Archives: Property Acquisition, Site Remediation & Brownfields Redevelopment

Subscribe to Property Acquisition, Site Remediation & Brownfields Redevelopment RSS Feed

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

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

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

Biodiversity Offsetting in the UK – Streamlining Planning or Trashing Nature?

According to a keynote speech given last week by the Chancellor of the Exchequer, George Osborne, the UK economy is turning a corner towards recovery and the construction industry is playing a significant role in the nascent upturn.  However, one of the challenges for the government is how to encourage property development without compromising the … 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

Up the Creek? Flood risk insurance update

Flooding has become an increasing widespread property risk in the UK in recent years.  Flooding caused £400 million worth of damage in 2012 alone, and over 5 million properties in England and Wales are at risk of flooding (that’s almost 1 in 6 properties). The insurance industry’s 2008 Statement of Principles (Principles) set out a … 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

USEPA Expands Enforcement Guidance To Protect More “Bona Fide” Tenants Under CERCLA

On December 5, 2012, USEPA issued revised guidance under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) that expands protections for tenants that might otherwise be held liable for cleanup and remediation costs at leased properties.  This guidance[1] replaces USEPA’s prior 2009 guidance.  When Congress amended CERCLA with the Superfund Amendments and Reauthorization Act … Continue Reading
LexBlog