EnviroNotes

Vapor Intrusion: Businesses Should Beware Exposure Risk
Ozone Nonattainment Designations to be Removed for Several Indiana Counties
Federal Boiler MACT Revised; IDEM Drops Extra Measures

By Andy Bowman, Chair, Environmental Law Group, Bingham McHale LLP

Over the last few years, vapor intrusion (VI) of contaminants into homes as well as commercial and industrial buildings has received increasing attention from regulators, health officials and businesses. VI is the migration of volatile chemicals from below the ground into overlying buildings. Volatile chemicals can originate from buried wastes or contaminated groundwater.

Common volatile chemicals of concern include trichloroethylene (TCE), tetrachloroethylene (Perc or PCE) and benzene. TCE is a common solvent used as an industrial degreaser, but it can also be found in commercial adhesives and cleaners. PCE or Perc is used in drycleaning and also as a degreaser. Benzene is a constituent of gasoline and also may be used to manufacture pharmaceuticals, plastics and pesticides. Exposure to TCE, PCE or benzene vapors can, at high enough levels, cause acute health effects. VI, however, often involves lower levels which cannot be smelled but which can pose an unacceptable risk of chronic health effects due to long term exposure. Long term exposures to TCE, PCE, benzene or other volatile chemicals may increase the risk of cancer.

VI often was not considered as an exposure pathway by regulators. Recent discoveries of contaminated vapors in homes and businesses has caused more attention to be given to this complex area. A plume of contaminated groundwater can extend a considerable distance from the source of a spill or leak. Chemicals in the plume can rise through the soil as a vapor and enter a building through a porous concrete slab, cracks in the foundation, untrapped drains and utility conduits. VI is affected by a number of factors including soil type and moisture content, depth to groundwater, contaminant levels, building materials, location and macropores. The interaction of these and other factors is not well understood.

The U.S. EPA issued a draft guidance in 2002 for the evaluation of VI to indoor air (here). This draft guidance has not been finalized and has been subject to criticism as being overly conservative. The National Exposure Research Laboratory issued a report in September 2005 which identified limitations in the approach used in the guidance and called for further research. At the same time Indiana and several other states are moving forward to develop their own VI guidance.

What does all this mean for a business owner? If your business is located in an area with historical volatile chemical contamination in soil or groundwater, vapor intrusion screening should be considered. If you are considering purchasing or leasing property to locate or expand your business, it may be prudent to consider performing a screening to determine whether VI is a potential risk. The past practice of relying only on a Phase I environmental site assessment may no longer be sufficient.

Let me illustrate by means of a recent example. An Indiana company had a Phase I environmental site assessment conducted on property which had previously been farmland and an orchard. The Phase I report identified a former factory within one-half mile which had a reported spill of TCE 15 years ago. The consultant concluded that due to the location of the former factory, the apparent groundwater flow direction (no groundwater testing was conducted), and the availability of water from a utility, the past spill was of no concern and further investigation was not warranted. The property was purchased and buildings constructed. Months later the company discovered that the location of the former factory had been erroneously described in the Phase I report and that a plume of TCE contaminated groundwater extended under several of the buildings it had constructed and sold. Testing revealed that TCE levels were elevated inside some of the buildings. The buyers of the buildings have filed lawsuits against the company alleging loss of property value and health impacts.

Even though the science of VI is still emerging, VI screening can help reduce the risk of encountering the problems confronting the company in the example. It is critical that the VI screening be conducted by a qualified, experienced consultant to make certain that samples are collected at appropriate locations and depths using the proper protocols to ensure that useful data is generated in a cost-effective and timely manner. Additionally, the consultant must be able to properly interpret and report the results. Make certain that the consultant is knowledgeable of current VI developments, including U.S. EPA’s March 2006 report providing guidance on VI sampling procedures developed at a large scale site in Connecticut.

Ozone Nonattainment Designations to be Removed for Several Indiana Counties

By Stacey Pfeffer, Environmental Policy Analyst, Bingham McHale LLP

On April 14, 2004 U.S. EPA designated 23 counties and one partial county in Indiana as nonattainment with the 8-hour ozone standard National Ambient Air Quality Standard (NAAQS). Since 2004, U.S. EPA has recognized that six of those counties are now in compliance with the NAAQS, and has published final redesignation rulemakings for Delaware, Greene, Jackson, Vanderburgh, Vigo, and Warrick Counties. On March 1, 2006 the IDEM Office of Air Quality (OAQ) presented to the Air Pollution Control Board for preliminary adoption a rulemaking to make the federal redesignations effective in the state program. The rulemaking is scheduled for final adoption on May 3, 2006. Until the state rule becomes effective, major sources in those areas must continue to comply with the Emission Offset permitting program for new major sources and major modifications at existing major sources.

The nine county region referred to as the Indianapolis Metropolitan Statistical Area (MSA) includes Madison, Hamilton, Boone, Hendricks, Morgan, Johnson, Shelby, Hancock and Marion Counties. The IDEM has stated that additional requirements may be necessary to bring this area back into attainment with the 8-hour ozone standard. The IDEM has proposed two rules so far. The first one, LSA #05-165, deals with degreasing operations and is scheduled for preliminary adoption in May. The second one, LSA 05-267, deals with low Reid vapor pressure and was published for Second Notice in the January 1, 2006 Indiana Register. However, if the Indianapolis MSA meets the 8-hour ozone standard prior to Spring 2007, the IDEM may be able to submit redesignation petitions without requiring any additional controls or restrictions.

The remaining counties that were designated nonattainment with the 8-hour standard in 2004 (Lake, Porter, LaPorte, St. Joseph, Elkhart, Allen, Clark, and Floyd) are currently monitoring as in attainment and are eligible for redesignation. The IDEM continues to work on these plans and hopes to have these counties redesignated as attainment areas by the end of the year.

The leader of the redesignation effort is Scott Deloney, the Chief of the OAQ Program Planning and Policy Section. Mr. Deloney was recently recognized for his success in achieving the redesignations for six counties in record time. He was one of the first recipients of Governor Daniels’ Public Service Award.

For more information on the 8-hour ozone designations in Indiana, go to http://www.in.gov/idem.

Federal Boiler MACT Revised; IDEM Drops Extra Measures

By Stacey Pfeffer, Environmental Policy Analyst, Bingham McHale LLP

On December 28, 2005, U.S. EPA published a final rulemaking that amended the National Emission Standards for Hazardous Air Pollutants for Industrial, Commercial, and Institutional Boilers and Process Heaters (commonly referred to as the “Boiler MACT”). The amendments were based on comments received from the July 27, 2005 Notice of Reconsideration and Request for Public Comment. In the final rule, U.S. EPA clarifies the process for demonstrating eligibility to comply with the health-based compliance alternative contained in Appendix A of the Boiler MACT.

The amendments to Appendix A include:

• Equations were added for calculating a weighted average stack height metric for use in a look-up table analysis for hydrogen chloride (HCl) and manganese. Other equations were reformatted to conform with this amendment.
• The text was revised to clarify that all sources subject to HCl and total selected metals (TSM) emission limits, not just large solid fuel-fired units, may demonstrate eligibility for the heath-based compliance alternatives.
• Language was amended to explicitly state that eligibility demonstrations may be reviewed by U.S. EPA or any State, local or tribal agency that has been delegated Title V permitting authority to verify that the demonstrations meet the requirements of Appendix A and are technically sound. The rule has been amended to clarify that that a look-up table analysis may not be used for the eligibility demonstration if the permitting authority determines it is not appropriate based on site-specific factors.
• The text was revised to clarify the location where hazards must be assessed. The phrase “where people live” has been changed to indicate that hazards must be assessed where people live or congregate.
• Language has been revised to specify that new or reconstructed sources must submit the preliminary eligibility demonstration at the same time the source submits an application for approval of construction or reconstruction.
• Existing requirements were reorganized to clarify that the parameters that are required to be incorporated into the Title V permit must be submitted at the same time as the eligibility demonstration. In addition, the list of parameters that should be considered for inclusion as enforceable permit limits was expanded. U.S. EPA clarified that changes in any of the parameters would necessitate a reassessment of the eligibility demonstration.
• The text was revised to clarify that sources eligible for the health-based alternative for TSM are subject to two alternative requirements: the health-based compliance alternative for manganese emissions in Appendix A and the alternative MACT emission limitation for seven selected metals set forth in 40 CFR § 63.7507(b).
  

The final rule as amended by U.S. EPA on December 28, 2005 can be viewed at: here.

In IDEM’s draft rulemaking (LSA #05-23) to adopt the Boiler MACT, IDEM had initially proposed to add additional implementation measures to the health-based compliance alternative. The IDEM has stated that U.S. EPA’s amendments make IDEM’s proposed changes unnecessary. IDEM’s rule was preliminarily adopted by the Air Pollution Control Board on March 1, 2006. The preliminarily adopted rule incorporates the Federal Rule, as amended, by reference. In addition the state rule allows source wide emission averaging and clarifies that test protocol forms are due 35 days prior to an emission test. Comments on the deletions made from the preliminary adopted rule must be submitted to the IDEM by April 24, 2006. The IDEM has committed to schedule a future public meeting to discuss implementation issues. The IDEM plans to present the rule for final adoption at the June 7, 2006 Air Pollution Control Board meeting. Indiana Register April-1-2006

On October 31, 2005, U.S. EPA proposed amendments to allow for consolidated testing of commonly vented boilers under the emissions averaging provisions and updated the list of available American Society for Testing and Materials (ASTM) test methods. The IDEM has stated that it will add these amendments to the state rulemaking when the federal rule becomes final. To view the October 31, 2005 proposed amendments go here.

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