AARST_Radon_Reporter_Q32022_FINAL

16 | January 2023 VAPOR INTRUSION The Vapor Intrusion Pathway Mini-Series: Legal & Litigation Risks David R. Gillay, Barnes & Thornburg LLP 1 This is the last in a series of articles focusing on an unseen villain known as vapor intrusion. This article discusses some of the legal and litigation risks associated with this pathway. In addition, this article briefly discusses two recent and nationally significant decisions regarding statutory liability under the Resource Conservation and Recovery Act (RCRA) and qualifying for important landowner liability protections from Comprehensive Environmental Response Compensation and Liability Act (CERCLA) liability. Vapor intrusion (VI) is the migration of volatile chemicals from subsurface soil and groundwater into buildings. It shares many common characteristics with the intrusion of naturally occurring radon gas into buildings. This emerging contamination “pathway” has affected thousands of closed and contaminated sites across the country. The VI pathway reveals some of the potential future risks flowing from risk-based closure of contaminated sites. A risk-based approach generally allows the responsible party to tailor the remedy to the real-world exposures at each site, instead of simply removing all of the contaminant or achieving a numerical closure level for unrestricted use in certain environmental media. Risk-based decision-making is a mechanism to integrate source reduction and risk management of a cleanup to ensure it protects human health, applies sound science and common sense, and is flexible and cost-effective. Depending on known or anticipated risks to human health and the environment, an integrated risk- based approach may include monitoring and data collection, active or passive remediation, containment, institutional controls, or a combination of these actions. To effectively manage liability, a responsible party must find the balance between source reduction and risk management for residual contamination. Evolving VI pathway guidance, new binding legal precedent, and dramatic changes to a contaminant’s toxicity can disrupt this delicate balance. There are three primary buckets of legal and litigation risks flowing from the vapor intrusion pathway: state and federal environmental statutory liability; toxic tort actions; and contractual claims. Statutory Liability RCRA and CERCLA are two different statutes that govern the federal management and cleanup of hazardous waste facilities and response to abandoned, uncontrolled hazardous waste sites, respectively. Most states have mirror statutes and/or simply adopt these federal statutes. There are important differences when a private party seeks relief under these statutes. RCRA provides two causes of action for private citizens at 42 U.S.C. § 6972(a)(1)(A) and (a)(1)(B). First, subsection (a) (1)(A) of § 6972 provides a claim when a party is in violation of its obligations under the Act. Upon proof of a violation, a court has the authority to enter an injunction enforcing the obligation and can also impose civil penalties. Second, subsection (a)(1)(B) provides a claim when contamination may present an “imminent and substantial endangerment to health or the environment.” A typical claim under RCRA’s citizen suit provision, specifically 42 U.S.C. § 6972(a) (1)(B), seeks a court order restraining a defendant and requiring them to take action, including a complete, timely, and appropriate investigation and abatement of all actual and potential endangerments, which can include the vapor intrusion pathway. These types of claims typically require extensive technical expertise and can be quite complicated. 1 David leads Barnes & Thornburg LLP’s Environmental department's remediation, redevelopment, and environmental transactions prac- tices. He has focused on the legal, regulatory, and technical impact and implications related to the vapor intrusion pathway, chlorinated VOCs (with an emphasis on TCE), and potential long-term stewardship obligations related to environmentally challenged properties for nearly two decades. David is a frequent writer and speaker, having participated in a variety of private association, client, and continuing legal and business education seminars with a special focus on vapor intrusion, TCE, and developing cost-effective solutions to manage residual contamination as part of redevelopment projects and the sale of contaminated property. David was recently elected to join the American Association of Radon Scientists and Technologists (AARST) Board of Directors and continues to serve as counsel of record for the Midwestern States Environmental Consultants Association (MSECA). Prior to joining Barnes & Thornburg, he obtained an advanced environmental engineering degree and practiced as an environmental consultant on various projects across the country.