PADEP Will Continue to Forge Ahead With Efforts to Rewrite Its Municipal and Residual Waste Regulations in 2008

January 16, 2008
by MICHAEL GROSS
Client Alert Newsletter Forecast 2008

Vapor intrusion issues continue to generate headlines and create concerns for owners and prospective purchasers of contaminated property, with both government and the private sector weighing in with new vapor risk assessment methods. The Pennsylvania Department of Environmental Protection ("PADEP"), New Jersey Department of Environmental Protection ("NJDEP"), and U.S. Environmental Protection Agency ("EPA") all appear to be currently or soon requiring more direct testing for vapors in indoor air, rather than allowing remediators to rely on models to demonstrate a lack of vapor risks at a particular site. EPA has also developed a new database of vapor samples from actual sites throughout the country for use in making site-specific conclusions about potential vapor exposures at analogous sites, potentially further reducing the relevance of modeling.

In terms of private sector efforts, ASTM International is on the verge of issuing a new vapor intrusion standard to be used as an overlay to the current "All Appropriate Inquiry" Standard (E-1527-05) to assess the potential for soil and groundwater vapor risks on or near a property that is the subject of a commercial real estate transaction. The ASTM standard will consist of a four-tier screening evaluation, ranging from non-invasive screening (Tier 1) to indoor air sampling and mitigation (Tiers 3 and 4), designed to identify and remedy a Vapor Intrusion Condition ("VIC") or a potential VIC ("pVIC") defined as vapor at concentrations that may present an unacceptable health risk to occupants.

Given the increased focus on vapor intrusion risks, a concern is emerging that identification of vapors could serve as a "reopener" for numerous brownfield sites that previously received final approval and/or cleanup liability protection from a state environmental agency through successful completion of a voluntary or obligatory cleanup program (e.g., Act 2 in Pennsylvania or the Site Remediation Program in New Jersey). Vapor intrusion litigation is also on the rise in numerous jurisdictions. In New York, more than 240 plaintiffs, including 151 adjacent business owners and residents, have sued IBM over the presence of vapors allegedly emanating from a plume of trichloroethylene ("TCE")-contaminated groundwater near a former IBM facility in Endicott, New York. The plaintiffs in Blaine v. IBM seek in excess of $100 million in damages stemming from claims related to cancer and other illnesses, property devaluation, loss of business, medical expenses, and related medical monitoring. Significant federal legislation has also been introduced by Senator Hillary Clinton (D-NY): S. 1911, the TCE Reduction Act of 2007, would require EPA to publish a health advisory for TCE that protects the health of susceptible populations from vapor intrusion. Depending on the outcome of the 2008 presidential election, efforts aimed at eliminating vapor intrusion could become a significant environmental initiative of the next administration.