Author Archives: Mike Sowinski

Michigan Amends Statute to Add New Institutional Control Continuing Obligations

For years, Michigan’s cleanup laws have set forth a fairly novel approach aimed at protecting new “nonliable” purchasers of contaminated property.  The legal and regulatory regime involves a characterization of the pre-purchase contamination as well as post-puchase “due care” procedures.  Last month, in December 2010, Michigan added institutional control (IC) compliance and management obligations to […]

Court Finds “Appropriate Care”

In 3000 E. Imperial, LLC, Plaintiff, v. ROBERTSHAW CONTROLS CO, et al. Defendants, No. CV 08-3985 PA, 2010 U.S. Dist. Lexis 138661 (C.D. Cal. Dec. 29  2010), a Federal District Court in California found a contaminated property purchaser to have exercised “appropriate care” and, in turn, to have satisfied the Bona Fide Prospective Purchaser (“BFPP”) […]

Ashley II Court Addresses the BFPP Defense

In the years I’ve spent helping to draft a Continuing Obligations Guide as part of the ASTM E50 Committee, my colleagues and I have often acutely noted (and perhaps lamented) that no court has ever directly addressed CERCLA’s Bonafide Prospective Purchaser (“BFPP”) defense.  Well now there’s a case.  In Ashley II of Charlseston LLC v. PCS Nitrogen, […]

U.S. Mayors Report Touts Brownfield Successes; Stays Silent on ICs

The United States Conference of Mayors recently published “Recycling America’s Land: A National Report on Brownfields Redevelopment.” The report highlighted the successes and benefits of brownfield redevelopment, but stayed silent on the use of Institutional Controls (ICs).  Of course many factors contribute to Brownfield successes but the important role of ICs, and their ongoing stewardship, ought […]

States and Locals Gather on the Web to Talk ICs

A little over a week ago, Terradex hosted a web meeting on institutional controls (IC) efforts at state and local agencies, with a particular focus on the use of one call and local and state cooperation. About 15 participants from EPA, state agencies, local government, and academia gave 3-minute overviews of their IC stewardship efforts […]

Helping West Virginia Screen One Call Excavation Tickets at Cleanup Sites

In both a progressive and unique move, the West Virginia DEP joined the state’s call-before-you dig, or “One Call” center to help screen for improper excavations at about 100 of the state’s environmental covenant sites.   The process requires a daily review of excavation tickets at or near these site which, in turn, allows DEP to […]

EPA Cleanup Proposal Relies on Institutional Control Monitoring

A recent EPA cleanup proposal directly recognizes what many have come to accept as a given – cleanups need institutional controls (ICs), monitoring of ICs is a critical component of cleanup remedies, and private sector landwatch services make monitoring effective. Recognizing the key role of IC monitoring, EPA’s June 2010 “proposed plan” for a Southern […]

States Evaluate Institutional Control Monitoring and Oversight

States seek improved and efficient LUC monitoring.

Enforcement First to Ensure Effective Institutional Controls at Superfund Sites

The United States Environmental Protection Agency has adopted an “enforcement first” policy for institutional controls, which will likely increase both recording and monitoring of ICs. The USEPA Office of Site Remediation and Enforcement has directed the agency’s program and enforcement staff, as well as Department of Justice, to pursue any action needed to ensure the […]