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The
Vapor Intrusion Pathway: An Environmental Snipe Hunt?
Thomas E. McHugh and John A. Connor, Groundwater
Services, Inc., Houston, TX
State
Regulation of Large, Area-wide Metals Contamination
Problems
Loren
R. Dunn, Attorney, Riddell Williams P.S.,
Seattle WA
An
Overview of State Programs to Investigate and Remediate
Contaminated Drycleaner Sites
Steve Goins, CPA, Tennessee Division of
Superfund, Nashville, TN
Dale Trippler, Minnesota Pollution Control Agency, St.
Paul, MN
PCBs
in the Delaware: A Thirty one Year Technical and Legal
Odyssey
Itzchak
E. Kornfeld, Oayses
Environmental Systems
Water
Resource Damages: The Down Side of Natural Attenuation as
a Remedy
Rolf R. von Oppenfeld, The TESTLaw Practice Group
Mark
E. Freeze, The TESTLaw Practice Group
Expert
Opinions In Environmental Litigation – Gatekeeping 10
Years After Daubert
Robert
L. Burns, Jr.,Thorp Reed & Armstrong
David G. Ries, Thorp Reed & Armstrong
The
Vapor Intrusion Pathway: An Environmental Snipe Hunt?
Thomas E. McHugh and John A.
Connor, Groundwater Services, Inc., 2211 Norfolk, Suite
1000, Houston, TX 77098-4044, Tel: 713-522-6300, Fax:
713-522-8010
In
November 2002, the U.S. EPA released the Draft Guidance
for Evaluating the Vapor Intrusion to Indoor Air Pathway
from Groundwater and Soils, establishing recommended
groundwater and soil gas screening limits for protection
against indoor air impacts in overlying structures.
For chemicals such as trichloroethene, benzene, and
ethylbenzene, the proposed screening limits are equal to
drinking water MCLs, meaning that, according to USEPA, the
presence of chemicals at these levels in groundwater
within 100 feet below grade poses a potential for unsafe
indoor air exposure.
This classification includes nearly every one of
the groundwater corrective action sites in the nation.
Yet,
significantly, the indoor vapor concentrations measured at
groundwater impact sites do not differ from the background
indoor air concentrations measured at non-impacted sites
throughout the U.S., meaning, quite simply, that most
groundwater plumes are not causing measurable impacts to
indoor air. Indoor
vapors at these sites are not caused by groundwater vapor
intrusion but are associated with normal indoor sources
(e.g., smoking, cleaning agents, paint, adhesives,
aerosols, building materials, automotive equipment, etc.).
Nevertheless, the USEPA has based
groundwater-to-indoor-air screening limits upon the
erroneous assumption that, at groundwater plume sites, any
indoor air concentration measured in excess of an average
background level must be indicative of groundwater vapor
intrusion. Proper evaluation of the available database of
measured concentrations at groundwater impacts sites
supports the following conclusions:
1) For petroleum release sites, there is no
correlation between the petroleum constituent
concentrations measured in groundwater and the
concentrations of these compounds measured in indoor air.
2) For chlorinated solvent release sites, available data
indicate a positive correlation; however, a conservative
upper-bound groundwater-to-indoor-air attenuation factor
is 0.0001, meaning that no indoor air impacts would be
expected for groundwater concentrations up to 10x larger
than the screening levels proposed by USEPA. 3)
Groundwater vapor intrusion impacts are not a common
phenomenon and do not pose a measurable additional risk to
indoor air quality at the vast majority of sites.
Those sites where such impacts have occurred are
exceptional and require a focused analysis of the special
conditions that contributed to such exposures.
State
Regulation of Large, Area-wide Metals Contamination
Problems
Loren
R. Dunn, Attorney, Riddell Williams P.S., 1001 4th Avenue
Plaza, Suite 4500, Seattle WA
98154 Tel: 206-624-3600, Fax: 206-389-1708, Email:
ldunn@riddellwilliams.com
Large
areas of Washington state, and many other states, have
become contaminated (at moderate risk levels) with heavy
metals, especially arsenic and lead, due to past
agricultural and minerals extraction practices. A few such areas, mostly associated with historic smelter
operations, have become listed federal Superfund sites.
However, most areas have not been listed and are
being left to the states to handle through state
regulatory programs. Most
state programs are ill equipped to handle the burdens
associated with area-wide contamination problems.
For
example, estimates show that Washington may have between
300,000 and 600,000 acres of orchard land that may be
contaminated, due to use of lead arsenate pesticides, at
levels which exceed state cleanup standards and which have
required expensive soil removal programs at comparable
Federal Superfund sites.
Many of these lands have been converted, or are
being converted, to residential use, making concerns over
the potential for human contact with the contaminants at
these sites all the more acute.
Similar problems exist in many states where lead
arsenate pesticides were widely used during the first half
of the last century, or where metals mining and smelting
have occurred historically.
While concerns for human contact are motivating
state regulators to take action, the widespread nature of
the contamination, and the potential for adverse stigma
impacts on communities affected by the contamination, has
caused many states to consider less intrusive methods for
managing these sites than are currently available in their
regulatory toolboxes.
The
key regulatory agencies in Washington have convened a
regulatory review Task Force to assess new regulatory
mechanisms and programs that might be used to help manage
the area-wide contamination problems affecting the state.
As part of that project, the regulatory programs of
other states and the EPA have been surveyed, and a number
of possible programs have been proposed.
Most of these programs focus on providing
information and assistance to property owners, and
encouraging voluntary protective measures.
Funding these, or more traditional, methods of
remedying area-wide contamination sites promises to be a
considerable challenge.
An
Overview of State Programs to Investigate and Remediate
Contaminated Drycleaner Sites
Steve Goins, CPA,
Tennessee Division of Superfund, 4th Floor
L&C Annex, 401 Church Street,
Nashville, TN
37243-1538, Tel: 615-532-8599, Fax: 615-741-1115
Dale Trippler, Minnesota Pollution Control Agency, 520
Lafayette Road N., St. Paul, MN 55155-4194, Tel:
651-297-8483, Fax: 651-296-8717
It is estimated that
between 75 and 90 percent of drycleaner sites are
contaminated due to improper use and disposal of solvents.
Since 1994, twelve states have passed legislation
creating programs to investigate, remediate, and prevent
contamination at these facilities.
These programs are similar to insurance pools in
that, dry cleaners pay fees that go into a fund that is
used to remediate contaminated sites.
In June, 1998, the US
Environmental Protection Agency, Technology Innovation
Office brought the states together in the belief that
technical issues and problems concerning solvent
contamination at dry cleaner sites are not unique to one
state and that free exchange of information would benefit
all. The result of that effort is the State Coalition for
Remediation of Drycleaners (SCRD), which is a forum for
sharing technical and programmatic information regarding
the remediation of drycleaner sites.
Member states include Alabama, Florida, Illinois,
Kansas, Minnesota, Missouri, North Carolina, Oregon,
South Carolina, Tennessee, Texas, and Wisconsin.
In addition, participation in SCRD as
“Represented States” is open to states without
drycleaner-specific programs but are actively remediating
dry cleaner sites under other authorities.
New York and California currently participate as
“Represented States”.
Even though the programs
are fairly new and most have very limited budgets, they
have been effective in performing the necessary tasks in a
timely manner. State drycleaning programs have performed at leased 630
assessments, 197 remedial actions, and closed 83
drycleaning sites. These
numbers are increasing rapidly as each state becomes more
experienced.
Specific information to be
presented will include the following:
-
Comparison
of Tennessee’s and Minnesota’s drycleaner
programs – program elements, fee structures,
benefits
-
SCRD
projects and information available – site
assessment, remediation technology, case studies
-
SCRD
website
PCBs
in the Delaware: A Thirty one Year Technical and Legal
Odyssey
Itzchak
E. Kornfeld, Esquire, Oayses Environmental Systems, 16
East Roumfort Rd., Philadelphia,
PA 19119-1618, Tel: 215-990-9215, Email: itzchakkornfeld@aol.com
The
Metal Bank Superfund Site, located in northeast
Philadelphia, has been the subject of study and litigation
for the past 31 years.
The odyssey began in 1972 when at least 21,000
gallons of PCB rich transformer fluid leaked from a UST
and spilled into the Delaware River.
The Delaware River is tidal in the vicinity of the
Site, with six to seven foot tides that reach maximum and
minimum water levels every twelve hours.
To
the Site’s immediate west, the River forms a shallow
embayment, which is completely submerged at high tide and
which forms an exposed mudflat five to seven acres in size
at low tide. The
mudflat consists of fine silts and clays, with some
occasional gravel in the subsurface. Groundwater
underneath the Site flows into the Delaware River.
Depth to groundwater varies from 7’-16’ feet.
The Site itself is composed of urban fill.
The
1972 spill occurred during high tide.
However, as the tide began to recede much of the
PCB laden liquid quickly fanned out into the mudflats
where PCB levels exceeded 1500ppm.
In 1983 the owners began a pump and treat operation
to remove the PCB laden oil.
However, by 1989 they did not succeed in removing
all of the oil from the porous fill.
A three-foot thick PCB contaminated oil layer was
still floating on the groundwater.
PCB concentrations measured in the oil were 1,539
ppm in 1977, prior to the oil recovery operation, and
almost the same, 1540 ppm in 1989 when the oil recovery
operation was terminated.
The
surface soils of the Site also contained PCBs at
concentrations up to 42 ppm; total SVOCs at concentrations
up to 2,008 ppm; and lead concentrations up to 27,000 ppm
(or 22.7% of the sample).
SVOCs and PAHs had a high positive correlations
with PCBs.
This
paper will address both the scientific and expert
testimony in the liability phase of this Superfund and
RCRA case.
Water
Resource Damages: The Down Side of Natural Attenuation as
a Remedy
Rolf
R. von Oppenfeld, Esq., Managing Partner, von Oppenfeld,
Hiser & Freeze, P.C., The TESTLaw Practice Group, 2633
E. Indian School Rd., Ste. 400, Phoenix, AZ 85016, Tel:
602-955-1416, Fax: 602-955-3207
Mark E. Freeze, Esq., Partner, von Oppenfeld, Hiser &
Freeze, P.C., The TESTLaw Practice Group, 1300 Sumter St.,
Ste. 201, Columbia, SC 29201, Tel: 803-254-7798, Fax:
803-254-9976
With
the issuance of EPA Directive 9200.4-17P in 1999,
monitored natural attenuation (coupled with Risk Based
Corrective Action (RBCA) focusing on minimizing exposure
to actual human receptors) is increasingly the remedy of
choice at contaminated groundwater sites, and increasingly
at sites contaminated with chlorinated solvents.
One advantage of monitored natural attenuation and
RBCA is that the cost is significantly lower than more
aggressive remediation measures.
But, there is a down side.
Monitored natural attenuation and Aplume
management@ as a remedy leave contaminated groundwater in
place for many years. As water supplies decrease, governmental entities have
increasingly been bringing legal action to recover damages
for lost use of groundwater during the lengthy attenuation
period. These damages often run in the tens of millions of dollars.
Also, water providers have been using innovative
legal theories to recover for damages to their water
supplies.
There
are a number of common law claims that a water provider
may use to recover water resource damages, such as
nuisance, negligence, trespass, etc.
A water provider can also use the common law theory
of the public trust doctrine, where certain natural
resources are held in trust by the government for the
benefit of the public.
This theory may allow a water provider to bring a
claim for lost water supply in state or federal court.
Water
users in the past have looked at recovering natural
resources damages under three federal statutes:
Comprehensive Environmental Response, Compensation and
Liability Act (CERCLA); Clean Water Act; or Oil Pollution
Prevention Act. This
presentation will look at common law grounds and the
statutory basis for water resource damage claims, and
focus on how natural resource damages for lost use of
groundwater are measured.
It will discuss the legal issues and time limits
surrounding the recovery of natural resources damages, and
will survey natural resource damage recoveries and
settlements at sites where monitored natural attenuation
is the selected remedy.
Expert
Opinions In Environmental Litigation – Gatekeeping 10
Years After Daubert
Robert
L. Burns, Jr., Esq., Thorp Reed & Armstrong, LLP, One
Oxford Centre, 301 Grant Street, 14th Floor,
Pittsburgh, PA 15219,
Tel: 412-394-7787,
Fax: 412-394-2555, Email: dries@thorpreed.com
David G. Ries, Esq., Thorp Reed & Armstrong, LLP, One
Oxford Centre, 301 Grant Street, 14th Floor,
Pittsburgh, PA 15219,
Tel: 412-394-2367,
Fax: 412-394-2555, Email: rburns@thorpreed.com
Environmental
litigation almost always involves scientific issues and
expert opinions, often with multiple experts in different
disciplines. In 1993, the United States Supreme Court issued its landmark
decision in Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993), which made significant
changes in the standards for admissibility of expert
opinions in federal courts.
The Supreme Court established a gatekeeping
requirement under which courts must screen expert opinions
for reliability and exclude “junk science.”
The Court also established a new, more flexible
test to be used in this process.
These standards have now become better defined
through their application by courts over the ten years
since Daubert, including a number of environmental
cases. A
recent example of the application of these standards to an
environmental case is Freeport-McMoran Resource
Partners, L.P. v. B-B Paint Corp., et al., 56 F.Supp.
2d 823 (E.D. Mich. 1999), a private party CERCLA case in
which one of the authors successfully argued a motion to
exclude expert testimony for a group of 12 defendants,
resulting in exclusion of the opinions and a judgment for
the defendants. The expert in the case was a PhD. chemist
and had served as an expert witness in over 180 cases.
While admissibility of expert opinions is primarily
the responsibility of attorneys, it is important for
environmental professionals to understand the issues, both
to assist attorneys and to take them into consideration in
projects which may later result in litigation.
This presentation will explore current standards
for expert opinions in environmental litigation in both
federal and state courts.
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