The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10. Presenting a live 90-minute webinar with interactive Q&A Mitigating Vapor Intrusion Risks: Navigating Interplay Between Federal and State Mandates, Negotiating Real Estate Deals Today’s faculty features: 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific THURSDAY, JANUARY 5, 2017 Matthew E. Cohn, Officer, Greensfelder Hemker & Gale, Chicago David Folkes, Senior Principal Environmental Consultant, Geosyntec Consultants, Greenwood Village, Colo. Gail L. Wurtzler, Partner, Davis Graham & Stubbs, Denver
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The audio portion of the conference may be accessed via the telephone or by using your computer's
speakers. Please refer to the instructions emailed to registrants for additional information. If you
have any questions, please contact Customer Service at 1-800-926-7926 ext. 10.
Presenting a live 90-minute webinar with interactive Q&A
vapor source, such as contaminated soil or groundwater,
through the soil and into an overlying building or
structure
6
Vapor Intrusion
Common volatile organic compounds associated with
most vapor intrusion sites
• Chlorinated solvents – PCE, TCE, TCA, and
degradation products
• Petroleum - BTEX
7
Recent EPA Guidance
Technical Guide for Assessing and Mitigation the Vapor Intrusion
Pathway from Subsurface Vapor Sources to Indoor Air, OSWER
Publication 9200.2-154
Technical Guide for Addressing Vapor Intrusion At Leaking
Underground Storage Tank Sites, EPA 510-R-15-001
www2.epa.gov/vaporintrusion
8
Five Conditions for a Complete
Vapor Intrusion Pathway
1. Source of vapor forming chemicals under or
near a building
2. Route of migration
3. Building susceptible to soil gas entry
4. Vapor forming chemicals present in the
indoor environment
5. Building occupied
9
Investigation and Response Process
Investigation – collect soil, groundwater, and soil gas samples; may
collect indoor air data
Risk Assessment – toxicology based cleanup objectives; Vapor
Intrusion Screening Level Calculator Spreadsheet
Response Actions – long-term solution is to eliminate or substantially
reduce the contamination; short-term solution can include vapor
barriers and sub-slab depressurization
10
Response Actions
• Remediation to reduce or eliminate subsurface
vapor sources
• Engineered controls
• Monitoring to verify effectiveness of
remediation or engineered controls
• Institutional controls to restrict land use and/or
warn of the presence of subsurface vapor
source
11
Guidance Is Just That, Guidance
DISCLAIMER
This document presents current technical recommendations of the U.S. Environmental Protection Agency (EPA) based on our current understanding of vapor intrusion into indoor air from subsurface vapor sources. This guidance document does not impose any requirements or obligations on the EPA, the states or tribal governments, or the regulated community. Rather, the sources of authority and requirements for addressing subsurface vapor intrusion are the relevant statutes and regulations. Decisions regarding a particular situation should be made based upon statutory and regulatory authority. EPA decision-makers retain the discretion to adopt or approve approaches on a case-by-case basis that differ from this guidance document, where appropriate, as long as the administrative record supporting its decision provides an adequate basis and reasoned explanation for doing so.
• First issue was not exclusively a vapor intrusion, it was a plume definition issue.
• Plaintiffs expert said plume stabilized and did not travel west of Adams Street.
• Some of the 200 plaintiffs were west of Adams Street.
• Plaintiffs expert offered an affidavit saying plume actually did travel west of Adams Street.
• Court was did not consider new affidavit, which did not retract prior contradicting opinion by the expert, to be credible or reliable.
• Plaintiffs west of Adams Street could not pursue their claims.
21
Baker v. Chevron
Second issue, for properties over the plume, Plaintiffs
had to show two things:
(1) that soil vapor invaded their properties
(2) that the invasion caused either
substantial physical damage to the
land or substantial interference
with their reasonable and
foreseeable use of their land
22
Baker v. Chevron
• Because there was not a certified class, the Plaintiffs had to show that
the vapor invaded each home.
• Plaintiffs’ expert only were able to show that there was contamination in
the community generally – that is, there was a plume
• No expert testified offered an opinion as to vapors entering each of the
homes
• Furthermore, the appellate court noted that even if there was vapor
intrusion to the homes, the Plaintiffs provided no medical or health expert
that the vapors found on the properties were harmful to humans
23
Baker v. Chevron
Lessons
• Good expert testimony is needed to prove causation.
Clear expert testimony should be provided that vapors
have migrated into homes. Evidence of contamination
in the area generally is not enough.
• An expert opinion on the medical and health issues
associated with vapor intrusion is essential.
24
Ebert v. General Mills
• Chlorinated solvent contamination in a neighborhood
in Minneapolis
• The defendant in this case asked the Court to
disqualify the Plaintiffs’ witnesses
• Witnesses were an environmental scientist and an
epidemiologist
2015 WL 867994 (D. Minn., Feb. 27, 2015).
25
Ebert v. General Mills
Environmental scientist
• Decades of experience in groundwater, soil, and vapor
intrusion issues
• Use of the “multiple lines of evidence” methodology
which has been recognized by courts as being reliable
Epidemiologist
• Used the same data that was relied on by the
defendant
26
Ebert v. General Mills
The issue was not the qualification of the witness, but rather the
credibility of the witness.
Credibility can be addressed through cross-examination.
Multiple lines of
evidence
27
Voggenthaler v. Maryland Square
• Solvents from drycleaner at a mall contaminated a
residential neighborhood
• Plaintiffs alleged vapors migrating into their homes
• One of the groups of defendants had a theory that
contamination came from more than just the
drycleaner
2011 WL 11215 (D. Nev., Jan. 13, 2011).
28
Voggenthaler v. Maryland Square
• Group of defendants wanted to conduct a fairly
extensive investigation in another area of the mall.
• Access was not granted, and so the defendants filed a
motion for the Court to grant access.
• Experts on opposing sides squared off on the need for
the testing.
29
Voggenthaler v. Maryland Square
• Issue as to whether the proposed testing was a
“fishing expedition” or whether there was a sufficient
basis to look for not yet identified contamination.
• Noting the more lenient standard in discovery, as
opposed to evidentiary requirements needed for
summary judgment, the Court granted the motion
30
Voggenthaler v. Maryland Square
Lessons
• Court would not be willing to allow just any proposed
investigation.
• Expert support for a theory of why looking for a new
source of contamination was critical.
• Investigation plan needs to be narrowly tailored to look
into that theory.
31
Tri-Realty Company v.
Ursinus College
• RCRA “imminent and substantial endangerment”
citizen suit
• Release from a fuel oil tank migrated to a nearby
apartment complex
• Vapor control system installed in the apartment
complex in 2010, a year before the case was filed
2015 U.S. Dist. LEXIS 111455 (E.D. Penn., Aug. 24, 2015).
32
Tri-Realty Company v.
Ursinus College
• Plaintiffs hired an expert that said that there could be
serious risk from exposure to the oil through inhalation
• However, Tri-Realty also obtained a Phase I
Environmental Site Assessment during the litigation for
the purpose of supporting financing.
33
Tri-Realty Company v.
Ursinus College
• The Phase I consultant concluded, “the risk of harm from vapor
intrusion ‘is low and unlikely to occur’ due to the age of the
discharge, the mitigation system in place, and the absence of
data showing high concentrations in indoor air.”
• The defendant’s expert concluded, “indoor air exposures are
highly unlikely to occur because tests have revealed no problem
with vapor intrusion other than at the Clubhouse, and the situation
at the Clubhouse has been remediated by way of the installation
of the vapor mitigation system.”
34
Tri-Realty Company v.
Ursinus College
“Indeed, a separate report commissioned by Tri-Realty
specifically concluded that the risk of harm from vapor intrusion in
the buildings located at [the apartment complex] ‘is low and is
unlikely to occur.’ However, as described above, Tri-Realty has
presented evidence suggesting … that there may be a risk of
repeated exposures due to the potential spread of oil. Therefore,
whether or not there is a serious risk of complete exposure
pathways is a disputed issue of fact that is material to the
outcome of Tri-Realty’s RCRA claim.”
35
Tri-Realty Company v.
Ursinus College
Lesson
• Be aware of other environmental “opinions,”
such as due diligence studies, not specifically
obtained for the litigation and the way in which
the findings from these studies can conflict
with the opinions of experts.
36
United States v. Apex
• RCRA enforcement case
• One of the first vapor intrusion cases fully litigated
• This is a case concerning a large free-phase
petroleum plume emanating from a refinery in
Hartford, Illinois
2007 U.S. Dist. LEXIS 18143 (S.D. Ill., Mar. 15, 2007);
see also 2008 U.S. Dist. LEXIS 59973 (S.D. Ill., Jul. 28, 2008).
37
United States v. Apex
• Defendant’s expert opined that NAPL on the groundwater table
was not causing odor problems in indoor air, and not causing or
contributing to dangerous levels of hydrocarbon vapors in soil
gas.
• US moved to disqualify the witness from testifying on topics of
toxicology and statistics, and said he employed methodologies
that were not subject to peer review.
• Court accepted witness – background
in chemistry and forensic chemistry
qualified him.
• Any attacks on the witness’s credibility
were reserved for cross-examination.
38
United States v. Apex
United States motion for summary judgment denied
“Defendant disputes, for example, the degree of contamination and whether such contamination poses any threat to the public or the environment. These factual disputes are supported by declarations provided by Defendant’s experts … Defendant disputes that vapor intrusion cited in the Health Consultation [Report] is attributable to the hydrocarbon plume. In turn, the United States disagrees that these facts are in dispute. Given the nature of this case and the specialized knowledge that the facts entail, the Court is not in a position to make factual findings at this stage. Accordingly, the United States’ motion for summary judgment is denied.”
39
United States v. Apex
• Broad latitude given to expert to testify on vapor
intrusion
• The specialty of the expert was chemistry and forensic
chemistry
• Yet vapor intrusion covers topics of geology,
hydrogeology, soil physics
• Court unwilling to deny expert right to
testify or grant summary judgment in
these circumstances – gave the
defendant with its expert its day in court
40
In re: Wysong & Miles Company
• A property was contaminated by its neighbor.
• The owner of the source property was in bankruptcy.
• The owner of the contaminated property enrolled his property into the
North Carolina Brownfields Program.
• The North Carolina environmental agency then sent a letter to the
program applicant stating its initial impression that land use restrictions
Very limited VI guidance and no mitigation standards
• MADEP 1995 – Guidelines for the design, installation, and operation of sub-slab
depressurization systems
Post-2002
Still limited EPA and state guidance (e.g., EPA 2008, CA VIMA 2011)
• ASTM E1465 updated in 2008
• ASTM E2121 updated in 2002, 2003, 2008, 2012, 2013
• AARST radon standards
– 2006 Low rise residential (now defers to ASTM E2121)
– 2013 New construction 1 & 2 family dwellings
– 2014 Multi-family buildings
– 2014 Schools and large buildings
Radon Mitigation Technology vs Time
82
1995 2000 2005 2010 2015 1990 2020 1985
Substantial radon mitigation R&D 1980s to early 90’s
VI mitigation R&D State of
technology
Radon Mitigation Skill Level vs Time
83
1995 2000 2005 2010 2015 1990 2020 1985
Average skill level radon mitigation
Commoditization of radon market
Variation in VI mitigation skill & experience
State of technology
Substantial radon mitigation R&D 1980s to early 90’s
VI mitigation R&D
Typical Installation Cost
84
Existing Buildings • Typically Sub-Slab Depressurization (SSD)
or “radon” systems
Note: does not include cost of investigation, design, permits, regulatory reporting, treatment of emissions, which can equal or exceed installation costs.
Cost $/SF*
Building Conditions
$1-3 Single family residential
$2-4 Single story commercial/warehouse
$4-10 Multi-story residential/commercial
$10+ Complex buildings/codes
* Mitigated area
Neg Pressure
Air flow Fan
Typical Installation Cost
85
New Buildings
Courtesy of Land Sciences Technologies
Note: does not include cost of investigation, design, permits, regulatory reporting, treatment of emissions, which can equal or exceed installation costs.
Cost $/SF*
System Type
$1-3 Membrane liner/gravel
$3-7 Spray-on asphaltic liner/gravel
$1-3 Aerated floor system
Membrane Liner (Stego® Wrap)
Gravel
Aerated floor (Cupolex®)
Vent mats (Enkavent®)
Spray-on Liner (Geoseal®)
Courtesy of Land Sciences Technologies
How to Reduce Mitigation Costs
Target mitigation area – Only depressurize source and/or
vapor entry zone
– Soil venting mitigates surrounding
areas
Reduce vacuum levels – Experience shows high vacuum