Companies that are engaged in renovation activities that have the potential to disturb painted surfaces in pre-1978 structures should evaluate their activities in light of the RRP Rules, a copy of which can be reviewed by clicking here. Renovation is broadly defined as any activity that disturbs painted surfaces and includes most repair, remodeling and maintenance activities, including window replacement.

Painters, plumbers, carpenters and electricians are potentially responsible for adhering to the RRP rules. If your company’s activities involve projects that will disturb lead-based paint in pre-1978 homes, child care facilities, and schools (child-occupied facilities), your company must be certified by the EPA as an approved lead safe certified firm, and it must use certified renovators who are trained by EPA approved training providers. Child- occupied facilities are defined as residential, public or commercial buildings where children under the age of 6 are present on a regular basis.

If work in one of these affected building types will disturb more than 6 square feet of lead-based paint in an interior room or more than 20 square feet of lead-based paint on the exterior of the building, the contractors must use certain lead safe work practices which include:

• containing the work area,
• minimizing dust, and
• cleaning up thoroughly

In addition, prior to performing any such work, a contractor must provide the owners, tenants and child care/child occupied facilities with a copy of EPA’s lead hazard information pamphlet entitled “Renovate Right: Important Lead Hazard Information for Families, Child Care Providers and Schools” . The contractor must keep records showing that it supplied this disclosure form prior to commencing the work. These records should be retained for three years. More information regarding compliance with EPA’s RRP Rule can be obtained by reviewing the EPA’s “Small Entity Compliance Guide to Renovate Right” and EPA’s January 2010 Enforcement Alert pamphlet entitled “Compliance With New Federal Lead Based Paint Requirements”. As can be seen, failure to follow the RRP Rules can result in legal costs and significant fines.

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Introduction

Redevelopment of contaminated land and land adjacent to contaminated sites can be a relatively straightforward process when you work with a good environmental consultant that understands the special risks and concerns a developer faces. However, there is one issue that can get any consultant tied up in knots because of the increasing attention given to it by regulators: vapor intrusion.

What’s the Concern?

Vapor intrusion occurs when certain types of contaminants in the soil or groundwater evaporate (volatilize) and migrate through spaces in the soil into occupied spaces within a building on the property. The type of contaminants that tend to evaporate are called volatile organic compounds (VOCs) and include substances such as benzene, toluene, xylene, acetone, and perchloroethylene (dry cleaning solvent). The scientific studies that regulators rely on suggest that the presence of such VOCs in indoor air can adversely affect the health of building occupants. Because of potential health risks, regulators, especially the EPA, are increasingly focusing their attention on vapor intrusion issues. Therefore, purchasers and redevelopers can be exposed to liability (both regulatory and for personal injuries) if they acquire property with vapor intrusion issues that are not abated. A good consultant should identify such potential risks during the pre-acquisition due diligence process and, depending on site location, the consultant might use one or a combination of the following screening methodologies.

ASTM Assessment

The American Society for Testing and Materials (ASTM) has developed a recommended vapor intrusion standard (E 2600: “Assessment of Vapor Intrusion into Structures on Property Involved in Real Estate Transactions”) which is beginning to be followed by many consultants. ASTM E2600 prescribes a tiered approach to the vapor intrusion risk assessment. The first tier (Tier 1) of the analysis relies solely on documentary evidence. If information shows that there is a contaminated plume or potential plume within 100 feet of a proposed or existing building or property boundary (or within 30 feet for dissolved petroleum hydrocarbons), then a potential vapor intrusion concern (pVIC) is presumed to exist. (The consultant can modify these distances based on site specific conditions such as groundwater flow, depth to groundwater, vapor conduits, etc.). When a pVIC is identified, the consultant moves on to Tier 2 of the analysis, which can include sampling. If sampling is performed as part of Tier 2, the consultant compares the results to determine if any of the contaminants (within the 100 or 30 foot radius) exceed risk-based concentrations (RBCs) established by federal or state policy or site-specific RBCs established by the consultant. If there are any RBC exceedances, then further testing is undertaken during the Tier 3 analysis to confirm the presence of a VIC. If the presence of a VIC is confirmed in Tier 3, the consultant can propose a mitigation strategy using the Standard’s Tier 4 process.

EPA Assessment (Proposed)

On March 17, 2011 the EPA issued draft guidance for evaluating vapor intrusion entitled “Evaluating the Vapor Intrusion to Indoor Air Pathway from Groundwater and Soils” (which can be accessed here). EPA’s goal is to finalize the guidance by November 30, 2012. The guidance will be used at RCRA Corrective Action, CERCLA and Brownfield sites but it will not supersede state guidance. Like the ASTM assessment, the EPA guidance is to be used to determine if there is a potential for an unacceptable risk. While this risk assessment approach is not appropriate at sites where employees are working with hazardous substances similar to those that are contaminating the site, the guidance is intended for use in other situations.

Like the ASTM standard, EPA’s VI guidance relies on a tiered analysis and the first step (Tier 1) is very similar to the first tier of the ASTM standard. In this step, the consultant determines if existing data indicates that VOCs are near (within 100 feet) of occupied buildings. If they are, then the consultant proceeds to the next step (Tier 2) which can include comparison of available indoor air concentrations to generic criteria established by the EPA or the collection of soil gas samples and comparison of that data to the generic criteria. Site specific factors such as depth of the contamination and soil type are also considered. Based on the results of Tier 2, the consultant will then move to Tier 3 to further refine the assessment by collecting site specific data such as collecting indoor air and/or sub-slab air samples. The consultant can also use modeling techniques to factor in variables such as soil type, depth to groundwater, and various building characteristics that can impact indoor air such as type of ventilation, air exchange rates, etc.

Michigan DEQ Assessment

Michigan, under Part 201 of its Natural Resources and Environmental Protection Act (NREPA), has promulgated specific numerical screening criteria for many hazardous substances. The generic criteria that are used to assess vapor intrusion to indoor air for residential and non-residential properties are the groundwater volatilization to indoor air inhalation criteria (GVIIC) and soil volatilization to indoor air inhalation criteria (SVIIC). (These generic criteria would be the RBCs relied on if the consultant uses ASTM E 2600). If soil and groundwater testing identifies an exceedance of the GVIIC or SVIIC criteria on property where buildings are or will be located, then there is a potential risk to indoor air quality. If site-specific factors such as lack of cement or block foundation, shallow groundwater plume, or preferential pathways, the rules preclude reliance on the generic criteria and the consultant must perform a site specific analysis to determine if a vapor intrusion (indoor inhalation) risk is present that must be abated.

To clarify the process set forth in its rules, the Michigan Department of Environmental Quality has prepared draft vapor intrusion guidance (“Guidance Document for the Vapor Intrusion Pathway“) that sets forth the steps that can be taken to evaluate the potential for a vapor intrusion risk. In its current form, the guidance is structured in a 4-step process like ASTM E 2600, however, it uses a 100 foot receptor radius for the preliminary screening area. Step 2 involves the collection of soil-gas data and Step 3 involves the refinement of that data through sampling of indoor air and sub-slab soil gas as well as an evaluation of conditions such as the presence of cracks, utility lines and operational uses of hazardous substances. If a vapor intrusion risk is confirmed, a remediation strategy is developed in Step 4.

As you can see, when consultants encounter a site that may have a vapor intrusion risk there are several ways of approaching the assessment that are similar but at the same time have subtle differences. Although each of the approaches allows consultants to consider site specific factors and the consultant’s professional judgment, a consultant’s ultimate conclusion could be different depending upon the assessment methodology used.

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The SMCRA, which was enacted in response to concerns with strip mining, sets minimum federal standards for regulating coal mining, and was enacted to ensure that land could be reclaimed after surface mining. Coal mine operators are required to comply with strict performance standards, permitting conditions, inspection requirements, and enforcement actions. The Department of the Interior administers the SMCRA through the Office of Surface Mining Reclamation and Enforcement, and may delegate permitting authority under the program to states with approval of the Secretary of the Interior.

In addition to SMCRA permits, mining operators also must obtain CWA permits to begin coal mining projects. The U.S. Army Corps of Engineers issues permits under §404 of the CWA for discharge of dredged and fill material into navigable waters of the U.S. at disposal sites. Once the EPA approves a State permitting program, the State may issue §402 permits, which cover discharge of pollutants that do not fall under §404. Section §404 permits contain effluent limitations restricting the amounts of specified pollutants that may be discharged. States must also adopt water quality standards under §303 that the EPA reviews for approval.

The controversy began in 2009 when the EPA issued guidance on the use of conductivity testing to determine the levels of dissolved solids in stream water. The guidance was to be used by regional offices for issuing surface mining permits.

The District Court found that the guidance was being employed in the field more like a rule than a recommendation, and held that EPA failed to follow the formal notice and comment procedures for promulgating a new rule. Although this holding was a win for the National Mining Association, it will remain to be seen whether this ruling will stand as the Justice Department recently filed a notice of appeal. Several environmental groups also filed a notice of appeal in the same matter.

(Thank you to DMMS law clerk, Kylie Angileri, who assisted with the preparation of this post.)

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The new standard provides clarification for environmental professionals and Phase I ESA users. Included within the changes are the following concepts:

1. Simplification of the definition of “recognized environmental condition”.
2. New defined term “controlled recognized environmental condition” (CREC) to address continuing obligations and limitations on use.
3. Vapor migration evaluations are mandatory under the new standard.
4. Environmental professionals must explain in greater detail their rationale for reviewing or not reviewing a regulatory file.

In summary, it is likely that the EPA’s “all appropriate inquiry standard” will change to reflect the new ASTM-E1527-13 Standard published in November. The new standard should be become law sometime in late December or early January. It is important that all environmental documents be updated to reflect this new standard and care should be taken to ensure implementation of it in your business endeavors.

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Michigan’s Section 404 Wetland Program is one of only two wetland permitting programs approved by the EPA under Section 404 of the Clean Water Act. Michigan originally sought to implement its own program to speed up the permitting process and have greater local control given Michigan’s unique water resources. If EPA revokes its approval, the permitting process would revert to the U.S. Corps of Engineers and, based on our experience in other states, the processing time for permit applications would likely increase dramatically.

Those who are interested in submitting comments have until December 18, 2013. Comments can be submitted by going to the Regulations.gov website.

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pharmacyThe Environmental Protection Agency (EPA) has issued proposed regulations regarding the disposal of drugs which the Agency calls “pharmaceutical hazardous waste.” The EPA has concluded that the Resource Conservation and Recovery Act (RCRA), which was designed for regulating industrial hazardous waste, has not been a perfect fit for regulating pharmaceutical wastes generated by the healthcare sector.

The new rules will affect all pharmacies, hospitals and clinics, veterinary clinics, dentists’ offices, physicians’ offices, nursing homes and all senior living facilities and rehabilitation centers that dispense drugs. This proposed regulation will also apply to pharmaceutical reverse distributors that collect unused pharmaceuticals and assist health care facilities in managing excess drugs. These regulations will not apply to pharmaceutical manufacturing facilities.

At issue are over-the-counter and prescription drugs. The proposed definition of “pharmaceutical” is broadly defined to include dietary supplements, drug residues, contaminated personal protective equipment, and clean-up materials used in a pharmaceutical spill.

The proposed legislation covers the labeling of these wastes, as well as their disposal. The EPA is also pursuing emergency planning, training and preparedness programs in facilities that have the capacity to dispense medication.

The EPA contends that this rule will protect our drinking water and surface water by preventing “sewering” of prescription and over-the-counter medication. The legislation bans regulated health care facilities from flushing pharmaceutical hazardous waste down the drain. The EPA contends that these proposed regulations will protect waterways from the 6,400 tons of pharmaceutical hazardous waste that is flushed down toilets or sinks yearly.

The proposed regulations also provide healthcare facilities with unique industry specific standards to address pharmaceutical waste, manifest codes, record-keeping, waste accumulation rules, and storage rules. Unlike other RCRA provisions, these rules are generally not waste volume dependent.

The EPA ruling will go into the public comment phase, which will last for 60 days, pending the publication of the ruling in the Federal Register. Comments on the Rule can be submitted to Federal eRulemaking Portal, Docket No-EPA-HQ-RCRA-2007-0932.

By Susan J. Sadler, Member, Dawda, Mann, Mulcahy & Sadler, PLC

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The spill was one of the largest pipeline spills in U.S. history and some estimates put Enbridge’s cleanup costs at nearly $1 billion. The Pipeline and Hazardous Materials Safety Administration (PHMSA) recently issued a scathing report on the events surrounding the spill (a summary of which can be accessed here) and the EPA hit Enbridge with a $3.7 million fine. More information about the spill and cleanup can be viewed on the EPA’s website and Michigan Department of Environmental Quality’s website.

Shortly after the spill happened, Dawda joined forces with AKT Peerless and Albion College to provide a van load of supplies (detergent, Tyvek suits, bottled water, etc) to local first responders that were assisting with the capture and cleanup of oil-coated wildlife. On the drive out to delivering the supplies, a strong “diesel” odor told us we were getting close and as we pulled up next to the river you could barely breathe. A gallery of some of the photos we took of the river and part of the cleanup effort is provided below.

The post Kalamazoo River Oil Spill – Two Years Later appeared first on Dawda PLC.

In 2012, the standards for this designation will be 15% more stringent than those homes built pursuant to the 2009 guidelines. The focus of the program is on stricter criteria for home sealing, insulation, window design, heating, cooling and ventilation systems, and improved water moisture packages to protect roofs, walls and foundations. The Energy Star labeling will also be enhanced by an emphasis on the use of certified lighting and appliance. The ENERGY STAR labeling is granted after a third party verification program that is certified by the Home Energy Rater. The 2012 program for ENERGY STAR qualified homes (Version 3.0) is available for all qualifying homes that obtain their building permits after January 1, 2012.

Additional information regarding the Energy Star home program can be reviewed at The Next Generation of ENERGY STAR Qualified New Homes.

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