Turn to the nation's most objective and informative daily environmental news resource to learn how the United States and key players around the world are responding to the environmental...
SAN FRANCISCO—To protect against vapor intrusion liability in real estate transactions, a potential buyer should hire an expert consultant to evaluate the property, including for vapor encroachment and vapor intrusion, a lawyer told a conference May 20.
The buyer also should require full disclosure of pertinent records, including agency records, site investigations, technical reports, manufacturing processes, and what and how chemicals were previously used on the site, according to Edward L. Strohbehn Jr., a partner with Bingham McCutchen LLP.
Vapor intrusion refers to the migration of volatile chemicals from contaminated soil or groundwater into overlying buildings. Volatile chemicals may include volatile organic compounds, select semi-volatile organic compounds, and under some conditions some inorganic compounds, such as elemental mercury, radon, and hydrogen sulfide, according to the Environmental Protection Agency.
A “vapor encroachment condition” is defined by ASTM International (formerly the American Society for Testing and Materials) as the presence or likely presence of vapors from chemicals of concern in the subsurface of a property caused by the release of vapors on or near the property.
Strohbehn made his comments on the last day of a three-day conference called Sustainable Property Transactions: Managing Distressed Assets and Renewable Energy Opportunities. The conference was produced by RTM Communications Inc.; BNA was a co-sponsor.
The study of vapor intrusion and encroachment is a relatively new area and its pervasiveness and threat to human health still largely unknown. The third day of the conference was devoted to the vapor intrusion issues on distressed properties, including brownfields.
EPA Answers to 55 Questions Pending.
Another key action to protect against vapor intrusion liability is to achieve broad, strong seller representations and warranties, Strohbehn said.
A prospective buyer should also not obtain seller releases and waivers of claims—even limited ones, he said. A buyer should, however, obtain seller indemnification for pre-existing conditions and should establish environmental escrow, he said.
In a related area, Strohbehn said EPA is expected to issue soon “55 questions” on vapor intrusion and their answers, which will constitute a form of guidance. He could not speculate to BNA after the panel discussion how this material might relate to final vapor intrusion guidance, expected by the end of November 2012, that would update 2002 draft guidance (209 DEN A-7, 11/1/10).
EPA did not immediately respond to a phone call from BNA requesting comment on the 55-question document.
More than 30 states and several federal agencies, including the Department of Defense and the U.S. Postal Service, have issued vapor intrusion guidance, Strohbehn told BNA after the panel discussion. In addition, EPA Regions 3 and 5 have issued such guidance, he said.
By Pat Ware
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)