A new “CERCLA Continuing Obligations” discussion group recently began in Linkedin – actually its a subgroup within the “Environmental Issues in Business Transactions” discussion group that Larry Schnapf manages. Given this, it seemed right to quickly review how the phrase “continuing obligations” came into being and where its heading.
It started with CERCLA’s Brownfield Amendments. However, the phrase “continuing obligations” appears nowhere in the Amendments or in CERCLA generally. Rather, the Amendments list post-purchase requirements that must be shown “by a preponderence of evidence” in order to successfully assert CERCLA defenses made newly available in the Amendements – namely, the Bona Fide Prospective Purchaser Defense, the Contiguous Property Owner Defense, and the Innocent Landowner Defense (which was actually modified from the pre-Amendments version).
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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 the list of required “due care” procedures.
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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”) defense when they excavated underground tanks soon after learning that the tanks contained hazardous substances. This decision comes on the heels of Ashley II (finding the purchaser did not exercise “appropriate care”), which I wrote about earlier this week.
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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, Inc. v. Ross Development Corp. et al. (D. South Carolina, Oct. 13, 2010) Civ. Action No. 2:05-cv-2782, a Federal District Court in South Carolina analyzed the BFPP defense – and particularly the “appropriate care” element. There, the court ultimately found that while Ashley II of Charleston LLC (“Ashley”) properly performed all appropriate inquiries (“AAI”) before it bought the Columbia Nitrogen Site, after the purchase they failed to exercise “appropriate care.”
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Source: U.S. Conference of Mayors
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 not be overlooked.
Based on a survey of 99 cities, the report found that 1,010 sites had been redeveloped, with 906 additional sites undergoing redevelopment, yielding $309 million of additional tax revenue with the potential for an additional $1 billion in local tax revenues if all brownfields were to be redeveloped. Redevelopment, the report continued, has thus far provided over 161,000 new jobs, nearly 100,000 of which are permanent. The US Environmental Protection Agency also reports as to the benefits of Brownfield redevelopment.
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Terradex wishes to thank the panelists as well as the attendees for their participation in the webinar discussing daycare and the threats posed by contaminated sites. In the lead up to this webinar, Terradex published a post that sought to provide a fresh look at the progress to prevent the seminal environmental tragedy that unfolded at Kiddie Kollege daycare: children exposed across several years to mercury left in a former thermometer factory converted to a daycare. This webinar follows from a blog post Terradex prepared in September 2010.
From the vantage point of the webinar, progress has been made across four years since Kiddie Kollege. New Jersey, California, New York and Connecticut shared experiences showing varying approaches. The USEPA’s participation in the webinar, as well as the attendance by many states, broaden understanding of the threats land contamination can pose to children attending daycare. A bar is being set toward a national expectation of safety for children at daycare. A common challenge is the lack of funding for states to meet these challenges. The discussing journeyed through sizing the problem, understanding various state approaches, learning of forthcoming guidance both at the federal and state levels, discovering the limitations of local government zoning as a tool, and appreciating the modes of exposure such as rogue unmapped groundwater plumes and the associated vapor intrusion risk.
Within this post we offer the following:
- A streaming video of the webinar held on September 28
- Downloads of the PowerPoint Presentations
- Links to references identified during the webinar.
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Join us for a free 90-minute webinar on September 28th, 2010 at 1:30 PM EST (10:30 AM PDT) -
The webinar discussion will focus on experiences and solutions aimed towards preventing the establishment of daycare facilities in areas where environmental contamination could pose risks to children. The discussion will address progress and challenges since Kiddie Kollege, where a childcare facility was constructed at a contaminated site exposing children to mercury. Then the discussion will move forward to discuss measures New Jersey instituted to prevent similar occurrences and steps being taken at other states as well as initiatives underway at EPA. Kiddie Kollege is one of 400,000 daycares nationally vulnerable to toxics from hundreds of thousands of cleanup sites. The facilitated dialogue will remind us of the importance of protecting daycare-age children from toxic contamination, present efforts and challenges from state childcare licensing and environmental programs, allowing for a dialogue among those working towards solutions. For a more detailed overview of this topic, see the article written on Terradex’s blog, The Monitor.
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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 and then I helped facilitate a question and answer discussion.
Not unlike an ASTSWMO report concludes, I thought the discussion showed that states increasingly focus attention towards IC stewardship and I might even say that a shift of sorts has begun – one that’s evolving with the cleanup site pipeline and slowly shifting more and more towards post-cleanup site management. I don’t know of any that have taken “the leap” yet, but some states mentioned the idea of creating a centralized IC or Long Term Stewardship (LTS) program in their state. Having said that, states also report this increased role could strain their resources.
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Stewardship services apply beyond our shorelines into harbors, waterways and oceans. Beneath the surface of harbors, rivers and channels are contaminated sediments and unexploded ordnance (UXO). A common and disruptive offshore activity is dredging, which can unknowingly disturb these materials – often to unfortunate ends.
Dredging is a regulated activity, and thereby produces records that Terradex can track and locate on maps within our LandWatch service. When a dredging operation is located near a monitored facility, Terradex can alert regulatory or private party clients. The alerted parties can contact the applicant, and identify any issues associated with dredging at the location of concern. The approach offers parties the chance to prevent an unintended encounter with contaminated sediments or UXO.
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Mix 400,000 daycares with 550,000 cleanup sites nationwide, and the vision takes shape for a national daycare screening service to vigilantly protect 6,000,000 children from inadvertent exposure to toxics. This effort started after 2006 on the failings at Kiddie Kollege, where children attending daycare were exposed to high mercury levels. The childcare facility occupied the same building that ten years earlier had been a thermometer assembly factory. The site’s environmental problems were known to environmental agencies but were lost in the site investigation backlog. Progress at the state-level, coupled with work by the United States Environmental Protection Agency (USEPA), provides the basis of a national daycare screening service. This post to The Monitor describes the progress made in New Jersey, as well as different approaches taken in California and New York toward an efficient state-wide daycare screening service. Terradex has been a technology provider introducing DaycareWatch as a state screening tool.
This post draws upon a presentation by Terradex to the Association of State and Territorial Solid Waste Management Officials (ASTSWMO) at their State Superfund Managers Symposium held on August 10 in Indianapolis, Indiana. Terradex plans a web conference on September 28, 2010 (tentative) to overview various state and federal approaches to daycare safety – we invite your participation and interest using the signup link.
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A new “CERCLA Continuing Obligations” discussion group recently began in Linkedin – actually its a subgroup within the “Environmental Issues in Business Transactions” discussion group that Larry Schnapf manages. Given this, it seemed right to quickly review how the phrase “continuing obligations” came into being and where its heading.
