Industry Raises Concerns Over EPA Vapor Intrusion Guide Development

December 28, 2012 – In The News

Industry officials are raising concerns that regulators will implement a highly detailed and prescriptive EPA guidance on vapor intrusion as regulation and are urging EPA to formally circulate a final draft of the document for public comment, although sources say it is uncertain whether industry will sue over potential implementation challenges or administrative law concerns.

Calls for public comment on a final draft guidance increased after Inside EPA obtained recent drafts of the guidance for addressing vapor intrusion from chlorinated solvents, confirming for industry that the final guidance will be very different from a 2002 version EPA released for public comment.

While EPA has taken comment this year on technical documents used to create the vapor intrusion guidance, which lays out a framework for investigating contaminated sites and recommends longer-term sampling of indoor air, industry sources say that is insufficient and that a review of a final draft is needed to reduce the risk of implementation problems and possibly legal challenges when the final document is published.

Fox Rothschild LLP, which represents landowners and responsible parties, urges EPA in Dec. 6 comments to release a draft for public comment because a Nov. 7 draft version of the guidance shows the 2002 draft guidance "has not been updated, it has been completely rewritten," in ways that are troubling because the new language could "generate unnecessary fear" about vapor intrusion risks.

EPA has acknowledged the current version of the draft guidance is significantly different than the 2002 version, with EPA's Richard Kapuscinski, who has overseen the guidance's development.

Fox Rothschild's December comments say discussing vapor intrusion risk with residents or workers can cause fear and suspicion so the wording of a final guidance will be critical for both responsible parties and communities.

"There are aspects to the November 7 draft that are troubling to us -- language and requirements we believe will generate unnecessary fear or leave even reasonable and thorough investigations subject to criticism that more work could or should be done," the comments say.

Putting a final version out for comment, the firm says is consistent with White House policy on good guidance and would increase the likelihood of public confidence and acceptance.