Phase I Environmental Site Assessments And Soil Vapor Intrusion

Environmental, Energy and Natural Resources Law Practice

Land, Air and Water News

March 12, 2008

Phase I Environmental Site Assessments and Soil Vapor Intrusion
by James A. Vroman
For a number of years, the U.S. EPA and a growing number of state environmental agencies have expressed concern about the potential risks that Soil Vapor Intrusion (“SVI”) may pose to human health and theenvironment. Several recent studies have indicated that soil or groundwater beneath building foundations, or behind foundation walls, which contain volatile contaminants, such as solvents or semi-volatile organic compounds, may be a health risk to those who work in the structures or facilities that the foundations support. These studies have established that vapors from the contaminants in the soilor groundwater have the potential to penetrate, or “intrude,” the concrete of the foundation and collect and accumulate within the facility. Some of these studies have indicated that soils impacted with volatile compounds at low concentrations that do not create a groundwater “pathway risk” or a risk to people who are in an open air environment outside of a facility may, nevertheless, be a sourceof SVI and indoor air contamination. The concern over SVI has emerged over the last few years. Indeed, the U.S. EPA only issued a draft guidance for evaluating SVI to indoor air in November 2002. 67 Fed. Reg. 71, 169, 33 ER 2625, Dec. 6, 2002. Recently, in October of 2007, California enacted an amendment to its California Superfund Act which requires, among other things, that the state develop“reasonable maximum estimates of exposure to volatile organic compounds that may enter structures…” The Illinois Environmental Protection Agency is currently evaluating proposed SVI screening standards that it can incorporate into the regulations that govern Illinois’ Voluntary Site Remediation Program. In response to this growing regulatory concern over SVI, ASTM International, formerly known as theAmerican Society for Testing and Materials, a voluntary standards development organization, on March 3, 2008, published a voluntary assessment protocol that environmental professionals can now use to evaluate the potential at a property for indoor air contamination from SVI. The protocol, or standard, is known as ASTM E 2600, and it is to be a supplemental standard to the ASTM standard forperforming a Phase I Environmental Site Assessment (“Phase I ESA”) known as ASTM E 1527-05. A party, typically a potential real estate buyer, or a lending institution for such a buyer, will retain an environmental professional to perform a Phase I ESA of the property to be acquired and the environmental professional will perform the Phase I ESA in accordance with the ASTM E 152705 standard. Such anassessment, however, did not include an evaluation of the potential risks of SVI. Indeed, until ASTM’s promulgation of ASTM E 2600, the environmental professional had no industry-wide protocol to follow to evaluate the SVI potential that may exist at a property. The evaluation process of ASTM E 2600 consists of four tiers. The first two levels are screening tiers, and the environmental professional©2008 Jenner & Block LLP. Jenner & Block is an Illinois Limited Liability Partnership including professional corporations. This publication is not intended to provide legal advice but to provide information on legal matters. Transmission is not intended to create and receipt does not establish an attorney-client relationship. Readers should seek specific legal advice before taking any action withrespect to matters mentioned in this publication. The attorney responsible for this publication is James A. Vroman. Masthead image from the Collection of the Supreme Court of the United States. ATTORNEY ADVERTISING. PRIOR RESULTS DO NOT GUARANTEE A SIMILAR OUTCOME.

is to use them to evaluate the potential for SVI at a property. If the property has a low potential for SVI, the professional...