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    LSchnapf
    Texas Case Shows Dangers of the Adjacent HREC
    Entry posted August 29, 2011 by LSchnapfElite Contributor , last edited January 19, 2012
    876 Views, 3 Comments
    Title:
    Texas Case Shows Dangers of the Adjacent HREC
    Entry:

    The ASTM Task Force responsible for the E1527 Phase 1 Standard is currently considering changes to the HREC identification process. There is tension within the E1527 task force as to what is an HREC and what level of information does the EP have to develop to characterize a former REC as an HREC.

    Many consultants do not understand this term or use differing approaches for determining if a former REC can now be considered an HREC. Some EPs identify former releases that have been remediated to satisfaction of a regulator as an HREC. Others will identify a former REC as an HREC where residual contamination remains but the site has properly implemented  post-remedial institutional and engineering controls. Some EPS take the position that only "clean closure" sites may be an HREC while a narrower universe believe once a REC always a REC. 

    A recent texas state case illustrates the dangers of not properly evaluating an HREC. In E-Z Mart Stores, Inc v Ronald Holland's A-Plus Transmission & Automotive, 2011 Tex. App. LEXIS 6000 (Ct. App. 8/3/11), E-Z Mart had purchased a site from Mapco in 1989 with an open spill. E-Z Mart remediated site and obtained NFA in 1998.

    Meanwhile, Holland A-Plus Transmissions which owned property adjacent to the E-Z Mart site, entered into lease agreement with a cell phone provider to build and lease a cell tower. During drilling for tower, an explosion occurred due to gasoline vapors. The cell company subsequently terminated its lease and Holland was unable to loan for business expansion. Holland discovers benzene 8 times acceptable levels and sues E-Z Mart gas station. 

    A series of complex lawsuits followed that resulted in jury trials.  A jury awarded Holland $550K in damages on nuisance and negligence grounds. E-Z Mart appealed. After a series of rulings, the appeals court affirmed the jury verdict in favor of Holland but ruled that the trial court had erred when it refused to allow E-Z Mart to introduce evidence of Mapco's liability.

    It is unclear what level of diligence was done prior to the construction for the cell tower. Presumably, the parties believed that the Holland site could not have been impacted by the E-Z Mart site because of the NFA letter. In is unclear if a file review would have produced any evidence to suggest that the levels left behind at the E-Z Mart site could pose a risk to the Holland property. It may be that the contamination was missed during the UST remediation.

    Since the late 1990s, the conventional wisdom is that petroleum contamination biodegrades and therefore does not pose a significant risk of vapor intrusion. This is another example of how that common perception may be wrong particularly in urban areas where underground conduits may serve as preferential pathways and significant pavement can reduce the amount of oxygen available for biodegradation.  

    Keywords:
    risk-based cleanups, petroleum, vapor intrusion, diligence, HREC, REC

    Comment

     

    • kevin

      What was the depth to groundwater  and does EZ Mart use the site as a gasoline station?   

    • LSchnapf

       I believe the gw was fairly shallow and the E-Z Mart is a gas station though it was configured differently than the former gas station.

      I understand this case may also reflect the regulatory approach followed in texas involving what needs to be done to obtain an NFA--or so I am told by consultants from that state.

    • Matt Fox

      This case illustrates one of the inherent limitations of REC definition.  The definition does not take into account the planned use of the site or the purpose for which the Phase I is being done.  A REC is a REC, it doesn't matter if the subject site is a parking lot or a day care center.  It doesn't matter if our client intends to operate the property as an industrial facility forever, or if they plan on redeveloping the site into residential use.  ASTM more or less requires us to treat each the same when it comes to identifying RECs, although we do have some leeway when it comes to our recommendations.  

      Makes me wonder if the definition of a REC should be updated to include the purpose of the assessment.  Then we could say things like "Based on the planned use of the site as a paved parking lot, the adjacent release site is not a REC.".  Or "Based on the plans to construct a cell tower on the site, the adjacent release site is a REC."

      By the way, not that it matters in this case, but he cell tower company would have done their own Phase I prior to construction.  I'm surprised they didn't identify the adjacent release as a concern (REC or not) and require a Phase II before starting construction on the tower.  The Phase I company probably go an earful from the cell tower company.