EnviroNotes

october 2008

New ASTM Standard Aids Assessment of Vapor Intrusion Risks
IDEM Proposes Emergency Rules to Fill the Void Left By CAIR’s Vacation
U.S. EPA Misses Deadlines to Propose Greenhouse Gas Reporting Rule
New Short-Form Annual Compliance Certification Eases Administrative Burden for Air Permit Holders
IDEM Moving Ahead With RISC Rulemaking

New ASTM Standard Aids Assessment of Vapor Intrusion Risks

By Andy Bowman, Chair, Environmental Law Department, Bingham McHale LLP

Over the last few years the Indiana Department of Environmental Management (“IDEM”) and U.S. EPA have given increased attention to the risks posed by potential exposure to volatile organic compounds (“VOC”) through migration of contaminants from subsurface soils or groundwater into residences and commercial and industrial buildings. This potential exposure pathway is commonly referred to as “vapor intrusion.” Vapor intrusion is a potential concern for residences or buildings located near soil or groundwater contaminated with VOC, such as chlorinated compounds used for dry cleaning or as industrial solvents, or petroleum.

In 2006 the IDEM released a draft pilot program guidance for assessing vapor intrusion risks. The IDEM’s guidance provides a sequential method to determine if a complete exposure pathway is present from the contamination source (soil or groundwater) through soil gas to a potential receptor in a home or building. If contamination is found to be present above screening levels within a specified distance from a building, the guidance recommends collection of sub-slab vapor or soil gas samples. If contaminants in soil gas samples exceed screening levels or soil or groundwater samples exceed screening levels by a certain amount, then indoor air sampling is required. Indoor air sampling is complicated by the presence of VOC from many common household products and other sources unrelated to soil or groundwater contamination as well as by changes in atmospheric conditions and other factors. The IDEM’s guidance is available here. Other states have taken differing approaches. The U.S. EPA has published a draft guidance at 67 Federal Register 71,169 (November 29, 2002).

As regulatory programs have developed screening and assessment procedures for vapor intrusion, businesses, lenders, consultants and others have become more aware of the potential risks and costs associated with vapor intrusion. Because of the increased awareness of potential vapor intrusion risks, there has been a growing interest in evaluating such risks in real estate transactions. Because assessment of indoor air quality is outside the scope of a Phase I environmental site assessments (“ESA”) conducted pursuant to ASTM E1527-05, ASTM International has developed a new, voluntary standard for evaluating vapor intrusion risks at property involved in a real estate transaction with respect to chemical compounds that may migrate into existing or planned buildings from contaminated soil or groundwater at the subject property or in close proximity to the property.

The new ASTM E2600-08 standard is entitled “Standard Practice for Assessment of Vapor Intrusion into Structures on Property Involved in Real Estate Transactions.” The standard establishes a tiered approach for prospective purchasers, lenders, investors and other users to conduct a preliminary screen to identify properties with a low risk of vapor intrusion followed by a more rigorous evaluation where the user desires more information where a higher risk of vapor intrusion may be present. While the standard describes the procedures for a more rigorous evaluation and mitigation approaches, the ASTM standard is geared toward quickly identifying properties that do not present a high risk of vapor intrusion.

The standard is designed to be used as a supplemental scope of work to a Phase I ESA conducted pursuant to ASTM E1527. The first screening level uses information collected during an E1527 Phase I ESA. If potential vapor intrusion conditions are identified during the initial screening, the standard provides for additional screenings which progressively increase the use of site-specific data. The ASTM E2600-08 can be obtained here.

When using the standard, the user should keep in mind that the screening process can be conservative, resulting in a presumption that a potential vapor intrusion condition exists without any supporting data. This may result in either the termination of a transaction or undertaking more expensive and intrusive testing to rebut the initial screening result. If vapor intrusion conditions are suspected, the IDEM’s guidance should be reviewed and a qualified environmental professional consulted. Additionally, users should be aware that a vapor intrusion assessment does not constitute “all appropriate inquiry” under CERCLA.

IDEM Proposes Emergency Rules to Fill the Void Left By CAIR’s Vacation

By Larry Kane, Partner, Environmental Law Department

On July 11, 2008, the D.C. Circuit vacated and remanded EPA's Clean Air Interstate Rule (“CAIR”) as a result of litigation brought by several states and other petitioners. State of North Carolina v. EPA, 531 F.3d 896 (D.C.Cir. 2008). The decision has thrown air quality planning for EPA, state air quality agencies and the electric utility industry into confusion and uncertainty, given the several statutory and regulatory obligations that were to have been met through CAIR. Even environmental advocacy organizations are seeking ways to salvage emissions reductions that would have occurred under CAIR. On September 24, the EPA filed a petition for rehearing with the federal appellate court, asking the court to reconsider its decision to vacate CAIR while it is under remand to EPA. EPA did not question the need for a remand to address certain errors in the rule found by the court.

IDEM’s Commissioner Thomas Easterly advised the State’s Air Pollution Control Board (Air Board) in early October 2008 that CAIR was critical to the following aspects of Indiana’s compliance with Clean Air Act requirements:

• CAIR satisfied the requirement for a SIP to adequately control emissions of NOx and SO2 that are transported to downwind states and may contribute to nonattainment of ozone and fine particulate (PM2.5) air quality standards;
• CAIR served as the backbone of Indiana’s strategy for attainment and maintenance of the ozone and PM2.5 standards;
• The rule provided reasonably available control technology (RACT) for electric generating units located in ozone and fine particle nonattainment areas;
• CAIR served to address best available retrofit technology (BART) controls for emissions from Indiana utility sources that may contribute to regional haze that impact visibility at Class I areas.

At the October Air Board meeting, Commissioner Easterly announced that IDEM will be proposing two Emergency rulemakings to address the CAIR decision:

• One emergency rule would reinstate the NOx SIP Call currently under a sunset provision set by Indiana’s CAIR rule and also would repeal the CAIR ozone season program. In parallel with this action, a rulemaking would be initiated to make the NOx SIP Call reinstatement permanent.
• The second emergency rule would be crafted to establish NOx and SO2 annual allowance budgets for individual generating units at the levels set by Phase I of the vacated CAIR rule and to repeal the annual NOx and SO2 reduction programs of Indiana’s CAIR rule. This second rule would be designed to take effect upon issuance of an order by the D.C. Circuit Court of Appeals making the CAIR vacatur effective. It would also include a termination provision should a more stringent federal rule be subsequently adopted.

Concurrently with the second emergency rule, IDEM plans to propose a permanent rule to supersede the emergency rule for replacement of the CAIR rule with new Phase I and Phase II annual allowance budgets for NOx and SO2, applied to individual generating units. IDEM intends to provide compliance flexibility by allowing source-wide and intrastate system emission averaging for units operated under common ownership and control. Provision may be made for multi-year emissions averaging plans as well. A further option to be explored would be interstate emissions averaging compliance plans that may be established by agreement with air quality agencies of other states.

Interested persons will need to monitor further developments on this issue.

U.S. EPA Misses Deadlines to Propose Greenhouse Gas Reporting Rule

By Matt Gernand, Attorney, Environmental Law Department

In December 2007, Congress buried deep in the $500 billion omnibus budget bill a single paragraph that required the U.S. Environmental Protection Agency to establish a rule that would require mandatory reporting of greenhouse gas emissions in all industry sectors. The Act states:

Of the funds provided in the Environmental Programs and Management account, not less than $3,500,000 shall be provided for activities to develop and publish a draft rule not later than 9 months after the date of enactment of this Act, and a final rule not later than 18 months after the date of enactment of this Act, to require mandatory reporting of greenhouse gas emissions above appropriate thresholds in all sectors of the economy of the United States.
(Consolidated Appropriations Act, 2008, HR 2764 (Public Law No. 110-161)

Under the Act, the U.S. EPA was to propose the rule by September 26, 2008. The U.S. EPA has not proposed the rule, but did issue a statement that it had met with affected groups and stakeholders about the proposed rule and was moving forward with “interagency review.” See, Environment Reporter, Vol. 39 No. 39 pg. 1963 (Oct. 3, 2008). The statement did not provide a timetable for further action on the proposed rule.

This rule would likely be the first step in establishing limits on carbon dioxide and other greenhouse gas emissions from stationary sources. More information on the status of the rulemaking can be found
here.

New Short-Form Annual Compliance Certification Eases Administrative Burden for Air Permit Holders

By Jennifer Thompson, Partner, Environmental Law Department

The Indiana Department of Environmental Management (“IDEM”) presented revisions to its non-rule policy document (“NPD”) AIR-007-NPD-R2, Guidelines for Submittal and Review of Annual Compliance Certifications under the Federally Enforceable State Operating Permit (FESOP) and Part 70 Permit Programs to the Air Pollution Control Board (“APCB”) on October 1, 2008. The revisions to the existing policy include a revised sample Annual Compliance Certification (“ACC”) form which allows sources with Title V operating permits or FESOPs to certify compliance with the terms and conditions of permits through a more streamlined process, requiring a listing of only those specific conditions for which compliance was intermittent during the reporting period, while still certifying compliance with the remainder of permit conditions.

The NPD presented to the APCB included modifications that were made following the public comments period. The changes made by IDEM following the public comment period include: removing instructional language from the definition section; removing the deviation start and end date field from the sample form; additions to the instructions regarding the actual certification; and clarifications regarding reporting previously unreported deviations.

Use of the short form ACC will relieve sources from the burden of listing every condition of their permit in a different format and will allow the IDEM and others to more readily identify any noncompliance the source is reporting. Other U.S. EPA Region V states already utilize short- form ACCs.

Pursuant to Indiana Code § 13-14-1-11.5, Air-007-NPD-R2 will become effective thirty (30) days after presentation to the APCB, or on October 31, 2008.

Air-007-NPD-R2 can be accessed here.

IDEM Moving Ahead With RISC Rulemaking

By E. Ryan Murray, Attorney, Environmental Law Department

On June 11, 2008 the Indiana Department of Environmental Management (“IDEM”) published a First Notice of Comment Period (“June 11, 2008 Notice”) regarding development of new rules concerning environmental assessment, cleanup, and closure of contaminated environmental media (“RISC Rules”). The IDEM indicated that the proposed rules would be based on achieving cleanup at contaminated sites to risk-based closure levels where practicable or, where impracticable, closure of contaminated sites using engineering controls and/or land use restrictions. According to the June 11, 2008 Notice, the IDEM anticipates the final RISC Rules will provide, among other things:

(1) Requirements for environmental site assessments including pre-sampling, site screening, and determinations of nature and extent of contamination.

(2) Risk-based methodology to calculate and apply default and site-specific closure levels.

(3) Criteria to demonstrate impracticability of cleanup to applicable closure levels and selection of remedial alternatives.

(4) Criteria for IDEM approval or denial of proposed remediation plans including a preference for treatment or removal of contaminants to the extent practicable to achieve a permanent remedy over administrative or engineering controls.

(5) Standards for IDEM approval or denial of requests for closure.

(6) Post-closure reporting, monitoring, inspection, certification, maintenance and financial assurance requirements.

The June 11, 2008 Notice sought comments from the public regarding (1) submission of alternative ways to achieve the purpose of the rule, (2) the submission of suggestions for the development of draft rule language, and (3) submission of comments on the fiscal impact of the rulemaking. The first comment period was originally scheduled to close on July 11, 2008 however a Continuation of First Notice of Comment Period was published on August 13, 2008 and extended the deadline for submission of comments regarding the RISC Rules until September 12, 2008. During the original and extended comment periods, the IDEM received written comments from over 20 interested parties. According to IDEM personnel, IDEM technical staff are currently reviewing and responding to public comments received in response to the June 11, 2008 Notice. In addition, IDEM is currently developing draft rule language to be released to an internal workgroup for comment. IDEM then intends to release draft rule language to an external workgroup for comment prior to issuance of a second notice of rule making.

For additional information regarding the RISC Rulemaking process or to obtain periodic updates on development of the RISC rules; contact Lydia Kuykendal, IDEM Rules, Outreach, and Planning Section, Office of Land Quality at (317) 234-5345.

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