August 25th, 2013
You may have seen newsletters by some law firms suggesting that the revised ASTM E1527-13 will REQUIRE evaluation of vapor intrusion as part of a phase 1. These statements are simply incorrect.
Since vapor intrusion became a concern a decade or so ago, there has been much confusion in the environmental consultant community if vapor intrusion had to be evaluated as part of the standard phase 1 scope of work. The confusion stemmed from the fact that the definition of a Recognized Environmental Condition (REC) included releases into “structures” while the list of non-scope considerations in section 13 referred to “indoor air quality”. Compounding this uncertainty was the CERCLA definition of “Release” that provides that releases resulting in “exposures to persons solely within a workplace with respect to a claim which such persons may assert against the employer of such persons“.
Consultant and many lawyers often focused on the first portion of the exclusion but overlooked the “with respect to a claim which such person may assert against the employer of such persons”. This latter clause was intended to apply to workers comp claims. Congress did not want to allow a worker to “double dip” by filing a workers comp claim and then also filing a CERCLA lawsuit for personal injury against its employer.
In 1983 and 1985, EPA explained the meaning of this exclusion when it promulgated its CERCLA notification rule. EPA explained then that the exclusion was a relic from the 1978 legislative draft of CERCLA that had provided a remedy for personal injury. When CERCLA was finalized in the dying days of 1980, the remedy for personal injuries was deleted by in the rush to finish the bill it appears that the exclusion was inadvertantly left in the law.
The new legal appendix to E1527-13 discusses two EPA guidance documents that describe when CERCLA authority may be used for indoor contamination. The guidance indicates that EPA could respond to releases into the environment that come into a building or releases within a building that may escape into the outdoor or subsurface environment such as through broken windows (think of asbestos), on workers clothing (think of dust) or through flooring. 1993 EPA Memo
In a 1986 guidance document, EPA also indicated that it could respond to a methane hazard under its section 104 authority to take emergency actions in response to releases of pollutants or contaminants that posed an imminent danger to human health or the environment. This memo emphasized, though, that EPA would not be able to recover its costs under section 107 since methane is not a hazardous substance. 1986 EPA Methane Memo
When these memos were written, regulators were not aware of the extent that the vapor intrusion pathway could result in exposures. The revised version of E1527 clarifies that the vapor intrusion pathway is like any other contaminant pathway and the potential for vapor intrusion should be evaluated addressed as part of a phase 1.
All a consultant is required to do as part of a phase 1 is to identify RECs- the presence or potential presence of releases of hazardous substances. A consultant that identifies a REC due to an actual or potential source of soil or groundwater contamination will not normally collect samples as part of the phase 1 assignment. Instead, the sampling would be performed as part of a phase 2 investigation. Likewise, if a consultant determines there is potential for vapor intrusion because of the presence of a REC, the consultant is not required to actually collect sub-slab or indoor air samples as part of its phase 1.
From a practical standpoint, the question of whether vapor intrusion should be independently flagged as a REC will only really be an issues for off-site releases where vapor intrusion is the only pathway for contamination to migrate onto the property. When the target property already has soil or groundwater contamination, the consultant would flag that contamination as a REC.
E1527-13 does not require a consultant to perform any vapor intrusion sampling as part of the standard phase 1. If the consultant believes that the presence of soil or groundwater contamination can pose a risk of vapor intrusion, the consultant can flag the potential VI as a REC that should be further investigated to determine if the pathway is complete.