What is Vapor Intrusion?
Recent advancements in toxicological science have shown that exposure to certain vapors carries much greater health risks than had previously been anticipated. That in turn, is driving down the safe exposure limits put forth by federal and state environmental regulators. For instance, in Minnesota, the new long-term health exposure to fumes from dry-cleaning solvents has dropped almost ten times from what was considered acceptable just a few years ago. Such drop was based largely on a study which indicated that long-term exposure to certain solvents at even low concentrations can cause cancer as well as fetal developmental problems in pregnant women.
The above phenomena – typically referred to as “vapor intrusion” – is becoming an emerging area of interest across the country to regulators, buyers, sellers, lenders, developers, environmentalist as well as homeowners who might be impacted by nearby operations. At least 40 states (excluding Texas) have or are in the process of developing guidance concerning vapor intrusion and many now have “emergency” action levels (e.g., evacuation) at values that were of no concern to regulators less than a decade ago.
How Does Vapor Intrusion Occur?
According to the EPA, vapor intrusion occurs when there is a migration of volatile organic compounds (VOCs) from any subsurface source such as contaminated soil or groundwater into an overlying building. Vapors move through the soil and seep through cracks in basements, foundations, sewer lines and other openings into buildings and homes. Typical VOCs which cause vapor intrusion include petroleum products such as gasoline and diesel fuel, and chlorinated solvents, such as the dry-cleaning chemical tetrachloroethylene, also known as perchloroethylene (PCE) and the degreasing solvent trichloroethylene (TCE).
Have the Sites that are the Sources of the Vapor Intrusion New?
Usually sites that are the source of vapor intrusion have been known about for years. Some have even been fully remediated to the satisfaction of state and federal regulators. However, in the past the regulators did not view contaminated sites in terms of their ability to contaminate indoor air. Instead, they were primarily concerned about impacts to groundwater and soil. Groundwater ordinarily does not need to be cleaned up unless it is the source of drinking water. In Texas, the Municipal Setting Designation (MSD) has been a very successful tool in limiting the need to clean up contaminated groundwater in this regard. In addition, some remedial approaches can allow contaminated soil to stay put if a concrete slab prevents its exposure to others.
However, vapors are different. After all, one might prevent a person from drinking or ingesting contaminated groundwater or soil, but one cannot likewise prevent that same person from breathing air, contaminated or otherwise. Adding to the concern, the vapors are usually odorless, colorless and undetectable without special testing equipment. As a result, the vapors can build up to a point where the health of the residents or workers in those buildings are in jeopardy like what occurred with radon in 1980s.
Are Lawsuits being Filed Concerning Vapor Intrusion?
Yes. The above has led to a lot of anxiety in several parts of the country. For instance, Michigan estimates there could be as many as 4,000 sites within its state where vapor intrusion might be occurring. The Minnesota regulator who runs their vapor intrusion program said, “It’s like working on an engine while the car is driving down the road.” And New York and Massachusetts have even re-opened several sites which were previously closed to re-evaluate them for potential vapor intrusion concerns – often at unsuspecting off-site properties who never even knew there was an issue.
In addition, lawsuits have also been filed which stem from vapor intrusion issues. For instance, in 2016 a class action was filed on behalf of several residents against Northrop Grumman Corporation in New York claiming its nearby steel operations led to vapor intrusion in their homes. They are seeking $500 million in damages. In 2015, a similar class action was filed against General Mills in Indiana claiming its operations led to vapor intrusion into residents nearby homes. Several cases have also been filed in Nevada, California and Wisconsin by property owners against dry cleaners as well as shopping centers claiming exposure to vapors from the dry-cleaning operations.
Can You Seek Recovery of Your Cleanup Costs?
If the contamination was caused by previous operations on your property or on the neighboring property, you can file suit to seek recovery of the money spent to remediate the property. In order to do this, you will need an experienced environmental trial attorney. Along with representing plaintiffs and defendants in these kinds of cases, I also specialize as PRP group counsel in Superfund cost recovery and contribution actions on a contingent fee basis.
The typical causes of actions asserted in most environmental lawsuits arise under either statutory or common law. Under statutory law, the plaintiffs typically assert “cost-recovery” claims against defendants in an effort to recover the money they spent to investigate and remediate their property. These claims arise under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) or a state equivalent, for instance under the Texas Solid Waste Disposal Act (SWDA). Plaintiffs sometimes also assert citizen suit claims under several federal environmental statutes (e.g. RCRA, the Resource Conservation and Recovery Act) as “private attorneys general” which entitles them to statutory penalties, injunctive relief, as well as attorney’s fees.
Under common law, the typical causes of action asserted by the plaintiffs are for nuisance (private and public), trespass, negligence, negligence per se, breach of contract, strict liability for ultra-hazardous and abnormally dangerous activities, liability under state hazardous sites cleanup acts, and fraud. Plaintiffs have also asserted claims for negligent misrepresentation, unjust enrichment, impairment of use of property, deceptive trade practice act violations, and premises liability. The success of these latter claims differs dramatically from jurisdiction to jurisdiction.
Can You Seek Damages for Exposure to Environmental Toxins?
Yes. I represent both plaintiffs and defendants throughout the United States in lawsuits alleging bodily injuries, wrongful death, and economic damages stemming from the presence of and exposure to hazardous toxins at home or in the workplace. Typically, the plaintiffs seek damages from defendants in such matters for nuisance, trespass, negligence, negligence per se, breach of contract, fraud, and strict liability for ultra-hazardous and abnormally dangerous activities. There might also be statutory claims available to the plaintiffs.
How Do You Choose the Right Environmental Trial Attorney?
Environmental litigation is complex. The applicable laws and statutes are often difficult to understand and apply. To make matters worse, the application by the courts can sometimes differ significantly depending on where the case is filed. As a result, when choosing the right environmental trial attorney, expertise should be your primary concern. It is very important that the attorney have a firm grasp on the different ways courts have handled various key and recent issues in environmental litigation.
It is also important to choose a lawyer who has significant past experience in environmental litigation. Although the case law is complex, some of the same issues come up in almost every case. Your attorney should have a standard set of written discovery requests concerning core background information. He should also be very familiar with the EPA and state environmental agencies as he will oftentimes need to work in parallel with those agencies in order to resolve the litigation. Finally, it is paramount that the attorney has a bank of good environmental consultants who can provide expert testimony if necessary.
Not only do I meet these qualifications, I am also open to alternative fee arrangements that align my interests with yours. Hourly arrangements have been the norm in the past. However, for many clients the hourly arrangement is simply no longer acceptable as cases tried on an hourly basis can easily dwarf the amount needed to clean up the property, leaving the client “upside down” in the case due to the attorney’s fees incurred. Sometimes an hourly arrangement is the most appropriate means of handling the matter. However, when representing a plaintiff, I am open to representing the client on a contingency basis. When representing the defendant, I am open to defending the matter based upon fixed fees for certain phases of the litigation. This latter strategy is a new concept which compensates the attorney for outcomes, not incremental projects (i.e. 1/10 billable items) that do not further the outcome of the case.
Do you have questions? You can get our FREE ebook, Environmental Litigation: What Every Attorney and Environmental Professional Needs to Know, just by providing your name and email address. We promise your information won’t be shared with third persons. And if you’d like to speak with me about your case, I welcome your phone call at 972-850-8490. I look forward to speaking with you.