• Many Illinois NFR Applicants Will Soon Need Vapor Intrusion Analysis
  • January 16, 2009 | Author: Harvey M. Sheldon
  • Law Firm: Hinshaw & Culbertson LLP - Chicago Office
  • The Illinois EPA has filed significant proposals to revise the rules that enable people to obtain No Further Remediation (NFR) letters. The rules, sometimes called TACO rules, are risk-based. They provide a “tiered approach to corrective action,” whereby a system is in place to say how clean a site must be for given future uses (e.g. residential or commercial/industrial). The TACO rules are in effect for formal regulatory programs dealing with leaking underground storage tanks and hazardous waste sites. Illinois EPA (the “Agency”) also uses them under its voluntary Site Remediation Program, which allows voluntary submission of applications for NFR letters.

    In recent years, concern has grown among environmental regulators that there are vapors given off by gasoline and other volatile compounds which pollute the ground and groundwater beneath a site. Where structures are present, under some conditions vapors can penetrate into interior spaces and pose health risks to occupants when the vapors are inhaled.

    The proposed vapor intrusion rules are now pending before the Illinois Pollution Control Board. (In Re: Proposed Amendments to Tiered Approach to Corrective Action Objectives, PCB R09-9). Three Hearings have occurred, and more are set for March 2009. The rules proposed set out three “tiers” or methods of assessing vapor intrusion risk at a site. In Tier 1, default generic objective values are given using the so-called Johnson & Ettinger vapor modeling protocol. These are conservative defaults, and a Tier 2 demonstration can be made with site specific data if the Tier 1 analysis is not satisfactory to show acceptable risk. Tier 3 analysis would involve obtaining sub-structure soil gas data (as opposed to contamination levels).

    Illinois will be joining a number of other states in requiring interior inhalation pathway analysis. In March 2008, the ASTM adopted a Standard Practice for Vapor Intrusion into Structures. The current Illinois EPA proposal will establish generic risk-based standards that would be utilized in the ASTM protocol. Fifty-nine chemicals of concern are listed in the proposal as deserving vapor intrusion analysis. Soil vapor saturation limits are proposed for them, too.

    The cost of obtaining NFR letters will go up for most leaking storage tank and solvent contamination sites. After the rules take effect, any applicant for an NFR letter will automatically need to have its consultants address the issue of possible indoor vapor inhalation if it seeks a letter for a chemical or substance in the ground or groundwater that is suspect for vapors. Additionally, any NFR application still pending upon date of adoption will have to be supplemented to address vapor intrusion. According to Doug Dorgan of Weaver Boos consultants, a respected consultant on these issues, applicants for any site seeking an NFR letter, where issuance before Spring 2009 is doubtful, should give consideration now to the possible need for vapor intrusion analysis.

    The “fix” for vapor intrusion can range from excavation, to interior building control technology. Since vapors can penetrate some solid barriers and foundations, barrier control would have to demonstrably be essentially impervious to the vapors. Where vapor risks are present prior to construction, there are means available to provide a barrier in the construction plan.

    The Illinois EPA proposal also includes other amendments to the TACO regulations, including addition of new chemicals to the regulatory scheme, updated toxicity values, and new groundwater ingestion and quality proposals.

    Parties dealing with Illinois real estate should take vapor intrusion prospects into account when evaluating a site for sale, purchase, lease or development.