EPA Releases Draft Vapor Intrusion Guidance

Posted by in Due Diligence, Environmental Legislation and Regulation on May 15, 2013

On April 11, 2013, the EPA released draft final vapor intrusion guidance (“Guidance”) for assessing and mitigating vapor intrusion pathways from subsurface sources to indoor air.  The Guidance presents EPA’s current recommendations for identifying and considering key factors when assessing vapor intrusion, making risk management decisions, and implementing mitigation measures pertaining to this potential human exposure pathway.  The Guidance addresses both residential and nonresidential buildings that may be impacted by vapor intrusion from subsurface contamination.  The Guidance applies to any site being evaluated by EPA pursuant to CERCLA or RCRA, EPA’s brownfield grantees, or state agencies with delegated authority to implement CERCLA or RCRA where vapor intrusion may be of potential concern.  For State lead sites, stakeholders still should consider the application of State guidance on vapor intrusion issues, such as the California Dept. of Toxic Substances’ “Guidance for the Evaluation and Mitigation of Subsurface Vapor Intrusion to Indoor Air” (Oct. 2011).

EPA defines vapor intrusion as follows: “certain hazardous chemicals that are released into the subsurface as liquids or solids may form hazardous gases (i.e., vapors) that migrate through the vadose zone and eventually enter buildings as a gas by migrating through cracks and gaps in basement floors and walls or foundations, including perforations due to utility conduits and any other openings (e.g., sump pits).”  “Vapor intrusion is the general term given to migration of hazardous vapors from any subsurface contaminant source, such as contaminated soil or groundwater, through the vadose zone and into indoor air.”  “Vapor intrusion can occur in a broad range of land use settings, including residential, commercial, and industrial, and affect buildings with virtually any foundation type (e.g., basement, crawl space(s), or slab on grade).”

Topics addressed in the Guidance include: (1) a conceptual modeling of vapor intrusion; (2) considerations for nonresidential buildings; (3) preliminary analysis of vapor intrusion; (4) detailed investigation of vapor intrusion; (5) setting a risk management framework; (6) building mitigation and subsurface remediation; (7) preemptive mitigation/early action; and (8) planning for community involvement.  Appendices to the Guidance include: a list of chemicals of potential concern for vapor intrusion; a list of generic attenuation factors used to develop screening levels; data quality assurance considerations; and a formula for calculating vapor source concentrations from groundwater data.

EPA recommends consideration of these Guidelines when making “current human exposures under control” environmental indicator determinations at RCRA corrective action facilities and National Priorities List sites under CERCLA;

when undertaking removal actions, remedial actions, pre-remedial investigations, remedial investigations, and five-year reviews under CERCLA; and when undertaking RCRA facility investigations and corrective actions and site investigations and cleanups at federal facilities and brownfield sites.

Along with its Guidance, EPA released additional guidance providing information and direction about how vapor intrusion should be assessed for petroleum hydrocarbons (“OUST Guidance”).  The OUST Guidance may be useful in informing decisions about vapor intrusion and petroleum hydrocarbons at brownfield sites.

EPA also issued a Vapor Intrusion Screening Level (“VISL”) Calculator which is a recommended spreadsheet that: identifies chemicals considered to be typically vapor-forming and known to pose a potential cancer risk or noncancer hazard through the inhalation pathway; provides generally recommended screening-level concentrations for groundwater, near-source soil gas (exterior to buildings), sub-slab soil gas, and indoor air based upon default residential or nonresidential exposure scenarios, a target cancer risk level of one per million, and a target hazard quotient of one for potential non-cancer effects; and facilitates calculation of site-specific screening levels based on user-defined target risk levels, exposure scenarios, and semi-site-specific attenuation factors.

EPA is accepting comments on the draft final Guidance until May 24th, 2013.  You can find the Guidance and OUST Guidance here.

New EPA Policy Re: Bona Fide Prospective Purchaser Benefits for Tenants

Posted by in CERCLA, Due Diligence, Environmental Legislation and Regulation on May 14, 2013

In December 2012, the Environmental Protection Agency (“EPA”) adopted a new policy setting forth the conditions on which the agency will consider providing CERCLA bona fide prospective purchaser (BFPP) protection to tenants who lease formerly or currently contaminated property.  Previously, such protections were only available to purchasers of such property.  Although the EPA will continue to use its enforcement discretion on a site-specific basis to the extent appropriate based on the facts regarding each property, this new policy provides tenants with guidance on how to qualify for these potential new protections.

Section 107(r)(1) of CERCLA provides statutory liability protection for certain owners or operators of property, called bona fide prospective purchasers or “BFPPs.” CERCLA § 107(r)(1) states: “Notwithstanding subsection (a)(1) of this section, a bona fide prospective purchaser whose potential liability for a release or threatened release is based solely on the purchaser’s being considered to be an owner or operator of a facility shall not be liable as long as the bona fide prospective purchaser does not impede the performance of a response action or natural resource restoration.”  CERCLA § 101(40) defines a BFPP as “a person (or a tenant of a person) that acquires ownership of a facility after [January 11, 2002]” and that establishes each of the following by a preponderance of the evidence: (A) “all disposal of hazardous substances at the facility occurred prior to acquisition; (B) the person made all appropriate inquiries (‘AAI’) into the previous ownership and uses of the facility; (C) the person provides all legally required notices with respect to the discovery or release of any hazardous substances at the facility; (D) the person takes reasonable steps with respect to hazardous substances found at the facility by taking reasonable steps to stop any continuing release, prevent any future threatened release; and prevent or limit human, environmental or natural resource exposure to any previously released hazardous substances;  (E) the person provides cooperation, assistance, and access to persons authorized to conduct response actions or natural resource restoration;  (F) the person complies with land use restrictions and institutional controls; (G) the person complies with information requests and administrative subpoenas; and (H) the person is not potentially liable, or affiliated with any other person that is potentially liable, for response costs at the facility through any direct or indirect familial relationship or any contractual, corporate or financial relationship or the result of a reorganization of a business entity that was potentially liable.

The new EPA policy document indicates that since CERCLA § 101(40) applies to a person, or a tenant of a person, that acquires ownership of a parcel after January 11, 2002, that a tenant may derive BFPP status from an owner who satisfies the BFPP criteria.  The tenant would therefore remain a BFPP as long as the owner maintained its BFPP status.  However, when a tenant derives BFPP status through an owner and the owner fails to maintain its BFPP status, the tenant would also lose its BFPP status.  If this occurs, EPA now indicates that it may exercise its enforcement discretion to continue to treat the tenant as a BFPP under CERCLA § 107(r)(1).  This would likely happen if the tenant continues to meet the BFPP requirements set forth in CERCLA § 101(40) and § 107(r)(1), despite the owner failing to do so.

Additionally, the new EPA policy provides that to qualify for BFPP status, a tenant is not required to conduct an AAI if an appropriate AAI already was conducted by the owner.  The tenant also would not be considered to be “affiliated” with the owner by EPA, despite the lease between them.

Where a tenant leases property from an owner who was never a BFPP, the EPA will again exercise its enforcement discretion on a site-specific basis to treat the tenant as a BFPP if the tenant can independently meet CERCLA’s BFPP requirements.   Since CERCLA § 101(40) indicates that a person must have acquired ownership of a facility after January 11, 2002 to qualify for BFPP liability protection, tenants whose lease agreements are executed after January 11, 2002 will be eligible for BFPP under the EPA’s discretion.

EPA explains that it may not exercise its enforcement discretion under certain circumstances such as where “the lease is designed to allow the landlord or tenant to avoid its CERCLA liability or the tenant is potentially liable for reasons other than its status as a tenant and if the owner is not in compliance with state or federal regulatory requirements or administrative or judicial cleanup order or decrees relating to the leased property.“  Lastly, EPA will usually not engage in a determination of a tenant’s BFPP status until an enforcement situation exists, so it appears that EPA will not issue “comfort letters” to prospective tenants or tenants who would like confirmation that they are entitled to BFPP status.