in the early to mid-2000s, and since has
taken a seat at the table as a major media
of concern for investigation and remediation,” says Glash.
According to Glash, reopeners usually occur when a new condition is discovered, or a regulator reviews the past
clean-up and identifies a risk to human
health. A regulator may even consider
risks to human health arising out of future uses of a property, such as a potential
Glash also notes that the EPA’s 2015
requirement of actual testing of indoor
air — as opposed to calculated ‘models’—
has also triggered VI reopeners. Eventually, the number of VI reopeners should
wind down because more recent remediation projects addressed VI. But in the
near term, more reopeners are likely.
The plaintiff’s bar is right behind the
regulators. Plaintiffs are suing for damages associated with VI based on common
law theories such as negligence, strict liability, nuisance and trespass.
Plaintiffs are also bringing statutory
claims, including citizen suits under
RCRA’s Section 6972 (a)(1)(b). “Plain-
tiffs, standing in the shoes of the govern-
ment in RCRA ‘imminent and substan-
tial endangerment’ citizen suits, will find
courts willing to order parties to inves-
tigate, remediate and abate chlorinated
solvent and petroleum contamination in
situations in which government agencies
are unwilling or lack the resources to act,”
Examples abound. In New York,
more than 1,000 plaintiffs sued IBM for
$100 million over VI caused by TCE
contamination. After six years of costly
litigation, the case settled for an undisclosed amount.
In Wisconsin, a manufacturer faced
regulatory action and class actions filed
by 85 homeowners impacted by VI. The
manufacturer paid more than $7 million to settle the class actions. Homeowners received payments for diminution in value of their homes and costs
to install vapor mitigation systems. The
manufacturer still has to deal with the
In Las Vegas, a mile-long PCE plume
originating at a shopping center resulted
in protracted litigation between hundreds
of homeowners, the regulator and current
and past property owners and operators.
On top of the short-term costs to install
mitigation systems in homes, long-term
costs to remediating the source contamination may exceed $8 million.
The risks for insurers
Responsible parties are seeking coverage
for VI under several types of policies.
Pre-1986 CGL policies are a popular
target largely because dry cleaners were
a ubiquitous source of PCE and TCE releases. Also, “reopeners” frequently occur
on sites where CGL insurers previously
paid claims associated with groundwater
or soil contamination.
VI claims under CGL policies can
implicate complex coverage questions
such as whether an occurrence, for trigger purposes, happened when the initial
source contamination occurred or when
a plaintiff inhaled the contaminated air.
The answers vary significantly by state.
Modern environmental impairment
and pollution legal liability policies may
provide coverage for VI. However, many
pollution insurers restrict coverage for
operations associated with VI, such as
current or former dry cleaners, gas stations, garages and other operations which
Successfully defending a VI lawsuit
often requires specialized environmental
counsel and expert testimony. Whether
exposures harmed a plaintiff is usually
heavily contested, as there is no scientific consensus on the effects of exposure
to common contaminants. Even where
contaminants are below regulatory levels,
courts have suggested claims may proceed anyway based only on expert testimony regarding harm.
It can also be important to distinguish
VI from other sources of indoor air contamination, such as commonly used
chemicals, fuels, or outside sources. Experts in geology, soil physics, industrial
hygiene, chemistry and toxicology testify
on these issues.
Diminution in value claims can be very
large depending on the number and type
of affected properties and extent of contamination. Again, experts are required.
In rare instances, vapors and associated
odors can directly damage property, requiring clean-up or replacement.
Insurers may be asked to pay to install and maintain ventilation, de-pressurization or barrier systems to
mitigate VI or remediate underground