environmental Strategist, between the lines:
Vapor intrusion is a major problem and to learn more about vapor intrusion just Google vapor intrusion or ASTM 2600.
My focus in the article below is not the at fault party but the impacted innocent third parties in the way of the contamination plume. The article talks about residences and business being impacted by vapor intrusion.
Let me point out this is not a limited situation because in the United States we have in excess of 450,000 known leaking underground storage tanks causing this exact same problem. How many tanks don’t we know about that are leaking?
What if the party/s causing the contamination does not have the financial ability to compensate impacted innocent third parties for clean up, property damage, bodily injury, business interruption, defense costs…? Environmental insurance can protect property owners if third parties contaminate their property. So even if a property owner foolishly thinks they do not have an environmental exposure simply ask them who their neighbors are. Keep in mind, in conducting a Phase I site assessment, they utilize a two mile radius search as a minimum to look for neighbors that can impact a subject property.
When you start to understand that if you own property you can be impacted by third party contamination, all of a sudden, spending fractions of a cent on the dollar to transfers the exposures to an insurance carrier looks to be a pretty good investment to protect what to many may be the largest investment a property owner makes in their life time.
Landlord Liable For NYSDEC Costs Responding to Vapors at Off-Site Properties
April 26th, 2013
A property owner was found liable under the New York Navigation Law for cleanup costs incurred by the New York State Department of Environmental Conservation (NYSDEC) responding to gasoline fumes that had migrated a quarter of a mile from the gas station. While the vast majority of the state’s costs were associated with the cleanup of soil and groundwater, it was the presence of the vapors that drew regulatory attention to this spill.
In State of New York v Slezak Petroleum Products, 947 N.Y.S. 2d 189 (App. Div-3rd Dept 2012), the defendant leased its property in Amsterdam, New York to a gas station operator. In October 2004, gasoline fumes were detected in a warehouse located approximately one quarter mile from the gas station. The NYSDEC conducted an investigation and determined that that the vapors from a gasoline spill had infiltrated nearby sewer lines and residences. After the USTs at the site failed a tightness test, the tanks were removed and holes were observed on the bottom. Further sampling confirmed the presence of extensive soil and groundwater contamination.
When the defendant declined to undertake further investigation for financial reasons, NYSDEC retained a contractor to implement response actions. The NYSDEC determined that the groundwater flowed from the gas station towards toward the warehouse and affected residences. In addition, the highest concentrations of contaminated groundwater were consistently found in the monitoring wells at and immediate downgradient from the gas station. The petroleum detected in monitoring wells at the affected residences revealed minimally weathered gasoline and MTBE.
After investigating other potential sources of the contamination, including two nearby gas stations, NYSDEC concluded that the defendant’s property was the source of the petroleum contamination causing the vapors at the warehouse and the affected residences. When the defendant again declined to take further action, NYSDEC implemented extensive remediation measures to remove the contamination at the gas station and mitigate the vapors at the affected business and residences.
DEC filed a cost recovery action pursuant to article 12 of the Navigation Law along with penalties. The trial court granted DEC’s partial summary judgment that the defendant was strictly liable for all cleanup and removal costs and prejudgment interest, and entered a judgment for $937,233.53.
The defendant appealed, arguing that there other discharges who had contributed to the contamination and that as a property owner who did not operate the gas station, it could not be held strictly liable as a discharger under the Navigation Law. The appellate court affirmed, noting that while liability for remediation costs cannot be premised solely on land or ownership of the tank system, owners who have “control over activities occurring on their property” and who had reason to believe that petroleum products were stored there could be liable as dischargers. The court then found it was it is undisputed that defendant was the owner of the contaminated site as well as the petroleum tanks and system from which the spill emanated, had control over the activities on and the use of its property, and was aware that petroleum products were stored in underground tanks and sold from its property. Because the defendant clearly had the “capacity to take action to prevent an oil spill or to clean up contamination resulting from a spill, the court said defendant was strictly liable as a discharger.