradex LandWatch recently spotted a site grading permit that had been issued for planned grading at an IC site in California.  The IC contained a soil management clause, but  the permitted grading was set to go forward without any real knowledge of the contaminated soil and with no plans to manage it as such.

Consistent with expectation, Terradex sent out a LandWatch Alert, getting “the right information to the right people at the right time,” allowing the IC’s soil management clause to be known and adhered to. The Alert showed the grading permit number, allowing the LandWatch users to quickly see how the location and details of planned grading compared to the location and provisions of the IC, including its soil management clause. As the Alert warned, a conflict existed and with the Alert in hand the various parties avoided what could have been a problematic excavation. For years, Terradex has been developing the capability of participating in the excavation clearance system.  This participation helped successfully intercept this unsafe land activity.

Of course, keeping people and the environment safe is the highest purpose served by Terradex LandWatch.  But, it also helps avoid liability and conforms with the type of good practices suggested in the ASTM Continuing Obligation Guide. Landowners who allow excavations to ignore ICs probably would be held as not complying with ICs or not taking “appropriate care” or as “disposing” contaminated soil – all reasons that could, depending on the specifics, trigger liability concerns for the landowner or even other responsible parties, earlier in the chain of ownership.

Managing contaminated soil can be just as or more important than other IC prohibitions yet, as our experience has shown us, without monitoring and appropriate care excavations can go forward (even with local permits) without the proper regard for IC soil management clauses.

As I summarized in an earlier blog post, ASTM’s Continuing Obligations Guide recommends a four step process. The primary users, in all likelihood, will be those who recently purchased contaminated property and desire to remain eligible for defenses made available in the 2002 Brownfield Amendments, namely the Bona Fide Prospective Purchaser defense, the Contiguous Property Owner defense, or the Innocent Landowner defense.   In addition to these users, however, the Guide helps other landowners of contaminated property who wish to properly manage contamination and institutional controls, even if they do not feel the need to qualify for CERCLA defenses.

At Terradex we’re delighted that BNA organized this webinar and asked us to participate.  The attention given by this and other webinars speaks volumes about the importance of this new ASTM Guide and, as webinars like this continue to get the word out, we know the Guide’s procedures will become the business norm for post-acquisition property care when institutional controls, engineering controls or other recognized environmental conditions (RECs) are present. The webinar agenda includes:

• Provide an overview of the 2002 brownfield amendments
• Discuss recent cases that have analyzed legal issues related to CERCLA’s continuing obligation requirements
• Describe the main elements of the guide, including the four principal steps set forth for users
• Talk through sample site scenarios to describe how the guide might be put to use in an actual setting
• Summarize key legal issues raised that must be considered as part of the Continuing Obligations Plan, such as passive migration, land-use restrictions, and disposal after acquisition

The long term success of Institutional Controls (ICs) and cleanup remedies is often only as strong as the financial health of new property owners.   This is why, along with its classic suite of land monitoring, Terradex LandWatch now monitors the financial health of contaminated property owners.

When new owners take over IC sites or residually contaminated sites, the old owners (a.k.a. divested owners) and regulators depend on the new owner to properly manage the property or, in ASTM parlance, perform continuing obligations.  But if new owners run out money, ICs and engineering controls can fail and other recognized environmental conditions (RECs) can wreak inadvertent health impact.  The foreclosure process can wipe out recorded “deed restrictions,” and thereby generate a regulatory conundrum for the responsible parties and regulators who relied on their durability.   Financial failure of a property owner potentially exposes even the most careful divested property managers to “comeback” liability and could trigger the need for regulators to act.  Even the best laid remedial plans can unravel when an owner enters financial distress.

Responsible parties that divested contaminated properties and the involved regulatory agencies can now rely on Terradex LandWatch to monitor the financial health of  property owners, and alert upon detecting financial distress.  Terradex combines land record monitoring (e.g., sales, foreclosures, etc.) in combination with third-party financial services to evaluate financial metrics such as suites, liens judgements, bankruptcy, deteriorating credit, and pre-foreclosure indicators (such as failure to pay property taxes).  Our third party financial service generates a financial health index, and the indexing can be calibrated by the client to trigger an alert at a specified financial health threshold. This monitoring process automatically resets when a property sale is detected – Terradex resets the service by benchmarking the financial health of the new owner, and then keeps monitoring their financial index across the subsequent owner’s term of ownership.

When LandWatch transmits a financial health alert, Terradex will remind you of the property monitored (as most divestment portfolios are large), the property owner at financial risk, and then describe the basis for the low index.  With this alert, a divestment manager, for example, can appropriately intercede or regulators can take preventative action – keeping the IC and the remedy in tact and the property safe. Terradex has the resources to dig deeper when we discover a property at risk – we can research both the financial and property status to provide the underlying details that led to the financial health alert.

A timeline of the new LandWatch service across three successive properties owners shows how an alert is issued early within the financial distress of Property Owner “B”.  The timeline shows the integrated reliance upon both financial health monitoring  and property ownership monitoring.  In this scenario, the customer is able to intervene upon early notice of financial distress of Property Owner “B” to track the bankruptcy process, and restore lost institutional controls with Property Owner “C”. All the remedy design is protected through this successful use case scenario.

With the early knowledge that a divested property owner is at risk, a responsible party can or regulatory agency can intercede to protect the integrity of engineered controls, and validate the effectiveness of institutional controls. Knowing that foreclosure could wipe out an institutional control, responsible parties or regulatory agencies could work to restore the institutional control, and thereby protect the integrity of the remedy and underlying remedy agreements.

Can you find the location of a water well in on a governmental mapping system? The answer is maybe – and it varies nationwide. A strong tension between the environmental health protection and safeguards for homeland security controls whether you will find that water well.  Environmental health protection invites for more  transparency in water well locations to aid vulnerability assessments from spill sites, while homeland security management invites hiding the well locations for fear that terrorist would know their locations to affect an assault.  How can we balance the environmental health and security threat, and determine if we have the proper policy course?  Why is there so much variance nationally?

The North Carolina mapping system as an example of where the tensions have competed, and  have limited the potential of a promising public mapping service.  The Public Water Supply Section of the North Carolina Department of Natural Resources maintains an interactive web map that shows water wells juxtaposed with contaminated sites.

Terradex’s stake in this discussion is toward maintaing the effectiveness of our duties of helping assure long term safety around contaminated sites. Greater transparency, or at least permission to view,  would facilitate Terradex’s environmental health stewardship functions by permitting a routine view of whether water wells have been installed, or shifted from dormant to active.  At Terradex, we believe the benefit to public health protection warrants reconsidering the current paradigm that favors masking well locations,  and establishing a mechanism to increase transparency to those serving to protect environmental health.

Since the terrorist attacks of September 11, 2001, the well mapping pendulum quickly shifted to favor the concern posed by terrorist threats to drinking water supply.  This led to the shutting off of convenient web-based access to water well information.  Given Terradex’s California origins, we experienced first hand the disappearance of water well locations from state mapping systems.  California’s GeoTracker displayed water wells, then in response to homeland security concerns the California Department of Public Health quickly locked down the data pertaining to occurrence and location of private and public water wells.

Terradex nationally scours state and county systems to be alert to installation of new water wells to a site with residual contamination.  Many institutional controls place a limit on development of new water wells. Terradex periodically reviews our monitored sites for new water wells, and issues an alert when recently installed wells are discovered.  Therefore we noticed the North Carolina well mapping system as a model as we fulfilled our institutional control monitoring duties, but also saw that its potential hampered by the unresolved tension between two important concerns.

Water Wells Will Always Be Vulnerable to Spill Sites

There are typically two classes of water supply wells: 1) community wells which have a relatively large service area and are typically regulated by a state agency, and 2) private water wells which are typically permitted by a county health agency.  State agencies often catalog private water wells even though the permitting duty for private wells ordinarily rests with the county agency (e.g., county health departments).

Contamination of water supply wells is a proven risk.  The seminal research of the late 1990s by Lawrence Livermore National Laboratory (LLNL)  analytically reached the conclusion that an actual threat occurs anywhere land is developed near soil and groundwater contamination and when nearby groundwater is used as a source of drinking water.

Figure 8-35 from the LLNL study models the absolute threat probability over a 100-year time span for the 30% of Leaking Underground Fuel Tanks (LUFT) sites in California where benzene may threaten to impact a well.  Potential impacts for benzene with and without ethanol are shown. The threat increases over time, and stands as a reminder for the importance of tracking water well usage.

Additionally,  Figure 8-47 from the LLNL article shows, the threat is prevalent where where population occurs and increases where reliance on  private water wells persists.Private wells typically have shallower well seals, and are more vulnerable to groundwater contamination in shallow aquifers. In metropolitan areas, the reliance shifts to community wells which typically have deeper seals and are less likely at risk.  Still, when an impact to a public well occurs, the consequences can be enormous as occurred in Santa Monica, California  in the 1990s.

The lesson from this research is that any spill site should assess vulnerability to nearby water supply wells – both community/public and private.  The threat is ongoing, especially as plumes could be destabilized by groundwater pumping and migrate toward a water well. This concern is typically embodied into institutional controls, and Terradex carries the duty for its clients to validate that wells are not developed.

Homeland security concerns, in some states, purposely limit the ability to know the location and status of water wells, both private and public.  The interest served by being cautious for homeland security could make assessing the health threats posed to water wells near spill sites difficult to do and, in turn, may increase the likelihood that contamination of these wells will occur into the future.  As such, we welcomed seeing North Carolina’s approach whereby spill sites and water wells are displayed on a common mapping platform.

North Carolina’s Water Well Mapping System Is A Model for Showing Water Well Vulnerability

The mapping system by North Carolina is representative of the potential for environmental professionals when they need to evaluate the proximity of water wells to contaminated sites.  The screenshot of the system below shows water wells mapped, as well as contaminated sites. The mapping system allows zooming to an area of interest, and selecting well types or potential contaminated sources to aid a vulnerability evaluation.

A screenshot of the North Carolina Public Water Supply Mapping system.

The North Carolina Mapping systems strength is the catalog of water wells the map maintains and the ability to juxtapose numerous categories of spill sites relative to a well locations.  This map view highlights how water wells and contaminated sites are close to each other, and therefore drinking water derived from water wells is vulnerable to contamination.

While the North Carolina mapping system offers a glimpse to the future, the well location mapping could be even better:

• Stale Water Well Data is Dated. The water well data has not been updated for approximately two years.  While water well information changes slowly, this limits the tools utility when one is looking for the occurrence of new water wells that may be unknowingly vulnerable.
• Usability Shortcomings. According to an interview with North Carolina Public Water Supply Section, poor usability issues were designed into the mapping system.  For example, there is no capability to search by address.  Additionally, the street level coverage is limited.  Ultimately, this prevents most users from finding helpful information and makes use of the tool tedious.
• Well Detail Information. When requesting information on a well through web data systems, the North Carolina data systems do not identify the well’s location.

According to North Carolina, the apparent shortcomings are intentional to satisfy homeland security concerns.  While the mapping system shows great potential, the usability concerns still hinder the site’s practical use to assess vulnerability. If you can’t find a site or consider nearby roads, how can you practically assess vulnerability?  You can’t.  With a change of priorities, the mapping system for North Carolina is well poised to become a national model of disclosure of water well information for interested parties to judge the threat of contamination to nearby  wells.

Screenshot of Mecklenburg County Water Well Information System

At the County level we have discovered additional examples of transparency of water well location information.   North Carolina at Mecklenburg County shows a mapping system with water wells juxtaposed to contaminated sites.  Dennis Tyndall with the County described how the water well information is updated each night, so the public can discover new water wells in close to real time.  The system periodically succeeds in preventing new water wells in areas of contamination.  The implementation of this mapping system began with the County passing a groundwater ordinance that demanded that the County staff evaluate all new water well permits against the presence of spill sites.  The mapping tool they generated for their internal use, was displayed in a simpler form for public use.  While at the County level, this again represents a fresh model for disclosure of water well locations.

A Challenging Tension Exists Between Environmental Health Protection and the Perceived Need to Protect Against Homeland Security Risk

So far we have established the vulnerability of the drinking water supply through spills of chemicals to land. What do we know about the threats to the drinking water supply by terrorism?   In an article “Water and Terrorism” by Dr. Peter Gleick of the Pacific Institute, Dr. Gleick consider the broad security risks to the water supply, and also delved into threats to water supplied through wells.  The article is summarized below:

“The importance of freshwater and water infrastructure to human and ecosystem health and to the smooth functioning of a commercial and industrial economy makes water and water systems targets for terrorism. The chance that terrorists will strike at water systems is real; indeed, there is a long history of such attacks. Water infrastructure can be targeted directly or water can be contaminated through the introduction of poison or disease causing agents. The damage is done by hurting people, rendering water unusable, or destroying purification and supply infrastructure. More uncertain, however, is how significant such threats are today, compared with other targets that may be subject to terrorist attack, or how effective such attacks would actually be. Analysis and historical evidence suggest that massive casualties from attacking water systems are difficult to produce, although there may be some significant exceptions. At the same time, the risk of societal disruptions, disarray, and even overreaction on the part of governments and the public from any attack, may be high.”

Within Glieck’s research, there are only a few identified events of terrorist impact  on water wells, and these terrorist events  were primitive — for example, the dumping of dead bodies into wells in Kosovo or Angola. No threats to water wells were catalogued typical of scenarios whereby a well system’s integrity is violated by a chemical reagent.  The article identifies more likely terrorist scenario such as attacking larger reservoirs or water works.

Apparently, in 2001 there was a threat to the US water supply.   Gay Porter DeNileon reports in an article titled  Critical Infrastructure Protection: The Who, What, Why, and How of Counterterrorism Issues that a threat to the US water supply was received by the FBI.  The threat proved to be a hoax, but became a basis for water agencies to observe water system vulnerability.  Mr. DeNieleon reporting seems to have highlighted an origin of the hiding of locational information regarding water wells.  He reports:

“One of the biggest issues that many water utility executives raise is the confidentiality of information, e.g., concerns that the public may have easy access to details of a vulnerability assessment under local and state Freedom of Information Act (FOIA) laws. The federal FOIA allows agencies to withhold information that “could reasonably be expected to endanger the life or physical safety of any individual,” and “geological and geophysical information and data, including maps, concerning wells” (FOIA). Also at the federal level, most sensitive data would not be available, because utilities are not required to provides such information to USEPA or any other agency at this time. A water industry ISAC and the FBI and the National Infrastructure Protection Center (NIPC – now assimilated into the US Department of Homeland Security) identified that the Infraguard program may be the answer to some of these concerns. By limiting access to, and possibly encrypting information, only those with the proper access codes or passwords will be allowed read or browse specific data. The USEPA and Association of Metropolitan Water Agencies (AWMA) are also working with the CIAO to assist municipal utilities in dealing with local and state FOIA laws. Utilities are advised, nevertheless, to have their attorneys review any plans to collect sensitive information, such as the results of vulnerability assessments, to ensure that the utility has a basis for withholding information under state and local laws.”

Though we have found possible origins of confidentiality on water wells, this policy  is not uniformly implemented nationwide.  Many states like Illinois or Texas, disclose water well information, while other large states like California do not. In a FOIA response to Terradex, California Department of Public Health identifies a rationale, but provides no direct substantiation.

Concluding Thoughts

This policy arena demands a fresh looks, and a method should be designed by which environmental professionals may find locational information with which to accomplish their mission: the protection of the drinking water supply from threats posed by nearby sources of environmental contamination.  Terradex cannot evaluate the current nature of terrorist threats,  nor would that be appropriate.  However, the literature reports no incidents that substantiate postures held by some agencies.  We recommend that states develop limited-access procedures to permit environmental professionals to obtain copies of water well maps to conduct analysis.  We know that the threats posed by contamination are credible, and there are ample tools to permit environmental professionals find the locational information to complete their health and safety duties.  While some states already do not find hiding water wells necessary, those states, like California, could use credentials to be responsive to homeland security concerns while also serving environmental health objectives.

We know this post is not exhaustive, and therefore not complete in its perspective. The inspiration for this post was the difficulty to achieve Terradex’s duty of protectiveness against barriers set by homeland security concerns.  If you have experience with mapping systems that display water wells, or with states  that have made policy changes to sway the pendulum toward further disclosure of water wells, then please share this knowledge.  We will evolve this post to share the state of water well information disclosure.

Updates

Where does the authority for masking water wells lie?  The USEPA is guided by Legislation and Directives, but these directives do not stipulate that the locations of water supply wells should be hidden.  The USEPA’s programs are informed by the Bioterrorism Act that includes protection of community drinking water systems. Again, the Act does not direct hiding water well locations.  According to USEPA, these determinations to hide water wells are a state or possibly utility determination.

We also enjoyed a well developed conversation on LinkedIn’s Environmental Issues in Business Transactions group.  We can watch this develop.

At Terradex, we found the engagement by both the Brownfield Office and the Office of Site Remediation and Enforcement integral to the building a better guide.  Already, a focus shift is underway whereby this guidance by ASTM in conjunction with policy by the agency itself will bring greater clarity in expectation for landowners as well as start setting practice norms to increase institutional control effectiveness.

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Continuing Obligations And the Need for an Industry Standard

The phrase Continuing Obligations owes its origins to EPA guidance.  EPA’s “Common Elements” guidance, as it’s known, summarized the various post-purchase obligations that must be shown “by a preponderance of evidence” in order for non-contaminating landowners to successfully assert CERCLA defenses made newly available in the 2002 Brownfields Amendements – namely, the Bona Fide Prospective Purchaser Defense, the Contiguous Property Owner Defense, and the Innocent Landowner Defense (which was actually modified from the pre-Amendments version).  In doing so, EPA characterized these post-purchase requirements as “Continuing Obligations.”

ASTM’s Continuing Obligations Guide began as Bob Wenzlau’s vision when, after working closely in the area of institutional control monitoring, or LandWatch as we call it, and witnessing the passage of the 2002 Brownfields Amendments, he saw the absence of any regulatory guidance and thus the need (and heard the same from others) for the type of procedural guidance an industry standard could provide in this murky area.  The need he saw seems highlighted by the recent Ashley II and Robertshaw “appropriate care” decisions as well as state laws and state programs, such as recent amendments to Michigan’s statute which requires landowners to comply with institutional controls, a Wisconsin Continuing Obligation administrative program, among others.  Together, all of these developments help stress the importance of Continuing Obligations while indirectly showing how uniformity in this area can help bring certainty to brownfield site management while also working positively for environmental protection.

The CO Standard Guide

With it’s primary focus on procedures for institutional control compliance assurance and taking “reasonable steps” in light of residual contamination, the Continuing Obligations standard recommends a four-step process. The first step begins with a screening process to help identify whether Continuing Obligations are relevant.  Next, it suggests steps for learning about the environmental conditions, including institutional controls and/or recognized environmental conditions, so that Continuing Obligation procedures can be appropriately designed for site specifics. Step 3, in turn, suggests immediate steps to take soon after the need for Continuing Obligation arises – usually shortly after property purchase. Finally, step 4 describes long term inspection, monitoring, and management procedures meant to make sure that, over time, proper management of residually contaminated and/or institutional controls keeps people and the environment safe.

Aided by this four-step framework, the standard provides instruction on developing a Continuing Obligations Plan – which, when completed, sets forth the actual Continuing Obligations for site specifics.  The standard goes on to recommend formats for and forms for documenting Continuing Obligation site inspections and for preparing periodic reports to document proper Continuing Obligation performance.  The standard provides a uniform framework while giving users tools to tailor Continuing Obligations to site specifics.

The primary users, in all likelihood, will be those who recently purchased contaminated property and desire to remain eligible for CERCLA’s Bona Fide Prospective Purchaser defense, the Contiguous Property Owner defense, or the Innocent Landowner defense.   These defenses, among other things, require owners seeking the defense to show they have performed Continuing Obligations.  In addition to these users, other landowners of contaminated property often wish to properly manage contamination and institutional controls, even if they do not feel the need to qualify for CERCLA defenses.  This situation arises for many reasons, ranging from a desire to responsibly steward recycled property to the need to comply with state-law requirements, such as the need to periodically assure state regulators that institutional controls remain effectively operating.  Parties like these are also likely to use the standard.

Having participated closely in the drafting of this standard, I can tell you that many smart and talented people offered wise, sometimes disagreeing, perspectives into the process – which proved a difficult one.   In the end, though, I think the product that resulted will help inform persons performing Continuing Obligations, and particularly the process of assuring compliance with institutional controls and with establishing and assuring compliance with reasonable steps designed for site specifics.

As those who follow IC issues know, much has happened over the years to improve the IC institution. Many states enacted UECA or have similar statutes that increase the force of environmental deed restrictions, most states provide web-based databases or GIS maps of IC sites, state agencies audit IC sites, CERCLA “Continuing Obligations” provides liability incentives for IC compliance, and in general, among other things, widespread awareness of IC issues now exists.

Even with this behind us, IC issues still prove perplexing especially as to issues of IC monitoring and compliance assurance – see ASTSWMO Report on IC monitoring trends among states.  Trends in IC monitoring seem to divide in two categories.  First, there are trends that leverage the coordination of local and state (or even federal) governments.  In these cases, local government agencies, particularly permitting and planning departments, receive IC maps and identify whether local permit-required activities occur or are proposed at these sites.  Indeed, state statutes, such as Colorado’s Stat. sec. 25-15-324 (avail. at link), require this interaction.   And some states, such as in Texas, secure local government approval for the creation of groundwater “no-use” zones.

Second, rather then leveraging local governments, another category of trends tends to impose burdens directly on property owners and/or responsible parities to periodically inspect or otherwise assure compliance with ICs.  In some cases, state regulations or laws such as new amendments in Michigan “due care” law require this.  Or, in others, deed restriction provisions directly require this type of private inspection and compliance assurance.  If not directly required, federal law and some states incentivise IC “continuing obligations” by making IC compliance a condition for future liability relief.

While these trends evolve, so do IC mapping and monitoring technologies – providing solutions that enable both of these trends to powerfully move forward.  Whether through the ability to show interactive maps of ICs, by creating web platforms for inter-governmental coordination on permits and IC issues, or through a range of evolving electronic IC monitoring tools, technology evolutions continue to enable the IC institution.

During the roundtable – see the session “In it for the Long Haul ….” at Brownfields 2011 for the speaker list and biographies – experts from New York, Michigan, Colorado, Pennsylvania, EPA, and private sector IC experts who work in California, Pennsylvania, Missouri and other states will describe the trends in their states, in their local governments, at EPA, the status of ASTM’s Continuing Obligation Guide, and underpinning web technologies.   I’ll be offering introductory remarks and helping to facilitate the discussion and audience questions. Don’t miss it.