Publications
May 7, 2013

EPA Issues Draft Vapor Intrusion Guidance—Uncertainty and Higher Costs Lie Ahead

Environmental Alert

EPA recently released for public comment two draft guidance documents for assessment and mitigation of vapor intrusion (VI). The first, "Guidance for Assessing and Mitigating the Vapor Intrusion Pathway from Subsurface Sources to Indoor Air" (Revised Draft Guidance), broadly addresses vapor intrusion issues at "Superfund" and other hazardous waste sites subject to periodic review. The second, "Guidance for Addressing Petroleum Vapor Intrusion at Leaking Underground Storage Tank Sites" (PVI Guidance), provides specific guidance on vapor intrusion related to petroleum hydrocarbons (such as gasoline, diesel, and jet fuel).

Intrusion of hazardous vapor from contaminated soil or groundwater into indoor air is of increasing concern to regulators, but it is only recently that analysis of the VI "pathway" from subsurface to overlying buildings has become an important element of contaminated site investigations and cleanups.

Significantly, the updated draft guidance indicates that EPA may "re-open" Superfund and other cleanup sites where VI analysis previously was not addressed. Although the updated draft guidance does not apply directly to voluntary cleanup sites, including sites addressed under a state brownfield cleanup program (e.g., Maine's Voluntary Response Action Program (VRAP)), it may encourage states to take a second look at these sites if VI was never evaluated.

Key updates found in the Revised Draft Guidance are as follows:

  • Use of multiple lines of evidence, rather than a single line of evidence, is recommended to evaluate the complexity of the VI pathway.
  • Establishment of a Vapor Intrusion Screening Level (VISL) Calculator as a tool for evaluating whether the VI pathway has the potential to pose a health concern.
  • Identification of the circumstances under which preemptive mitigation is appropriate, even before data is available to confirm that VI poses a health risk.
  • Evaluation of operations and maintenance of mitigation systems, and recommendations as to when to terminate VI mitigation and/or monitoring are provided.
  • Recommendations are provided regarding the use and selection of institutional controls, such as deed restrictions, to address VI exposure risk.

Not clarified by this draft is how Occupational Health & Safety Administration (OSHA) indoor air standards will interact with recommended screening levels.

While EPA recognizes that a different approach is needed for petroleum sites, some of the recommendations in the draft PVI Guidance are highly conservative and likely to be costly to implement. For example, EPA recommends multi-year monitoring of groundwater due to the "transient nature" of groundwater migration. In addition, EPA advises that site soil be sampled for certain residual petroleum contaminants – even where there is no measurable amount of the contaminant found in onsite groundwater monitoring wells.

Both guidance documents recommend extensive community involvement and public participation in site cleanups where VI is an issue.

The deadline for comment on both guidance documents is May 24, 2013. It is unclear when EPA will issue the two guidance documents in final form.

For more information, contact Sharon G. Newman, Esq.  Ms. Newman is a partner in the firm's Environmental Practice Group.

Firm Highlights

Publication

USCIS Announces H-1B Registration Period for FY2025: New “Beneficiary Centric” Registration Process and Increased Fees

USCIS has recently announced a series of changes that will impact the FY2025 H-1B registration system and cap filing season. H-1B Registration Period and Organizational Accounts As in prior years, under this process, prospective petitioners...

Publication

Helping Employers Navigate the New Independent Contractor Rule and Compliance Challenges

On March 11 th , the United States Department of Labor’s (DOL) new Independent Contractor Rule goes into effect.  As your organization readies itself for compliance, it’s imperative to scrutinize your independent contractor classifications...

Publication

Failure to Follow Your Contract's Notice Requirements Can be Costly

In Kinetic Systems, Inc. v. IPS-Integrated Projects Services, LLC et. al., No.: 20-cv-1125 (D.N.H. February 6, 2024), the U.S. District Court for the District of New Hampshire granted summary judgment for a general contractor...

News

Preti Attorneys File Suit Against Al-Generated Robocalls in the 2024 NH Presidential Primary

Representing the League of Women Voters of New Hampshire, the League of Women Voters of the United States, and individual voters, Preti Flaherty, with co-counsel, filed a federal lawsuit against Steve Kramer, Lingo Telecom...

News

Attorney Jeffrey Thaler Named to 2024 Lawdragon Green 500: Leaders in Energy Law

Preti Flaherty’s attorney Jeffrey Thaler has been recognized by  Lawdragon  as one of the top 500 Leaders in Energy Law. This is Jeff’s third time named to this prestigious list since the first publication...

Event

Hire Education: Best Practices for Onboarding New Employees

As an HR professional, hiring the right talent, addressing employee needs, and managing terminations are just a few of the most challenging problems that arise. During this year's three-part Employment Breakfast Webinar Series, we'll...

Publication

Important Updates to American Arbitration Association Construction Industry Rules and Mediation Procedures

The American Arbitration Association (AAA) updated its Construction Industry Rules and Mediation procedures (AAA Rules), effective March 1, 2024, marking the first update since 2015. The updates are important because the AAA Rules are...

Event

Legal Foundations Lunch and Learn Series: Understanding Indemnity Clauses

Our Legal Foundations Lunch and Learn Series features monthly 30-minute webinars that provide in-depth insights into recent updates, industry trends, and key issues impacting the construction industry. Preti Flaherty attorneys Kenneth Rubinstein and Nicholas...

News

Benchmark Litigation Names Preti Flaherty 2024 “Maine Firm of the Year"

Benchmark Litigation has named Preti Flaherty as 2024 Litigation Firm of the Year in the State of Maine. Through extensive peer- and- client reviewed research, as well as analysis of casework; the Benchmark Awards...

Event

Sigmund Schutz to moderate panel at 36th Annual Media and the Law Seminar: Under Attack! Existential Threats to Journalism and Free Speech

From unlawful searches and seizures of newsrooms and highly contentious litigation to physical harassment and calls for violence online, journalists and news organizations are under attack like never before. At the 36 th Annual...