Quick Overview of Vapor Intrusion(“VI”) and Regulatory Standards:
Vapor intrusion is caused by contaminated soil and/or groundwater. VI conditions can occur via natural movement of vapor through soil, as well as migration facilitated through and along underground drainage and utility lines [ “preferential pathways”]. Vapor migration situations caused by TCE and PCE are commonly encountered, despite the fact that these solvents are no longer commonly used. One key reason is that historic dry cleaners, auto repair facilities and small industrial shops often get a “passing” grade in rigidly performed Phase I site investigations [See my Jan.27, 2016 blog] because of the absence of obvious evidence of either contamination or agency files indicating historic regulatory issues. Consequently, these potentially impacted sites are allowed to evolve into environmentally benign neighborhood commercial establishments without either documentation or remediation of historic leakage and spillage of solvents. The day of reckoning may arrive years later when a Phase II investigation is finally done and groundwater contamination is detected above cleanup standards and above the established VI screening level. These findings lead to requirements for further plume delineation as well as possible VI sampling in nearby buildings.
If indoor air sampling shows VOCs above established VI standards, the legally responsible party will usually be required to implement remedial action such as installation of a vapor mitigation system. There will also be continuing concerns about property value and the possibility that occupants of the home have already been exposed to contamination for a substantial period of time.
Many VI standards for VOCs are extremely low [e.g. TCE standard of 3 ug/m3 in New Jersey, and proposed TCE standard of 2.1 ug/m3 in Pennsylvania] and are therefore readily triggered. Such standards are based on extrapolation from animal research data which is typically focused on long-term exposure at fairly high levels. There have also been human epidemiologic studies such as the recent effort at the IBM plant in New York. The data as a whole are widely acknowledged to be inconclusive and in need of further research. Nevertheless, EPA stands by its no-risk level (Rfc) of 2 ug/m3 TCE for all media; and this has become a benchmark for state standards seeking to accomplish maximum protection of public health, pending development of more reliable information.
Short-Term TCE Exposure and Risk of Birth Defects:
The highly charged atmosphere of vapor intrusion has been turned up several clicks by growing additional concern over potential cancer and non-cancer risks from short-term exposure to VOCs. Of particular concern is TCE-- and EPA warnings beginning in 2011, of the possibility of fetal heart damage occurring early in a pregnancy. A number of states, including New Jersey have recently issued guidance (NJDOH June 2016 Fact Sheet] specifically addressing TCE and congenital heart damage, and recommending response action for residents. NJDEP has distributed the fact sheet to LSRPs with recommendations for how and when to include the fact sheet with VI data given to residents. Issuance of a generic, accurate, and understandable guidance on a complex and sensitive public health issue raises challenges for regulators in any state. New York, Massachusetts and Ohio are among the limited group which has also attempted to address the acute TCE exposure issue. However, the New Jersey fact sheet and LSRP recommendations starkly illustrate some of the key challenges—thereby providing a vehicle for discussion of issues. To the extent I am singling out the New Jersey effort in this blog entry, it is with all due respect to both NJDOH and NJDEP and for the sole purpose of constructive dialogue.
The 2016 New Jersey Dept. of Health TCE Fact Sheet
The NJ Dept. of Health (DOH) fact sheet, states that: “...animal studies show that exposure to low levels of TCE during the three-week period of heart formation in the first trimester of pregnancy could result in an increased risk of a heart defect in the unborn baby”. [emphasis added]
It also states that: any woman exposed to TCE above vapor intrusion standards who is pregnant or “who may become pregnant” should “reduce their exposure to TCE as soon as possible” and talk to a health professional. [emphasis added] Just in case the reader has missed the point, the fact sheet also includes a photo of the abdomen of a quite pregnant woman.
I think the intent was to create awareness of potential immediate health concerns, which an individual can then pursue individually with government personnel by telephone, or with their personal doctors. That makes some sense in principle; but I think it could be received poorly by residents in real time. Remember that the fact sheet is intended for distribution to families who were very recently told that that there is a contaminated property in the neighborhood, raising the need to test air in their home. Now you are telling them that their home is in fact contaminated. I think if there is anyone in the household who is definitely pregnant or trying to be, they will be scared to death, regardless of the qualified terminology used in the fact sheet. Many of these people will immediately seek answers to predictable questions, either from the LSRP or from NJDOH, NJDEP, EPA, or ATSDR [ as the fact sheet invites them to do]. In the absence of a well-funded and material upgrade to existing communication resources, it is optimistic to expect that these inquiries can be adequately and skillfully handled.
The other reality is that government agencies will always have restrictions on the extent to which subjective information about health risk can be provided over the phone. When residents receive incomplete answers to their questions, combined with the heavily nuanced risk language of the fact sheet, many will feel like they are being “managed”—like the government feels obligated to say something but really doesn’t know the answer and is not in a position to provide a solution. This leads to the anger and hostility toward government officials and responsible parties alike, which we often see at local public meetings about environmental situations in residential areas. Among the people reacting this way will undoubtedly be those who call the phone number in the fact sheet for the Rutgers University Occupational Health Sciences Institute and are told [ as the fact sheet does imply] that the Institute can only talk to a health care provider.
Obvious questions which should be anticipated
If we are going to distribute fact sheets about dangers to unborn babies, we can expect a number of predictable and complex questions to be raised by recipients. Some of the these could conceivably be addressed anticipatorily in a fact sheet. Some, not so easily:
- When exactly is this “3-week period” during the first trimester? I researched on google and it says the critical time for fetal heart damage could be before the end of the second gestational month. Is that true?
- Google also says that short-term vapor exposure research is considered inconclusive by many scientists—so why are you saying that research “shows” there is a problem? Is there new information?
- What do you mean exactly by “increased risk”?
- How likely exactly is harm to my baby, given the TCE level in my home?
- What does that mean-- “reduce my exposure”? Are we talking about leaving the windows open? Staying out of the basement? Evacuation of my home? When I was asked for permission to sample my home, the fact sheet I received said that if there were problems it might require a “depressurization” system like people have for radon. Are you saying that would not be enough here?
- It sounds like you have known about these TCE “risks” for a while, and it looks like this contamination may have been in my house for years. Why am I first learning about this now, when I am already 12 weeks pregnant?
General Suggestions and Observations:
In fairness, it would be impossible to meaningfully answer all reasonably anticipated questions in a fact sheet; and some questions would be tricky in any format. Nevertheless, we need to consider a more mindful attempt to anticipate obvious concerns and how people will be reacting in real time. I think we need to do a better job of communicating risks in plain and specific language. Perhaps there is a way that agencies can take some risks and honestly explain that the scientific research on acute TCE exposure is inconclusive but it is nevertheless deemed necessary and important to disclose to the public so that impacted families can make informed personal choices. I think agencies also need to find a way to clearly communicate the timing of the narrow window of opportunity for risk minimization, and the consequent need for any response to be immediate.
If time is of the essence, it also seems necessary to articulate the concentration at which emergency relocation merits serious consideration [ versus just installation of a mitigation system and implementation of interim protective measures]. It should be possible to take this approach, with appropriate caveats, and without unintentionally suggesting that any particular TCE concentration below that level is “safe”. An example would be the Ohio EPA guidance issued in August. They identify >6.3 ug/m3 as the threshold where “temporary relocation of receptors may be necessary”. Then they say that >20 ug/m3 is a threshold at which to “relocate receptors”. In between 6.3 and 20, the meaning is still unfortunately fuzzy; but the agency has at least identified a universe below 6.3, in which relocation is probably not necessary, and a universe above 20 where no one is going to tell you it might be safe to stay. That seems like a step forward from avoiding mention of any specific number and implying that response strategy cannot be rationally linked to actual TCE concentration.
The NJDEP Recommendations for fact sheet distribution by LSRPs
The NJDEP emailed a copy of the June 2016 DOH fact sheet to LSRPs. Their recommendation was that the fact sheet be given to residents [along with vapor data] “when there is an exceedance of TCE in the indoor air” and occupants of the building include “women of childbearing age”; [ emphasis added] I think the highlighted language could be problematic for LSRPS.
What is the definition of “Child-Bearing Age”?
This language puts a LSRP in the awkward position of appearing to have responsibility to determine the age of every female in a household [ summer guests as well?], and interpreting the meaning of “childbearing age”—15-44? 15-49? Perhaps it would make more sense to just distribute to all households with elevated TCE levels, and to let the residents determine for themselves whether there is a female occupant in harm’s way.
What is the applicable air concentration threshold for distribution of the fact sheet?
There also seems to be unnecessary ambiguity regarding the threshold level that should trigger distribution of the fact sheet. The DEP recommendation seems to suggest that distribution to residents is required only if there is “an exceedance of TCE.” If the intent is to distribute only if the vapor concern level of 3 ug/m3 (or immediate action level of 4?] is exceeded, why not just say so?
Another consideration is that most people do not understand micrograms and parts per billion. They tend to be extremely uncomfortable learning that their indoor air [ or drinking water] has a detectable level of a carcinogen that is “below standards”. Pregnant women and their families living in a home having a TCE level of 2.5 ug/m3 TCE, will be very preoccupied with wondering if they are really safe. They may become extremely activated upon learning that a 43-year-old non-pregnant female neighbor, with 3.1 ug/m3 TCE in their basement, received a warning fact sheet about risk of birth defects, and is having a mitigation system installed at no cost; Given the uncertainty and anxiety surrounding these issues, perhaps it would make sense to distribute an agency fact sheet to any household with detectable TCE, so that they could be informed of the TCE issue and proceed as they deem appropriate.
What about the Responsible party?
Responsible parties everywhere can no longer afford to focus solely on applicable regulatory requirements. Vapor intrusion is a fertile subject for civil litigation seeking property damages, medical monitoring, or personal injury damages for conditions allegedly caused by exposure. A typical responsible party may be decades removed from the original site contamination. Unlike regulatory obligations to investigate and remediate, which are usually strict liability, common law tort liability is very much about legal duties to warn of or prevent harm, and alleged negligent failure to do so. Thus, extent of liability can be strongly affected by how thoroughly and how promptly an off- site investigation is carried out.
In light of the narrow window of opportunity discussed earlier, there are really important access issues that responsible parties [ and agencies] need to consider for implementation of vapor intrusion sampling –
(1) How long it will take to accurately identify target property owners and addresses, deliver a request for access, obtain a positive response, make access arrangements, obtain vapor samples, obtain results, and notify residents. In most cases the answer is well over a month.
(2) What do we do in the not- uncommon situations where access requests are ignored? And what if we have a non-resident owner? In either case, requests for access are typically repeated again in 30 days, and then action to obtain a court order is contemplated. Meanwhile, tenants or other occupants are still not having their homes sampled to determine if a warning or mitigation is appropriate.
It seems fair to say that the typical process of obtaining access for vapor sampling, would disable any effort to give timely warning of birth defect risk from TCE exposure. Thus we need to consider whether a best effort to warn needs to be a lot more aggressive in attempting to gain access, regardless of any state regulatory standard or guidance on the subject. Likewise, agencies will need to consider direct involvement to facilitate timely approvals for access so that sampling and delivery of data to residents can be expedited.
This blog is intended solely as a generic commentary and should not be considered as legal advice. It is also not intended as criticism of any specific company or individual.