Getting Tough on Vapor Intrusion: Enforcement for Failure to Mitigate

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As concerns have escalated about vapor intrusion, regulatory agencies are not only taking more conservative approaches to risk – they may also be more likely to take enforcement action where there is delay or non-compliance with vapor mitigation requirements.

On October 20, 2020, the Santa Ana Regional Water Quality Control Board (“Regional Board”) in California assessed an administrative penalty of $1,140,000 against a manufacturing company, Chem-Cal Engineering (“Chem-Cal”) for failing to implement vapor mitigation measures the Regional Board contends were required as an interim remedial action under a Cleanup and Abatement Order (“CAO”).[1] Although Chem-Cal submitted an interim remedial action plan, the Regional Board asserts compliance was neither adequate nor timely.[2]

The penalty represents a tough stance on vapor intrusion mitigation – and based on the California State Water Resources Control Board (“State Board”) press releases, appears to be the only enforcement action brought by any Regional Board over the last several years based on failure to comply with a CAO.[3]

To avoid penalties and minimize liabilities, parties subject to a CAO should take deadlines seriously and make good faith efforts to comply – particularly when vapor intrusion is occurring. Under penalty factors established by the State Board, any penalty assessed will be at least 10% higher than the cost of compliance.[4]

Parties who claim they are unable to pay for a Regional Board requirement should be prepared to support their position with specific information depending on whether the party is an individual, a business, a larger business, or a public agency.[5] For example, for a smaller business, the Regional Board may require three years of company tax returns, company financial audits, and the tax returns of principals in the business.[6]

Parties who wish to appeal a Regional Board’s action or failure to act should consult with legal counsel to discuss the costs and benefits – and to avoid missing any deadlines that would forfeit their right to file a petition with the State Board.

 

[1] Order R8-2020-046, Regional Board (Executed October 20, 2020)

[2] Id.

[3] https://www.waterboards.ca.gov/press_room/press_releases/

[4] Water Quality Enforcement Policy, State Water Resources Control Board (October 5, 2017) at 20.

[5] Administrative Civil Liability Complaint Fact Sheet, https://www.waterboards.ca.gov/santaana/water_issues/programs/investigations_enforcement/docs/ACLC_FACT_SHEET_3-30-09.pdf

[6] Id.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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