Vapor: The Next Environmental Cloud Rolls In
By Chris Fonzi
Logic Environmental, Inc.
3400 McClure Bridge Road, Suite F602
Duluth, Georgia 30096
ph: 770.817.0212 fax: 770.817.0214
For those of you who feel like global warming, deforestation and the decline in the world’s billfish population are just a little too abstract to be personally compelling, the American Society for Scaring the Hell Out of Everyone announces a completely novel environmental problem – and this one could land smack in the middle of your next real estate deal.
For years now, the Phase I/Phase II process of environmental site assessment has been focused primarily on identifying possible sources of soil and groundwater contamination – underground tanks, spills, dump sites, etc. This was the mandate established by the American Society for Testing Materials (ASTM), a private organization that sets the standards for what goes into a Phase I investigation. Although ASTM standards aren’t law, they are close to being the only game in town and virtually all reputable consultants follow them. In January 2014, ASTM revised the standards for what constitutes a Phase I, the first such revision in eight years. The most significant change was the addition of a requirement that all Phase I reports evaluate sites for the possible presence of vapor as a recognized environmental threat. And vapor, as it turns out, is everywhere.
In this context, “vapor” refers to the migration of gasses from volatile contaminants – like gasoline or dry cleaning solvents – in soil. Let’s say you’re doing a deal on a corner-lot restaurant, built 10 years ago on the site of a former gas station. The Phase I assessment shows that gasoline contamination was reported from the site just before its redevelopment. At that time, the testing showed that the contamination was not very severe and the state environmental department issued a no-further-action-required letter for the release. The station’s underground storage tanks were removed, but no other cleanup was performed and a moderate amount of residual contamination was left in place. (This is standard practice, by the way. Only very rarely do environmental authorities require a site be restored to pristine condition and often allow the owner off the hook without performing any real cleanup at all.)
Historically – and by that we mean, until four months ago – a Phase I on this property would most likely have concluded that the no-further-action letter was a silver bullet, and that the contamination warranted no further investigation. But now, the report may also bear the ominous conclusion that your property has a vapor condition. It might say no more than that, and leave the conclusion unexplained, like an odorous gray cloud above your deal. Or it might recommend some sort of testing. Or it might even recommend some type of modification to the property to mitigate the impact of these vapors.
“Vapor intrusion” is when vapor emerges from the soil into basements or structures and into our personal space.”
“Vapor encroachment”means presence of vapor in soil anywhere on a property – even if the property supports no structures.”
Before we talk about how you should handle this, we need to burden you with two terms of envirospeak jargon: vapor intrusion and vapor encroachment. “Vapor intrusion” is when vapor emerges from the soil into basements or structures and into our personal space. Human exposure to airborne chemicals can be a real issue. Any doctor, toxicologist or Richard Pryor can tell you that one of the fastest ways to get any chemical into your blood is to breath it in. Accordingly, most government studies and environmental guidelines involving vapor have focused on human exposure through vapor intrusion. “Vapor encroachment,” on the other hand, was basically invented by the lawyers of the standards-makers because creating standards for vapor intrusion raised too many legal issues. It means presence of vapor in soil anywhere on a property – even if the property supports no structures. Vapor encroachment is generally not a significant health threat in its own right, but is important mostly as a precursor to vapor intrusion. Vapor encroachment is unlikely to ever be directly regulated.
Distinguishing these two conditions – intrusion vs. encroachment – is important to understanding a central problem with the new Phase I standards. That is, that pointing out a vapor encroachment issue can accomplish very little apart from making everyone involved in a deal uncomfortable. There are no government standards, no reporting obligations and no clear response which arises from the identification of a vapor encroachment condition. Some benchmarks have been established for vapor intrusion, but they are still evolving on a state-by-state basis and Georgia has yet to enact any regulations. While buildings can be tested for vapor intrusion, testing for vapor encroachment (that is, testing away from a structure) rarely serves any clear goal.
The best advice for managing vapor issues – as it is for most environmental issues – is to have a clear goal in mind before either party begins investing time and money into a solution.
Although some draft federal guidelines exist – including screening levels for a range of common contaminants – the government has, for the most part, not really chimed in on the question of how much vapor is too much. For this reason, getting a no-further-action letter or some other government blessing that a vapor condition is “acceptable” may not be an option. The EPA is scheduled to release their final guidance document about vapor very soon (we would be more specific, but the government has goals, not deadlines) and most states, including Georgia, have created vapor intrusion task forces to address this issue.
Testing a building for potential vapor intrusion involves collecting an air samples from beneath the slab of the structure. This can involve the uniquely disruptive step of coring a hole through the floor of a building, but can also sometimes be accomplished by forcing a direct-push probe (imagine a giant steel syringe attached to a pickup truck) at an angle beneath the slab. Expect the cost of vapor intrusion testing to be comparable to other Phase II investigations, typically $2,500 or more.
While testing the air IN the building would seem like a more straightforward approach, it carries several potential problems.
A shocking number of common household or business items can contribute vapors to an environment, including dry-cleaned clothing, new carpet, soaps and lotions, nail polish remover, cleaning supplies, etc. Since most indoor sampling techniques would evaluate the space over a period of time, even a brief exposure to some of these chemicals could cause a false positive. For this reason, a preferable method involves collecting samples from below or near the building slab, then using a computer model or a screening level calculator to predict the indoor air concentration. This also provides a level of liability protection to the property owner, as an estimated result would not carry the same liability as an actual positive sample result from direct indoor air testing.
Fixing a vapor intrusion condition means directing the soil vapors away from the structure. During building construction, this can be as simple as installing a vapor barrier under the foundation. For existing structures, it might involve the installation of a subsurface venting system, or alterations to an existing HVAC system. Once again, however, the absence of government oversight in this area will make it important for buyers and sellers to reach a clear and meeting of the minds as to the goals of any mitigation project.
For the moment, vapor issues are in a nascent and unsettled stage in their development, lacking the predictability which makes other environmental issues easier to quantify and less likely to be deal-breakers. As government regulation and industry practice evolve, vapor will inevitably become easier to manage in a transactional context, even as the frequency of vapor-related issues increases.
Chris is founder and principal of Logic, GABB Affiliate member and a GABB Platinum Sponsor. He is a graduate of the University of Florida and the UF School of Law. He has performed environmental assessments and provided consulting services in more than 20 states during the past 15 years.