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

1,776 views

Published on

EDR Insight Webinar
June 24, 2014

Vapor migration is part of the new Phase I environmental site assessment protocol from ASTM, E 1527-13. In December, the U.S. Environmental Protection Agency blessed the new standard as compliant with the federal All Appropriate Inquiries rule, emphasizing the importance of assessing vapor migration risk as a standard part of Phase I ESAs. US EPA went even further in the December preamble and stated that vapor migration has always been a part of conducting AAI. In light of US EPA’s statements and the emphasis that assessing vapor migration is current standard practice for AAI-compliant Phase I ESAs, how is vapor being addressed in the field? If a Phase I ESA report identifies vapor migration as a Recognized Environmental Condition, or REC, what next? In today’s market of intensely short turnaround times for property transactions, is a vapor migration issue a deal killer? What are the current tools and options to investigate a vapor migration REC under transactional time constraints? When should a buyer walk away from a site potentially impacted by vapor migration? When to mitigate? How are environmental due diligence firms establishing consistent processes for recommending “next steps” for clients when vapor migration issues arise?

This timely webinar will bring together an attorney and two leading technical experts to address head-on the various avenues that firms are taking to assist end users of Phase I ESA reports on how to address vapor migration risk during the deal making process.

Speakers:

-David Gillay, Partner and Chair of Brownfields & Environmental Transactional Diligence 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

Published in: Real Estate, Technology, Business
0 Comments
0 Likes
Statistics
Notes
  • Be the first to comment

  • Be the first to like this

No Downloads
Views
Total views
1,776
On SlideShare
0
From Embeds
0
Number of Embeds
38
Actions
Shares
0
Downloads
52
Comments
0
Likes
0
Embeds 0
No embeds

No notes for slide

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

  1. 1. Presented by: • David Gillay, Partner and Chair of Brownfields & Environmental Transactional Diligence 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.
  2. 2. CONFIDENTIAL © 2014 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP. 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
  3. 3. CONFIDENTIAL © 2014 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP. Overview • Primary Objective • Transactional Scrutiny • Key terms & dispelling myths: vapor migration, vapor encroachment, vapor intrusion • EPA AAI rulemaking update • Preemptive Mitigation update • Recommendations 3
  4. 4. CONFIDENTIAL © 2014 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP. 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.
  5. 5. CONFIDENTIAL © 2014 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP. 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
  6. 6. CONFIDENTIAL © 2014 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP. 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)
  7. 7. CONFIDENTIAL © 2014 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP. 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
  8. 8. CONFIDENTIAL © 2014 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP. 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.
  9. 9. CONFIDENTIAL © 2014 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP. Vapor Intrusion
  10. 10. CONFIDENTIAL © 2014 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP. 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.
  11. 11. CONFIDENTIAL © 2014 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP. 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
  12. 12. CONFIDENTIAL © 2014 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP. 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
  13. 13. CONFIDENTIAL © 2014 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP. 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
  14. 14. CONFIDENTIAL © 2014 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP. 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”
  15. 15. CONFIDENTIAL © 2014 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP. 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
  16. 16. CONFIDENTIAL © 2014 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP. Questions or Comments Please contact: David R. Gillay, Esq. Chair, Brownfields & Environmental Transactional Diligence Chair, Remediation, Corrective Action & Voluntary Cleanup (317) 231-7474 or (317) 946-9267 david.gillay@btlaw.com
  17. 17. Vapor Migration Is Identified as a Recognized Environmental Condition: Now What? Presented by: John B. Sallman, P.G., Senior Principal, Assistant Director of Environmental Services Terracon Consultants, Inc. jbsallman@terracon.com June 24, 2014
  18. 18. What is the EP Community doing to evaluate vapor?
  19. 19. 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
  20. 20. What guidance is being used?
  21. 21. 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
  22. 22. Guidance  Lender Community – Many lenders have developed their own vapor SOWs. – Many lenders require a vapor section in ESAs. Client SOW
  23. 23. How do you talk to clients about vapor?
  24. 24. Clients  Start at the proposal stage  Know your state vapor guidance  Know EPA vapor guidance  Understand ASTM E 1527-13 vapor requirements Vapor Talk
  25. 25. 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
  26. 26. 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
  27. 27. How do you ensure consistency across the company?
  28. 28. Consistency  Develop an internal method  Conduct training  Form workgroups  Once and done is probably not enough  Keep up with changes Training Training Training
  29. 29. How are clients reacting to vapor?
  30. 30. 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
  31. 31. Addressing Vapor Issues in the Field Blayne Hartman Ph.D. 858-204-6170 www.hartmaneg.com June 2014 EDR Webinar
  32. 32. Step 1: Chlorinated or Petroleum Site? yesno no yes Start Petroleum Site? Whew! (If Tank Site) Gulp! TCE Site? Ouch
  33. 33. Step 2: What Agency Has Oversight? States with VI Guidance in 2013 States with VI Guidance in 2004 36 States Now Have VI Guidance
  34. 34. 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
  35. 35. 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
  36. 36. 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
  37. 37. Step 4: What Investigation Method? • Indoor Air Sampling • Groundwater Sampling • Soil Phase Sampling • Soil Gas Sampling • Measure Flux Directly • Predictive Modeling • Supplemental Tools/Data
  38. 38. Ingredients for Effective VI Assessments • Investigatory Approach • Determine Correct Screening Levels • Sample & Analyze Properly • Know & Use Supplemental Tools • Chlorinated vs Petroleum Sites
  39. 39. 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?
  40. 40. 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
  41. 41. 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
  42. 42. 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!!
  43. 43. Got A Life? Longer Collection Times = False Positives
  44. 44. Soil Gas Sampling • Active? • Passive? (limited use) • Flux Chambers? (limited use) Active method most often employed for VI
  45. 45. Sampling Through Probe Rod
  46. 46. Soil Gas Implants
  47. 47. 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
  48. 48. 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 involved TP PS PS X X X XX Most Common Data Collected: Soil Gas
  49. 49. 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
  50. 50. Sub-Slab vs. Near-Slab Samples Are these better than these? Are they any good at all?
  51. 51. 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
  52. 52. 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
  53. 53. Blayne Hartman, Ph.D. blayne@hartmaneg.com www.hartmaneg.com
  54. 54. Q&A

×