DEP Revises Guidance for IECs and Soil Investigation and RemediationMarch 27, 2015
The New Jersey Department of Environmental Protection (NJDEP) announced revised Technical Guidance for Immediate Environmental Concerns (IECs) incorporating updates from the May 7, 2012 Technical Requirements for Site Remediation. These changes include a new section on monitoring requirements for engineered systems and instructions for the annual monitoring and maintenance reports for IECs. The revisions also include changes to the Geographic Information System mapping procedures for potable wells and vapor intrusion. The Licensed Site Remediation Professional should verify the site location on NJ-Geoweb when the IEC is identified. The revised soil technical guidance makes minor edits to the prior documents.
The revised technical guidance documents can be accessed at the Site Remediation Webpage. NJDEP will allow for a six-month phase in period between the time the guidance is issued and the time it should be used.
Settlement in IBM Vapor Intrusion Case in Upstate New YorkFebruary 19, 2015
In 2008, residents and business owners in Endicott, New York filed a lawsuit against IBM claiming damages of $100 million for contamination of the soil and groundwater in the town allegedly resulting from IBM’s former microelectronics plant. The Plaintiffs claimed that the former operations resulted in contamination from trichloroethylene (“TCE”) of soil and groundwater. The impacted groundwater plume extent is about 300 acre off-site. This has been a closely watched case because IBM has already mitigated impacts by installing vapor mitigation systems in more than 300 homes and there is limited precedent or guidance on the factors for calculating damages allegedly caused by vapor intrusion. No details of the settlement were released. IBM also confirmed to the public it would continue the remedial activities.
Minneapolis Residents File Class Action Suit Against General Mills over TCE Vapor IntrusionJanuary 8, 2014
Residents of a Minneapolis neighborhood have filed a class action suit against General Mills over vapor intrusion into their homes from a trichloroethylene (TCE) plume (Ruzicka v. General Mills Inc., Minn. Dist. Ct., No. 27-CV-13-21004, 12/5/13).
The residents allege that soil gas vapors from the TCE plume are intruding into their homes, reducing their value and threatening resident’s health. In addition, they accuse General Mills of failing to adequately investigate and remediate the vapor intrusion caused by its TCE disposal and violations of Minnesota’s Environmental Response and Liability Act. The complaint also includes allegations of negligence, trespass and willful and wanton conduct.
The plaintiffs are seeking certification as a class action; investigation, delineation and remediation of the contamination; establishment of a medical monitoring and treatment fund; damages and attorney fees.
The TCE plume developed as the result of onsite disposal of TCE and other volatile organic compounds at a General Mills research facility that operated in the area between the 1940s and 1980s. The facility is a designated Superfund site and General Mills has been working to clean up the contamination for the past 25 years.
Related Practice: Environmental & Land Use
EPA Adopts the 2013 ASTM Standard – E1527-13 for All Appropriate Inquires For CERCLA Innocent Landowner Liability ProtectionsJanuary 7, 2014
As a follow-up to our post of August 22, 2013, the United States Environmental Protection Agency (“EPA”) has adopted a direct final rule amending the “all appropriate inquiries” (AAI) rule to take effect immediately. The new rule provides that the new ASTM International revised standards updating its 2005 Phase I assessment standard, known as ASTM E1527-13 will meet EPA’s AAI Rule. This new ASTM standard seeks to provide clarification and guidance for the assessment of commercial properties and whether or not there are recognized environmental conditions at the properties to assist professional and prospective purchasers.
Among many changes, ASTM E1527-13 updated definitions of the following:
(1) “recognized environmental condition”;
(2) “historical recognized environmental condition”;
(3) added a definition for “controlled recognized environmental condition” to the standard;
(4) added a clarification to the definition of “de minimis condition”;
(5) “migrate/migration” to include vapor intrusion migrations; and
(6) “release” to clarify that it has the same meaning as under the CERCLA statute.
The 2005 standards will likely be phased out as the standard that meets the minimum threshold of the AAI Rule because the updated guidance includes evaluating potential vapor intrusion impacts at the property, which was not included or mentioned in the ASTM 2005 standards.
Related Practice: Environmental & Land Use
Reminder....July 26, 2013
Earlier this month, The New Jersey Department of Environmental Protection (DEP) and the New Jersey Department of Health (DOH) announced the NJDOH Vapor Intrusion Data Submission Checklist (Checklist), to be used by Licensed Site Remediation Professionals (LSRPs). The Checklist should be used when LSRPs submit vapor intrusion data to the DOH. The Checklist should not be submitted to DEP.
Appellate Division Remands Application for Innocent Party Grant to NJDEP For Assessment of Corporate ReorganizationJune 3, 2013
Cliflake Associates LLC ("Cliflake" or "LLC") owns an industrial and commercial property in Clifton, which is in need of remediation of soil and groundwater contamination. In 1972, the property was acquired by Cliflake Associates, LP ("LP"). In 1999, the partners in the LP formed Cliflake and acquired the assets of the LP. Title to the property was transferred from the LP to the LLC via executed deed in July 1999.
In 1999, Cliflake began remediating the property pursuant to a memorandum of agreement with the New Jersey Department of Environmental Protection ("NJDEP"). In 2010, the remedial investigation identified volatile organic compounds contaminating the property, which contamination occurred prior to 1972. Soil and groundwater contamination was identified, as well as a vapor intrusion issue that needed to be addresses. The projected cost of remediation exceeds two millions dollars.
Cliflake applied for a Hazardous Discharge Site Remediation Fund Innocent Party Grant ("innocent party grant") pursuant to the Brownfield and Contaminated Site Remediation Act ("Brownfield Act"). The innocent party grant was tentatively denied by NJDEP because Cliflake did not own the property prior to 1972. Cliflake sought reconsideration arguing that the LLC was essentially the same entity as the LP citing definitions from the Industrial Site Recovery Act ("ISRA") regarding a change in ownership. NJDEP tentatively denied the application again finding that a transfer from an LP to an LC does constitute a change in ownership and that the Brownfield Act and ISRA are separate and distinct statutes. Cliflake again sought reconsideration arguing that the LP to LLC transaction was a merger. NJDEP requested documentation regarding the corporate reorganization, which Cliflake did not provide arguing that it was a "de facto merger." On April 12, 2012, NJDEP issued a final agency decision denying the application.
The Appellate Division reviewed the definitions contained in ISRA regarding a change in ownership. The Appellate Division found that the grants were intended to help owners of contaminated property defray the costs of remediation if they are not responsible for the contamination and met the other requirements as an innocent party. The Appellate Division also wrote that the Legislature seemed "more concerned with the substance of ownership and continuity than the technicalities of the legal form." The Appellate Division further rejected NJDEP's argument that a de facto merger can only result in the acquisition of the prior entity's rights.
The Appellate Division remanded the matter back to NJDEP. The Court directed that Cliflake demonstrate that there was a de facto merger and that the change in its structure did not diminish the assets available for remediation or shield the members from liability. Cliflake will also be required to meet the additional eligibility requirements. The Appellate Division also found that Cliflake can raise the issue of the Revised Uniform Limited Liability Company Act.
EPA Pushed to Release Draft Vapor Intrusion GuidelinesDecember 17, 2012
The United States Environmental Protection Agency ("EPA") is expected to release updated vapor intrusion guidance by the end of the year. The current guidance dates back to 2002. A draft form of the updated guidance was sent to individuals for review in November and has been leaked. The new draft guidance is more conservative than previously expected and differs greatly from the 2002 guidance. Industry groups have asked EPA to release the new guidance in a draft form for public comment prior to finalizing the document.
ALERTNovember 26, 2012
The United States Environmental Protection Agency ("EPA") released final guidance regarding the disposal of PCB-Contaminated building materials. The new guidance provides that building materials with PCB-contaminated materials removed prior to disposal will be classified as PCB remediation waste and will have to be disposed of accordingly.
Also, EPA's Vapor Intrusion Guidance should be issued by the end of the year.
NJDEP Releases Long-Awaited Vapor Intrusion Technical GuidanceJanuary 23, 2012
The New Jersey Department of Environmental Protection ("NJDEP") released and posted its new Vapor Intrusion Technical Guidance ("VIT Guidance"). The VIT Guidance replaces the Vapor Intrusion Guidance ("VIG"), which was released in October of 2005. The VIT Guidance was issued to assist responsible parties and investigators in evaluating contamination at properties to help them comply with NJDEP requirements and assess vapor intrusion pathways. Vapor intrusion is the migration of volatile chemicals from the subsurface into overlying buildings. NJDEP's vapor intrusion screening levels can also be found on the website.
The VIT Guidance sets forth a five-stage strategy that an investigator should use to assess the potential for vapor intrusion. These stages are:
(1) VI Receptor Evaluation: wherein the investigator assesses potential for vapor intrusion and identifies pathways;
(2) VI Investigation: the investigator evaluates the data using applicable screening levels and develops and implements the investigation;
(3) Mitigation: determine and implement the appropriate mitigation;
(4) Operations, Maintenance and Management: the investigator establishes a long-term monitoring/maintenance program; and
(5) Termination: assessment of the ability to terminate the mitigation.
NJDEP also recommends utilizing the Decision Flow Chart and the Vapor Intrusion Timeline, which are attached as Appendices A and B respectively, to assist in the evaluation of vapor intrusion.
The VIT Guidance can be found on NJDEP's website:
EPA to Consider Addition of Vapor Intrusion to HRSThursday, February 10, 2011
The Environmental Protection Agency (EPA) is seeking public comments on whether vapor intrusion should be added as a component of the Hazard Ranking System ("HRS"). The HRS is the primary tool EPA uses to place contaminated sites on the CERCLA National Priorities List ("NPL"). This change would allow EPA to address human exposure to contaminants that enter building structures through the subsurface environment as part of the HRS. Vapor intrusion explains the process by which hazardous substances in the ground migrate to the subsurface and enter buildings as a gas or vapor. This intrusion can cause human exposure to the hazardous substances, particularly through cracks in basements, building foundations and sewer lines.
The Government Accountability Office (GAO) recommended that EPA consider including vapor intrusion to the HRS. GAO concluded that if vapor intrusion is not added and listed on the NPL, those sites may not be addressed.
By adding vapor intrusion to the HRS, EPA will be able to identify locations where people are exposed or potentially exposed in dwellings, workplaces, or other structures or enclosures.
EPA will conduct public listening sessions in Arlington, VA on February 11, 2011. There will also be listening sessions held in San Francisco and Albuquerque.
- Clean Air Act
- Clean Water Act
- Climate change
- Affordable Housing
- Due diligence
- Eminent Domain
- Floor hazard regulation
- Land Use
- Natural resource damages
- NJDEP Waiver Rule
- Site remediation
- Spill Act
- Toxic torts
- Vapor intrusion