Thu Jan 18th, On Environmental Law, by

The Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), commonly known as Superfund, requires the Environmental Protection Agency (“EPA”) to periodically update its National Priorities List (“NPL”). The NPL is the list of sites of national priority among the known releases or threatened releases of hazardous substances, pollutants, or contaminants throughout the United States. The NPL guides EPA in determining which sites warrant further investigation.

EPA has announced that, on January 18, 2018, it will propose ten sites and add four sites to the NPL. Among the sites to be added to the NPL are the Orange County North Basin (“North Basin”) site, located in Orange County, California. The North Basin site consists of more than five square miles, and includes the Orange County Groundwater Basin, which supplies water to 22 cities serving 2.4 million residents. The site is located in mixed residential, commercial, and industrial areas in the cities of Anaheim, Fullerton, and Placentia.

The North Basin site includes a contaminated groundwater plume, contaminated with trichloroethylene (TCE), tetrachloroethylene (PCE), and 1,1 dichloroethylene (1,1-DCE) found at concentrations above the Safe Drinking Water Act Maximum Contaminant Levels (MCLs) and California MCLs. The groundwater is also contaminated with 1,4-dioxane in exceedance of the California Notification Level, and with the chemical perchlorate.

According to EPA’s fact sheet for the site, the contamination continues to migrate both vertically and laterally, threatening drinking water supply well in at least 46 downgradient production wells that serve Orange County. To date, five wells have been shut down due to concerns regarding this contamination.

On June 28, 2017, California EPA sent a letter to U.S. EPA supporting the listing of the North Basin site on the NPL. Currently, cleanup at the site is overseen by two California EPA agencies: the Department of Toxic Substances Control (DTSC) and the Santa Ana Regional Water Quality Control Board. In addition, Orange County Water District is conducting a Remedial Investigation/Feasibility Study under the oversight of EPA Region 9 pursuant to an Administrative Settlement. 

The listing of the North Basin site will affect its management going forward. Placement on the NPL provides EPA with access to additional financial resources, and strengthens its enforcement capacity against potentially responsible parties (PRPs). Multiple facilities in the vicinity of the site have already been identified as possible contributors to the groundwater contamination plume. Those facilities, and others in the vicinity of the North Basin site, or impacted by it, should anticipate the need to retain California environmental litigation attorneys.

EPA uses two types of letters to communicate with facilities: general and special notice letters. General notice letters inform recipients that they are identified as PRPs at Superfund sites, that they may be liable for cleanup costs at the site, and explains the process for negotiating the cleanup with EPA. The letter also includes information on Superfund, the site, and may include a request for additional information. EPA sends out a special notice letter when it is ready to negotiate with PRPs to clean up a site. A special notice letter gives PRPs information on why EPA thinks they are liable, EPA’s plans for the cleanup of the site, and an invitation to participate in negotiations with EPA to conduct future cleanup work and pay EPA for any site-related costs already incurred. The special notice letter triggers the start of a “negotiation moratorium,” precluding EPA from issuing a unilaterally order to conduct the cleanup, intended to encourage the PRPs to negotiate a settlement agreement promptly. If your business receives a general notice letter or a special notice letter from EPA, you should consider retaining a California environmental litigation attorney.

EPA accepts public comments regarding its proposed listings during a 60-day comment period following the publication date in the Federal Register.


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