• Addressing Vapor Intrusion Requires Significant Use of Guidance
  • December 22, 2011
  • Law Firm: Riker Danzig Scherer Hyland Perretti LLP - Morristown Office
  • One of the areas where the NJDEP is relying heavily on guidance to provide the substance of how to conduct remediation is in the area of vapor intrusion ("VI").  Since issuing the initial Vapor Intrusion Guidance in October of 2005 ("2005 VI Guidance"), there has been increasing focus on the effect to building interiors from underlying environmental contamination.  VI concerns arise as a result of volatilization (evaporation) of certain contaminants, particularly VOCs, into the indoor air through the foundation or floor causing a risk of VOC exposure to the building's occupants.  Indeed, the Environmental Protection Agency is considering an addition to the process by which sites are scored for inclusion on the list of Superfund sites to evaluate the threats posed by VI. 

    Since its issuance, NJDEP has updated the 2005 VI Guidance on several occasions, including changing the applicable screening levels in 2006 and 2007 and, in 2009, changing sampling procedures.  In May 2011, the NJDEP issued for public comment the first major revision to the 2005 VI Guidance, a document that was prepared through the stakeholder process (the "2011 Draft VI Guidance").  Numerous comments were submitted to the Department in response to the 2011 Draft VI Guidance in June.  To date, the NJDEP has not finalized or reissued a revised draft guidance.

    The 2011 Draft VI Guidance is a lengthy, prescriptive document specifying required sampling parameters, establishing sampling frequencies, specifying monitoring and sampling equipment, suggesting system design and installation procedures, and determining long-term system monitoring requirements.  This guidance states that when evaluating and remediating the VI pathway, it is recommended that the NJDEP be consulted before implementing methodologies or procedures not included in, or contrary to, this guidance.  Further, the 2011 Draft VI Guidance states that "[j]ustification for variations from the guidance must be included in the relevant submittal that addresses the pathway" pursuant to the SRRA and the Tech Regs.  These aspects of the guidance detract from the LSRP's ability to use professional judgment and complicate the remediating party's ability to comply with the regulations. 

    VI also is addressed in other guidance documents including the Immediate Environmental Concern Guidance ("IEC Guidance"), which, in part, defines the immediate actions required of a person responsible for remediation when a VI condition that is above the Rapid Action Level is discovered.  In addition, the Interim Vapor Concern Technical Guidance is triggered when the results from an indoor air sample exceed the applicable NJDEP Indoor Air Screening Level (but is at or less than the Rapid Action Levels) creating a "Vapor Concern" (the "VC Guidance").

    The investigation and mitigation of suspected VI impacts is one area where guidance will play a significant role. The use of professional judgment and performance-based approaches by LSRPs in this area appears to be more challenging.