1. © 2008 Fox Rothschild MANDATORY GOVERNMENTAL REQUIREMENTS AND INCENTIVES: VAPOR INTRUSION June 25, 2008 By David Restaino, Esq. and Burton J. Jaffe, Esq.

2. Overview OVERVIEW What Causes Vapors? Why Do We Care? How Do We Avoid Liability? MANDATORY GOVERNMENTAL REQUIREMENTS AND INCENTIVES: VAPOR INTRUSION © 2008 Fox Rothschild

3. 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

4. Liability Risks Personal Injury Diminution in Value Bureaucratic Nightmare Consultant Costs & Legal Fees Liability, Liability, Liability

5. 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

6. 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

7. 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?

8. Practical Approaches Know Your Site Do Your Diligence Ask the Experts