For the First Time, U.S. EPA Proposes to Add a Site to the National Priorities List Solely Based on the Risk Posed by Vapor Intrusion

Beveridge & Diamond PC
Jeanine L.G. Grachuk & Augustus E. Winkes

March 8, 2018

The National Priorities List is designed to identify the contaminated sites that pose the highest risk to human health or the environment so that U.S. EPA can focus its efforts on these sites. For the first time, on January 18, 2018, EPA proposed to list a site based solely on the risk to human health from subsurface intrusion to indoor air, also known as vapor intrusion. The site is Rockwell International Wheel & Trim in Grenada, Mississippi. The public comment period on this proposed listing will close on March 19, 2018.

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LSRP Corner: Vapor Intrusion Technical Guidance

Synergy Environmental, Inc.
Dennis Libenson, LSRP

February 14, 2018

The NJDEP released Version 4.1 of the Vapor Intrusion Technical Guidance in January 2018. This version included a significant clarification to the discussion of petroleum hydrocarbons (PHC).

The NJDEP noted in Version 4 of the Vapor Intrusion Technical Guidance that gasoline additives such as oxygenates or lead scavengers are not considered as PHC. Going further, NJDEP now explicitly states the following in the most recent version:

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Is Vapor Rising? Challenges of Phase I ESAs

Dinsmore & Shohl LLP
Steve N. Siegel

August 29, 2017

For the first time in ASTM E1527-13 (E1527-13),1 ASTM required the environmental professional (ENV Pro) to actively conduct a vapor survey.2 But it is difficult to explain how an ENV Pro should conduct a vapor survey, resulting in potentially deficient Phase I Environmental Site Assessments (Phase I ESAs) being provided to entities purchasing and investing in real property. This article attempts to explain the issues faced by ENV Pros as they attempt to meet the requirements of E1527-13 and the All Appropriate Inquires important to real estate purchasers by performing a non-invasive review of the property at issue and the files and databases that (allegedly) contain all there is to know about the property.

 History of Vapor Issues

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EPA Eases Path to Superfund Listing: Vapor Intrusion Component Added to the Hazardous Ranking System

Seyfarth Shaw LLP
Andrew H. Perellis, Kay R. Bonza and Craig B. Simonsen

December 9, 2016

Seyfarth Synopsis: With the EPA adding the consideration of vapor intrusion in its Superfund site investigations, hundreds of sites that previously would not rank high enough to qualify for listing on the National Priorities List of contaminated sites would now likely qualify.

The U.S. Environmental Protection Agency (EPA) has just released a pre-publication version of its final rule to add a subsurface intrusion (SsI) component to the Superfund Hazard Ranking System (HRS). EPA defines subsurface intrusion as the migration of hazardous substances, pollutants, and contaminants from the unsaturated zone or the surficial (shallow) ground water into overlying structures. The most common form of subsurface intrusion is vapor intrusion. Vapor intrusion occurs when vapor-forming chemicals from sources including dry cleaning solvents and industrial de-greasers in ground water or soil migrate into buildings and other enclosed spaces, posing a threat to indoor air quality.

We had blogged previously when the Agency proposed this new rule. See EPA Plans to Ease Path to Superfund Listing: Vapor Intrusion Component to be Added to the Hazardous Ranking System. Before this rulemaking, the EPA addressed SsI at sites only when those sites were listed on the National Priorities List (NPL) for another contamination issue. By adding the consideration of vapor intrusion to the HRS, hundreds of sites that previously would not rank high enough to qualify for listing on the NPL could now qualify based soley on the threat of vapor intrusion. NPL listing is a prerequisite to EPA spending sums over $2 million to investigate and conduct remedial actions under Superfund. NPL-listed sites are generally more expensive to remediate and more difficult to sell than are other environmentally distressed properties.

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Vapor Intrusion Due Diligence and the Landlord/Tenant Relationship

Nelson Mullins Riley & Scarborough LLP
Scott Hitch, Jack Smith, Bernard F. Hawkins, Jr., Weston Adams, Rory Carlisle and Jeanne N. Guest

May 5, 2016

The potential for soil and groundwater contamination to migrate through soil gas (“vapor intrusion”) into interior building spaces is increasingly becoming a critical component of environmental due diligence in real estate transactions, remediation of brownfield sites, and in development of infill areas.

The term “vapor intrusion” refers to contaminated soil or groundwater chemicals that evaporate through the air into a building above. Volatile organic compounds from soil and groundwater releases may vaporize or volatilize, becoming a gas that can find its way into buildings through cracks in the foundation, through openings where plumbing or utilities come into the building, along utility corridors or from sumps designed to keep groundwater from ponding in basements.

Common sources of vapor-forming chemicals include gas stations, dry cleaners and industrial facilities that use chlorinated solvents. In some cases, vapor intrusion may contribute to illness, odors or, rarely, explosion. If vapor intrusion results in high concentrations of hazardous chemicals in indoor air, building occupants breathing in the chemicals may experience headaches, short-term memory lapses, or other symptoms. There is a growing body of scientific research regarding the health risk of long-term exposure to hazardous chemicals in indoor air.

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US EPA Proposes to Include Vapor and Other Subsurface Intrusions Component to NPL Hazard Ranking System

Squire Patton Boggs
Lisa J. Zak

March 2, 2016

US EPA may make a significant change to the Hazard Ranking System, the system utilized to determine which sites are eligible for inclusion on the Superfund National Priorities List (NPL).  (See the proposed rule here.)  Currently, the Hazard Ranking System evaluates four exposure pathways when determining eligibility:  ground water migration, soil exposure, surface water migration, and (outdoor) air migration.  US EPA is proposing to modify the soil exposure pathway to include subsurface intrusion (SsI).  SsI includes all migrations of hazardous substances, pollutants, or contaminants from the subsurface into aboveground structures regardless of the medium of transport.  Vapor intrusion (VI) is the most common form of SsI.  VI occurs when there is a migration of volatile chemicals into an aboveground structure from contaminated ground water or soil.  SsI is broader than just VI however and can also occur through the intrusion of contaminated groundwater.  For example, SsI may occur when contaminants in groundwater directly enter a structure’s basement and then vaporizes in the structure.

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Vapor Intrusion Intruding on EPA’s Hazard Ranking System under CERCLA

Verrill Dana LLP
Mathew J. Todaro

February 11, 2016

Originally posted on

Section 105(a)(8)(B) of CERCLA sets forth the outlines of the scoring system used by the U.S. Environmental Protection Agency (the “EPA”) Superfund program to assess and rank the potential and actual threat associated with sites across the country. The scoring system is known as the Hazard Ranking System (the “HRS”). The HRS was originally adopted in 1982, but was subsequently amended in 1990 in response to the Superfund Amendments and Reauthorization Act.

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EPA Takes Positions on Vapor Intrusion

Seyfarth Shaw LLP
Jeryl L. Olson & Craig B. Simonsen

June 16, 2015

In a busy day for vapor intrusion, last week the U. S. Environmental Protection Agency made several announcements about vapor intrusion.

First, it announced it had submitted a draft rule to the White House OMB seeking to add vapor intrusion to the pathways evaluated under the Hazard Ranking Scoring (HRS) System for National Priority List (NPL) Superfund sites.   Additionally, EPA published two new sets of technical guidance on assessing vapor intrusion. One guidance document has been prepared for assessing vapor intrusion from leaking petroleum underground storage tank sites, and the other guidance document is aimed at assessing vapor intrusion for sites with non-petroleum contamination.

Draft Rule on Assessing Vapor Intrusion as Part of Site Hazard Ranking

With respect to EPA’s draft rule adding assessment of vapor intrusion to the Hazard Ranking Scoring process, this is the Agency’s second effort at adding the vapor intrusion pathway to the other types of pathways which are already considered in evaluating and then listing a site on the National Priorities List. The same version of the rule was previously submitted to, but then withdrawn from, OMB consideration.

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CERCLA, RCRA, and Vapor Intrusion: Does What Happens in Vegas Really Stay in Vegas?

Baker & Hostetler LLP
María R. Coor

November 14, 2013

In Voggenthaler v. Maryland Square LLC, 724 F.3d 1050 (9th Cir. 2013), the defendants argued that contamination that happened in Vegas, stayed in Vegas, and therefore the Commerce Clause barred the application of CERCLA.  The district court disagreed.  The Ninth Circuit affirmed the district court’s decision, joining the Second Circuit and the Eleventh Circuit in upholding the applicability of CERCLA as constitutional even when contamination and/or its direct impacts are local.  See United States v. Olin Corporation, 107 F.3d 1506 (11th Cir. 1997); Freier Westinghouse Electric Corporation, 303 F.3d 176 (2d Cir. 2002).

Contamination from a former dry cleaning operation located at a Las Vegas shopping center prompted the Nevada Division of Environmental Protection (“NDEP”) to remediate the site.  During this remediation, NDEP learned of potential vapor intrusion stemming from the contamination and notified nearby homeowners.  Two district court actions and several appeals followed.  A group of homeowners filed a RCRA citizen suit seeking an injunction ordering the owners of the shopping center and the operators of the former dry cleaning facility to clean up the contamination.  NDEP filed an action seeking recovery of incurred and future costs under CERCLA and state law.  The district court awarded plaintiffs summary judgment in both cases.

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Compliance: Pending Vapor Intrusion Regulations Threaten Commercial Real Estate

Much Shelist, P.C.
David L. Rieser

November 2, 2013

Burgeoning state regulations, upcoming federal guidance and new environmental auditing standards may make vapor intrusion a significant environmental concern for commercial property owners, buyers, developers and lenders. While this is not a new issue, enhanced scrutiny may place vapor intrusion at the crux of commercial real estate transactions. Fortunately, there are steps counsel can take to prevent it from becoming a major issue.

Exposure danger

Vapor intrusion refers to a process in which contaminants in the soil or groundwater beneath a building enter the structure with air that moves from the subsurface through cracks or crevices in the basement or lower floors. Typically, this only happens with volatile chemicals such as those associated with gasoline (i.e., benzene) or dry cleaning (i.e., TCE/PCE). Over time these contaminant vapors can accumulate and increase to what environmental agencies consider hazardous levels, especially in newer, more airtight buildings. Vapor intrusion can be dangerous, and in the most extreme example, houses in Hartford, Ill., have exploded due to gasoline vapor contamination. In a more typical setting, however, it is uncertain whether vapor levels present more than a theoretical risk.

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