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What To Do if Someone Wants to Test Your Property for Vapor Intrusion

Thumbnail image for Thumbnail image for house-vapor-hh-001.gifThe threat that chemicals contaminating groundwater are turning into a gas ('vaporizing") and drifting upward to intrude into the breathing space of overlying homes exists in many neighborhoods throughout the country. And this threat will remain with us for decades, as we continue to try to deal with nearly a century of the environmental recklessness of companies that spilled, poured, buried and dumped toxic chemicals because it was cheaper to get rid of them that way.

That is why the residents of these neighborhoods are being approached by polluters and government officials who want the homeowners' permission to come onto their property, and test to see if vapor contamination is present.

If you are approached for this permission, here's what you should know/do:

(1) Contact an environmental attorney. The fact that you are being approached at all suggests that there may be a serious problem that goes well beyond whether you should allow them on your property. You have the right to know why these people want to test; what chemical(s)they are testing for; how the chemical(s) might have gotten to your home; what the testing will consist of; when you will get the results; and how long have they known about the problem-i.e., why haven't they tested sooner? An environmental lawyer will help you get answers to these questions, and help you figure out if your family is in any danger and, if so, how to best protect your loved ones.

(2) Have the party wishing to do the testing sign an "access agreement". This is a legal document that describes the kind of testing they will be doing, including how invasive it will be, and promises to repair any damage to your property done by the testing. Often, those wanting to do the testing have an "access agreement" already prepared that they ask you to read and sign. Before you sign it, of course, have your lawyer look at it, to make sure you are protected. Remember: you are not responsible for the contamination, or threat of contamination. So, the testing should not cost you anything, harm your home in any way, or cause you any inconvenience or risk. If they do not have an "access agreement" already drafted for you to look at, and want to do the testing without an agreement, don't let them. Consult with your attorney about having him/her prepare an agreement that protects you.

(3) Get a written promise that you will get the results promptly. Simple point: they're testing on your property, so you have a right to see the test results. And you have the right to see them very soon. Like no more than 3-4 weeks after the tests on your property are taken. Many homeowners (who don't have a lawyer looking out for them) are treated shabbily on this point. Believe it or not, some are never shown the test results.....even though the tests were conducted on their property, and only after the property owners gave their permission for the testing. Sometimes, this failure to provide the homeowner the test results is just carelessness; but sometimes it's because the tester (i.e., the polluter) doesn't want the owner to know how bad the problem is. In either case, it's unacceptable. So, before you allow access, get a written agreement as to when you will be provided a copy of the test results. Some states, like New Jersey (see the link below), require that test results be shown not only to the home's owner, but also to any tenants of the home, and local health officials. This information should not be kept secret from those who most need to know it.

(4) Understand that the test results may hurt your property value. But have the tests done anyway. Common sense tells us that if testing on our property reveals the presence of toxic vapors, it's going to scare away some, maybe all, of the people who may wish to buy the property. That's going to make the home worth less....at least until the toxic vapors have been eliminated. How do potential buyers find out? Because you'll tell them. Either as a matter of common decency, or as a matter of state law, because most states now require that such information be disclosed to potential buyers. For obvious reasons, anyone who sells a home and keeps secret that the home is or may be contaminated is subject to being sued for misrepresentation, possibly even fraud. Because such testing may hurt their property values, some homeowners elect to not have the testing done at all. As if not having the testing done would make the contamination go away. I insist that my clients have the testing done (provided that the testing will be done correctly, and the results provided promptly). If there is a threat of dangerous contamination, you need to know the truth. You need answers. Look at it this way: the test result is the beginning of knowing what is necessary to protect your family.

There may be a lot more than just property value at stake.

http://www.nj.gov/dep/srp/guidance/vaporintrusion/templates/vi_template_letter_instructions_lsrp.pdf

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