Environmental Services

Addition of a Subsurface Intrusion Component to the Hazard Ranking System

The US EPA is working toward a proposed rule to add a new screening component (subsurface intrusion (SSI) component) to the Hazard Ranking System (HRS) that would allow sites with vapor intrusion contamination to be evaluated for placement on the National Priorities List (NPL).

The subsurface intrusion component would expand the number of available options for EPA and state and tribal organizations performing work on behalf of EPA to evaluate potential threats to public health from releases of hazardous substances, pollutants, or contaminants. This addition will allow an HRS evaluation to directly consider human exposure to hazardous substances, pollutants, or contaminants that enter regularly occupied structures through subsurface intrusion in assessing a site’s relative risk, and thus, enable subsurface intrusion contamination to be evaluated for placement of sites on the NPL. The agency is not considering changes to the remainder of the HRS except for minor updates reflecting changes in terminology. Read more ->

Blog

NY State Sales and Use Tax may Now Be Applied to Environmental Testing

NY State Sales and Use Tax

In the recent trial of Exxon Mobil Corp. v. State of New York Tax Appeals Tribunal, 2015 WL 919788, 2015 N.Y. Slip Op. 01840 (3d Dep’t March 5, 2015), the appellate court ruled that environmental testing services are a large part of taxable remediation activities and cannot be listed as a tax exempt service by clients in need of environmental services. The tax law currently differentiates between services that are providing a capital improvement to a commercial property and services that repair or maintain a property. The trial of Exxon Mobil Corp. v. State of New York Tax Appeals Tribunal found that ascertaining the current environmental condition of a site via testing and monitoring was a major part of taxable aspects of a site’s remediation.

The sales tax in question was approximately $500,000 owed to the state for environmental monitoring services used from 2000 through 2004 and were deemed as “activities that relate to keeping real property in a condition of fitness, efficiency, readiness or safety or restoring it to such condition”. To understand whether or not a service provided is taxable or not, one would have to consider many factors about the service; is the site testing performed as an integral part of a capital improvement program; or is a part of the environmental work tax exempt while other parts are not? These questions can be answered by considering what type of project it is, the time between the completion of environmental work at a site and the completion of the capital gains work, and how the environmental services are referred to in contracts, work orders, and other paperwork relating to the project.

Source: law.justia.com/cases/new-york/appellate-division-third-department/2015/517504.html

Environmental Services

Controlled Recognized Environmental Concerns (CRECs)

New ASTM Standard Coming………….

 CONTROLLED RECOGNIZED ENVIRONMENTAL CONCERNS (CRECs)

New term on the market

A client recently said to me; “It seems like every year environmental requirements become more stringent and costly, making more purchasers and lenders request environmental inspections before committing to the real estate transaction”. Environmental Site Assessments (ESAs) or Phase I Environmental Site Assessments are the industry standard for assessing a parcel of property environmental quality and part of the due diligence process required by financial institutions for commercial real estate transactions.  ESAs or Phase I ESA are usually conducted according to the American Society for Testing and Materials (ASTM) Standard E 1527-05; with the last changes to this standard occurring seven years go. This, however, is going to change very soon. ASTM, the organization that creates Standards that Environmental Professionals (EPs) follow when performing Environmental Site Assessments (ESAs), is scheduled to issue a revision of the current ASTM 1527-05 Standards that would mandate additional investigation and assessment.

The new Standard, when approved by the EPA, will require (a) assessment for vapor migration.  Vapor migration must be considered no differently than contaminated groundwater migration.  The proposed ASTM 1527-13 standard references E2600-10, a methodology to assessing vapor migration;

(b) More detailed explanations for regulatory agency record reviews in every new ESA.  This means that EPs would have to describe in greater detail why they decide particular sites listed in database searches would not affect a Site’s environmental quality. Although the proposed standard will minimize confusion and allow clients to better understand EPs’ judgments, this new measure will require additional time that will be required to complete them and;

(c) Simplification of the definition of “Recognized Environmental Concerns (RECs)”.  The current definition for Recognized Environmental Conditions, or REC (the main thing that EPs try to identify during ESAs), has been found to be confusing to some people. As a result, the definition is proposed to be simplified while retaining the same basic meaning, except for the creation of the new term “Controlled RECs” (CRECs) proposed by the new ASTM Standard to describe sites that have had their regulatory agency cases closed but still have some harmful compounds present. This will allow for more accurate ESAs and prevent misunderstandings.

RECs – Old Definition: “the presence or likely presence of any hazardous substances or petroleum products on a property under conditions that indicate an existing release, a past release, or a material threat of a release of any hazardous substances or petroleum products into structures on the property, or into the ground, ground water, or surface water of the property.”

New Simplified REC Definition: “the presence or likely presence of any hazardous substances or petroleum products in, on, or at a property: (1) due to any release to the environment; (2) under conditions indicative of a release to the environment; or (3) under conditions that pose a material threat of a future release to the environment.”

Historical RECs The definition for HRECs is proposed to also be revised in order to separate itself from the CRECs definition. The definition of HRECs is currently defined as environmental conditions that have been RECs in the past, previously remediated and had their cases closed by regulatory agencies, but which may or may not be considered a REC currently. The new revision for HRECs will be;

New HREC Definition: “a past release of any hazardous substances or petroleum products that has occurred in connection with a property and has been addressed to the satisfaction of the applicable regulatory authority or meeting unrestricted residential use criteria established by a regulatory authority, without subjecting the property to any required controls (e.g., property use restrictions, AULs, institutional controls, or engineering controls).

Controlled RECs At times, however, remediated RECs are closed by regulatory agencies with implementation of required controls (e.g., property use restrictions, Activity Use Limitations (AULs, institutional controls, or engineering controls).

AULs are put in place at Sites where there is still some contamination but, due to low levels of contaminants and/or institutional controls installed at the Site, the contamination is not harmful to human health. AULs serve to protect human health by prohibiting certain activities on AUL sites (i.e. excavations on sites with subsurface contamination). The problem with the current definition for HRECs for sites that had required controls was that it was sometimes interpreted by clients as environmental problems that happened in the past and had no current effect on a Site.  The creation of the new term CREC in the revised standards will clarify the confusion and such sites will be a REC under a Phase I ESA.

Just like with the current ASTM 1527-05 Standard; the proposed Standard will still satisfy the “All Appropriate Inquires” rule that qualifies landowners for the innocent landowner defense under CERCLA.  This Standard will ultimately call for more comprehensive ESAs; which will be able to characterize the environmental quality of a site to a greater degree.

 

Blog

Recent Redevelopment

Local News
Recent Redevelopment

New York City and, even more so, Brooklyn is currently seeing a large volume of real estate development and redevelopment. With recent rezoning actions many neighborhoods are being redeveloped for new housing and commercial purposes. American Environmental has been helping in this effort by providing environmental services to numerous clients. Click here to see how we can help you.

Blog

Community Outreach

Community Outreach

American Environmental employee Eugene Kuksa, Environmental Scientist, helped our local community by volunteering at Mt. Sinai Beth Israel for over 150 hours over the past year as part of our company-wide effort to make our environment a better and healthier place.