The Increasingly Steep Climb to Regulatory Closure for Contaminated Sites

by Keith B. Walker^*

Two recent key developments will significantly impact the way prospective purchasers and landowners identify and address the presence of contamination. First, the U.S. Environmental Protection Agency has adopted a new environmental due diligence standard that requires a new focus on soil vapor. The second development is a noticeable shift by federal and state environmental agencies with respect to evaluating human health risks resulting from contaminated soil vapor off-gassing from soil and groundwater which may then enter indoor air (i.e., "soil vapor intrusion"). The collective impact of these developments requires (1) more precisely defining the extent of subsurface impacts in multiple environmental media; and (2) more extensive evaluation to determine whether there is a potentially complete exposure pathway for soil vapor intrusion.

These changes have significant impacts for both landowners and prospective purchasers by further complicating purchase and sale negotiations, especially in regard to responsibility for completing the investigation and remediation processes. They also introduce significant uncertainties in regard to the time it will take and the costs that will need to be incurred with respect to achieving regulatory closure. Consequently, sellers may frequently be forced to either take on significant post-closing obligations or cut purchase prices. For their part, buyers may have to accept deed restrictions that prohibit the unfettered use of the property and/or require maintenance of human health risk mitigation measures in perpetuity, which may greatly inhibit their ability to re-sell the property. In addition, new emphasis on indoor air quality, which may or may not be related to the subsurface contamination giving rise to the initial regulatory requirements, introduces a wild card into the equation. When confronted with these changes to the environmental due diligence process and the regulatory environment, the engagement of highly qualified consultants and experienced, specialized environmental counsel is essential for structuring an approach that (i) achieves regulatory closure on a timely and cost-effective basis; (ii) minimizes the potential for significant toxic tort liability; and (iii) avoids undue restrictions on the use and marketability of the property at issue.

ADOPTION OF ASTM E 1527-13 BRINGS POTENTIAL SOIL VAPOR CONCERNS INTO THE LIGHT