Vapor Intrusion issues discussed at Environmental Law Forum

Thought I would share a few points discussed last week at the Environmental Law Forum, pertaining to vapor intrusion.  It is becoming increasingly important to include good quality vapor intrusion evaluations in risk-based site remediation proposals.  Brownfield site purchasers may also include such evaluations in pre-aquisition due diligence.  If new information is generated at a site that previously obtained PA Act 2 approval, it could be grounds for reopener of that approval.  However, DEP is currently not interested in affirmatively pursuing such reopeners.

In some instances it appears sensible to take indoor air samples rather than going through a soil screening process possibly followed by additiona sampling.  However, indoor sampling can be inaccurate and can raise unwanted issues.  Stories are told of elevated VOC levels ultimately determined to be caused by employee dry cleaning hanging in a closet, or elevated levels that are probably not related to the subsurface soil contamination but cannot be readily explained and lead to worker hysteria etc. 

DEP previously proposed amending the Act 2 regulations to specifically require vapor intrusion evaluation, but finalization is still believed to be several months away. 

Gas Drilling Issues Discussed at Environmental Law Forum

Thought I would share some interesting points regarding gas drilling that were  discussed last week in Harrisburg at the annual Environmental Law Forum.  These are of particular relevance in light of the current attention on drilling in the Marcellus Shale formation.  If you represent landowners, the first thing to note is that the property in question is often subject to a "split estate".  The rights to extract subsurface material may have been conveyed to a third-party many years ago, and that party may now be leasing those rights to yet another party--possibly from out of state.  Such leases require "due regard" for surface owner rights but the subsurface rights are superior to the surface rights.  Marcellus Shale drilling can be extremely intrusive for a surface owner, with clumps of wells constructed and operated on a concrete pad, and millions of gallons of water being trucked in. 

The large volume of water required can become a water allocation permit issue, with the Susquehanna River Basin Commission currently being much more permissive than the Delaware River Basin Commission. 

Discharge of high brine content wastewater is a big issue.  PADEP is currently working on a 'technology based standard" that would trump otherwise applicable water quality based standards.  Because of the public profile of the Marcellus Shale water quality issues, this standard may turn out to be "technology forcing"--i.e., there is no reliably proven technology to meet the standard at the present time. 

We were also reminded that EPA has sole regulatory authority over deep well injection of wastewater, and that if a contractor carries out such injection without an EPA permit, they risk federal felony prosecution.