© 2008 Fox Rothschild

MANDATORY GOVERNMENTAL REQUIREMENTS AND INCENTIVES:

VAPOR INTRUSION

June 25, 2008

ByDavid Restaino, Esq. and

Burton J. Jaffe, Esq.

Overview

• OVERVIEW

• What Causes Vapors?

• Why Do We Care?

• How Do We Avoid Liability?

MANDATORY GOVERNMENTAL REQUIREMENTS AND INCENTIVES: VAPOR INTRUSION

© 2008 Fox Rothschild

Vapor Causation: The Science

• Vapors – contaminated soil &/or groundwater releases vapors, and these migrate up the soil column

• Vapors Migrate into Buildings – they become trapped, like radon gas, and can be harmful to people

Liability Risks

• Personal Injury

• Diminution in Value

• Bureaucratic Nightmare

• Consultant Costs & Legal Fees

• Liability, Liability, Liability

Avoiding Liability

• Phase I Investigation

• Usually just a non-intrusive site review• Generally, conformance to ASTM standard allows for innocent purchaser

protection• Concerns: Is it contaminated? Is the adjacent parcel contaminated?

Is the groundwater contaminated?

• Phase II Sampling• More intrusive sampling than for a Phase I• When to undertake Phase II sampling – realistic concern of contamination• What it might show

• Indoor Air Sampling• Potential Problems/Other Contaminants – think dry cleaning, carpets . . . .

• Guidance in at least 26 states

State Requirements

• New Jersey• Guidance document relates to screening, groundwater & soil

investigation, indoor air investigation, as needed. • Has certified lab component, plus community outreach.• Uses Indoor Air Building Survey & Sampling Form

• Pennsylvania• Guidance document with a flow-chart for pre-screening,

reviewing potential pathways and determining risks

• Delaware • “Policy” that acts like a decisional flow-chart, similar to

Pennsylvania

Other “Requirements”?

Realistic Concerns• ASTM E-2600-08 (March 3, 2008) “Standard Practice for

Assessment of Vapor Intrusion into Structures, on Property Involved in Real Estate Transactions” – will this become a new standard?

• Evaluate vapor intrusion when buying and selling real estate

• Testing• Acceptable Limits – may be a matter of “risk” as opposed

to a numerical standard• Voluntary . . . and will it stay that way?

Practical Approaches

• Know Your Site

• Do Your Diligence

• Ask the Experts