Periconi, LLC

Soil Vapor Intrusion Concern Prompts EPA to Support Revision to Phase I Environmental Site Assessment Protocol

The health threats posed by physical contact with contaminated soil or groundwater are well known. But increasingly, state and federal regulators are recognizing that harmful vapors from such contamination can be drawn into nearby buildings and pose a threat to the occupants. Known as soil vapor intrusion, this threat can come from undiscovered contamination beneath a building, or even from the remnants of previously remediated soil or groundwater.

In New York State alone, the Department of Environmental Conservation has "reopened" many sites in the past few years that had previously been considered completely remediated, and required new investigations into possible soil vapor intrusion threats. The growing concern over soil vapor intrusion has recently led the United States Environmental Protection Agency to endorse a significant change to the standard protocol for Phase I environmental site assessments, and it will have ramifications for many prospective purchasers around the country.

EPA has proposed a formal change in the rules for its "All Appropriate Inquiries" standard under the federal Superfund law to incorporate a revision to the standard protocol for a Phase I ESA. ASTM International, the body responsible for developing the standard protocol for a Phase I ESA, recently updated its Phase I ESA protocol to specifically require consideration of potential soil vapor migration in evaluating environmental concerns associated with a subject property. This new standard is known as ASTM E 1527-13.

Typically, a prospective purchaser of property will conduct a Phase I ESA to satisfy EPA's All Appropriate Inquiries standard and qualify for the "Bona Fide Prospective Purchaser" exemption from Superfund liability. If, as expected, EPA's proposed rule becomes final, the All Appropriate Inquiries Rule will be amended to require consideration of the potential threats posed by soil vapor intrusion. This additional requirement for Phase I ESAs will likely bring with it an increase in the cost to conduct a Phase I ESA.

If you are considering the purchase of commercial or industrial property a Phase I ESA is critical to establishing the Bona Fide Prospective Purchaser exemption from Superfund liability. The experienced attorneys at Periconi, LLC have significant experience in advising on the environmental aspects of real estate transactions.

However, soil vapor intrusion issues are not confined only to real estate transactions. Periconi, LLC also has extensive experience in negotiating with state or federal regulations in the context of enforcement actions, and also stands ready to assist interest parties in navigating New York State's Brownfield Cleanup Program.

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