Although the concept of Vapor Intrusion or Encroachment has been around for a while, it has become more prominent in recent years due to the industry’s improved understanding of the potential risks it poses to human health, and the subsequent regulatory focus it has received. ASTM E1527-13 (released in 2013) first placed a much greater emphasis on assessing vapor risks during the Phase I ESA. And just recently, ASTM recently released updates to the E2600-15: Standard Guide for Vapor Encroachment Screening on Property Involved in Real Estate Transactions to improve guidance on how vapor risk should be assessed.
The importance of considering how vapor migration and intrusion risks impact occupant health, business operations, cash flow and property values is now generally recognized across the commercial real estate industry. But, some confusion remains about how exactly these risks should be addressed as part of the due diligence process. Nicole Moore (REPA), Technical Director for Partner’s Environmental Consulting practice, and Kristine MacWilliams (PE), Technical Director for Subsurface Investigations answer some frequently asked questions relating to vapor concerns in the multifamily industry.
Vapor Intrusion risk is – deservedly – receiving much greater attention during environmental site assessments than it was several years ago. How does vapor intrusion risk impact multifamily owners and lenders?
Nicole: Vapor intrusion can lead to significant health concerns, especially for the already susceptible population such as infants, immune-compromised individuals, and the elderly. Multifamily owners and lenders should always investigate vapor intrusion risk if there is a potential for it to occur within on-site buildings. If the property owner does not conduct the proper due diligence, he/she is opening himself/herself to huge legal liabilities down the road.
Why is the question of how vapor migration risk should be assessed and classified still such a hot issue in the environmental industry?
Kristine: ASTM E2600-15 was implemented last year to provide improved guidance, but it hasn’t been consistently interpreted across the industry. The guide identifies two tiers of assessment to evaluate whether a vapor encroachment condition exists: Tier 1, which provides an initial evaluation based on specific sources of information; and Tier 2, which may include the collection of samples to determine actual conditions at the property.
I frequently see requirements of ASTM E2600-15 inconsistently or incorrectly applied, especially when it comes to the collection and interpretation of data for the Tier 2 Screening. Of course, using incorrect data means issues of concern can’t be accurately quantified and remedial systems can’t be properly designed as needed. This leads to wasted effort on the consultant’s part, and wasted money for the client.
Nicole: It is critical that the consultant properly communicates the Tiers and requirements along with the respective costs ahead of time to ensure the client’s needs are being met. It sounds obvious but you’d be surprised at how many clients didn’t get the right product for their needs.
How are multifamily lenders adjusting their scope of work to incorporate the new standard?
Nicole: We’re seeing that lenders want to know that vapor is included in the scope, and many request for specific language or sections addressing vapor risk to be added to the report. Again, it is really important that multifamily lenders specifically discuss the scope of work with their consultants to ensure assessments adequately support their individual risk tolerance levels.
The introduction of ASTM E2600-15 has changed the regulatory climate around vapor risk. How should the industry evaluate reports or recommendations for No-Further-Action (“NFA”) made by a consultant or a regulatory agency before the new standard was issued?
Kristine: The main issue is that some of these recommendations were written without vapor intrusion being evaluated as part of the closure. For regulatory closure sites, many sites are “closed” or receive recommendations for NFA with some contaminants remaining in the soil or groundwater, because they were deemed to exist at concentrations that would not cause a health risk to site occupants. However, if you look at those same concentrations in soil or groundwater today they may exceed current indoor air screening levels. This means a closed site could be re-opened or additional work may be required.
Nicole: Yes, we encounter this scenario often. For example: a dry cleaner that was investigated for soil and groundwater contamination, remediated, and received closure. But when we review the case file, we discover that soil vapor wasn’t assessed as part of the initial investigation. This would now be considered a Recognized Environmental Condition (REC) despite the closure, because there is isn’t enough information to rule out the health risks for the tenants. More often than not, we find hits on those re-opened cases. So my advice to any multifamily lenders or owners is that if soil vapor wasn’t investigated as part of the original assessment, be prepared to perform a Phase II Environmental Site Assessment (ESA) specifically addressing soil vapor risks.
Terminology did not change in ASTM E2600-15, but it continues to create confusion in the industry nonetheless: How does a Vapor Intrusion Concern (VIC) differ from a Vapor Encroachment Concern (VEC), and when are either of those considered to be a Recognized Environmental Condition (REC)?
Nicole: Vapor intrusion is the process by which chemicals in soil or groundwater migrate to indoor air above a contaminated site causing indoor air quality issues. Vapor Encroachment is the process by which chemicals in soil or groundwater migrate to the surface on a contaminated site, but do not necessarily lead to vapor intrusion into the on-site buildings.
A Vapor Encroachment Concern (VEC) is not necessarily a REC; but a Vapor Intrusion Concern (VIC) is certainly a REC. A VEC is basically contamination from an off-site source that has found its way onto the subject property. Its location is the major factor in determining if it’s a REC: it could be present only in the parking lot, or it could be beneath the building. A VEC could become a VIC if the contamination beneath the building makes its way into the structure, which would of course be a recognized environmental condition.
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