|
NEW YORK
Soil Vapor Intrusion: A Volatile Issue
In simple terms: If you put a building over contaminated soil or groundwater and the contaminants are volatile (i.e., tend to form a vapor or a gas), indoor air contamination can occur — especially if part of the structure (e.g., a basement or crawl space) is underground and vapors can collect there. That is “vapor intrusion” (VI).
VI has major implications for brownfields and other contaminated properties in New York State. The problem is that, even after volatile organic compound (VOC) contaminated soils have been cleaned up, some potential for VI remains.
In the face of uncertain long-term health effects of VOCs in indoor air, the N.Y. Department of Health (DOH) has taken a precautionary approach and enforces (abetted by DEC under the brownfield program) the most stringent VI restrictions in the country. Where DOH thresholds are exceeded, costly vapor collection and ventilation systems are mandated — similar to those used for radon in schools.
Airborne compounds in the workplace have traditionally been regulated by the Occupational Safety and Health Administration (OSHA), with permissible exposure levels calculated on the assumption that workers would be exposed only during limited workday hours. DOH has taken issue with this approach where airborne compounds migrate from impacted soil or groundwater into a facility. Internal DOH guidance calls for controlling airborne compounds in these facilities to residential background concentrations.
Applying this policy to the workplace has been challenged. However,EPA and OSHA contend they have no power to prevent DOH from applying a more stringent standard.
The impact of this policy may be particularly onerous, and the N.Y. business climate may suffer further if rigid “command and control” management requirements are imposed anytime VOC or soil vapor concentrations exceed very low numeric thresholds. The N.Y. brownfield law requires DEC and DOH to “consider and encourage the use of innovative technologies.”
One can hope that, in developing new VOC soil cleanup objectives, the state will focus on “performance” objectives rather than absolute numbers and will promote technologies that inhibit the formation and migration of soil vapors in the first place.
By Ken Kamlet, director of legal affairs for Newman Development Group,
LLC in Vestal, N.Y., and Erich Zimmerman, remediation group manager for ARCADIS
G&M, Inc. in Buffalo, N.Y. Kamlet and Zimmerman co-chair the legislative
and policy committee of the New York chapter of the NBA.