In recent advising and representation of clients on vapor intrusion/indoor air issues from soil and/or groundwater plumes containing chlorinated solvents or other volatile chemicals, a representative of the Texas Commission on Environmental Quality (TCEQ) advised us that the agency is moving forward with issuing guidance on vapor intrusion in the coming months. How that comes out will have potential impact not only on industrial facilities, but on real estate transactions where light industry, gas stations, dry cleaners, and other current or historical uses may affect groundwater on-site or off-site.
In transactions I have been involved in, buyers often look to address potential vaport intrusion in terms of remediation, insurance, indemnities, and other provisions in sales contracts. Lenders consider these issues and have to be convinced it will not cause liability to the borrower or cause issues with tenants and payments on leases. Lenders are concerned with payment of loans and protectin of collateral value. Vapor intrusion/indoor air has spawned lawsuits in some states.
In Texas, currently, the Texas Risk Reduction Program (TRRP) rules required notification of the TCEQ and persons exposed or who may be exposed, as soon as possible or within 60 days. The rules do allow the use of Occupational Health and Safety Administration (OSHA) or the American Conference of Governmental Industrial Hygienists (ACGIH) levels for occupational exposure. To use these levels a health and safety plan must be submitted and a certification it is being followed must be submitted to the TCEQ. Currently, these levels rather than the very low Risk Based Exposure Levels for commercial and industrial sites may be used.
In other parts of the country, EPA regional offices and some states have adopted very low levels at least as screening levels that may be below the method detection limit for testing protocols for indoor air. This makes management of indoor air and vapor intrusion difficult for some chemicals, particularly trichloroethylene. These low levels are orders of magnitude below the OSHA and ACGIH levels, and appear to be below what is necessary to protect workers.
Fortunately, it appears the TCEQ is going to continue to allow worker standards developed by an agency or organisation with a long history of developing safe levels for workers. This will allow a more rational approach to vapor intrusion and indoor air issues. The need to follow and comment on TCEQ policy and guidance on vapor intrusion/indoor air is critical to a sound policy on worker protection under environmental remediation regulations in Texas.