Another Dispatch From the Guidance Front: Is EPA’s Vapor Intrusion Guidance Ready For Prime Time?

by Foley Hoag LLP - Environmental Law
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A story in today’s BNA Daily Environment Report notes that several representatives of industry interests are asking EPA to hold off on issuing its much-anticipated vapor intrusion guidance until it can be subject to public comment.  Apparently, the current draft was sent to regional offices – but not distributed to the public – for review.  Someone at Inside EPA leaked it to Fox Rothschild and asked for comment.  Fox Rothschild attorneys then submitted a letter to EPA requesting a formal opportunity for public comment.

To me, the episode illustrates what I’ll humbly call Jaffe’s Iron Law of Guidance.  The more detailed and prescriptive a guidance is, the more likely it is that agency street-level bureaucrats will give it the force of a rule.  The more likely it is that guidance will be implemented as though it were a rule, the more difficult it will be for an agency to develop and implement the guidance without significant stakeholder input and opportunities for public comment.  The more stakeholder input and public comment are provided, the more the guidance development process begins to mirror the regulatory development process.

The result is often the worst of all possible worlds.  Guidance still takes forever to develop and, once finalized, is implemented like a rule, without any of the flexibility that guidance is supposed to provide.  Even with the expanded public process, the procedural protections inherent in formal rule development are not present.  As I have noted in the past, I understand why agencies rely so much on guidance, but I truly think that their argument is flawed, for one reason – in choosing to promulgate guidance instead of regulations, they are comparing the real world of regulatory development to an idealized picture of how guidance works that is simply divorced from reality.

On the merits, I’m not sure I have authority from Inside EPA to link to the guidance, but you can get it from Inside EPA if you are a subscriber (you can also get it directly from EPA if you know someone who will leak it!).  I will only note two quick concerns.  First, I would be very surprised if EPA’s Vapor Intrusion Screening Level Calculator is not used by EPA (and by state agencies where the states don’t have their own VI programs) in a prescriptive way.

Second, I don’t know about you, but the phrase “preemptive mitigation”, which is discussed at length in the draft guidance, gives me the willies.  In certain contexts, such as where a building owner decides to install a sub-slab depressurization system even before knowing the full scope of risks posed by VI, preemptive measures may be reasonable.  Unfortunately, I don’t think we can even imagine the full scope of what EPA may end up requiring under the rubric of preemptive mitigation once the guidance goes final.  Sounds like the second coming of the precautionary principle to me.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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