Pennsylvania Brownfields 2013 PRACTICAL APPROACH TO MANAGING THE UNCERTAINTIES OF VAPOR INTRUSION IN REDEVELOPMENT PROJECTS December 10, 2013 Christopher M. Roe, Esq. Vincent M. Carbone, P.G. Presented by

Introductions Christopher Roe, Esq. Mr. Roe is co-chair of the Environmental Practice of Fox Rothschild. He represents and counsels clients on a wide range of environment-related matters, including VI investigations and sales of property with VI risks in several states. He filed comments on USEPA’s April 2013 Draft VI Guidance, serves on a VI subcommittee of the Pa. CSSAB, and assisted ASTM with its vapor encroachment guide and its revised Phase I standard. Vincent Carbone, P.G. Mr. Carbone is a senior geologist and Due Diligence Technical Service Lead at HDR with over 20 years of experience in hazardous waste and petroleum spill site investigations and remediation in eastern United States. 2

Our Goals To provide:  Latest on federal and state vapor intrusion guidance and regulations  Insights on how to identify risk and reduce uncertainty in evaluating properties for acquisition  Information the developer needs to understand to manage vapor intrusion during site redevelopment  Opportunity to ask and get answers to questions from both a lawyer and a consultant Dialogue and Questions are encouraged. 3

Overview – Federal Developments USEPA Vapor Intrusion Website ( ) : Background Indoor Air Concentrations of Volatile Organic Compounds in North American Residences (1990–2005): A Compilation of Statistics for Assessing Vapor Intrusion, June 2011 Petroleum Hydrocarbons and Chlorinated Hydrocarbons Differ in Their Potential for Vapor Intrusion, September 2011 Conceptual Model Scenarios for the Vapor Intrusion Pathway, February 2012 Superfund Vapor Intrusion FAQs, February 2012 Evaluation and Characterization of Attenuation Factors for Chlorinated Volatile Organic Compounds and Residential Buildings, March 16, 2012 Vapor Intrusion Screening Level (VISL) Calculator; User’s Guide, March 2012 Assessing Protectiveness at Sites for Vapor Intrusion, Supplement to the “Comprehensive Five-Year Review Guidance,” OSWER Directive Indoor Air Vapor Intrusion Mitigation Approaches Vapor Intrusion Database 4

5 Overview -- Federal Developments IRIS Health Risk Assessments for TCE and PCE Short Term Non-Cancer Action Levels and Guidance for TCE Proposed Hazard Ranking System Amendment

OSWER VI Guidance – Key Issues Scope -- Where Is VI Evaluation Needed?  Potential vapors/potential buildings  No bright lines – distance/phasing and worst case  Unrealistic screening levels  Brownfields and AAI? Duration -- How Much Study Is Enough?  Multiple lines v. screening values  Multiple locations/multiple rounds  Worst case conditions – HVAC off Significance -- Characterizing Risk  Cancer/Non-Cancer/Short-term/Long Term  Background/Indoor sources  OSHA and other Understanding -- Communicating about Risk and Results Opportunity -- Gaining Access – In light of all of the above Challenges to Mitigation Option – Monitoring and Legal Mechanisms 6

OUST PVI Guidance for UST Sites 7

8 State Developments -- Pennsylvania Statewide Health Standard  VI exposures are not considered in development Statewide Health MSCs  § : “The final report must include, as appropriate, an assessment of the vapor intrusion pathway.”  Land Recycling Program TGM, Section IV.A.4, Vapor Intrusion into Buildings from Groundwater and Soil under the Act 2 Statewide Health Standard, Jan. 24, 2004 Site Specific Standard – VI one exposure pathway Land Recycling Program Q&A Database, Category: Vapor Intrusion Preliminary Draft Revision of SHS VI Guidance, Mar (generally):  Where gw meets used aquifer standard (or new gw to indoor air screening values) – no further evaluation – if not, evaluation required for inhabited buildings within 100 feet of elevated level (unless preferential pathway)  Soil contamination more complicated, general distrust of soil screening values  Evaluation options include gw to indoor air modeling; sub-slab sampling (10x attenuation); at least two rounds of indoor air  Distrust of external soil gas, only for offsite when building access unavailable  Option to go straight to mitigation and covenant in lieu of study  Evaluation for release of liability limited to existing buildings  Environmental covenant or re-openers can be used to address new buildings

Scope -- Where Is VI Evaluation Needed? From the beginning… Sales Agreement – Legal Review  Appropriate Scope of Diligence and Disclosures  Reps and Warranties  Indemnification  Escrow/Price Reduction  Buyer-Seller Agreements/Covenants Appropriate Due Diligence – Technical Review  Does your EP have VI experience?  ASTM  Scope of additional work 9

Vapor/Phase I’s and the Revision of ASTM E 1527 Revised ASTM Standard Practice for Environmental Assessments: Phase I Environmental Site Assessment Process (“E 1527 ‑ 13”) issued Nov. 6; EPA AAI rule change expected this year.  Definition of migrate/migration was added primarily for reference to vapors  Indoor air quality non-scope item has been clarified as limited to air quality unrelated to a Superfund release  References to E , Vapor Encroachment Standard Guide Does E require vapor intrusion evaluation -- No -- or a vapor encroachment analysis using E , Standard Guide for Vapor Encroachment Screening on Property Involved in Real Estate Transactions? No. Should environmental professionals consider vapor in performing Phase I’s? Yes.  Vapor intrusion evaluations are beyond the level of information/analysis in a Phase I.  Speculating about VI should not be part of a Phase I report.  E Standard Guide for Vapor Encroachment is not part of AAI or a Phase I.  Nothing in E carves hazardous substances in vapor form out of recognized environmental condition ("REC") (or AAI or CERCLA jurisdiction).  Developments in VI science and related regulations/guidance should inform professionals' judgments about: 1) whether hazardous substances are likely present; 2) whether a volatile can be considered a de minimis condition. Phase I Report (-05 or -13) should not disclaim all consideration of vapors. 10

Scope Where Is VI Evaluation Needed? What we need to know…. Residential or Commercial? Regulatory Status  Act 2  Deed Restrictions  Engineering or Institutional Controls Future Intended Use  Re-use or re-development?  Manufacturing?  School? Timeframe for Redevelopment or Reuse 11

Duration -- How Much Study Is Enough? Previous Reports and Investigations... Things to Consider.... Soil Data and Depth  Soil stratigraphy – Are Soils Clean?  Vadose Zone Groundwater Data and Depth  Hydrogeology & depth to water table  Plume location and movement Exposure Routes  Preferential Pathways  Receptors? Soil/Gas Data  Sub Slab/Breathing Zone Sampling  Multiple lines v. screening values  Multiple locations/multiple rounds  Worst case conditions – HVAC off  Limits of source area and contaminates of concern Data Collection vs. Remediation  Extra data is not necessarily meaningful data  Remediation: Passive and Active venting systems, existing & potential future buildings Construction of buildings Type of HVAC system 12

Significance – Characterizing/Communicating Risk Risk Analysis  Cancer/Non-Cancer/Short-term/Long Term  Background/Indoor sources  OSHA and other Communicating about Risk and Results  To agencies  To building users (buyers, tenants, employees, tenants)  To the community 13

What You Should Know VI science and VI regulation are still changing You can’t necessarily rely on old risk determinations, including under Act 2, especially at solvent sites Chlorinateds more of a concern than petroleum VI studies and results can generate significant concerns about health EPA may soon raise stakes higher for TCE More data may generate more questions and not provide answers VI can be effectively mitigated in new construction and often in existing buildings VI mitigation may require a legal as well as technical mechanism 14

What You Should Do Engage consultants and counsel who understand and appreciate VI complications Be alert to chlorinated solvents at the property and adjoining properties If volatiles are present, require re-evaluation of NFAs or Act 2 sign-offs Only allow or require thoughtful testing Encourage mitigation rather than study 15

16 Contact Information Christopher M. Roe, Esq Vincent M. Carbone, P.G Bloomberg BNA Environment Report, Lawyers’ View of EPA’s Draft Final Guidance for Vapor Intrusion: Public Comments Are Needed to Advocate for a More Practical Approach Fox Rothschild LLP Public Comment Submission on OSWER Guidance: