Indoor Air: New Pathways to Potential Liability?

Two recent federal decisions may aid regulators and activists seeking to hold companies liable under the Resource Conservation & Recovery Act (RCRA) for historical soil or groundwater contamination that could migrate as vapor and contaminate indoor air.

On July 28, 2008, in United States v. Apex Oil Company, Inc., the U.S. District Court for the Southern District of Illinois found the owner of a petroleum pipeline strictly liable under RCRA for pipeline leaks that contaminated soil and groundwater decades prior, and granted injunctive relief requiring the owner to abate the contamination. In Apex Oil, the Department of Justice filed suit under § 7003(a) of RCRA, which enables the federal government to force remedial actions when contamination may present an "imminent and substantial endangerment to health or the environment."  The Court found that vapors emanating from petroleum hydrocarbon contamination in soils could present an imminent and substantial endangerment to health under RCRA because residents could suffer adverse health effects when exposed to the vapors or be harmed by fires or explosions caused by the vapors. Of significance, the court noted that an “endangerment” need not be quantifiable, definite, or pose an emergency situation for it to be substantial and thus actionable under RCRA. An appeal of the Apex Oil decision is pending in the Seventh Circuit.

On June 12, 2008, in Grace Christian Fellowship v. KJG Investments, the U.S. District Court for the Eastern District of Wisconsin allowed, in part, rebuttal testimony supporting a RCRA claim that vapors from soil contaminated by a gasoline leak at an adjacent gas station were entering the basement of a church and threatening the health and safety of the occupants. The Grace court has yet to issue a final decision as to whether the gas station is actually liable under RCRA or required to remediate the underlying contamination. 

Both decisions could provide support for regulators and activists arguing that vapor intrusion meets RCRA’s standards for imminent and substantial endangerment to health or the environment. The Apex Oil decision also indicates that the underlying contamination need not be recent for RCRA standards to be satisfied. As liability under RCRA is strict, these cases highlight the importance of assessing whether a potential vapor intrusion condition exists on already-contaminated property or property that is the subject of a real estate transaction. 

Locally, the Massachusetts Department of Environmental Protection (MassDEP) recently promulgated regulations and standards under the Massachusetts Contingency Plan (MCP), governing the mitigation of potential indoor contamination caused by vapor intrusion. These state regulatory developments only underscore the fact that potential vapor intrusion issues must be addressed. Property owners will ignore these issues at their financial and legal peril.

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