Should a VEC Always Be a REC?

In a recent ASTM conference call, several consultants took the position that they could not envision a circumstances under which a “vapor encroachment condition” (VEC) identified pursuant to ASTM E2600-10 would not be a “recognized environmental condition” (REC) pursuant to ASTM E1527-05.

 

I was surprised by this statement and therefore have decided to post about this issue. I happen to think that many VECs actually could be considered “de minimis conditions” that do not rise to the level of a REC.

The term "vapor encroachment" is a term of art created by ASTM 2600. It has no basis in law or science since the regulatory driver is "vapor intrusion"- the migration of vapors into building structures.  Since a VEC has no regulatory significance, it cannot serve as a basis for creating CERCLA liability-which is the focus of the ASTM E1527 Phase 1.

All a VEC means is that there may be a vapors at the boundry of the property. A VEC determination is simply an interim step. The user can decide to ignore the VEC finding or decide to pursue the issue further to determine if it rises to the level of a REC.

A VEC without any evidence of a completed exposure pathway will not result in enforcement if brought to the attention of regulators- the ASTM definition of de minimis condition. To me, it is  akin to contaminated groundwater that has migrated onto a site where the groundwater is not being used for drinking water and the state does not pursue owners of impacted properties.

In the absence of exposures to persons in structures, there will not be CERCLA liability. The main  liability concern for vapor intrusion is toxic tort liability. In the absence of vapors migrating into structures, there will not be toxic tort liability.

To me, the E2600 process and VEC determination is a waste of a client's money. If there are solvent sites within the E1527 search radius that could present a risk of Vapor Intrusion, the EP provides value to its client by determining if there is a potential for vapor INTRUSION. This can be done from site specific information or fairly inexpensive soil gas sampling.