On February 8, 2024, U.S. EPA proposed two new significant regulations that would expand its authority to require cleanup of per- and polyfluoroalkyl substances (PFAS) under the Resource Conservation and Recovery Act (RCRA).  The scope of the proposed regulations and the potential facilities affected are discussed below.

Background on RCRA Program

To understand the potential scope of the new proposed regulations it is important to understand two basic aspects of regulatory frameworks under RCRA.

  1. Subtitle C (Management of Hazardous Waste)– Under Subtitle C of RCRA, EPA regulates hazardous waste from “cradle-to-grave,” which means all aspects of management of hazardous waste.  Subtitle C applies to facilities that transfer, store, and dispose of hazardous waste (referred to as TSDFs). Facilities subject to Subtitle C have cleanup obligations if there is a release of hazardous waste at a Subtitle C facility. A RCRA unit at a facility that had a release of hazardous waste is subject to RCRA Closure.
  2. RCRA’s Corrective Action Program (Cleanup Authority)- The RCRA Corrective Action program expands the reach of EPA’s cleanup authority under RCRA beyond the unit to site-wide.  Facilities subject to RCRA Corrective Action include the following:
    • Solid Waste Management Units or SWMUs– Based upon EPA guidance, a SWMU is “any unit at a facility from which hazardous constituents might migrate, irrespective of whether the units were intended for the management of solid and/ or hazardous wastes.” EPA provides the following examples of SWMUs: container storage areas, tanks, surface impoundment, waste piles, land treatment units, landfills, incinerators, underground injection wells and other physical, chemical and biological treatment units.
    • Hazardous Waste Constituents–   In addition to any cleanup of hazardous waste released, EPA can require investigation and cleanup of constituents designated as “hazardous constituents.”  As discussed below, with the Listing Rule, EPA is proposing to list nine PFAS compounds as “hazardous constituents” which is a lower technical bar than listing as a “hazardous waste.” 

Process to Designate a Compound as a “Hazardous Waste”

In order to better understand both the RCRA Listing Rule and Definition Rule, it is important to understand the regulatory process for listing a substance as either a “hazardous waste” or a “hazardous constituent” under RCRA. 

Hazardous waste determinations are complex and technical.  Current RCRA regulations limit the definition of “hazardous waste” to include only compounds that are either explicitly listed as a hazardous waste through formal rulemaking (so called “listed hazardous wastes”) or that meet one of four characteristics: ignitability, corrosivity, reactivity, or toxicity (so called “characteristic hazardous wastes”). 

Under RCRA, EPA must go through a rule-making procedure that considers several enumerated factors in listing a compound as a “hazardous waste.”  Ultimately, in considering the factors, EPA must determine if the substance is capable of posing “a substantial present or potential threat to human health or the environment when improperly treated, stored, transported, disposed of, or otherwise managed.” 

The regulatory burden to list a compound as a “hazardous constituent” is lower than listing a compound as a hazardous waste.  A “hazardous constituent” is a chemical that has “toxic, carcinogenic, mutagenic or teratogenic effects on humans or other life forms,” but has not yet been designated as a hazardous waste under RCRA.

Compounds that are considered “hazardous wastes” are automatically hazardous substances under CERCLA. “Hazardous constituents” are not automatically designated as “hazardous substances” under CERCLA.   

Under both proposed rules, EPA is not yet designating any PFAS compound as a hazardous waste. Although, EPA says the proposed Listing Rule is the first step in the process to designate PFAS as a hazardous waste subject to Subtitle C. 

Listing Rule – Listing of Nine Specific PFAS as Hazardous Constituents

EPA proposes to identify the following nine PFAS compounds as “hazardous constituents” under RCRA:

  • perfluorooctanoic acid (PFOA)
  • perfluorooctanesulfonic acid (PFOS)
  • perfluorobutanesulfonic acid (PFBS)
  • hexafluoropropylene oxide-dimer acid (HFPO-DA or GenX)
  • perfluorononanoic acid (PFNA)
  • perfluorohexanesulfonic acid (PFHxS)
  • perfluorodecanoic acid (PFDA)
  • perfluorohexanoic acid (PFHxA),
  • perfluorobutanoic acid (PFBA),
  • along with their salts and structural isomers.

By adding these PFAS compounds to the list of “hazardous constituents” it would provide U.S. EPA and states with delegated authority to force the investigation and cleanup of PFAS at RCRA TSDFs.  TSDFs that have accepted hazardous wastes and have had releases may be required to investigate for the presence of these nine PFAS chemicals and take corrective action both on-site and off-site if the chemicals are present.  This would include TSDFs where a prior RCRA Corrective Action was completed.  Such sites could be reopened to require investigation or cleanup of PFAS.

Definition Rule – Definition of Hazardous Waste Applicable to Corrective Action for Releases at TSDFs

EPA is proposing to expand its own regulatory authority to address so called “emerging contaminants” (not just PFAS compounds) before EPA decides to embark on the more extensive regulatory process of listing an emerging contaminant as a “hazardous waste.”   As discussed above, current RCRA regulations require EPA to either: 1) list a substance as a hazardous waste if meets certain enumerated factors; or 2) determine the compound is characteristic hazardous waste; or 3) go through formal rulemaking, such as the Listing Rule, to designate a compound a “hazardous constituent.” 

The statutory definition of hazardous waste under 42 U.S.C. § 6903(5) encompasses any solid waste that:

  • May cause, or significantly contribute to an increase in mortality or an increase in serious, irreversible, or incapacitating reversible, illness or
  • Pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed.

By replacing the current RCRA regulatory definition of “hazardous waste” with the statutory definition, EPA would have broader regulatory authority to regulate emerging contaminants without having to go through the complex regulatory process of designating such compound as a hazardous waste or even designating it a hazardous constituent. 

EPA’s proposed Definition Rule is more controversial than the Listing Rule because it is meant to provide EPA broader regulatory authority to address any so called “emerging contaminant”, not just PFAS.  It allows EPA to begin regulating such compounds so long as it makes a determination (without a formal rulemaking) that the compound meets the statutory definition of a “hazardous waste.”   EPA asserts it already has this authority since it simply would be incorporating the statutory definition into regulation.   

In addition, the Definition Rule is also more controversial because it has the potential to affect permitting of facilities under RCRA, thereby giving EPA potentially broader authority to regulate emerging contaminants through permits.  In order to regulate an emerging contaminant during the RCRA permitting process, a permit writer for a RCRA TSDF would need to develop and present for public comment, an administrative record supporting its conclusion that the substance meets the statutory hazardous waste definition.  Currently, EPA could not include requirements for emerging contaminants in TSDF permits that have not been formally designated a hazardous waste. 

Sites Potentially Affected – RCRA Proposed PFAS Rules vs. CERCLA Proposed PFAS Rules

The universe of potential sites affected by the RCRA Listing is much smaller than the pending designation of PFAS as a “hazardous substance” under CERCLA. Entities potentially affected by Listing Rule include hazardous waste treatment, storage, and disposal facilities (TSDFs) with solid waste management units (SWMUs) that have released or could release any of the PFAS proposed to be listed as RCRA hazardous constituents. If EPA finalizes the designation of PFOS and PFOA as “hazardous substances” under CERCLA, any location where a release of PFOS or PFOA occurred could be required to perform a CERCLA cleanup.

In the proposed rule, EPA estimates that up to 1,740 facilities could be subject to Corrective Action requirements because of the Listing Rule. EPA even broke this number down by North American Industry Classification System (NAICS) number which is used by federal agencies to classify business establishments. EPA determined that the three most common industries in the regulatory universe account for approximately 54 percent of facilities. These industries include waste management and remediation services (NAICS 562), chemical manufacturing (NAICS 325), and national security and international affairs (NAICS 928). Overall, facilities across the manufacturing sector (NAICS codes 311 to 339) account for 46 percent of the potentially regulated facilities. Within the manufacturing sector, 41 percent of manufacturing facilities are in chemical manufacturing.

On February 16th, Ohio launched the All Ohio Future Fund which provides $750 million in funding to assist communities with infrastructure costs in order to create project-ready economic development sites. The purpose of the funding is to attract new businesses or grow existing Ohio businesses. It is not meant to be a job retention program.

What type of funding is available?

The money will be awarded as 0% interest loans which are “partially forgivable” (although the program guidelines indicate grants may be awarded on a “case-by-case” basis). There is no minimum or maximum amount of funding available.

Up to 75% of the project costs can be funded with the loan. The remaining 25% of project costs are considered a match requirement by the applicant.

Forgiveness will based upon:

  • Whether an end-user is identified within 5 years of funding
  • Wages associated with the end-user are 25% above the median community wage
  • The end-user operates in one of JobsOhio’s targeted sectors
  • For so called “mega sites”, the end-user must commit to use the lesser of 50% or 200 acres of the total site.

If the factors for forgiveness are not met by the end of the five-year period, the remainder of the loan would be amortized, and loan payments will begin to be due. The term of the loan will be up to 25 years.

Who is eligible to seek funding?

The list of eligible entities includes the following: counties, cities, villages, townships, port authorities, community improvement corporations, transportation improvement districts, conservancy and park districts or other similar park authorities, land reutilization corporations, nonprofit organizations, and organizations for profit

If non-profit or for-profit organizations want to apply for funding they are required to include evidence of support from the county or local government. Such non-governmental applicants must have entered into an agreement with a unit of local government to work collaboratively on the project, including working to address zoning requirements, project timelines and possible incentives to attract an end user.

If a project received brownfield funding from the Department of Development’s Brownfield Remediation Program it is still eligible for AOFF, but preference will be given to projects that did not already received other state assistance.

How will the projects be evaluated?

In the application for the project, the applicant must specify the projects “site capacity targets” which include:

  • Number of acres (contiguous/non-contiguous)
  • Electricity capacity (MW)
  • Water capacity (gallons per day)
  • Wastewater capacity (gallons per day)
  • Gas capacity (MCF/hr)

Applicants should also describe in the narrative portion of their applications why the site is critical to the local community, prospects for attracting end-users and other factors for why the project should receive priority for funding (See discussion below of project preference factors).

What restrictions are on either ownership or end use of the property?

The goal of the funding is to create more shovel ready sites for industrial end use. The program guidelines include a restriction that no more than 20% of the proposed project may include retail, entertainment, multi-family, point-of-care medical services, higher education, or commercial office space (so called “mixed use” projects).

The project is targeting business growth and not simple relocations of existing Ohio businesses. The program guidelines state that the proposed site must attract a new end-user to Ohio or a new project from an entity with existing Ohio operations. Recipients of funds are expected to find a suitable end-user within five years of disbursement.

Does the property have to be government owned?

No. However, if the property is not under public ownership or control, the owner must agree to contribute toward the costs of any upgrades to the property.

What costs are eligible for funding?

Eligible costs include the following:

  • Public roadwork
  • Water/wastewater and related infrastructure
  • Design/Engineering
  • Demolition
  • Wetland mitigation
  • Utility-gap funding to connect to gas/electric; or relocate utilities on-site (with end-user identified)
  • Other one-time enhancements
  • Brownfield cleanup costs are eligible according to the FAQ. However, preference will be given to sites that did not already receive such funding.

Funds cannot be used for land/site acquisition directly. Funds cannot be used for either building construction and/or refurbishment of existing structures.

What types of projects is Ohio targeting with the funding?

Ohio seems to be targeting very large vacant properties that need base level infrastructure to be considered “project ready.” The program guidelines list the following preferences:

  • Publicly owned
  • Sites that meet JobsOhio’s Site Certification Criteria
  • 30 or more acres
  • Sites with advanced plans for infrastructure improvement
  • Locations that will “create a more even distribution of economic development project-ready sites across the state.”
  • Sites that have access to sufficient labor/talent resources
  • Sites with large end use capacity which includes the following metrics:
    • 200 acres
    • 500,000 gallons per day water capacity
    • 500,000 gallons per day sewer/wastewater capacity
    • 111 MCF per hour gas capacity
    • 40 MW electrical capacity

What is the process for submitting projects and how will projects be reviewed?

The portal to submit applications will be open for one year.

Step 1 – Submit an Indication of Interest (“IOI”) outlining the project and its alignment with the criteria discussed above and in the program guidelines. Review the IOI checklist to ensure the information is submitted accurately. In addition, applicants will need to provide a narrative description of their project that addresses the criteria DOD established in their narrative form guidance. Completed applications will be submitted to AOFF@development.ohio.gov

Step 2- Department of Development (DOD) will review IOIs on a rolling basis. DOD will coordinate with JobsOhio and other state agencies to perform due diligence on the project and also see if there are other more appropriate funding options. Unlike DOD Brownfield Remediation Program, loans will not be awarded on a first-come, first served basis. Rather, DOD will make awards based on whether it determines the proposed project to be a priority.

Step 3- Once approved by DOD, each loan will need to be approved by the Ohio Legislature Controlling Board.

Step 4- Upon loan award, DOD will enter into a loan agreement that will likely include a claw back provision if an end user is not identified within 5 years of project award. Recipients will also be required to report on project progress to DOD.

DOD is targeting the Spring of 2024 for the first awards.

While U.S. EPA is poised to issue a series of federal regulations related to PFAS and impacts to the environment, it is the states that are taking the lead on regulating the presence of Per- and polyfluoroalkyl substances (PFAS) in consumer products. Such regulations are forcing manufacturers to reach back into their supply chains to verify their products do not contain PFAS. The breadth of the state regulations related to PFAS in consumer products shows that the focus on exposures to such chemicals is not just limited environmental exposures.

Personal Injury Claims Related to PFAS Exposure

The wave of state regulations related to the present of PFAS in consumer products is occurring as personal injury cases related to PFAS exposure from consumer products it is still only at the early stages. The trail blazing litigation related to PFAS is the multi-district litigation (MDL) in federal court in South Carolina involving fire-fighting foam that contains PFAS (aqueous film-forming foams or AFFF). Some 2,500 cases have been consolidated into this MDL.

The early stages of this litigation were focused on PFAS in drinking water as a result of releases of AFFF. In 2023, the drinking water cases resulted in very large proposed settlements. 3M reached a tentative settlement to pay approximately $12.5 billion, and DuPont de Nemours, Inc., Chemours Company, and Corteva, Inc. (“DuPont”) reached a tentative settlement of approximately $1.2 billion. The settlement monies will be earmarked to cover testing and remediation costs related to PFAS in drinking water.

The focus of the MDL is now shifting to personal injury claims. In December 2023, attorneys representing allegedly injured individuals and manufacturers of AFFF agreed that 25 individuals comprise the pool of initial personal injury claims to be brought to trial. These so-called personal injury bellwethers will be the first personal injury cases in the AFFF to move forward.

One of the biggest hurdles to personal injury claims related to PFAS exposure has been establishing a causal link between exposure to PFAS and personal injury. If the AFFF bellwether cases successfully establish this link, this could unleash a wave of litigation related to consumer products that contain PFAS, such as cosmetics, textiles, cookware and other consumer goods.

Types of Consumer Laws Regulating PFAS

Generally, the states that have adopted consumer product regulations have enacted laws that fall in to the following major categories:

  • Banning “Intentionally Added” PFAS in Consumer Products.
  • Reporting or Notification Requirements for Products that Contain PFAS.

For laws that ban “intentionally added” PFAS, states are requiring manufacturers to certify that their products do not contain intentionally added PFAS. This certification can often take the form of a “certificate of compliance” that must be maintained by the manufacturer. Other laws require manufacturers to report to the state if their products contain PFAS or place warning labels on the product and/or website that the product contains PFAS.

Which States have Adopted Consumer Product Laws Related to PFAS?

The chart below provides a high-level summary of states that have passed consumer product laws related to PFAS. What is striking is the number of states which have adopted consumer product laws related to PFAS and the variety of those laws.

CaliforniaSee summary below
ColoradoBan on PFAS in food packaging, carpets, fabric treatments, indoor textile furnishings and outdoor furniture.
ConnecticutBans food packaging to which PFAS has been intentionally added.
HawaiiBans food packaging to which PFAS has been intentionally added.
MaineComplete ban on any products containing intentionally added PFAS. Manufacturers are required to report the presence of intentionally added PFAS to the State.
MarylandProhibits manufacturing or distribution of any food packaging, rugs, or carpets with intentionally added PFAS.
Minnesota Requires reporting of consumer products with intentionally added PFAS. Bans food packaging to which PFAS has been intentionally added. Bans a number of consumer products with intentionally added PFAS, including: carpets, fabric treatments, textile furnishings, cookware, cosmetics, dental floss, children’s products and others.
New YorkBans food packaging to which PFAS has been intentionally added. Bans the sale of apparel with intentionally added PFAS.
OregonBans food packaging to which PFAS has been intentionally added.
Rhode IslandBans food packaging to which PFAS has been intentionally added.
Washington StateToxic Pollution Law provides the State Department of Ecology with authority to issue administrative orders to manufacturers about chemicals designated as a “priority” and their presence in products.
VermontBans the manufacture, sale, and distribution of any food package, rugs, carpets, stain treatments for rugs and carpets and ski wax and related tuning products to which PFAS have been intentionally added and are present in any amount.

California Consumer Laws Regulating PFAS

California is often the leader in adopting new environmental, public health and green chemistry regulations. In order to provide a deeper review of how consumer laws related to PFAS are constructed, below is a summary of the current California laws regulating PFAS in consumer products.

California A.B. 1200- Food Packaging and Cookware

A.B. 1200 restricts the distribution and sale of food packaging that contains PFAS.  Beginning January 1, 2023, businesses, including shops and restaurants selling take-out food, were prohibited from distributing, selling, or offering for sale any “food packaging” that contains regulated PFAS. The presence of PFAS in a product or product component at or above 100 parts per million, as measured by total organic fluorine.

Beginning January 1, 2024, A.B. 1200 sets forth disclosure and labeling requirements that manufacturers of cookware must follow when the manufacturer “intentionally” includes PFAS in a cookware product. If the cookware has an intentionally added PFAS either in the handle or the product surface that contacts food, it triggers the requirement to provide certain information on the website for the cookware.  The website for the cookware must contain the following information:

  • List the chemicals in the cookware that are also present on the designated list that the Department of Toxic Substances Control (DTSC) maintains under its Safer Consumer Products program. PFAS appears on the designated list.
  • Names of the lists referenced by DTSC in compiling its designated list on which each chemical in the cookware is present.
  • A link to the internet website for the authoritative list or lists.

If the cookware has intentionally added chemicals from the designated list, then the manufacturer will also have to list the presence of those chemicals on the product label.  There must be a link to more information about the chemical in the label. 

A manufacturer cannot make a claim that the cookware is free of any specific chemical unless no individual chemical from the chemical group or class is intentionally added to the cookware.

A.B. 1817 Prohibiting PFAS in Textiles.

Beginning January 1, 2025, AB 1817 prohibits the manufacture, distribution, sale, or offer for sale in the state of “any new, not previously used, textile articles that contain regulated” PFAS substances. A.B. 1817 defines “textiles articles” as “textile goods of a type customarily and ordinarily used in households and businesses, and include, but are not limited to, apparel, accessories, handbags, backpacks, draperies, shower curtains, furnishings, upholstery, beddings, towels, napkins, and tablecloths.” 

A manufacturer of a textile article shall provide persons that offer the product for sale or distribution in the state with a certificate of compliance stating that the textile article is in compliance with the requirements of A.B. 1817 and does not contain any regulated PFAS.

A.B. 652 Prohibiting PFAS in Juvenile Products

Beginning July 1, 2023, a person, including a manufacturer, shall not sell or distribute any new juvenile product that contains regulated PFAS chemicals. “Regulated PFAS” means either of the following: (1) PFAS that has been intentionally added to a product that creates either a functional or technical effect; or (2) the presence of PFAS in a product is at or above 100 ppm, as measured in total organic fluorine.

The law defines “juvenile product” as a product designed for use by infants or children under 12 years of age, including, but not limited to, a baby or toddler foam pillow, bassinet, bedside sleeper, booster seat, changing pad, child restraint system for use in motor vehicles and aircraft, co-sleeper, crib mattress, floor play mat, highchair, highchair pad, infant bouncer, infant carrier, infant seat, infant sleep positioner, infant swing, infant travel bed, infant walker, nap cot, nursing pad, nursing pillow, play mat, playpen, play yard, polyurethane foam mat, pad, or pillow, portable foam nap mat, portable infant sleeper, portable hook-on chair, soft-sided portable crib, stroller, and toddler mattress. 

A.B.-2771 Prohibition of PFAS in Cosmetics

Beginning January 1, 2025, no person or entity shall manufacture, sell, deliver, hold, or offer for sale in commerce any cosmetic product that contains intentionally added PFAS. The term “cosmetic product” means an article for retail sale or professional use intended to be rubbed, poured, sprinkled, or sprayed on, introduced into, or otherwise applied to the human body for cleansing, beautifying, promoting attractiveness, or altering the appearance.

Other bills were vetoed by the Governor which would have regulated PFAS in additional categories of consumer products. A.B. 727 would have regulated PFAS in cleaning products and floor sealers.  A.B. 2247 which would have required registration by 2026 of all products containing intentionally added PFAS. 

In July 2023, the Ohio Legislature injected an additional $350 million into the Ohio Brownfield Remediation Program (OBRP) due to the success of the program in the prior two years. At the end of the first cycle of funding, the Program was significantly oversubscribed. Therefore, it was anticipated there would be more projects in the queue for the second cycle of funding in FY24 and FY 25. However, based upon information released by the Cuyahoga Land Bank, the first round of the OBRP was massively oversubscribed just from Cuyahoga County alone. The demand for grant funding continues to demonstrate the size of the brownfield issue in the State and how desperately needed grant funding is to help overcome barriers to redevelopment.

Funding Spread Over Two Fiscal Years

The Ohio Legislature largely left the OBRP unchanged from the first grant cycle. It infused the program with an additional $350 million in grant funding, but it split that funding into $175 million in FY 24 and a second $175 million available in FY 25. The Legislature also reserved $1 million in funding for each of the 88 counties for FY 24. This resulted in $82 million being available statewide in the first round of grant funding for FY 24 after the Ohio Department of Development (ODOD) used 2.5% of the funding to cover administrative expenses. The full $175 million is available statewide for FY 25.

Significant Change to Process for Submitting Applications

The most significant change made by the Legislature to the OBRP was to modify the grant application process. In the first cycle, all grant applications were submitted directly to ODOD and all applications were evaluated on a first-come, first served basis. Therefore, applicants needed to ensure they submitted their applications to ODOD early in the grant application period in order to improve their chances for funding.

The Legislature modified the procedure for the submission of grant applications by requiring all applications to be submitted through a designated “Lead Entity” for each of the 88 counties. Procedures for naming the Lead Entities are spelled out in the Legislation. The significant change is that the counties were given discretion to choose their priority projects by deciding the order of submission from the Lead Entity to ODOD.

Cuyahoga County Overwhelms the Program with Applications

The Cuyahoga Land Bank was the designated Lead Entity for Cuyahoga County. In an aggressive move to try to secure the most projects possible for the County, the Landbank released its portal to begin accepting projects on September 29, well before ODOD released its guidelines in November. While it was never explicitly stated by the Land Bank, applicants believed that the submission of application to the Land Bank would reserve their place in line once the ODOD portal opened on December 5. As a result, Cuyahoga County applicants began submitting their project information in September as soon as the Land Bank portal opened.

However, in a webinar held on November 28 (one week before the ODOD portal would start accepting applications), the Landbank announced that the County Administration had directed the Land Bank to submit the “County Priority Projects” first, then the Land Bank would submit the applications in the order they were received. When asked to identify the County Priority Projects, the Land Bank stated they were not authorized to release that information during the webinar.

The Cuyahoga County Administration did not release any guidance on how it would prioritize projects. Even after the submission of applications on December 5, the County has not identified the County Priority Projects or how it determined which projects would receive priority. Hopefully, the County’s process for prioritization will be more transparent leading up to the second round of grant funding in FY 25.

On December 7, the Land Bank released information on the total number of projects submitted to ODOD. More than $100 million in grant funding was sought just from Cuyahoga County – $18 million more than the total funds available statewide. While the Land Bank did a remarkable job in submitting all 36 applications in under four hours, it is likely that a large number of projects will not receive funding. Below is a summary provided by the Land Bank of the applications submitted by Cuyahoga Land Bank.

Projects

  • Cleanup/Remediation Projects 34
  • Assessment Projects 2

Location of Projects

  • Berea 1
  • Brook Park 1
  • Brooklyn Heights 1
  • Cleveland 26
  • Cleveland Heights 2
  • Cuyahoga Heights 1
  • Highland Hills 1
  • Lakewood 1
  • Middleburg Heights 1
  • Warrensville Heights 1

Jobs

  • 3,978 new jobs
  • 1,421 retained jobs

Applicant Types

  • Private/For-Profit 25
  • Municipalities 6
  • Nonprofits 5

Total Project Costs $240,720,280

Total Grant Funding Requested $106,855,142

There is general awareness of the need to perform environmental due diligence on virtually any transaction that involves commercial/industrial property. However, even with such general awareness missteps or lack of attention to detail during the process can risk exposing a purchaser or new tenant to significant liability. Having been involved in counseling on environmental due diligence for hundreds of properties, here are four of the most common issues/questions that arise during the environmental due diligence process.

As Buyer, can I rely on Seller’s prior Phase I reports and simply avoid spending the money on a new Phase I assessment?

It depends on the age of Seller’s Phase I report and whether the prospective owner/tenant can rely on the conclusions of Seller’s environmental professional contained in the report. Under U.S. EPA’s “All Appropriate Inquiries” rule (AAI) and under the new Phase I ASTM 1527-21 standard, certain portions of a Phase I must be updated after six months. If the report is older than one year, then a new Phase I will be required under ASTM 1527-21 and AAI. Therefore, if a Seller’s prior Phase I report(s) are older than one year then is strongly recommended that a prospective buyer and/or tenant secure a new Phase I environmental assessment.

If Seller’s report is more than 180 days old but not yet one year old, then a prospective buyer/tenant should work with the Seller to allow for a Phase I update of those sections that must be updated which include:

  • required interviews must be updated;
  • searches for recorded environmental cleanup liens;
  • review of government records;
  • site reconnaissance of the subject property; and
  • the Environmental Professional [EP] Declaration.

Further, the new ASTM E1527-21 standard requires that the Phase I ESA identify the dates on which each of these components were completed and further provides that the 180-day or one year time period commences on the date when the first of these components were completed.

Finally, if Seller’s report is less than 180 days old or has been updated and is less than one year old, then Buyer must be able to rely on the Phase I report. The Phase I report will identify the “user” or “client” that may rely upon the findings and conclusions of the report. A prospective purchaser and/or tenant must be issued a so-called “reliance letter” from the Seller’s environmental consultant that allows them to rely on the report.

Is a Phase I assessment recommended for a prospective tenant of a commercial and/or industrial building?

Yes. Often times prospective tenants are under the impression they do not need to perform a Phase I assessment if they are not taking ownership of the property. However, a tenant can still be considered an “operator” and be liable for pre-existing contamination on a property especially if the tenant will be using similar chemicals as the pre-existing contamination. EPA’s AAI rule allows tenants to qualify for an environmental liability defense under CERCLA (called the “bona fide purchaser defense”) if the prospective tenant performs a Phase I prior to signing the lease.

Beyond establishing a liability defense, performance of a Phase I assessment as a prospective tenant is also advisable because it establishes a baseline condition of the property prior to commencement of the lease. Establishing a baseline condition can help prevent major disputes with the landlord as to whether tenant was responsible for contamination that may be discovered during the term of the lease. Furthermore, the baseline condition can also identify potential human health exposure issues such as vapor intrusion (i.e., soil/groundwater contamination volatilizing and creating unsafe indoor air conditions).

Does the Phase I constitute a comprehensive environmental due diligence assessment?

No. A Phase I is an examination of records, performance of interviews, review of federal/state databases and a site walkover which are designed to identify whether there has been an actual or potential release of hazardous substances on a property. The list below is not an exhaustive list of all non-scope items, but the list contains those environmental issue that arise most frequently and are not within the scope of a Phase I environmental assessment:

  • Environmental Compliance- If the buyer is purchasing an on-going business operation it is important to note that a Phase I is not a compliance audit. A Phase I will not evaluate whether the Seller’s business has all the required permits and has been filing mandatory reports with state and/or federal regulators. It will also not evaluate OSHA compliance. A separate environmental audit typically should be performed when the buyer is purchasing an ongoing industrial or manufacturing operation.
  • Asbestos– A Phase I is not an asbestos survey of the building. If any demolition and/or renovations are planed post-acquisition, then buyer/tenant should consider an asbestos survey to identify all asbestos-containing material (ACM) in a building.
  • Wetlands- A Phase I will not identify the presence of any wetlands on a property. If the property contains open areas and the buyer/tenant is considering expansion and/or new construction, then a wetlands survey would likely be appropriate.

If issues are identified in a Phase I report, what should the scope of the Phase II sampling be?

If a Phase I report identifies an actual or potential release of hazardous substances at the property or an adjacent property (i.e., so called “recognized environmental conditions” or RECs), then typically the next step in the due diligence process is to perform sampling of the property to evaluate the nature and extent of any potential contamination. The cost of a Phase II can range quite dramatically depending upon the number and type of sampling to be performed. If a prospective purchaser and/or tenant is considering a Phase II, it will be important to work with your environmental specialists and attorney closely to adequately design the scope of testing to be performed.

In discussing the scope of the Phase II with your consultant and/or attorney, you should first identify the goal of the Phase II sampling which may typically include:

  • Testing to simply determine if there is a potential issue on the property;
  • Testing to qualify for the bona fide purchase defense under AAI;
  • Testing to perform a regulatory cleanup of the property; and
  • Testing to evaluate any potential for off-property issues that could raise regulatory and/or liability issues.

Identifying the goal of the Phase II assessment upfront is key in order to ensure an adequate scope of work to achieve your goal as well as the cost-effectiveness of the proposed sampling.

In July, the Ohio General Assembly passed the Fiscal Year 2024-2025 Main Operating Budget which included another round of $350 million in funding for the Brownfield Remediation Fund. This second round of funding builds up on the very successful launch of the program in the prior State budget.

While the structure of the program largely remains the same, the Legislature did make some notable changes. The most significant changes are the following:

  • Lead Applicants– Rather than applications being directly submitted to the Ohio Department of Development (ODOD), the Legislature required all applications to flow through a local lead applicant before they can be submitted to ODOD. The budget language allows any of the following to be designated as the lead applicant:
    • For counties with a population of 100,000 or less, the County Commission Board will recommend a lead applicant to ODOD.
    • For Counties with a population of 100,000 or more, the County Land Reutilization Corporation (Land Bank) will serve as the lead applicant (if a Land Bank operates in the County).
    • If the County with a population of 100,000 or more does not have a Land Bank, the County Commission Board will recommend a lead applicant to ODOD.
  • Allocation of Funding Over Two Years– The $350 million will be split ($175 million per year) over the two years of the biennium. For each fiscal year, $1 million will be set aside per county. Each fiscal year, $87 million of the $175 million will be available for competitive granting operating in the first-come, first-serve structure.

How will Lead Applicants Administer the Program?

There was no real indication why the Legislature forced all applications to flow through a designated Lead Applicant. In addition, the budget language did not really mandate that Lead Applicants perform any specific review function. Rather, it is anticipated that ODOD will continue to review all applications on a “first-come first-served” basis. Furthermore, it is also anticipated that, once applications are submitted to ODOD by the Lead Applicant, so long as the Lead Applicant timely submits the application and the application meets ODOD’s criteria for funding, the project will get funded.

County Landbanks or other designated Lead Applicants would have the option to place additional requirements as part of agreeing to submit an application to ODOD. For example, a Lead Applicant could rank local projects and only elect to submit the most important local projects to ODOD. However, such an approach would seem to be directly counter to the intent that the program be operated on a “first-come first-served” basis for awarding the money. Hopefully, Lead Applicants will simply agree to submit any project in an attempt to get the most money into their area as possible.

$1 Million Reserved for Each County
The Legislature retained the reservation of $1 million in funding for each of Ohio’s 88 counties. However, unlike the first two years of the program, it effectively reserved $176 million of the $350 million in funding for the individual counties by reserving $88 million ($1 million for each county) if both fiscal year 2024 and fiscal year 2025.

It is unclear why the Legislature elected to reserve $88 million in each of fiscal years when many counties did not use any or all of the funds reserved in the prior funding rounds. Based upon a white paper from Greater Ohio Policy Center, 30 counties did not use any of the brownfield funding in the prior funding rounds. However, those same counties who had no projects in the prior funding rounds will now have $60 million reserved for their use in the next two years of the program.

Because brownfields tend to concentrate in highly populated industrial counties, the vast majority of the funding was used in these high population counties. According to the GOPC white paper, nearly 70% of the funding ($175.1 million) went to the seven Ohio counties with the highest population. These are also the counties with the greatest need so the majority of funding should go to those counties.

The reserves for each of the 88 counties will make the $87 million in general funding highly competitive, especially in Round 1. Assuming ODOD continues to review applications on a first-come first-served basis, there are likely to be some eligible projects that won’t get funded because the first round of funding will likely be oversubscribed. Hopefully, any money that was reserved for counties that was not used will be placed in subsequent rounds of funding open to projects from any county.

Next Steps

Everyone is waiting for each of the designated Lead Applicants and ODOD to release their guidelines for the $350 million in additional funding for the next two years of the program. Right now, it appears that the first round will not be open to applications until December 2023 or January 2024. However, so long as ODOD doesn’t significantly change the program from the prior funding rounds, there is no reason why the State couldn’t open the program up this Fall.

On August 29, 2023, the United States Environmental Protection Agency (U.S. EPA) and the Army Corps of Engineers (ACOE) issued a direct final rule without public comment amending the definition of the “Waters of the United States” (WOTUS) which governs the scope of federal jurisdiction under the Clean Water Act (CWA). U.S. EPA issued the rule to conform its regulations to the ruling of the U.S. Supreme Court in Sackett v. EPA which significantly reduced which wetlands are federally protected. The Court limited federal jurisdiction to only wetlands that are adjacent to navigable waters and those with a continuous surface connection to relatively permanent waters adjoining navigable waters.

The Sackett decision effectively ends decades of debate over the scope of federal jurisdiction over wetlands. There have been at least five different U.S. Supreme Court decisions involving the scope of federal jurisdiction under the CWA. These prior decisions include:

  • U.S. v. Riverside Bayview Homes (1985)- Court affirmatively decides adjacent wetlands are protected under the CWA. Does not decide the scope of federal jurisdiction other than adjacent wetlands.
  • Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. ACOE (2001)- Overruled ACOE jurisdiction of isolated wetlands based upon the migratory bird rule.
  • Rapanos v. U.S. (2006)- Plurality decision which includes test adopted by Justice Kennedy known as the “significant nexus test” which extended federal jurisdiction to non-adjacent wetlands.
  • U.S. v. Hawkes (2016)- Allows challenges in court to jurisdictional decisions (JDs) issued by the ACOE.
  • County of Maui v. Hawaii Wildlife Fund (2020)- Extended federal jurisdiction to direct discharges to navigable waters or when there is a “functional equivalent” to a direct discharge.

Since the CWA was adopted in 1972, which wetlands are federally protected has been debated and various presidential administrations have attempted to adopt regulations setting for the limits of federal jurisdiction. Unlike the prior Court decisions, the Sackett decision left no ambiguity as to which wetlands are entitled to federal protection. The Court developed the new “continuous surface connection test” which includes:

  • The wetland must be adjacent to a relatively permanent body of water connected to a traditional interstate navigable waterway
  • The wetland has a continuous surface connection with the water, making it difficult to determine where the “water” ends and the “wetland” begins.

The Sackett decision effectively overturns Rapanos v. U.S. which had expanded federal jurisdiction to also include wetlands with a “significant nexus” to permanent waters. Under the significant nexus test, a wetland that was connected to a less than permanent stream (i.e. ephemeral or intermittent) were protected if impacts to the wetland could affect the chemical, physical and biological integrity of the downstream navigable water. With Sackett, the “significant nexus” test was eliminated as a basis for extending federal jurisdiction over wetlands.

To provide a visual representation of what the Sackett decision means with regard to protections of wetlands, consider the following two images used in a recent presentation I made with Dr. Michael Liptak (Enviroscience). The first slide shows wetlands and various connections to perennial or intermittent streams (i.e. potentially regulated wetlands).

The second slide shows the wetlands that will be federally protected following Sackett.

The narrow scope of jurisdiction adopted by the majority of the Court left Justice Kavanaugh to note that the Court was narrowing federal jurisdiction greater than the last eight presidential administrations.

State Protection of Wetlands

One the reasons the Court was willing to significantly reduce the scope of federal jurisdiction was to defer to the States in terms of protections of wetlands and streams. However, a recent study by the Environmental Law Institute demonstrates that most States have not adopted any regulations to protect waterways beyond the protections afforded under the CWA.

Ohio did enact protections of wetlands beyond the CWA. Following SWANCC v. U.S. ACOE, Ohio enacted protections for so called isolated wetlands under Ohio Revised Code 6111.021 to 6111.028. The term “isolated” refers to wetlands that are not directly adjacent to permanent or navigable waterways. Therefore, in Ohio, a permit is still needed in order to impact isolated wetlands that are not protected under the CWA.

What is left to decide following Sackett?

While Sackett clearly defines the limits of federal jurisdiction of wetlands under the CWA, there remains an open question as federal jurisdiction over intermittent and ephemeral streams. While the Court did not directly address intermittent and ephemeral streams in Sackett, the Court did determine that only wetlands that are adjacent to a “relatively permanent body of water connected to traditional interstate navigable waters” are protected. This language suggests the Court will decide both ephemeral streams (those with flow only when it rains) or intermittent streams (those with flow only during certain times of year) are not protected under the CWA. However, we will have to wait and see when this issue inevitably reaches the Supreme Court.

On March 14th, U.S. EPA released its advanced pre-publication notice of proposed rulemaking which, if finalized, will establish for the first time national drinking water standards for PFAS under the Safe Drinking Water Act (SWDA).  While many states have adopted drinking water standards, the U.S. EPA has yet to establish any national drinking water standards for PFAS.  The implications if this rule is finalized will be very significant as discussed below.

What is the anticipated timing of the draft and final rule?

The proposed rule has not yet been published in the federal register but is scheduled to published on March 29th.  Once it is published, U.S. EPA will have a sixty (60) day public comment period.  U.S. EPA has stated their goal is to finalize the standard by the end of 2023.

What standards is EPA proposing and for which PFAS compounds?

When establishing new drinking water standards, U.S. EPA first establishes a Maximum Contaminant Level Goal (MCLG), which are non-enforceable public health goals.  The MCLG is based on current scientific analysis of the risk presented by the chemical compound. With regard to PFOA and PFOS, EPA’s review of the scientific literature resulted in it designation of PFOA and PFOS as likely carcinogens (specifically liver and kidney cancer).  EPA’s proposed rulemaking concludes that the MCLG for the PFOA and PFOS compounds is zero.  EPA has determined that there is “no dose below which either chemical is safe.” 

While the MCLG is based on a determination of the level of exposure which is determined to be safe, the actual regulatory standard –  Maximum Contaminant Level (MCL) – takes into consideration two additional practical considerations when establishing the standard: 1) what is the lowest detection level that labs across the country can reliably detect (i.e., the lab analytical detection limit); and 2) the level proven treatment technologies are capable of achieving.

From the U.S. EPA’s proposed rulemaking, the primary driver in establishing the MCL for PFOA and PFOS was the lab analytical detection limit using EPA’s recognized laboratory procedures (i.e., EPA methods 533 and 537.1).  In theory, this means that if labs get more sophisticated in reliably measuring levels of PFOA and PFOS below 4 ppt, the standards could go even lower.

Here is a summary of the proposed standards:

CompoundsProposed Maximum Contaminant Level
PFOS4 parts per trillion (4.0 ng/l)
PFOA4 parts per trillion (4.0 ng/l)
PFHxSHazard Index = 1.0
GenX ChemicalsHazard Index = 1.0
PFNAHazard Index = 1.0
PFBSHazard Index = 1.0

What is the Hazard Index? 

EPA concludes that persons exposed to a mixture of PFAS compounds can have a so called “dose additive” response, which means health impacts can occur at lower levels than if exposed to that compound alone.  To address the risk of exposure to a mixture of PFAS compounds, EPA decided to propose a drinking water standard tied to a hazard index of 1.0 for the remaining four PFAS compounds.

Every drinking water system would measure the levels of these four compounds in their system.  The levels would be compared to the following Health-Based Water Concentration (HBWC), which is the level no health effects are expected for that specific compound. Because EPA determined the MCLG for PFOA and PFOS is zero, both of these compounds are not considered in the health index analysis.  

The measured value is divided by the HBWC then those four values are added together.  If the total sum of those values is greater than 1.0 it is considered a violation of the standard.  The HWBC’s for each of the four compounds are as follow:

CompoundHBWC (ppt)
PFHxS9.0
GenX Chemicals10
PFNA10
PFBS2000

If the rule goes final what requirements will apply to public drinking water systems?

Initial monitoring of the system will be required within three years after the rule’s promulgation.  Systems must be in compliance with the MCL and health index within three years.  Due to the engineering planning and construction timeframes, public drinking water systems will likely need to initiate engineering shortly after the rule is final in order to have treatment systems in place within the three year time period allowed for compliance.  There are recognized treatment systems that are effective in removing PFAS compounds, including activated carbon, anion exchange (AIX) and high-pressure membrane technologies.  All of these treatment systems are expensive to install and have ongoing operation & maintenance (O&M) costs.  Another issue is that the material used to filter PFAS, such as carbon filter, must be managed as a PFAS containing waste, which increases disposal costs.  As discussed below, due the large number of public drinking water systems that could be affected, the rule will result in very significant compliance costs during the 2024-2026 time period.

EPA’s analysis of cost of compliance and anticipated health benefits

When developing new MCLs under the Safe Drinking Water Act, U.S. EPA is required to analyze the anticipated health benefits and cost of compliance of the proposed rule.  EPA estimates there are approximately 66,000 public drinking water systems that could be affected by the rule.  The proposed rule includes a very detailed cost/benefit analysis of the proposed rule.  EPA used a time period of 80 years to evaluate the annual cost and annual health benefit of the proposed rule.  EPA’s analysis included a range of estimated annualized compliance costs of between $700 million to $1.3 billion dollars.  While this is an oversimplification from EPA’s proposed rule, over an 80 year time frame, the total cost would have estimated range of between $56 billion to $104 billion.  However, those costs will be front loaded because the most significant engineering and construction costs will be in the early years as drinking water systems install treatment. 

What is the next significant regulatory action anticipated by EPA regarding PFAS?

EPA has indicated it will propose a rule designating PFOA and PFOS as “hazardous substances” under CERCLA sometime in the summer of 2023.  If PFOA and PFOS are defined as hazardous substances under CERCLA, it will provide clear legal authority to those seeking cleanup of property contaminated by PFAS.

On January 30, 2023, Phase 2 of the Biden Administration’s rule making revisions to Nation Environmental Policy Act (NEPA) were sent by the White House Council on Environmental Quality (CEQ) to the Office of Management and Budget (OMB). Once OMB completes its review the proposed rule will be published in the Federal Register for public comment. The proposed rules are expected to be released sometime this spring.

According to the National Law Review, the Phase 2 rules are likely to be more controversial as they are expected to address: consideration of environmental justice, public participation, and efforts to still streamline the process by imposing deadlines.

Biden Administration Rollback of the Trump Administration’s Overhaul to NEPA

The Trump Administration enacted a massive overhaul of the landmark regulation which went into effect on September 14, 2020. The revisions were the first substantive changes to NEPA since the 1970s. The major focus of the overhaul was twofold: 1) to speed up NEPA reviews for most projects; and 2) to reduce the overall scope of impacts considered under NEPA. Here is a quick summary of the changes the Trump administration enacted:

  • Cumulative Effects- Consideration of impacts from the proposed action together with other actions were eliminated. One such impact eliminated was consideration of the action as contributing to climate change.
  • Eliminated Federal Agency Rulemaking and NEPA Policies- CEQ has the authority to promulgate framework NEPA regulations that all federal agencies must follow. However, many federal agencies enacted their own supplemental rules and adopted NEPA policies govern reviews performed by their Agency.
  • Reduced Scope of Significant Effects– The rule eliminated consideration of effects that were remote in time, geographically remove, or the product of a lengthy causal chain.
  • New Definition of “Major Federal Action”- Excluded projects that have “minimal federal funding or minimal federal involvement” thereby reducing the number of projects that would trigger NEPA.
  • Indirect Effects- Eliminated consideration of ‘indirect effects” which are those caused by the action at a later time or farther removed in distance.
  • Purpose and Need- NEPA historically required federal agencies to consider “reasonable alternatives not within the jurisdiction of the lead agency.” The reforms instructed agencies to limit the range of alternatives to only those that were consistent with the applicant’s goals and the agency’s statutory authority.

Biden Administration’s Phase I Rule Revisions

Phase I of the rollback of the Trump Administration’s NEPA reforms went into effect on May 20, 2022. The Phase I rules restored the following: restored the scope of review under “Purpose and Need” to how it was performed historically, reestablished CEQ regulations as the “floor” with the federal agencies able to enact their own regulations, and restored the requirement to consider both indirect and cumulative impacts.

Reducing the Length of NEPA Reviews

The primary objective of the Trump Administration’s overhaul to NEPA was to reduce the timeframes for NEPA reviews. According to a review performed by CEQ, the average time to complete an Environmental Impact Study (EIS) was 4.5 years. A review by CEQ of the average length of an EIS found that most reports were over 600 pages.

While the Biden Administration’s Phase 2 rules are supposed to include revisions to help streamline the NEPA process. However, with the restoration of the scope of review required under NEPA and the possibility additional potential impacts requiring analysis, such as environmental justice, it will be a challenge for the Administration to expedite reviews.

With the Biden’s Administration $1.2 trillion dollar investment in the nation’s infrastructure, NEPA will be front and center on how quickly those improvements to the nations roads, bridges, water infrastructure and grid resilience will occur. How will the Administration be able to balance meaningful NEPA reviews with the equally important goal of implementing much needed improvements to the nation’s infrastructure? All eyes will be on the Phase 2 NEPA rules package when it is released this spring.

On December 16, 2022, Governor DeWine announced $88 million in grant funding for 123 brownfield remediation projects. This marks the third round of funding. Collectively, the three rounds of funding have resulted in a total of $341 million in grant funding awarded in one year. Of the $341 million in grant funds provided $19.2 million were assessment grant dollars (6%
of the total allocation) and $321.9 million were cleanup/remediation dollars (94%). 125 projects were awarded assessment dollars, and 188 projects were awarded cleanup/remediation grant dollars

The Ohio Brownfield Remediation Program (OBRG)is a truly transformational program. Many heralded the Clean Ohio brownfield grant program, which operated from approximately 2001 to 2012, as the “golden age” of brownfield cleanup and redevelopment in Ohio. During the 14 years Clean Ohio it awarded $400 million in grants for assessment and cleanup. The Ohio Brownfield Remediation Program will result in close to the same amount of funding in only one year. This truly is the golden age of brownfield redevelopment in Ohio.

Greater Ohio Policy Center released an excellent white paper that provides some great insights into the OBRG as well as the future for brownfield redevelopment in Ohio. Some of the key findings in the white paper include:

More Brownfield Funding is Needed– Even after $340 million in funding in one year there is still robust demand to address underutilized and contaminated sites across Ohio. The OBRG program was oversubscribed. The program was set up to be “first come first served” program. This meant applications that met the funding criteria were awarded funding in the order the applications were received until the funding ran out. Round 3 closed in just three days once the Department received requests for all remaining funding. I personally know of multiple projects that did not receive funding because applications were submitted after this three day period.

125 Projects are Poised for the Next Funding Cycle- Of the projects funded, 125 were assessment grants. This means these sites received funding for sampling to determine level of contamination on the property. Cleanup funding will be needed to put these projects back into productive use.

Ohio has the opportunity to build on this momentum by renewing the OBRG in the next budget cycle this July. This is an opportunity for Ohio to move past its “rust belt” moniker by addressing these legacy sites.