Is It Time to Create a National Legacy Act Program? Why Should the Great Lakes Have All the Fun?

Transcription

1 C-002, in: A.K. Bullard, D.T. Dahlen (Chairs), Remediation and Management of Contaminated Sediments Eighth International Conference on Remediation and Management of Contaminated Sediments (New Orleans, LA; Jan 12 15, 2015). ISBN , 2015 Battelle Memorial Institute, Columbus, OH. Is It Time to Create a National Legacy Act Program? Why Should the Great Lakes Have All the Fun? Steven C. Nadeau (snadeau@honigman.com) (Honigman Miller Schwartz and Cohn LLP, Detroit, Michigan, USA) Background. The Great Lakes Legacy Act (GLLA) was enacted by U.S. Congress and signed into law in 2002 to accelerate remediation of contaminated sediment in Great Lakes Areas of Concern (AOCs) located in the United States. To encourage accelerated remediation, the GLLA Program provides partial funding for federal/non-federal cleanup partnerships. The non-federal sponsor provides the remainder of a project s funding, either through money or in-kind services. Approach. The U.S. Environmental Protection Agency s Great Lakes National Program Office (GLNPO) administers the GLLA Program. GLNPO seeks non-federal partners with which to team on sediment remediation projects in Great Lakes AOCs. These nonfederal partners include States and industries. Types of projects include investigation and characterization, remediation with or without concurrent restoration, and some source control activities. Success Stories. The Legacy Act Program is now a mature and universally acclaimed program. Industry, as well as State and Local governments, have participated in numerous successful GLLA projects as the non-federal sponsors. From these projects it is evident that the GLLA Program offers an efficient, effective alternative to typical enforcement-oriented remediation programs such as Superfund, RCRA, and analogous State programs. Call to arms. Why should the Great Lakes have all the fun??!! Discussion of the need for an analogous national program and ideas on how to jump start one will be presented.

2 Is It Time to Create a National Legacy Act Program? Why Should the Great Lakes Have All the Fun? Steven C. Nadeau Eighth International Conference on Remediation & Management of Contaminated Sediments New Orleans, Louisiana January 13, 2015

3 Great Lakes Legacy Act Overview of the Legacy Act Advantages Disadvantages Examples St. Louis River (MN) River Raisin (MI) Spirit Lake (St. Louis River, MN) Value of the Legacy Act Time for a National Legacy Act Equivalent?? 2

4 Principle Uno for Contaminated Implement cost effective remedies that will control sources and achieve long-term protection while minimizing shortterm impacts Sediment Sites 3 3

5 Great Lakes Legacy Act 4

6 Alternate Approach Great Lakes Legacy Act Enacted in November 2002 (Pub. L ) Reauthorized and amended in October 2008 (Pub. L ) Bipartisan support Collaborative effort by industry and environmental groups Purpose: Jump start sediment cleanups in Great Lakes Areas of Concern by partially funding public-private partnerships 5 5

7 Categories of Projects Remediation (up to $50 M / yr authorized) Requires 35% to 50% non-federal match for remedial activities Requires 100% non-federal funding for operation and maintenance Site Characterization (not more than 20% of the funds appropriated for remediation projects) No non-federal match required Only one site assessment per discrete site 6 6

8 General Criteria For Remediation Projects Must be within a U.S. Area of Concern; and Satisfy 1 of 3 things: Monitor or evaluate contaminated sediment Implement a plan to remediate contaminated sediment, including aquatic habitat restoration activities conducted in conjunction with remediation Prevent further or renewed sediment contamination 7 7

9 Priorities For Use Of GLLA Funding Projects that will use an innovative approach, technology or technique that may provide greater environmental benefits, or equivalent environmental benefits at a reduced cost Projects that include remediation to be commenced not later than one year after the date of receipt of funds Projects that are ready to go 8 8

10 Seeking GLLA Funds Consider whether GLLA funds may be available early in a site s life span and strategically plan to avoid or minimize the hurdles to obtain GLLA funds for a site involving a PRP or PRPs GLNPO accepts proposals on an on-going basis GLNPO appropriated funds are being fully utilized each year submit early! 9 9

11 Advantages Over CERCLA/RCRA Accelerate progress at sites Don t get bogged down in CERCLA/RCRA/State Clean-up process issues Don t spend time negotiating lengthy AOC or CD Creative, collaborative, can-do partner in GLNPO Focus on efficiently reducing risk with the limited resources that are available 10

12 Advantages Over CERCLA/RCRA GLNPO is an active problem-solver and can assist with challenging stakeholder issues Common goal is to complete risk reduction projects while funding is available All parties motivated GLNPO has a stake in the game No stipulated penalties Industry has embraced the Legacy Act Program and has participated as a non-federal partner at many sites in Areas of Concern 11

13 Limited Disadvantages No covenant not to sue No funding guarantee until Project Agreement signed Annual funding subject to Congressional appropriations Greater competition for available annual funding 12

14 Examples of Successful GLLA projects Involving Industry 13

15 St. Louis River Interlake Duluth Tar (SLRIDT) Site 14

16 SLRIDT Site impacted with PAHs GLLA project betterment to ROD remedy Use Activated Carbon Mat in CAD cap Protect bioactive zone from COCs during cap consolidation Barrier to root penetration Cap thinner, resulting in better habitat Cost-share 50% GLLA/50% XIK Corp. Total Project Cost < $3M 15

17 River Raisin GLLA Project 16

18 River Raisin Site impacted with PCBs GLLA Project RD/RA Dredging Site recontaminated following a 1995 remedial action State of Michigan and Ford are non-federal sponsors MDEQ Cash contributions Ford In-kind service: Removal of inert historical navigationally dredged material from the CDF and disposal on Ford s nearby property Cash contribution 17

19 Beneficial Use Impairments Restrictions on Fish and Wildlife Consumption Bird or Animal Deformities or Reproduction Problems Restrictions on Dredging 18

20 Dredging Details Base Project 109,000 Cubic Yard of Total Dredging 3,000 CY of TSCA (>50 ppm PCBs) 106,000 CY of non-tsca (<50 ppm PCBs) TSCA Dredging Mechanical Dredge with Silt Curtains Processing at Ford Property Disposal at EQ s Wayne County Landfill Non-TSCA Dredging Hydraulic Dredge with Pipeline Disposal at Sterling State Park CDF 19

21 Dredging Operations: 12 Cutterhead Dredge 20

22 Cleanup Operations: 8 Cutterhead Dredge 21

23 Innovative In-Kind Example Creating CDF Disposal Capacity Use of CDF required EPA and MDEQ to remove an equal volume (106,000 CY), for disposal elsewhere Preserved capacity at CDF for future maintenance of the navigation channel Extensive chemical testing identified 112,000 CY of material identified as inert by MDEQ Material to be excavated, dewatered, and stockpiled on Ford property for future use at the site 22

24 Excavation Location & Transport Route 23

25 Supplemental Project During confirmatory sampling of the final DMU, PCB NAPL was discovered above TSCA levels Extensive new sampling focused on a 1.2 acre area in Fall 2012, Spring 2013 & Summer of 2014 The NAPL area was delineated vertically and horizontally NAPL located in stiff glacial till/weathered bedrock dredging challenges expected Construction anticipated in Fall 2015 Partners: GLNPO, MDEQ and Ford 24

26 Coordinating Agencies U.S. EPA Michigan DEQ U.S. Army Corps of Engineers Port of Monroe City of Monroe Committee on the Environment and Water Quality 25

27 Spirit Lake 26

28 Spirit Lake Site impacted with PAHs GLLA Project RI/FS No Further Action ROD for sediment Expected accumulation of clean sediment in a few areas not occurring at rate anticipated Initial Phase - speed was critical needed to sample on ice! Cost-share RI/FS with Industrial non-federal sponsor Remedy Selection about to occur Classic Legacy Act Example accelerated sediment remediation; bonus of accelerating upland work Strong partnership between GLNPO, MPCA and the nonfederal partners 27

29 Value of GLLA GLNPO is a great partner Expertise Creative problem-solving Stakeholder assistance Focus on results, not process Efficiency Earlier site remediation Funding 28

30 Many Other Successful Projects Ashtabula, Ohio Tannery Bay Sault Ste. Marie, Michigan Ottawa River, Toledo, Ohio Black Lagoon, Michigan Ruddiman Creek, Michigan Lower Rouge River, Michigan Kinnickinnic River, Wisconsin Grand Calumet, Indiana Buffalo River, New York 29

31 Time for a National Legacy Act? Yes!! GLLA has proven track record as an outstanding & successful program Site investigations are being completed on a streamlined and cost-effective basis Cleanups are being completed on an accelerated basis, efficiently and cost-effectively 30

32 Potential Obstacles to Enactment of a National Legacy Act Potential Challenges Facing Proponents of a National Legacy Act equivalent Funding scarcity Pollution pays proponents (misunderstanding of the betterment aspect of the GLLA) Congressional priorities elsewhere Infrastructure for administering the program is not as readily available as GLNPO was for the GLLA 31

33 Potential Success in Enacting a National Legacy Act Program Momentum in Support of a National Legacy Act equivalent The successful passage of the initial Great Lakes Legacy Act was the result of the momentum created by a bi-partisan, multistakeholder coalition! Many have argued that CERCLA & RCRA were never designed to address complex sites such as contaminated sediment sites The excellent success of the GLLA should serve as a great example of a viable alternative to CERCLA & RCRA With an appropriate champion or champions, enactment can be a reality! 32

34 Questions? Steven C. Nadeau, Esq. Honigman Miller Schwartz and Cohn LLP Coordinating Director, Sediment Management Work Group Phone: (313) Fax: (313) Visit the SMWG website: