Mitigating Vapor Intrusion Risks: Navigating Interplay Between Federal and State Mandates, Negotiating Real Estate Deals

Recording of a 90-minute CLE webinar with Q&A


Conducted on Thursday, January 5, 2017
Recorded event now available


This CLE webinar will prepare counsel to identify and address risk associated with vapor intrusion (VI) in real estate transactions using the most recent EPA guidance. The panel will review recent federal and state agency regulatory actions and court decisions, offer best practices for understanding and navigating the interplay between federal and state requirements, and outline approaches to mitigate VI risks.

Description

VI poses risks to property value and may result in clean-up and tort liability for owners of property affected by volatile chemical contamination. Properties located on or near historic contamination sources, such as former industrial facilities, gas stations and dry cleaners, are affected.

Several state and federal agencies have issued guidance on VI in recent years. VI was addressed in 2013 when the EPA issued its VI guidance and the ASTM Standard E-1527-13 was published, requiring a Phase I Environmental Site Assessment to evaluate VI risks for reasonably expected future land use conditions including new building construction and new uses and occupants for uninhabited buildings.

To adequately address risks associated with VI in real estate transactions, counsel must stay on top of federal and state regulatory actions and case law. In negotiating and drafting contracts, counsel can protect clients’ interests in commercial transactions using such provisions as indemnification and specific representation regarding VI.

Listen as our panel, including an experienced environmental attorney and an engineer specializing in VI issues, examines the recent EPA guidance and outlines how VI can be evaluated and addressed in transactions. The panel will also discuss the interplay between federal and state requirements, explain how to determine which regulatory guidance applies to the client’s situation, and offer best practices for counsel to protect clients’ interests.

Outline

  1. Regulatory environment
    1. Federal
    2. State
  2. VI in real estate transactions
    1. Evaluation
    2. Due diligence
  3. Interplay between federal and state requirements
  4. Mitigating and managing VI risks
    1. Reps and warranties
    2. Releases and waivers
    3. Indemnification
    4. Environmental insurance

Benefits

The panel will review these and other key issues:

  • What are the implications of recent federal and state regulatory actions related to VI?
  • How should VI be addressed in due diligence in real estate transactions?
  • What are key strategies to manage potential VI liability risks in real estate transactions?

Faculty

Matthew E. Cohn, Officer
Greensfelder Hemker & Gale, Chicago

Mr. Cohn’s practice focuses on all aspects of environmental law, pairing his legal experience with a professional background in environmental science. His work includes litigation, environmental due diligence and counseling on regulatory compliance. He counsels businesses on CAA and CWA regulations and has managed numerous due diligence projects and the investigation and remediation of contaminated properties. Mr. Cohn regularly writes and speaks on environmental law topics, including fracking and vapor intrusion.

David Folkes, Senior Principal Environmental Consultant
Geosyntec Consultants, Greenwood Village, Colo.

Mr. Folkes has more than 35 years of experience focused on environmental and geotechnical consulting throughout the U.S. and Canada. One of the nation's foremost experts on vapor intrusion (VI) evaluation and mitigation, he was invited by U.S. EPA to address the national RCRA meetings held in 2000 and 2002 on VI issues impacting sites throughout the country. Mr. Folkes has served as a consultant to industry and regulatory agencies on more than 100 VI sites around the world, often providing litigation support to clients.

Gail L. Wurtzler, Partner
Davis Graham & Stubbs, Denver

Ms. Wurtzler is a former head of the firm’s Environmental Group. She has prosecuted and defended CERCLA cost recovery and contribution claims, RCRA citizen suit claims, and similar claims under state laws. She has more than 20 years of experience defending natural resource damages claims. Ms. Wurtzler also advises clients and consultants regarding their interactions with regulators. Subjects include regulatory compliance, remediation, management of regulated substances, proposed and final action levels, and defense of penalty proceedings, among others.


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Environmental Law Advisory Board

John J. Allen

Partner

Allen Matkins

Albert M. Cohen

Partner

Loeb & Loeb

Aaron Courtney

Partner

Stoel Rives

Andrew N. Davis

Partner

Shipman & Goodwin

David R. Gillay

Partner

Barnes & Thornburg

Brian D. Israel

Partner

Arnold & Porter Kaye Scholer

Thomas J. P. McHenry

Partner

Gibson Dunn & Crutcher

James B. Slaughter

Principal

Beveridge & Diamond

Jeffrey A. Smith

Senior Counsel

Sidley Austin

E. Gail Suchman

Special Counsel

Stroock & Stroock & Lavan

Gregory D. Trimarche

Senior Counsel

Ring Bender

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