Vapor Intrusion Guidance Update


U.S. EPA has extended the deadline for comments on its OSWER Final Guidance for Assessing and Mitigating the Vapor Intrusion Pathway from Subsurface Sources to Indoor Air and its Guidance for Addressing Petroleum Vapor Intrusion at Leaking Underground Storage Tanks to June 24, 2013.

The Utility Solid Waste Activities Group (USWAG) wrote U.S. EPA on April 30 [link to letters] indicating that the comment period on these guidances hampered the ability of the public to participate because of the complexity of the documents. USWAG is a collection of utilities and associations, such as the American Gas Association. In addition, USWAG requested that U.S. EPA provide an opportunity to comment through the Federal Register notice-and-comment procedures.

USWAG stated "[t]hough referred to as a 'guidance,' the current [guidance documents] . . . . appear more like a rule . . . ." (April 30, 2013 letter pages 2-3.) It goes on to cite case law to support its position that notice-and-comment rule making is legally required.

So far, the June 24 date is an extension of the informal comment period. Given the complexity and far-reaching effects of the guidances, U.S. EPA may get more pressure to use the federal Administrative Procedure Act process.

If you have any questions about this alert, please contact Maureen A. Brennan at or 216.861.7957, Martin T. Booher at or 216.861.7141 or any member of BakerHostetler's Environmental and Energy Team.

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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