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    Vapor Encroachment Screening

 

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Inspection Today ---
Sunday, December 21, 2014
report on your desk next week

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Vapor Intrusion and Vapor Encroachment Survey

 

Vapor intrusion is a real business environmental risk.  Over the past several years, there's been a growing body of evidence that chemicals can penetrate building foundations at levels that raise health concerns for the occupants.  Vapor intrusion can result from contamination onsite, or offsite when chemical contamination travels underground.  There have been increasing numbers of lawsuits involving vapor intrusion issues.

 

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Background

An indoor air quality issue, vapor intrusion develops when rapidly evaporating (volatile) chemicals found in polluted soil and groundwater make their way into the air of overlying buildings, similar to the way that naturally occurring radon gas seeps into homes.  To become an environmental concern, vapor intrusion requires a source, an inhabited building, and a pathway from the source to building occupants. Any type of property can be affected—industrial, commercial or residential—and the condition can lead to serious health issues such as headache, nausea, eye irritation, respiratory problems and an increased likelihood of developing cancer.

There are compelling reasons why vapor intrusion needs to be considered in the course of environmental due diligence.  

For lenders, the concern is fourfold.  

  1. A vapor intrusion condition can adversely impact the value of the property used as collateral. 

  2.  It can have a negative impact on the borrower’s creditworthiness and ability to repay the loan.   

  3. The condition can lead to complications should foreclosure occur.  

  4.  A vapor intrusion claim can damage a bank’s reputation, brand and image. 

 Borrowers have even more reason to be concerned.  

  • A vapor intrusion condition can lead to liability from lessees and rent losses occurring as the result of tenants citing the “unsafe working environment” rationale to break leases.   

  • A property with a vapor intrusion condition can become devalued, stigmatized, or both, making it difficult, if not impossible, for the owner to attract new tenants or sell the property. 

  • Vapor intrusion also presents a potential for costly toxic-tort litigation.  

  • Because a vapor intrusion condition is sometimes caused by contamination that falls under the umbrella of CERCLA’s hazardous substances, owners could be held liable for cleanup under federal CERCLA and state CERCLA-based programs.   

  • As evidenced by news reports, properties that were considered clean are currently being reopened and reexamined for vapor intrusion risks. This means that site owners with “no further action” letters can no longer assume these sites are safe from further environmental problems.  As property owners in many states have already discovered, these properties may be reopened for additional investigation, possibly at the owner’s expense.

Vapor Intrusion Condition is a real business environmental risk in the same way and more so than, for example, lead-based paint, asbestos and mold are.  According to a 2008 Environmental Bankers Association survey, when a property is affected by vapor intrusion, the credit activities most affected include commercial real estate-secured lending, commercial lending, residential lending and trust activities.  When vapor intrusion is suspected, EBA’s survey found that lenders requiring ASTM E 1527-13 Phase I Environmental Assessment including vapor investigation including Vapor Encroachment Screening when underground contamination from on-site or off-site sources were present.

 

New Guidelines

Today, many states have some form of vapor intrusion policy or guidance on their books or in development, and with all the activity surrounding vapor intrusion, others can be expected to follow suit.  Real estate investors purchasing property in all states should screen for the condition early on in the transaction, not only to determine whether the property is a sound investment, but also to demonstrate to state regulators that measures to assess and address the risk have been taken.

 

Conclusion

Many commercial lenders are concerned about vapor intrusion and require the appropriate due diligence standard to counteract the effects of the condition on credit and trust underwriting activities.  Vapor intrusion is a real business risk.  When a vapor encroachment condition exists from on-site or off-site sources Vapor Encroachment Screening is designed to be used early on in the real estate transaction process.  And VES is a conservative screening effort that environmental professionals can use to quickly and inexpensively weed out properties unlikely to have a vapor intrusion issue and addresses the condition specifically as it impacts real estate transactions.

Unsafe levels of contamination can travel as vapor through soil and groundwater from a contamination source on site or off site within ASTM Standard search distances. This is true even when contamination has been remediated and only negligible levels of liquid or solid contamination remain. In response to this reality at least 32 states so far are reopening all old NFA (No Further Action) cases and where vapor contamination is found the current owner becomes liable for remediation costs.

According to the most recent guidance on federal environmental liability protections, solid, liquid and vapor are all forms of release of hazardous substances that must be addressed:

  

· to fulfill requirements of All Appropriate Inquiry as defined by federal statute

      40 C.F.R. § 312.21(C)(1) should it ever become necessary.

 

· to qualify user for federal environmental liability protection i.e. innocent landowner or innocent purchaser defense 42 U.S.C. §§ 9607(b)(3) and 42 U.S.C. §§ 9601(35) should it ever become necessary.

 

· to qualify user for federal environmental liability protection contiguous property owner liability protection 42 U.S.C. § 96079(q) should it ever become necessary and

 

· for brownfields properties, to qualify as a bona fide prospective purchaser for bona fide prospective purchaser liability protection 42 U.S.C. § 9607(r) pursuant to the Small Business Liability Relief and Brownfields Revitalization Act, Pub. L. No. 107-118 (2002), 42 U.S.C. §§ 9601 et. seq.

Since at least 2008 EPA has consistently held that vapor encroachment investigation is necessary and applications for liability protections have been denied for lack of vapor encroachment investigation.

Phase I Environmental Assessment without a vapor investigation component does not meet the ASTM 1527-13 Standard and does not satisfy the requirements of All Appropriate Inquiry (AAI) to qualify user for federal environmental liability protections.

The level and methodology of vapor encroachment investigation is not specified however, when a vapor encroachment condition exists, the only recognized standard for vapor encroachment investigation is ASTM E-2600-10 Standard Guide for Vapor Encroachment Screening on Property Involved in Real Estate Transactions.

The environmental industry is still ramping up for Vapor Encroachment Screening and at the present time our Senior Consultant is one of only a few hundred Certified VES providers in the United States.

In the best interest of our clients we offer Phase I Environmental Assessment according to ASTM E 1527-13 Phase I Environmental Assessment and we are fully qualified to perform ASTM E 2600-10 Vapor Encroachment Screening whenever the need arises.  

 

 

For more information e-mail Edward Devine
or call 585-738-5080

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Vapor Encroachment Screening

The potential for vapor intrusion is assessed according to a number of factors:  

Relative elevation of contaminated site: vapors less likely to migrate from downgradient sites 

Critical distance for contamination from Chemicals of Concern (COC) 

Critical distance for contamination from petroleum based products  

Soil type: contamination and vapors travel more readily through some soil types 

Hydraulic separation: a stream between properties may preclude vapor migration 

Site status: a cleaned up and closed site may continue to generate vapors for many years 

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