Hold Your Breath—Ohio EPA’s TCE Initiative Vapor Intrusion Hold Your Breath—Ohio EPA’s TCE Initiative Kevin McMurray and Chris Kahn October 25, 2017

What is Vapor Intrusion? The migration of hazardous vapors from any subsurface vapor source, such as contaminated soil or groundwater, through the soil and into an overlying building or structure. EPA, OSWER Technical Guidance for Assessing and Mitigating the Vapor Intrusion Pathway from Subsurface Vapor Sources to Indoor Air (2015)

TCE Uses Commonly used metal and textile degreaser Degradation compound of PCE, a common dry cleaning solvent Intermediate product in organic chemicals and pharmaceuticals

TCE Federal Regulatory and Guidance History 2011: US EPA’s Integrated Risk Information System (IRIS) review found evidence “suggestive of the potential” for short-term exposure to TCE resulting in potential heart defects in first-trimester fetuses. Basis of this finding is controversial June 2014: US EPA Region 9 Interim Action Levels and Response Recommendations from Inhalation Exposures to TCE in Indoor Air from Subsurface Vapor Intrusion Residential “accelerated response” threshold of 2 ug/m3 Residential “urgent response” threshold of 6 ug/m3 August 2016: Ohio EPA Recommendations Regarding Response Action Levels and Timeframes for Common Contaminants of Concern at VI Sites in Ohio

Letters to VAP Certified Professionals

CP Professional Responsibility The following standards apply to a certified professional only when providing professional services under Chapter 3746 of the Revised Code and this chapter: Must hold paramount public health, safety, welfare and the environment in the performance of professional services If a CP identifies an imminent hazard at a property at which the CP is providing professional services, the CP must: Immediately notify the volunteer or the owner or operator of the property of the need to notify Ohio EPA If CP does not receive written confirmation within 48 hours that hazard has been addressed or Ohio EPA notified, CP must notify Ohio EPA Ohio Adm.Code 3745-300-05(E)(2)(a)-(b)

Discussion Topics What is the scope of the VAP CP Standards of Conduct? At what point is the VAP CP providing professional services under the VAP? What are a VAP CP’s obligations to review past VAP projects and non-VAP projects? What is an “imminent hazard” requiring reporting? If the accelerated, urgent, or imminent hazard screening levels are exceeded, what is Ohio EPA’s authority to require or enforce the response actions in its recent guidance document? Who is required to report? Do environmental consultants have obligations under the state code of ethics as professional engineers and professional geologists? What is the scope of Ohio EPA’s legal authority: VAP Sites Non-VAP Sites

CP Professional Responsibility: Post-NFA In the event that, subsequent to the date that a CP issues a NFA letter, the CP learns that relevant facts, data, or other information existed at the time the NFA letter was issued which indicates that applicable standards were not met, the CP must do the following: Promptly notify the volunteer or the owner/operator of the property that the applicable standards were not met and of the need to notify Ohio EPA Notify Ohio EPA if volunteer or owner/operator does not submit written confirmation within 20 days that Ohio EPA has been notified Ohio Adm.Code 3745-300-06(E)(2)(f)

“Imminent hazard” Any condition which poses a significant immediate risk of harm to public health, safety, or the environment, including, but not limited to, a threat of explosion, any discharge of hazardous substances or petroleum to surface water, any discharge of hazardous substances or petroleum to ground water that threatens to immediately impact drinking water supplies, releases of hazardous substances or petroleum into the air which could result in an exposure at or to a concentration of chemicals that is immediately dangerous to life or health, or any off-site migration or release of hazardous substances or petroleum which would threaten to immediately harm public health, safety, or the environment. Ohio Adm.Code 3745-300-01(A)(63)

Questions? Chris Kahn Kevin McMurray (513) 651-6782 (513) 651-6160 ckahn@fbtlaw.com Kevin McMurray (513) 651-6160 kmcmurray@fbtlaw.com