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Lack of Vapor Intrusion Guidance Muddies Issues; Effect on Redevelopment Uncertain


Lack of Vapor Intrusion Guidance Muddies Issues; Effect on Redevelopment Uncertain

Vapor Intrusion Guidance

Key Development: Lack of final guidance on vapor intrusion at contaminated sites has made redevelopment more difficult but has not necessarily slowed down such efforts, lawyers and environmental professionals tell Bloomberg BNA.

What's Next: The EPA says its goal to release final guidance by the end of 2014.

By Pat Ware

April 17 --Lack of updated federal guidance on vapor intrusion during the past decade appears to have made redevelopment of contaminated sites more difficult, but has not necessarily slowed down such efforts, interested parties told Bloomberg BNA.

“Development certainly seems to have been chilled,” according to David Gillay, a lawyer with Barnes & Thornburg LLP. Vapor intrusion is an issue that doesn't seem to be easily resolved when other environmental issues, such as compliance and proper permitting, come up he said.

“But I wouldn't go much farther than saying that, because it would be too hard to point to facts that indicate one way or another,” he said. “There is no way to tell if redevelopment has slowed or not.”

Vapor intrusion risks arise in a variety of transactions involving acquisitions of properties, and buyers, sellers, borrowers and lenders now are paying more attention to those risks .

The Environmental Protection Agency has been operating with draft guidance since 2002 when the draft was put out for comment. However, the guidance was never made final. The draft guidance provides technical and policy recommendations for determining whether a vapor intrusion pathway poses an unacceptable risk to human health at cleanup sites.

Revised Draft Issued in 2013.

More than a decade later, in April 2013, the EPA issued revised draft guidance for comment. Since the science of vapor intrusion had changed rapidly in the past decade, the most recent draft differ significantly from the 2002 version. And the latest draft included two documents--one a broad vapor intrusion guidance for all compounds and the second a narrower guidance on petroleum hydrocarbons

It remains unclear when the EPA will issue the final guidance, although Mathy Stanislaus, EPA assistant administrator of solid waste and emergency response, said in January it was his goal to release it by the end of 2014 .

Vapor intrusion is the migration of volatile organic compounds (VOCs) from contaminated subsurface soil and groundwater into overlying or nearby buildings. At low levels in indoor air, VOCs can cause a variety of health effects--including watery or burning eyes, skin irritation or rashes, nausea, dizziness or fatigue. Under extreme conditions, more severe symptoms can include kidney and liver damage or damage to the nervous system.

Not a 'Deal-Breaker.'

Several parties told BNA the lack of legal certainty caused by the absence of updated guidance should not stop the redevelopment of contaminated sites.

It's not a “deal-breaker,” said Lenny Siegel, executive director of the Center for Public Environmental Oversight in Mountain View, Calif. Although the federal guidance will explain how to meet legal obligations, those obligations already exist, he said.

Any good-faith effort to address vapor intrusion, particularly in new construction, will be recognized, Siegel said.

Pam Marks, an attorney with Beveridge & Diamond, also said the guidance is not crucial to redevelopment. “Personally, I have not seen the lack of certainty specifically from the final guidance as being a deal-breaker for any transaction,” she said.

Significant Considerations Presented.

Still, vapor intrusion issues in general have presented significant considerations for some transactions and for site redevelopment planning and design, and these issues often are addressed without the presence of formal guidance, Marks said.

'A motivated buyer and seller will generally figure out a way to make the transaction work.'

--Matt Fox, senior engineering consultant
EMG Corp., Hunt Valley, Md.

“To some extent, the uncertainty is reduced where the parties are working with technically competent environmental professionals who understand the technical issues and are also familiar with the rules and guidance of the state in question, as well as the federal guidance,” she said.

Matt Fox, senior engineering consultant with EMG Corp., an engineering and environmental consulting company located in Hunt Valley, Md., said he has not seen any legal uncertainty slowing down real estate transactions. “A motivated buyer and seller will generally figure out a way to make the transaction work,” he said.

Need for Federal Guidance?

Since many states and some EPA regions have developed their own vapor intrusion guidance or regulations, how important is the federal guidance?

Marks said there “is no absolute need” for it because states and regions have been handling vapor intrusion evaluations based on scientific judgment or available guidance.

“However, with federal guidance on the horizon and a draft of the guidance available, this complicates matters because it increases uncertainty as to timing, the content of the final guidance, the usefulness of the draft guidance, and how to integrate competing recommendations, demands and guidance,” she said.

Siegel, however, emphasized the importance of the EPA guidance, saying most states do not have detailed guidance, and new approaches in the federal guidance are likely to lead to updates in the states that do.

Stringent Guidance Could Confuse.

Fox said final federal guidance would be helpful in trying to build a national standard. However, if the federal guidance were more stringent than existing state standards, this could lead to confusion, he said.

David Freeman, an attorney with Gibbons P.C., said updated federal guidance will tend to set the “floor” for evaluating soil vapor issues. “However, if the state in which a site is located has guidance or regulations consistent with or more stringent than the federal guidance, its importance will be limited,” he said.

The EPA final guidance will have significance for sites in states that do not have their own guidance, he said. “However, it will be of limited importance in states like New York that are already way out in front of EPA on these issues,” according to Freeman.

“This point is underscored by the fact that EPA's latest draft adopts many of the approaches reflected in these more proactive states' guidance documents,” he said.

'Nightmare' for States.

Gillay was more emphatic in stressing the need for federal guidance, calling the lack of it a “nightmare” for states. “They don't know what to do,” he said.

Many states will let federal guidance trump their own guidance when EPA finally releases it, he said.

But until then, “What are companies supposed to do when they make long-term decisions about whether to mitigate a release?” Gillay said. Companies are looking at having to monitor something for decades with a guidance that is still evolving, he said.

Although a majority of states have issued their own guidance or regulations, there is no consistency from state to state and some guidance is much more thorough than others, some state officials have told Bloomberg BNA

Hard for National Developers.

“The situation is really awful--all states have different laws or guidance,” John Boyer, an environmental scientist with the New Jersey Department of Environmental Protection, told Bloomberg BNA. “If you're a national developer going into more than one state, it's hard.”

About three-quarters of the states have some type of vapor intrusion guidance or regulations, he said.

When, or if, the EPA releases its final guidance, Gillay said that based on his experience, it's likely many regulators will treat it as a rule. “They shouldn't, as it is just guidance,” he said.

States that have an existing vapor intrusion policy will likely make changes to ensure that their guidance aligns with the new EPA document, he said. States that have not developed a vapor intrusion policy are likely to just adopt or follow the EPA's, Gillay said.

New Obligations for Owners?

The question then arises of whether state guidance on vapor intrusion creates new obligations for existing owners.

“Yes, new obligations for owners are created, as 'applicable or relevant and appropriate requirements,' which need to be taken into account in Superfund remedial decisions,” Freeman said.

Marks said the EPA may consider new state guidance in evaluating the protectiveness of remedies during five-year reviews, particularly where the new state guidance has been promulgated as a rule or regulation and where it would show that the remedy is no longer protective of human health or the environment.

“The level of EPA consideration of state guidance may depend on how active the state response agency is at the site during the five-year review process,” she said.

Evaluations During Five-Year Reviews.

Siegel said most sites with vapor intrusion issues are not on the EPA's National Priorities List (NPL) of most contaminated sites, and the presence of a vapor intrusion pathway does not currently qualify a site for listing.

The Comprehensive Environmental Response, Compensation, and Liability Act requires that all Superfund sites on the NPL be reviewed no later than five years after the start of a remedial action. As part of that process, the EPA has posted supplemental guidance on addressing vapor intrusion issues in the five-year review to provide recommendations for assessing the protectiveness of a remedy at private and federal Superfund sites.

'Existing federal and state vapor intrusion guidance is not as inconsistent as most people would believe.'

--John Boyer, environmental scientist,
New Jersey DEP

The EPA routinely evaluates vapor intrusion in its five-year reviews if there are chlorinated solvents at the site, Siegel said. New York has used a statewide screening to reopen state Superfund sites, he said.

Fox said, “Based on my experience, states are not retroactively enforcing new vapor intrusion regulations for sites that previously achieved closure.” However, if the case is reopened for other reasons, for example if the site is redeveloped, the vapor intrusion regulations could be enforced, he said.

“I don't work directly with Superfund sites on a regular basis, so I'm not sure how this will play out for those cases,” Fox said. He said he suspected, however, that EPA could take necessary steps to protect public health and welfare.

“Also, I don't see a lot of NPL sites receiving closure when significant contamination remains,” he said.

What Is Safest Approach?

Since existing federal and state guidance is often inconsistent, what is the safest approach to handling vapor intrusion until final guidance is issued?

Both Freeman and Fox recommended using the most conservative, or most stringent, approach.

Fox said, “I'm not sure if there is legal precedent that might dictate that state standards trump federal standards or vice versa.”

Boyer said, “Existing federal and state vapor intrusion guidance is not as inconsistent as most people would believe.” For example, New Jersey and the EPA have very similar approaches to investigating the vapor intrusion pathway, he said.

Differences often occur when comparing specific vapor intrusion screening levels used by state and federal agencies, Boyer said. “In this situation, the property owner or tenant should use the most conservative value. Consult with the lead agency before implementing any action,” he said.

Viewed Through Two Lenses.

Richard Sieg, regulatory counsel to Inmar Inc., in Winston-Salem, N.C., said vapor intrusion issues should be viewed through two lenses--the lens of the regulatory requirements for a given state and the lens of avoiding toxic tort lawsuits.

“In other words, just because a state may have weak requirements, as compared with its peers, does not mean that more work is not necessary,” Sieg said. “This is not to say that the evaluation of every site or even a majority of sites must be data-intensive. Experienced environmental officials may be able to exclude some sites quite easily,” he said.

If, however, a client is considering the purchase of a former manufacturing plant and historic releases may have affected neighbors, the driver for the vapor intrusion investigation may quickly switch from the regulatory requirements to the performance of whatever work is needed for environmental professionals to determine what the actual vapor intrusion impacts are at a site, according to Sieg.

Game Changer in Due Diligence.

“Every client has some tolerance for risk, but vapor intrusion has really become a game changer in due diligence, because the stakes for the purchase of some properties may be terribly high and the study of vapor intrusion is plagued with prevalent and unavoidable uncertainties,” he said.

Siegel of the Center for Public Environmental Oversight said the safest approach to handling vapor intrusion is to mitigate anywhere above or within 100 feet of known contamination by trichloroethylene and perchloroethylene (both VOCs) in the vadose zone or shallow aquifer.

The cost of designing passive mitigation, to be followed with monitoring to determine whether to go with active mitigation, into new construction is a small fraction of overall development costs, Siegel said. It's a “no-brainer” anywhere there are likely to be VOCs in the subsurface, he said.

Future Monitoring an Issue.

The design of mitigation in new construction is fairly standardized, with a variety of proven options, Siegel said. The disagreements will come around the requirements for long-term monitoring, he said.

Gillay said developers that are considering building-in passive mitigation before EPA's guidance is finalized are concerned about future monitoring.

Passive mitigation could include physical engineering controls and administrative and legal controls, such as institutional controls. Active mitigation could include active ventilation systems.

“If developers don't know if there's a vapor intrusion problem and just preemptively mitigate, does that lock them into this whole monitoring program?” Gillay said.

Providing a lender's perspective, Jeff Telego, president of RTM Communications Inc. and Risk Management Technologies Inc., said many banks and real estate developers are putting into place their own mitigation systems and financial assurance practices during different phases of the transaction.

“For example, certain developers are using aerated floors for new construction or put in mitigation barriers on renovations,” said Telego, who also is executive co-director of the Environmental Bankers Association.

Developers Have Not Spilled Chemicals.

Vapor intrusion becomes an issue for lenders when a “recognized environmental condition” is determined to be either on site or migrating on site from an adjoining property, he said.

'“Every client has some tolerance for risk, but vapor intrusion has really become a game changer in due diligence.'

--Richard Sieg, regulatory counsel, 
Inmar Inc., Winston-Salem, N.C.

“If you ask regulators if you have to do something, they'll say yes,” Gillay said. Developers have to build a case and convince a regulator you don't have to do this kind of long-term monitoring. They're just a developer--they haven't spilled chemicals,” he said.

Fox said it may be possible that a system installed previously would not meet the requirements of final guidance. “However, I don't anticipate this being a common problem as the mitigation systems should be over-engineered to the point where they would meet all standards,” he said.

“What really is getting developers' attention is the new Phase I standard that was rolled out” at the end of 2013, Gillay said in reference to ASTM International's Standard E1527-13 to conduct Phase I environmental assessments.

At the same time, the EPA published a final rule amending its “all appropriate inquires” rule to reference Standard E1527-13, which is a voluntary standard .

The Phase I standard now has requirements for assessing vapor intrusion, which many people think should have always been identified, but it brings the vapor intrusion pathway out in the open more than it has been, Gillay said.

More Costs in Development.

The upcoming federal guidance will factor more costs into more development, according to Gillay.

If a developer acquires property that has an identified vapor intrusion risk, the developer now needs to manage exposure in connection with any new or existing structures, he said.

The EPA and other regulatory agencies are suggesting there are numerous spatial and temporal variables with vapor intrusion and that these variables must be evaluated over time and in so-called worst-case conditions, he said.

“So determining whether you actually have a vapor intrusion risk takes longer, and those that simply want to jump right to a remedy to address the pathway with a vapor intrusion mitigation system will face the challenge of operating those systems for extended periods of time,” Gillay said.

“If the target property actually has a source that is creating or contributing to a vapor intrusion pathway, then the developer of that property has to not only address the on-site pathway but in some jurisdictions be responsible to address potential off-site exposure to adjacent properties,” he said.

Bankers' Perspective.

Telego said vapor intrusion continues to emerge as a risk factor in many industry sectors, such as real estate development and financial services.

“Real estate secured financial transactions are especially vulnerable where volatile organic compounds have been or are continuing to be used,” he said.

Many banks and other lenders have concerns about the triggers to vapor intrusion exposure and liability, Telego said.

“The assessment, mitigation and potential for reopening sites where contamination has been remediated using a risk-based cleanup standard calls for the use of long-term monitoring or stewardship management techniques typically performed by the land owner or third party and enforced via a government entity or quasi-regulator such as a bank or insurer,” he said.

“The bottom line is the banker's risk tolerance,” according to Telego.

By Pat Ware

To contact the reporter on this story: Pat Ware in Washington at pware@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

The EPA supplemental guidance, Assessing Protectiveness at Sites for Vapor Intrusion, during five-year reviews is available athttp://www.epa.gov/superfund/cleanup/postconstruction/pdfs/VI_FYR_Guidance-Final-11-14-12.pdf.

Copyright 2014, The Bureau of National Affairs, Inc.

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