The revised ASTM vapor intrusion standard is in the process of going to ballot. The standard has been redirected solely to screening for vapors to encroach upon a property, i.e., identify if a vapor encroachment condition or a VEC exists. Two tiers of screening are included in the standard, both very prescriptive with respect to distances. If a VEC exists or is likely to exist, it will be the responsibility of the EP conducting the Phase I to decide if this VEC constitutes a REC.

The existence of a VEC does not automatically mean there is a vapor intrusion problem, only that vapors may be encroaching upon the subsurface of the property. Whether or not these vapors may be migrating into a structure on the property would require further investigation and the standard indicates that state vapor intrusion guidance (if it exists in that state, and it does for almost half the states) should be followed.

A summary of the revisions in the standard is provided below: 

(1)   In view of the considerable uncertainty still surrounding vapor intrusion evaluation and the fact that substantially all of the federal and state agency vapor intrusion investigation publications have been issued as guidance rather than regulations, the revised E 2600 standard has been changed to a standard guide rather than a standard practice. This is similar to the standard guides E 2018 for property condition assessment and E 1739 for risk-based corrective action applied at petroleum release sites.

(2)  The standard has been re-focused solely on screening and the title of the standard has been revised accordingly.

(3)  The standard has been revised to be consistent in approach and methodology to the E 1527 Phase I ESA.

(4)   The standard has been modified to make clear and underscore the critical importance of relying on the environmental professional’s judgment and expertise in conducting the vapor encroachment screening and in making determinations when conducting the screening.  Thus, for example, the revised standard eliminates the presumptions that were part of the original E 2600 standard. 

(5)   The intent of the screening is to identify if a vapor encroachment condition (VEC) exists, is likely to exist, or can be ruled out in connection with the target property. Use of the VEC term is analogous to, but not the equivalent of, the identification of a recognized environmental condition (REC) in an ASTM E 1527 Phase I. The terms VIC (vapor intrusion condition) and pVIC have been eliminated from the revised standard. The revised standard has been greatly simplified to focus only on the potential for migrating vapors to reach the subsurface of the target property. Further investigation to assess the possibility of vapor intrusion into structures on the target property (analogous to a Phase II to address a REC that has been identified through an E 1527 Phase I) is beyond the scope of the revised E 2600 screening standard. As such, the original E 2600 standard Sections 10 and 11 referencing vapor intrusion assessment and mitigation have been moved to the appendix (see Appendix 7). Also, all references to vapor intrusion assessment and mitigation (including terminology) have been removed from the text of the standard (i.e., the main body of the revised document). The revised standard focuses solely on screening for VECs.

(6)   Since the revised standard focuses solely on the identification of VECs in connection with the target property, comparison with risk based concentrations (RBCs) in Tier 2 has been removed from the body of the document and relocated to the Appendix (refer to Appendix 7). An RBC comparison analysis may be a part of a further investigation should a VEC be identified. Again, this would be analogous to, but not the equivalent of, undertaking further investigation arising from identification of a REC in a Phase I.

(7)   Findings are limited to whether a VEC exists, likely exists, cannot be ruled out, or can be ruled out because a VEC does not or is not likely to exist.

(8)  The revised standard clarifies the relationship between E 1527 and E 2600 and eliminates the confusion that resulted from the text of the original E 2600 standard.

(9)   In Tier 1 the secondary area of concern that was identified in the original E 2600-08 standard has been eliminated.

 

 

The proposed revisions to the E 2600 standard are designed to clarify much of the confusion experienced in the marketplace. The revised E 2600 standard now deals solely with evaluation of the potential for migrating vapors to encroach upon a target property. If vapors do or are likely to encroach upon a target property, the person commissioning the vapor encroachment screening (VES) can evaluate whether to conduct further investigation of the target property. Moreover, if the VEC screening is conducted in conjunction with an E 1527 Phase I, whether the VEC constitutes a REC is a decision made by the environmental professional performing the screening based on the application of her or his expertise and professional judgment in performance of the REC analysis established in E 1527.

 

Mark, if I understood your comment about the example I used correctly, you indicated you would say something about the asbestos situation in the Recommendations Section of  your Phase I report, even if asbestos was outside your scope of work  (i.e., you said you would note it as a "business risk"). In my experience as an expert witness in numerous Phase I litigation cases, I would suggest you not bring up the asbestos situation in your Phase I report, simply because it is outside your scope of work. Rather, I would make it clear in your scope of work (which is included in the Phase I report) that it follows the ASTM E 1527-05 Standard, and that this Standard has a Non-scope Considerations Section that includes such environmental issues as asbestos, lead-based paint, wetlands, etc., all of which can potentially impact a property, but are beyond the scope of work you were asked to conduct .

The problem is that once you move outside your scope of work, this could potentially make you liable for other environmental issues outside your scope of work. I could just see a plaintiff's attorney saying, for example, "you spoke to your client about asbestos in your report which was outside the agreed upon scope of work, so why didn't you tell him about the lead-based paint in the building?" Remember, litigation arises only when there is a problem. I am sure if you speak with your company's attorney, he or she will advise you to stick to your scope of work and do no more and no less.

This is not defined in the ASTM E 1527 standard. It is best to speak with an attorney to identify how long reports and supporting documentation should be kept. Very often it is influenced by the statue of limitations in your state. However, since this is a very litigious area, I personally would keep reports and supporting documentation forever. Storing everything electronically is relatively easy and inexpensive.

The facts as I read them:

1. a relatively new gas station on-site;
2. RCRA-compliant USTs - interstitial monitoring within
double walled tanks;
3. no previous uses of the site that might create an
environmental concern;
4. no auto repair work on the site (gas dispensing only)
5. no evidence of a release (spills, etc.)

ASTM E 1527-05 REC Determination:

REC definition - presence of petroleum products on the property (no question) - under conditions that indicate an existing release, a past release or a material threat of a release (no past release, no existing release, is there a material threat of a release? - materiality test (Section 3.5.52): physically observable threat reasonably likely to lead to a release (no), obvious threat reasonably likely to lead to a release (obvious defined in 3.2.55 as plain or evident to a reasonable observor - no).

According to ASTM E 1527 standard, in my view this gas station would not represent a recognized environmental condition at the property.

Notwithstanding, I would advise the client that the opportunity for a release does exist going forward, e.g., a spill can occur anytime. As such, a gas station does represent a business risk and, if it is desired to mitigate this risk, the client might consider purchasing environmental insurance. The client might also consider adding additional monitoring around the tanks and in the area of the fuel dispensing stations to alert to any type of a release. In this way, the release can be cleaned up immediately.