May 6, 2013
On April 16, the United States Environmental Protection Agency (“EPA”) took a significant step towards finalizing its long-pending guidance on the evaluation and response to vapor intrusion from contaminated soil and groundwater, releasing an updated draft of the guidance for public comment. The guidance, which EPA first released in draft form in 2002, is anticipated to have significant impacts for the owners, operators, and potential purchasers of sites contaminated by solvents, petroleum, and other volatile organic compounds (“VOCs”), as well as any parties responsible for such contamination.
What sites are at risk of vapor intrusion?
Vapor intrusion, the migration of hazardous vapor from contaminated soil or groundwater into buildings, is of greatest concern at sites contaminated by VOCs , such as the chlorinated solvents perchloroethylene (“PCE” or “Perc”) and trichloroethylene (“TCE”), as well gasoline constituents. Vapor can enter a building because of cracks in the foundation, openings around pipes or electrical wires, and heating and ventilation systems that decrease indoor air pressure, creating conditions that draw in vapor.
How have environmental regulators addressed vapor intrusion in the past?
In response to new evidence of human health risks and potential explosion hazards from vapor intrusion, EPA released draft vapor intrusion guidance under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) and Resource Recovery and Conservation Act (“RCRA”) in 2002. At the time, EPA stated that “as the state-of-the-science improves, this guidance will be revised as appropriate.”
Over the following decade, however, the draft guidance was neither finalized nor revised, and individual states began to fill the regulatory gaps left by EPA. New York’s Department of Environmental Conservation (“DEC”) and Department of Health issued their own vapor intrusion guidance, and DEC began a formal re-evaluation of hundreds of contaminated sites – many of which had already been remediated and delisted – for new vapor risks. In December 2009, EPA’s Inspector General reported that the absence of final EPA guidance had “[impeded] EPA’s efforts to protect human health at sites where vapor intrusion risks may occur,” and urged EPA to finalize its 2002 draft.
What changes did EPA propose in its revised vapor intrusion guidance?
In response to the Inspector General report, last month EPA released a pre-publication draft of its final vapor intrusion guidance for public review and comment. The updated document incorporates a number of revisions from the 2002 draft, including:
- A new, online calculator for determining generic and site-specific screening levels –contaminant concentrations where vapor intrusion is believed to present risk and additional investigation or mitigation is warranted;
- New recommendations for preemptive mitigation and early action at certain sites before a full vapor intrusion analysis is complete;
- New guidance on the use of deed restrictions and other institutional controls to restrict land uses or activities that could otherwise result in unacceptable exposure to the vapor intrusion pathway
- A separate guidance document addressing petroleum vapor intrusion from underground storage tanks, which was not covered in EPA’s 2002 guidance.
Who is likely to be impacted by EPA’s new guidance?
EPA’s guidance is specifically addressed to sites being evaluated pursuant to CERCLA and RCRA, and it is expected to influence the scope of remedial investigations, risk assessments, and remedy selection at such sites. Moreover, because many CERCLA sites where remediation is complete must undergo five-year reviews for remedial effectiveness, consideration of vapor intrusion could reveal new public health risks and trigger additional mitigation requirements.
The guidance will also have impacts extending beyond CERCLA and RCRA. Vapor intrusion is an increasingly common topic in environmental due diligence for real estate transactions, and Phase I Environmental Site Investigations often analyze possible vapor intrusion pathways. EPA’s new screening levels and recommended mitigation measures are likely to inform negotiating positions and risk allocation at sites where vapor intrusion is suspected. Vapor intrusion could also give rise to toxic tort liability, with plaintiffs relying upon EPA guidance and other regulatory standards to establish a violation of the defendant’s standard of care. Finally, because vapor intrusion may impose new costs at previously-remediated sites, the guidance could lead more property owners to pursue “reopener” environmental insurance policies covering expenses incurred after a “No Further Action” or “Construction Complete” letter has been issued by state or federal environmental regulators.
How can I submit comments on EPA’s new guidance?
Comments on EPA’s revised vapor intrusion guidance may be submitted online at http://www.regulations.gov/#!docketDetail;D=EPA-HQ-RCRA-2002-0033 through May 24, 2013.
For more information about EPA’s guidance or other issues relating to vapor intrusion, contact Christine Leas or Jonathan Kalmuss-Katz.
January 23, 2013
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
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.
December 17, 2012
The availability of Superfund defenses to tenants of contaminated properties is often uncertain, raising the potential of lessee liability and impeding the redevelopment and reuse of contaminated lands. In an attempt to ameliorate this problem and provide assurances to responsible tenants, EPA recently revised and expanded its guidance clarifying when tenants can make use of one of the central liability protections under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), the Bona Fide Prospective Purchaser (“BFPP”) defense.
The BFPP defense provides that a party is not liable under CERCLA if it can demonstrate that it has made all appropriate inquiries into the possibility of contamination at the site, has acted in good faith, and has met various other requirements. As the definition of BFPP under CERCLA refers to both qualifying purchasers and “tenants of such [purchasers],” EPA has previously stated that where a landlord qualifies for BFPP status, the tenant automatically qualifies as well. If the landlord loses BFPP status through no fault of the tenant, EPA has indicated it will treat the tenant as a BFPP if the tenant himself meets all the requirements for BFPP status other than the requirement for all appropriate inquiries.
The new guidance goes on to provide that if the landlord does not qualify for the BFPP defense, a tenant can still qualify if he meets the requirements for BFPP status. However, it is important to note that the BFPP defense is only available to a tenant in these circumstances if the lease was executed after January 11, 2002. This date requirement is derived from the CERCLA statute, which provides that BFPP status is available to persons who “acquire[d] ownership” of a facility after January 11, 2002.
In addition, the guidance indicates that EPA will, in appropriate circumstances, issue comfort letters or prospective lessee agreements in order to clarify the nature of a tenant’s potential liability. EPA has explained that the guidance is intended to complement a broader EPA initiative to facilitate the development of renewable energy on contaminated lands, and has released se several sample comfort letters for renewable projects. However, this guidance is applicable much more broadly, as it provides useful direction for managing the environmental liability of tenants of contaminated lands in general.
October 17, 2012
On October 10, 2012, the Lightstone Group (“Lightstone”) received conditional approval from Community Board 6 for its proposal to construct 700 apartments, community facilities, commercial space and a waterfront front esplanade along the Gowanus Canal. Sive, Paget & Riesel is serving as environmental counsel for Lightstone’s redevelopment project, which will occupy two city blocks to the west of the Canal.
The key environmental issues were the environmental remediation of the Site, the Site’s relationship to the Gowanus Canal Superfund Site, reconstruction of the historic bulkhead, planning for projected sea level rise, and the avoidance of significant adverse impacts on combined sewer overflows into the Canal.
David Yudelson, a partner at Sive Paget & Riesel, has been working cooperatively with federal, state and local agencies to address these issues. In addition, Mr. Yudelson has been working with the United States Environmental Protection Agency (“EPA”) on an agreement to dovetail the proposed redevelopment with the forthcoming Gowanus Canal Superfund remedy, which EPA is anticipated to propose over the coming months.
Mr. Yudelson and Sive, Paget & Riesel have been representing a number of prospective purchasers, owners, developers respecting these issues on other properties on the Gowanus Canal since 1996, including Gowanus Green, Toll Brothers, Woodenbridge LLC, Whole Foods, and MCIZ. The Firm is also representing potentially responsible parties with respect to the Superfund cleanup of the Canal. For further information, please contact David Yudelson at email@example.com or 917-295-6449.
January 11, 2012
On January 3, 2012, the Environmental Protection Agency (“EPA”) released its Draft Feasibility Study for the Gowanus Canal, proposing a series of options for remediating the 1.8-mile long Brooklyn Superfund site. All of the remedial options, aside from a mandatory “no action” alternative, involve a combination of dredging the Canal’s sediment and reducing external sources of contamination, including sewage discharges from Combined Sewer Overflows (“CSOs”).
The EPA listed the Gowanus Canal on the Superfund National Priorities List in March 2010 and released a Remedial Investigation (“RI”) in early 2011 that reported elevated levels of polycyclic aromatic hydrocarbons (“PAHs”), polychlorinated biphenyls (“PCBs”) and metals. Parts of the environmental investigation of the areas surrounding the Canal were performed by National Grid and New York City under Administrative Orders on Consent with EPA.
The Draft Feasibility Study proposes dredging, treating and disposing approximately 588,000 cubic yards from the Canal, at a projected cost of $351 million to $456 million. EPA expects to release a Proposed Plan for its preferred remedy sometime in 2012.
In addition to assessing the dredging of the Canal, the Draft Feasibility Study states that “upland source controls,” including controls on CSOs and stormwater discharges, “need to be coordinated and implemented in concert with the selected sediment remedy[.]” According to press reports, the New York City Department of Environmental Protection (“DEP”) expressed concerns about EPA’s CSO control plans, stating that the “primary sources [of canal contamination] are the former industrial plants on the canal, and not ongoing sewer overflows.”
EPA is accepting public comment on the Draft Feasibility Study and has tentatively scheduled a meeting for January 24, 2012, 7:00 p.m., at 330 Smith St., Brooklyn, to discuss the EPA’s plans. For more information on the Gowanus Canal Superfund Site, contact David Yudelson or Michael Bogin.
December 16, 2011
In a 5-2 decision issued on December 15, 2011, New York’s highest court upheld Department of Environmental Conservation (“DEC”) regulations authorizing the cleanup of state Superfund sites to “pre-disposal conditions, to the extent feasible.” The ruling also affirms that DEC can and will consider technical feasibility and cost-effectiveness, as well as the intended use of a subject property, when setting cleanup requirements at approximately 950 contaminated sites in New York State.
The New York State Superfund Coalition (the “Coalition”), a group consisting of owners of inactive hazardous waste disposal sites, challenged DEC’s regulations as exceeding the authority derived from the state Superfund law, which calls for the “complete cleanup” of sites through the elimination of the “significant threat” posed by hazardous wastes. The Coalition argued that the regulations’ reference to “pre-disposal conditions” went beyond this statutory authority, and allowed DEC to order the removal of “every last molecule” of contamination and to return sites to “pre-Columbian” conditions.
The Court of Appeals rejected this claim, stressing that the stated goal of a “complete cleanup” is “aspirational” because that goal “can be constrained by technological feasibility, cost-effectiveness, and procedural due process, among other things.”
Before initiating a remedial investigation at a state Superfund Site, DEC must first determine that site presents a “significant threat” to public health or the environment. In his dissent from the Court of Appeals’ decision, Judge Eugene Pigott wrote: “[I]t is clear from the statutory language that the Legislature intended to limit the reach of the remedial program to the ‘elimination of the significant threat’ … [and that] DEC’s interpretation of [this provision] goes beyond what any competent Legislature would permit.”
Both the majority opinion and the dissent, however, emphasize that DEC cannot make arbitrary or draconian remedial decisions without such decisions being subject to challenge under the rules. DEC has recognized in practice and in its regulations that it may not be feasible to return industrial sites to a state of nature given the complexity of issues presented by such sites, and that technical and economic feasibility are, therefore, appropriate considerations under the Superfund scheme. The Court of Appeals found that the challenged regulations were consistent with DEC’s current practice of making remedial decisions that involve less than complete removal, provided that the remedial action protects public health and the environment.
For more information on the remediation of inactive hazardous waste sites in New York, contact Mark Chertok, Michael Bogin, or Jennifer Coghlan.
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