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
CERCLA
Rethinking Brownfield Redevelopment in Ohio – Part 1 of 4
By Joseph Koncelik on
Posted in Brownfields/Transactions
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…
Latest Environmental Due Diligence Case Highlights the Value of the “Innocent Landowner Defense”
By Joseph Koncelik on
Posted in Brownfields/Transactions
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…
Local Governments, Land Banks and Brownfield Properties
By Joseph Koncelik on
Posted in Brownfields/Transactions
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…
Only About 1/2 of Phase I Assessments Analyze for Vapor Migration Risks
By Joseph Koncelik on
Posted in Brownfields/Transactions
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…
As a Buyer Can I or Should I Rely on an Old Phase I?
By Joseph Koncelik on
Posted in Brownfields/Transactions
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…
EPA Takes Action to Recognize ASTM 1527-13 as the “Appropriate” Phase I Standard
By Joseph Koncelik on
Posted in Brownfields/Transactions
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…
Which Phase I Standard Should Consultant’s Use Right Now?
By Joseph Koncelik on
Posted in Brownfields/Transactions
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…
U.S. EPA Alters Plan on New ASTM Standard for Due Diligence
By Joseph Koncelik on
Posted in Brownfields/Transactions
As discussed in a prior post, U.S. EPA had issued a direct final rule approving the use of the new ASTM Standard E 1527-13 "Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process." The final rule was set to take effect on November 13, 2013.
If the rule had gone into…
Are All Phase I’s the Same?
By Joseph Koncelik on
Posted in Brownfields/Transactions
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…