A Twofer: Indoor Air and Guidance v. Regulation

Vapor intrusion is the issue de jour at federal and state Superfund sites. On the federal side, EPA announced in January that it was considering adding vapor intrusion criteria to its calculation of hazard ranking scores. Frankly, as a concept, it’s hard to dispute. In fact, aside from when actual public water supplies are contaminated, indoor air is probably about the only risk associated with Superfund sites that we should care about. Every analysis EPA has ever done has shown that risks associated with Superfund sites are otherwise overestimated and it is not a cost-effective place to be putting environmental protection dollars. The question of course is how to go about regulating indoor air.

MassDEP is attempting to answer this question at the state level as we speak. In December, MassDEP released its draft vapor intrusion guidance document. The Guidance, including appendices, totals 142 pages and 2.2 MB of pdf files. You probably know where I’m headed with this. How can any set of documents that long be appropriate for guidance, you may ask. Like Tevye in Fiddler on the Roof, I’ll tell you. I don’t know.

Today, NAIOP provided MassDEP with 54 single-spaced pages of comments on the draft guidance. Kudos to NAIOP’s 21E Committee, and particularly Ned Abelson, for truly herculean efforts in putting together these comments. The problems I identify below are all described in detail in the NAIOP comments.

There are many substantive issues with the Guidance. Here are two high-level ones:

It would be another step away from the risk-based program that Massachusetts pioneered almost 20 years ago. Whatever MassDEP officials may say, there’s a lot of evidence that those actually running the program simply don’t trust the privatized risk-based system that has been such a success.

The Guidance will make it very difficult for sites with even potential VI issues to achieve regulatory closure. The difficulty in obtaining closure will, in turn, discourage brownfields redevelopers from pursuing VI sites. The disincentive will, in turn, mean that fewer sites will actually be cleaned up. How will that achieve MassDEP’s goals?

In any case, how can this possibly be implemented as guidance? Simply put, anyone who thinks that the Guidance will not be rigidly implemented by MassDEP is delusional. My favorite discussion of this issue is contained in the 2000 Appalachian Power decision. In dismissing EPA’s contention that the guidance document at issue in that case was not binding, the Court said this in response to EPA’s reference to its boilerplate statement that the guidance created no rights: 

“[R]ights” may not be created but “obligations” certainly are…. The entire Guidance, from beginning to end – except the last paragraph – reads like a ukase.

Here’s just one example, to wrap up an already overly-long post. In determining whether basements should be evaluated for VI purposes as living spaces, the Guidance provides that “any basement with at least seven feet of head room in an occupied residential dwelling should be considered a living space.” What’s the likelihood that any street-level bureaucrat at MassDEP will ever allow any basement with at least seven feet of headspace to be considered as anything other than a living space? 

Sounds like a rule to me. Sounds like regulation – not guidance. 

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