Your Vapor Wants Out: Managing Your Liability When Vapor Migrates
Vapor wants to move from where it is to where it isn’t. How it gets where it is going, and who it comes in contact with it along the way, affects the legal landscape. When vapor crosses a property boundary, it constitutes a “release or threatened release” of a pollutant or hazardous substance, actionable under federal and state environmental laws. But it also is a common law nuisance and a trespass. Depending on the compounds and concentrations within the vapor plume, liability exposure can be quite significant. And, like the migration of “conventional” pollutants through soil and water, vapor plumes expand the environmental risk profile of a site by expanding the area of impact and, potentially, the number of receptors. While vapor migration can pose actual health threats to exposed individuals, and explosive threats in confined spaces, even non-harmful levels of some compounds can create nuisance odors which present equally complicated legal problems for the responsible party, as well as for landlords managing their leaseholds. Vapor investigations are now a component of virtually every release involving VOC/SVOCs, and vapor intrusion as a source of exposure has hit the radar screen for plaintiffs’ lawyers across the country. Managing potential liability associated with vapor migration starts with the science of vapor generation and movement, but is just as tied into environmental risk assessment protocols. This session will discuss strategies for managing legal exposure associated with vapor migration.