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January 25, 2013

Daniel Riesel and Pamela Esterman Chair ALI CLE Environmental Law Course

By: SPR — Filed under: Announcements — Posted at 2:07 pm

SPR principals Daniel Riesel and Pamela Esterman are co-chairs of the upcoming 43rd annual Environmental Law Course to be held on February 7-8, 2013 in Washington, DC. The course, which is co-sponsored by ALI CLE and the Environmental Law Institute, features advanced-level presentations by senior public officials, distinguished law professors, seasoned private practitioners, and experienced public interest advocates. This conference will feature Professor Richard Lazarus on the Supreme Court’s environmental docket and John Cruden and Juliet Eilperin on environmental issues in the post-election administration. The conference will also include panels on legislative initiatives, regulatory changes, and recent judicial precedent concerning air, water, hazardous materials, endangered species, wetlands, public lands, environmental permitting, international environmental law, and environmental justice. Panels on setting environmental standards, environmental enforcement, the environmental regulation of energy, and ethics for environmental lawyers will also be presented. For those unable to attend the live conference in Washington, D.C., this program is also available via video webcast. For more detailed information, please visit the course website.

January 23, 2013

EPA Releases New Vapor Intrusion Guidance; Additional Developments Anticipated in 2013

By: Jonathan Kalmuss-Katz — Filed under: CERCLA/Superfund, Emerging Issues — Posted at 10:03 am

The United States Environmental Protection Agency (“EPA”) recently finalized the first of several pending guidance documents and regulations governing the evaluation and mitigation of vapor intrusion at contaminated sites, a growing area of focus that has thus far been regulated primarily on the state level.  EPA’s new guidance requires regional EPA offices to address vapor intrusion risks during the five-year reviews for most completed Superfund cleanups.

Vapor intrusion, the migration of hazardous vapor from contaminated soil or groundwater into overlying buildings, is of greatest concern at sites contaminated by volatile organic compounds (“VOCs”), such as chlorinated solvents perchloroethylene (“PCE” or “Perc”) and trichloroethylene (“TCE”), as well as several non-chlorinated gasoline components.  In 2002, EPA issued draft guidance governing the investigation of vapor intrusion at Resource Recovery and Conservation Act (“RCRA”) corrective action, Superfund, and Brownfield sites, but it has yet to finalize that document.  The 2002 Draft Guidance did not  cover vapor intrusion from petroleum releases at underground storage tank (“UST”) sites, and a recent scientific analysis for EPA concluded that “screening for [petroleum vapor intrusion, or “PVI”] using the same methodology for chlorinated hydrocarbons is overly conservative; a different approach is needed for PVI.”

EPA’s latest guidance covers only Superfund sites where the selected remedy leaves residual amounts of hazardous substances at concentrations that do not allow for unlimited use and unrestricted exposure, thus requiring five-year reviews of remedial protectiveness.  As part of that five-year review process under the federal Superfund law, EPA plans to gather data on existing and potential vapor intrusion pathways, assess the protectiveness of the selected remedy in light of any such pathways, and “if issues are identified that may prevent the response action from being protective, now or in the future … [to document] these issues and the follow-up recommendations and actions … in the five-year review report.”  This analysis could result in the “re-opening” of longstanding Superfund remedies to address vapor intrusion, similar to a re-evaluation process that New York State initiated in 2006 at chlorinated VOC contaminated sites overseen by the state Department of Environmental Conservation (“DEC”).

While EPA’s recent guidance provides a series of questions for use in evaluating potential vapor intrusion risks, it does not detail screening and testing procedures for sites where vapor intrusion is suspected.  Those topics were addressed in EPA’s 2002 Draft Guidance, which remains under review and is anticipated to be finalized in 2013.  EPA’s draft did not supersede state vapor intrusion guidance, which could be incorporated into Superfund remedial plans if the state where the site is located sets more stringent standards than EPA.  It is also not yet clear how EPA’s vapor intrusion screening levels will interact with the Occupational Safety and Health Administration’s Permissive Exposure Levels (“PELs”), which contain a separate set of standards for indoor air contamination at workplace facilities.  

Finally, last year EPA solicited comment on potential rules that would account for vapor intrusion concerns in the ranking and listing of Superfund National Priorities List (“NPL”) sites, although the agency has yet to formally propose those regulations. 

Owners and operators of drycleaners, gas stations, and other properties potentially impacted by VOCs, as well as anyone considering the purchase or sale of such sites, are the most likely be affected by the forthcoming vapor intrusion developments.  For more information on vapor intrusion analysis and regulation, on both the state and federal level, please contact Christine Leas or Jonathan Kalmuss-Katz.

January 2, 2013

EPA Proposes Remedial Plan for Gowanus Canal Superfund Site

By: Jonathan Kalmuss-Katz — Filed under: CERCLA/Superfund, New York City Environmental Law — Posted at 6:43 pm

On December 28, 2012, the Environmental Protection Agency (“EPA”) released its Proposed Remedial Action Plan (“Proposed Plan”) for the Gowanus Canal Superfund Site, calling for up to $500 million in sampling, dredging, and other remedial activities over the next seven years.  The Proposed Plan, which is currently open for public comment and is expected to be finalized in late 2013, is based upon more than two years of intensive environmental investigation at the 1.8 mile-long, Brooklyn Superfund site.

After analyzing a range of remedial options, EPA proposed dredging approximately 588,000 cubic yards of soft sediment that has accumulated in the Canal, stabilizing pockets of coal tar contamination in the native sediment below prevent their upward migration, and installing a multi-layer cap to avoid recontamination of the Canal from the native sediment.  EPA envisions the off-site treatment and beneficial re-use of the dredged sediment (e.g., as landfill cover), although it is also evaluating the possibility of a Confined Disposal Facility (“CDF”) where treated sediment could be disposed in areas surrounding the Canal.   

In addition to dredging and capping, EPA’s preferred remedy includes a variety of measures designed to control ongoing sources of contamination.  Three former manufactured gas plants responsible for much of the historic contamination in the Canal are currently being remediated by National Grid under oversight of the New York Department of Environmental Conservation, with measures in place to prevent the continued migration of soil or groundwater contamination.  In order to prevent the overflow of untreated sewage during storm events, EPA has called for the construction of large retention tanks that would capture and hold releases from two Combined Sewer Overflow (“CSO”) outfalls until the sewage could be pumped to a treatment plan, at a cost of approximately $78 million.  New York City (which is responsible for the CSO controls) has opposed the Gowanus Superfund listing and voiced concerns about the regulation of CSOs through the Superfund program.  The New York State Department of Environmental Conservation (“DEC”), on the other hand, voiced support for EPA’s CSO performance goals in a recent letter to EPA and “concur[ed] with the alternative recommended” in the Proposed Plan.   

EPA anticipates that the finalization of its Proposed Plan and development of a more specific Remedial Design will take two years, followed by five years of remediation at total cost of $466.7-$503.7 million.  While EPA is expected to expend the funds needed in the near term, the agency will seek to recoup those costs and secure remedial funding commitments from potentially responsible parties (“PRPs”) who are or previously were located in the vicinity of the Canal.  EPA has notified 31 companies and other government entities it believes to be PRPs, although their ultimate liability and equitable share of the cleanup costs (if any) has yet to be determined.

EPA is accepting public comment on its Proposed Plan through March 28, 2013.  For more information on the Gowanus Canal Superfund Site, contact Daniel Riesel or David Yudelson.

Update: A prior version of this post misidentified the author of a letter to EPA, which was sent by the New York State Department of Environmental Conservation, not the New York City Department of Environmental Protection.