In September 2008, then Governor David A. Paterson signed legislation adding a new section to the Environmental Conservation Law (ECL 27-2405) requiring property owners or owners' agents (such as management companies) to notify tenants of any test results related to indoor air contamination associated with soil vapor intrusion (SVI) that they receive. A caveat: owners only have to disclose those test results received by them from certain parties ("issuers") who are mostly private owners, including municipalities, which were required to generate the test data under a consent order or similar administrative order. The law took effect in December 2008.
As most folks in the commercial real estate industry know, the Bona Fide Prospective Purchaser exemption from liability under the federal Superfund law is a very useful tool. Accordingly, a Phase I Environmental Site Assessment is standard practice for nearly every purchase of commercial real estate because it helps to satisfy EPA's "All Appropriate Inquiries" requirement for obtaining BFPP status and avoiding the often harsh liability associated with Superfund.
The health threats posed by physical contact with contaminated soil or groundwater are well known. But increasingly, state and federal regulators are recognizing that harmful vapors from such contamination can be drawn into nearby buildings and pose a threat to the occupants. Known as soil vapor intrusion, this threat can come from undiscovered contamination beneath a building, or even from the remnants of previously remediated soil or groundwater.
We continue with our recent discussion of the Aiken v. General Electric Co. case, No. 505023, __N.Y.S.2d__ (3d Dep't Dec. 4, 2008), discussed in a recent post. There is not much precedent for the Aiken case, as SVI issues are relatively new to the environmental law landscape and have not been litigated much yet.
An intermediate state appeals court, the Appellate Division of State Supreme Court, Third Department (upstate) recently allowed a suit to go forward against GE for injury caused by soil vapor intrusion (SVI) where the contamination that was the source of the SVI was discovered 25 years ago.
So, who is responsible for mitigating this soil vapor intrusion? The New York State Department of Environmental Conservation (DEC) describes the conditions under which the state will conduct the vapor intrusion evaluations and the order in which the sites will be assessed. If exposures represent a concern due to indoor sources, then the state will provide guidance to the property owner and/or tenant on ways to reduce their exposure. If exposures represent a concern due to outdoor sources, then DEC will decide who is responsible for further investigation and any necessary remediation. Depending upon the outdoor source, this responsibility may or may not fall upon the party conducting the soil vapor intrusion investigation.
Today we continue our discussion on soil vapor intrusion. Some states like New York have developed detailed vapor intrusion guidance of their own. New York's guidance explicitly raises concerns about reliance on modeling and exterior soil vapor screening and encourages indoor and sub-slab sampling where there is a reason to believe that vapor intrusion may occur. A joint strategy between the New York State Department of Environmental Conservation (DEC) and the New York State Department of Health (DOH) has recently been developed to evaluate vapor intrusion pathways at all of the remedial sites in New York. The goal of the policy and guidance documents is to conduct soil vapor intrusion evaluations as efficiently and effectively as possible at all such sites. DEC's strategy is entitled "Evaluating the Potential for Soil Vapor Intrusion at Past, Present, and Future Sites."
If worker right-to-know laws are intended to require employers to inform their employees of the specific hazards based on specific chemicals to which their employees are exposed in the workplace, soil gas vapor regulation is intended to fill a significant gap, namely the wide range of pollutants that employers typically cannot know about and protect employees from. Soil gas vapor regulation is designed to set forth remedial steps that are required to be taken by property owners (who may or may not be the office building employers) in the face of uncontrollable and sometimes unknown sources of contamination in groundwater and soil beneath the building.