Vapor Migration and Environmental Liability Webinar: Attorney Q & A

On February 12, 2013, I moderated an EDR Insight webinar titled Vapor Intrusion and Environmental Liability, featuring three leading attorneys with extensive expertise on managing vapor-related risk. The three panelists were:

During the webinar, this team of legal experts, with decades of experience advising commercial real estate deals, gave attendees a real-world perspective to vapor and how it is impacting transactions and legal cases that they are working on every single day. Their presentations went beyond the guidance, policies and standards to explain why vapor is a risk and what can happened if it is ignored in due diligence.

Interest in the topic was high, judging by the more than 400 professionals from both the environmental consulting and financial institution sectors who tuned in. The questions from the audience were more extensive than could be covered in the available timeframe so I asked panelists to submit their answers, which are provided below with attribution to each attorney speaker. As shown in the accompanying graph, at the top of the ranking with a weighted average score of 3.3 is “balancing risk management with pressure to stay competitive,” followed closely by “meeting fast turnaround time pressures internally” (3.0). These two challenges are closely related.

The questions addressed in this brief include:

  • Does vapor mitigation of a site result in a continuing obligation?
  • Is actual indoor air sampling within a building where VI is a concern an appropriate alternative to sub-slab sampling? (i.e., during the Phase I process, our client typically does not own the building, thus a lot of hesitation for sub-slab work)
  • Has anyone given thought to subsurface encapsulation?
  • Do the presenters regard doing some sort of vapor encroachment assessment to be a part of All Appropriate Inquiries under CERCLA? If not, why not?
  • On the slide where you list the three tiers for determining a VI problem, Tier 1 included conducting a historical review, receptor survey, and source area sampling. Could you please define “receptor survey” and “source area sampling?” Additionally, are you confirming that you think that sampling for VI should be a part of a Phase I?
  • From a lender perspective, can we bypass typical soil and groundwater investigations for off-site properties with suspected issues and go immediately to a sub-slab vapor/indoor air investigation?
  • Are folks seeing new construction in urban environments incorporating vapor controls into the building design even if the current situation does not suggest any VI issues? For instance, in Oregon the acceptable levels of naphthalene in air recently went down. Cases where VI were previously not an issue now are an issue. As a note – we have also seen some clients opt against a Phase II ESA when the issue is an off-site source and instead just incorporate vapor controls in the new construction.
  • Did you say that an attorney could use a standard from an adjacent state as justification for a liability claim?
  • There may be cases where it is easier to collect groundwater samples than soil vapor samples. Does Tier 2 always need to include soil vapor testing? How about a situation in which shallow groundwater surrounding the suspected source can be reliably collected and found to be ND? Or a situation where groundwater samples can be collected at up-gradient property boundary if assessing an off-site/up-gradient source and found to be below levels of concern with possible VI?
  • I realize that the answer would differ by state: (in Florida):If a petroleum contaminated site is eligible for state funded cleanup – does it include soil vapor assessment and remediation/mitigation of vapor intrusion on-site and off-site?
  • Is there still a need to confirm a complete pathway from contaminant plume to indoor air? There was a lot of early concern with background sources (nail polish, etc.).
  • Why is Tier 3 (Indoor air sampling) not addressed in ASTM Standard E2600-10?
  • To what extent can low levels of vapor intrusion into a building be mitigated in a building simply by managing the air flow within a building (using outdoor air exchange)?
  • How can you control contamination if there is the migration of volatile chemicals product?
  • What types of projects are most at risk for vapor intrusion issues? When should I be advising my clients to have a vapor assessment done?
  • I’m an EP and we don’t currently address vapor. What’s my risk if I’m not including vapor migration in my Phase Is? Now vs. after the 1527 standard is effective?
  • We’ve been having a heated debate at my firm about whether vapor is required to satisfy AAI. Can you comment on whether vapor is part of the CERCLA liability scheme?
  • My lender clients want their Phase Is cheaply and quickly so what am I supposed to tell them to make a case about why I think they should have me assess vapor as part of the Phase I scope of work? When should they require it?
  • I was wondering how banks are digesting VEC. Are they requiring it across the board, ignoring it, etc.?
  • Is there a difference if a bank orders ASTM 1527-00 vs ASTM 1527-05 regarding the vapor requirement being implemented?

*Click here to read the responses to the questions above, answered by the attorney panel.

Click below to view a replay of the webinar: