Contact: Andrew Brought; Spencer Fane Britt & Browne LLP (Missouri, USA)
When EPA issued its Direct Final Rule on August 15, 2013 (78 Fed. Reg. 49690), approving the use of the new proposed 2013 Phase I Environmental Site Assessment (ESA) standard (ASTM E1527-13) to satisfy the All Appropriate Inquiries Rule, 40 CFR Part 312, the agency specified it would withdraw the Final Rule and it would not take effect if EPA received an adverse comment during the comment period. That has now happened as an adverse comment was received on August 28. Consequently, EPA will withdraw the final rule (if it does what it said it would do) and rely upon the companion Proposed Rule issued simultaneously on the same day, 78 Fed. Reg. 49714, and respond to comments in order to proceed with a final rule.
At issue is whether ASTM’s new Phase I ESA Standard E1527-13 supersedes or replaces the current 2005 version E1527-05. EPA’s Final Rule specified that entities are not required to use the 2013 Phase I ESA standard to satisfy AAI. Rather, the 2013 Phase I ESA is just one mechanism for satisfying AAI according to the agency. In particular, EPA made clear that the 2005 version, E1527-05, would also satisfy the AAI Standard. “The Agency notes that there are no legally significant differences between the regulatory requirements and the two ASTM E1527 standards.” 78 Fed. Reg. at 49692.
Contact: Harper Grey LLP (Vancouver, Canada)
On July 17, 2013, the BC Environmental Appeal Board rendered an important ruling in an appeal by a commercial landowner seeking to overturn a decision of a director of the Ministry of Environment.
Landowners, developers, environmental insurers seeking "closure", and of course solicitors advising clients respecting applications to the Ministry of Environment will all benefit from the important rulings in this case.
The director had rejected an application for two certificates of compliance (for the source site and a portion of impacted neighbouring property) and required, even after many years of investigation and remediation, resubmission of the entire application to current standards. The Board allowed the appeal and ordered the director to issue the certificates of compliance.
Richard Bereti and Una Radoja of Harper Grey LLP acted for the successful party, Morguard Investments Limited, in this appeal, and would be pleased to discuss the impact of the case with you directly or answer any questions you may have.
EPA’s November 2002 Draft Guidance For Evaluating the Vapor Intrusion to Indoor Air Pathway from Groundwater and Soils, 67 Fed. Rg. 71,169 (Draft Guidance), represented EPA’s first significant attempt to address concerns about vapor intrusion – the process whereby vapors emanating from contaminants at surface soils or groundwater can make their way into buildings. EPA noted in its Draft Guidance that it “[was] not expect[ed] to be used for settings that are primarily occupational.” Draft Guidance at 3. It is agreed that “OSHA [will] generally take the lead role in assessing occupational exposures.” Id. This stance by EPA had also been expressed in EPA’s Environmental Indicators—Frequent Questions document.
Contact: Andrew C. Brought; Spencer Fane Britt & Browne LLP (Missouri, USA)
On March 25, 2013, the U.S. Court of Appeals for the Eighth Circuit sent a clear message to the EPA and other federal agencies: guidance documents and interpretive memoranda do not qualify as APA-compliant rulemaking. Iowa League of Cities v. EPA, slip op. No. 11-3412 (8th Cir. March 25, 2013).
EPA released an interim progress report today, December 21, 2012, regarding its much-anticipated study of potential impacts to drinking water resources from hydraulic fracturing. EPA’s multi-year study, at the behest of Congress, seeks to identify and understand potential impacts to drinking water associated with water withdrawals, the fate and transport of chemicals associated with fracking, and wastewater treatment and disposal as a result of fracking activities.