Massachusetts Environmental and Land Use Alert

Massachusetts Environmental Developments

SJC Clarifies Statute of Limitations for Contaminated Property Damage Claims but Raises Questions of Application

Plaintiffs with property damage claims under the Massachusetts cleanup law have more time to bring their claim than might be expected under the three-year statute of limitations according to a recent ruling by the top Massachusetts court. The Supreme Judicial Court ruled that the statute of limitations begins running when the plaintiff knows that there is damage to the property that is “permanent” and who is responsible for the damage, pointing to the phases of investigation and remediation in Massachusetts’ regulatory scheme as signposts for when a plaintiff should have that knowledge. Grand Manor Condominium Assoc. v. City of Lowell, 478 Mass. 682 (2018). However, the Court left considerable uncertainty about when the statute of limitations might begin for arguably more temporary property damages such as lost rent.

In this case, the City of Lowell owned property that it used first as a quarry and then as a landfill in the 1940s and 50s before selling the property in the 1980s to a developer. The developer constructed a condominium project on the site and created a condominium association soon thereafter. As part of work to install a new drainage system in 2008, the contractor discovered discolored soil and debris in the ground. Subsequent sampling indicated that the soil was contaminated and that a release of hazardous materials had occurred. The condo association investigated in early 2009, and MassDEP issued notices of responsibility to both the condo association as well as the city in May 2009. The city assumed responsibility for the cleanup and worked the site through the state regulatory process known as the Massachusetts Contingency Plan (MCP). In the city’s MCP Phase II and III reports in June 2012, it concluded that the contamination was from the city’s landfill operations, that it would not be feasible to clean up the contamination, and proposed a pavement cap and a deed restriction.

The condo association and many of its members filed suit in October 2012 for response costs under Chapter 21E, § 4 and damage to their property under G.L. c. 21E, § 5(a)(iii). At trial, the jury awarded the plaintiffs' response costs under Section 4 but found that the plaintiffs had failed to prove that their property damage claim was brought within the three-year statute of limitations for such claims under G.L. c. 21E, § 11A. The Supreme Judicial Court took the case on direct appellate review.

Section 11A provides that an action to recover damage to real property “be commenced within three years after the date that the person seeking recovery first suffers the damage or within three years after the date the person seeking recovery of such damage discovers or reasonably should have discovered that the person against whom the action is being brought is a person liable…” Quoting Taygeta Corp. v. Varian Assocs., Inc., 436 Mass. 217, 226 (2002), the Court summarized this as a requirement that the claim must be brought within three years of when the plaintiff “discovers or reasonably should have discovered the damage and the cause of the damage.”

The Court quickly agreed that “the damage” referred to in Section 11A was, for these purposes, the property damages of Section 5 and moved on to the plaintiffs’ contention that the limitations period should not run until they discovered or reasonably should have discovered that the damage was “permanent” or, in other words, not reasonably curable. Until that time, they argued, they could not know if they had a property damage claim because the site could be fully remediated.

The Court examined the application of the statute of limitations in the context of the statutory scheme for investigating and remediating sites in Massachusetts. The Court found that the primary purpose of Chapter 21E is to clean up environmental contamination and to ensure responsible parties pay for the costs of that cleanup. As a result, the statute prioritizes “performance and financing of cleanup efforts, and then considers the calculation of property damage that cannot be cured by remediation and remediation cost recovery.”

In interpreting the statute of limitations, the Court crystallized the question as “whether the word ‘damage’ in § 11A(4) refers specifically to damage under § 5, that is, damage that cannot be cured and compensated by the cleanup and cleanup cost recovery processes defined by the MCP and §§ 4 and 4A, such that the limitations period does not begin to run until the plaintiff knows there is residual damage not subject to remediation and compensation.” In order to have knowledge that a plaintiff has suffered damage that is not curable by the MCP remediation process, the MCP process must have run sufficiently to know that § 5 damages exist – that there is contamination that will not be addressed through remediation leaving the property at a diminished value. Since the liable party is required to determine the extent of the damage in Phase II and evaluate available remedies in Phase III of the MCP, as the Court noted, “[i]t would make little sense to require the plaintiff to independently determine whether residual property damage exists prior to the completion of these reports.” As a result, the Court concluded that the statute of limitations did not start to run until the plaintiff became aware that the site would not be fully remediated in Phase II and III reports in June 2012 months before they filed their lawsuit. Exactly what constitutes full remediation remains to explored in further cases, as the range of outcomes from achieving background conditions, implementing deed restrictions, reaching temporary solutions, or even leaving just a few molecules of contamination left behind could impact this analysis.

The Court contended that this interpretation of the statute of limitations provides a “prescribed and predictable period of time” within which claims would be time-barred, given that there are timetables associated with the production and submission of MCP Phase II and III reports. Under normal circumstances, the Court expected that a plaintiff will know it has a claim within five years of notifying MassDEP of contamination.

Despite the Court’s pronouncement that it had provided predictability for these types of claims, the statute of limitations for non-permanent property damages, such as lost rental value, or for sites where there is a long-term temporary solution in place, remain uncertain. Lawyers and clients evaluating how and when to bring claims for temporary and permanent damages will need to carefully evaluate a range of potential options in pursuing a preferred single case for property damage without the unacceptable risk that an uncertain statute of limitation may have run.

Nonprofit Universities Eligibility for Brownfields Tax Credits, Massachusetts Appeals Court Confirms

Nonprofits are eligible for transferrable Brownfields tax credits for remediation conducted prior to 2006 according to a recent ruling by the Massachusetts Appeals Court. As we previously reported in March 2016, the Massachusetts Department of Revenue issued guidance in November 2013 declaring that nonprofit organizations are not entitled to receive credit for Brownfields cleanups completed in a taxable year that began before June 24, 2006. This guidance was challenged by several universities and a real estate developer, and in 2015, the Superior Court declared that the DOR overreached and the directive was invalid. DOR appealed. In its decision in Northeastern University v. Comm’r of Revenue, 92 Mass.App.Ct. 1120 (Mass.App.Ct. 2017), the Appeals Court affirmed the Superior Court’s decision based on the clear language of the statute. A motion for further appellate review has been filed with the top Massachusetts court.

The brownfields tax credit program was created in 1998 to allow eligible taxpayers to receive a tax credit if they pursue an environmental response action and achieve either a permanent solution or remedy operation status under the state cleanup law, M.G.L. c. 21E. The credit applies only to costs incurred on or after August 1, 1998. In 2006, the legislature expanded the program to nonprofit organizations and, as they are not taxpayers, allowed the credit to be transferred. From 2006 to 2013, DOR allowed nonprofits to benefit from the tax credit for work performed from August 1, 1998. Then in November 2013, DOR issued Directive 13-4: Guidance with Respect to Brownfields Tax Credit Applications, in which it stated that nonprofits were not entitled to receive the credit for a response action completed in a taxable year that began before the June 24, 2006 amendments.

A redevelopment company and several universities challenged determinations made by DOR to deny brownfields tax credits for remediation projects completed prior to 2006. 131 Willow Ave., LLC v. Commissioner of Revenue, 33 Mass.L.Rptr. 49 (2015). In making these determinations, DOR had relied on the language of the Directive 13-4. That court held that the plain language of the statute is unambiguous and does not contain any exclusion for nonprofits as to whether the environmental cleanup is completed before or after the 2006 amendment, and therefore the Directive is “unreasonable and DOR’s denial of the applications based on that directive was unlawful.” The Appeals Court affirmed the Superior Court’s ruling.

Interestingly, the directive remains on the DOR’s website as apparently valid guidance. Nonprofits should be aware that the directive has been ruled unlawful subject to the pending appeal, and should follow the appeal carefully.

MassDEP Issues Air Rule

Culminating a two-year rule promulgation process, MassDEP has issued a final rule amendment package that makes adjustments to numerous provisions of the Massachusetts air regulations. The announced purpose of this package was to streamline the rules and reduce unnecessary regulatory burdens pursuant to Governor Baker’s Executive Order 562 and to adopt changes to various provisions to make them more consistent with the federal rules.

The following is a brief summary of a few of the more notable changes in the amendment package:

• GHG Permitting: MassDEP has:
  • Adopted a permitting threshold of 75,000 tons per year (TPY) of potential emissions of greenhouse gases (GHGs) on a carbon dioxide equivalency basis (CO2e).
  • Clarified that triggering GHG emissions will require an application for a Comprehensive Plan Approval (CPA).
  • Provided that the 100 TPY emissions threshold for the requirement to obtain an operating permit excludes consideration of GHG emissions.
  • Clarified that regulated GHGs include the same group of six gases that are regulated under the US EPA’s GHG reporting rule, 40 CFR Part 98.
• RACT Requirements: MassDEP has updated its RACT requirements to impose requirements on certain VOC and NOx sources consistent with EPA’s Control Techniques Guidelines. These requirements will phase in over two years and will affect VOC sources in the coating, printing, and cleaning sectors and also those engaged in solvent cleaning, and will affect NOx sources specific to certain boilers, turbines, and engines at major stationary sources.
• Engines and Turbines: MassDEP has revised its stationary engines and turbines rules to more closely align with EPA’s engine rules (NSPS Subparts IIII and JJJJ and the RICE MACT Rule, Subpart ZZZZ). MassDEP’s rules generally rely on a self-certification program similar to permit-by-rule programs implemented in other states. The rule revisions clarify that where engines do not meet the self-certification requirements, a plan approval may be sought, whether for emergency or non-emergency engines. Changes include:
  • The addition of a 100 hr/yr operational allowance for emergency engines to conduct maintenance and readiness checks.
  • An allowance for 50 hrs/yr (out of the 100 hours) for operations in non-emergency situations.
  • Authorization to operate such sources for an unlimited period during periods of a power outage or when there is an imminent threat of a power outage.
• Public Comment: In order to comply with EPA rules for minor new source review permitting, MassDEP has adopted a 30-day public comment period for all comprehensive plan approval applications and a small subset of limited plan approval applications (those which involve a facility that meets or exceeds a MEPA review threshold for emissions of criteria or hazardous air pollutants). The new rule provision requires for each qualifying application a 30-day comment period, the posting on a web site of notice of availability of a proposed decision and the actual proposed decision along with instructions on how to submit comments and access the administrative record, and the provision of the notice of availability to EPA.

Under Title I, Section 110, of the federal Clean Air Act, states must submit portions of their air rules to EPA to demonstrate how they will attain and/or maintain the air quality in their regions. EPA reviews and approves these plans, known as state implementation plans or SIPs, and EPA then has the right to enforce those rules that it has approved under its authority in the Clean Air Act. As EPA made clear in comments it submitted to MassDEP on the proposed rule amendment package, there has been a substantial lag in the Massachusetts SIP submittal and approval process, and as a result MassDEP is now making changes to portions of its rules that in some instances were SIP approved but in other instances were never submitted for SIP approval. 

The practical difficulties that this lag in updating the SIP presents to the regulated community are significant. EPA has the right to enforce those state rules that have been approved in the SIP, whether or not those rules have been subsequently amended or voided at the state level. EPA can, and periodically does, pursue enforcement actions that are based on old SIP language after a state has amended those rules and they are no longer in effect. EPA also ignores newer state rules that are not SIP approved when it enforces federal or SIP-approved requirements, on the basis that it does not consider state rules to be federally enforceable unless a SIP approval has been issued that covers the newer rules. Therefore, where SIP language does not reflect current state rules, the regulated community often needs to comply with both current state rules for purposes of state compliance and old outdated state rules for purposes of federal compliance. And in some instances, regulated entities need to ignore current state rules in order to ensure compliance with federal requirements.

If this sounds completely absurd, it is. The problem was created by the cumbersome SIP process adopted by Congress in the federal Clean Air Act, and SIP updating often falls low on the priority list of current agencies and EPA regions. This can be a real problem for many regulated entities. To limit the difficulties created by the current outdated Massachusetts SIP, DEP should make every effort to very quickly submit SIP revisions to EPA New England so that its current rules are fully accounted for, and EPA New England should then quickly approve those revisions.

Standardizing Assessment of Natural Resource Damages: Massachusetts Is Taking the First Step

MassDEP is developing a standard methodology for assessing natural resource damages for small to medium oil spills to surface water that will be incorporated into forthcoming regulations, which will require persons responsible for these spills to pay the assessed natural resource damages, above and beyond cleaning up the spill. MassDEP is expected to expand the standard assessment to include spills of hazardous materials and spills to groundwater. MassDEP plans to pool these funds to improve watersheds that have been harmed by releases of oil or hazardous materials.

In the current program, the Commonwealth negotiates individually with responsible parties to assess natural resource damages for larger spills. These assessments, which are negotiated in tandem with federal trustees and tribal trustees when federal laws such as the Oil Pollution Act are implicated, involve significant administrative costs. Undertaking case-by-case assessments is not feasible for every spill due to these costs. By developing a standard methodology, MassDEP hopes to recover damages from smaller sites. If implemented, the standard assessment would be used for oil spill volumes of greater than 10 gallons but less than 10,000 gallons.

MassDEP’s presentation materials explain the proposed standard methodology for small to medium oil spills to surface water. Factors in the assessment method include the type of oil, the area of surface water or wetlands impacted by the spill, and the duration of the impact. It also accounts for the value of the type of habitat harmed the acreage of similar habitat that would need to be replicated in order to replace the value of the habitat lost, a factor to account for program costs, and inflation. Notably, the amount of oil released is not part of the assessment. Based on this methodology, and using data from spills between 2009 and 2017, MassDEP estimates that approximately 67% of small to medium oil spills would result in assessments less than $5,000.

If Massachusetts continues this initiative, it will join Washington and Florida as states with streamlined assessment tools for natural resource damages. In Washington, unless an individualized assessment is done, compensation tables are used to determine the amount of damages per dollar of oil released to a water of the state based on the toxicity of the oil released and the environmental sensitivity of the resource. For spills less than 1,000 gallons, the damages range from $1 to $100 per gallon; for larger spills, the range is $3 to $300 per gallon spilled. Florida by statute has created a compensation schedule which applies to releases of oil that cause harm to a natural resource, which is used in all cases unless a responsible party is not identified, the responsible party opts out and requests a case-by-case analysis, or a cooperative assessment is conducted with federal agencies. The compensation schedule takes into account the volume of the release, the characteristics of the pollutant discharged, and the type and sensitivity of the resource harmed.

If MassDEP develops and implements this standard methodology, it will close a gap in its current program by addressing the harm to natural resources caused by smaller releases of oil or hazardous material. However, there remain significant questions about this new program, including who will pay the assessed natural resource damages for a site where the remediation is being conducted by an “eligible person” or another party without liability for the underlying release. Further, it will increase the costs of resolving liability at these sites, which could deter the redevelopment of Brownfields.

Massachusetts Land Use Developments

“Frivolous” Town Complaint Results in Attorney’s Fees Award for Affordable Housing Developer Judge Finds that None of the Issues Raised by Town Were a “Close Call”

The Massachusetts Land Court’s recent award of attorney’s fees to an affordable housing developer serves as a warning to municipalities opposed to affordable housing projects under the Massachusetts affordable housing statute, M.G.L. c. 40B. In Town of Sudbury v. Bartlett, et al., Land Court Case No. 16 MISC 000734 (2017), the Town sought to block the development of property that it had sold to the developer, arguing that the parcel was subject to a deed restriction. The Land Court rejected this argument and sided with the developer in a decision on cross-motion for summary judgment. The developer filed a subsequent motion to recover attorney’s fees under M.G.L. c. 231, § 6F.

The Section 6F motion required the judge to determine, in part, if the Town’s claims in the underlying action were “wholly insubstantial, frivolous and not advanced in good faith.” The developer claimed that “the Town advanced claims that it knew or should have known were without merit, and that it did so in an attempt . . . to use any means available to stop the G.L. c. 40B development.” After reviewing the facts, Land Court Judge Howard P. Speicher made plain that he “did not find any of the… issues raised by the Town to present anything resembling a close call.” When the Town argued that reference to an approved subdivision plan in the deed is tantamount to a restrictive covenant, the Judge called it a “dangerous and farfetched proposition.” The Town’s contention that an equitable servitude can be imposed by “circumstances to be deduced from other evidence, including statements at public hearings” met a similar fate: the Judge found that this claim is “not supported by any statutory or case law . . . [and] is antithetical to our jurisprudence . . . .”

As required for an award of attorney’s fees under Chapter 231, § 6F, the Court also found that the offending party operated with an absence of good faith. Massachusetts case law supports a finding of the absence of good faith where there is evidence that municipal claims against a Chapter 40B developer are brought with the intention of delaying or preventing low or moderate incoming housing projects. Here, the Court found undisputed factual evidence in the minutes of town meetings and correspondence that the Town was aware prior to filing its complaint that the parcel was not subject to any deed restrictions or covenants. The record also demonstrated a desire by the Town to file the complaint to merely block the proposed development. At one point in the process, a member of the Board of Selectmen said to the Developer, “that type of a project will bring the riff-raff into the center of town . . . you know, riff-raff like they have in West Virginia, with people that will be working on their cars in the front yards, hanging laundry on their laundry lines, and leaving a mess outside.”

Finding that the Town had run afoul of Section 6F, the Land Court ordered the Town to pay the Developer more than $75,000 for attorney’s fees incurred in fighting the Town’s frivolous complaint. The Town of Sudbury serves as a harsh reminder for opponents of Chapter 40B projects that legal challenges must be based on substantive issues and cannot be a mere pretext for delaying or blocking an unpopular development.

National Developments

Water, Water, Everywhere

If it isn’t already, water should be on your mind this year. The excitement of Scituate storm surge and coastal flooding aside, the region – and the U.S. as a whole – is facing a slew of legal developments that may change how citizens, businesses, and governments operate under the federal Clean Water Act and similar state programs. In particular, the scope of Clean Water Act jurisdiction is in play following a pair of Supreme Court decisions, as is the potential delegation of permitting authority to Massachusetts and New Hampshire, two of only four states in which the EPA administers permitting under the National Pollutant Discharge Elimination System (NPDES).

Clean Water Act Jurisdiction

Since well before Samuel Taylor Coleridge penned those famous lines in the Rime of the Ancient Mariner – “Water, water, everywhere, / Nor any drop to drink” – people have worried about access to clean water. It makes sense, then, that the Clean Water Act is one of our oldest environmental laws, with its origins in the Rivers and Harbors Act of 1899. The Rivers and Harbors Act – the nation’s very first environmental law – imposed the first “dredge and fill” requirements, made it illegal to dam rivers without federal approval, and prohibited the discharge of “any refuse matter of any kind or description” into “any navigable water of the United States, or into any tributary of any navigable water.”

The Federal Water Pollution Control Act of 1948, with major amendments in 1961, 1966, 1970, 1972, 1977, and 1987, largely superseded the Rivers and Harbors Act and resulted in what we know today as the federal Clean Water Act (CWA). And although today’s statute is very different from its 1899 precursor, one thing has remained constant: an intense and lasting fight over the scope and jurisdiction of federal regulation. Federal CWA jurisdiction is premised on the Commerce Clause of the U.S. Constitution, and prohibits (without a permit) “dredge and fill” activities and the discharge of pollutants into “navigable waters,” which the CWA defines as “the waters of the United States.” But what, exactly, are “waters of the United States”?

The 1870 Supreme Court decision in The Daniel Ball held that waterways were subject to federal jurisdiction if they were “navigable in fact.” But what has never been clear is the extent to which non-navigable waters, like certain tributaries to navigable waters or wetlands, constitute “waters of the United States” such that they are subject to federal regulation.

The Supreme Court Punts (Again)

The 2006 Supreme Court decision in Rapanos v. United States represented a key turning point in CWA jurisdiction, holding that certain remote wetlands are not subject to CWA jurisdiction. But the decision was badly fractured, with no majority of justices agreeing on a single standard for determining what, exactly, constitute “waters of the United States” such that the CWA applies. Minor chaos ensued, as regulators and courts applied varying interpretations of Rapanos in permitting decisions and enforcement actions.

In 2015, the Obama administration attempted to clarify the scope of CWA jurisdiction by promulgating a rule known as the “Waters of the United States” (WOTUS) rule that attempted to define exactly which waters were regulated by the CWA. That rule, which was based on Justice Anthony Kennedy’s “significant nexus” test in the Rapanos decision, was quickly challenged by 31 states, numerous industries, and landowner groups. At the bottom, challengers argued that the WOTUS rule represented significant federal overreach and extended CWA jurisdiction well beyond what the Commerce Clause allows. The numerous appeals were consolidated into a single Sixth Circuit case, National Association of Manufacturers v. Department of Defense (NAM), and in late 2015 the Sixth Circuit stayed the WOTUS rule pending resolution of legal challenges.

But on January 22, 2018, the Supreme Court unanimously held that federal District Courts – not appellate courts – have jurisdiction over challenges to the WOTUS rule. While the CWA generally requires challenges to CWA rules to be brought in district courts, there are seven situations where courts of appeal have jurisdiction. In this case, the government argued that the challenge should be heard in the courts of appeal, under CWA Sections 1369(b)(1)(E)-(F) which allow appellate courts to hear cases related to the approval of certain effluent limits or permits, respectively. Petitioners, on the other hand, maintained that the case should be heard in federal district court in the first instance. In a procedural victory for the petitioners, the Supreme Court held that the WOTUS rule does not qualify for direct appellate review under CWA Sections 1369(b)(1)(E)-(F). Following this decision, future challenges to the WOTUS rule will be brought in federal district courts, potentially with divergent outcomes around the country. Appeals of those decisions will move to the courts of appeals, where there is yet again the possibility for inconsistency. The upshot is a longer litigation timeline – and continued jurisdictional uncertainty – before the Supreme Court will have another chance to address the appropriate scope of CWA jurisdiction.

In the meantime, the Trump administration is working on a replacement rule for the WOTUS rule that is likely to apply the less expansive jurisdictional test described by Justice Antonin Scalia in Rapanos. Under that interpretation, only tributaries that are “relatively permanent, standing or flowing bodies of water,” and only wetlands with a continuous surface connection to a “water of the United States” are themselves “waters of the United States” subject to CWA jurisdiction. And on February 6, 2018, EPA and the Army Corps of Engineers promulgated a rule delaying implementation of the WOTUS rule until February 2020. That action preserves the Rapanos status quo (such as it is) until EPA can craft a new rule. Ultimately, it is likely that any WOTUS replacement rule will be challenged, and the Supreme Court will then have a chance to revisit its decision in Rapanos and redefine federal jurisdiction under the CWA, a process that could easily extend past 2020.

Defer Much?

On February 26, 2018, the Supreme Court weighed in again on the Clean Water Act, this time by refusing to take up a challenge to a 2017 decision by the Second Circuit that upheld a 2008 EPA rule exempting water transfers from CWA permitting requirements. Water transfers happen when water from one waterbody is diverted into another waterbody, such as diverting a stream into a nearby lake or reservoir. Drinking water systems have conducted water transfers for decades, and EPA has never required NPDES permitting for such transfers. But in 2008, in response to pressure by environmental groups to require NPDES permits for water transfers, EPA adopted the Water Transfers Rule expressly exempting such transfers from NPDES permitting.

Environmentalists and states challenged the Water Transfers Rule, arguing that moving water from one waterbody to another requires a permit if the “donor” water contains pollutants that would have the effect of degrading the receiving water. Both the Obama and Trump administrations defended the rule, arguing that it preserved long-standing practice and was justified by EPA’s ability to interpret CWA requirements. Ultimately, the Second Circuit deferred to EPA and allowed the rule to stand. In turn, the February 26 decision by the Supreme Court allows the Second Circuit decision to stand, thereby affirming the validity of the Water Transfers Rule. The case was widely seen as a test for Justice Neil Gorsuch, who has expressed hostility to the deference doctrine and EPA regulations alike. By declining to hear the case, the Court has deferred that test for another day.

Who’s in Charge?

Under a process known as “delegation,” states may assume permitting and other authority under the CWA. To-date, 46 states have received such delegation from EPA, and all but Massachusetts, New Hampshire, Idaho, and New Mexico now administer their own NPDES permitting programs. In the absence of delegation, EPA manages the Clean Water Act and NPDES program in those four states, which often overlap and may duplicate separate state law requirements.

New Hampshire is currently evaluating whether to seek CWA delegation from EPA and has established a legislative commission to explore its options. And as we have previously reported, Massachusetts has explored CWA delegation in the past, but those efforts largely fizzled out. But both of these efforts may have new life: the EPA, under Administrator Pruitt, is very focused on “cooperative federalism” and with EPA seeking to slash its budgets, CWA delegation is likely on EPA’s radar as an action item over the next several years. And, in late 2017, MassDEP Commissioner Martin Suuberg expressed strong support for CWA delegation, as has Governor Baker. Whether delegation will become a reality for Massachusetts or New Hampshire is anyone’s guess, but regardless of the outcome 2018 is shaping up to be an interesting year for water law. 

For the First Time, EPA Proposes to Add a Site to the National Priorities List Solely Based on the Risk Posed by Vapor Intrusion

EPA has proposed to add the Rockwell International Wheel & Trim Site in Grenada, Mississippi to the National Priorities List, the first site added based solely on the risk to human health from vapor intrusion from subsurface contamination, which impacts indoor air quality.

The National Priorities List is designed to identify the contaminated sites that pose the highest risk to human health or the environment so that EPA can focus its efforts on these sites. The primary mechanism for listing a site on the National Priorities List is a score above 28.5 on the Hazard Ranking System (HRS). The HRS is a scoring system used to quantify the risk posed by a site in a way that can be compared to other sites. The types of risks that previously have been quantified in the HRS are exposures to contaminated soil, surface water, groundwater, and ambient air. Effective May 2017, this list was expanded by adding the risk of exposure to indoor air impacted by a subsurface intrusion. In the final rule adding subsurface intrusion to the HRS, EPA stated: “Without an evaluation of threats posed by subsurface intrusion contamination, the HRS is not a complete assessment because it omits a known pathway of human exposure to contamination.”

The Rockwell site was the location of a chrome plating facility from 1966 to the early 2000s and is currently the location of a metal stamping operation. Based on the site narrative, wastes containing trichloroethylene (TCE), toluene, and metals such as chrome were released to a wetland adjacent to a creek, to surface water via an outfall ditch, and to a sludge lagoon. TCE is a volatile organic compound (VOC), which means that it will move into the air under normal conditions; as a result, it can move from groundwater or soil to soil vapor and then to the indoor air of a building. TCE is present at the Rockwell site in indoor air in the still-active manufacturing facility.

The HRS score for the Rockwell site is 50 based solely on subsurface intrusion, which is well above the threshold for a listing of 28.5. The site’s HRS score is based largely on the results of indoor air sampling that show TCE and other VOCs in indoor air in the manufacturing facility on-site, which is occupied by employees 24 hours a day, 7 days a week. While there are contaminants in other media, including the presence of VOCs in surface water at levels that caused the state agency to issue a no-contact order, and VOCs and chromium contamination in groundwater, these were not included in the HRS score.

It is not clear to what extent the addition of vapor intrusion to the HRS score will increase the number of sites proposed for or added to the National Priorities List. However, potentially responsible parties should anticipate that vapor intrusion issues will continue to play a more prominent role in all phases of the Superfund program from listing decisions to investigation and cleanup to site closure.

Beveridge & Diamond's Municipal and State Governments industry group helps municipalities navigate the various federal and state regulations that govern their operations. We help guide municipalities through complex project development and permitting processes, interactions with the federal government, and environmental and natural resource litigation. For more information, please contact the authors.