State environmental agencies are increasingly turning to the EPA’s Superfund Program to address vapor intrusion issues at complex sites. This trend can be expected to continue given the EPA’s addition of the vapor intrusion pathway to its Hazard Ranking System for scoring contaminated sites. See Addition of a Subsurface Intrusion Component to the Hazard Ranking System

For example, the Rockwell International Wheel & Trim site in Grenada, Miss., was recently added to CERCLA’s National Priorities List (“NPL”) “because of the limited ability [of the State] to address contamination beyond the scope of the RCRA permit and the complex nature of the ownership of the site.” EPA NPL Fact Sheet, (Jan. 2018). This was the first site added to the NPL based solely on the risk presented by vapor intrusion, which is the migration of volatile organic compounds, like Trichloroethylene (“TCE”), from contaminated groundwater into subsurface soil and into overhead buildings.

As background, this site had been used as a wheel cover manufacturing and chrome plating facility from 1966 to the early 2000s. Chrome plating sludge, solvent still bottoms, buffing compounds, and other wastes were disposed in a wetland near Riverdale Creek, a disposal area east of the facility, a sludge lagoon, and into surface water through an outfall ditch. As a result, TCE contamination is present in groundwater at the site up to five orders of magnitude above the Safe Drinking Water Act Maximum Contaminant Level. The groundwater contaminant plume underlies the site and part of an adjacent residential area (84 homes) resulting in the potential for future vapor intrusion.

The State’s efforts to force the responsible parties to investigate the potential vapor intrusion issues area have been hamstrung because of the site’s complex transactional history. The City of Grenada and Grenada County each leased portions of the plant and surrounding area to Ice Industries, Inc. (“Ice”) and its affiliated company, Ice Industries, Grenada, formerly known as Grenada Manufacturing Acquisition Corporation (“Ice Grenada”).

In 2005, Ice “saved the existence of an imperiled manufacturing plant . . . by acquiring through bankruptcy the assets and operations of Grenada Manufacturing, LLC, an insolvent business owner and operator.” Ice Industries Grenada Comment, (Mar. 26, 2018). EPA had allowed Grenada Manufacturing, LLC to retain its RCRA permits, with the cleanup being performed by the prior plant owners Meritor and Textron. The bankruptcy court then permitted Ice Grenada to buy the assets and operation of Grenada Manufacturing, LLC and obtain the benefits of the existing RCRA permits, with the debtor to retain all continuing obligations under those permits.

Because of the legal quagmire identifying responsible parties given the bankruptcy court’s actions, the State sought the EPA’s assistance. The EPA responded by proposing to add the site to the NPL, perform the vapor intrusion investigation, and figure out liability afterwards.

Ice, with support from the National Association of Manufacturers, objected to the EPA’s listing of the site on the NPL because a sub-slab depressurization system has curtailed sub-slab vapors from entering into the plant’s manufacturing area. And, if the EPA was focused solely on the health of the nearly 300 Ice employees working in the plant, Ice would have a solid argument for not adding the site to the NPL.

State environmental agencies, however, are increasingly turning to EPA’s Superfund Program to address neighborhoods that have the potential for vapor intrusion where the polluter is insolvent, bankrupt, or has exhausted available insurance to pay for a vapor intrusion investigation and remedy. The real focus of Mississippi’s efforts appears to be aimed at having the adjacent neighborhood of 84 homes tested for vapor intrusion and to impose a remedy (likely sub-slab depressurization systems, passive sub-slab venting, or crawl space depressurization), which the State would otherwise have difficulties implementing. Therefore, it’s likely that the site will be listed on the NPL.

The Indiana Department of Environmental Management has used this same strategy to address several sites, including the Keystone Corridor Ground Water Contamination Site, in Indianapolis, Ind. See EPA Proposes Interim Actions for Vapor Intrusion (Mar. 2018), available here. There, the EPA has addressed vapor intrusion issues at eight industrial/commercial multi-tenant buildings, with another 44 residences and 44 industrial/commercial buildings to be evaluated for vapor intrusion.