[CPEO-BIF] Sorting out vapor intrusion accountability at brownfields

[Lenny Siegel <lsiegel@cpeo.org>]

I am pleased that the participants in this discussion agree that it is
important to address the risks of vapor intrusion at Brownfields sites.
That's a good starting point.

There doesn't seem to be any argument over sites where there is a viable
responsible party. If residents need to be protected against past
pollution, then the polluter should pay. 

So what do we do when addressing potential environmental problems has
become the responsibility of a developer? I divide that problem into two cases:

1) Development that is occurring now or in the future, at a time when
the general problem of vapor intrusion is recognized.

Again, there seems to be general agreement that the developer should
consider the potential costs of vapor intrusion response when deciding
whether to build on the property. I think it's important for any
regulatory documents to warn clearly of potential re-openers, including
those triggered by the discovery of new contamination, the recognition
of new pathways, or the establishment of more stringent exposure
standards. Insurance policies, if properly formulated, seem like the
best mechanisms to prepare for the unknown.

2) Development that occurred before the threat of vapor intrusion was
recognized, but which now is potentially compromised by that pathway.
This is the hard case!

To a large degree, the developer's responsibility is a function of the
laws of the state in which the property is located as well as the
particular regulatory paperwork that applies to the site. That is, if a
regulatory agency gave a party a "no further action" letter with no
re-openers, the agency probably has to absorb the liability.

However, if a developer decided on its own (with no regulatory
clearance) that it was safe to build homes on property with residual
contamination, and then vapor intrusion was documented on site, then the
developer should be held accountable. The developer not only has created
the pathway, but it has made the decision that no further cleanup was required.


This doesn't totally solve the problem of changes in health standards at
old sites, but there really aren't that many sites where action levels
were established before EPA's draft 2001 health risk assessment for TCE.
In fact, action levels are usually site specific and based upon numerous
risk management factors. It's likely, in those rare cases where
standards have significantly changed, that accountability will be
determined by the language of re-opener clauses in regulatory documents.


There are many Brownfields practitioners who consider the objective of
Brownfields redevelopment to be sweeping residual contamination under
the new-development rug. There may be situations where that works, but
no one should go into a deal anymore with the assumption that there is
no need to consider the potential exposure of new residents, employees,
or other users of the property.

Lenny
-- 


Lenny Siegel
Director, Center for Public Environmental Oversight
c/o PSC, 278-A Hope St., Mountain View, CA 94041
Voice: 650/961-8918 or 650/969-1545
Fax: 650/961-8918
<lsiegel@cpeo.org>
http://www.cpeo.org
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