This Saline, Michigan case adds another decision to similar recent cases such as Ashley II and Robertshaw, which assess whether current owners of contaminated property met CERCLA’s Bona Fide Prospective Purchaser (BFPP) defense. It also showcases the interesting legal question concerning the relation between BFPP requirements to (1) take reasonable steps, after acquisition, to prevent “releases” and (2) to show that, all “disposal” occurred prior to acquisition.
In Saline River Props., v. Johnson Controls, Inc., 2011 U.S. Dist. LEXIS 119516 (E.D. Mich. Oct. 17, 2011)
a Federal District Court in Michigan considered, among other issues, whether a current owner could be liable under CERCLA for exacerbating pre-existing contamination caused by the prior owner. The prior owner, Johnson Controls, Inc. (JCI), claimed that the current owner, Saline River Properties, LLC (Saline) could be liable under CERCLA for exacerbating existing vinyl chloride contamination by removing a building’s concrete slab and thereby “allowing additional rainwater into the ground that the building and slab might have partially diverted…” The prior owner prevailed.
Read More »
The USEPA released on September 13, 2011 new guidance titled “Recommended Evaluation of Institutional Controls: Supplement to the Comprehensive Five Year Review Guidance” providing recommendations for the monitoring and inspection of ICs during the CERCLA five-year review process. The new USEPA guidance recommends that “ICs be mentioned specifically in the overall protectiveness statement when long-term protectiveness hinges on compliance with ICs.” The EPA guidance directly addresses the five year review process on Superfund sites, but in doing so it also adds a new ingredient in defining best practice for maintaining the integrity and effectiveness and assuring compliance with ICs. EPA’s transmittal letter explains:
This guidance supplements OSWER’s 2001 Comprehensive Five-Year Review guidance and provides recommendations for conducting five -year reviews for the IC component of remedies in a manner similar to the review of engineering or other remedy components.
At Terradex, we know this guidance will meaningfully inform the continually improving best practice for ICs, thereby increasing the reliability of this often necessary remedy component. EPA’s recommendations align with numerous technology services Terradex has constructed for states and private companies including 1) use of excavation clearance systems, 2) property mapping systems to show current owner and property boundaries, and 3) integrated communication to local government where day-to-day land use decisions are made.
Read More »
We often think of Institutional Controls (ICs) as prohibiting certain uses – for example, prohibiting groundwater use, prohibiting daycare or school, etc. But often, and importantly, ICs help make sure that contaminated soil, when excavated, is managed properly and isn’t, for example, carried away for use as “clean fill.” For those who deal with ICs, soil management clauses like this one will look familiar. They often read:
No activities that will disturb the soil at or below the pavement in the restricted Areas (e.g., excavation, grading, removal, trenching, filling, earth movement, or mining) shall be allowed on the Property without a Soil Management Plan and a Health and Safety Plan.
Managing contaminated soil can be just as or more important than other IC prohibitions yet, as our experience has shown us, without monitoring and appropriate care excavations can go forward (even with local permits) without the proper regard for IC soil management clauses.
Read More »
Two Terradex leaders, Bob Wenzlau and myself (Michael Sowinski), accompanied by Tim Haley of Barnes and Thornburg, will lead a September 28th, 2pm EST webinar, hosted by BNA. Our main focus will cover the recently published ASTM E2790-11, “Standard Guide for Identifying and Complying With Continuing Obligations.” This Guide provides industry consensus on good methods or “best practices” for Continuing Obligations, and in particular institutional controls, engineering controls or other recognized environmental conditions (RECs). In addition to the Guide, we’ll also overview the 2002 Brownfield Amendments, recent case law addressing Continuing Obligations (e.g., Ashley II and Robertshaw), and sample scenarios applying the steps recommended in the ASTM Guide. Please join us. You can register at this BNA link. Read More »
The long term success of Institutional Controls (ICs) and cleanup remedies is often only as strong as the financial health of new property owners. This is why, along with its classic suite of land monitoring, Terradex LandWatch now monitors the financial health of contaminated property owners.
When new owners take over IC sites or residually contaminated sites, the old owners (a.k.a. divested owners) and regulators depend on the new owner to properly manage the property or, in ASTM parlance, perform continuing obligations. But if new owners run out money, ICs and engineering controls can fail and other recognized environmental conditions (RECs) can wreak inadvertent health impact. The foreclosure process can wipe out recorded “deed restrictions,” and thereby generate a regulatory conundrum for the responsible parties and regulators who relied on their durability. Financial failure of a property owner potentially exposes even the most careful divested property managers to “comeback” liability and could trigger the need for regulators to act. Even the best laid remedial plans can unravel when an owner enters financial distress.
Read More »
Can you find the location of a water well in on a governmental mapping system? The answer is maybe – and it varies nationwide. A strong tension between the environmental health protection and safeguards for homeland security controls whether you will find that water well. Environmental health protection invites for more transparency in water well locations to aid vulnerability assessments from spill sites, while homeland security management invites hiding the well locations for fear that terrorist would know their locations to affect an assault. How can we balance the environmental health and security threat, and determine if we have the proper policy course? Why is there so much variance nationally?
The North Carolina mapping system as an example of where the tensions have competed, and have limited the potential of a promising public mapping service. The Public Water Supply Section of the North Carolina Department of Natural Resources maintains an interactive web map that shows water wells juxtaposed with contaminated sites.
Terradex’s stake in this discussion is toward maintaing the effectiveness of our duties of helping assure long term safety around contaminated sites. Greater transparency, or at least permission to view, would facilitate Terradex’s environmental health stewardship functions by permitting a routine view of whether water wells have been installed, or shifted from dormant to active. At Terradex, we believe the benefit to public health protection warrants reconsidering the current paradigm that favors masking well locations, and establishing a mechanism to increase transparency to those serving to protect environmental health.
Read More »
The ASTM Task Group that guided and debated building Standard Guide for Identifying and Complying With Continuing Obligations was congratulated by the USEPA Office of Brownfield and Land Revitalization. David Lloyd on behalf of the Brownfield Office and the entire USEPA sent his congratulations in an August 1 letter to Terradex asking that this be extended to the ASTM Task Group. A copy of the letter may be viewed at this link.
At Terradex, we found the engagement by both the Brownfield Office and the Office of Site Remediation and Enforcement integral to the building a better guide. Already, a focus shift is underway whereby this guidance by ASTM in conjunction with policy by the agency itself will bring greater clarity in expectation for landowners as well as start setting practice norms to increase institutional control effectiveness.
The Bureau of National Affairs (BNA) within their Environmental Due Diligence Guide featured an Insider’s Perspective on the ASTM released guide for Continuing Obligations. Terradex is grateful for BNA’s coverage of this guide and especially the attention provided by their reporter Mary Ann Grena Manley. This coverage by BNA builds the understanding of landowners as they appreciate how continuing obligations are straightforward. In time the guides will bring comfort and predicatability to those developers who undertake Brownfield redevelopment. Terradex looks forward to working with BNA to structure a webinar in the Fall of 2011. Read the article below.
Read More »
After years in the making and on the heels of two recent court decisions addressing “appropriate care,” ASTM published E2790-11, the “Standard Guide for Identifying and Complying With Continuing Obligations.”
Read More »
A group of institutional control experts and state and local government experts, in a roundtable setting, will describe and compare thoughts about emerging trends in the IC institution, and particularly IC monitoring and stewardship, during an upcoming educational session at Brownfields 2011 – April 4th at 1pm.
Read More »
