In a novel case, the Court of Appeals (Second District Montgomery County) held that Ohio EPA had no duty to disclose knowledge of contamination to a buyer of a contaminated property, even though the Agency had records in its files documenting additional contamination. See, Ohio v. Republic Envrtl. Sys. (Ohio), Inc., 2015 WL 5783650 (Ohio
due diligence
New Ohio EPA Public Records Procedures Impact Phase Is
More than one environmental consultant has reported that Ohio EPA has changed its public records review procedures. Ohio EPA has centralized its document review process. It has developed a new public records request form that it asks any consultant requesting records to fill out (click here for the form).
After files are compiled…
As a Buyer Can I or Should I Rely on an Old Phase I?
In real estate transactions it is not uncommon for the seller to provide the buyer a copy of prior a Phase I environmental assessment. The seller either ordered a Phase I in anticipation of the transaction or one may exist from a prior transaction involving the same property. Should the buyer be satisfied with this…
Which Phase I Standard Should Consultant’s Use Right Now?
Over the weekend, there was a good blog post on Schnapf LLC Blog discussing which Phase I standard lawyers and consultants should use for at least the rest of 2013. Due to an unanticipated reversal by U.S. EPA, there is a gap right now between the current ASTM standard and EPA’s recognized standard for Phase…
Are All Phase I’s the Same?
The title of this blog post may make many in the environmental consulting and legal business laugh. "Of course not…" most would certainly reply. With Phase I’s governed by two ASTM guidance documents and the EPA "All Appropriate Inquiries" Rule (AAI), how can there be such variations?
The answer is that a Phase I environmental…
U.S. EPA Endorses New Phase I Standard
ASTM 1527-05 was the first ASTM standard recognized by U.S. EPA as meeting the requirements of the "All Important Inquiries Rule." (AAI) AAI sets forth the standards and practices necessary for fulfilling the requirements to obtain liability protection (i.e. bona fide purchaser defense) under CERCLA section 101(35)(B). Most Phase I proposals reference 1527-05. …
Buyer Beware: Five Environmental Due Diligence Tips for Purchasers
Performing appropriate environmental due diligence prior to acquisition of any industrial or commercial property is a necessity. Due to expansive liability under environmental statutes, most notably CERCLA (i.e. Superfund), a purchaser of contaminated property can be held liable for all cleanup costs regardless of whether the purchaser caused the contamination or knew it was present. …
A Revised ASTM Standard for Due Diligence to Be Issued
A task force assigned to review the ASTM standard for Phase I environmental assessments has completed its review of the current standard. It has sent its recommendations to U.S. EPA who is expected to accept the recommendations.
Any revisions to the ASTM standard for Phase I has big implications. Phase I reports are a requirement of the…
Addressing the State Liability Gap in the Federal “Innocent Landowner Defense”
Liability for pre-existing contamination acts as a strong deterrent to re-use of brownfield properties. Prospective purchasers simply do not want to expose themselves to potential liability especially when they had nothing to do with the contamination.
At the federal level, there has been an attempt to address liability exposure in order to provide prospective purchasers some level…