Roux Blog

New Tool Validated for Vapor Intrusion Litigation:
Stable Isotope Fingerprinting

The increased regulatory focus on vapor intrusion has led to the development of better tools for determining the source(s) of VOCs in indoor air. One such tool is compound specific isotope analysis (CSIA). CSIA is a well-established method for fingerprinting of pure chemicals and groundwater contamination. CSIA compares molecular structures between two samples of the same material in order to determine the likelihood that they originated from the same source. While this approach has been applied to VOCs in indoor air, there has been some hesitation to use it in a litigation context given the lack of an established methodology. However, in the last month or so, two major developments have occurred that pave the way for utilizing this methodology for litigation related to vapor intrusion source attribution.

This presentation will provide an overview of typically vapor intrusion source attribution issues, then review and discuss the lessons learned and implication from:

• The 9th Circuit court, in City of Pomona v. SQM North America Corporation, issued 5/2/14, which held that stable isotope analysis (for perchlorate in this case) meets the Daubert standard for admissibility.
  
  

• The US Department of Defense’s environmental technology demonstration and validation program, ESTCP, issued a report titled “Use of Compound-Specific Stable Isotope Analysis to Distinguish between Vapor Intrusion and Indoor Sources of VOCs”.

These developments facilitate the use of isotope analysis techniques that can be effectively and efficiently employed to reduce uncertainty and answer questions that otherwise would be extremely difficult and costly to address.

If you are interested in learning more about the above topic, contact Roux via the button below to request or schedule a technical brown bag tailored to your needs.

Roux Associates Welcomes Dr. Tony Jones to the Los Angeles Office

The federal bankruptcy court in New York City announced its ruling in the Tronox v. Kerr-McGee (Anadarko) matter on December 12, 2013.  The matter involved an alleged fraudulent conveyance case in which Roux Associates’ client (Tronox) was seeking damages from its former corporate owner (Kerr-McGee, a portion of which was then acquired by Anadarko) that would be used in part for the assessment and cleanup of about 3,000 sites across the U.S.  Former site operations included:

•    Wood Treating

•    Uranium Mining

•    Precious Metals Mining

•    Uranium and Thorium Processing

•    Petroleum Refining, Storage and Distribution

•    Natural Gas Processing and Distribution

•    Perchlorate Manufacturing

•    Agricultural/Pesticide Manufacturing and Distribution

•    Titanium Dioxide Production

Roux Associates opined that future cleanup costs for this portfolio of environmental legacy sites would amount to ~$1.5 billion to $1.7 billion.  Roux Associates used several cost estimating methods consistent with ASTM guidance (E 2137-06, Standard Guidance for Estimating Monetary Cost and Liabilities for Environmental Matters) including “Most Likely Value” (MLV) and a Range in Values.  The court used Roux Associates’ lower end estimate ($1.5 billion) and rejected the opposing expert’s estimate of $376M, which relied entirely on a probabilistic approach.  The court ruled that Tronox was entitled to $14,166,148,000 or $5,150,490,000 plus attorneys' fees and costs to the extent appropriate.

During the course of this case, Roux Associates’ prepared two expert reports and a final written direct court testimony.  Neil Ram, Ph.D., LSP, CHMM, was deposed twice and was then cross examined for a full day in court.  The trial lasted 34 trial days and included the testimony of 28 witnesses (14 experts) using 6,100 trial exhibits.

The court ruled that the Roux opinion “is the only comprehensive valuation in the vast record of this case” and that the opposing expert’s opinion “did not purport to be a comprehensive analysis…” and was, therefore, “a major failure of proof.”  The court further ruled that “Ram exercised his judgment and used another approach [referring to MLV] recognized as valid by the ASTM.”

The final amount within the above range is yet to be determined, and Anadarko has indicated that it plans to appeal the decision.  To read the full court's ruling regarding Tronox v. Kerr-McGee (Anadarko), click below.

New 1,4-Dioxane Findings and Heightened Regulatory Interest

1,4-dioxane is an emerging groundwater contaminant that has been the focus of increasing regulatory interest at both the Federal and State levels. Until recently, few studies have empirically evaluated the co-occurrence of 1,4-dioxane in groundwater with chlorinated solvents other than 1,1,1-trichloroethane (1,1,1-TCA) and 1,1,1-TCA degradation byproducts. A recent study has caught the attention of theU.S. Environmental Protection Agency (EPA) and state regulators—the important findings are summarized below.

According to the authors of a recent peer reviewed article, their analyses, “conclusively demonstrate for the first time that 1,4-dioxane is a relatively common groundwater co-contaminant with TCE.”[1]  The study analyzed a subset of data from 5,788 monitoring wells at 49 United States Air Force Installations and was conducted by researchers affiliated with the United States Air Force Center for Engineering and the Environment.

There are several limitations of the study, and interpretation of the results is the subject of ongoing debate. Two key items to consider when interpreting the results are: 1) that the United States Air Force has pointed out that it did not fund the work[2]; and, 2) that the study analysis did not consider the short half-life of 1,1,1-TCA.

Regardless of uncertainties in interpreting the results, the journal article and underlying study were a significant topic of discussion as part of a monthly EPA groundwater forum teleconference lin November 2012. The summary notes for that teleconference[3] include the following statements, that:

“This may present a problem for previous site investigations as well as ongoing investigations”; and,

“The study raises the question of whether other solvent sites need to be retested to determine if they have 1,4-dioxane and, if they do, whether the remedy being used, such as pump and treat with GAC treatment, is appropriate for dioxane.”

For more information regarding these recent developments, please contact your local Roux Office, or click on the info button below and a Roux representative will contact you.

Click here to learn more about Roux Associates extensive experience and capabilities.

Other Useful Links:/Resources:

InsideEPA.com: EPA, Air Force Fear Expanding Scope Of 1,4-Dioxane Contamination

InsideEPA.com Air Force Fear Expanding Scope Of 14 Dioxane Contamination.pdf

U.S. Environmental Protection Agency (EPA)

References:
[1] Anderson, R. H., Anderson, J. K. and Bower, P. A. (2012), Co-occurrence of 1,4-dioxane with trichloroethylene in chlorinated solvent groundwater plumes at US Air Force installations: Fact or fiction. Integr Environ Assess Manag, 8: 731–737.
[2] Inside EPA (2013), EPA, Air Force Fear Expanding Scope Of 1,4-Dioxane Contamination, 23 January, 2013.
[3] United States Environmental Protection Agency (2012), Groundwater Forum Teleconference, 1 November, 2012.

January 2013 the New Jersey Department of Environmental Protection (NJDEP) issued the revised Vapor Intrusion Technical Guidance Manual and revised the vapor intrusion screening levels.

Click here to review the New Jersey Department of Environmental Protection Site Remediation Program Vapor Intrusion Technical Guidelines

The chemicals below, have been dropped from the list of substances for vapor screening due to the absence of inhalation toxicity information.

• 1, 3-dichlorobenzene,
• 1, 2-dichloroethene (cis),
• 1, 2-dichloroethene (total),
• 2-chlorotoluene,
• and tertiary butyl alcohol (TBA)

The screening levels for several substances (such as tetrachloroethene or PCE) are higher than the 2007 screening levels (good news for dry cleaning sites). This may result in situations in which cases currently classified as an immediate environmental concern (IEC) or vapor concern (VC) may be reclassified based on the new screening levels.

On the other hand, the new screening levels for some substances are lower than the 2007 screening levels. For example, the screening levels for ethylbenzene are significantly lower. This may result in reclassifying some cases as an IEC or VC.

Key to the changes is the time frame for assessing conditions at your site relative to the revised VI screening levels.

• For ongoing sites and sites with approved remedial action work plans (RAWPs) for groundwater, the assessment must be completed by April 16, 2013.
• For sites with restricted use remedial action outcomes (RAOs) or restricted use no further action (NFA) determinations, the assessment needs to be completed during the next biennial certification.

Roux Associates is uniquely positioned to assist you with your VI compliance needs. Our LSRPs are stakeholders on several committees with the NJDEP on guidance documents and regulations with valuable insights into the NJDEP. In addition one of our LSRP's served on the VI Screening Level Implementation Committee with the NJDEP.

To learn more about the NJDEP New Vapor Intrusion Standards contact one of Roux Associates LSRP's or click on the below link to request more information.

• Bill Silverstein
• Michael Gonshor
• Kathi Stetser
• Greg Martin
• Thomas Buggey
• Bill Gilchrist

Apportioning Cleanup Costs Among Multiple PRPs

By

Neil M. Ram and Douglas J. Swanson

Apportioning site cleanup costs among potentially responsible parties (PRPs) is a difficult and sometimes contentious process. Costly and protracted litigation to determine cost shares is an increasingly unattractive option and there is a strong incentive to devise a fair, understandable and efficient approach to allocating costs among PRPs. 

PRPs with potential liability typically include (a) current and past site owners, (b) current and past operators or lessees, (c) “generators” whose wastes were released or disposed at the site and (d) transporters who selected the disposal site and took the generator’s wastes to the site for treatment and/or disposal. 

 A number of approaches have been used to apportion liability among such PRPs.

Gore Factors

Courts have considered the so-called “Gore Factors”[1] in evaluating the ability of the parties to demonstrate that their contribution to a discharge, release, or disposal of a hazardous waste can be distinguished.  Gore Factors are:

• The amount of hazardous waste involved;

• The degree of toxicity of the hazardous waste involved;

• The degree of involvement by the parties in the generation, transportation, treatment, storage or disposal of the hazardous waste;

• The degree of care exercised by the parties with respect to the hazardous waste concerned, taking into account the characteristics of such hazardous wastes; and

• The degree of cooperation by the parties with Federal, State or Local officials to prevent any harm to the public health or the environment.

The first two Gore Factors require a technical evaluation of site data and information to arrive at a defensible allocation.  The remaining factors are based on the PRPs involvement at the site.

Look to Others First

Before evaluating the apportionment among an identified group of PRPs, the first step is to determine if additional entities have a relationship (“nexus”) to the site and should be invited to join the party.  This can be accomplished by environmental database searches, review of historical aerials and understanding corporate successorship.  In addition, cost contributions from (a) insurance policies, (b) third parties, (c) state reimbursement programs (in the case of petroleum releases from underground storage tanks [USTs]), and (d) settlement agreements should also be carefully reviewed and considered.

Technical Approaches to Apportionment

Once all the PRPs are at the table, each party is evaluated using several factors as a basis of apportionment:

• Zero Apportionment;

• Unique factors for specific PRPs;

• Amount;

• Toxicity;

• Period of operation and/or site ownership; and

• Specialized apportionment factors.

Assigning Zero Apportionment

Zero apportionment can be assigned when (a) the PRP’s site ownership or operations pre-date the timeframe during which chemical release(s) occurred; (b) no releases occurred during the period that the PRP owned or operated the site following a release or releases by other parties or (c) [for a generator] none of a generator’s waste was disposed, or can be detected at the site. 

Unique Factors for Specific PRPs

Compounds can sometimes be uniquely linked to specific PRPs or, alternatively, be eliminated from an association with certain PRPs and such linkage can be used to distinguish releases attributable to specific PRPs. 

Amount

This factor is most useful at sites where most PRPs sent known quantities of similar waste types (e.g., spent solvents or mixed solid waste), although good waste-in data are frequently lacking, particularly at landfill sites. However, at the majority of sites, the quantities of waste are unknown and must be interpreted from soil and groundwater data (i.e., contaminant concentrations in various matrices). Once calculated, the mass of a unique chemical or chemicals associated with a PRP can then be compared to those attributable to other PRPs. 

Toxicity

The relative potency of chemical toxicants can be approximated by the relative magnitude of the toxicological values (for carcinogens and non-carcinogens) published by the USEPA and therefore be considered in apportioning costs to PRPs.

Response Action Drivers

Response action drivers (chemicals that must be addressed to achieve site closure), along with their ease or difficulty of assessment and remediation are considered in assigning costs among PRPs.  For example, a smaller mass of a recalcitrant or highly toxic chemical can represent a greater response action driver than a larger mass of less recalcitrant chemicals. Weighting costs towards PRPs responsible for chemicals requiring more aggressive or costly cleanup technologies should therefore be considered.

Period of Operation and/or Site Ownership

While a PRP’s (or its predecessor) ownership or operation period at a site should be considered in apportioning cleanup costs, such periods rarely exhibit a linear relationship with the actual volume of chemicals released during such time frames or the resulting response action costs.  Variations in historical operations and waste treatment discharge and removal practices over time must be carefully evaluated to understand their relative environmental impact. 

Specialized Apportionment Factors

In addition to the above, several specialized apportionment factors can be considered based upon the unique circumstances of the site and/or operations conducted by the PRP:

• For mining sites, apportionment can consider the amount of ore and/or waste rock generated;

• Compounds that are readily biodegradable may be discounted because of their potential for natural attenuation:

• Apportionment considerations may be appropriate for compounds (e.g., surfactants) that enhance the migration of other chemicals causing larger contaminant plumes;

• In the case of radioactive waste, apportionment can consider the specific isotopes used or discarded by each PRP;

• Apportionment based on volume is not always appropriate (e.g., the costs to cap a landfill are associated more to the landfill footprint rather than the total landfill volume).

• Apportionment should consider the degree to which volume decreases from consolidation and natural dewatering (e.g., municipal sludges consisting mostly of water for example should not necessarily be apportioned solely on volume relative to other solid wastes).

• PRPs contributing only minor amounts of chemicals to site remediation should not necessarily bear a proportional share as those PRPs contributing the major chemicals subject to remediation. 

Conclusions

Assigning an equitable allocation to numerous PRPs is not a trivial matter and requires a careful evaluation of site-specific and PRP-specific information and data.  Such analysis generally falls into one of the following five categories:

• Zero apportionment based on confirming no nexus between the PRP and the site and/or response actions required at the site;

• De minimis apportionment (minor amounts of hazardous substances, both in terms of volume, toxicity or other hazardous effects, relative to other hazardous substances at a site);

• De micromis apportionment (a subset of de minimis where waste volume is extremely small compared to a de minimus party’s volume);

• Assignable apportionment based on the factors discussed above; or

• Orphan shares (shares of responsibility that might otherwise be equitably attributed to PRPs who are insolvent or defunct and thus unable to contribute to cleanup costs) can also be allocated to viable PRPs using such allocation models. 

Most importantly, the apportionment needs to have a firm, defensible basis to place each PRP into one of the above categories and, of course, reaching a consensual agreement among all PRPs for the final apportionment.

Roux Associates has extensive experience in apportioning response action costs to one or more PRPs having performed such analyses for dozens of clients at hundreds of sites.

To request more information, please click here

Useful Links:

May 2009 Supreme Court Decison regarding apportioniment for Burlington No. & Santa Fe R. Co. v. United States (07-1601)

USEPA:  Burlington Northern v. United States decision and transcript of the oral arguments before the Supreme Court, the Ninth Circuit denial of rehearing en banc, and a speech by the Department of Justice's John Cruden

Shell Oil Co. v. United States (07-1607)

[1] US Code Cong. & Admin. News 2835 (1980), 3042; see In re Hemingway Transport, Inc. 993 F. 2d 915,921, 1st Cir. 1993

Examples of how recent changes in toxicity factors affect “safe” levels of PCE in residential indoor air and tap water are provided below:

Acceptable levels of PCE have increased, which will affect how contaminated waste sites are remediated, how industrial properties are redeveloped and how suits claiming bodily injuries may be tried. 

If you are currently evaluating a property or case with potential PCE exposures, let Roux Associates assist you in a PCE risk reassessment as we may be able to demonstrate reductions in risk, required cleanup, liability, and/or cost.