November 27, 2013
Last week, the Global Alliance on Health and Pollution (“GAHP”) released a report examining laws governing the remediation of contaminated properties in seven Latin America countries, as well as the United States, and identifying best practices. The report, entitled “Regulatory Best Practices for Remediation of Legacy Toxic Contamination,” was produced by the Cyrus R. Vance Center for International Justice. The Blacksmith Institute, a nonprofit focused on global toxic pollution issues which serves as the secretariat for the GAHP, also assisted in the production of the report.
SPR attorneys Jeff Gracer and Devin McDougall served as United States Coordinating Counsel for the report.
The six recommendations identified in the report are:
1. Create clear numeric guidelines for establishing whether a site is contaminated. Although contaminated sites are often defined as sites where pollution is present at levels that may present a threat to human health and the environment, it is useful to enact regulations that specifically define what those levels are, so that sites can be readily identified as candidates for further investigation and remediation.
2. Use commercial events to identify contaminated sites. Evaluation of historic contamination can be required when project proponents are applying for permits, and when industrial facilities are being bought and sold or decommissioned. These triggers will result in the identification of contaminated sites at a time when funding for investigation and remediation is most likely to be available.
3. Create incentives for voluntary remediation. Laws and regulations should make it easy for private parties to come forward on a voluntary basis to address legacy contamination. These incentives can include resolution of existing liability for site owners, liability exemptions for prospective purchasers, tax exemptions and tax credits, remediation funding grants, and other governmental incentives.
4. Create a clear and efficient remediation process. One of the most significant barriers to environmental cleanup is the uncertainty surrounding applicable cleanup standards, the complexity of the process, and the involvement of multiple governmental agencies with overlapping jurisdiction. Experience has shown that published cleanup standards, a simple process for engagement with the government, and clear delineations of which agency has jurisdiction over a particular cleanup will encourage increased private sector participation.
5. Provide meaningful opportunities for public review and comment. Environmental remediation regulations and practices often benefit from input from members of the business community who will be called upon to effectuate cleanups and also by members of communities who live in close proximity to contaminated sites. Site remediation plans may also be more pragmatic and tailored to actual risk if they are subject to prior public review and comment.
6. Develop effective mechanisms to address abandoned sites. Sites that are not subject to commercial activity or voluntary remediation can be the most troublesome from a governmental perspective. Governments should consider creating a registry of such sites so that they can be identified for investigation and evaluated as candidates for future remediation. Sites should be prioritized for clean-up based on a clear methodology established by the government to address those that pose the greatest risk first. Government funding can be made available to remediate such sites through a combination of lawsuits against former owners and operators or, if no responsible party can be reached, through other mechanism for funding in appropriate cases. Future “orphan” sites can be avoided by requiring environmentally sensitive operations to purchase environmental insurance policies.
For more information about the development of remediation policies in Latin America, please contact Jeff Gracer.
November 15, 2013
The Division of Environmental Remediation of the New York State Department of Environmental Conservation (DEC) has released its 2012-2013 Annual Report, noting key developments of the past State Fiscal Year (April 1, 2012 – March 31, 2013).
As reflected in the Annual Report, DEC’s environmental remediation programs affect many businesses across the state. For example, in the 2012-2013 State Fiscal Year, there were more than 18,000 actions that required intervention by the Division of Environmental Remediation; additionally, DEC had jurisdiction over 109,000 petroleum bulk storage tanks and 4,600 chemical bulk storage tanks.
Key developments discussed in the annual report include the following:
Brownfield Cleanup Program:
The past year saw an uptick in the number of projects approved to enter the state Brownfield Cleanup Program (BCP). In the past State Fiscal Year, 45 projects were approved, with 29% of these projects located in New York City. In prior reporting cycles since 2007, that number has ranged from 28-34. The increase in approved applications likely reflects the race to qualify for tax credits under the BCP, which are being phased out and will not be available for parties that do not receive their BCP Certificate of Completion by the end of 2015.
State Superfund Program
DEC’s authorization to bond new funds for the State Superfund Program has expired. DEC can use appropriations from prior years and cost recoveries to support the program. DEC received $12.1 million in cost recovery revenue in the past State Fiscal Year.
In the past State Fiscal Year, 13 “Class 2” sites, which are deemed to pose a significant threat to human health and/or the environment and require action, were added to State’s Inactive Hazardous Waste Site Registry. This number represents a decline from prior years; there had been at least 19 new Class 2 listings annually from the 2006-2007 through 2011-2012 State Fiscal Years.
Environmental Restoration Program
Funding for DEC’s Environmental Restoration Program, which reimburses municipalities for brownfield cleanup and redevelopment, has been revived: “Under the Cuomo administration’s New York Works capital infrastructure program, the 2013/2014 New York State Budget included $12 million which DER will use to complete cleanup of projects where funding had previously not been available.” New applicants to the program had not been approved since 2008 due to lack of funding.
Bulk Storage Program:
Revisions to the state’s Petroleum Bulk Storage and Chemical Bulk Storage regulations are under way, pursuant to a two-phase public participation process. In Phase One, initial informal draft revisions reflecting changes in federal law were released for public comment. Phase Two comprises the release of formal drafts and the acceptance of public comments thereon; the formal drafts would account for further changes in state and federal law and are expected to be issued in the 2014-2015 State Fiscal Year.
Liquefied Natural Gas:
DEC has proposed new regulations for the siting, storage and transport of liquefied natural gas in New York State. The agency expects to finalize and promulgate the regulations in the present State Fiscal Year. Public comments on the proposed regulations are being accepted until December 4, 2013.
Draft revisions to DEC’s regulations on the prevention and control of radioactive material are expected to be released in the present State Fiscal Year. New regulations establishing cleanup criteria for remediation of radioactive contaminated sites are also expected in the present State Fiscal Year.
Vapor Intrusion Initiative:
DEC identified 421 sites to be evaluated for vapor intrusion, where a remedial plan had been approved before vapor intrusion was recognized as a major concern. As of March 2013, 318 of these sites have been evaluated and 108 sites are undergoing such evaluation.
Former Manufactured Gas Plants Initiative:
As of March 2013, DEC has issued or entered into cleanup orders or agreements for 213 of 221 identified former manufactured gas plant facilities.
For more information on the Division of Environmental Remediation’s programs, please contact Michael Lesser.
November 8, 2013
On November 6, 2013, ASTM released its updated E1527-13 Standard for Environmental Site Assessments: Phase I Environmental Site Assessment Process, a standard that EPA has identified in a proposed rule as a means of satisfying the definition of “all appropriate inquiries” (AAI) under CERCLA, as needed to establish certain defenses to liability. According to ASTM, the standard was revised to clarify language where there was previously inconsistency in interpretation of the prior version of the standard (ASTM E1527-05) and to strengthen Phase I reports prepared by environmental professionals. Major changes from the previous version of the standard, released in 2005, include:
- Changes in the definition of Recognized Environmental Condition (REC): The new standard includes a simplified definition of REC, a revised definition of historic recognized environmental condition (HREC) and a new term, controlled recognized environmental condition (CREC)
- Additional requirements for review of public agency records, including the requirement that additional information sources (such as Sanborn maps and tax files) be reviewed for properties with historical industrial or manufacturing uses
- Vapor intrusion: the new standard adds a definition of “migrate/migration” which includes the movement of vapor in the subsurface, and clarifies that vapor migration/intrusion does not fall under the rubric of indoor air quality (which, like asbestos and radon, is outside the scope of a Phase I assessment).
The new standard does not resolve certain state- and locality- specific questions raised by record review requirements, including whether certain types of environmental records are considered “readily ascertainable” and thus part of a Phase I review. For instance, in New Jersey and Connecticut, records related to the environmental remediation of a property were previously publicly available but are now held by private consultants (“licensed site remediation professionals” (LSRPs) in New Jersey and “licensed environmental professionals” (LEPs) in Connecticut).
In contrast, the New York State Department of Environmental Conservation announced this week that it would post online its information related to 1,950 remedial sites with non-registry “P,” “PR,” and “N” designations, making it easier for New York environmental consultants conducting Phase I assessments to quickly access these records. (More information about those types of site designations can be found here.) Such state-to-state variations in agency record review highlight the importance of having AAI review conducted by an environmental professional with a detailed understanding of the local environmental regulatory regime for a given property.
The new E1527-13 standard is part of a continuum of evolving environmental due diligence practice. The new standard is an important milestone, but there are likely to be important changes and interpretations as the standard begins to be implemented in practice. For more information on the ASTM standard, AAI, Phase I reports or environmental due diligence, please contact Christine Leas.
November 6, 2013
On October 24, 2013, the Occupational Safety and Health Administration (“OSHA”) announced the availability of a new annotated table of Permissible Exposure Limits (“PELs”) for chemicals in the workplace, along with alternative standards that “may serve to better protect workers” than the existing federal limits. OSHA has, in the past, issued regulations establishing mandatory PELs for various chemicals, but most of these regulatory standards have not been updated since they were first issued decades ago. According to its October 24 press release, OSHA now believes that many of the regulatory PELs are out of date and do not sufficiently protect employee health.
Rather than issue new regulations, OSHA is recommending that employers consider using the alternative PELs presented in the new annotated PEL tables. These tables present, side by side, OSHA’s existing regulatory PEL, the PEL established by the California Division of Occupational Safety and Health (“Cal/OSHA“), the Recommended Exposure Limits (“RELs”) established by the National Institute for Occupational Safety and Health (“NIOSH“), and the Threshold Limit Values (“TLVs”) and Biological Exposure Indices (“BEIs”) established by the American Conference of Governmental Industrial Hygienists (“ACGIH“).
The alternative standards are generally more stringent than OSHA’s PELs. For example, the OSHA PEL for perchloroethylene (PCE) is 100 parts per million, while the Cal/OSHA PEL and the ACGIH TLV for PCE are both 25 parts per million.
Even though the alternative PELs are not federally enforceable, they may encourage state regulators to adopt the stricter exposure limits. Even without official state adoption of the stricter exposure limits, OSHA’s endorsement of those limits could encourage regulators to press for more stringent cleanup standards at contaminated sites, and could broaden the scope of conditions recognized as problematic in Phase I and Phase II due diligence reviews. OSHA’s recognition of the stricter exposure limits could also increase pressure on employers to adopt stricter voluntary standards for chemical exposure in the workplace. As recently discussed on our blog, similar consequences could follow from other agencies’ actions with respect to chemical exposure, such as the New York State Department of Health’s recently-issued guidance revising the maximum recommended concentration of PCE in indoor air to 30 mcg/m3, or 4.4 parts per billion.
OSHA’s new annotated PEL tables are accessible here. For more information, contact Christine Leas.
October 4, 2013
On Monday, EPA announced the Record of Decision which outlines the final plan to clean up the Gowanus Canal Superfund site in Brooklyn, New York. EPA, in its press release, called the site “one of the nation’s most seriously contaminated bodies of water.” The canal was classified a “Superfund site” and added to the EPA’s National Priorities List in 2010. EPA proposed a remedial plan for the cleanup in December 2012, which was in large part adopted as the final remedy for the site in Monday’s Record of Decision.
Key components of the cleanup, which is projected to cost $506 million, include:
- Removing approximately 600,000 cubic yards of sediment by dredging;
- Capping dredged areas;
- Stabilizing deep sediment containing coal tar through mixing with other materials prior to capping; and
- Reducing flow from combined sewer overflows (CSOs) by 58-74%, by constructing retention tanks near two outfalls and adding green infrastructure.
The cleanup has been divided into three segments which correspond to the upper, middle and lower portions of the canal, with the majority of the cost associated with the first two segments. Dredged sediments contaminated with coal tar will be thermally treated to remove organic contaminants and then put to beneficial reuse where possible. Less contaminated sediment will be stabilized and reused where possible as well.
The EPA stressed that the cleanup will be funded by those parties who are legally responsible for the contamination. The EPA has already identified a number of potentially responsible parties, including private corporations, the City of New York and other federal government entities.
For more information on the Gowanus Canal Superfund Site, contact Daniel Riesel or David Yudelson.
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.
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