History of Vapor Intrusion USEPA.GOV 1950s Use of VOCs as root zone fumigants. 1970s VOCs viewed as inhalation carcinogens VOC plume mapping by soil gas surveys developed. 1990s Some states require evaluation of the Vapor Intrusion Pathway. ASTM develops RBCA standard for petroleum releases including vapor intrusion Nicholas Albergo, PE, DEE HSA Engineers & Scientists Florida Brownfields Conference 2011 1960s Vapor intrusion risk from acute exposure or fire/explosion, mostly from petroleum Landfill gas and radon surveys. 1980s Love Canal vapor intrusion into basements part of Risk Assessment. RCRA OSWER Corrective Action Directive required investigation to characterize suburface gasses from hazardous constituents. 2001/2002 USEPA Guidance for Evaluating the Vapor Intrusion to Indoor Air Pathway from Groundwater & Soils. 1
Challenges of Vapor Intrusion Unforeseen Obligations Risk-based Cleanup Exposure Contaminant Levels Involves risks not from acute exposure, but from chronic longterm exposure to extremely low levels of contaminants. Low levels of contaminants are difficult to sample because the action thresholds approach laboratory detection limits. Engineering Controls Institutional Controls No Further Action (with controls) Background Levels Difficult to distinguish vapors attributable to subsurface contamination from background levels. Natural sources Chemicals commonly used in buildings and workplaces Combustion of fossil fuels for heating purposes; or Air pollutants in the ambient or outside air. 2
Current Vapor Intrusion Issues CERCLA, RCRA, and state remedial programs do not provide remedies for damages involving personal injury or property damage. State Common Law Potential state common law causes of action include negligence, strict liability in tort, nuisance, trespass, and premises liability. The lawsuits usually allege common law claims such as trespass and nuisance. Frequently, vapor intrusion is the only completed exposure pathway. 3
Vapor Intrusion Exposure Potential vapor intrusion concerns to occupants or nearby properties may be discounted because a site may be enrolled in a state dry cleaning program (for example) and has been assigned a low priority. State dry cleaner programs primarily focus on impacts to drinking water and do not consider potential vapor intrusion when ranking sites for funding. While the owner of a contaminated site may have to wait years for state funding, vapors could be migrating off the property. Relevant Laws Principal statutory sources of liability for vapor intrusion Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) Resources Conservation and Recovery Act (RCRA) Toxic Substances Control Act (TSCA) 4
Connection to RCRA Vapor intrusion conditions associated with discharges or disposal of hazardous waste may be addressed under a variety of RCRA authorities including corrective action requirements for: Permitted facilities, 42 U.S.C. 6924 (u) and (v); Non-permitted facilities, 42 U.S.C. 6928(h); Petroleum releases from underground storage tanks and other regulated units, 40 C.F.R. 264.111 and 265.111 Injunctive Orders, 42 U.S.C. 6973 Citizens Suits, 42 U.S.C. 6972; and Section 7002 Actions Connection to CERCLA CERCLA imposes liability on 4 categories of potentially responsible parties (PRPs) Category 1 Category 2 Category 3 Category 4 The current owner and operator of a facility where there has been a release of a hazardous substance. Any person who formerly owned or operated the facility at the time of disposal of any hazardous substance. Any person who arranged for the disposal, treatment, or transport of hazardous substances at or to the facility. Any person who transported hazardous substances to the facility. 5
May not only include initial discharge of VOCs from a dry cleaner or subsequent escape of the liquid VOCs through cracks in the sewer system as well as the migration of contaminated vapors from hazardous substances in subsurface. Includes any area where hazardous substances have come to be located, a CERCLA facility may include buildings where contaminated vapors are migrating. Liability under CERCLA Costs incurred to investigate and address a vapor intrusion condition may qualify as costs of response 42 U.S.C. 9601 (23)-(25). E 1527-05 Standard Practice for Environmental Site Assessments: Phase I ESA Process The E 1527 Standard Practice for Environmental Site Assessments was designed to assist an owner or operator of contaminated property from incurring CERCLA liability by asserting one of the CERCLA affirmative defenses (collectively referred to as the Landowner Liability Protections ), such as: The third-party defense, 42 U.S.C. 9607(b)(3); The innocent landowner (ILO) defense, 42 U.S.C. 9601(35)(A); The bona fide prospective purchaser (BFPP) defense, 42 U.S.C. 9601(40); and The contiguous property owner (CPO) defense, 42 U.S.C. 9607(q). 6
Why Doesn t E 1527 Address Vapor Intrusion? E1527 was designed as an antidote to CERCLA liability. Hazard Ranking System (HRS) is Appendix A to the National Oil and Hazardous Substances Pollution Contingency Plan (NCP), pursuant to section 105(a)(8)(A) of CERCLA. HRS evaluates risks posed by sites by analyzing four (4) pathways: surface water, groundwater, air and soils. Vapor intrusion was not a regulatory concern when the HRS was revised in 1990, the vapor intrusion pathway was (is) not one of the pathways that are evaluated when scoring a site. Oddly enough, once a site is on the NPL, vapor intrusion has to be accounted for during the risk assessment included in the Remedial Investigation (RI). What is the Nature of the Release? Confusion also stems from the CERCLA definition of a release in section 9601(22)(A). The definition excludes from the definition of release: A release that results in exposure to persons solely within a workplace (CERCLA does not provide any remedy for personal injury); and With respect to a claim which such persons may assert against their employer (refers to workers compensation claims) 7
Where Does E 1527-05 Leave Us? How Vapors Impact a Property Current E 1527-05 could be viewed as having contradictory statements when considering the discrepancy between indoor air as a non-scope item (ASTM 13.1.5.12) and the REC definition. Includes releases into structures on the property (ASTM 3.2.74), and thus offers little direction other than vapor intrusion is not part of the current Phase I Standard. 8
EPA Draft Guidance for Evaluating the Vapor Intrusion to Indoor Air Pathway from Groundwater and Soils (Subsurface Vapor Intrusion Guidance), 67 Fed. Reg. 71169 EPA s Office of the Inspector General (OIG) recommended that EPA update its Vapor Intrusion Guidance. EPA s Position EPA began soliciting public feedback on topics related to the potential revisions to the HRS including vapor intrusion Revisions to E1527-05 (due out in 2012) Bottom Line: Hazardous Substances that reach a Property via the subsurface vapor pathway are no different from those that reach it by other means, be it groundwater, direct leakage ( source area ), or airborne deposition (i.e., smelting, mining, or poorlycontrolled nearby large-scale removal). 2002 2009 2010 2011 GAO Report to Congressional Requesters. If vapor intrusion sites are not assessed and, if needed, listed on the NPL, there is the potential that contaminated sites with unacceptable human exposure will not be acted upon. 9
Revisions to the 2005 Standard are focused on adding a definition for release. Perhaps by adding a definition for this term that was closely tailored to the CERCLA definition, we could accomplish several goals at once: Adding further clarity to the standard, which is a good thing, and Addressing the vapor intrusion issue. Revisions to E1527-05 Release ASTM E2600-10 Standard Guide for Vapor Encroachment Screening on Property Involved in Real Estate Transactions Focuses on screening for the likelihood of vapors migrating onto a property from off-site sources. If likelihood exists for vapors to reach the boundary of the property, the EP is to identify this potential as a vapor encroachment condition (VEC). Provides a methodology for an EP to determine if vapors are potentials coming onto a site, but the mere presence of a VEC does not necessarily mean the site has a REC. 10
E 2600 Is it worthless? No longer informs a property owner or lender if there is a vapor intrusion problem at its property, but instead is limited to whether there is a possibility that vapors may be present at the target property boundary. The term vapor encroachment has no regulatory significance. In other words, the federal and state programs are concerned about vapor intrusion, not vapor encroachment. VECs could be simply determined to be a de minimis condition (and thus not a REC). 11