Month: January 2014

Modifications to the Phase I ESA Process – Part 2

Posted on Updated on

A December 30, 2013, EPA final rule (78 FR 31112) amended 40 CFR Part 312 (All Appropriate Inquiries [AAI]) to reference ASTM International’s E1527-13 Standard Practice for Environmental Site Assessments:  Phase I Environmental Site Assessment (ESA) Process.  The AAI amendment was effective December 30, 2013.

Per the final rule, EPA recognizes the newly issued ASTM E1527-13 as compliant with AAI.  Therefore, “persons conducting all appropriate inquiries may use the procedures included in the standard to comply with the All Appropriate Inquiries Rule.”

ASTM published the revised E1527 standard on November 1, 2013. ASTM E1527-13 reflects the consensus of its technical committee, and as such is the industry-accepted standard of care for conducting Phase I ESAs.

EPA stated that “the ASTM E1527-13 standard is similar to the ASTM E1527-05 standard in format, process, and areas of coverage.” In general, the revisions included:

  •  New and revised terminology related to Recognized Environmental Conditions (RECs)
  • Clarification related to the applicability of the vapor pathway to ASTM E1527
  • Language regarding file reviews including agency file reviews and judicial records

EPA’s amendment offers the option of using ASTM E1527-13 to conduct all appropriate inquiries; however, the December 30, 2013 rule does not require use of ASTM E1527-13. Although not required, EPA’s final rule included the following:

  •  “ASTM E1527-13 provides an improved process for parties who wish to undertake AAI.”
  • The “changes enhance the usefulness of the standard” in identifying potential and threatened releases
  • “ASTM E1527-13 improves upon the previous standard and reflects the evolving best practices and level of rigor that will afford prospective property owners necessary and essential information when making property transaction decisions”
  • “EPA views these enhancements and clarifications to the ASTM standard as valuable improvements and strongly encourages prospective purchasers of real property to use the updated ASTM E1527-13 standard”
  • “EPA recommends that environmental professionals and prospective purchasers use the ASTM E1527-13 standard.”

Additionally, EPA also announced its intent to publish a proposed rule, in the near future, that will propose removing the previous reference to the 2005 standard from AAI; thus supplanting the 2005 standard with the 2013 standard.

If you have any questions about ASTM E1527-13 and how it may impact an upcoming project or Phase I ESAs in general, please contact Jennifer A. Ewing, P.G., (jewing@cecinc.com) at 800-365-2324.

Illinois Governor Quinn issuing Emergency Regulations on Coke and Coal Storage

Posted on Updated on

Update 2/17/2014:   In addition to regulatory initiatives by the City of Chicago and the IEPA, the Illinois Attorney General’s office has introduced, HB 5939 (Currie, D-Chicago), which amends the Environmental Protection Act, creating a new title in the law concerning the regulation of coal and coke storage, processing, and transloading. The bill provides for minimum setbacks for coal and coke facilities, sets limits for quantities of fugitive dust permitted from facilities, establishes specified requirements for storage of coal and coke products, requires permits for construction and operation of facilities, regulates the loading and unloading, paving, and cleaning of facilities. The bill also requires monitoring and testing, record keeping, and reporting to the IEPA. View the bill here.

Update: On January 23, 2014, the IPCB met and ruled 4-0 that IEPA had not demonstrated the filing qualified for treatment under Emergency Rule making provisions of IAPA and the Environmental Protection Act. The Board did not further comment or clarify the bases for their determination or what would have been acceptable to them. The Chairperson voiced a willingness to pursue with the proposal under General Rule making.

 The IEPA response to comments did not attempt to justify the request by citing precedents from prior IPCB and IACA cases. The footnote of their Statement of Reasons noted that there is no requirement for the Board or IEPA present a Statement of Reasons. They further noted that regulations for emergency rule makings are unclear and do not appear to be tailored to the purpose and intent of an emergency rule making. The IEPA Statement of Reasons ignored several commenters who cited precedents for acceptance and denial of emergency rule makings.

 In the morning public comment session, comments were submitted and summarized by the Illinois Chamber on behave of a coalition of industry trade associations, KCBX and the Environmental Law Policy Center.

 Newly issued Illinois emergency regulations will require total enclosure of all coke and coal storage, handling, and transfer activities. These emergency regulations call for plans to be due in 45 days and construction completed within two years. Regulations will also address dust suppression, storm water controls, elimination of fugitives, street sweeping, setbacks, height restrictions, record keeping and reporting. These requirements may cause costs to rise to the point of forcing closings of some coke and coal storage and handling activities.

In the dry heat of August 2013, fugitive coke dust from bulk storage along Illinois’ Calumet River migrated into residential neighborhoods and led to complaints. The Chicago Tribune published a series of articles in the fall and environmental groups found traction criticizing petroleum refiners, Canadian crude and byproduct coke. By December, the City adapted petroleum coke and coal storage regulations from the South Coast Air Quality Management District and extended them to ores. The day of the City’s public meeting the Governor and IEPA Director Lisa Bonnett visited the area and announced emergency regulations affecting all coal and coke storage and handling operations within Illinois. Proposed regulations will be filed this week and will be subject to public comment and approval by the Illinois Pollution Control Board, but some go into effect immediately upon filing. Major time lines and provisions that would be effective upon official adoption include:

  • Within five days, a facility must install equipment to monitor wind speed.
  • Within 30 days, a facility must install dust suppression systems along conveyor systems and any piles that are not totally enclosed.
  • Within 30 days, a facility must submit applications for necessary permits and a comprehensive wastewater and stormwater runoff plan to IEPA that ensures that runoff that has come into contact with the piles is prevented from entering the waters of the state and complete it within 60 days of approval.
  • Within 45 days, a facility must submit a plan to IEPA for total enclosure of all coke and coal piles, transfer points, loading and unloading areas, screening areas, crushing and sizing areas to be completed within two years of these rules being adopted. Enclosure structures must be equipped with air pollution systems at all vents and entrances and exits for material and vehicles as well as an impermeable base to guard against ground seepage.
  • Within 45 days, a facility must submit a plan to IEPA to minimize the impact of truck traffic on residential areas near the source. All petcoke loading and transport must be done in vehicles sufficiently covered to guard against fugitive dust emissions.
  • With 45 days, a facility must submit a plan to IEPA for coke and coal fugitive dust that must adhere to requirements in the Illinois Environmental Protection Act and must be updated at least semi-annually or within 30 days of a major equipment or control change.
  • Within 60 days, a facility must remove all petcoke and coal that has been at the source for more than one year.
  • Within 60 days, a facility must locate any piles, loading operations, transfer or emission points that are not totally enclosed to at least 200 feet inside the property line of the source, a minimum of 200 feet from all waters of the United States, all public water supply reservoirs and intakes and all potable wells and onto impenetrable bases or pads.
  • Within 60 days, no pile may exceed 30 feet in height. Visible height markers must also be installed.
  • A least once per calendar week, a facility must measure moisture content of representative samples and adjust dust suppression measures so as to meet certain standards and inspect all dust suppression equipment so as to ensure adequate operations.
  • At least monthly, a facility must certify the operation of all dust suppression systems at all times during the processing of coal and coke and submit records to IEPA showing the types and quantities of materials delivered to and transported from the source, and data reflecting cleaning, street-sweeping and equipment maintenance frequency.

If you have questions on these proposed City or State emergency regulations, please contact CEC’s Chicago office at 630-963-6026.

More information: