Vapor Intrusion Bases for Legal Liability and Defenses

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2 Vapor Intrusion Bases for Legal Liability and Defenses Jay A. Tufano Attorney Ring Bender LLLP

3 What is Vapor Intrusion? Vapor intrusion is the general term given to migration of hazardous vapors from any subsurface contaminant source, such as contaminated soil or groundwater or contaminated conduit(s), into an overlying building or unoccupied structure via any opening or conduit.

4 What is Vapor Intrusion: Volatile chemicals in soil and groundwater can migrate through soil, cracks, sewers, utilities, etc. into indoor air Vapor intrusion is another pathway of exposure that must be evaluated: In site assessments in real estate transactions In human health risk analyses For site closure/nfa letters In toxic tort and property damage litigation

5 Vapor Intrusion Typical Sites Manufacturing Facility: Petroleum products; Solvents (PCE, TCE, TCA) Drycleaners: Solvents (including PCE)

6 Vapor Intrusion Typical Sites Gas Station: Petroleum products; Solvents (PCE, TCE, TCA) Landfills: Methane, Solvents (PCE, TCE), Petroleum Products Oil and Gas Operations: Methane Petroleum products

7 Vapor Intrusion - Health Risks Release Soil / Groundwater Intrusion into Building or Structure Threat to Human Health Solvents (cancers, nerve damage, reproductive issues, immune system) Petroleum Products (cancer, liver damage, nervous system) Methane (explosive, nausea, weakness, headache)

8 Vapor Intrusion Legal Risks Enforcement/Cleanup Action Federal Statutes (CERCLA, RCRA) State Statutes and Regulations Fines Building Closure Litigation Negligence Nuisance Trespass Class Action

9 Federal Statutes - CERCLA Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, a.k.a. Superfund) Authorizes cleanup and enforcement actions to respond to actual or threatened releases of hazardous substances which present an imminent and substantial danger to the public health or welfare Vapor Intrusion may satisfy imminent and substantial danger requirement

10 Federal Statutes CERCLA Preventing Vapor Intrusion risk is a Remedial Action Objective (OSWER Directive ) Five Year Reviews Reopener Provision Effective February 8, 2017: EPA Rule Addition of a Subsurface Intrusion Component to the Hazard Ranking System

11 Federal Statutes CERCLA Who is liable under CERCLA? Owner Operator Arranger Transporter What must a plaintiff prove? Release or threatened release of hazardous substances Response Costs

12 Federal Statutes CERCLA Common Defenses: Innocent Landowner Bona Fide Prospective Purchaser Contiguous Landowner Federally Permitted Release

13 Federal Statutes - RCRA Resource Recovery Conservation Act Provisions to ensure compliance with management and disposal of hazardous wastes Authorizes litigation to compel cleanup where contamination may present imminent threat of substantial endangerment to health or the environment RCRA applies to Vapor Intrusion

14 Liability under Federal Statutes RCRA Plaintiff must establish: Presence of contaminants in soil and groundwater Sufficient levels to pose threat Pathway into home or building Possible human exposure / Risk

15 Liability under Federal Statutes RCRA Defenses: Lack of contaminants Insufficient levels Lack of pathway Defendant / Site already under jurisdiction of environmental agency

16 Liability Risk Under State Law State Statutes and Regulations Environmental Enforcement Agencies Local Agencies / Municipalities Guidance Documents

17 Liability Risk Under State Law California: Health and Safety Code / Hazardous Substances Account Act (HSAA) Water Code Department of Toxic Substances Control Regional Water Quality Control Board New York Department of Environmental Conservation Environmental Conservation Law Voluntary Brownfields Cleanup Program Notification Provision (landlord/tenant) Soil Cleanup Objectives

18 Liability Risk under State Law Colorado: Department of Health and Environment abatement orders No explicit vapor intrusion standards Department of Labor and Employment, Division of Oil and Public Safety UST Program Title 8

19 Vapor Intrusion - Toxic Torts Negligence Nuisance Trespass Class Action

20 Negligence Plaintiff generally must prove: Defendant failed to exercise due care in conducting the polluting activity Potential for release was foreseeable Release Caused Damages Injury/Harm

21 Negligence Defenses / Role of Experts: Standard of Care/Deviation Contamination Levels Existence of Injury Causation of Injury Timeline (Statute of Limitations)

22 Nuisance Substantial and unreasonable interference with the property rights of another Offensive to the senses or an obstruction to the free use of property Toxic Substances constitute unreasonable Interference Failure to cleanup contamination can support nuisance liability (Sisters of Notre Dame de Namur) Damages for injury to property

23 Nuisance Defenses: Statute of Limitations (but see continuing nuisance ) Permanent Nuisance Minimal Contamination Levels (experts/testing)

24 Trespass Wrongful entry upon lands in the occupation or possession of the owner trespass (Sisters of Notre Dame de Namur) Failure to clean up contamination causing ongoing damage to property is an ongoing trespass Defenses: Lack of migration onto property other sources Statute of Limitations

25 Class Action Pool of Plaintiffs (Typically > 200 / $5 million aggregate claims) Common Issues Predominate Class Must Be Certified Difficult in Vapor Intrusion context due to differing circumstances among plaintiffs (property conditions, source and extent of contamination) (Ebert v. General Mills, Inc. (8th Circuit 2016))

26 Vapor Intrusion Mitigating Risk Vapor Intrusion Guidance Documents (EPA, State Guidance Documents, ITRC) Investigation/Sampling Risk Based Evaluation Mitigation Measures Phase 1 All Appropriate Inquiry (CERCLA Defenses) Environmental Insurance Institutional Controls Engineering Controls Expert Consultants

27 Legal Bases for Liability Parting Thoughts Federal Statutes and Regulations (CERCLA, RCRA) State Statutes and Regulations Common Law / Tort Theories (Negligence, Nuisance, Trespass) Guidance Documents Strategies for Mitigating Risk Proactive

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