ASTM E1527-13: Applying the New Phase I Site Assessment Standard - PowerPoint PPT Presentation

Presenting a live 90-minute webinar with interactive Q&A ASTM E1527-13: Applying the New Phase I Site Assessment Standard Navigating the Material Changes to Meet All Appropriate Inquiries Requirements and Limit CERCLA Liability WEDNESDAY, FEBRUARY 11, 2015 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Julie Kilgore, President, Wasatch Environmental , Salt Lake City Lawrence P . Schnapf, Principal, Schnapf LLC , New York The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .

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CLE Webinar February 11, 2015 5

Introdu duction ions s Larr La rry y Schnapf hnapf • Founder, Schnapf LLC • Larry focuses his practice on environmental issues associated with corporate, real estate, and brownfields transactions, including asset-based lending, mezzanine loans, and distressed debt. • Larry@SchnapfLaw.com Julie ie Ki Kilgore gore • President, Wasatch Environmental, Inc. • Julie chairs the national ASTM task force responsible for revisions to the ASTM E1527 standard practice and was part of the EPA Federal Advisory Committee that helped to develop the “All Appropriate Inquiries” rule. • JK@wasatch-environmental.com 6

 Qualify For Cleanup Liability Protections  Negotiate/Allocate Liabilities  Satisfy Lender or Insurance Requirements  Toxic Torts  Brownfield Grantees  Tenants  Ground Lessors  Foreclosing Lenders  Tax Foreclosure/Sale  Eminent Domain 7

 Release ◦ Includes “disposal” ◦ Passive migration vs. active disposal  Hazardous Substance  Facility  Response Costs ◦ Remedial or Removal ◦ Consistency with NCP 8

 Current and Former Owners ◦ Former “at time of disposal”  Current and Former Operators ◦ Control ◦ Former at “time of disposal”  Generators  Transporters 9

 Third Party  Innocent Landowner (ILO)  Bona Fide Prospective Purchaser (BFPP)  Contiguous Property Owner (CPO) 10

 Release Solely Caused by TP  No direct and indirect contractual relationship ◦ ILO Exception to this element  Due care  Precaution against foreseeable acts or omissions 11

 Did not know or have reason to know  Exercise appropriate inquiry into past use and ownership  Due Care  Precautions  Continuing Obligations 12

 Applies to transactions after January 11,2002  Applies to Purchasers and Tenants  Applies to Brownfield and NPL sites 13

 Threshold Criteria ◦ Conducted AAI ◦ Not PRP or affiliated with PRP by:  direct or indirect familial relationship  contractual or corporate relationship  Corporate Reorganization ◦ Disposal took place prior to acquisition 14

 Continuing Obligations ◦ Complied with All Applicable Reporting Requirements ◦ Undertake “Appropriate Care” ◦ Cooperate and Provide Access to Persons Performing Response Actions ◦ Comply With LUCs Provide Access for Persons Maintaining LUCs ◦ Comply with EPA CERCLA Information Requests or Subpoenas 15

 Voggenthaler v Maryland Square LLC, 2013 U.S. App. LEXIS 15307 (9th Cir. 7/26/13)  Ashley II of Charleston V PCS Nitrogen, 2013 U.S. App. LEXIS 6815 (4th Cir. 4/4/13)  3000 E. Imperial, LLC v Robertshaw Controls, 2010 U.S. Dist. LEXIS 138661 (C.D. Cal. 12/29/10 )  Saline River Properties v Johnson Controls , 2011 U.S. Dis. Lexis 119516 (E.D. Mi. 10/17/11) 16

 AMCAL L Multi ti-Housi Housing ng v Paci cifi fic c Clay Prods ds , 457 F. Supp. 2d 1016 (C.D. Ca. 2006)  U.S. v Honeywe eywell , 542 F. Supp. 2d 1188 (E.D. Ca. 2008)  Bonni niev eview ew Home mes s Assoc c v Woodm dmont ont Builder ders , 655 F. Supp. 2d 473 (D. N.J. 2009)  Ford Motor or Co v Edgewood wood Props ops ., 2012 U.S. Dist. LEXIS 125197 (D. N.J. 8/31/12 ) 17

 Owner did not cause, contribute, or consent to release  Conduct “Appropriate Inquiry”  Exercise “Appropriate Care”  Cooperate and Provide Access To Persons Performing Cleanups  Comply With LUCs  Provide Access To Persons Maintaining LUCs 18

 Comply with all release reporting requirements  Comply with EPA CERCLA Information Requests and Subpoenas  Owner not a PRP or affiliated with PRP 19

 Became Effective after November 1, 2006  ASTM E1527-13 satisfies AAI  ASTM E1528 Transaction Screen Not AAI  Non-Governmental or Non-Commercial Purchasers of Residential Property ◦ Site Inspection ◦ Title Search 20

 inquiry by EP (§312.21);  interviews with past and present owners, operators, and occupants (§312.23);  reviews of historical sources since first developed (§312.24);  searches for recorded environmental cleanup liens (§312.25 — User);  reviews of governmental records (§312.26);  visual inspections of the site and of adjoining properties (§312.27); 21

 specialized knowledge or experience of defendant (§312.28-user);  relationship of the purchase price to the value of the property if not contaminated(§312.29-user);  Commonly known or reasonably ascertainable information(§312.30-user); and  obviousness of the presence or likely presence of contamination (§312.21); 22

 AAI completed when release identified ◦ No further investigation required ◦ Sampling may be conducted to obtain address/explain data gaps ◦ May valuable for determining how a landowner may best fulfill his or her post-acquisition Continuing Obligations.  Caution: Preamble states: ◦ “ the fact that the all appropriate inquiry standards do not require sampling and analysis does not prevent a court from concluding that, under the circumstances of a particular case, sampling and analysis should have been conducted to meet ‘‘the degree of obviousness of the presence or likely presence of contamination at the property, and the ability to detect the contamination by appropriate investigation ’ (70 FR 66101) 23

 “In certain instances, depending upon site-specific circumstances and the totality of the information collected during the all appropriate inquiries prior to the property acquisition, it may be nece cessar ssary y to to conduct co duct sampli pling ng and analysis ysis, either pre-or post- acquisition, to fully understand the conditions at a property, and fully comply with the statutory requirements for the CERCLA liability protections” Id. 24

 Third Party Defense  Secured Credit Exemption  UST Sites (unless Brownfield Site)  RCRA 7002 Actions  RCRA Corrective Actions  State Superfund Programs Unless Specifically Incorporated  Common Law 25

 ASTM Standards have 8-Year shelf life ◦ Prior E1527 publications: 1993, 1994, 1997, 2000, 2005 26

 ASTM Standards have 8-Year shelf life ◦ Prior E1527 publications: 1993, 1994, 1997, 2000, 2005  Action Options ◦ No Action – let standard sunset upon expiration ◦ Ballot to re-approve with no change ◦ Reconvene Task Group, draft revision language, ballot revisions 27