Court Rejects Environmental Consultant’s Third Party Claim Against Prior Owner/Occupants

by Stan Berger, Fogler Rubinoff

On March 22, 2018 the Ontario Superior Court of Justice in MVL Leasing Ltd. v CCI Group Inc. 2018 ONSC 1800 granted Rule 21 motions striking third party claims brought by an environmental consultant who was being sued by a purchaser of property for professional negligence and breach of contract. The lawsuit alleged that the plaintiff was led into closing the sale by the consultant’s Phase 1 and Phase 2 Environmental Site Assessments. The property turned out to be contaminated. The consultant in turn alleged that the contamination was caused by one or more businesses operated by the third parties. The consultant requested contribution indemnity from the third parties on 6 different grounds: nuisance, loss or damage caused by a spill pursuant to s.99 of Ontario’s Environmental Protection Act, the occupier’s duty under the Occupiers’ Liability Act to ensure the safety of persons entering upon the property, negligence, liability under the Negligence Act and unjust enrichment. The consultant argued that if found liable in the main action, it would have incurred pecuniary losses as a direct result of the spill, those damages being the plaintiff’s remediation costs and or the decrease in the property’s value.

Court’s Reasons for Rejecting the Third party Claims

The nuisance claim was rejected on the basis that the consultant did not own, occupy or possess the property, or any adjacent or nearby property impacted by the alleged contamination. The s.99 EPA claim was only available where the damages were directly caused by the spill and that was not the case. The occupier liability claim was rejected because the consultant suffered no damages as a result of entering the property in question. With respect to the negligence claim, the Court refused to impose a new duty of care upon the third parties. There was no proximity in the relationship between the consultant and the third parties. The potential economic harm to the consultant was not a reasonably foreseeable consequence of the alleged acts or omissions of the previous third party owners/occupiers. The Negligence Act claim was rejected on the basis that the consultant and the third parties did not meet the test under the Act of being concurrent tortfeasors for contribution and indemnity to be available. The plaintiff’s actual or potential causes of action against the consultant and the third parties were entirely different in nature. The damages allegedly caused by the third parties were different and discrete from those caused by the consultant. Finally, the unjust enrichment claim was rejected as the consultant had not pleaded any direct conferral of a benefit upon the third parties and the consultant had not suffered a corresponding detriment. If the consultant had incurred a detriment in the future by the plaintiff succeeding with its action, that detriment only related to the breach of contract and/or negligence of the consultant and the third parties were not parties to that relationship.

What can we take away from this Decision?

In order to sustain a third party claim against historic owners or occupiers of contaminated property, environmental consultants who are sued by a purchaser of contaminated property, will have to show that that the historic owners/occupiers were somehow responsible for or at least connected to the contractual breach or negligence which the purchaser alleges against the consultant.

This article was previously published by Fogler, Rubinoff LLP and can be found on the firm’s website.

About the Author

Stanley Berger is certified by the Law Society of Upper Canada as a specialist in Environmental Law.  He was called to the Ontario Bar in 1981.  He joined the law firm of Fogler Rubinoff in 2013.

 

SJC Clarifies Statute of Limitations for Contaminated Property Damage Claims but Raises Questions of Application

by Marc J. GoldsteinBeveridge & Diamond PC

Plaintiffs with property damage claims under the Massachusetts cleanup law have more time to bring their claim than might be expected under the three-year statute of limitations according to a recent ruling by the top Massachusetts court.  The Supreme Judicial Court ruled that the statute of limitations begins running when the plaintiff knows that there is damage to the property that is “permanent” and who is responsible for the damage, pointing to the phases of investigation and remediation in Massachusetts’ regulatory scheme as signposts for when a plaintiff should have that knowledge.  Grand Manor Condominium Assoc. v. City of Lowell, 478 Mass. 682 (2018).  However, the Court left considerable uncertainty about when the statute of limitations might begin for arguably more temporary property damages such as lost rent.

In this Google image, the Grand Manor condominium complex is visible at the center-right.

In this case, the City of Lowell owned property that it used first as a quarry and then as a landfill in the 1940s and 50s before selling the property in the 1980s to a developer.  The developer constructed a condominium project on the site and created a condominium association soon thereafter. As part of work to install a new drainage system in 2008, the contractor discovered discolored soil and debris in the ground.  Subsequent sampling indicated that the soil was contaminated and that a release of hazardous materials had occurred.  The condo association  investigated in early 2009, and MassDEP issued notices of responsibility to both the condo association as well as the city in May 2009.  The city assumed responsibility for the cleanup and worked the site through the state regulatory process known as the Massachusetts Contingency Plan (MCP).  In the city’s MCP Phase II and III reports in June 2012, it concluded that the contamination was from the city’s landfill operations, that it would not be feasible to clean up the contamination, and proposed a pavement cap and a deed restriction.

The condo association and many of its members filed suit in October 2012 for response costs under Chapter 21E, § 4 and damage to their property under G.L. c. 21E, § 5(a)(iii).  At trial, the jury awarded the plaintiffs response costs under Section 4 but found that the plaintiffs had failed to prove that their property damage claim was brought within the three-year statute of limitations for such claims under G.L. c. 21E, § 11A.  The Supreme Judicial Court took the case on direct appellate review.

Section 11A provides that an action to recover damage to real property “be commenced within three years after the date that the person seeking recovery first suffers the damage or within three years after the date the person seeking recovery of such damage discovers or reasonably should have discovered that the person against whom the action is being brought is a person liable…”  Quoting Taygeta Corp. v. Varian Assocs., Inc., 436 Mass. 217, 226 (2002), the Court summarized this as a requirement that the claim must be brought within three years of when plaintiff “discovers or reasonably should have discovered [1] the damage, and [2] the cause of the damage.”

The Court quickly agreed that “the damage” referred to in Section 11A was, for these purposes, the property damages of Section 5 and moved on to the plaintiffs’ contention that the limitations period should not run until they discovered or reasonably should have discovered that the damage was “permanent” or, in other words, not reasonably curable.  Until that time, they argued, they could not know if they had a property damage claim because the site could be fully remediated.

The Court examined the application of the statute of limitations in the context of the statutory scheme for investigating and remediating sites in Massachusetts.  The Court found that the primary purpose of Chapter 21E is to clean up environmental contamination and to ensure responsible parties pay for the costs of that cleanup.  As a result, the statute prioritizes “performance and financing of cleanup efforts, and then considers the calculation of property damage that cannot be cured by remediation and remediation cost recovery.”

In interpreting the statute of limitations, the Court crystalized the question as “whether the word ‘damage’ in § 11A(4) refers specifically to damage under § 5, that is, damage that cannot be cured and compensated by the cleanup and cleanup cost recovery processes defined by the MCP and §§ 4 and 4A, such that the limitations period does not begin to run until the plaintiff knows there is residual damage not subject to remediation and compensation.”  In order to have knowledge that a plaintiff has suffered damage that is not curable by the MCP remediation process, the MCP process must have run sufficiently to know that § 5 damages exist – that there is contamination that will not be addressed through remediation leaving the property at a diminished value.  Since the liable party is required to determine the extent of the damage in Phase II and evaluate available remedies in Phase III of the MCP, as the Court noted, “[i]t would make little sense to require the plaintiff to independently determine whether residual property damage exists prior to the completion of these reports.” As a result, the Court concluded that the statute of limitations did not start to run until the plaintiff became aware that the site would not be fully remediated in the Phase II and III reports in June 2012 months before they filed their lawsuit.  Exactly what constitutes full remediation remains to explored in further cases, as the range of outcomes from achieving background conditions, implementing deed restrictions, reaching temporary solutions, or even leaving just a few molecules of contamination left behind could impact this analysis.

The Court contended that this interpretation of the statute of limitations provides a “prescribed and predictable period of time” within which claims would be time barred, given that there are timetables associated with the production and submission of MCP Phase II and III reports.  Under normal circumstances, the Court expected that a plaintiff will know it has a claim within five years of notifying MassDEP of contamination.

Despite the Court’s pronouncement that it had provided predictability for these types of claims, the statute of limitations for non-permanent property damages, such as lost rental value, or for sites where there is a long-term temporary solution in place, remain uncertain.  Lawyers and clients evaluating how and when to bring claims for temporary and permanent damages will need to carefully evaluate a range of potential options in pursuing a preferred single case for property damage without unacceptable risk that an uncertain statute of limitation may have run.

The article was first published at the Beveridge & Diamond website.

Beveridge & Diamond’s Massachusetts office assists parties at all phases of contaminated sites, guiding clients through the MCP investigation and remediation process and prosecuting and defending claims in court for cost recovery and property damage.  For more information about this practice, contact Marc Goldstein or Jeanine Grachuk.

About the Author

Marc Goldstein helps clients resolve environmental and land use disputes and to develop residential, commercial, and industrial projects. He serves as the Managing Principal of Beveridge & Diamond’s Wellesley, Massachusetts office and the Chair of the firm’s Technology Committee.

Marc provides practical, cost-effective advice to clients with environmental contamination issues, whether those clients are cleaning up hazardous materials and seeking contribution from previous owners or adjacent landowners or facing claims under Chapter 21E or Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for their alleged role in contamination.

U.S. EPA’s Enforcement of the Lead-Based Paint Renovation, Repair and Painting Rule

By Dianne R Phillips, Holland & Knight

On March 28, 2018, the Office of the Inspector General (OIG) of the U.S. Environmental Protection Agency (EPA) issued a Project Notification indicating its plans to begin preliminary research to evaluate the EPA’s implementation and enforcement of the Lead-Based Paint Renovation, Repair and Painting Rule (RRP Rule). The RRP Rule, which is part of the federal Toxic Substances Control Act, is intended to ensure that owners and occupants of pre-1978 “target housing” and “child-occupied facilities” receive information on lead-based paint hazards before renovations begin, that individuals performing such renovations are properly trained and certified, and that renovators and workers follow specific lead-safe work practices during renovations to reduce the potential for exposure to lead. Although use of lead-based paint in dwellings was prohibited after 1978, EPA estimates it is still present in approximately 30 million homes across the United States. The RRP Rule is intended to protect children and others vulnerable to lead exposure due to the health effects associated with lead poisoning.

Enforcement of the RRP Rule, along with the other lead-based paint rules, has been a priority of EPA. For fiscal year ending 2017, according to EPA’s Oct. 27, 2017 press release from October 2016 through September 2017, EPA finalized 121 civil settlements for alleged violations of one or more of the three lead-based paint rules–the RRP Rule; the Lead Disclosure Rule; and the Lead-based Paint Activities Rule for abatements–and filed three complaints for ongoing actions. EPA and the U.S. Department of Justice also prosecuted one criminal case involving violations of lead paint laws and finalized two Clean Air Act settlements that included lead paint abatement projects in local communities. The OIG Project Notification indicates that the “objective for this project is to determine whether EPA has an effective strategy to implement and enforce the lead-based paint RRP.” Only time will tell what is meant by that.

____________________________

About the Author

Dianne R. Phillips is an attorney in Holland & Knight’s Boston office who concentrates her practice in litigation, regulatory, energy and environmental law. As former assistant general counsel for Suez LNG North America LLC (now known as Engie North America) and its wholly owned subsidiary, Distrigas of Massachusetts LLC, Ms. Phillips was involved in all aspects of regulatory compliance for the nation’s oldest, continuously operating liquefied natural gas (LNG) import terminal located in Everett, Mass., including safety and security. Her LNG experience includes advising clients with respect to specialized regulatory compliance under 49 C.F.R. Part 193 and NFPA 59A.

Job Opportunity: Coordinator of Emergency Planning, Toronto

Coordinator, Emergency Planning
Job Classification Title COORDINATOR EMERGENCY PLANNING PH
Job ID # 2300867 X
Division Public Health
Section Performance & Standards
Work Location 277 VICTORIA ST.
Job Stream Health
Job Type Permanent, Full-Time
Salary/Rate $94,421.60 – $110,929.00 / Year
Hours of Work (bi-weekly) 70.00
Shift Information Monday to Friday – 35 Hours
Affiliation Non-Union
Number of Positions Open 1
Posting Date 16-Apr-2018
Closing Date 30-Apr-2018
Job Description
 Major Responsibilities:

  • Develops and maintains components of the Toronto Public Health Emergency Plan and assigned emergency support functions, risk specific plans and other supporting documents, taking into consideration current developments within the programs, corporate policies and practices, legislation and initiatives by other levels of government.
  • Facilitates the promotion and implementation of a formalized risk management system and the setting of risk control measures and practices by operational areas through consistency in philosophical, policy and practical approaches across all risk frameworks.
  • Develops an annual risk management work plan, responds strategically to emerging business specific legislative, regulatory and policy changes by assessing the risk impacts on TPH processes and/or practices.
  • Ensures proper and consistent internal risk controls, system standards and policies and practices are maintained and that requirements are met.
  • Plans and delivers risk management training to Toronto Public Health staff.
  • Coordinates assigned projects, ensuring effective teamwork, communication practices and quality of work.
  • Participates on local, provincial and federal emergency planning committees/workgroups and maintains links with other key stakeholders in emergency planning, response and recovery activities.
  • Plan and delivers training to Toronto Public Health staff to ensure that they are prepared to respond to emergencies. Maintains a current database of training sessions attended by Toronto Public Health staff.
  • Participates with Toronto’s Office of Emergency Management to both develop and facilitate training for emergency responders, managers, supervisors and staff who may be called upon to assist and support the City in its response to an emergency, including city-wide emergency exercises.
  • Delivers presentations to internal and external audiences on emergency preparedness, response and recovery elements.
  • Develops materials and content for the Emergency Planning and Preparedness internet and intranet sites as communication vehicles to educate staff on emergency preparedness measures.
  • Identifies and develops business cases on logistical elements that are necessary for effective emergency response.
  • Prepares reports for Toronto Public Health and the Board of Health.
  • Conducts debriefings on major health events, drills and exercises and evaluates the response against the emergency plan.
  • Ensures work is undertaken in a manner that complies with and supports City compliance with the Ontario Occupational Health and Safety Act (OHSA), other relevant codes and regulations and City policies. The above reflects the general details considered necessary to perform the principle functions and shall not be construed as a detailed description of all the work requirements inherent in the job.

Key Qualifications:

  1. Recognized university degree preferably in Emergency Management, Environmental Health, or Nursing.
  2. Post-secondary education or the appropriate combination of skills and relevant experience in the field of risk management.
  3. Extensive experience in the development, implementation and evaluation of risk management methodologies and strategies.
  4. Experience in emergency planning; developing, implementing and evaluating emergency planning and preparedness programs.
  5. Experience in the development, implementation and evaluation of risk management methodologies and strategies.
  6. Experience leading and implementing change, including action planning to support the development and implementation of risk mitigation plans.
  7. Extensive experience in developing and delivering staff training.
  8. Familiar with all relevant legislation (Municipal/Provincial/Federal) relating to emergency management.
  9. Ability to establish, coordinate and maintain effective working relationships with internal and external partners including other levels of government, public and community agencies.
  10. Excellent analytical and organizational skills with the ability to work individually or in a multidisciplinary environment and meet deadlines.
  11. Effective written and oral communication skills, presentation and facilitation skills including clear language writing.
  12. Experience using a variety of computer applications including MSOffice, including Word, Excel and PowerPoint.
  13. Effective problem-solving and conflict management skills.
  14. Possession of a valid Class “G” Ontario Driver’s License and access to a vehicle.

Accommodation:  The City of Toronto is committed to fostering a positive and progressive workforce reflecting the citizens we serve. We provide equitable treatment and accommodation to ensure barrier-free employment in accordance with the Ontario Human Rights Code, Accessibility for Ontarians with Disabilities Act and the City of Toronto’s Accommodation Policy. You can request for accommodation related to the protected grounds at any stage of the City’s hiring process, i.e., application, assessment and placement.

If you are an individual with a disability and you need accommodation in applying for this position, please email us at application.accommodation1@toronto.ca, quoting the job ID #2300867 and the job classification title.

If you are invited to participate in the assessment process, we ask that you provide your accommodation needs in advance at that time. Please be advised that you may be requested to provide medical/other documentation to Human Resources to ensure that appropriate accommodation is provided to you throughout the hiring process.

To apply online, visit the Toronto website.

U.S. Environmental Industry generates $388 billion in revenues in 2017

The U.S. environmental industry generated revenues of $388 billion in 2017, up from $370 million in 2016, according to preliminary estimates by Environmental Business International Inc. (EBI), publisher of Environmental Business Journal (EBJ). The environmental industry’s annual growth rate of 4.8% in 2017 represents a steady increase from 3.6% in 2016 and 2.1% in 2015.

Every year, EBJ’s Annual Industry Overview presents estimates and forecasts for 13 business segments, in addition to offering perspective on how the environmental industry is responding to changing macroeconomic conditions and regulatory and policy trends. This year’s summary reviews conditions one year into the Trump Administration.

To purchase EBJ’s Annual Industry Overview and receive statistical summaries of the industry in 13 segments with multiple charts featuring revenues, growth, number of companies, forecasts, growth factors and revenue breakdowns by client, media and function, visit the EBI website.

Chemical and Biological Remediation Tetrachloroethene – Case Study

Tetrachloroethene is the systematic name for tetrachloroethylene, or perchloroethylene (“perc” or “PERC”), and many other names.  It is a manufactured chemical that is widely used in the dry-cleaning of fabrics, including clothes. It is also used for degreasing metal parts and in manufacturing other chemicals. Tetrachloroethene is found in consumer products, including some paint and spot removers, water repellents, brake and wood cleaners, glues, and suede protectors.

Tetrachloroethene is a common soil contaminant. With a specific gravity greater than 1, tetrachloroethylene will be present as a dense nonaqueous phase liquid(DNAPL) if sufficient quantities are released. Because of its mobility in groundwater, its toxicity at low levels, and its density (which causes it to sink below the water table), cleanup activities are more difficult than for oil spills (which has a specific gravity less than 1).

In the case study, researchers from Manchester Geomicro, a geo-microbiology and molecular environmental science research group affiliated with the University of Manchester, used combined chemical and microbiological contaminant degradation processes to remediate tetrachloroethene at a contaminated site in Germany.

In the study, the researchers used Carbo-Iron®, an applied composite material consisting of colloidal activated carbon and embedded nanoscale zero valent iron (ZVI). In a recent long term study of a field site in Germany, it was injected into an aquifer contaminated with tetrachloroethene (PCE). Carbo-Iron® particles accumulated the pollutants and promoted their reductive dechlorination via a combination of chemical and microbial degradation processes.

Schematic illustrating Carbo-Iron® particle structure and key chemical and microbial dechlorination pathways

The presence of the dominant degradation products ethene and ethane in monitoring wells over the duration of the study indicates the extended life-time of ZVI’s chemical activity in the composite particles. However, the identification of the partial dechlorination product cis-dichlorethene (cis-DCE) at depths between 12.5m and 25m below ground level one year into the study, suggested additional microbially mediated degradation processes were also involved.

Hydrogen produced by the aqueous corrosion of ZVI contributed to a decrease in the redox potential of the groundwater up to 190 days promoting organo-halide reducing conditions that lasted for months after. The long lasting reducing effect of Carbo-Iron® is crucial to efficiently supporting microbial dehalogenation, because growth and activity of these microbes occurs relatively slowly under environmental conditions. Detection of increased levels of cis-DCE in the presence of various organohalide reducing bacteria supported the hypothesis that Carbo-Iron® was able to support microbial dechlorination pathways. Despite the emergence of cis-DCE, it did not accumulate, pointing to the presence of an additional microbial degradation step.

The results of state-of-the-art compound specific isotope analysis in combination with pyrosequencing suggested the oxidative degradation of cis-DCE by microorganism related to Polaromonas sp. Strain JS666. Consequently, the formation of carcinogenic degradation intermediate vinyl chloride was avoided due to the sequential reduction and oxidation processes. Overall, the moderate and slow change of environmental conditions mediated by Carbo-Iron® not only supported organohalide-respiring bacteria, but also created the basis for a subsequent microbial oxidation step.

This study, published in Science of the Total Environment (Vogel et al. 2018, vol. 628-629, 1027-1036) illustrates how microbes and nanomaterials can work in combination for targeted remediation. The work was led by collaborators (Katrin Mackenzie and Maria Vogel) at the Helmholtz Centre for Environmental Research in Leipzig, Germany, and adds to a growing portfolio of research highlighting the potential of Carbo-Iron® as an in situ treatment for contaminated groundwater.

 

Guideline for the Management of Sites Contaminated with Light Non-Aqueous Phase Liquids

Light Non-Aqueous Phase Liquid (LNAPL) Management is the process of LNAPL site assessment, monitoring, LNAPL Conceptual Site Model development, identification and validation of relevant LNAPL concerns, and the possible application of remediation technologies. The presence of LNAPL can create challenges at any site.  Examples of LNAPLs include gasoline, diesel fuel, and petroleum oil.

In 2009, the United States Interstate Technology and Regulatory Council (ITRC) published LNAPL-1: Evaluating Natural Source Zone Depletion at Sites with LNAPL (ITRC 2009b) and LNAPL-2: Evaluating LNAPL Remedial Technologies for Achieving Project Goals (ITRC 2009a) to aid in the understanding, cleanup, and management of LNAPL at thousands of sites with varied uses and complexities. These documents have been effective in assisting implementing agencies, responsible parties, and other practitioners to identify concerns, discriminate between LNAPL composition and saturation-based goals, to screen remedial technologies efficiently, to better define metrics and endpoints for removal of LNAPL to the “maximum extent practicable,” and to move sites toward an acceptable resolution and eventual case closure.

This guidance, LNAPL-3: LNAPL Site Management: LCSM Evolution, Decision Process, and Remedial Technologies, builds upon and supersedes both previous ITRC LNAPL guidance documents in an updated, web-based format. LNAPL-1 and LNAPL-2 are still available for review; however, LNAPL-3 is inclusive of those materials with new topics presented and previous topics elaborated upon and further clarified.

This guidance can be used for any LNAPL site regardless of size and site use and provides a systematic framework to:

  • develop a comprehensive LNAPL Conceptual Site Model (LCSM) for the purpose of identifying specific LNAPL concerns;
  • establish appropriate LNAPL remedial goals and specific, measurable, attainable, relevant, and timely (SMART) objectives for identified LNAPL concerns that may warrant remedial consideration;
  • inform stakeholders of the applicability and capability of various LNAPL remedial technologies
  • select remedial technologies that will best achieve the LNAPL remedial goals for a site, in the context of the identified LNAPL concerns and conditions;
  • describe the process for transitioning between LNAPL strategies or technologies as the site moves through investigation, cleanup, and beyond; and
  • evaluate the implemented remedial technologies to measure progress toward an identified technology specific endpoint.

Initial development and continued refinement of the LCSM is important to the identification and ultimate abatement of site-specific LNAPL concerns. Figure 1-1 identifies the stepwise evolution of the LCSM, the specific purpose of each LCSM phase, and the tools presented within this guidance to aid in the development of the LCSM. As depicted, the LCSM is the driving force for identifying actions to bring an LNAPL site to regulatory closure.

LNAPL remediation process and evolution of the LNAPL conceptual site model (LCSM).

This guidance document is organized into sections that lead you through the LNAPL site management process:

  • Section 2 – LNAPL Regulatory Context, Challenges, and Outreach
    Section 2 identifies some of the challenges implementing agencies face when investigating, evaluating, or remediating LNAPL sites. These challenges include regulatory or guidance constraints, a lack of familiarity or understanding of LNAPL issues, and poorly or undefined objectives and strategies. This section also stresses the importance of identifying and communicating with stakeholders early in the process in order to address issues or concerns that can lead to delays or changes in strategy. Understanding and recognizing these challenges and concerns during development of a comprehensive LCSM can help reduce costs and lead to a more effective and efficient resolution at an LNAPL site.
  • Section 3 – Key LNAPL Concepts
    Section 3 provides an overview of key LNAPL terminology and concepts including LNAPL behavior following a release to the subsurface (i.e., how LNAPL spreads away from the primary release point, its behavior above and below the water table, and how its migration eventually stops and naturally depletes). An understanding of these basic terms and concepts is crucial for developing a comprehensive LCSM and an effective LNAPL management plan.
  • Section 4 – LNAPL Conceptual Site Model (LCSM)
    The LCSM is a component of the overall conceptual site model (CSM), and emphasizes the concern source (i.e., the LNAPL) of the CSM. The presence of LNAPL necessitates an additional level of site understanding. The unique elements of the LCSM are presented as a series of questions for the user to answer to help build their site-specific LCSM. Ultimately, a thoroughly-developed, initial LCSM provides the basis for identifying the LNAPL concerns associated with an LNAPL release.
  • Section 5 – LNAPL Concerns, Remedial Goals, Remediation Objectives, and Remedial Technology Groups
    Section 5 describes the decision process for identifying LNAPL concerns, verifying concerns through the application of threshold metrics, establishing LNAPL remedial goals, and determining LNAPL remediation objectives. This section also introduces remedial technology groups, the concept of a treatment train approach, and how to transition between technologies to address the identified LNAPL concern(s) systematically and effectively. It is important to understand the content of this section prior to selecting and implementing an LNAPL remedial strategy.
  • Section 6 – LNAPL Remedial Technology Selection
    Section 6 describes the remedial technology screening, selection, and performance monitoring process. This section begins by identifying technologies recognized as effective for mitigating specific LNAPL concerns and achieving site-specific LNAPL remediation objectives based on the collective experience of the LNAPL Update Team. The LNAPL Technologies Appendix summarizes each of the technologies in detail and presents a systematic framework to aid the user in screening out technologies that are unlikely to be effective, ultimately leading to selection of the most appropriate technology(ies) to address the specific LNAPL concerns.

This guidance also includes relevant, state-of-the-science appendices for more detailed information on LNAPL specific topics:

  • LNAPL Technologies Appendix 
    This appendix describes in more detail each of the 21 LNAPL technologies introduced in the main document. The A-series tables describe information to evaluate the potential effectiveness of each technology for achieving LNAPL goals under site-specific conditions. Information includes the basic remediation process of each technology, the applicability of each technology to specific remedial goals, and technology-specific geologic screening factors. The B-series tables describe information to evaluate the potential implementability of each technology considering the most common site-specific factors. The C-series tables describe the minimum data requirements to make a final technology selection through bench-scale, pilot, and/or full-scale testing; they also describe metrics for tracking remedial technology performance and progress.
  • Natural Source Zone Depletion (NSZD) Appendix
    This appendix provides a technical overview of NSZD for LNAPL and the methods by which rates can be estimated and measured. It also provides a discussion of long-term LNAPL site management and how NSZD can be applied as a remedy including decision charts to support integration of NSZD and case studies demonstrating its use. For this document, the original ITRC NSZD document (ITRC LNAPL-1) was updated and incorporated into the main body and appendix.
  • Transmissivity (Tn) Appendix
    LNAPL transmissivity has application throughout the life cycle of a LNAPL project. This appendix provides an understanding of how transmissivity connects to the broader framework for LNAPL management including LNAPL recovery and mobility, and the potential for NSZD to decrease LNAPL transmissivity and mobility over time.
  • Fractured Rock Appendix
    This appendix describes the behavior and differences of how LNAPL behaves in fractured bedrock formations. While some of the same physical principles apply for multiphase flow in fractured aquifers as in porous aquifers, unique characteristics of finite and restricted fluid flow paths can lead to unexpected results in fractured settings.
  • LNAPL Sheens Appendix
    This appendix details how LNAPL sheens form, the concerns and challenges of sheens, and potential sheen mitigation technologies.

LNAPL Contamination of the Subsurface