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© 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