Back in November of 2021, ASTM International issued its revised Standard Practice E1527-21 to replace its 2013 version setting forth the specific procedures and requirements for environmental professionals preparing Phase I environmental site assessments. Preparation of a Phase I report under this Standard satisfies one of the obligations under the All Appropriate Inquires (AAI) Rule … Continue Reading
One of the key “non-scope considerations” commonly investigated during environmental due diligence for commercial property transfers is assessment of any lead impacts from lead-based paint (LBP) and lead dust. Although the use of LBP was banned in 1978, many structures constructed before that date retain LBP on surfaces. As that LBP deteriorates over time, it … Continue Reading
On June 16, Ohio Governor DeWine signed into law H.B. 168, which creates a “bona fide prospective purchaser” (BFPP) affirmative defense to liability for performing investigative or remedial activities that arise out of release or threatened release of hazardous substances. Ohio follows a number of other states that have similarly enacted a BFPP defense or … Continue Reading
The UK government has recently consulted on the future of minimum energy efficiency standards for non-domestic properties. If you are a UK landlord or tenant, and find the prospect of a minimum energy performance certification B somewhat eye-watering, then this consultation is critical reading for you. For more detailed information and a link to the … Continue Reading
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
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
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 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
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 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
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
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
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
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
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
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
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
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
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
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
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
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
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
