By Rebecca A. Davis and Jeryl L. Olson

Seyfarth Synopsis:  Under the Trump Administration, the U.S. Environmental Protection Agency (EPA) has fully or partially deleted 22 sites from the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) National Priorities List (NPL).  This is the largest number of deletions in one year since 2005. 

However, the EPA continues to add sites to the NPL, and added five new sites in the Fall of 2018.  Two sites are particularly noteworthy as they were added solely due to a subsurface intrusion pathway.  Subsurface intrusion is the migration of hazardous substances or pollutants and contaminants from the unsaturated groundwater zone and/or the surficial groundwater into overlying structures.  Vapor intrusion is the most common form of subsurface intrusion, but the intrusion also may be in the form of gas or liquid.

The HRS, the principal mechanism EPA uses to determine whether a site should be placed on the NPL, traditionally ranked sites under four pathways:  groundwater migration, surface water migration, soil exposure and air migration.  In other words, subsurface intrusion historically was not a separate basis for scoring purposes on the HRS, but was instead addressed as part of the remediation of a Superfund site.  On January 9, 2017, the rule to add subsurface intrusion as a component to the HRS was published in the Federal Register, and the final rule went into effect on May 22, 2017.  See our previous blog about it, EPA Eases Path to Superfund Listing: Vapor Intrusion Component Added to the Hazardous Ranking System.

The first of the two sites listed under the new HRS guidance, the Rockwell International Wheel & Trim site in Mississippi, was a former wheel cover and chrome-plating facility.  Although other traditional pathways were present, including soil and groundwater impacts from volatile organic compounds (VOCs), the EPA elected to score the site under the HRS only on the subsurface intrusion component.  The EPA determined that there was likely a complete pathway from the subsurface source of VOCs to workers in buildings overlying the soil and groundwater impacts.  This assumption was confirmed by indoor air sampling that revealed the presence of trichloroethylene and dichloroethylene in air in the buildings.

The second site, the Delfasco Forge site in Grand Prairie, Texas, is the location of a former munitions and forger operation that operated from the 1950s to 1998.  The site is contaminated with trichloroethylene (TCE) both in soil, and groundwater.  In 2008, EPA conducted a vapor intrusion investigation that included the sampling of sub-slabs, crawl spaces and indoor air of 16 homes and two commercial structures.  Ten of the 18 structures had measurable levels of TCE in indoor air.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Environmental Compliance, Enforcement & Permitting Team.

By Andrew H. Perellis, Kay R. Bonza, and Craig B. Simonsen

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Seyfarth Synopsis: With the EPA adding the consideration of vapor intrusion in its Superfund site investigations, hundreds of sites that previously would not rank high enough to qualify for listing on the National Priorities List of contaminated sites would now likely qualify.

The U.S. Environmental Protection Agency (EPA) has just released a pre-publication version of its final rule to add a subsurface intrusion (SsI) component to the Superfund Hazard Ranking System (HRS).  EPA defines subsurface intrusion as the migration of hazardous substances, pollutants, and contaminants from the unsaturated zone or the surficial (shallow) ground water into overlying structures. The most common form of subsurface intrusion is vapor intrusion.  Vapor intrusion occurs when vapor-forming chemicals from sources including dry cleaning solvents and industrial de-greasers in ground water or soil migrate into buildings and other enclosed spaces, posing a threat to indoor air quality.

We had blogged previously when the Agency proposed this new rule. See EPA Plans to Ease Path to Superfund Listing: Vapor Intrusion Component to be Added to the Hazardous Ranking System. Before this rulemaking, the EPA addressed SsI at sites only when those sites were listed on the National Priorities List (NPL) for another contamination issue.  By adding the consideration of vapor intrusion to the HRS, hundreds of sites that previously would not rank high enough to qualify for listing on the NPL could now qualify based soley on the threat of vapor intrusion. NPL listing is a prerequisite to EPA spending sums over $2 million to investigate and conduct remedial actions under Superfund.  NPL-listed sites are generally more expensive to remediate and more difficult to sell than are other environmentally distressed properties.

In his blog on the topic Mathy Stanislaus, Assistant Administrator for the Office of Land and Emergency Management, indicates that the new rule will allow the “EPA site assessment program to address two additional types of sites: those that either have only subsurface intrusion issues, and those with subsurface intrusion issues that are coincident with a groundwater or soil contamination problem.”

In its support materials for the proposal, EPA noted that the Government Accountability Office (GAO) had concluded that “if vapor intrusion sites are not assessed and, if needed, listed on the NPL, there is the potential that contaminated sites with unacceptable human exposure will not be acted upon.”  The HRS is Appendix A to the National Oil and Hazardous Substances Pollution Contingency Plan (NCP), and is used by EPA to identify hazardous waste sites eligible to be added to the NPL.

The Agency has also provided an FAQ and an Interim SsI Superfund Chemical Data Matrix Table.

According to EPA’s news release on the rule, “this regulatory change does not affect the status of sites currently on or proposed to be added to the NPL. This modification only augments criteria for applying the HRS to sites being evaluated in the future.”

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Environmental Compliance, Enforcement & Permitting Team.

By Andrew H. Perellis and Craig B. Simonsen

EPA SignThe U.S. Environmental Protection Agency (EPA) has just announced a proposed rule to add a subsurface intrusion (SsI) component to the Superfund Hazard Ranking System (HRS).  Addition of a Subsurface Intrusion Component to the Hazard Ranking System, RIN 2050-AG67 (February 3, 2016).

By adding the consideration of vapor intrusion, hundreds of sites that previously would not rank high enough to qualify for listing on the National Priorities List (NPL) would now likely qualify. NPL listing is a prerequisite to EPA spending sums over $2 million to conduct remedial actions. NPL-listed sites are generally more expensive to remediate and more difficult to sell than are other environmentally distressed properties.

In its support materials, the EPA noted that the Government Accountability Office (GAO) had concluded that “if vapor intrusion sites are not assessed and, if needed, listed on the NPL, there is the potential that contaminated sites with unacceptable human exposure will not be acted upon.” The HRS is Appendix A to the National Oil and Hazardous Substances Pollution Contingency Plan (NCP), and is used by EPA to identify hazardous waste sites eligible to be added to the NPL.

SsI can be defined as the migration of hazardous substances, pollutants, or contaminants from contaminated groundwater or soil into an overlying building. SsI may result in exposure to harmful levels of hazardous substances, that may be amplified by extended time spent in buildings where SsI occurs. The EPA claims that this may raise the lifetime risk of cancer or chronic disease. In an effort to ensure that SsI contamination is consistently evaluated, the EPA has proposed to add an HRS component that will allow EPA to evaluate threats posed by SsI.

The Agency has provided an HRS Subsurface Intrusion webpage to afford the regulated community and interested parties with more detailed information on the rulemaking.

The EPA Administrator, Gina McCarthy, signed the Notice of Proposed Rulemaking on February 3, 2016.  The public comment period for the proposed rule will be sixty days from the date of publication in the Federal Register.

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.”

LUST PVI GUIDANCE

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.

OSWER VI GUIDANCE

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.