When Repairing a Public Water Supply Well, it’s Better to Ask for Permission than Beg for Forgiveness


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Published in September 2019 Focus on the Environment Newsletter

Recently, we have heard of a couple different cases in Ohio where a public water system (PWS) found themselves the surprise recipient of a Notice of Violation (NOV) from the Ohio Environmental Protection Agency (Ohio EPA).    In each case, the PWS had hired a water well contractor to repair one of their production wells.  The repairs were relatively standard and upon completion the repaired well was returned to service.  All’s well that ends well, right?  Not quite.  During a subsequent sanitary survey/inspection of these water systems, Ohio EPA discovered the well repairs and promptly issued the PWS a NOV.  So why the NOV?  Unfortunately, neither the PWS nor the water well contractors were aware that the completed well repairs were subject to Ohio EPA plan approval.  In each NOV, the cause cited by Ohio EPA was that the repair was completed without submitting an application for plan approval to Ohio EPA as required by Ohio Administrative Code (OAC) Rule 3745-91-02 (A), that states:

 “No person shall begin construction or installation of a public water system or make a substantial change in a public water system, until plans therefor have been approved by the director of environmental protection.”

With regard to public water supply wells, OAC Rule 3745-9-01 (2) (Water Well Standards) states that a substantial change in construction or configuration of a public water system includes, without limitation:

“changing well pump design capacity; converting a well with a buried seal to a well with a pitless adapter or well house installation; converting a well that uses a well pit to a well with a pitless adapter or well house type of construction; deepening a well; installing a liner; or modifying, extending or replacing any portion of the casing or borehole.”

For a well repair project, the Ohio EPA application for plan approval is straightforward and would include a completed Water Supply Data Sheet, technical specifications, detailed plan drawings, and any supporting information.   In the cases noted above, the Ohio EPA allowed the PWS to address the NOV by submitting the required application for plan approval after the fact.  Unfortunately, in one of these cases, the Ohio EPA determined that the well repair was not in compliance with the OAC Water Well Standards and thus was not approvable as constructed.  Eventually, the PWS was issued conditional approval with the condition being that the PWS install a new replacement well and then permanently seal the repaired well, a project that that cost significantly more than the original well repair.  Had the PWS submitted the application for plan approval prior to repairing the well, Ohio EPA would have rejected the plan and the repair design could have been modified to conform with the OAC Water Well Standards and the repaired well would have been approved, without condition, for service.   The lesson learned is that before making any alterations to your water supply well, contact your Ohio EPA District Office to determine in advance if the proposed alteration requires prior plan approval from the agency.    

Published in September 2019 Focus on the Environment Newsletter

Environmental projects and sites generate a large amount of data and documents. With each passing year, electronic data and documents become increasingly vulnerable to permanent loss due to changing storage technology, corruption of storage media, malware and viruses, operating system upgrades, or a general loss of our ability to run the original programs that created these data or documents.  Keeping these electronic data and documents alive can be a challenge, but it takes forward-thinking approaches to make it happen.  In this article, we will examine the issues and present solutions, some of which may surprise you. 

Your valuable electronic data and documents are subject to permanent loss due to many factors.  Those that may immediately come to mind include computer crashes, malware attacks, viruses, or human error.  These sorts of losses occur almost immediately and can be protected against through the use of commonly available backup/restore strategies.  Cloud backup systems are commonplace these days and should be a key element of every firm’s data management approach.  Managing data and documents on servers that include robust backup/restore strategies is perhaps the most important method today to keep data and documents alive.  However, there are other, more incipient factors, that can’t be solved through backup and restore procedures alone.  It is these factors that are the subject of this article.

Storage Media

It is not unusual for environmental projects to continue for a decade or more, or involve documents and data stored many years earlier on a variety of media.  If you take over a project from another firm, the only electronic data you receive may be on these media which, over time, have become obsolete.  Until recently, burning a document on a CD/DVD was thought to be a pretty cost-effective means of permanently storing and distributing documents and data.  However, with the advent of cloud computing, the CD/DVD became essentially obsolete and CD/DVD drives are disappearing from new computer hardware. 

What do you do when you open that box of documents and find that the data and documents are stored on 3.5-inch floppy disks, Zip-Drive disks, SD Cards, or even older 5.25-inch floppy disks?  There is no easy answer.  The first hurdle is to find the hardware needed to read the media.  The second hurdle is that all media, including CD/DVDs degrade over time resulting in data loss.  There is really nothing that can be done to overcome the second hurdle.  However, you may be able to find external drives that can be used to spin up the disks, if your operating system will support them.   

Native Programs

If you are able to resurrect the data from the storage media, the next factor to consider is that you may no longer have access to the native programs used to create these data and documents.  You may be able to open some of these files with your existing software packages, but don’t expect this to be seamless. Some loss of data should be expected.  You may be able to obtain the software packages again, but it may no longer be compatible with your current operating system.  There are some work arounds such as virtualization of older operating systems within your current operating system, but this can take a considerable amount of expertise to get it done correctly. 

Strategies to Keep Data and Documents Alive

The following strategies may be used to resurrect data and keep documents alive.

  • Keep some older desktop computers in your fleet with the older operating systems and native programs on them.  This can be a life saver in a pinch.  But take care not to keep them on your network, as they may present a number of security issues.
  • Invest in virtualization of older operating systems and programs on current hardware.
  • Attempt to archive or copy anything from older media to a portable hard drive for safe keeping before they degrade.  Develop and implement a plan to move away from CD/DVDs as well.  If you have access to cloud storage, take advantage of it.
  • Migrate database files from older database applications to newer ones, if possible.  This may be perhaps one of the more difficult tasks to manage as file formats and data types may not be compatible from one database program to another.  Once you have the data transferred, develop a robust backup scheme.  Many databases are finicky about being backed up by third party systems, so be careful not to do anything to corrupt them.  Also do periodic test restores to make sure the backups are sound.  
  • Consider scanning old maps and drawings into a database for storage as binary large objects (BLOBs).  The scanned files, which can be georeferenced for use in GIS systems, are a great way to preserve site history and make it available to multiple users in a more useable format.   

Finally, don’t assume that your consultant is adequately protecting your data and documents.  The best approach here is to verify, have access to, and regularly obtain copies of your data and documents, not just PDFs. At Cox-Colvin, we typically use the above methods and others to resurrect and preserve many of the older data and documents that we have inherited over the years.  In addition, we protect, manage and provide our clients with internet-enabled access, to their data, drawings, and environmental files as a routine business practice.  If you have a unique need, let us know, we would be very glad to help you through the process.          

Published in September 2019 Focus on the Environment Newsletter

On September 12, 2019, the U.S. Army Corps of Engineers (USACE) and the U.S. EPA (EPA) released a new rule that will repeal the Obama-era 2015 Waters of the United States (WOTUS) rule. This is “Step 1” of the repeal and replace promise made by the Trump administration.

Currently, the 2015 WOTUS rule applies in 22 states, the District of Columbia, and U.S. territories. The pre-2015 rules and guidance apply to the other 28 states. The result of the repeal will be to restore the pre-2015 authority, limitations, and guidance in all 50 states and territories. The pre-2015 guidance is in accordance with the Supreme Court’s opinion that a “significant nexus” must exist between wetlands and tributaries to navigable waters for the Clean Water Act to apply. The 2015 WOTUS rule was enacted to better define waters that had a “significant nexus”, and the 2015 rule has been the subject of numerous court cases since its promulgation.

At the time of this article, the rule repealing the 2015 rule has not been published in the Federal Register. The repeal will take effect 60 days following the publication of the rule in the Federal Register (Docket No. EPA-HQ-OW-2017-0203). It should be noted, however, that the pre-2015 rules and guidance will apply until the EPA and USACE finalize the WOTUS replacement rule (Step 2), the redefinition of WOTUS, that was proposed in February 2019. It is expected that the final replacement rule will be released in early 2020, after the agencies respond to the comments regarding the proposed redefinition rule that were received last spring.

Based on the contentiousness of this topic, it is unlikely that the court cases regarding the scope of the Clean Water Act will end following the enactment of the redefined WOTUS rule.

Published in September 2019 Focus on the Environment Newsletter

On July 11, 2019, U.S. EPA (EPA) released final policy designed to enhance effective partnerships with states in civil enforcement and compliance assurance work. The final policy memorandum is based primarily on an October 30, 2018 Andrew Wheeler memo and to a limited degree on Environmental Council of States (ECOS) recommendations as well as public review and comment.  Articulated in a memorandum from EPA’s Assistant Administrator for Enforcement and Compliance Susan Bodine, the final policy memorandum is divided into three sections.  The first section details requirements for joint planning and regular communication between EPA and states to promote enhanced, shared accountability.  The second section of the policy provides greater detail on EPA and state roles and responsibilities in implementing authorized programs.  The third and last section of the policy provides a process for the elevation and resolution of issues.

The policy reinforces the current administration’s notion of cooperative federalism  – generally deferring to states as the primary implementer of authorized program.  Exceptions to this general rule, as outlined in the policy could include the following:

  • Where the state requests that the EPA take the lead;
  • Enforcement of National Compliance Initiatives;
  • Emergency situations or situations where a substantial risk to human health and the environment exists;
  • Situations where a state lacks adequate equipment, resources, or expertise;
  • Situations involving multi-state or multi-jurisdictional interests or interstate impacts;
  • Significant violations that the state has not timely or appropriately addressed;
  • Serious violations for which the EPA criminal enforcement authorities may be needed;
  • State enforcement program review inspections; and
  • Situations that involve enforcement at federal and state owned or operated facilities.

Until recently, the Trump administration has been clear on its position on cooperative federalism as it applies to EPA. Consequently, unless targeted through the current National Compliance Initiatives (formerly National Enforcement Initiatives), most facilities and sites will not see a significant change as the result of this policy. Those facilities which are part of the National Compliance Initiatives may see an increase in federal involvement, especially where violations have occurred. 

Someone at EPA should have reminded the Trump administration of the July 11, 2019 effective partnerships memo before it decided, based clearly on politics, to revoke California’s long-standing right to set stricter air pollution standards for cars and light duty trucks.  As this issue proceeds in the courts, states will be watching, and the Trump Administration’s credibility when it comes to cooperation, under cooperative federalism, will be tested.

Published in August 2019 Focus on the Environment Newsletter

Every few years, US EPA (EPA) sets national initiatives to focus enforcement and compliance resources and expertise on what the current administration feels are the most serious environmental issues or priorities facing the country. These initiatives, formerly identified as National Enforcement Initiatives (NEIs), were renamed and adjusted in August 2018 to National Compliance Initiatives (NCIs). The NCIs are in addition to the EPA’s core enforcement work.  

In June 2019, EPA announced its NCIs for the fiscal years (FY) 2020-2023.  Prior to the June 2019 announcement, EPA solicited public comment on FY 2020-2023 NCIs through a Federal Register Notice (84 Fed. Reg. 2848, Feb. 8, 2019).

Seven priority areas were identified for FY 2020-2023.  Two of them are continuations of FY 2017-2019 initiatives, which would otherwise expire on October 1, 2019.  They are:

  • Reducing Hazardous Air Emissions from Hazardous Waste Facilities; and
  • Reducing Risks of Accidental Releases at Industrial and Chemical Facilities.

Two of the FY 2020-2023 NCIs are modifications of current initiatives.  They are:

  • Creating Cleaner Air for Communities by Reducing Excess Emissions of Harmful Pollutants from Stationary Sources (combination and modification of the prior initiatives “Cutting Hazardous Air Pollutants” and ‘Ensuring Energy Extraction Activities Comply with Environmental Laws”); and
  • Reducing Significant Noncompliance with National Pollutant Discharge Elimination System (NPDES) Permits (modification of the prior initiative “Keeping Industrial Pollutants Out of the Nations Waters”).

Three of the FY 2020-2023 NCIs are new. They are:

  • Reducing Noncompliance with Drinking Water Standards at Community Water Systems;
  • Stopping Aftermarket Defeat Devices for Vehicles and Engines; and
  • Reducing Childhood Lead Exposures and Associated Health impacts.

FY 2017-2019 initiatives removed from the FY 2020-2023 NCIs are:

  • Reducing Air Pollution from the Largest Sources;
  • Keeping Raw Sewage and Contaminated Stormwater Out of Our Nation’s Waters; and
  • Preventing Animal Waste from Contaminating Surface and Ground Water.

The 2017-2019 initiative of “Preventing Waste from Contaminating Surface and Ground Water” was removed as an initiative by the Administration in August 2018 with the change from NEIs to NCIs.  The FY 2017-2019 initiatives of “Reducing Air Pollution from the Largest Sources” and “Keeping Raw Sewage and Contaminated Stormwater Out of Our Nation’s Waters” will be returned to the standard “core” enforcement program “having largely achieved EPA goals for these NCIs.” 

Published in August 2019 Focus on the Environment Newsletter

The Office of Inspector General (OIG) for the U.S. EPA (EPA) is reminding all EPA regions that the status of RCRA Corrective Action Environmental Indicator (EI) determinations on EPA public-facing websites is accurate and up to date. The reminder stems from a recently completed audit of communication of human health risks posed by sites in the EPA Office of Land and Emergency Management (OLEM) programs. The OIG is an independent office within the EPA which audits and investigates the agency to “promote economy and efficiency, and to prevent and detect fraud, waste and abuse.” As a result of the audit, the OIG discovered that EPA’s Cleanups in My Community public website was not depicting the most up-to-date environmental indicator information for a Region 5 RCRA Corrective Action site in Indiana, even though the EPA had been made aware of changes. 

EIs are measures used by EPA’s RCRA Corrective Action program to track progress, in environmental terms, at RCRA Corrective Action sites. Two facility wide EIs are currently used in the RCRA Corrective Action program:

  • “Current Human Health Exposure Under Control” and
  • “Migration of Contaminated Groundwater Under Control.”

The EIs are commonly referred to as the Human Health EI and the Contaminated Groundwater Migration EI, respectively, or by their RCRA tracking database codes of CA 725 for Human Health and CA 750 for Contaminated Groundwater Migration. These measures were established in accordance with the Government Performance and Results Act (GPRA) of 1993 and are reported to congress at the end of each fiscal year.

A positive Human Health EI determination indicates that on a site-wide basis, there are no unacceptable human exposure to “contamination” that can be reasonably expected under current land and groundwater-use conditions. For groundwater, a positive EI determination indicates that the migration of contaminated groundwater has stabilized, and that monitoring will be conducted to confirm that contaminated groundwater remains within the original area of contaminated groundwater.

Documentation of EI determinations is completed by EPA, or by authorized states using EPA forms which were released in 1999.  The EPA forms specifically state that the determination should remain in effect only as long as they remain true and must be changed when the regulatory authority becomes aware of contrary information. From roughly 1999 to 2010, achieving the EIs was the primary goal of the RCRA Corrective Action program, with some of the EI determinations completed nearly twenty years ago.  The status of these milestones is included on multiple EPA public facing websites, including the Cleanups in My Community website.

Through a June 27, 2019 Management Alert, the OIG notified Region 5 and the OLEM of its findings and recommendations. According to the Management Alert, the RCRA Corrective Action milestones for the Indiana site on EPA’s websites displayed both the Human Health and Contaminated Groundwater Migration EIs as “controlled” when EPA Corrective Action staff had information since 2018 which indicated otherwise. EPA feared its communication of inaccurate and outdated Human Health and Contaminated Groundwater Migration information for the Indiana site could cause individuals to make uninformed decisions about whether, when and how they may want to take protective measures to limit their exposure while living, working, and playing near the site.

The Management Alert included the following recommendations to EPA Region 5 and OLEM:

  • Region 5 should update the Cleanups in the My Community website (and any other relevant websites) to correct the status of Human Health and Contaminated Groundwater Migration EIs for the Indiana site and keep the website(s) current.
  • OLEM should remind all regions to verify that the status of Human Health and Contaminated Groundwater Migration EIs are accurate and up to date on EPA’s websites. 

As documented in a July 17, 2019 response to the OIG, Region 5 has updated the Cleanups in My Community website for the Indiana site and the OLEM has committed to sending a memo to all regions during the 4th quarter of 2019, reminding them to verify that the status of EIs are accurate and that the information is accurately presented on EPAs websites.

It will come as no surprise to the regulated community that RCRA Corrective Action EI determinations are not entirely up-to-date and accurate. The EIs were designed as interim milestones in the Corrective Action process, not final remedy determinations. Consequently, additional data collection often occurs following the EI determination.  In the case of the Contaminated Groundwater Migration EI, ongoing groundwater monitoring is necessary for a positive determination, creating the possibility for changes in the determination on a near continual basis. Add to this changing toxicity information (i.e., trichloroethene), emerging contaminants such as per- and polyfluoroalkyls (PFAS), and the sale, re-use, and repurposing of Corrective Action sites, it is likely that more out-of-date EI determinations will be identified. 

Owner/operators of RCRA Corrective Action sites can expect EPA and/or their authorized states in the near future to dust off and verify that their EI determinations are correct and up to date.  This may in some cases require facilities to collect additional data.  Although the focus will be to determine if sites previously considered safe are for some reason no longer safe, owner/operators of sites which have not met the EIs should take this opportunity to determine if sufficient information is currently available to make the case that a positive EI determination can now be made. Cox-Colvin & Associates has assisted numerous clients in obtaining successful EI determinations.  If you are unaware of the status of the Corrective Action EIs for your facility or what they mean, please feel free to contact us.

Published in August 2019 Focus on the Environment Newsletter

There are, or have been, thousands of small commercial dry-cleaning operations throughout the U.S. – nearly every neighborhood had one.  Most of them are, or were, small family-owned businesses that started in the 30s, 40s, or 50s.  Many of these facilities became ‘anchor’ stores of small shopping centers that are now being redeveloped.  In this series of articles, we examine the pitfalls of real estate transactions involving former dry cleaner operations.  The first step in the process should be the Phase I Environmental Site Assessment (ESA), conducted by a qualified environmental professional.  The Phase I ESA is a desktop evaluation and site inspection that provides the prospective new buyer with information concerning past environmental concerns at a property generally known as “recognized environmental conditions” (RECs).  In the previous instalment of the Dry Cleaner Dilemma , we reviewed the potential short comings that could surface associated with the Phase I Environmental Site Assessment (ESA) of a former dry-cleaning operation. 

In this instalment, we will examine potential problems associated with the typical Phase II ESA.  The typical approach to Phase II ESAs is to install a handful of soil borings, collect a soil sample or two from each boring, and potentially a grab sample of groundwater.  The results can be revealing; however, they produce little information concerning the primary exposure pathway, which is vapor intrusion (VI).  So how should we approach these sites?    

Let’s examine the results of a typical Phase II ESA to see if a different approach should be taken. In this example, a former dry-cleaning operation was identified during a Phase I ESA in 2005.  The consultant recommended a limited Phase II ESA which consisted of 4 borings surrounding the building.  The borings were drilled to 15 feet and screened for VOCs using a photo-ionization detector (PID).  Based on the screening, a single sample (having the highest PID reading) from each boring was collected for laboratory for analysis.  The analyses detected tetrachloroethene (PCE) at depths as deep as15 feet; however, the concentrations did not exceed published direct contact standards and the site was deemed suitable for redevelopment.

By 2008, the site had been razed and replaced with an apartment complex.  Your client is considering its purchase and requests that you complete a Phase I ESA.  Materials for your desktop review include the previous Phase I and II ESAs.  The first question becomes – “Has the risk associated with this site been sufficiently characterized?”  The answer is no because an evaluation of VI pathway, which is the primary driver of risk at dry-cleaning sites, has not been evaluated.  A change in site use, from commercial to residential, reinforces the need to evaluate this pathway because the acceptable exposure concentrations are lower.

You report this to your client, but they are a bit confused given the previously established PCE concentrations in soil and the time that has passed since the initial assessments.  The client likes this deal and wants to press forward.  “Given the soil concentrations nearly 15 years ago met the direct contact standard, haven’t conditions likely improved?  Can’t you evaluate the vapor intrusion issues based on these soil results?”

Granted, site conditions may have improved; however, it is not realistic to evaluate the vapor intrusion potential based on analytical results from soils samples.  This may sound counterintuitive, until you consider the following:

  • A soil sample is collected from a specific point in space and only represents the conditions at that point. Unless directed by other data, such as a soil gas survey or other high-resolution site characterization technique, the chances of locating a VOC source (and likely greatest concentrations) through a few scattered borings are low.
  • The results of VOC analyses from soil samples can’t be used to evaluate soil vapor concentrations. This is in part due to the moisture content of the soil which will affect the potential for volatilization. 

In this situation, the only realistic approach to evaluate the potential for VI is to collect soil gas samples.  A full assessment of the VI pathway, including the collection of indoor air samples could take as long as a year to complete in some parts of the country (to account for season variations in building dynamics).  This makes it problematic for real estate transfers.  However, screening a site based on soil gas alone can be completed very quickly.  For instance, a grid of 40 to 50 sub-slab soil gas points can be installed, screened, and abandoned in a single day.  The screening process will rely on a PID or other similar device to locate potential hot spots.  At those hot spots, a soil gas sample from beneath the slab is collected for confirmation and analysis.  The results of sub-slab soil gas sample analyses can then be directly compared to vapor intrusion screening levels published by US EPA or your particular state agency.    

In the example site discussed above, a soil gas survey was recommended.  Due to access limitation, a sample grid of only eight points was completed in the parking areas surrounding the building.  The survey indicated that a PCE hot spot existed beneath the building.  Based on these data, access was granted and a sub-slab sample collected beneath the building.  That sample indicated that the potential for VI existed and money was set aside for a mitigation system as part of the sales agreement.

Dry-cleaning facilities can present an unacceptable risk of exposure to chlorinated solvents through the ingestion of contaminated groundwater, ingestion of contaminated soils, or through the inhalation of vapors.  Of these, the most likely pathway is through the inhalation of vapors.  Because of this, the assessment of a site identified as a former dry-cleaning operation cannot be complete unless a soil gas survey has been completed.

Section 2002(b) of the Resource Conservation and Recovery Act (RCRA) requires every regulation promulgated under the Act to be reviewed and, where necessary, revised at least every three years. In 2016, EPA was sued for its alleged failure to review and, as necessary, revise its federal nonhazardous solid waste (Subtitle D of RCRA) regulations for wastes associated with the exploration, development and production (E&P) of crude oil, natural gas, and geothermal energy. The lawsuit was, in part, driven by the significant advancements in the production of crude oil and natural gas from hydraulic fracturing and directional drilling used to access black shale, tight oil and other “unconventional” formations. These advancements and the volume of wastes currently generated were not fully envisioned in 1988 when EPA issued a regulatory determination exempting E&P wastes from Subtitle C (hazardous waste regulations) of RCRA.

In response to the 2016 lawsuit, EPA entered into a consent decree to conduct the review and formally document whether revisions to the federal solid waste management regulations are necessary at this time. To support this effort, EPA conducted a literature review of government, industry and academic sources to supplement information available from previous agency actions related to the issue. The review evaluated factors such as waste characteristics, management practices, damage cases and the coverage of state programs. The review focused primarily on E&P wastes from crude oil and natural gas, as available data indicate that geothermal production remains limited to a few states and has not undergone a similar surge in production.

On April 26, 2019, EPA released the results of its required review of E&P wastes in a 279-page report entitled Management of Oil and Gas Exploration, Development and Production Wastes: Factors Informing a Decision on the Need for Regulatory Action. EPA concludes in the report that although the oil and gas industry has undergone a significant transformation in recent years, states have also revised their regulatory programs to adapt to the challenges posed by these technological advancements and that revisions to the federal regulations for the management of E&P wastes of crude oil, natural gas and geothermal energy under Subtitle D of RCRA (40 CFR Part 257) are not necessary at this time. 

Because of situations like ‘Flint Michigan’ states are reacting much faster than the U.S. EPA on the establishment of maximum contaminant levels (MCLs) for PFAS compounds and are establishing their own safe drinking water limits. As a result, there are a multitude of PFAS drinking water limits across the nation, ranging from 660 nanograms per liter (ng/L) in Nevada to 10 ng/L in New York. The ubiquitous nature of PFAS compounds and the establishment of such low drinking water limits requires the use of strict sampling and handling procedures to minimize cross contamination in the field and laboratory.

Recently, Cox-Colvin completed a study using our onsite monitor well to evaluate the influence of different sampling procedures and equipment for the collection of PFAS groundwater samples. To minimize the study variables, all the samples were submitted to the same laboratory for analysis using their “modified” method 537[1]. Two compounds, perfluorobutanoic acid (PFBA) and perfluorohexanesulfonic acid (PFHxS), were reported at trace concentrations in all the groundwater, field quality assurance and quality control (QA/QC), and laboratory QA/QC samples. Because the compounds were present at similar concentrations in the laboratory method blanks, it appears the source of PFBA and PFHxS contamination in this case is laboratory-related rather than groundwater- or field-method-related. Laboratory cross contamination by some compounds is to some degree common at the part-per-trillion reporting limits required for PFAS analyses.

The low drinking water limits combined with the absence of EPA accredited analytical methods, makes the sampling and analysis of environmental samples for PFAS extremely challenging.  Although proper sample collection and handling procedures are important, strict laboratory QA/QC procedures are absolutely necessary to prevent reporting of false positives. Until the EPA develops standardized methods for PFAS analysis, rigorous laboratory QA/QC protocols (i.e., use of appropriate laboratory QC samples) are key to the successful analysis and interpretation of PFAS analytical results. In addition, reporting to the practical quantitation limit (PQL) instead of the method detection limit (MDL) may be a good way to limit false positives. Lastly, performing detailed data validation is highly recommended as a way to ensure the quality of the data.

Published in the July 2019 Cox-Colvin & Associates Newsletter: Focus on the Environment


[1] Currently, there is not a US EPA accredited laboratory method for PFAS analysis of non-drinking water and/or solids (i.e. soil & sediment). Consequently, laboratories have had to develop their own “modified” methods based on US EPA approved Method 537.1.  In June 2019, EPA posted draft validated SW-846 Method 8327 (non-potable water matrices) for a 30-day public comment period. 

On June 26, 2019, Ohio EPA released a draft final version of its updated “Sample Collection and Evaluation of Vapor Intrusion to Indoor Air for Remedial Response and Voluntary Action Programs Guidance Document” (Ohio EPA VI Guidance or Guidance). Comments were requested by no later than July 15, 2019.  Cox-Colvin & Associates commented on the document and we hope others in the regulated community did as well. 

The Ohio EPA VI Guidance was first released in 2010.  The Ohio EPA VI Guidance was developed for sites under the oversight of Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), the Resource Conservation and Recovery Act (RCRA), and the Voluntary Action Program (VAP), carried out under the supervision of Ohio EPA Division of Environmental Response and Revitalization (DERR).  This is the second update to the 2010 Guidance. In May 2016, Ohio EPA rescinded Chapters 10 (data evaluation) and 11 (modeling the VI pathway using the Johnson and Ettinger [J&E] model). Ohio EPA considered Chapters 10 and 11 out of date and no longer appropriate for projects seeking cleanup under any of the DERR programs.

The 2019 draft final Ohio EPA VI Guidance has been significantly expanded and, in many ways, improved. I can appreciate the difficulty and effort that went into the rewrite, given the continued rapid evolution in the science of vapor intrusion and in the underlying human health toxicity factors for which there seems to be little consensus. Provided below are some of the more significant changes to the Guidance.

  • The Guidance incorporates Ohio EPA’s somewhat controversial imminent hazard indoor air action levels published in the August 2016 Ohio EPA “Recommendations Regarding Response Action Levels and Timeframes for Common Contaminants of Concern at Vapor Intrusion Sites in Ohio.”   The August 2016 Ohio EPA established response actions and timeframes for concentrations of common chemicals (TCE and others) encountered during VI investigations when receptors are present.  When EPA updated the risk assessment for trichloroethene (TCE) in 2011, they based the non-carcinogenic Hazard Index on a controversial study that ties TCE to fetal heart defects.  This lowered the acceptable maximum concentration of TCE in indoor air for many programs, but more importantly, it raised the issue of exposure duration.  Most TCE screening levels were previously tied to cancer, which is generally associated with years or decades of exposure.  Non-carcinogenic effects from chemical exposure can take place more rapidly, and in the case of TCE, fetal heart defects could potentially result from exposure periods of weeks or days.  Incorporation of the August 2016 response action guidelines is primarily by reference as the actual response action levels (concentrations) are not included in the draft final Ohio EPA VI Guidance. 
  • The Guidance seems to reflect a welcome and fundamental shift in the significance of subslab sampling, with greater emphasis on the use of sub-slab data, and less emphasis on groundwater, bulk soil, and exterior soil gas data. Historically, investigations have typically started with soil sampling and then progressed to groundwater sampling and finally vapor intrusion sampling. Increasingly, sub-slab sampling is seen as a more appropriate first step in environmental assessment that is often easier and quicker to perform than soil sampling.
  • The Guidance now includes an entirely new Section addressing VI from petroleum releases, based in part on the 2015 US EPA Technical Guide for Addressing Vapor Intrusion at Leaking Underground Storage Tank Sites.  Once released, petroleum hydrocarbons behave differently in the environment and are generally less toxic and less mobile than chlorinated solvents.  Because of the effectiveness and speed of aerobic biodegradation in biologically active soils, Ohio EPA recommends, consistent with US EPA and ITRC Guidance, reduced lateral and vertical investigation distances at petroleum VI sites with relatively small petroleum releases than for chlorinated solvent sites.
  • The Guidance now includes the following critical statements related to the evaluation of VI data.  “For Ohio EPA DERR RP (remedial program) sites, when considering concentrations measured in sub-slab, soil gas, or ground water, the VISLs should be applied corresponding to an excess lifetime cancer risk (ELCR) of 1E-5 and a hazard quotient (HQ) of 1.  If the measured concentrations in the sampled media are less than the appropriate VISLs set at an ELCR of 1E-05 and a HQ of 1 for the appropriate exposure scenario, Ohio EPA DERR considers the pathway to be ‘incomplete’ and additional investigation or risk estimation of this pathway is not warranted.”  Although Ohio EPA DERR has consistently utilized an ELCR of 1E-5 and a HQ of 1 in VI work, I believe this is the first time this has been clearly stated in the guidance.  A similar comment is included for Ohio VAP sites which includes reference to the VAP-required multiple chemical adjustment.
  • The Guidance, for the first time, addresses the vast difference in concentration between OSHA permissible exposure limits and VI defined acceptable indoor air concentrations for commercial/industrial receptors. For example, the Ohio EPA commercial/industrial indoor air standard for TCE associated with VI is 8.8 µg/m3,while the comparable OSHA PEL, also for a 40 hour a week exposure, is over 500,000 µg/m3.  The Guidance also presents Ohio EPA’s position on the Ohio EPA/OSHA jurisdiction issue when it comes to indoor air contamination derived from vapor intrusion.  You may or may not agree with the position, but at least it’s out in the open.
  • The Guidance includes an all new Remedy section organized largely around the concept of risk level and time frame, including imminent, acute, chronic, and unknown.
  • Included in the Remedy section are discussions of monitoring requirements for engineering controls (mapping of the depressurization field and indoor air sampling) and post-mitigation sampling (pressure and/or indoor air sampling to demonstrate system effectiveness through seasonal variation).
  • The Guidance covers (to a limited degree), as Section 13, the seldom discussed, but critically important topic of long-term management and exit strategies at VI sites where mitigation measures are installed.
  • Included as appendices to the Guidance are special considerations for evaluating residential properties, a VI conceptual site model checklist, Ohio EPA’s field standard operating procedures, Ohio EPA’s field data collection forms, comparison of tubing type to vapor absorption, and soil gas analytical methods and reporting limit ranges.  

Finally, regarding the ever-present use of guidance as regulation issue, Section 2 states the Ohio EPA VI Guidance document

“… is a guidance document and does not impose any requirements or obligations on the regulated community.  Other technically equivalent sampling and engineering procedures exists and those investigating vapor intrusion may use other technically sound approaches.”

This is simply not true.  Like it or not, the Guidance does impose requirements or obligations, on the regulated community investigating and/or remediating the VI pathway.  To their credit, Ohio EPA does consider and allow technically equivalent sampling and engineering procedures to be used.  However, it is typically not the sampling and engineering procedures that are problematic in the same way as the critical policy issues such as attenuation factors, acceptable risk levels, sampling/seasonal frequency, separation distance, etc. from which Ohio EPA will typically not deviate.  The good news here is that the values utilized in the Guidance are generally consistent with federal and most state requirements.

Published in the July 2019 Cox-Colvin & Associates Newsletter: Focus on the Environment


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