New Illinois Vapor Intrusion Regs Offer Cold Comfort to Illinois Families

Late this summer Illinois finally implemented regulations designed to consider the vapor intrusion pathway when looking cleanup of polluted sites within the State. Like our State’s approach to many issues of critical public concern, the action is a day late and a dollar short. Vapor intrusion refers to the migration of harmful industrial chemicals into the air inside structures, including homes. Industrial pollution frequently contains toxic levels of “volatile” chemicals. When that pollution finds its way into the soil and groundwater it migrates from those media through the air and into buildings. And it collects. And it exposes inhabitants to those chemicals on a 24/7 basis, even while they’re sleeping (unlike polluted water which only exposes people when they consume it or use it for bathing). The threats presented by vapor migration have been understood for decades. For more than a decade, we’ve been representing families whose homes have been invaded and are threatened by these chemicals. Not only are there threats of illness, there is significant damage to the value of their properties. Who would knowingly buy a home with such a problem? Who would knowingly sell one without fixing the problem? Effective late July 2013, new Illinois Pollution Control Board regs require that owners of properties who are seeking No Further Remediation letters (NFRs) under the State’s Tiered Approach to Corrective Action program examine the vapor intrusion pathway among the other exposure routes (eg, ingestion) when trying to get an NFR. The State is supposed to consider this when deciding whether to issue an NFR and on what terms. Illinois is a bit late to this party. Many other States recognized the significance of this problem years ago. But most importantly, Illinois’ regs have no application whatsoever to the sites which likely present the greatest threat to families in the State – the ones which have already received NFRs under the vastly inept standards of the past. There is no requirement under these new regs that such sites be re-examined. One of the first cases we brought on behalf of families was one where hundreds of their homes were supplied with polluted groundwater. The case came to our attention because the State was on the verge of issuing an NFR to a big company armed with high priced lawyers and consultants. It was lucky indeed that one of the families who had heard about the NFR process decided to test the well in their home and the cancer-causing chemicals dumped by that company for decades were discovered. As a result of our lawsuit, an enormous problem was uncovered. The federal EPA got involved. Many millions were spent on cleanup. The families were provided with a clean and safe water supply as well as the funds to install systems to protect themselves from the threat of vapor intrusion. There can be little doubt that there are other such sites where NFRs have been issued without an examination of the vapor intrusion threat. The regs do nothing to address that sleeping giant. The regs suffer from other inadequacies as well. Vapor plumes can very difficult to detect and to define. The harmful gases are much like clouds, or puffs of smoke or steam. Now you see’em; now you don’t. They migrate much further than the polluted soil or groundwater they come from and can move in different directions. They are influenced by factors that are highly variable, such as soil moisture, barometric pressure, geology, and things that facilitate movement, like trenches, sewer pipes, and the like. For that reason investigation, to be meaningful requires a depth of analysis beyond that required by the regs and beyond that within the technical wheelhouses of most consultants and regulators to be sure. Bottom line: these new regs are not cause for celebration. They are cause for concern. And forewarned is forearmed.