Archives: Environmental Due Diligence

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US EPA’s Superfund Task Force Recommendations May Expedite Cleanup and Reuse Process for Contaminated Sites

Shortly after being confirmed as the new US EPA Administrator, Scott Pruitt appointed a Superfund Task Force to review the approximately 1,300 Superfund sites in the United States and make recommendations on how to improve and restructure the cleanup process. Administrator Pruitt observed that “many of these sites have been listed as Superfund sites for decades, … Continue Reading

UK Green Paper on Industrial Strategy: Environment Safety and Health Implications

The UK Government has published a Green Paper on Industrial Strategy, which identifies a number of challenges over the coming years, including: building on existing strengths and extending excellence into the future (with reference to the UK’s global reputation in industrial sectors – from automotive and aerospace to financial and professional services and the creative … Continue Reading

Asbestos-Containing Materials: A Non-Scope Consideration Worth Investigating During Environmental Due Diligence

A common question that arises when performing environmental due diligence on commercial real estate is the degree to which the presence of asbestos-containing materials (ACMs) should be investigated.  In the case of ACMs, “what you don’t know can hurt you” and, therefore, the old axiom of “less is more” does not apply.  This is especially true regarding asbestos not only … Continue Reading

When to Consider “Non-Scope Considerations” in Environmental Due Diligence

Performing thorough environmental due diligence for commercial and industrial property acquisitions requires consideration of diverse risks to a prospective purchaser. Such diligence generally includes a Phase I environmental site assessment performed under ASTM Standard Practice E1527-13 (ASTM E1527-13), which is designed to investigate the possibility of hazardous substance or petroleum product releases at a commercial property—the presence of which … Continue Reading

UK Liquor Licensing Law for Insolvency Practitioners

The trading environment for Britain’s pubs has never been tougher. According to the Campaign for Real Ale, 29 pubs close every week in the UK, with pubs selling approximately a third of the number of pints that they used to sell in the late 1970s. Against this backdrop, insolvency practitioners need to be aware of … Continue Reading

US Court of Appeals for the Eighth Circuit Preserves CERCLA Contribution Protection Despite Tolling Agreement

In Asarco v. Union Pac. R.R. Co., 2014 U.S. App. LEXIS 15285 (8th Cir. 2014), the Eighth Circuit affirmed the lower court  in Asarco LLC v. Union Pac. R.R. Co., 2013 U.S. Dist. LEXIS 108852 (D. Neb. Aug. 2, 2013), dismissing the contribution, breach of contract, and declaratory judgment claims brought by Asarco against Union Pacific … Continue Reading

Complying with the ASTM E1527-13 Vapor Encroachment Obligations

How to comply with the vapor encroachment assessment required by ASTM Standard E1527-13 (ASTM E1527-13) has become a common question for Phase I Environmental Site Assessment users in search of satisfying the CERCLA all appropriate inquiry rules.   As we reported in our prior frESH law blog post, unlike ASTM Standard E1527-05, the new ASTM E1527-13 … Continue Reading

US EPA Approves (Again) Phase I ESA Standard ASTM E1527-13; Announces Intent to Remove Reference to ASTM E1527-05 in AAI Rule

On December 30, 2013, US EPA issued its final rule approving use of ASTM E 1527-13 Standard Practice for Environmental Site Assessments to satisfy the All Appropriate Inquiry (AAI) requirements under CERCLA Section 101(35)(B).  The rule is effective immediately.  As expected and reported in our prior frESH law blog, US EPA clarified that “today’s rule … Continue Reading

USEPA Withdraws Direct Final AAI Rule Approving Use of ASTM E 1527-13

On October 29, 2013, as expected and reported in our prior frESH law blog, USEPA withdrew its August 15, 2013 direct final rule that had approved the use of new ASTM Standard E 1527-13 to satisfy the All Appropriate Inquiry (“AAI”) requirements.  The withdrawal was triggered by adverse comments, some of which expressed concern over … Continue Reading

USEPA Expected to Withdraw Direct Final Rule Approving Use of Phase I ESA Standard ASTM E 1527-13 for AAI After Receiving Adverse Comments

Due to adverse comments received prior to the September 16, 2013 comment deadline, USEPA is expected to soon withdraw its August 15, 2013 direct final rule approving use of new ASTM Standard E 1527-13, “Standard Practice for Environmental Site Assessments:  Phase I Environmental Site Assessment Process” to satisfy the All Appropriate Inquiry (AAI) requirements.  In … Continue Reading

USEPA Approves Use of Phase I ESA Standard ASTM E 1527-13 for AAI

On August 15, 2013, USEPA published a direct final rule in the Federal Register approving use of new ASTM Standard E 1527-13, “Standard Practice for Environmental Site Assessments:  Phase I Environmental Site Assessment Process” to satisfy the All Appropriate Inquiry (AAI) requirements under Section 101(35)(B) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)  and set forth in 40 CFR … Continue Reading

First Appellate Court Ruling on Superfund Bona Fide Prospective Purchaser Defense Highlights Risks of Post-Acquisition Conduct

In the first appellate court ruling to address the post-closing obligations of a party asserting the Superfund bona fide prospective purchaser (BFPP) defense, the U.S. Court of Appeals for the Fourth Circuit affirmed that a South Carolina brownfields developer forfeited the defense because of its failure to exercise due care with regard to existing contamination. … Continue Reading

US Government Accountability Office Recommends More Aggressive TSCA Efforts by US EPA

The US Government Accountability Office (GAO) recently released a report critiquing the EPA’s efforts under the Toxic Substances Control Act (TSCA) and recommending that EPA take more aggressive steps under TSCA to achieve the agency’s goals of ensuring the safety of chemicals. The GAO report, “EPA Has Increased Efforts to Assess and Control Chemicals, but … Continue Reading
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