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October 27, 2011

New Standards Provide Guidance for Environmental Diligence, Superfund Liability Protections

In recent months, ASTM International (“ASTM”) has issued or revised key environmental standards governing the performance of and response to environmental site assessments, with potentially significant impacts for lenders, developers and owners of contaminated property. 

Before contaminated property is sold or remediated, federal and state law and transactional due diligence generally require an environmental site assessment to be conducted pursuant to ASTM standards.  Such assessments may be undertaken to preserve the innocent landowner, bona fide prospective purchaser, or contiguous property owner defenses to Superfund liability, which require “all appropriate inquiries” into the environmental conditions on a given site and impose “continuing obligations” to stop, prevent, or limit human exposure to hazardous substance releases.   

Under EPA regulations, compliance with ASTM’s Phase I site assessment standards (E1527-05 or E2247-08) is sufficient to establish “all appropriate inquiries” for the purpose of these defenses.

After more than two years of review and deliberation, ASTM recently revised its Standard Practice for the Phase II Environmental Site Assessment Process (E1903-11).  Phase II site assessment involves the sampling of soil, groundwater or other exposure pathways, typically after a Phase I reveals a likelihood of contamination.  While Phase II assessments are not required under Superfund regulations, they can be useful in determining what “continuing obligations” are needed to establish landowner liability protections.  Phase II assessments may also be required as part of transactional due diligence or to inform a company’s disclosure of its environmental liabilities. 

Recognizing the variety of contexts in which Phase II assessments arise, the revised ASTM standards set forth an iterative process, emphasizing communication between the “user” who commissions the assessment and the “assessor” who performs it.  Unlike the prior standards, the new version requires the user and assessor to agree upon a written statement of objectives that sets the scope of the investigation.  These objectives are tailored to the user’s needs; they can limit the investigation to only certain parts of the Site or certain contaminants, or expand it beyond the recognized environmental conditions (“RECs”) identified in a Phase I.  These objectives may be revised throughout the assessment process, as sampling increases the amount of information about environmental conditions on Site, culminating in the production of a written Phase II Report. 

Last July, ASTM released a new “Standard Guide for Identifying and Complying with Continuing Obligations” (E2790-11).  These standards establish a four-step process for developing and implementing a “continuing obligation plan,” which will be tailored to meet site-specific conditions.  Since “continuing obligations” are broadly defined under CERCLA and its regulations, courts may look to the new ASTM standards for more specific guidance.

For more information on ASTM’s new standards and the environmental site assessment process, contact Michael Bogin or Christine Leas.

October 25, 2011

DEC and DEP Agree to Invest in Green Infrastructure to Improve New York Harbor Water Quality

By: Maggie Macdonald — Filed under: Clean Water Act, New York City Environmental Law, New York Environmental Law — Posted at 10:38 am

In a draft Consent Agreement unveiled last week, the New York State Department of Environmental Conservation (“DEC”) and the New York City Department of Environmental Protection (“DEP”) proposed a $2.4 billion public and private investment in green infrastructure over the next 20 years to reduce discharges during combined sewer overflows (“CSOs”).  CSOs currently discharge approximately 30 billion gallons of untreated sewage and polluted stormwater into New York Harbor each year, typically during and following heavy rainfall, resulting in significant water quality and environmental issues.

CSOs are common in older cities where the sewer system was designed to convey both wastewater and stormwater runoff in the same pipes.  In dry periods, wastewater – which includes both washwater and sewage – flows by a combination of gravity and pumps to municipal treatment facilities where it is treated before being discharged into a waterbody.  Problems can arise during heavy rainfalls, as treatment facilities are not equipped to handle the increased volume of wastewater and stormwater runoff.  During CSO events, wastewater and stormwater bypass the treatment facility and are released, untreated, directly into the waterbody. 

Municipal stormwater discharges are regulated under Clean Water Act (“CWA”) Section 402(p), 33 U.S.C. § 1342(p) and 40 CFR § 122.26(a)(3), and by DEC pursuant to its delegated CWA authority.   Under the terms of a 2005 Consent Order with DEC, DEP is required to reduce water quality impairment caused by CSOs.  The new agreement would amend that Order by including new, and more cost-effective, “green infrastructure” compliance options, such as blue and green roofs to slow water from draining too quickly, porous pavement that infiltrates stormwater, the planting of tree pits and streetside swales, and increased use of rain barrels. All of these green infrastructure initiatives are designed to reduce stormwater runoff in order to decrease the volume entering the combined sewer system during a heavy rainfall.  Under the revised agreement, the City also agreed to fund $5.15 million in Environmental Benefits Projects, including provision of additional grants for green instrastructure projects on private property.

DEP has estimated that it will invest $187 million in green infrastructure projects by 2015 in an effort to meet its first milestone for reductions in stormwater entering the combined sewer system.  If DEP fails to achieve its 2015 milestone, it would be required to submit a contingency plan and could face penalties under the Consent Order. 

DEC and DEP will hold a public meeting to discuss the CSO Consent Order modification on November 9, 2011 starting at 6:00 pm at the DEC Region 2, Annex, 11-15 47th Avenue, Long Island City, NY 11101.

October 17, 2011

White House selects Tappan Zee Hudson River Crossing Project for expedited environmental review

By: Adam Stolorow — Filed under: Announcements, Environmental Impact Review, Transportation — Posted at 8:30 pm

Last week, the White House announced the selection of New York’s Tappan Zee Bridge and 13 other priority infrastructure projects for expedited federal permitting and environmental review.  Sive, Paget & Riesel is serving as special environmental counsel on the Tappan Zee Hudson River Crossing Project, which is evaluating the proposed replacement of the Tappan Zee Bridge.

According to the White House, the projects were chosen because they are “high priority infrastructure projects that will create a significant number of jobs, have already identified necessary funding, and … the significant steps remaining before construction are within the control and jurisdiction of the federal government and can be completed within 18 months.”  The announcement follows an August 2011 Presidential Memorandum directing federal agencies, including the Department of Transportation, to identify proposals for expedited and coordinated environmental review.

By improving coordination among federal agencies, reducing duplicative review and allowing reviews to be done concurrently, the White House expects to reduce the permitting process for the Tappan Zee Bridge by two and a half years.  The Presidential Memorandum also calls for progress on these 14 projects to be tracked on a central website, which will provide information on outstanding government approvals and anticipated completion dates.

The Tappan Zee Bridge was built in 1950, and it costs the state $100 million annually for  upkeep and repair.  New York Governor Andrew M. Cuomo called the recent announcement “a shot in the arm for the [Tappan Zee Hudson River Crossing] project and a major step forward to restoring this key piece of infrastructure and putting tens of thousands of New Yorkers back to work.”  The project is currently being reviewed under the National Environmental Policy Act, and construction could begin as soon as 2013.

October 5, 2011

EPA Releases Final Human Health Assessment for TCE

By: Ed Roggenkamp — Filed under: Brownfield Cleanup, CERCLA/Superfund, Emerging Issues — Posted at 12:18 pm

On September 28, 2011, EPA released its Final Human Health Assessment for trichloroethylene (“TCE”).  EPA found “convincing evidence” of a causal link between TCE exposure and kidney cancer, and a strong link between TCE exposure and non-Hodgkin’s lymphoma, as well as some evidence of association between TCE exposure and other cancers.

TCE was used extensively as a degreaser and a solvent, and is one of the most prevalent contaminants in the United States.  It is found in soil and groundwater at numerous Superfund sites, and its presence has led to the closure of water supply wells around the country, including on Long Island.  TCE also can vaporize into the air when it is present in soil or groundwater. In some areas, this has led to the presence of TCE in indoor air of buildings overlying TCE-contamination; so-called “vapor intrusion”.

EPA has indicated that it will take its Health Assessment into account in the following areas:

1. Establishing cleanup methods at Superfund sites where TCE has been identified as a contaminant;

2. Understanding the risk from vapor intrusion as TCE vapors move from contaminated groundwater and soil into the indoor air of overlying buildings;

3. Revising EPA’s Maximum Contaminant Level for TCE in drinking water; [and]

4. Developing appropriate regulatory standards limiting the atmospheric emissions of TCE – a hazardous air pollutant under the Clean Air Act.

It remains to be seen whether EPA’s determination will impact the judgments of state regulators, including those in New York.  For more information on issues arising at TCE-contaminated sites, contact Christine Leas or David Yudelson.