Rogers Towers: Vapor Intrusion: Consideration During Due Diligence Investigation


[author: Richard L. Maguire]

In recent years, individuals and regulatory agencies have become concerned with the effects of “vapor intrusion,” which is the migration of emissions from volatile compounds, such as petroleum or dry cleaning solvents, found in soil or groundwater contamination beneath buildings.  If those vapors contain concentrations above certain levels, the health of building occupants may be impacted. However, regulatory efforts to address vapor intrusion effects are restricted to guidance issued by the U.S. Environmental Protection Agency (“EPA”) in 2001 and 2002 and guidance or regulations issued by 33 states.  Although Florida has been developing vapor intrusion guidance, there is no date set for issuance of that guidance.

The guidance issued by EPA in 2001 and 2002 only addressed vapor intrusion at Superfund sites, Resource Conservation Recovery Act corrective action sites and Brownfield sites.  The EPA guidance does not supersede state guidance.  In March 2011, EPA requested comments on new draft guidance.  EPA intended to issue a new draft for public comment in Spring of 2011, and then issue final guidance by November 30, 2012.

Among states that do have some form of guidance or regulations, there is no consistency.  For example, some states merely adopt the EPA guidance, while others have issued guidance addressing specific contaminated sites, such as former service stations or dry cleaners.  Some states, such as Georgia, merely require that vapor intrusion be considered for Brownfield sites without any requirement to take specific action or achieve mandated goals.

There appears to be some consensus that, under certain circumstances, vapor intrusion can cause or contribute to a number of health problems such as headaches or nausea.  Further, according to EPA, elevated concentrations of vapors can also be a factor in more significant illnesses. 

Unfortunately, there are no standards or guidance advising:  (i) when the potential presence of vapors in a building should be evaluated; (ii) which methods should be used to properly measure the vapors that may be collecting within the building; or, (iii) how to determine the significance of the results.  In addition, the presence of vapors within a building located over contaminated soil or groundwater does not necessarily indicate that those vapors are originating from the soil or groundwater; material within the building, such as glues, solvents, certain paints or cleaners, can also be a source of the vapors. 

There is no requirement that vapor intrusion be considered as part of a Phase I Environmental Site Assessment and will ordinarily not be a part of a due diligence evaluation.  However, there may be site-specific information that would cause a lender or buyer involved in the acquisition of property to consider the possible impacts of upward migrating volatile constituents.  Such information could include elevated concentrations of volatile compounds beneath a building and a pathway for those vapors to enter the building and accumulate, existing evidence of illnesses related to vapor intrusion or prior use of systems to eliminate vapor intrusion.


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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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