Federal Facilities

EPA's recently released draft guidance for assessing and mitigating toxic vapor intrusion from chlorinated solvents suggests the final version will be a “game changer” at contaminated sites, cleanup experts say, increasing cleanup liability and creating additional assessment work at sites where exposure may occur.

The guidance, released for public comment April 26, comes as many property owners and consultants already face increased costs from vapor intrusion concerns, including calls in some states for further assessment and mitigation at sites regulators once said were closed from further investigation, Michael Gross, a lawyer at Manko, Gold, Katcher & Fox, said during a recent webinar sponsored by the American Law Institute Continuing Legal Education (ALI CLE).

During the May 13 webinar, “Vapor Intrusion: Legal Concerns, Risk Management, and Scientific Factors for Attorneys and their Clients,” Gross and cleanup consultant Bart Eklund said lawyers should caution their clients to consider investigating vapor intrusion at any site possibly at risk. In addition to more detailed and costly assessments, site owners also face possible liability from an uptick in toxic tort claims from building occupants exposed to chemicals from a property owner's site through vapor intrusion.

“This is not a theoretical liability,” Gross said. “The cases are relatively new within the last five years.”

Vapor intrusion occurs when contamination rises from underground soil or groundwater into overlying buildings through dirt floors, cracked foundations or other pathways such as utility line openings. While largely ignored in years past, some EPA officials now call vapor intrusion the pathway most likely to cause actual human exposures since people can avoid drinking contaminated water.

EPA's draft guidance documents for addressing vapor intrusion risk from chlorinated solvents and petroleum contamination could have implications for many of the estimated 440,000 vapor intrusion sites in the United States. While the documents are aimed at sites governed by the federal Comprehensive Environmental Response, Compensation & Liability Act and the Resource Conservation & Recovery Act, Gross said, aspects of the guidance could be adopted by state agencies or come into play at other brownfield cleanup sites.

The guidance's call to assess multiple lines of evidence will lead to more detailed investigations and possibly more monitoring and mitigation at sites undergoing the Superfund five-year review process, where remedies at contaminated sites are re-examined to determine if the cleanup remains protective, Gross said. Guidance issued last November called for addressing potential vapor intrusion risks into the reviews.

EPA's increased emphasis in the draft vapor intrusion guidance on indoor air sampling, Eklund said, will increase consultants' struggles with differentiating vapor intrusion from background contamination in indoor air. Regulators and consultants will also spend more time coordinating and explaining vapor intrusion investigations to residents and building occupants.

An aspect of the draft that Eklund said was unclear is whether EPA will continue to defer to weaker standards set decades ago by the Occupational Safety And Health Administration at buildings where chemicals are used or stored. Eklund called the new guidance vague on that issue, suggesting EPA may in the future claim “authority anywhere they choose to.”

While EPA's guidance will change how and when vapor intrusion is investigated, the experts said other upcoming guidance will also have an impact on cleanup decisions. The Interstate Technology & Regulatory Council is creating a technical guidance to help regulators and consultants investigate sites at risk for vapor intrusion from petroleum contamination, and ASTM, an international standards setting organization, is working on a standard to help risk assessors to determine when methane below ground poses an explosive risk to overlying buildings.

Environmental and energy innovation advocates are recommending that the Department of Energy (DOE) significantly restructure in order to better support new energy technologies, including shifting nuclear weapons and cleanup responsibilities to EPA and other agencies and reorganizing its offices based on energy uses rather than sources.

The April 3 report, authored by the Clean Air Task Force and the Energy Innovation Reform Project, finds that DOE “continues to underperform against expectations” despite billions in stimulus law funding, the Advanced Research Projects Agency-Energy (ARPA-E) and other efforts and programs to improve the department's performance.

“[W]e do believe that government can play a vital role in catalyzing technological innovation in the future, as it has in the past. The key to progress, and the overarching spirit of our recommendations, is to ensure that the goals and technical milestones of government-assisted energy research and development are established not by elected officials and political appointees but by scientists and engineers working in collaboration with private-sector energy technology providers,” the report states.

The report was issued days before Ernest Moniz, the Obama administration's nominee to lead DOE, appeared before the Senate Energy and Natural Resources Committee for his confirmation hearing, where he did not address calls for wholesale reform but promised a series of changes to how the department is managed. For example, he told Sen. Maria Cantwell (D-WA), who asked about ways to advance a smart grid, that he wanted to work differently with energy laboratory directors “so that they are engaged more in the strategic decisions about where we all go together.”

Discussion of possible reforms could also occur in the context of a looming debate over DOE's fiscal year 2014 budget, which the Obama administration unveiled April 10. The Senate energy committee is slated to hold a hearing on DOE's budget April 18, but an agenda for the hearing has not yet been released.

The report recommends that DOE take a number of steps to better focus their efforts to advance energy technologies, including moving nuclear weapons programs to the Department of Defense and environmental cleanup efforts to EPA or the U.S. Army Corps of Engineers. “DOE uses contractors to manage and conduct cleanup activities. EPA or the Army Corps can easily do the same,” the report says, adding that the Army Corps “has experience performing environmental remediation, including projects involving radioactive contamination.”

If EPA were to become responsible for cleanups, the report notes that “[EPA] might gain a richer, first-hand perspective on the costs and benefits of its own regulations, leading to more practical, realistic approaches to regulating environmental cleanup. Some may argue that EPA should not be allowed to regulate itself in these projects. There are multiple checks and balances, however, to protect against the danger of an unaccountable EPA. In addition to congressional and presidential oversight, affected States and other parties will retain access to judicial review and remedy should a situation arise where EPA’s applications of its rules for its own cleanups are less rigorous than what it requires for others.”

The report also suggests that DOE restructure its offices, arguing that its current setup “stovepipes” applied energy programs by technology and thereby promotes “factionalism rather than focusing on innovation that meets America’s energy needs.” Instead, DOE should consolidate its office and focus more on “energy end use rather than primary energy source," creating offices of power and grid technologies, transportation and fuel technologies and advanced energy efficiency technologies.

The outlook for implementing the recommendations remains murky, with the groups acknowledging that any reform efforts could span several administrations. But DOE has already taken some steps toward eliminating stove-pipping in its energy program, with DOE officials recently touting a plan to create a new transportation office within its Office of Energy Efficiency and Renewable Energy. Department officials have said the move will help better coordinate and prioritize research and development programs for biofuels, electric vehicles and other advanced technologies.

Elsewhere in the report, the groups recommend that DOE should adopt new methods for supporting “first-of-a-kind” commercial demonstration projects like the carbon capture and sequestration project FutureGen 2.0, finding that “ DOE has proven itself to be virtually incapable of executing” such projects. And the report faults DOE's "micromanagement" of its national labs, saying the department “should evaluate the labs on their progress in overcoming technology challenges and other strategic outcomes, ending its micromanagement."