Archives: Property Acquisition, Site Remediation & Brownfields Redevelopment

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Four Things to Know About US EPA’s Draft WOTUS Rule

On February 14, 2019, the US Army Corps of Engineers and US EPA (Agencies) published in the Federal Register the proposed rule to revise the definition of “Waters of the United States,” the term that identifies the scope of federal jurisdiction under the Clean Water Act.  The proposed rule is the second step in a two-part process … Continue Reading

Left In The Lurch – Another UK Landlord Convicted Following Tenant’s Unlawful Waste Operations

Recent caselaw demonstrates that regulators are prepared to prosecute landlords as a direct result of their tenants’ unlawful waste operations. Landlords should consider this possibility when negotiating with prospective tenants and put in place reasonable safeguards to protect themselves. However, victims of fly-tipping may potentially face a similar risk of prosecution against which such safeguards … Continue Reading

Two Federal Courts Issue Decisions Against EPA “Suspension” Rule, Reviving and Protecting Obama-era Waters Rule

In the past two weeks, U.S. District Courts in South Carolina and Washington issued decisions that dealt additional blows to the Trump Administration’s efforts to unravel the 2015 Obama-era “waters of the United States” rule (“Obama Rule”).  In light of these rulings, the Obama Rule appears poised to remain effective in 22 states for at least … Continue Reading

The Significance in UK Nuisance Law of the Introduction of the “Agents of Change” Principle

The National Planning Policy Framework (NPPF) was first published in March 2012. The original NPPF (NPPF1) consolidated various other Planning Policy documents into one overarching framework. The purpose of the NPPF is set out in the introduction which states that “It provides a framework within which locally-prepared plans for housing and other development can be … Continue Reading

US BUILD Act Clarifies Tenant Standing for Bona Fide Prospective Purchaser Protections from Contaminated Property Liability

When President Trump signed the omnibus spending bill on March 23, 2018, he also enacted the Brownfields Utilization, Investment, and Local Development Act of 2018 (BUILD Act) (not to be confused with the Better Utilization of Investments Leading to Development Act of 2018—yet another BUILD Act of 2018). Among the several provisions within the BUILD … Continue Reading

President Trump’s Proposed Legislative Outline for Rebuilding Infrastructure in America Portends Significant Changes for Real Estate Developers, If Adopted

President Trump’s Legislative Outline for Rebuilding Infrastructure in America includes several modifications that many believe will streamline and accelerate redevelopment of brownfield sites that are currently tied up in Superfund cleanups.  Despite previously cutting funding for the federal brownfields program, the President’s proposed infrastructure plan would increase access to funding for Superfund and brownfields sites … Continue Reading

Navigating the “No Affiliation” Requirement to Bona Fide Prospective Purchaser CERCLA Liability Protection

­An important consideration for purchasers of US commercial property is establishing Bona Fide Prospective Purchaser (“BFPP”) liability protection to mitigate the risk of liability under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9601 et. seq.   Because the current owner of a property where a release of hazardous substances has occurred … Continue Reading

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, some … Continue Reading

Enforcement of UK Waste Exemptions – No Longer the Light Touch?

Registered waste exemptions are not to be treated lightly and compliance with their conditions is not flexible, as the Environment Agency has reinforced in a recent case.  A lengthy investigation culminating in a nearly £20,000 fine has been handed down by Chelmsford Magistrates Court in relation to illegal deposits of waste on farmland in Essex. … Continue Reading

Increased Risk of Clean-Up Liability for Owners of Closed Council Landfill Sites in England and Wales

A recent Court of Appeal case, Powys County Council v Price and Hardwick, has addressed the issue of liability of successor public authorities under the UK contaminated land regime (Part 2A Environmental Protection Act 1990) (“Part 2A”). The case related to a landfill site that had been operated by local authorities of the county of … Continue Reading

UK Government Issues Guidance on Minimum Energy Efficiency Standards for Leased Property

Beginning 1 April 2018, under the Energy Efficiency (Private Rented Property) (England and Wales) Regulations 2015 (commonly referred to as the MEES Regulations), non-domestic landlords must ensure that any properties they rent out in England and Wales have an energy efficient rating of at least an E (using the A-G rating system from Energy Performance Certificates … Continue Reading

Successor Local Authorities May Be Liable Under the UK Contaminated Land Regime

The recent decision of the High Court in Price and Hardwicke v Powys County Council determined that a local authority may acquire potential liability under the contaminated land regime (“CLR”) from its statutory predecessor, notwithstanding that the CLR did not enter into force until over 5 years after the transfer of liabilities took place.… 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

Ohio Appellate Court Affirms Appropriation of Private Land for Propane/Butane Pipeline

Late last month the Seventh District Court of Appeals in Ohio upheld the appropriation of private land for a pipeline that will carry pure propane and pure butane, ruling that such fractionated natural gas liquids still constitute “petroleum” under Ohio’s eminent domain laws.  The case is now on appeal to the Ohio Supreme Court, but … 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

Onshore Oil And Gas – Monitoring And Minimising Environmental Degradation In The UK

United Kingdom Onshore Oil and Gas (“UKOOG”), the representative body for the UK onshore oil and gas industry, have published guidelines for establishing environmental baselines that aim to identify variations in environmental conditions which may be attributable to onshore hydrocarbon activities.  The UKOOG guidelines are summarised below. Industry Regulators The guidelines note that the UK’s onshore hydrocarbon industry … Continue Reading

US EPA Designates ASTM E1527-13 as the All Appropriate Inquiry Winner; Eliminates Reference to ASTM E1527-05

Effective October 6, 2015, US EPA will list ASTM 1527-13 “Standard Practice for Environmental Site Assessments:  Phase I Environmental Site Assessment Process” as the primary industry standard that “may be used to comply” with the All Appropriate Inquiry (AAI) requirements in 40 CFR 312.20.  This is, according to US EPA’s final rule issued on October 6, 2014, … Continue Reading

Flood Re – New Consultation Launched on UK Flooding Insurance Scheme

We last reported on the Flood Re scheme on 17 July 2013 and commented that this was a new scheme aimed at providing affordable insurance for homeowners whose properties are considered to be at high risk of flooding. It was designed to replace the ABI Statement of Principles which expired on 31 July 2013 and … Continue Reading

Environmental Groups Are Seeking To Force US EPA To Create Superfund Financial Responsibility Rules Through Litigation

On August 8, 2014, a coalition of environmental groups filed a Petition for Writ of Mandamus  to the D.C. Circuit seeking an order that US EPA “has unreasonably delayed issuing financial assurance rules” under the federal Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) Section 108(b), 42 U.S.C. 9608, and directing US EPA to finalize the rules under this … Continue Reading

US Supreme Court Holds CERCLA Does Not Preempt State Statutes of Repose

The US Supreme Court has again reiterated that the federal Superfund law should be interpreted narrowly and plainly, this time while addressing the statute’s impact on state tort theories arising from releases of hazardous substances.   In CTS Corp. v. Waldburger, the Court held that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) does not preempt … Continue Reading

Concrete and Sewers – A Real Nuisance for Contractors?

In the recent decision in the case of Northumbrian Water Limited (“NWL”) v McAlpine Limited (“McAlpine”) [2014], Moore-Bick LJ provided the leading judgement (upholding the first instance judgement) that the contractor, McAlpine, was not liable for concrete entering and blocking a sewer during the course of construction works. This case does not provide any new … 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 Supreme Court to Hear CERCLA Preemption Case

The US Supreme Court recently announced it will hear an appeal of the Fourth Circuit’s decision in Waldburger v. CTS Corp., No. 12-1290 (4th Cir. 2013) involving the preemption of state statutes of repose by Section 9658 of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).  In Waldburger, the Plaintiffs sued CTS Corporation for nuisance after discovering their lands were … 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
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