In 2008, the U.S. won one of the first
major VI lawsuits against Apex Oil in a
case involving significant petroleum VI
in a small Illinois town. As a result, Apex
could be liable for remediation costs exceeding $100 million. Since 2013, Phase
I environmental site assessments (used
in many property transactions) must include VI assessment. Last year, the U.S.
EPA added VI as a criterion for Super-fund sites.
Most states now have VI guidance or
standards. The trend is toward more aggressive regulation. California, New York,
and Illinois have implemented some of
the strictest standards in the nation. In
2016, the Ohio EPA released guidance
which required action within days of discovery of high levels of TCE in a building.
Regulators don’t spare smaller targets.
In Wisconsin, the state directed the un-
witting purchaser of a small property
where a dry cleaner had operated in the
1970s to pay for testing and mitigation
systems for nearby homes – which could
cost him hundreds of thousands of dol-
lars. The owner has tried, unsuccessfully,
to find out whether the former dry clean-
er had CGL insurance.
States are focusing on VI issues at pre-
viously remediated sites. “Sites closed by
government agencies with engineered
and institutional controls that address
other exposure pathways, like direct con-
tact with soil and ingestion of groundwa-
ter, can be reopened by the government,
or citizen plaintiffs, for VI,” explains
Matthew Cohn, an environmental attor-
ney with Chicago law firm Greensfelder,
Hemker & Gale, P.C.
The story of a former property owner
in New York illustrates the risk of re-
openers. The owner paid $4 million to
remediate contaminated soil, then sold
the property, but retained the liabilities.
Five years later, the state reopened the
site and sought $2.1 million from the
former owner for VI investigation, abate-
ment and mitigation systems for more
than 120 affected properties. The former
owner then sued other prior owners of
the property, and owners of other nearby
properties, claiming that they had also
contributed to the contamination.
Scott Glash, a New York-based principal hydrogeologist with Roux Associates, explains why VI bubbles up at
closed sites. “Traditionally in the remediation industry, the focus of clean-up was on soil and groundwater, while
most clean-ups disregarded the potential presence of soil vapor. Soil vapor began to get on the radars of the regulators
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