Overview Why are we here? I.e., what drives all of this interest? Evidence Control Commitment Control Liability Control

Key Takeaways VI is not different in kind from other exposure pathways. Approaches taken for years on controlling liability as to other media can be effectively applied equally to VI. Not proactively managing a VI issue, though, can change the magnitude of your problem.

The Start of it All It is possible for vapor intrusion to hurt people. That raises public health questions: When? Where do we draw lines? Who draws the lines? How many lines? How do we know when a line is crossed? Can it be fixed? Must it be fixed? Must I fix it? Who gets to answer these questions?

And Liability Questions Who pays? Under what hammer? Environmental regulatory requirements Toxic tort Worker exposure Transactional demands HRS scoring proposal How do we soften the blow?

Control is an Illusion Nevertheless, control what you can. Evidence/narrative control Commitment control Claims control

Evidentiary Control “We’ve got groundwater contamination here. You guys need to take a look at VI.” In an ultimate sense, liability would need to proven in court. Doing that requires evidence. So, you want to avoid unnecessarily creating evidence regarding VI. Data can ease the road for, in particular, potential toxic tort claimants.

Channel Your Fear Resist indoor air sampling Ambiguous results Scariest results Iterative approach Model first Exterior soil gas Subslab soil gas Smart ambient location If forced inside, be very aggressive with controlling background sources. Skip to a remedial system Attorney-client privilege

Commitment Issues Controlling the extent to which your plan document commits you to study and actively address results. Mostly about smart plan drafting. Also about smart reporting. Preserve the ability to find an exit ramp using “multiple lines of evidence.”

Should You Commit to: Multi-phase VI sampling if exterior soil gas exceeds a screening level? Next step in iterative approach after screening level exceedance? Implementing a remedial system if an indoor result exceeds the indoor air screening level? Implementing a remedial system if an indoor result exceeds the indoor air screening level after critical analysis of household sources? Simply relying on data results as mechanically determinative of next steps? Presenting and evaluating the data and making recommendations about what, if any, additional steps are warranted?

Claims Control Transactional diligence. Transaction terms. Statutory programs Brownfields VRP Bona fide prospective purchaser (But watch for the plot to thicken.)

Key Takeaways VI is not different in kind from other exposure pathways. Approaches taken for years on controlling liability as to other media can be effectively applied equally to VI. Not proactively managing a VI issue, though, can change the magnitude of your problem.

Questions Max Zygmont mzygmont@kmcllaw.com 404-969-0747