At a recent presentation to approximately 100 real estate lawyers, we asked for a show of hands as to how many in the audience had heard of “vapor intrusion.” Approximately 10 to 20 audience members raised their hands. Out of that group, we then asked how many of them had worked on a property that involved a vapor intrusion issue. Only five audience members raised their hands. If we were to conduct this unscientific survey of real estate lawyers again in the next several years, we suspect that the number of hands raised in response to these questions will increase dramatically in light of the growing attention, regulation and litigation over vapor intrusion issues.

Vapor intrusion or VI is the term used by the U.S. Environmental Protection Agency (EPA) and other state agencies to describe the migration of volatile chemicals from any subsurface vapor source (e.g., contaminated soil or groundwater) through the soil and into an overlying building. VI represents a potential “pathway” by which humans can be exposed to hazardous vapors that exist in the subsurface either because of natural sources (e.g., radon) or man-made contamination. Depending on the use of the overlying buildings (residential versus nonresidential), the concentration of the hazardous vapors, and the nature and extent of the pathway, VI may cause unacceptable human health risks that require mitigation.

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