Insight & Commentary for the Business and Legal Community
This is the third post in a series of four assessing the current state of brownfield redevelopment in the State of Ohio. This third post will evaluate the progress Ohio has made in the last twenty years with regard to addressing brownfields.
Current Options for Addressing Environmental Liability
As discussed extensively in the prior posts…
This second post in the series discussing brownfield redevelopment in Ohio will provide an overview of the extent and nature of Ohio’s brownfield problem. First, the post will discuss Ohio’s progress in spurring brownfield versus greenfield redevelopment. Second, the post will provide an overview of public information regarding the number of brownfields in Ohio …
Two weeks ago I participated in the Ohio Brownfields Conference in Columbus, Ohio. 2016 marks the twentieth (20th) anniversary of Ohio’s Voluntary Action Program (VAP) which is implemented by Ohio EPA and is the primary regulatory program for cleanup of brownfields.
To mark the anniversary, Ohio EPA encouraged presenters to reflect on the success…
There has not been a lot of recent case law applying the CERCLA Bona Fide Purchaser Defense or Innocent Landowner Defense. Every time a new case emerges it is picked apart by the environmental bar trying to discern the value of the CERCLA defenses as well as pitfalls that will result in failure to establish…
One of the issues that has prevented local governments from being more aggressive in addressing brownfields has been liability concerns associated with existing environmental contamination. Prior to 2009, some local governments learned the hard way that placing their name in the chain of title as an "owner" exposed the local government to liability under CERCLA…
U.S. EPA has published in the Federal Register its action that removes the old Phase I standard (1527-05) from the "All Appropriate Inquiries" Rule (AAI). Until this action, AAI recognized both the old standard and the new standard- ASTM 1527-13.
The major differences between the old and new ASTM Phase I standard include:
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Phase I Environmental Assessments (Phase I ESA) are the first step in the environmental due diligence process. A Phase I ESA is a review of available information regarding a property to determine the possibility contamination may be present. The assessment includes a review of environmental databases, file reviews, interviews with regulators/property owners and a site…
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…
On December 30th, the Federal Environmental Protection Agency (EPA) finally took action trying to address the confusion it caused when it previously issued a final rule recognizing both ASTM 1527-05 and 1527-13 as appropriate standards for conducting Phase I assessment. A proper Phase I assessment is a requirement for establishing the Bona Fide Purchaser Defense…
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…
