Is Vapor Intrusion Ruining Your Transactions?

The potential liability and impact on property value due to vapor intrusion into a property’s structures has been of increasing concern to developers, lenders and other parties involved in commercial real estate transactions. Recent changes in ASTM International’s ASTM E1527 standard regarding site investigations, and in the U.S. Environmental Protection Agency’s All Appropriate Inquiry requirements, have now greatly increased the likelihood that vapor intrusion risk will be explicitly addressed by consultants in Phase I Environmental Site Assessments. The prior ASTM E1527-05 standard for Phase I ESAs has now been revised by issuance of ASTM E1527-13, “Standard Practice For Environmental Site Assessment: Phase I Environmental Site Process.” By revising the definition of migration and by other changes, the standard clarifies that vapor intrusion is to be considered in Phase I ESAs. 

The U.S. EPA is required by law to use technical standards (including test methods) developed or adopted by organizations such as ASTM International, unless using such standards would be inconsistent with applicable law or would be impractical. When ASTM International revises a standard such as ASTM E1527, it submits the standard to EPA for review. EPA then undergoes a formal review process and, upon approval, EPA issues a Rule approving adoption and use of the revised standard. ASTM International submitted the revised ASTM E1527-13 standard to EPA for review and, on August 15, 2013, EPA issued a Direct Final Rule amending its All Appropriate Inquiry requirements to reference the ASTM E1527-13 standard and to allow for its use in complying with the AAI rule. However, due to negative comments received by EPA during the public comment period, EPA withdrew the Rule on October 29, 2013.