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December 2012

November 2012

Fox River PCB Cleanup Allowed To Proceed

Siros_Steven_COLORBy Steven M. Siros


On November 21, 2012, a federal district court in Wisconsin rejected PRP efforts to seek modification of the remedial plan established by U.S. EPA and the State of Wisconsin to address PCB-contaminated sediments in the Fox River. In 2010, U.S. EPA and the State of Wisconsin sued several potentially responsible parties ("PRPs") in order to enforce a Unilateral Administrative Order ("UAO") that had been issued in 2007. As part of that enforcement proceeding, several PRPs argued that U.S. EPA and the State of Wisconsin had acted in an arbitrary and capricious manner by failing to issue a formal ROD amendment for the Fox River PCB remediation in light of significant exceedences of the original cost estimates.

In 2003, U.S. EPA issued a ROD requiring the dredging of approximately 6.5 million cubic yards of contaminated sediments at an estimated cost of approximately $325 million. In 2007, a ROD amendment was issued that adopted a hybrid approach that provided for both capping and dredging the PCB-contaminated sediments.  The estimated cost of the hybrid remedy was $432 million. In 2009, remediation costs for the hybrid remedy were projected to increase to $701 million (although the PRPs argued that remediation costs were really closer to $1.5 billion). Notwithstanding the significant cost increases, U.S. EPA didn't issue another ROD amendment but instead issued an Explanation of Significant Differences ("ESD"). The ESD acknowledged the cost increase but concluded that the increase did not pose a "fundamental" change that would necessitate a ROD amendment.

The court rejected the PRPs' argument that the cost increase by itself required the issuance of a ROD amendment. Although the court acknowledged that a 62% cost increase was significant, the court concluded that the cost increase itself did not alter the basic features of the remedy such that a ROD amendment would be required. Merely because something is more expensive does not change the basics of the underlying remedy, the court concluded.

The PRPs also raised a number of technical issues that they contend demonstrated a clear bias by the governmental agencies in favor of the more expensive dredging remedy. The court rejected these arguments, finding that "the record demonstrates a colossal effort to get it right and to consider all options fairly and honestly—without prejudice, without arbitrariness and without caprice." The court therefore denied the PRPs summary judgment motions and instead granted summary judgment in favor of the government on the issue of the propriety of the hybrid remedy.

To read a copy of the court's opinion, please click here.

Mississippi River Historic Lows May Halt Barge Traffic

Grayson_Lynn_COLORBy E. Lynn Grayson


Drought conditions have resulted in significant drops in water levels not only in the Mississippi River but in a key tributary, the Missouri River. Last week, the Army Corps of Engineers (Corps) began reducing flows from the Missouri River reservoir, a move anticipated to further lower water levels in the Mississippi River and potentially halt barge traffic within the coming month.

In a move required to protect the Missouri River basin, the Corps has started reducing flow to the Mississippi River from 37,500 cubic feet per second to 35,500 cubic feet per second. By December 11th, the flow will be reduced to 12,000 cubic feet per second.

The Mississippi River is nearing historic lows between St. Louis, Missouri and Cairo, Illinois. Barges are already required to carry lighter loads and the middle of the river could be closed to barge traffic if the water level at St. Louis dips below minus 5 feet. It was at minus 0.45 feet Friday, November 23rd.

Barges carry 20 percent of the country's coal and more than 60 percent of its grain exports. Other cargo, including petroleum products, lumber, sand, industrial chemicals and fertilizer, also gets shipped along the Mississippi River.

Barge operators and those who ship on the Mississippi have warned that a shutdown would have disastrous economic consequences on those industries, with companies laying off workers if it lasts for any significant amount of time.

Governors of states along the Mississippi River,  members of Congress and river shipping trade groups have even asked President Barack Obama to intervene.

The 2012 drought already has hurt recreational use of the Missouri and Mississippi Rivers as well as diminished Corn Belt yields. Now drought conditions may impact the capability of getting the minimal crop to market and obtaining fertilizers and fuel needed for Spring planting, if barge traffic is stopped.

Water stress is a growing challenge in the U.S. The water levels in the Mississippi and Missouri Rivers are the latest example of water scarcity concerns existing today resulting from changing and volatile weather patterns like this year's drought. Most now agree that climate change is at least part of the reason for these changing weather patterns.

PHMSA Seeks Comments On Whether To Expand Accident And Incident Reporting Requirements

Siros_Steven_COLORBy Steven M. Siros


On November 21, 2012, the Department of Transportation's Pipeline and Hazardous Materials Safety Administration ("PHMSA") issued a notice seeking comments as part of its ongoing efforts to improve its collection, analysis, reporting and use of data relating to accidents and incidents involving the transportation of hazardous substances. Under existing hazardous materials regulations, any person (i) in physical possession of a hazardous material (ii) at the time that an incident occurs (i.e., release or discovery of undeclared shipment) (iii) during transportation, is required to submit a written incident report to PHMSA as further described in 40 CFR 171.16. Currently, with limited exceptions, shippers and consignees are exempt from this reporting obligation. The PHMSA is seeking comments on whether this reporting obligation should be expanded to include shippers and consignees of hazardous materials. Comments must be submitted by December 28, 2012. For further information, please click here.

National Research Council Updates Contaminated Groundwater Sites Report

Grayson_Lynn_COLORBy E. Lynn Grayson


At least 126,000 sites across the U.S. have contaminated groundwater that requires remediation, and about 10 percent of these sites are considered "complex," meaning restoration is unlikely to be achieved in the next 50 to 100 years due to technological limitations, says a new report titled Alternatives for Managing the Nation's Complex Contaminated Groundwater Sites from the National Research Council. The report adds that the estimated cost of complete cleanup at these sites ranges from $110 billion to $127 billion, but the figures for both the number of sites and costs are likely underestimates.

The U.S. Department of Defense has already spent approximately $30 billion in hazardous waste remediation to address past legacies of its industrial operations. DOD sites represent approximately 3.4 percent of the total active remediation sites, but many of these sites present the greatest technical challenges to restoration with very high costs. Therefore, the agency asked the National Research Council to examine the future of groundwater remediation efforts and the challenges facing the U.S. Army and other responsible agencies as they pursue site closures.

The report is organized around five key inquiries:

  1. Size of the Problem. At how many sites does residual contamination remain such that site closure is not yet possible? At what percentage of these sites does residual contamination in groundwater threaten public water systems?
  2. Current Capabilities to Remove Contamination. What is technically feasible in terms of removing a certain percentage of the total contaminant mass? What percent removal would be needed to reach unrestricted use or to be able to extract and treat groundwater for potable reuse? What should be the definition of "to the extent practicable" when discussing contaminant mass removal?
  3. Correlating Source Removal with Risks. How can progress of source remediation be measured to best correlate with site-specific risks? Recognizing the long-term nature of many problems, what near-term endpoints for remediation might be established? Are there regulatory barriers that make it impossible to close sites even when the site-specific risk is negligible and can they be overcome?
  4. The Future of Treatment Technologies. The intractable nature of subsurface contamination suggests the need to discourage future contaminant releases, encourage the use of innovative and multiple technologies, modify remedies when new information becomes available, and clean up sites sustainably. What progress has been made in these areas and what additional research is needed?
  5. Better Decision Making. Can adaptive site management lead to better decisions about how to spend limited resources while taking into consideration the concerns of stakeholders? Should life cycle assessment become a standard component of the decision process? How can a greater understanding of the limited current (but not necessarily future) potential to restore groundwater be communicated to the public?

"The central theme of this report is how the nation should deal with those sites where residual contamination will remain above levels needed to achieve restoration," Michael Kavanaugh, chair of the committee that wrote the report and a principal with Geosyntec Consultants in Oakland, CA, stated. "In the opinion of the committee, this finding needs to inform decision making at these complex sites, including a more comprehensive use of risk assessment methods, and support for a national research and development program that leads to innovative tools to ensure protectiveness where residual contamination persists. In all cases, the final end state of these sites has to be protective of human health and the environment consistent with the existing legal framework, but a more rapid transition will reduce life-cycle costs. Some residual contamination will persist at these sites and future national strategies need to account for this fact."

The committee said that if a remedy at a site reaches a point where continuing expenditures bring little or no reduction of risk prior to attaining drinking water standards, a reevaluation of the future approach to cleaning up the site, called a transition assessment, should occur. The committee concluded that cost savings are anticipated from timelier implementation of the transition assessment process but funding will still be needed to maintain long-term management at these complex sites.

The report is available at

Nevada Approves Water Storage For Mexico

Grayson_Lynn_COLORBy E. Lynn Grayson


A five year agreement creating a pilot program will allow Mexico to store its Colorado River water allocation in Lake Mead for future use and for improvement projects. The program will be funded by U.S. water districts in exchange for a share of the water the projects will save.

The Southern Nevada Water Authority and the Colorado River Commission of Nevada unanimously approved five agreements associated with funding components for necessary infrastructure improvements.

The binational agreement between the U.S. and Mexico was negotiated through the International Boundary and Water Commission but also involves the U.S. Bureau of Reclamation and fifteen water agencies in the seven Colorado basin states including AZ, CA, CO, NV, NM, UT and WY.

Under the agreement, Mexico will store up to 1.5 million acre-feet in Lake Mead over five years resulting in a rise in lake levels as much as fifteen feet. The agreement is important in ensuring water flows continue from Lake Mead, the primary water source for Las Vegas.

The Memorandum of Agreement provides an overview of the negotiated water storage arrangements.