Download the full report for May 2013 (pdf)
Recent Developments (Updated May 6, 2013)
EPA Issues Draft Vapor Intrusion Guidance
After a decade long review process, the U.S. Environmental Protection Agency (EPA) made available for comment a pair of draft guidance documents addressing vapor intrusion (VI) – the general term given to migration of hazardous vapors from subsurface contaminant sources, such as contaminated soil or groundwater, through the vadose zone and into indoor air. The first document, EPA’s draft OSWER Final Guidance for Assessing and Mitigating the Vapor Intrusion Pathway from Subsurface Sources to Indoor Air, describes the recommended framework for assessing VI generally and provides guidance on monitoring and terminating building mitigation systems. The second draft document, entitled Guidance for Addressing Petroleum Vapor Intrusion at Leaking Underground Storage Tank Sites, provides guidance on investigating and assessing petroleum vapor intrusion (PVI), with a focus on underground storage tanks. The general draft VI guidance can be found on EPA’s website at: www.epa.gov/oswer/vaporintrusion/documents/vaporIntrusion-final-guidance-20130411-reviewdraft.pdf. EPA’s PVI guidance can be found at: www.epa.gov/oust/cat/pvi/petroleum-vapor-intrusion-review-draft-04092013.pdf.
Appellate Division Upholds Natural Gas Drilling Ban
In a unanimous decision, New York’s Appellate Division, Third Department, held that a local law banning natural gas drilling was not preempted by New York’s Oil, Gas and Solution Mining Law (OGSML). In Norse Energy Corp. v. Town of Dryden, the plaintiff, a natural gas drilling company, alleged that an amendment to the local zoning code banning natural gas drilling violated the supersession clause of the OGSML. In affirming the trial court decision, the appellate court concluded that while New York Environmental Conservation Law § 23-0303(2) bars local governments from regulating the details of oil, gas and solution mining, it does not prevent them from exercising their zoning authority to bar such activities altogether. In support of its conclusion, the court cited both the legislative history of the OGSML and case law interpreting similar provisions under New York’s Mined Land Reclamation Law. Because the decision was unanimous, the plaintiff must receive permission from the New York Court of Appeals to appeal the case.
Other Recent Developments
Federal
- AIR: In response to petitions for reconsideration, EPA revised the National Emission Standards for Hazardous Air Pollutants (NESHAP) for new coal and oil-fired electric utility steam generating units, establishing less stringent emission limits for certain air pollutants and modifying various monitoring requirements.
- AIR: EPA proposed to revise the New Source Performance Standards for the oil and natural gas sector after determining that it had seriously underestimated the number of storage vessels potentially subject to the standard and so needed to extend the deadline for facilities to comply.
- AIR: EPA proposed additional changes to the NESHAP for mineral wool production and wool fiberglass manufacturing, including establishing a new area source standard applicable to minor sources in the wool fiberglass category.
- AIR: EPA proposed to exempt certain hydrocarbon-based substitute refrigerants from the prohibition against venting during equipment maintenance, repair and disposal, after finding that the three refrigerants – R-600a, R-441A and R-290 – do not pose a threat to the environment.
- WATER: EPA issued a revised general permit for certain larger vessels (79 or more feet in length) that regulates numerous discharges incidental to normal vessel operations under the National Pollutant Discharge Elimination System permit program, while postponing issuance of a similar permit for smaller vessels.
New York State
- AIR: In an effort to streamline the program and conform to federal requirements, the New York State Department of Environmental Conservation (DEC) proposed to revise its transportation conformity rule, which is used to ensure that federally funded transportation plans and projects located in nonattainment and maintenance areas conform to New York’s state implementation plan.
- WATER: DEC made available for review its revised Environmental Benefit Permit Strategy rankings, which identify the top 10 percent of State Pollutant Discharge Elimination System permits scheduled for full technical review in the coming year.
