vapor intrusion: liabilities and litigation trends

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Vapor Intrusion: Liabilities and Litigation Trends Compliance and Defense Strategies Amid Heightened

Government Scrutinypresents

Today's panel features:

Cynthia J. Bishop, Partner, Gardere, Dallas

Christopher M. Roe, Partner, Fox Rothschild, Exton, Pa.

Jeffrey M. Judd, Partner, Howrey, San Francisco, Calif.

Thursday, April 23, 2009

The conference begins at:1 pm Eastern12 pm Central

11 am Mountain10 am Pacific

The audio portion of this conference will be accessible by telephone only. Please refer to the dial in instructions emailed to registrants to access the audio portion of the conference.

A Live 90-Minute Audio Conference with Interactive Q&A

Vapor Intrusion andEnvironmental

Litigation

Cindy Bishop

Gardere Wynne Sewell, LLPDallas, Texas

www.gardere.com

April 23, 20091

Consequences of VI

• Diminution in Value

• Breach of Lease

• Loan Default• Loan Default

• “Closed” sites re-opened

2

Overview

• Causes of Action

• Potential Claimants

• Damages• Damages

• Defenses

• Useful Resources

3

Potential Causes of Action againstProperty Owners and PRPs

• RCRA

– Contributing to the past or present handling of solidor hazardous waste that may present an imminentand substantial endangerment

• CERCLA

– Vapors Could be a “Release of a HazardousSubstance”

– Must cause the incurrence of response costs –Amoco Oil Co. v. Borden, Inc., 889 F.2d 664,667 (5th

Cir. 1989)

• OSHA

4

• State cost recovery action

• Negligence

– Duty


– Duty

– Breach

– Injury

– Causation

5

• Trespass

– Intentional physical entry onto the property ofanother

• Public Nuisance

– Unreasonable interference with a right


– Unreasonable interference with a rightcommon to the general public

• Private Nuisance

– Interference with use and enjoyment ofproperty

– Nuisance per se

6

Potential Claimants

• Federal government

• State government

• Local government

• Private parties– Tenants/Neighbors/Lenders

• Citizen suits

7

Damages

• Mitigation/Injunctive Relief

• Cost Recovery

• Diminution in Value• Diminution in Value

• Lost Rent

• Stigma

• Attorneys’ Fees

• Exemplary Damages

8

DefensesA. No cause of action

1. Taco Cabana, Inc. v. Exxon Corp., 5 S.W.3d 773, 780 (Tex. App.– San Antonio 1999) – no actionable level of contamination

2. Finestone v. Florida Power & Light, Co., 2006 WL 267330 (S.D.Fla. 2006) – no duty

3. Iberville Parish Waterworks v. Novartis Crop Protection, 45 F.Supp.2d 934, 936 (S.D. Ala. 1999) – no injurySupp.2d 934, 936 (S.D. Ala. 1999) – no injury

4. Adams v. A.J. Ballard, Jr. Tire & Oil Co., Inc., 2006 WL 1875965(N.C. Super 2006) – no injury

5. In re MTBE Products Liability Litigation, 458 F. Supp.2d 149, 151-52 (S.D.N.Y. 2006) – possible injury although below MCL

B. Permit Shield Defense

1. Federal litigation (RCRA/CERCLA)

2. State litigation

a. Nuisance per se

9

• Statute of Limitations

– When does the cause of action accrue?

– Temporary versus permanent injury

– Does discovery of vapor intrusion

Defenses

– Does discovery of vapor intrusiontrigger a new cause of action?

– Is vapor intrusion inherentlyundiscoverable?

– Constructive Notice

10

• Lack of Causation/AlternateSource(s)

• Standing

Defenses

• Standing

– Lenders

– Insurers

• Venue

• Notice

11

ResourcesA. EPA OSWER Draft Guidance for Evaluation the Vapor Intrusion

Pathway (11/02):http://www.epa.gov/osw/hazard/correctiveaction/eis/vapor.htm

B. EPA Brownfields redevelopment vapor intrusion primer:http://www.brownfieldstsc.org/newPublications.cfm?tabS=2

C. EPA Region 6 screening levels:http://www.epa.gov/earth1r6/6pd/rcra_c/pd-n/screen.htmhttp://www.epa.gov/earth1r6/6pd/rcra_c/pd-n/screen.htm

D. State Coalition for Remediation of Drycleaners “Approach to VaporIntrusion at Contaminated Dry Cleaner Sites”:http://www.drycleancoalition.org/pubs.cfm

E. Interstate Technology Regulatory Council (ITRC) vapor intrusionresources page: http://www.itrcweb.org/teamresources_49.asp

F. New York DOH Guidance for Evaluating Soil Vapor Intrusion in NewYork (10/06):http://www.health.state.ny.us/environmental/investigations/soil_gas/svi_guidance/

12

Gardere Wynne Sewell LLPCindy Bishop

1601 Elm St., Suite 3000Dallas, Texas 75201Dallas, Texas 75201

Phone: 214.999.4506 Fax: [email protected]

13

Vapor Intrusion: Toxic TortsJeffrey M. Judd

Partner

525 Market Street, 36th Floor

San Francisco, CA 94105

415-848-3221 (direct)

[email protected]

2

“Environmental” vs. “Toxic Torts” Litigation“Environmental” vs. “Toxic Torts” Litigation

Environmental litigation addresses the legal effect of contamination on soil, water, air, and plant and animal resources

Toxic Tort litigation addresses the legal effect of environmental contamination on humans

3

Contamination of soil or

groundwater

Environmental Action (Assessment, remediation, closure)

Intervening Event (migration,

redevelopment)

Vapor Intrusion

Regulatory action

Anatomy of a Toxic Tort ActionAnatomy of a Toxic Tort Action

AG Action Toxic Tort

4

Common Threads Between Environmental Common Threads Between Environmental and Toxic Tort Suitsand Toxic Tort SuitsCauses of action

NegligenceTrespassNuisanceStrict Liability

Damages/Claims for ReliefCompensatory DamagesPunitive/Exemplary DamagesInjunction/mitigationDiminution/Stigma

Defenses – Statute of limitations

5

Toxic Tort Causes of ActionToxic Tort Causes of ActionNegligence

Duty to take reasonable precautions to avoid injury to another

Breach of duty

Injury

Proximate/Actual Causation

Effect of safety statute/regulation – negligence per se

6

Toxic Tort Causes of ActionToxic Tort Causes of ActionNuisance

Invasion of private use and enjoyment of landIntentional and unreasonable orNegligent or reckless orActionable under rules governing liability for abnormally dangerous conditions or activites (i.e., strict liability)

If a trespass is found, damages will be awardedNominalCompensatoryPunitive/exemplary

7

Toxic Tort Causes of ActionToxic Tort Causes of ActionTrespass

Causing a thing or substance to go on or contaminate property

Without justification or permission

With intent to act so as to cause invasion

If a trespass is found, damages will be awardedNominal

Compensatory

Punitive/exemplary

8

Toxic Tort Causes of Action Toxic Tort Causes of Action –– Statutory Statutory CausesCausesRCRA Injunctive Relief (42 U.S.C. 6972(a)(1)(B)

Past/present generator, transporter, TSD owner/operatorHas contributed/is contributing to (i.e., active, not passive)Past/present handling, storage, treatment, transport, disposalOf any solid or hazardous waste thatMay present an imminent and substantial endangerment to health or the environment

See, e.g., Interfaith Comm’ty Org. v. Honeywell Int’l, Inc., 188 F. Supp. 2d at 503 (D.N.J. 2002) (actual harm not required, that substantial endangerment may exist is sufficient)Meghrig v. KFC Western, Inc., 516 U.S. 557 (1992) (imminence “implies that there must be a threat which is present now, although the impact of the threat may not be felt until later”

9

Toxic Tort Causes of Action Toxic Tort Causes of Action –– Statutory Statutory CausesCausesCERCLA section 107(a) (42 U.S.C. sec. 9607(a))

Property is a CERCLA “facility”

“release” of a “hazardous substance”

Defendant is a PRP/“covered person”

Plaintiff seeks “costs of response”

Plaintiff is not a liable under CERCLA

10

Examples of Toxic Tort VI CasesExamples of Toxic Tort VI CasesBelmont High School (Belmont Learning Center), Los Angeles Unified School DistrictEndicott, NY – Blaine, et al. v. IBMGreenpoint, Brooklyn, NY (see www.epa.gov/region02/superfund/npl/newtowncreek/ne wtowncreek_review.pdf)Montgomery County, PA – Ball v. Bayard Pump & Tank Co., Penn. Court of Common Please No. 95-6438 (jury trial verdict)Ft. Edwards, NY – Aiken, et al. v. General Electric Co., No. 505023, Memo and Order (3d Dept, Supreme Court Appellate Division, December 4 2008).

http://www.epa.gov/region02/superfund/npl/newtowncreek/newtowncreek_review.pdf

http://www.epa.gov/region02/superfund/npl/newtowncreek/newtowncreek_review.pdf

11

Toxic Tort ClaimsToxic Tort ClaimsWhy not a class action?Medical monitoring claimsEmotional distress (“cancerphobia”)Causation IssuesInjury IssuesExpansive roster of potential claimants

EmployeesTenantsContractorsHOAs

12

Toxic Tort ClaimsToxic Tort ClaimsPotential defendants include

Developers

Builders

Up-gradient owners, operators, generators

TSD operators

Remediation contractors

13

Plaintiffs’ Strategic ConsiderationsPlaintiffs’ Strategic ConsiderationsJurisdiction/Venue

Judge/jury considerations

Applicable law

Federal ancillary jurisdiction over state law claims

Availability of damagesLimitations on damages

Coat-tailing/enlisting regulatorsAG actions – the New York experience

EPA orders

14

Defendants’ Strategic ConsiderationsDefendants’ Strategic ConsiderationsRemoval under CAFA mass action provisions (28 U.S.C. sec. 1332(d))

100 or more plaintiffs

Common questions of law or fact between the plaintiffs’ claims

“Minimal diversity” (at least one P is diverse from one D)

Aggregated claims greater than $5 million

At least one plaintiff’s claim exceeds $75,000

Case removable w/I 30 days after basis for removal determined (no 1-year deadline applies)

Abrego Abrego v. Dow Chemical Co., 443 F.3d 676 (9th Cir. 2006); Lowery v. Alabama Power Co., 483 F.3d 1184 (11th Cir. 2007)

15

Defendants’ Strategic ConsiderationsDefendants’ Strategic ConsiderationsAvoiding a toxic tort action

Prompt assessment and cleanup

Minimizing anxietyHiring owners’ experts

The IBM mitigation offer

Managing public disclosure—the crisis management model

Indoor air testing issues

Modeling

Mitigation/prophylactic measures

Cooperation with governing agencies

16

Defendants’ Strategic ConsiderationsDefendants’ Strategic ConsiderationsThe expert case

Daubert & Frye considerations

Causation and injury issues

StandardsOccupational exposures and PELs

EPA risk assessments – the TCE saga

Conflict and uncertainty

“Safe-unsafe” vs. Relative Risk

17

Contact InformationContact InformationJeffrey M. JuddHowrey LLP525 Market Street, 36th FloorSan Francisco, CA 94105

Direct dial: 415-848-3221

Email: [email protected]

Link to bio: http://www.howrey.com/juddj/

Vapor Intrusion: Liabilities & Litigation Trends© 2009 Fox Rothschild

Vapor Intrusion: Liabilities and Litigation Trends

Evaluating and Managing Vapor Intrusion Risk in Buying, Selling and

Developing Real Estate

Christopher M. Roe, EsquireApril 23, 2009


2

Overview

What is Vapor Intrusion?Where does VI Arise in Regulatory Framework? Why Does it Matter- Liability- Value- Risk Management


3

Overview (cont.)

VI in Due Diligence:Practical Approach to VI in Due DiligenceASTM Standard for VI in Site Assessment: E 2600-08 - Status- Flaws of the Existing Standard- Proposed Revisions


4

What Is Vapor Intrusion

IndoorAir

Soil Gas

Soil and/orGroundwater

Contamination

The migration of volatile chemicals from the subsurface into overlying buildings (USEPA 2002a) (Image from ITRC)


5

What is Vapor Intrusion

INSERT – need from Chris


6

What Is Vapor Intrusion?


7

Where Does VI Arise In Regulatory Framework?

Federal and State Clean-up LawsFederal and State Hazardous Waste and Tank LawsVarious State (26 and counting) and Federal GuidelinesSpecific State Laws, California, e.g.Proposed Specific Federal Law?


8

Where Does VI Arise In Regulatory Framework?

Conflicting GuidanceEvolving StandardsInherent Uncertainty


9

Why Does VI Matter in a Deal? Liability

For additional clean-up- Where remediation has not yet been

deemed complete- Where remediation has been deemed

completeFor potential fixes/mitigationFor loss of use or valueFor personal injury


10

Why Does VI Matter in a Deal? Liability

Re-opener Example Language:

CERCLA Model Consent Decree:(1) conditions at the Site, previously unknown, are discovered, or (2) information, previously unknown to EPA, is receivedAND EPA determines the remedy is not protective of human health and the environment

Pennsylvania Act 2:(4) the level of risk is increased beyond the acceptable risk range at a site due to substantial changes in exposure conditions, or new information is obtained which revises exposure assumptions beyond the acceptable range.


11

Why Does VI Matter in a Deal? Loss of Value

Restrictions on highest and best useStigma in attracting usesCost of fixesMarketing obstaclesSale price or conditions


12

Why Does VI Matter in a Deal?

Perception:- Front page re site with clean shallow groundwater,

TCE at 200 ft bgs:WILL YOUR KID BE AN HONOR STUDENT AT

SUPERFUND ELEMENTARY?- ITRC Practical Guide: ‘‘Degradation of indoor air

quality causes more apprehension and anxiety among building occupants than are typically associated with other environmental problems.’’


13

Why Does VI Matter in a Deal? Risk Management

In Deed Restrictions/CovenantsIn Offering Documents, Leases and Sales Agreements- Notices- Releases/Waivers- Indemnities- Covenants


14

Practical Approach to VI

All Appropriate Inquiries and E 1527-05 have been developed to allow someone who buys property to take the first step to qualify for a landowner liability defenseInnocent landowner, contiguous property owner, or bona fide prospective purchaser defenses


15

Practical Approach to VIAll Appropriate Inquiries are intended to result in the identification of conditions indicative of releases and threatened releases of hazardous substances on, at, in or to the subject property. [Emphasis added.] 40 CFR § 312.20(e) “Objectives”E 1527-05 is intended to satisfy AAI, Section 1.1The goal of the processes established in 1527-05 is to identify recognized environmental conditions. E 1527-05, Section 1.1.1


16

Practical Approach to VI Recognized Environmental Condition means“the presence or likely presence of any hazardous substances or petroleum products on a property under conditions that indicate a . . . release . . . into structures on the property or into ground, ground water, or surface water of the property.” [Emphasis added.]

E 1527-05, Section 1.1.1.


17

Practical Approach to VIThe presence or likely presence of contaminants in groundwater is determined by the environmental professional exercising professional judgmentThe presence or likely presence of volatile contaminants (COCs, as defined in E 2600) in soil gas or groundwater is determined by the environmental professional exercising professional judgment


18


Vapor intrusion assessment includes risk assessment analysis and otherwise requires a level of information and analysis not typically available and possible in a E 1527-05 Phase IAll appropriate inquiry is not an exhaustive assessment. E 1527-05, 4.5.2.


19


The presence or likely presence of volatile contaminants can and should be identified in Phase IVapor intrusion assessment is likely a Phase II inquiry


20

ASTM VI Standard E 2600-08

ASTM E 2600-08 sets out to state a standard for conducting a vapor intrusion assessment at real property in a transaction on the basis of screening level information It is not part of E 1527-05Not All Appropriate Inquiry


21

ASTM E 2600-08

Blunt Instrument for a Sensitive, Complex Problem Easy for Consultants to Apply Conclusions May Not Be Scientifically Supportable


22

STATUS OF E 2600-08Issued as a final Standard Practice in March 2008.Substantial Revision balloted for vote within ASTM Subcommittee E 50.02 on April 10, 2009.E 2600-08 is still being marketed and sold by ASTM.Task Group Leader indicated goal of new version of E 2600 by end of 2009.


23

Rationale for E 2600-08Stated Justifications for Developing the Standard:- No Clear Way to Deal with VI in Deal Environmental

Site Assessments- Supposed Lack of Clarity Regarding Whether Vapor

Intrusion is Part of Standard Phase I under ASTM’s E 1527-05 and AAI

- Liability Concerns for:Environmental Professionals

- Business Risks and Liabilities for:Seller/Buyer/Lenders/Insurers


24

Rationale for E 2600-08

Lack of Clarity:- REC Means Presence or Likely Presence of

Release into Structures on the Property- Indoor Air Quality Identified as Non-Scope

Consideration


25


Key Terms/Concepts:- Potential Vapor Intrusion

Conditionpotential or likely presence of chemical of concern in indoor air of existing or planned structures caused by vapor from contaminated soil or groundwater on or within close proximity to the property, at concentration that presents or may present unacceptable health risk.


26


Key Terms/ Concepts:pVICs are presumed if source of volatile contaminants exists within search distances (up to a mile up-gradient) and there is insufficient information to rule it out.


27

Potential Implications of Standard

Burdening of property/owner with potential riskWhere pVIC or VIC Identified, Potential Loss of DefenseUncertainty that a Phase I ESA is Sufficient- To establish AAI- To establish commercially reasonable conduct

Greater Time and Expense that May Not Be Justified


28

Changes in Proposed RevisionVapor Intrusion Screen, not Vapor Intrusion AssessmentVapor Encroachment Condition, not Vapor IntrusionCondition “Good Commercial Practice,” not “Good Commercial and Customary Practice” (from CERCLA, AAI)Deletion of Secondary Area of Concern (Phase I distances)E2600 is no longer a means to identify a Recognized Environmental Condition


29

Remaining ProblemsRemains a Standard Practice rather than becoming a Standard GuidePresumptions remain for releases within distancesStill attempts to define “good commercial practice” and an “industry standard” on too little and misapplied science Relationship to E1527-05 and all appropriate inquiry remains unclear


30

Contact Information

Christopher M. Roe, Esquire610.458.4987

[email protected]

Reproduced with permission from Environment Re-porter, Vol. 39, No. 21, 05/23/2008. Copyright � 2008by The Bureau of National Affairs, Inc. (800-372-1033)http://www.bna.com

VA P O R I N T R U S I O N

Recent increased attention to the migration of volatile chemicals from subsurface soil or

groundwater contamination into buildings has raised concern about the evaluation of vapor

intrusion in the process of buying and selling real property. In response, ASTM Internation-

al’s Subcommittee on Real Estate Assessment and Management developed a standard prac-

tice, released March 3, to be used as a tool to evaluate vapor intrusion in that context. The

author of this article is the sole member of subcommittee E 50.02 whose negative vote was

not withdrawn after the final ballot in December 2007. In this article, he explains how this

standard undermines ASTM Phase I standard E 1527-05 on all appropriate inquiries and di-

rects environmental professionals to speculate about unacceptable risks in indoor air of in-

habited buildings.

New ASTM Standard for Assessment of Vapor Intrusion: More Harm Than Good?

BY CHRISTOPHER M. ROE

V apor intrusion is the migration of volatile chemi-cals from subsurface soil or groundwater contami-nation into overlying buildings. The chemicals

volatilize from the impacted soil or groundwater andmigrate as soil gas through pore spaces in soil towardareas of lower pressure and chemical concentration(usually toward the surface). The soil gas can enterbuildings through cracks in foundations and utility con-duits. The chemicals that enter a building have the op-portunity to accumulate and cause human exposures toa degree they would not if dispersed in open, ambientair.

At least three things are true about the potential forvolatile contaminants to migrate into buildings as va-pors (vapor intrusion):

1. Vapor intrusion is subject to growing scrutiny.2. Vapor intrusion determinations are complex and

are not made easily.3. Vapor intrusion determinations inherently are

high stakes because they are determinations aboutunacceptable health risks in the breathing air ofbuilding inhabitants.

With these truths as backdrop, ASTM International,through its Committee E50 and Subcommittee E50.02,set out to develop a tool for evaluating vapor intrusion

COPYRIGHT � 2008 BY THE BUREAU OF NATIONAL AFFAIRS, INC. ISSN 0013-9211

A

ENVIRONMENTREPORTER

BNA, INC.

issues in the context of the purchase and sale of real es-tate. The result is E 2600-08, Standard Practice for As-sessment of Vapor Intrusion into Structures on Prop-erty Involved in Real Estate Transactions (VI StandardPractice). Unfortunately, the VI Standard Practice doesnot adequately take into account items two and threeabove.

Moreover, in issuing this VI Standard Practice, Com-mittee E50 decided it needed to ‘‘clarify’’ its own Stan-dard Practice for Environmental Assessments: Phase IEnvironmental Site Assessment Process (E 1527-05). E1527-05, of course, has been deemed by the Environ-mental Protection Agency to satisfy ‘‘all appropriate in-quiries’’ under the federal superfund law1 and the regu-lations promulgated thereunder.2 ASTM E 1527-05 pro-vides the guidelines for the Phase I environmental siteassessments performed everyday. This clarification ofthe existing standard is unfortunate as well as being un-necessary and unjustified.

Emergence, Character of Vapor IntrusionIssue

Concerns about vapor intrusion, as discussed here,have arisen out of the context of the investigation, as-sessment, and cleanup of contaminated soil andgroundwater under the federal superfund and hazard-ous waste laws as well as comparable state statutes. As-sessment of the vapor intrusion pathway is part of con-ducting a human health risk assessment where the con-tamination at issue involves volatile chemicals.

There is no question vapor intrusion is the subject ofgrowing scrutiny. For example, as noted by E 50.02 inthe materials that accompany the VI Standard Practice,more than 26 states have developed or adopted vaporintrusion guidance in the last few years. EPA requiresthe indoor air pathway to be addressed in its environ-mental indicators evaluations3 and issued its currentdraft guidance in November 2002.4 The Interstate Tech-nology and Regulatory Council (ITRC), a coalition ledby state and federal regulatory personnel, issued VaporIntrusion Pathway: A Practical Guide in January 2007.5

California passed legislation in 2007 requiring consider-ation of the vapor intrusion pathway in cleanups there.6

At the federal level, Sen. Hillary Rodham Clinton (D-

N.Y.) introduced legislation (S. 1911) Aug. 1, 2007,aimed at vapor intrusion risks, especially risks relatedto trichloroethylene (TCE).7

Vapor intrusion determinations are complicated by anumber of factors, including 1) their reliance on model-ing, including the various inputs to the models and theinherent difficulty of assessing preferential pathways;2) the varied methodologies and models being appliedby regulators; and 3) the various sources of volatilechemicals in indoor air, including ambient air concen-trations, indoor sources, and subsurface contaminants.According to EPA, ‘‘the vapor intrusion pathway iscomplex and, consequently, we recommend a compre-hensive assessment of this pathway using all availablelines of evidence be conducted before drawing conclu-sions about the risks posed by this pathway.’’8

Vapor intrusion analysis inherently is high stakes be-cause it is a form of human health risk assessment re-garding a particularly intimate media, the breathing airfound in homes and offices. The Interstate Technologyand Regulatory Council opens its Practical Guide bystating: ‘‘Degradation of indoor air quality causes moreapprehension and anxiety among building occupantsthan are typically associated with other environmentalproblems.’’9 The lawsuit filed against IBM in January2008 by 90 residents and businesses in IBM’s birth-place, Endicott, N.Y., highlights this. The lawsuit is, to agreat degree, about the alleged intrusion of vapors fromcontaminated groundwater into homes and work-places.10

ASTM’s ResponseIn this context, members of ASTM Committee E50

and the author and issuer of E 1527-05 decided E50should develop and issue a tool to provide guidelines onthe assessment of vapor intrusion in real estate transac-tions. In 2005, Subcommittee E50.02 developed a taskforce and charged it with developing a standard.

After two years of work, in November 2007 the pro-posed Standard Practice for Assessment of Vapor Intru-sion into Structures on Property Involved in Real EstateTransactions went out for final ballot to the entire E50Committee and ultimately was approved (39 ER 442,3/7/08).11

Summary of ConcernsThe issuance and application of this standard has a

potential to do harm in two principal ways:

1 Comprehensive Environmental Response, Compensation,and Liability Act, 42 USC 9601(35)(B).

2 40 CFR 312.11.3 Interim Final Environmental Indicator Guidance Under

RCRA (Feb. 5, 1999), available on the Web at http://www.epa.gov/epaoswer/hazwaste/ca/eis/ei_guida.pdf.

4 Draft Guidance for Evaluating the Vapor Intrusion to In-door Air Pathway from Groundwater and Soils, (67 FR 71169,11/29/02), available on the Web at http://www.epa.gov/correctiveaction/eis/vapor.htm (hereinafter, Draft SubsurfaceVapor Intrusion Guidance). Despite repeated statements of theintention to do so, EPA has not issued a final version of thisguidance.

5 ITRC also issued Vapor Intrusion Pathway: InvestigativeApproaches for Typical Scenarios in January 2007. Both docu-ments are available on the Web at http://www.itrcweb.org/gd_VI.asp.

6 California A.B. 422 (2007) amending the Carpenter-Presley-Tanner Hazardous Substance Accounts Act (Califor-nia Superfund Act) and Porter-Cologne Water Quality ControlAct to require risk assessments to consider vapor intrusion (38ER 2310, 10/26/07).

7 The TCE Reduction Act of 2007 (S. 1911) would requireEPA, among other things, to develop and apply a referenceconcentration with respect to vapor intrusion in CERCLAcleanups. See http://www.capitolpub.com/images/newsletters/clintontces1911.pdf on the Web.

8 Draft Subsurface Vapor Intrusion Guidance, p. 21.9 ITRC Practical Guide, Section 1.1.10 Blaine v. International Business Machines Corp., N.Y.

Sup. Ct., No. 2008/000012, 1/3/08 (39 ER 96, 1/11/08).11 This author joined ASTM only after he heard this standard

was under development and the draft standard largely was com-plete. When the final ballot went out in November 2007, he studiedthe proposal and made his concerns known to the task group chair.After weeks of discussions, which resulted in some changes to thestandard deemed by the task group to be non-substantive, he sub-mitted the only negative vote on the E50 ballot that was unre-solved. This article explains why.

2

5-23-08 COPYRIGHT � 2008 BY THE BUREAU OF NATIONAL AFFAIRS, INC. ER ISSN 0013-9211

http://www.epa.gov/epaoswer/hazwaste/ca/eis/ei_guida.pdf

http://www.epa.gov/epaoswer/hazwaste/ca/eis/ei_guida.pdf

http://www.epa.gov/correctiveaction/eis/vapor.htm

http://www.epa.gov/correctiveaction/eis/vapor.htm

http://www.itrcweb.org/gd_VI.asp

http://www.itrcweb.org/gd_VI.asp

http://www.capitolpub.com/images/newsletters/clintontces1911.pdf

http://www.capitolpub.com/images/newsletters/clintontces1911.pdf

1. It directs environmental professionals to speculatein written conclusions about the presence of un-healthy levels of volatile chemicals in the indoorair of inhabited buildings.

2. It undermines E 1527-05, and Phase I environmen-tal site assessments, as constituting all appropriateinquiries under the federal superfund law.

Moreover, after ‘‘clarifying’’ that contamination thatreaches the target property in vapors would not be iden-tified under a properly conducted E 1527-05 environ-mental site assessment, the VI Standard Practice, evenin its initial screening tiers, does not provide a mecha-nism equivalent to E 1527-05 or the Phase I process forfilling the perceived gap.

The goal of E 1527-05 is to identify recognized envi-ronmental conditions, ‘‘the presence or likely presenceof any hazardous substances or petroleum products ona property under conditions that indicate an existing [orpast or materially threatened] release. . . .’’12 In otherwords, a Phase I identifies releases that may affect thetarget property. On the other hand, the goal of the newVI Standard Practice is to identify potential (pVICs) oractual vapor intrusion conditions (VICs), defined as the‘‘presence or likely presence of any [chemical of con-cern] in the indoor air environment of existing . . .structures . . . at a concentration that presents or maypresent an unacceptable health risk to occupants’’[emphasis added].13 In other words, the VI StandardPractice identifies potential health risks. Recognizedenvironmental conditions (RECs) and pVICs are notparallel or equivalent concepts.

If the science and regulatory scrutiny of volatile con-taminant migration has evolved to the degree that allappropriate inquiries investigations require the evalua-tion of nearby volatile releases as recognized environ-mental conditions, then E 1527-05, as currently drafted,is broad enough to encompass this evolution. E 1527-05does not discuss and is not limited to any particularcontaminant migration pathway. Therefore, a volatilerelease the environmental professional concludes likelyimpacts soil gas at the target property at greater than deminimis levels (above vapor intrusion target or screen-ing values levels, for example) properly is identified asa recognized environmental condition under E 1527-05.For the sake of the screening required by all appropri-ate inquiries, there is no need for the consultant to goon to speculate about whether that volatile release iscreating unhealthy conditions in the indoor air, just ashe or she need not provide risk assessment conclusionsin a Phase I report about groundwater contaminationidentified as a recognized environmental condition.

If vapor intrusion analysis is called for or desired, athorough analysis using appropriate data and federal orstate guidance should be performed. Shortcut risk as-sessments with presumed conclusions are bad policyand bad science.

Overview of VI Standard Practice (E 2600)The stated purpose of the VI Standard Practice is to

define good commercial and customary practice for

conducting a vapor intrusion assessment in a real estatetransaction.14 The practice is intended for voluntary useby parties who wish to conduct a screening evaluationto determine whether a potential for vapor intrusion ex-ists at a target property, and if so, to identify alterna-tives for further investigation or mitigation. The VIStandard Practice does not replace federal or stateguidance on vapor intrusion. Instead, it is designed toprovide a framework for a screening level evaluation ofvapor intrusion that may lead to the application of suchguidance.

The VI Standard Practice presents a four-tiered ap-proach. The first tier is an initial screen to determine ifa potential vapor intrusion condition exists based on in-formation similar to what otherwise is gathered as partof a Phase I under E 1527-05. Key to the Tier 1 processare the minimum search distances surrounding the tar-get property, which take into consideration groundwa-ter direction and are a subset of the search distancesused in E 1527-05 for identifying potentially relevantsources or releases.

Where potential sources of volatile chemicals areidentified within the search distances, the environmen-tal professional is directed to presume a potential vaporintrusion condition exists unless sufficient informationexists to rule such a condition out. This is, by design, aprescriptive process.15

To support the presumption, the task group appar-ently considered data on average plume distances fortypical types of sites, such as dry cleaners and gas sta-tions, and also considered the conclusion by EPA andothers that vapors can migrate, vertically or horizon-tally, as much as 100 feet from the edge of a plume intonearby buildings.

Tier 1 also directs that, if a potential vapor intrusioncondition is identified (or presumed), the source of thecontamination must be added as a recognized environ-mental conditions to any associated Phase I assess-ment. Exceptions do exist. For example, a potential va-por intrusion condition, and apparently the associatedrecognized environmental condition, can be eliminatedif vapor intrusion previously has been evaluated andeliminated by other parties, there are existing engineer-ing controls, or there is an ‘‘inherently safe building de-sign’’ that would cut off the vapor intrusion pathway.

If a potential vapor intrusion condition is found not toexist as a result of the standard’s Tier 1 process, E 2600presumes vapor intrusion likely is not a concern at thetarget property.

12 E 1527-05, Section 1.1.1. The only risk assessment aspectof REC identification involves the exclusion of de minimis con-ditions, but these conditions must pose no threat to humanhealth or the environment and would not be the subject of en-forcement.

13 E 2600-08, Section 1.1.1.

14 E 2600, Section 1.1 states, in part, ‘‘The purpose of thispractice is to define good commercial and customary practicein the United States of America for conducting a vapor intru-sion assessment (VIA) on a property involved in a real estatetransaction’’ [emphasis in original].

15 There is some lack of clarity in the VI Standard Practiceabout how the search distances relate to the presumptions ofpotential vapor intrusion conditions. Borrowing from E 1527-05, the vapor intrusion standard defines the search distancesby specific sources of information, for example, the environ-mental professional is required to look for National PrioritiesList sites within one mile upgradient of the target. However,the search distances also are used for making the presump-tions. The author assumes a non-NPL volatile spill known bythe environmental professional to exist within a mile upgradi-ent, and which cannot be ruled out, would generate the pre-sumption of a pVIC under the VI Standard Practice. However,this is not clear.

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ENVIRONMENT REPORTER ISSN 0013-9211 BNA 5-23-08

On the other hand, if the Tier 1 process does identifya pVIC, the environmental professional may move on toTier 2, proceed directly to Tier 4 and the adoption of amitigation mechanism, or presumably the process couldend with the identification of the pVIC and the corre-sponding recognized environmental condition.

Tier 2 provides a more refined screening process thatfocuses heavily on information regarding the source ofthe contamination and the plume emanating from thatsource. Tier 2 also can include invasive sampling of soil,soil gas, and/or groundwater at or near the target whereplume delineation data is not available for the known orsuspected contaminated sites within the appropriatedistance.

Tier 2 provides two tests. One is a so-called plumetest, which assesses whether the plume is close enoughto an existing or planned structure on the target prop-erty to result in a pVIC. The other is the risk-based con-centration test, which compares sample results to ge-neric risk-based concentrations or screening or targetvalues in the state where the target is located (or site-specific standards developed by the environmental pro-fessional).

If a pVIC cannot be screened out at the Tier 1 or Tier2 levels, the user may go on to a more sophisticated en-vironmental sampling under Tier 3 to determine if a va-por intrusion condition exists.

Tier 3 essentially is a full blown vapor intrusion as-sessment at the property, potentially using crawl space,groundwater, soil gas, or sub-slab sampling; indoor airsampling; and site-specific modeling for attenuationfactors. The results of this sampling then are comparedto the appropriate guidance to make a conclusive deter-mination about the existence of any vapor intrusioncondition at the property.

Tier 4 basically is a discussion of potential mitigationtechniques that may be used if a vapor intrusion condi-tion is found to exist, or as an alternative to further site-specific evaluation if a potential vapor intrusion condi-tion is determined to exist. The standard points out thatat any point in the process, for example when a pVIC isidentified in Tier 1, the user can jump to preemptivemitigation in lieu of further evaluation of the pathway.

Explanation of Principal ConcernsIdentification of Potential Vapor Intrusion Condition Is

Speculation About Potential Health Risks. In Tier 1 of thestandard, particularly, the environmental professionalis called upon to declare a pVIC—the potential ‘‘pres-ence or likely presence of any [chemical of concern] inthe indoor air environment of existing . . . structures . . .at a concentration that presents or may present an un-acceptable health risk to occupants’’ [emphasisadded]—based on little more than the existence of a po-tential volatile source within the search distances.

For example, Section 8.6 of the VI Standard Practiceappears to direct the environmental professional to pre-sume and identify a pVIC where a volatile release (per-haps regardless of concentration) is present or sus-pected within 2,640 feet (to as much as 5,280 feet) up-gradient of the target and insufficient information isavailable to rule it out.

This is remarkable. As noted, EPA and others haveconcluded vapors can travel as much as 100 feet from avolatile source. Task force members and/or others re-

portedly have compiled and made some conclusionsabout average plume lengths from certain types ofsources. However, taken together, such informationdoes not equate to any scientific likelihood that subsur-face contamination from a dry cleaner a mile upgradi-ent actually would create unhealthy levels of perchloro-ethylene (PCE) in the inhabited indoor spaces of a par-ticular target property. It seems the much more likelyoutcome, if the air in the target building actually weresampled, is that PCE from the dry cleaner would not befound. In such a circumstance, for the environmentalprofessional to follow the VI Standard Practice’s pre-sumption and label the target building with a potentialvapor intrusion condition means the professional isspeculating about potential unhealthy conditions in thebreathing air of real people based on no real science.ASTM should not encourage such speculation, and noenvironmental professional should engage in it.

It is worth noting here that the standard’s Tier 1screening is not the equivalent of Tier 1, PrimaryScreening under the EPA guidance, which is designedto allow the user to decide whether to move on to EPA’sTier 2, Secondary Screening.16 Primary screening un-der the EPA guidance does not use the term ‘‘pVIC,’’and it does not generate a conclusion about risks to per-sons from indoor air.

In fact, as noted earlier, the very first sentence of theEPA’s Tier 2, Secondary Screening section states: ‘‘Thevapor intrusion pathway is complex and, consequently,we recommend that a comprehensive assessment ofthis pathway using all available lines of evidence beconducted before drawing conclusions about the risksposed by this pathway.’’

Furthermore, EPA’s Tier 1, Primary Screening spe-cifically takes into account that insufficient informationmay exist to determine whether a structure is ‘‘near’’(generally within 100 feet of ) a volatile release (or theedge of a plume emanating therefrom) and requires thecollection of additional data before reaching any con-clusions.17 The VI Standard Practice takes the oppositeview, speculating that the problem exists until it can beproven otherwise.

Speculation About Health Risks Is Not Necessary to Sat-isfy All Appropriate Inquiries. All appropriate inquiriesunder CERCLA is focused on the identification of re-leases and material threats of releases of hazardoussubstances on, in, or at the property.18 This identifica-tion for the most part is without regard to complete riskpathways or risk assessment. This approach is reflectedin the all appropriate inquiries regulations19 themselvesand in ASTM’s E 1527-05.

For example, offsite contamination that the environ-mental professional concludes migrates or likely mi-grates to the target property at greater than de minimislevels in groundwater is identified as a recognized envi-ronmental conditions regardless of whether groundwa-

16 Draft Subsurface Vapor Intrusion Guidance, pp. 14-20.17 Draft Subsurface Vapor Intrusion Guidance, Primary

Screening, Question #2, potential answer 3, p. 16, ‘‘If sufficientdata are not available—check here and document the need formore information on the Summary Page. After collecting thenecessary data, Question 2 can then be revisited with thenewly collected data to re-evaluate the completeness of the va-por intrusion pathway.’’

18 42 USC 9601(35)(A)(i) and (B)(i).19 40 CFR 312.

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ter expresses itself at the surface of this site, thegroundwater will be used for any purpose at the site, orthe groundwater contamination poses a threat to build-ing occupants through a vapor intrusion pathway.

Therefore, it is simply unnecessary from an all appro-priate inquiries point of view to create a summary riskassessment process to deal with the vapor migrationpathway. If volatile contaminants migrate as vapors tothe subsurface at the target property above de minimislevels, the source of those vapors likely should be iden-tified as a recognized environmental condition regard-less of whether a completed exposure pathway exists(and without regard to whether the current building atthe target has a subsurface parking garage or vapormitigation system).

The User May Not Resolve the Issue. It is essential toremember that the ASTM E50 task group has developedthis standard to be used by the environmental profes-sional primarily in the context of a transaction, not inthe context of a step-wise application of federal or statevapor intrusion guidance by the responsible party orthe agency. This means the parties paying for the envi-ronmental professionals’ services, at least at the timethey do so, most often will have no stake in or respon-sibility for cleanup of the environmental conditions thatmay be the source of vapors. In addition, they likely willnot even have an ownership interest in the target prop-erty itself yet. In this context, there is no reason to as-sume the ‘‘user’’ of the vapor intrusion standard willfeel compelled to follow through and pay for additionallevels of sampling and analysis that may be needed un-der the VI Standard Practice to undo or resolve the is-sues created by the environmental professional’s pre-sumed identification of a pVIC.

Implications for Building Owner, Occupants, Tenants.The declaration of a pVIC by an environmental profes-sional is a determination of a potential risk in thebreathing space of building inhabitants. For the build-ing owner, inhabitants, and tenants, this determinationimmediately may give rise to health and liability con-cerns potentially based on no more than the existenceof the target property to an inadequately characterizedvolatile release within a search distance.

An owner handed a VI Standard Practice report by aprospective buyer or a lender will face tough choices,including doing nothing and potentially face liabilitiesto users of the building for failing to disclose what latermay be seen as material information, trying to disprovethe speculation through the expense of indoor or inva-sive sampling, or installing a vapor mitigation systemthat likely is unneeded. In addition, mitigation optionsmay be significantly more expensive on any existingcommercial building than the task force may have as-sumed.

An interesting question is what liability the environ-mental professional (or others) may have to such abuilding owner if the pVIC declaration can be shown tobe harmful to the owner’s interests and not to have areasonable scientific basis?

The Standard Inappropriately and Unnecessarily Under-mines E 1527-05 and Creates Confusion About Its Own Re-lationship to All Appropriate Inquiries. The VI StandardPractice had been publicized by the task group as amechanism to resolve confusion it perceived in the mar-ketplace regarding whether a vapor intrusion analysis

was part of a Phase I environmental site assessment.20

However, the VI Standard Practice likely will generatesubstantial confusion about whether environmentalprofessionals will need to consider and identify releasesthat affect the target by a vapor pathway in conductingPhase I assessments or only if they are hired to performthe new standard.

The basis for the existing confusion, as articulated bythe task group, was that the definition of recognized en-vironmental conditions in E 1527-05 expressly includesthe identification of releases and threatened releases‘‘into structures on the property,’’ but the list of itemsexcluded from E 1527-05 as ‘‘nonscope’’ includes ‘‘in-door air quality.’’ Apparently, in the task group’s view,an environmental professional could not identify re-leases that relate to the property by the vapor intrusionpathway without making determinations about indoorair quality.

To resolve this perceived conflict, the task groupchose to conclude the ‘‘indoor air quality’’ nonscopelisting trumps the definition of recognized environmen-tal condition and excludes vapor intrusion consider-ations from a Phase I.21 Section 5.1 of the VI StandardPractice simply ignores the language of the definition ofa recognized environmental condition that covers re-leases into structures, at least to the extent migrationinto the building is via the vapor pathway.

Reading part of the definition of a recognized envi-ronmental condition out of E 1527.05 is inappropriateand unnecessary to address the problem. Full-blown va-por intrusion analysis that reaches conclusions about‘‘indoor air quality’’ is and certainly always has beenbeyond the scope of a Phase I environmental site as-sessment. However, the identification of releases thatare a threat to the target property because they maycause chemicals to enter the building in vapors is en-tirely within the scope of a Phase I.

A CERCLA release is a release to the outdoor envi-ronment. As the definition of a recognized environmen-tal condition acknowledges, CERCLA releases can mi-grate from the environment into structures. When a re-lease poses that threat, the language of E 1527-05requires the release to be identified as a recognized en-vironmental condition. This is true regardless ofwhether the chemical enters the basement in ground-water seepage or through vapor intrusion. For offsitereleases, if the condition in the offsite environment rea-sonably threatens to cause greater than de minimis lev-els of contaminants in the subsurface of the target prop-erty, the offsite release would be identified as a recog-nized environmental condition. Again, it should notmatter whether the standard exceeded by the migrationwould be a groundwater maximum contaminant levelor a soil gas screening value. It is hard to see how the

20 ASTM Hopes to Draft a Standard to Quell Vapor Intru-sion Confusion (15 EDDG 43, 6/15/06)

21 Section 5.1 of the VI Standard Practice states as follows:

Indoor air quality, and therefore vapor intrusion as a con-tributing indoor air issue, is a non-scope consideration in aPhase I conducted in accordance with the ASTM E 1527standard. This standard is not meant to preclude an environ-mental professional from providing a professional opinion inthe Phase I ESA on the impact of potential vapor migrationonto a target property if deemed necessary to satisfy ‘‘all ap-propriate inquiry.’’

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inclusion of indoor air quality was ever intended to ex-clude these recognized environmental conditions.

EPA deemed E 1527-05 to satisfy all appropriate in-quiries, and when it did so it presumably evaluated E1527-05 with all of its terms, especially its core defini-tions, intact. It also is worth remembering that vapor in-trusion is not a newly discovered concept. In fact, vaporintrusion has been a consideration in superfund risk as-sessments for almost twenty years.22 What has hap-pened recently is simply a matter of degree. Vapor in-trusion now is seen as a much more viable and signifi-cant risk pathway in many more situations than it hadbeen previously.

There is no explanation issued with the VI StandardPractice about how the task group came to the conclu-sion it was appropriate to read the indoor air exclusionto trump part of the definition of recognized environ-mental condition. There is a legal memo that accompa-nies and supports the standard called Legal Back-ground on Federal and State Liability for Vapor Intru-sion (VI Legal Background). This document simplydoes not address the alleged confusion regarding E1527-05 and vapor intrusion. There is no discussion inthe VI Legal Background of what was intended in list-ing indoor air quality as nonscope under E 1527-05,and, in particular, whether or not it is appropriate to de-clare that indoor air quality was meant to exclude vaporintrusion. It also does not directly address whether re-leases that relate to the property by vapor pathwaysshould be considered in all appropriate inquiries. How-ever, it does in fact conclude the migration of contami-nants into structures gives rise to potential CERCLA li-ability.23

For an analysis of what was meant by the indoor airquality exclusion, it is much more fruitful to go to thetext of E 1527-05 itself, and to the Legal Background is-sued by Committee E50 along with the standard.24

First, from the language of Section 13 of E 1527-05,‘‘Non Scope Considerations,’’ the reader comes awaywith the distinct understanding that all of the nonscope

items are conditions that ‘‘do not otherwise present po-tential CERCLA liability.’’25

Second, the E 1527-05 Legal Background explains atlength why many of the nonscope considerations arenonscope. Each explanation provided turns on the factthat the nonscope condition discussed is not a conditionfrom which CERCLA liability arises. Therefore, theparadigm this analysis applies is that conditions thatmay give rise to CERCLA liability are within the scopeof E 1527-05, and those that do not are nonscope. Asnoted above, the VI Legal Background actually con-cludes vapor intrusion is a CERCLA liability matter. Ac-cording to the paradigm, vapor intrusion should not beconsidered nonscope.

Unfortunately, there is no explanation provided inthe E 1527-05 Legal Background for the specific listingof indoor air quality. In the context in which it appears,along with such common indoor air contaminants suchas asbestos fibers, fungi, microbes, mold, and radon, itis not hard to understand why indoor air quality, as ageneral condition, would be listed as nonscope. In mostsituations, indoor air quality has nothing at all to dowith CERCLA liability. In addition, a vapor intrusionanalysis, with its focus only on those volatile chemicalsthat may enter the indoor air from contamination in thesubsurface, is not, in any real sense, a general evalua-tion of indoor air quality. For example, a vapor intru-sion analysis may identify no threat from subsurfacecontaminants, but indoor air quality actually could bevery poor due to mold or indoor storage of chemicals orpetroleum. Vapor intrusion analyses also very often arecompleted with no sampling of indoor air.

Of special note in the E 1527-05 Legal Background isits evaluation of radon vapor intrusion as a nonscopeitem.26 The analysis presented turns on the fact that ra-don is nonscope only because it is naturally occurringand CERCLA expressly excludes response actions thatrespond to naturally occurring materials (the LegalBackground states, ‘‘No liability under CERCLA at-taches for naturally occurring radon. If a party to a realestate transaction wants to look for radon within abuilding, no amount of radon investigation will haveany bearing on one’s LLPs under CERCLA.’’).27 How-ever, the analysis goes on to point out that each of theother elements of CERCLA liability likely are made outfor radon, and it cites to the migration of radionuclidesfrom subsurface waste disposal into buildings as a cir-cumstance when radon gives rise to CERCLA liability.28

The logic again is clear: But for the fact radon is natu-rally occurring, radon vapor intrusion likely would becovered by CERCLA and therefore included under thescope of ASTM E 1527-05.

What Section 5.1 of the VI Standard Practice actuallystates is as follows:

Indoor air quality, and therefore vapor intrusion as a con-tributing indoor air issue, is a nonscope consideration in aPhase I conducted in accordance with the ASTM E 1527standard. This standard is not meant to preclude an envi-

22 See, for example, Assessing Potential Indoor Air Impactsfor Superfund Sites (1992) and Options for Developing andEvaluating Mitigation Strategies for Indoor Air Impacts at Su-perfund Sites (1993). In 1997 and 1998, EPA developed a se-ries of spreadsheets that allowed for site-specific application ofthe Johnson and Ettinger Model (1991) and the Interim FinalEnvironmental Indicator Guidance Under RCRA (1999) ex-pressly required assessment of vapor intrusion to indoor airand noted in doing so:

Recent evidence (from the Colorado Dept. of Public Healthand Environment, and others) suggest that unacceptable in-door air concentrations are more common in structuresabove groundwater with volatile contaminants than previ-ously believed. This is a rapidly developing field and review-ers are encouraged to look to the latest guidance for the ap-propriate methods and scale of demonstration necessary tobe reasonably certain that indoor air (in structures locatedabove (and adjacent to) groundwater with volatile contami-nants) does not present unacceptable risks.

23 E 2600, Appendix X1 at X1.1.1.7, which concludes thatCERCLA releases would include migration of contaminatedvapors from hazardous substances located in the subsurfaceinto a building.

24 Legal Background to Federal Law and the Practices onEnvironmental Assessments on Commercial Real EstateTransactions (E 1527-05 Legal Background), E 1527-05, Ap-pendix X1.

25 E 1527-05, Section 13.1.1.26 E 1527-05, Appendix X1, Legal Background, Section

X1.8.3.27 E 1527-05, Appendix X1, Legal Background, Section

X1.8.3.4.28 E 1527-05, Appendix X1, Legal Background, Section

X1.8.3.1, citing Amoco Oil Co. v. Borden, 889 F.2d 664, 30 ERC1745 (5th Cir. 1989).

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ronmental professional from providing a professional opin-ion in the Phase I ESA on the impact of potential vapor mi-gration onto a target property if deemed necessary to sat-isfy ‘‘all appropriate inquiry.’’The second sentence of Section 5.1 was not part of

the standard as it was voted on in the final ballot byCommittee E50. It was added in an attempt to addressthe concerns raised in my negative comments on theballot. My recommendation was that Section 5.1 be de-leted in its entirety. However, the result of adding thelanguage is ambiguity, especially in the overall contextof the VI Standard Practice. Is Committee E50 sayingreleases linked to a target property by a vapor migra-tion pathway properly are within the scope of an E1527-05 Phase I? Or is the application of this standardnecessary to adequately identify those recognized envi-ronmental conditions? Whatever the specific languagemay be, inherent in the screening level tiers of this VIStandard Practice is the idea that releases related to theproperty by the vapor migration pathway are not beingidentified as recognized environmental conditions un-der a Phase I. The end result, therefore, contrary to thetask group’s stated intent of eliminating confusion inthe marketplace, is that the VI Standard Practice willtend to leave both users and environmental profession-als unsure about whether the identification of offsitevolatile releases is appropriately a part of an E 1527-05Phase I.

One final observation about the purported clarifica-tion in the VI Standard Practice is that vapor intrusionis nonscope under E 1527-05. This clarification, if itcould be relied on appropriately, would be welcomenews to any environmental professional who failed toconsider a nearby volatile release as a recognized envi-ronmental condition in the preparation of a Phase I re-port but should have done so because of the release’spotential to affect the target property. Of course, the flipside of potential consultant liability is the interest of theconsultant’s client to be able to rely on the consultant’swork product to meet the clearly identified goal, theperformance of all appropriate inquiries. To the extentthis VI Standard Practice is intended at all to provideafter-the-fact relief to consultants, or, going forward, torelieve environmental professionals of the need to iden-tify all Phase I recognized environmental conditions re-lated to the property (regardless of migration pathway)in future Phase I assessments, this VI Standard Practiceis inappropriate. ASTM E50 potentially would be under-mining the sufficiency under CERCLA of both pastPhase I assessments and the future of its own standardas constituting all appropriate inquiries.

RecommendationsFor all of the reasons stated above, the VI Standard

Practice should not be employed as currently written.Rather, anyone hiring a consultant to conduct a Phase Iconsistent with E 1527-05 should confirm the expecta-tion that if the environmental professional believes,based on the exercise of reasonable professional judg-ment, that a nearby volatile spill is likely causing soilgas levels at the target to exceed screening or target lev-els, that spill should be identified as a recognized envi-ronmental condition associated with the target prop-erty. In other words, a source of vapor contamination

should be evaluated in a way logically consistent with asource that causes contaminants to migrate to the tar-get property in groundwater. Further, consultantsshould not be permitted to undermine the Phase I re-port as all appropriate inquiries by inserting any state-ment that suggests they have not considered any par-ticular contaminant migration pathway in reachingtheir conclusions.

If Committee E50 seeks to revise the VI StandardPractice to make it more useful, the characterization ofE 1527-05 in Section 5.1 should be eliminated and theVI Standard Practice substantially revised to eliminatethe presumed and prescriptive identification of a poten-tial vapor intrusion condition based on minimal screen-ing level information.

In addition, a process should be built into the stan-dard to be applied where, in the environmental profes-sional’s view, insufficient information exists in thescreening process to make any determination despitecommercially reasonable inquiry. Similar to the ap-proach in EPA’s guidance, no conclusion on the vapormigration issue should be required under these circum-stances.

ConclusionThe new VI Standard Practice undermines ASTM E

1527-05 as all appropriate inquiries by purporting toclarify that potential recognized environmental condi-tions linked to the target property by the vapor migra-tion pathway are not properly considered under thatstandard. This is inappropriate and unnecessary. ASTME 1527-05 is not limited to certain migration pathways.The new vapor intrusion standard establishes a short-hand risk assessment process that calls on environmen-tal professionals to speculate about unhealthy levels ofchemicals in indoor air. Again, this is unnecessary in atransaction screen, unjustified, and potentially harmfulto the interests of building owners, inhabitants, and ten-ants. The standard should not be applied as written andall appropriate recognized environmental conditionsshould be identified under the existing ASTM E 1527-05framework. Substantial revisions to the VI StandardPractice should be made before it is put to general use.

The question of whether subsurface releases are con-tributing unhealthy levels of contaminants to indoor airis too complex and too important to be speculated aboutin a shorthand fashion. If the issue is significant enoughin a given transaction situation, particularly one involv-ing existing structures, the question should be an-swered using the most appropriate and applicable va-por intrusion guidance.

About the Author: Christopher M. Roe, a partner in asuburban Philadelphia office of Fox Rothschild LLP,has been an environmental lawyer for 18 years. Hecurrently serves as remediation counsel for solvent-contaminated sites across the United States and over-seas. Roe joined ASTM’s Committee E50 and Subcom-mittee E50-02 specifically to monitor the developmentof VI Standard Practice. He can be reached at (610)458-4987 and [email protected]. Roe especiallywould like to recognize colleague Derald Hay for hisassistance in the preparation of this article and tothank Edward Strohbehn of Bingham McCutchen LLPfor his thoughtful insights.

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