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October 20, 2010

EPA Releases Plan for Renewable Energy Siting on Contaminated Properties

On October 14, the Environmental Protection Agency (“EPA”) released a Draft Management Plan for Siting Renewable Energy on Potentially Contaminated Land and Mine Sites.  The draft plan is open to public comment through November 30, 2010.

The plan outlines 20 steps that EPA has recently taken or will take over the next two years to promote renewable energy development on contaminated properties.  Upcoming steps include new guidance on the siting of such facilities while clean-up is ongoing, the consideration of new tools to address liability concerns related to renewable energy development at contaminated sites, and the incorporation of financial incentives for such redevelopment into existing loan, grant and tax incentive programs.

EPA will also be selecting pilot communities to serve as models for different types of renewable energy development at contaminated facilities.  The agency plans to solicit applications for these pilot projects in early 2011.

The draft plan is part of EPA’s ongoing RE-Powering America’s Land initiative, launched two years ago to “identify Brownfields, RCRA, Superfund, landfill and abandoned mine land with wind, solar, biomass and geothermal development potential” and collaborate with public and private stakeholders to encourage such re-development. The initiative has produced maps overlaying EPA-tracked sites in New York with generation and siting potential for wind energy, photovoltaic solar energy, biopower facilities and biorefinery facilities.

October 18, 2010

Court Enjoins Army Corps of Engineers From Extending Regulatory Jurisdiction Over Former Wetlands

On September 28, 2010, the Southern District of Florida awarded summary judgment to New Hope Power Company in its suit seeking to enjoin the U.S. Army Corps of Engineers (ACOE) from applying rules pertaining to its regulatory jurisdiction over certain former wetlands, which had been issued through agency memoranda.  The court held that the agency had failed to properly promulgate the rules through the notice-and-comment rulemaking procedures required under the Administrative Procedure Act (APA).  The decision has wide import, as it directly affects approximately 700,000 acres within the Everglades Agricultural Area (EAA), and other hydrologically managed lands nationwide for which non-agricultural uses may be proposed.  SPR represented New Hope Power Company in the suit.

New Hope owns and operates a renewable energy facility in the EAA, an area of the Florida Everglades that was formerly wetlands but has been hydrologically managed through pumps and drainage systems since the mid-20th century to allow for agriculture.  New Hope’s facility, constructed on former sugarcane fields, generates electric power through the burning of non-usable portions of sugarcane as well as wood waste.  New Hope recently obtained state and local permits to construct a monofill on neighboring land, currently farmed for sugarcane, where it could place ash from the waste-burning operations, and thereby avoid trucking the ash to a distant landfill.

Existing ACOE regulations under the Clean Water Act provide that a permit is needed to conduct certain activities within wetlands.  However, exempt from the definition of wetlands are lands that do not support wetlands vegetation under normal circumstances.  The ACOE had in past rulemaking documents explained that “normal circumstances” was not to be read to include properties that had been transformed into dry land.  Also exempt from regulations are “prior converted croplands,” lands formerly wetlands but converted to agricultural use.  Rulemaking documents previously issued by the ACOE provided that a prior converted cropland could only lose such designation if wetland vegetation returned.  In 1993, the ACOE had determined that the land on which New Hope’s power facility is built was prior converted cropland. In addition, the ACOE’s Wetlands Delineation Manual provides that in order to be a regulated wetland, land must exhibit both wetlands hydrology and vegetation, unless one of three types of “atypical situations” apply: (1) an unauthorized activity resulting in the loss of one of these characteristics; (2) man-made creation of a wetland; or (3) natural events.

However, in 2009, the ACOE issued internal memoranda interpreting “normal circumstances” in hydrologically managed lands to mean “pumps off,” and stating that prior converted croplands lost such designation upon a change to non-agricultural use.  Based on these memoranda, the ACOE informed New Hope that it would likely need a permit to construct the proposed monofill.  New Hope filed a lawsuit challenging the memoranda as legislative rules that the ACOE had failed to promulgate in accordance with the APA.  The court agreed, holding that the memoranda extended the ACOE’s regulatory jurisdiction beyond that provided for in existing regulations, and diverged from the Wetlands Manual in deeming lands hydrologically managed with ACOE authorization an “atypical situation” to which the general delineation rules did not apply.  The court therefore enjoined the ACOE from applying these new rules.

New Hope Power Company was represented in the litigation by Daniel Riesel, Dan Chorost and Elizabeth Knauer of Sive, Paget & Riesel and Neal McAliley of White & Case.

October 4, 2010

EPA Outlines Plans to Revise Vapor Intrusion Guidance

Four years ago, New York’s Department of Environmental Conservation (“DEC”) and Department of Health (“DOH”) issued new guidance on soil vapor intrusion, triggering the ongoing reevaluation of over 400 contaminated sites and the reopenings of dozens for new testing or mitigation.  Now, the U.S. Environmental Protection Agency (“EPA”) is taking the first steps towards revising its own vapor intrusion guidance.

On August 30, 2010, EPA’s Office of Solid Waste and Emergency Response released its Review of the Draft 2002 Subsurface Vapor Intrusion Guidance.  The Review highlights areas of existing guidance that EPA plans to update or change over the next two years.

In 2002, EPA released draft guidance for detecting and responding to vapor intrusion, caused by the migration of subsurface contamination into overlying buildings.  Vapor intrusion is most commonly found at sites with elevated levels of volatile organic compounds – including chlorinated solvents and gasoline – in the soil or groundwater.

In response to recent scientific developments, last year the EPA Inspector General recommended that the agency update and finalize its guidance, which remains in draft form.  EPA hopes to complete that process by November 2012, with the recent Review highlighting various assumptions and methodologies that are subject to change.  For instance, the agency plans to incorporate multiple lines of evidence into vapor intrusion screening determinations, expand its guidance related to non-residential and yet-to-be-constructed buildings, and provide for the collection of indoor air samples earlier in the investigation process.

As it moves forward, EPA intends to solicit public comment and hold hearings on the guidance revisions in 2011.  The agency asserts it is not required to take comment on guidance documents, but often does so for higher profile issues.

Meanwhile, New York continues its process of re-evaluating contaminated sites for vapor intrusion pathways, including many properties that had previously been remediated and de-listed.  Purchasers and lenders are also increasingly investigating vapor intrusion as part of their Phase 1 environmental site assessments.

Thus far, EPA has not announced plans to re-open Superfund sites to investigate vapor intrusion.  Where low levels of contamination are left at a remediated site, however, the Superfund statute requires a site review every five years, at which point additional work may be needed to address vapor intrusion threats based on new guidance.

Sive, Paget & Riesel represents a number of property owners on vapor-intrusion evaluations and re-openings.  For more information on this topic, please contact Christine Leas, Jeffrey Gracer or Michael Bogin.