The Vapor Intrusion Rub: EPA’s Adoption Of ASTM’s New Phase I Standard Muddies The Waters Of CERCLA Liability Once Again

While the ASTM’s newly revised standard for Phase I environmental site assessments (E1527-13) may be a significant improvement over the 2005 versions in several respects, the inclusion of vapor intrusion as an independent element to be investigated as a ​“recognized environmental condition” could have unintended consequences that its ASTM drafters did not expect – including the creation of new obligations for property purchasers and owners of properties affected by releases of hazardous substances on adjacent sites. It is unclear, for example, whether such parties would be required, as part of the ​“continuing obligations” portion of EPA’s ​“all appropriate inquiry” rule, to mitigate vapor intrusion impacts in order to maintain their erstwhile protection from liability under the federal Comprehensive Response, Compensation, and Liability Act.