The ASTM International, Inc., the international standards agency, has introduced ASTM E 1527-13 for the performance of a Phase I Environmental Site Assessment (ESA) prior to the acquisition of a commercial property (see our November 13th blog entry). The purpose of ASTM E 1527-13 is to provide a format for meeting the All Appropriate Inquiries (AAI) federal rule. ASTM E 1527-13, introduced on November 6, 2013, includes the addition of the term “vapor.” Note that the Environmental Protection Agency (EPA) has not yet approved the use of ASTM E 1527-13 (in the AAI rule); its anticipated to be approved by the end of 2013 or in early 2014.
The addition of vapor in E 1527-13 will add some complexity to transactions. And though vapor is now a formal part of the assessment process, we continue to caution against knee-jerk reactions, especially as it relates to quantitative testing of vapors.
As it relates to E 1527-13, there are three areas of revisions relating to vapor:
1. Section 3.2.2 activity and use limitations: the purpose of which is “to reduce or eliminate potential exposure to hazardous substances or petroleum products in the soil, soil vapor, groundwater and/or surface water on the property…”
2. Section 3.2.56 definition of migrate/migration: “…to the movement of hazardous substances or petroleum products in any form, including, for example, solid and liquid at the surface or subsurface, and vapor in the subsurface.”
3. Section 184.108.40.206 (and X5.8): clarifies that “indoor air quality” is a non-scope consideration, only if it is unrelated to releases of hazardous substances or petroleum products.
Note that a vapor migration study (actual physical testing) would be part of the Phase II ESA (i.e., quantitative testing of soil, groundwater, and now vapor).
If you would like to read a more detailed discussion on vapor intrusion, see our article in Michigan Defense Trial Counsel: Vapor Intrusion — A New and Challenging Issue (co-authors Jeffrey A. Bolin, Dragun Corporation, and Arthur Siegal, Jaffe, Raitt, Heuer, and Weiss).
Vapor migration and vapor intrusion continues to be an evolving and complicated issue. We encourage you to carefully consider how vapor may impact your transaction, and seek good technical and legal advice.
(Thanks to Mark Resch for providing the content of this blog entry)