By Patrick D. Joyce and Philip L. Comella

Today, the U.S. Environmental Protection Agency issued two proposed rules lowering the threshold at which landfills must control methane gas emissions.

For active landfills, EPA proposes to reduce the threshold from 50 metric tons of non-methane organic compounds annually to 34 metric tons. As a practical matter, this means that roughly 100 active landfills – with emissions over 34 metric tons but under 50 metric tons — would have to install a gas collection and control system in accordance with 40 CFR Part 60, subpart WWW. The proposal would also require closed landfills that exceed 50 metric tons of emissions per year to install a control device.

At the same time, the Agency also issued a supplemental proposed rule lowering the emission threshold for new landfills from 40 metric tons per year (as it proposed in 2014) to 34 metric tons.  This reduction is based on the Agency’s position that the lower threshold is achievable at a reasonable cost.

These reductions will affect not only the compliance obligations of smaller landfills but may also have an impact on eligibility for greenhouse gas credits or other environmental attributes.

We will provide a more complete evaluation of the proposals soon.

By Jeryl L. Olson and Craig B. Simonsen

Power Lines and Pulp Mill PollutionIn a busy day for vapor intrusion, last week the U. S. Environmental Protection Agency made several announcements about vapor intrusion.

First, it announced it had submitted a draft rule to the White House OMB seeking to add vapor intrusion to the pathways evaluated under the Hazard Ranking Scoring (HRS) System for National Priority List (NPL) Superfund sites.   Additionally, EPA published two new sets of technical guidance on assessing vapor intrusion. One guidance document has been prepared for assessing vapor intrusion from leaking petroleum underground storage tank sites, and the other guidance document is aimed at assessing vapor intrusion for sites with non-petroleum contamination.

Draft Rule on Assessing Vapor Intrusion as Part of Site Hazard Ranking

With respect to EPA’s draft rule adding assessment of vapor intrusion to the Hazard Ranking Scoring process, this is the Agency’s second effort at adding the vapor intrusion pathway to the other types of pathways which are already considered in evaluating and then listing a site on the National Priorities List. The same version of the rule was previously submitted to, but then withdrawn from, OMB consideration.

EPA believes now that it is necessary to evaluate vapor intrusion in scoring of sites for the NPL in order to ensure that health risks associated with vapor intrusion are addressed and cleaned up as part of Superfund remediations. Opponents to the process, however, believe that adding assessment of the vapor intrusion pathway to the NPL HRS scoring system will lead to more sites being listed on the NPL, despite the belief that EPA’s Superfund program is already taxed. If the draft rule receives OMB approval, the rule will be published as a Notice of Proposed Rulemaking in the Fall of 2015.

New Vapor Intrusion Guidance

With respect to new vapor intrusion guidance, EPA published guidance both on performing vapor intrusion assessments where the source is petroleum vapor from leaking underground storage tanks (“Technical Guide for Addressing Petroleum Vapor Intrusion at Leaking Underground Storage Tank Sites,” EPA 510-R-15-001, June, 2015) (hereinafter “PVI Guidance”) and for vapor intrusion risks associated with all other types of sites and non-petroleum chemicals (“OSWER Technical Guidance for Assessing and Mitigating the Vapor Intrusion Pathway from Subsurface Vapor Sources to Indoor Air,” OSWER Publication 9200.2-154, June, 2015) (hereinafter “OSWER VI Guidance”).

According to EPA, the existing 2002 (“OSWER Draft Guidance for Evaluating the Vapor Intrusion to Indoor Air Pathway from Groundwater and Soils,” EPA530-D-02-004) guidance on vapor intrusion assessment is replaced by the two new PVI, and OSWER VI Guidance documents. In promoting the two new sets of guidance, EPA indicates that the mitigation measures advocated in the new guidance are “more cost-effective” than mitigation measures considered in the previous draft guidance, and EPA is also advising its new approach to testing for vapor intrusion is more “flexible,” including sampling indoor air or sampling the external sub-slab area.

While comprehensive, and containing certain “user-friendly” features, the new draft guidance for vapor intrusion is not without controversy. EPA has acknowledged that its 2002 draft guidance indicated that OSHA, and not EPA, would take the lead in looking at occupational exposure to vapor intrusion. In the new guidance, EPA seems to back off its previous acquiescence to OSHA’s primary jurisdiction where there is occupational exposure, and merely mentions that there are Memoranda of Understanding (MOUs) between OSHA and EPA dated November 23, 1990, and February 1991, which govern the Agencies’ relative responsibilities (but of course those MOUs pre-date vapor intrusion as a current focus of concern). Tellingly, in Section 7.4.3 of the OSWER VI Guidance, EPA specifically states its reasons for its recommendation that EPA standards, as opposed to OSHA PELs or TLVs, should be used for evaluating VI human health risks for workers in non-residential buildings. EPA bases its conclusions on what it characterizes as OSHA’s own recognition that its PELs are “outdated and inadequate for ensuring protection of worker health.”


The LUST PVI Guidance is less substantial, both in terms of technical information and volume, than the OSWER VI Guidance, and is on its face aimed at EPA regulatory personnel investigating and assessing petroleum vapor intrusion (PVI). Nevertheless, the guidance indicates it is intended for all “UST regulators and practitioners.” The PVI Guidance looks at petroleum hydrocarbons (PHCs) in diesel, gasoline, and jet fuel related volatile organic chemicals (VOCs) such as BTEX, methane generated from anaerobic biodegradertory of petroleum products, and is focused on providing screening criteria based on the distance between PVI sources and potential receptors.

It is interesting to note the PVI Guidance states it is applicable to “…new and existing releases of PHCs and non-PHC fuel additives from leaking USTs and to previously closed sites where the implementing agency has reason to suspect that there may be a potential for PVI.” [Emphasis added]. Despite that statement, the PVI Guidance does acknowledge that it “…does not impose legally binding requirements on implementing agencies or the regulated community”; and, thus, the guidance should not be read as triggering a need for VI assessments at closed LUST sites.

Other features of the PVI Guidance are two “user-friendly” features: a Table, and separate Flowchart, each summarizing EPA’s recommended actions for addressing PVI at LUST sites, and an entire section discussing computer modeling of PVI.


Of the two VI policies published June 11, the OSWER document on non-petroleum VI is the more robust of the documents published, with 245 pages of technical guidance. One of the stated purposes of the OSWER Guidance is to “…promote national consistency in assessing the vapor intrusion pathway …” while providing a “…flexible screening based approach to assessment…”. As with the PVI Guidance, the OSWER VI Guidance is ostensibly aimed at any CERCLA , RCRA or Brownfield sites being evaluated by EPA, or for authorized state RCRA corrective action programs or state-led CERCLA sites, however, it is expected that particularly in states with fledgling VI policies, the OSWER Guidance will become the standard for VI assessments and mitigating measures.

Features of the OSWER VI Guidance include a comprehensive guide to preliminary and detailed VI sampling and assessment technologies in myriad settings (VI in inclusion zones, settings with multiple buildings evaluating concurrent indoor and ambient air sources, etc.). The guidance also discusses strategies for risk assessment under numerous exposure scenarios. Finally, there is a lot of attention focused on mitigation systems in buildings, and subsurface remediation.

By Philip L. Comella and William R. Schubert

Earlier this week, we blogged about the broad range of “reform options” for energy incentives that members of Congress are drafting, and the fast pace at which this area of public policy can move.

Now the John F. Kennedy School of Government at Harvard University has spotlighted an EPA alternate energy initiative as one of the Top 25 Innovations in American Government for the year 2012.

The EPA program, called the “RE-Powering America’s Land Initiative,” promotes alternate energy projects –  for example, those involving energy sources such as wind, sunlight, biomass, geothermal systems, and landfill gas – at contaminated properties, mine sites, and landfills.

According to EPA’s fact sheet, contaminated properties, mine sites, and landfills are “environmentally and economically beneficial for siting renewable energy facilities because they:

  • Offer thousands of acres of land with few site owners;
  • Often have critical infrastructure in place including electric transmission lines, roads and water on-site, and are adequately zoned for such development;
  • Provide an economically viable reuse for sites with significant cleanup costs or low real estate development demand;
  • Take the stress off undeveloped lands for construction of new energy facilities, preserving the land carbon sink; and
  • Provide job opportunities in urban and rural communities.

In connection with the Initiative, EPA has published an online summary tracking the progress of completed renewable energy projects on potentially contaminated lands, landfills, and mine sites.

Incentivizing the reuse of old contaminated sites has been a bright spot on EPA’s resume for some time.  EPA’s Brownfields Economic Redevelopment Initiative  was among 10 government programs that received grant money in connection with the Innovations in American Government Awards program in 2000.

By Philip L. Comella

Ending, for the time being, a fiercely contested rulemaking in which even the Chicago Tribune’s editorial board weighed in, the Illinois Pollution Control Board on August 23, 2012 issued its Final Rule changing the standards for Clean Construction or Demolition Debris (CCDD) Fill Operations. The heart of the controversy in this rulemaking was whether the Board should require these fill operators to conduct groundwater monitoring to satisfy amendments the General Assembly made to the Environmental Protection Act in 2010.

As a perceptual matter, it did not look good to some observers that a fill operator would be able to dispose of debris and clean soil without conducting groundwater monitoring.  This is what caught the attention of the Chicago Tribune, which said, “We don’t believe self-policing within the waste industry is a wise strategy when drinking water is at stake.”  But fears, politics, and business interests wound up giving way to the evidence.  The Board “found no evidence .  .  . to demonstrate that CCDD or uncontaminated soil fill sites were a source of drinking water contamination.”  It must be remembered that under the Act “uncontaminated soil” and “clean construction debris” are not solid wastes and therefore deserve separate management standards.  Furthermore, even though it did not require groundwater monitoring, the Board imposed strict certification requirements on the “front-end” to ensure that fill operators accept only clean soils meeting the same general standards as required to obtain a “no further remediation” letter from the Illinois Environmental Protection Agency.  (The point of a “no futher remediation” letter is that once a site is found to meet the requisite standards, no further action is required, including of course groundwater monitoring. )

But the groundwater monitoring issue is not completely dead. Before the issuance of the final notice, the Joint Committee on Administrative Rules issued a recommendation that the Board give further consideration to whether groundwater monitoring should be required for these facilities. Finessing this recommendation, the Board opened another docket in the rulemaking to further evaluate the monitoring issue, indicating it will issue an order in that docket “at a later date.”

Stay tuned for further developments.