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© 2008 Fox Rothschild MANDATORY GOVERNMENTAL REQUIREMENTS AND INCENTIVES: VAPOR INTRUSION June 25, 2008 By David Restaino, Esq. and Burton J. Jaffe, Esq.
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Overview OVERVIEW What Causes Vapors? Why Do We Care? How Do We Avoid Liability? MANDATORY GOVERNMENTAL REQUIREMENTS AND INCENTIVES: VAPOR INTRUSION © 2008 Fox Rothschild
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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
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Liability Risks Personal Injury Diminution in Value Bureaucratic Nightmare Consultant Costs & Legal Fees Liability, Liability, Liability
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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
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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
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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?
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Practical Approaches Know Your Site Do Your Diligence Ask the Experts
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