Vapor Migration Is Identified as a Recognized Environmental Condition: Now What?

Presente d by:

• David Gil lay, Partner and Chair of Brownfields & Environmental Transactional Dil igence Practice Areas, Barnes & Thornburg LLP

• John B. Sallman, P.G., Senior Principal, Assistant Director of Environmental Services, Terracon Consultants, Inc.

• Blayne Hartman, Ph.D., Hartman Environmental Geoscience, Vapor Intrusion, Soil Gas & Analytical Support

Vapor Migration Is Identified as a Recognized Environmental Condition: Now What?

Smart Data. Smarter Workflow.

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EDR National Webinar Vapor Migration is Identified as a REC: Now What?

Legal & Practical Application Perspective : June 24, 2014

David R. Gillay, Esq.Partner, Environmental Department



Overview

• Primary Objective • Transactional Scrutiny• Key terms & dispelling myths: vapor migration,

vapor encroachment, vapor intrusion

• EPA AAI rulemaking update• Preemptive Mitigation update• Recommendations

3



Objective• If a Phase I ESA report or other assessment

identifies vapor migration as a REC or issue, is this a deal killer?– No, but you need an experienced multi-disciplinary

team to develop a site- or transactional-specific approach using the right ingredients.

– Key members include: risk assessor/toxicologist, hydrogeologist, VI sampling expert, mitigation expert, and legal counsel.

– These team members often times are “plugged in” for a specific purpose.



Scope of Due Diligence• Understand and document the underlying purpose of due diligence in connection with the transaction

– Who is your client?– Why is it conducting due diligence?– What does it plan to do with the target property?– What are potential continuing obligations?

• Significant and important differences:– Lenders & SBA process– Is Prospective Purchaser trying to qualify for applicable federal

and state environmental protections?– Business Risk evaluation



Buyers beware …. • If the target property is determined to be “the” or “a” source of volatile COCs migrating to groundwater and flowing off-site, additional scrutiny is necessary.

– New tools– Receptor surveys and land use – Insurance products

• If your client wants to also qualify for applicable landowner liability protections under state/federal envtl statutory regimes, even more scrutiny is necessary.

– Continuing obligations post-closing to maintain protections (take reasonable steps to stop release, prevent future release, prevent or limit exposure to previous release)– Develop a Continuing obligations compliance plan (ASTM E2790-11 Standard Guide for Identifying and Complying with Continuing Obligations)



Interplay of Vapor Migration /Intrusion

• Vapor intrusion (VI) generally occurs when there is a migration of volatile chemicals from contaminant sources into an overlying building

– Volatile chemicals can emit vapors that may migrate through subsurface soils and into indoor air spaces of overlying buildings in ways similar to that of radon gas seeping into homes



Vapor Encroachment Condition• A VEC is defined as the “presence or likely presence of

chemicals of concern (COC) vapors in the sub-surface of the target property caused by the release of vapors from contaminated soil or groundwater either on or near the target property as identified by Tier 1 or Tier 2 procedures.”

– Tier 1 identifies known or suspected contaminated properties within the area of concern (1/3 mile for volatile compounds; 1/10 mile for petroleum hydrocarbons).

– Tier 2 is more comprehensive and evaluates certain characteristics of a known contaminated plume resulting from contaminated properties and the proximity of the contaminated plume to the target property. If no plume information is available, Tier 2 screening can involve sampling.



Vapor Intrusion



US EPA rulemaking update• Notable quotes from December 30 final rule (78 FR

79319):– In the case of vapor releases, or the potential presence or migration of

vapors associated with hazardous substances or petroleum products, EPA notes that both the All Appropriate Inquiries Rule and the ASTM E1527-05 standard already call for the identification of potential vapor releases or vapor migration at a property, to the extent they are indicative of a release or threatened release of hazardous substances.

– EPA wishes to be clear that, in its view, vapor migration has always been a relevant potential source of release or threatened release that, depending on site-specific conditions, may warrant identification when conducting all appropriate inquiries.



US EPA rulemaking update• EPA proposed on June 17 to remove reference to the 2005

ASTM Phase I environmental site assessment standard (1527-05) from EPA’s “All Appropriate Inquiry” (AAI) rule under the Federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

• EPA is soliciting comments on the proposal to delay the effective date of a final rule removing the reference to the ASTM E1527–05 standard for one year following publication of the final rule

• Comments due on July 17• Link: http://www.gpo.gov/fdsys/pkg/FR-2014-06-17/pdf/2014-14032.pdf



Vapor Migration Screening & Risks• What if we had not considered the vapor migration pathway in the past, does this open us up to any liability?

– Legal determination and ultimately a judge would decide

– Evaluation would include:• How does state agency manage VI? (41 different answers)• E2600-10 clarified that CERCLA release includes vapor• Review legal appendix to Phase I ESA standard

• Quick update on regulatory and litigation involving VI – Short term action levels for TCE– Invisible villain spurs litigation and statutory fixes



To Mitigate or Not …• US EPA’s current draft VI guidance emphasizes pre-

emptive mitigation• AEHS Conference – entire day focused on “VI Exposures

– The Challenges, Need for, & Benefits of Long-Term Stewardship”– EPA’s National IC Policy (IC Plan)– New OMM guidance and accreditation process for VI

mitigation contractors

• New Proposed ANSI/AARST American National Standard – Soil Gas Mitigation Standards for Single-Family Residences– Scope of project, EPA involvement, timing



To Mitigate or Not …• In the mean time, when should pre-emptive mitigation

be considered?– Passive vs active systems– Construction and Planning – Cost benefit analysis– Where is the “source”?– Mitigation may be “forever”, so clear communication and

expectations should be calibrated appropriately

• Some states, like Indiana, have proposed guidance with performance standards, monitoring schedules, and criteria for turning systems “off”



Recommendations

• Develop clear communication protocols to define the nature and scope of due diligence efforts

• Establish your “VI” team and build alliances with experienced environmental professionals– State of science evolving at a rapid pace– Understand new tools and deploy based on site-specific features

• Consider potential VI-related post-closing continuing obligations and document in written communications– Recommend a Continuing Obligations Plan



Questions or Comments

Please contact:

David R. Gillay, Esq.Chair, Brownfields & Environmental Transactional DiligenceChair, Remediation, Corrective Action & Voluntary Cleanup

(317) 231-7474 or (317) [email protected]

Vapor Migration Is Identified as a Recognized Environmental Condition: Now What?

Presented by: John B. Sallman, P.G., Senior Principal, Assistant Director of Environmental ServicesTerracon Consultants, [email protected]

June 24, 2014

What is the EP Community doing to evaluate vapor?

Evaluating Vapor

Now a pathway for consideration under ASTM E 1527-13 EPA published a proposed rule to remove

reference to E 1527-05 as AAI-compliant A REC is still a REC

– Vapor is rarely the sole potentially complete pathway.

Typically a Phase II issue

EP Commu

nity

What guidance is being used?

Guidance

Two recent informal polls:– E-2600 not being used by the EP community– E-2600 only used when required by client

ASTM E 1527-13 requires a method be used– Most EPs conduct a modified E-2600 scope

EPA guidance deals with intrusion, not encroachment

E-2600

Guidance

Lender Community– Many lenders have developed their own vapor

SOWs.– Many lenders require a vapor section in ESAs.

Client SOW

How do you talk to clients about vapor?

Clients

Start at the proposal stage Know your state vapor guidance Know EPA vapor guidance Understand ASTM E 1527-13 vapor

requirements

Vapor Talk

Clients

Avoid pitfalls of report updates/redos– Vapor may not have been considered before– HREC definition has changed– New CREC definition– Non-issues before may be issues now

Avoid Traps

Clients

File Reviews– Vapor may not have been considered for closure– Old HRECs may now be RECs– Many risk-based closures may still have vapor

concerns– Non-issues before may be issues now

Avoid Traps

How do you ensure consistency across the company?

Consistency

Develop an internal method Conduct training Form workgroups Once and done is

probably not enough Keep up with changes

Training TrainingTraining

How are clients reacting to vapor?

Client Reactions

Better than a few years ago More clients are expecting vapor issues Still a lot of misunderstanding Requires teaching by consultants

Getting Better

Addressing Vapor Issues in the Field

Blayne Hartman Ph.D.

858-204-6170www.hartmaneg.com

June 2014

EDR Webinar

Step 1: Chlorinated or Petroleum Site?

yesno

no yes

Start

Petroleum Site?

Whew!(If Tank Site)

Gulp!

TCE Site?

Ouch

Step 2: What Agency Has Oversight?

States with VI Guidance in 2013

States with VI Guidance in 2004

36 States Now Have VI Guidance

EPA Guidance Updates(Release Date: 2014?)

• EPA (OSWER & Superfund) – Multiple lines of evidence (more expense & chances to fail) – Preference for soil gas near source (terrible for HCs!)– Longer indoor air sampling period (terrible for HCs!)– Fixed Att factor of 0.1 for shallow SG (~50x drop in SLs)– Sub-slab Att factor of 0.03 (3.3x increase in SLs)– Sampling protocols inconsistent with EPA-ORD studies!!

http://www.epa.gov/oswer/vaporintrusion

Comment Period Ended 6/24/13

EPA Guidance Updates(Release Date: 2014?)

• EPA-OUST: Guidance for HCs – Exclusion criteria? Proposed – Testing/Adoption of Biovapor model - Done – PVIscreen Model – No Screening Levels

http://www.epa.gov/oust/cat/pvi/index.htm

Comment Period Ended 6/24/13

Step 3: What Levels Are OK?

• PCE– 22x Increase in Allowed Levels in 2012

• TCE– 3x Decrease in Allowed Levels in 2013

Indoor Air Standards: EPA RSLs

http://www.epa.gov/reg3hwmd/risk/human/rb-concentration_table

Step 4: What Investigation Method?

• Indoor Air Sampling • Groundwater Sampling• Soil Phase Sampling• Soil Gas Sampling• Measure Flux Directly• Predictive Modeling• Supplemental Tools/Data

Ingredients for EffectiveVI Assessments

• Investigatory Approach• Determine Correct Screening Levels• Sample & Analyze Properly• Know & Use Supplemental Tools• Chlorinated vs Petroleum Sites

The Most Important Ingredient• Experience:

– Consultant – Collector – done soil gas before?– Lab – certified for methods?– Regulator– Public– YOU!

What level person is going in the field?

Most Common VI Bloopers• Unit Confusion

– Assuming ug/L equivalent to ppbv– Assuming ug/m3 equivalent to ppbv

• Screening Levels– Comparing to generic screening levels– Not calculating correct levels

• Sampling & Analysis Errors– Program design: soil gas? GW? SS? IA?– Using wrong hardware– Using wrong analysis

Approach Generalizations• Indoor Air

– Always find something – Multiple sampling rounds 6 months Apart!!

• Groundwater Data– Typically over-predicts risk

• Soil Phase Data– Typically not allowed; over-predicts risk for HCs

• Soil Gas Data– Transfer rate unknown– Sub-slab intrusive

Indoor Air Measurement• Pros:

– Actual Indoor Concentration• Cons:

– Where From?– Inside sources (everything!)– Outside sources (exhaust)– People activities – NO CONTROL!

Biggest Problem with Transactions:Most Agencies Require Min 2 Sampling Rounds!!

Got A Life?

Longer Collection Times = False Positives

Soil Gas Sampling

• Active?• Passive? (limited use)• Flux Chambers? (limited use)

Active method most often employed for VI

Sampling Through Probe Rod

Soil Gas Implants

ASTM E2600 VI Standard

• Tiers 1: Screening (Phase 1)• Tier 2: Non-invasive & Invasive Screening• Tier 3: Investigation – no details• Tier 4: Mitigation

Can Jump to Tier 4 at Any time

Strategy of the E2600 Tier 2 Screen• Check the number of

potential sources (PS) remaining from Tier 1/Tier 2

• Design sampling to see if vapors from PS have made it to the target property

• Tier 2 focus is at property border

• Agency likely not involvedTP

PS

PS

X X XX X

Most Common Data Collected: Soil Gas

Strategy for Tier 3 VI Assessment• Tier 3 focus is on the

property

• Track contamination detected at property border towards on-site receptors

• Assess Receptors, if necessary

• Agency may be involved

TP

Tier 3 Likely to Take Longer

Sub-Slab vs. Near-Slab Samples

Are these better than these?

Are they any good at all?

Previews of the VI Future

• VI Likely to be a Concern at Your Sites

• Variable Regulatory Guidance Makes Assessment Tricky & Slow

• New EPA OSWER Guidance to be Stricter

• ASTM Standard Increase # of Sites

• Hydrocarbons to be Less of a Concern

Forthcoming VI Events• 2-Day VI Course – Missouri July 9 & 10, 2014

– Regulators from MO, NE, EPA Region 7– Go to www.hartmaneg.com

• AWMA VI Conf – Cherry Hill NJ, Sept 2014

• 2-Day SE VI Convention – Atlanta Oct 2014

• 2-Day VI Course – TN Nov 18 & 19, 2014– For TN DEC

Blayne Hartman, [email protected]

www.hartmaneg.com

Q&A

Real Estate

Vapor Migration Is Identified as a Recognized Environmental Condition: Now What?