On December 14, 2020, Matt Winefield of Winefield & Associates, Inc. had the honor of moderating a virtual affordable housing conference with State Senator Scott Wiener. Senator Wiener serves as the Chair of the CA Senate Housing Committee and has authored 42 bills that were signed into law. We examined the State’s efforts to reduce homelessness, address exploding housing costs, and thwart NIMBY-ism with respect to multi-family development. Included in this session was a discussion of how the CalEPA Draft Vapor Intrusion Guidance (DVIG) will curtail affordable housing development on former brownfield sites. Here is a 4-minute video of that DVIG portion of the session:

CalEPA has extended its comment period for the Draft Soil Vapor Intrusion Guidance (DSVIG) until noon, June 1, 2020. Please feel free to cut-and-paste text from the linked DSVIG Comment Menu below to email public comments concerning the DSVIG. The Comment Menu is divided into ten topics. Select the topics that concern you the most, and respond to CalEPA here: DWQ-vaporintrusion@waterboards.ca.gov.
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1. The DSVIG Should Be Withdrawn Until the Agencies Speak with One Voice
2. The DSVIG Creates Major New Barriers to Affordable Housing Projects
3. Default Attenuation Factor Must Be Replaced with California-Specific Values
4. DTSC’s Database Should Be the Foundation for Any Interim Attenuation Factors
5. DSVIG Creates Confusion About Its Intended Applicability
6. Cleanup Goals Should Be Site-Specific
7. Proposed Investigation Requirements Are Too Prescriptive
8. Emphasis on Vapor Conduits Without Adequate Guidance Will Disrupt Site Cleanups
9. Requirements for Future Risk Evaluation Will Lead to Open-Ended Assessments
10. The DSVIG Is an Underground Regulation

At the California Lawyers Association Environmental Law Conference in Yosemite (October 2019), I summarized the impact the 0.03 Attenuation Factor has had on brownfields remediation and investments.  CalEPA did not listen to these concerns or those of the scientific community, and has maintained the indefensibly high AF in its CalEPA Draft Supplemental Vapor Intrusion Guidance Document. Let CalEPA know by April 30, 2020, that their Guidance Document will put a stop to thousands of remediation projects in the state: DWQ-vaporintrusion@waterboards.ca.gov.

On February 14, 2020, CalEPA issued its Draft Supplemental Vapor Intrusion Guidance, and it’s worse than previously imagined. The Guidance is a real estate investment/development project killer. It will continue to use the indefensibly high Attenuation Factor (AF) of 0.03 as a screening level, thereby prompting excessive testing and remediation. CalEPA has refused to introduce scientifically valid data sets that would lower this attenuation factor, and has not put forth a sincere protocol to revise the 0.03 value when new data becomes available. As written, even if indoor air VOCs are below screening levels, if soil gas concentrations exceed screening levels calculated using the 0.03 AF, then CalEPA will consider excessive risk to be present.
 
Let EPA know you’re concerned by emailing them here before April 30, 2020:

• DWQ-vaporintrusion@waterboards.ca.gov

 
Public meetings will be held throughout the state beginning April 1st and ending April 16th. Anybody involved in real estate transactions or environmental projects should be concerned and should participate in the rule development process. 
 
To access the CalEPA information page: 

• https://www.waterboards.ca.gov/water_issues/programs/site_cleanup_program/vapor_intrusion/​

I had the pleasure of meeting in a small group with CalEPA Secretary Jared Blumenfeld on November 4, 2019 at his office in Sacramento. Our team discussed challenges and opportunities of the Vapor Intrusion Guidance on brownfields investments and affordable housing development. We thank the Secretary and his senior managers for their time and attention to this important matter. Our PowerPoint presentation is linked below. We left behind the following recommendations with the overarching theme that without CalEPA intervention, the unrealistic 0.03 Attenuation Factor will continue to have severely negative unintended consequences.
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1. Develop statewide VI guidance using the scientific peer review and public comment process (HSC 57004) after California data set is evaluated.
2. Use existing DTSC guidance while new guidance is developed.  (DTSC, 2011 AFs are 0.002 for residential, 0.001 for future residential, 0.001 for commercial, and 0.0005 for future commercial.)
3. Continue review of current CalEPA files to develop CA-specific AFs.
4. Allow use of building-specific AFs and encourage accurate VI measurement using such tools as radon testing and the J&E model.
5. Ensure re-opening of sites with existing NFA Letters will occur only in circumstances of imminent and substantial endangerment (rare)
6. Clarify that AF and VI Guidance documents are advisory only and not intended to be used as rules – alternate approaches may be acceptable on a case-by-case basis.
7. Expand programmatic efforts to spur brownfields remediation and clean-up of stalled sites in disadvantaged communities and for housing production in general.

This week, Winefield & Associates (W&A) sent a letter warning all 3,000 California mayors, city managers, and city council officials about the CalEPA Vapor Intrusion (VI) Guidance that will hinder real estate development statewide. The VI Guidance has already prompted W&A to pull back on California investments, and will stop hundreds of other Brownfields projects. Critical housing projects will also be impacted. Read the one-page warning letter below:

Brownfields investments are risky. The new, scientifically suspect vapor intrusion criteria floating around CalEPA make these investments even riskier. Winefield & Associates must deliver acceptable returns to its investors, notwithstanding our goal to bring blighted sites to productive use. Unfortunately, the use of the 0.03 Attenuation Factor by Southern California regulators has forced W&A to kill two brownfield redevelopment projects. One of the projects would have promoted jobs in South LA, while the other project would have initiated redevelopment in Gardena. As CalEPA continues to use bad science to roll out unnecessary remediation goals, they seem oblivious to real-world implications of their actions. For example, the two sites just referenced will now continue to be blighted and underutilized indefinitely. Thanks, CalEPA!

The Center for Creative Land Recycling is the nation’s premier brownfields non-profit. In its March 12, 2019 transmittal to DTSC, CCLR urged the DTSC to solicit public comment on the technical and policy considerations surrounding the proposed VI screening levels. CCLR acknowledges the devastating impact CalEPA’s proposed guidance document could have on construction and development statewide. Read CCLR’s letter to DTSC here.