Environmental Transactions and Brownfields
Committee Newsletter
Vol. 18, No. 1
MESSAGE FROM THE CHAIR
Pamela K. Elkow, Esq.
Carmody Torrance Sandak &
Hennessey LLP
Stamford, CT
I often use this column to make clear the breadth
and depth of ETAB by connecting the various
articles we have in the newsletter. This time we have
three great articles that make that connection more
difficult – which I am interpreting as even further
evidence of the breadth and depth of ETAB. So, I’m
not even going to try this time. Instead, I’ll write
about why I’m even in the position to write this
column. The time I spent writing this is not billable.
In fact, none of the time I spend as chair is billable,
and none of the time that my intrepid newsletter
editors spend is billable at their firms. Ditto for the
program vice chairs, and the lawyers who started
and manage ETAB’s Hot News. So, why do we all
do this? For me, it starts with the fact that I get
to work with a bunch of really smart lawyers in a
collaborative effort. I learn from them about what’s
happening in their markets or fields of practice. I
have a resource if I need help in North Carolina,
Maine, Pennsylvania, or Illinois…. On occasion,
I’ve worked with some of these lawyers, or opposite
them. In both cases, our working relationship has
been better because we already knew each other,
from the ABA. So, this column seems to have
morphed into a shameless plug for getting more
involved in the ABA. By all means, read and learn
from this newsletter. But also get more engaged
with ETAB or another committee; come to one of
April 2016
the SEER conferences, or write a newsletter article
or year in review entry. While there are times that
I feel like I just do not have the time to spend on
my ABA commitments, in the end, I’m usually glad
that I have found the time.
Register Today
Environmental Transactions and Brownfields Committee, April 2016
1
Environmental Transactions and Brownfields
Committee Newsletter
Vol. 18, No. 1, April 2016
Tom Doyle, Rob Gelblum, and
Lindsay Howard, Editors
In this issue:
AMERICAN BAR ASSOCIATION
SECTION OF ENVIRONMENT,
ENERGY, AND RESOURCES
CALENDAR OF SECTION EVENTS
CALENDAR OF SECTION EVENTS
Message from the Chair
Pamela K. Elkow .....................................1
Buyer and Seller Litigate Whether Costs in
Response to PRP Letter Are Indemnified
Losses from Actions “Required” by
Environmental Law
Donna Mussio and Mary Beth Phipps ..3
Too Toxic? The Challenge of Non-Statutory
Environmental Liability at Brownfields Sites
Amy L. Edwards ......................................7
When Is a Foundation a Required
Remedial Cover System in Brownfield
Redevelopment?
Linda Shaw ...........................................12
May 5, 2016
Criminal Environmental Enforcement Update:
What to Expect in the Obama Administration’s
Final Year
Primary Sponsor: District of Columbia Bar
June 14, 2016
Key Environmental Issues in U.S. EPA Region 5
Conference
The Gwen
Chicago, IL
June 14-15, 2016
Superfund Master Class: Today’s Issues and
Tomorrow’s Reforms
The Gwen
Chicago, IL
August 4-9, 2016
ABA Annual Meeting
San Francisco, CA
October 5-8, 2016
24th Fall Conference
Westin Denver Downtown
Denver, CO
March 28-29, 2017
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Loews Hollywood Hotel
Los Angeles, CA
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Environmental Transactions and Brownfields Committee, April 2016
BUYER AND SELLER LITIGATE WHETHER
COSTS IN RESPONSE TO PRP LETTER ARE
INDEMNIFIED LOSSES FROM ACTIONS
“REQUIRED” BY ENVIRONMENTAL LAW
Donna Mussio, Esq.
Mary Beth Phipps, Esq.
Fried, Frank, Harris, Shriver & Jacobson LLP
New York, N.Y.
A recent opinion by the New York State Court of
Appeals, Remet Corp. v. Estate of Pyne,1 highlights
the importance of carefully delineating what losses
are covered under environmental indemnities in
purchase and sale agreements. Remet involved
a dispute over whether costs to respond to
a potentially responsible party notice (“PRP
letter”) were covered under an environmental
indemnification provision limiting coverage to
those losses “required” by environmental law.
Sellers often seek to use such limitations to avoid
indemnifying purchasers for voluntary conduct
or settlements, but these limitations can lead to
ambiguity regarding whether costs to address the
concerns of regulatory authorities or to respond
to PRP letters are required by environmental law
or are purely voluntary costs excluded under the
required-by-law limitation. In Remet, the New
York State Court of Appeals clarified that certain
PRP letters can be sufficiently coercive to “require”
action under environmental law.
Overview of the Facts
Remet involved the sale in 1999 of all of the
stock and facilities of Remet Corporation, a
manufacturing company with a facility abutting
the Erie Canal site in Utica, which had been listed
by the New York Department of Environmental
Conservation (NYDEC) as an inactive hazardous
waste site. The founder and sole stockholder of
Remet, the decedent James R. Pyne, agreed to
indemnify the buyer for environmental losses
resulting from pre-closing conditions, provided that
such losses “arise out of or result from actions by
any Indemnified Party that such Indemnified Party
is required to take under or in connection with
any Environmental Law . . . (and such Loss shall
not arise out of or result from communications by
such Indemnified Party with any Governmental
Entity (except to the extent required under any
Environmental Law).” The indemnity survived
for a period of ten years, unless a claim for
indemnification was asserted within that time
frame, in which case the claim for indemnification
would survive until its final resolution. Pyne
deposited $2.7 million into an escrow account to
fund payments arising from his environmental
indemnification obligation under the sales
agreement.
In October 2002, Remet received a PRP letter
from the NYDEC labeled “NOTICE LETTER
URGENT LEGAL MATTER—PROMPT REPLY
NECESSARY,” which informed Remet that
the NYDEC had determined that Remet was a
potentially responsible party for the contamination
at the Erie Canal site. The letter requested that
Remet enter into a consent order to implement
and fund remedial actions at the site. The letter
further warned that failure to execute a consent
order within 30 days would result in the NYDEC
terminating further discussions and performing
the remedial work itself and seeking cost recovery
from Remet, in which case the PRP letter served
as a demand for payment of any money expended
by the NYDEC in connection with the site, with
interest accruing from the date of the PRP letter.
Remet gave notice to Pyne that it was asserting a
claim for indemnification pursuant to the sales
agreement and began investigating the NYDEC’s
claims. Pyne did not assume defense of the claim,
but his attorneys contacted the NYDEC and
cooperated with Remet’s investigation of site
conditions. Neither Remet nor any of the four
other PRPs at the Erie Canal site entered into a
consent order. The NYDEC ultimately decided to
implement a $12.5 million decontamination plan
and seek cost recovery from the PRPs. Pyne died
in March 2003. In 2008 (less than a year before
the expiration of the ten-year survival period for
the indemnification), the Pyne estate objected to a
release of funds from the escrow account to cover
Environmental Transactions and Brownfields Committee, April 2016
3
the approximately $550,000 in costs incurred by
Remet and further instructed Remet that unilateral
contact by Remet with the NYDEC would
constitute a waiver of any right to indemnification
under the sales agreement.
Remet commenced litigation and was granted
summary judgment by the State of New York
Supreme Court that it was entitled to the
approximately $550,000 in past costs and to
indemnification for past and future environmental
losses arising out of the NYDEC’s investigation and
remediation of the site. On appeal, the Appellate
Division reversed, holding that the NYDEC’s PRP
letter did not “require” Remet to take action and
instead “merely informed” Remet of its “potential
liability” and “sought voluntary action.”2
an intent to indemnify. However, the reference
to the escrow agreement in Remet is somewhat
troubling, given that the parties’ agreement with
respect to risk allocation in a purchase and sale
agreement and funding of an escrow account
are not necessarily evidence regarding whether
subsequent actions and expenses are required by
law. Moreover, in order to minimize ultimate costs
while determining their options, indemnitors often
cooperate with regulatory authorities in initial
stages of defending or analyzing an indemnification
claim. Under the court’s interpretation of Pyne’s
activities after Remet’s receipt of the PRP letter, any
such cooperation could be discouraged, as it could
potentially be evidence that response actions are
required and, therefore, indemnified.4
Key Takeaways
Coerced Actions Are Required Actions
The New York State Court of Appeals reversed,
finding that the plain language of the contract,
together with the language of the PRP letter and
the related circumstances, made clear that Remet
was entitled to indemnification because it was
“required” to act to respond to the PRP letter.3 The
court noted that the PRP letter, which was labeled
“Urgent Legal Matter,” demanded either a consent
order or payment. It further indicated that a prompt
reply was “necessary” and set forth imminent legal
and financial consequences that would occur if
Remet refused to act. Thus, regardless whether
Remet was labeled a “potentially responsible party,”
Remet’s responses to the letter were coerced and
not voluntary.
The court in Remet also noted the circumstances
surrounding the execution of the indemnification
clause and the funding of the environmental escrow
account, as well as Pyne’s subsequent cooperation
with the NYDEC for a period of time after the
PRP letter was received, as evidence that Pyne was
aware of the potential for substantial expenses to
be incurred in connection with the Erie Canal site
and that the PRP letter required action. Courts
often review the purpose of an agreement and the
surrounding facts and circumstances in divining
4
Although many purchasers would have expected
their losses in responding to PRP letters to be
indemnified under similar contract language
and similar circumstances, the court’s holding in
Remet will still be welcome news to purchasers
who are sometimes persuaded to accept limitations
similar to those in Remet. On its face, a PRP
letter—particularly a “drop-dead” special notice
letter—may invite PRPs to negotiate with the
Environmental Protection Agency (EPA), but that
invitation is effectively a demand requiring action,
given the significant adverse consequences that can
flow from failure to accept the invitation. A holding
by the Remet court that responding to such PRP
letters is not required by law would have created
perverse incentives for indemnitees to challenge
or ignore PRP letters and potentially suffer those
adverse consequences in order to maintain the
viability of an indemnity claim. Nonetheless, the
mere fact that the issue was litigated and received
traction in the intermediate appellate court
should make purchasers pause, as environmental
liabilities are often substantial enough to motivate
indemnitors to carefully consider all possible
limitations on their indemnification obligations.
Indeed, the Pyne estate’s decision to challenge
the indemnification claim may have been a
reflection of the high price tag of the NYDEC’s
Environmental Transactions and Brownfields Committee, April 2016
decontamination plan at the Erie Canal site. Thus,
in negotiating environmental indemnification
limitations—particularly in transactions involving
potentially significant environmental liabilities—
and subsequently defending against environmental
indemnification claims, purchasers and sellers
should consider the following key points.
•
Scope of Limitation on Required Actions:
If possible, purchasers and sellers should
agree in advance whether indemnified
losses will be limited to losses resulting
from actions required by environmental law
or will also include losses resulting from
actions in response to directions, orders,
or requests by governmental authorities.
Although the PRP letter received by Remet
was a fairly standard form of “drop-dead”
special notice letter, the possibility exists
that other notifications of potential liability
will not threaten imminent litigation and
financial consequences in the absence of a
response and, therefore, not be considered
coercive enough to require action. Ignoring
such governmental notices (even notices
that appear to be conciliatory and nonthreatening on their face) ultimately could
result in increased indemnification losses,
given the substantial adverse consequences
that can flow from failure to actively
engage governmental agencies, including
the potential for (1) larger fines or higher
allocation of cleanup costs resulting from
failure to cooperate, (2) cost recovery
based on more expensive governmental
remedial actions, and (3) an administrative
record that does not reflect the recipient’s
interests. Thus, the “do-nothing” approach
in the face of governmental requests for
action arguably could result in a breach of
an indemnitee’s express or implied duty to
mitigate damages. However, an indemnitee
who takes a “do-something” approach
and incurs costs that are subsequently
determined not to be “required” by law may
be unable to recover those costs from the
indemnitor.
•
Flexible Standards: Rather than limiting
recoverable losses to losses required by
law, purchasers should press for a more
flexible standard that allows purchasers
to act in a commercially reasonable
manner (without regard to the availability
of indemnification) to both achieve
compliance with environmental law as
well as minimize liability to regulatory
authorities and other third parties. When
properly drafted and accompanied by
deductibles, cost sharing, or other financial
limitations, flexible standards avoid
“gold-plating” or “Cadillac remedies” by
requiring purchasers to act without regard
to the availability of indemnification, but
do not hamstring purchasers’ conduct in
responding to agency requests to only those
actions required by environmental law.
•
Limitations on Voluntary Conduct:
Sophisticated environmental
indemnification agreements often include
express provisions prohibiting recovery
of otherwise indemnified losses to the
extent such losses result from voluntary
investigation or remediation or unsolicited
communication with third parties. Such
“no-voluntary” (sometimes referred to as
“no-dig”) limitations are generally subject
to a litany of exceptions, including an
exception allowing for actions required by
law. Purchasers and sellers must carefully
consider the interrelationship between
such no-voluntary provisions and other
indemnification limitations. For example,
if an investigation or cleanup of preclosing contamination is triggered by a
purchaser’s voluntary decision to expand
or close operations, do the parties intend
that such investigations or cleanups will be
indemnified because they are required by
law in connection with the expansion or
closure?5
•
Control of Indemnified Matters: Procedures
governing indemnification claims in
Environmental Transactions and Brownfields Committee, April 2016
5
purchase and sale agreements often give
indemnitors the right to control the defense
of such claims. However, given the
importance of maintaining a good working
relationship with environmental regulators,
purchasers often request special procedures
for environmental indemnification claims,
allowing purchasers to assume control
of the defense of such claims (and any
related remedial actions)—particularly for
indemnification claims relating to currently
owned or leased facilities of the acquired
entity. In drafting such procedures, it is
important that the purchaser’s ability to
control is not hindered by any no-voluntary
limitations on communications with
governmental authorities.
Call for
NOMINATIONS
The Section is
currently seeking
nominations
for awards
recognizing
and honoring
individuals and
organizations that
have made significant accomplishments
or demonstrated recognized leadership
in the environmental, energy, and natural
resources legal areas.
Endnotes
•
1 2015 N.Y. LEXIS 3470 (N.Y. Oct. 20, 2015).
2 Id.
3 Cf. Scott Fetzer Co. v. Douglas Components Corp.,
1994 Del. Ch. LEXIS 48 (Del. 1994) (holding that
EPA general notice letter identifying party as a PRP
and inquiring whether the party would voluntarily
perform remedial measures and enter into good faith
negotiations was not a “claim” triggering a duty to
defend under an indemnification provision in an
asset purchase agreement); but see Datron, Inc. v.
CRA Holdings, Inc., 42 F. Supp. 2d 736 (W.D. Mich.
1999) (holding that PRP letters are not indemnifiable
“proceedings” pursuant to stock purchase agreement).
4 See Johnston Controls, 665 N.W.2d at 284 (noting
“perverse incentive not to cooperate with government
remedial actions” if a PRP is forced to sit passively and
wait for a unilateral order or court proceeding in order
to trigger an insurer’s duty to defend).
5 See Textileather Corp. v. GenCorp Inc., 697
F.3d 378, 383–84 (6th Cir. 2012) (holding that
indemnification in asset purchase agreement for
liabilities to third persons associated with certain
hazardous substances included costs associated with
closure of hazardous waste management units on the
basis that the buyer’s post-closing decision to stop
operating the units triggered a regulatory obligation to
submit a closure plan to the environmental agency).
•
•
•
•
Distinguished Achievement in
Environmental Law and Policy
Environment, Energy, and
Resources Dedication to Diversity
and Justice Award
Environment, Energy, and
Resources Government Attorney of
the Year Award
State or Local Bar Environment,
Energy, and Resources Program of
the Year Award
Law Student Environment, Energy,
and Resources Program of the Year
Award
Awards to be presented at the 2016
ABA Annual Meeting in San Francisco.
Nomination deadline is May 9, 2016.
•
ABA Award for Excellence in
Environmental, Energy, and
Resources Stewardship
Award to be presented at the
24th Fall Conference in Denver.
Nomination deadline is July 8, 2016.
www.ambar.org/EnvironAwards
6
Environmental Transactions and Brownfields Committee, April 2016
TOO TOXIC? THE CHALLENGE OF NONSTATUTORY ENVIRONMENTAL LIABILITY AT
BROWNFIELDS SITES
Amy L. Edwards, Esq.
Holland & Knight LLP
Washington, D.C.
Reproduced with permission from Bloomberg
BNA’s Environmental Due Diligence Guide, EDDG
231:2751, November 19, 2015. Copyright 2015
The Bureau of National Affairs, Inc. (800-3721033), http://www.bna.com.
Fortune 500 Company A has operated its principal
manufacturing facilities in state Y for the past
100 years. Fortune 500 Company A has used
solvents (including trichloroethene [“TCE”],
1,1,1-trichloroethane [“TCA”], tetrachloroethene
[“PCE”], and other solvents) in its operations
for most of that time. It reported a large release
of solvents in 1979, and the state subsequently
identified a large plume of groundwater
contamination that has been releasing vapors
into overlying structures. Company A has been
remediating the solvent plume caused by its
manufacturing operations and defending itself
against toxic tort lawsuits alleging vapor intrusion
from nearby property owners whose homes are
in the pathway of the solvent plume. Fortune 500
Company A later reorganized its operations, sold
the real estate, and transferred the bulk of its assets
to Successor Company B.
Recently, Successor Company B announced that
it is relocating the manufacturing facilities and
its employees to another part of the state because
of recent changes in the state’s toxicity guidelines
for exposure to TCE in the workplace. If asked,
you would likely be able to advise Fortune 500
Company A, Successor Company B, and/or any
potential purchaser of the land about the potential
costs to remediate the solvent plume to current
state standards. But how would you advise any
of these parties regarding the non-statutory
environmental liability associated with this historic
release?
The answer isn’t easy, yet it is a challenge faced
by many brownfields redevelopers. This article
explores the process for evaluating both statutory
and non-statutory environmental liability in the
context of brownfields redevelopment.
The Process for Evaluating Statutory
Environmental Liability
Liability for cleanup is generally dictated by either
federal or state law. The principal federal statutes
include the Comprehensive Environmental
Response, Compensation, and Liability Act
(CERCLA or Superfund), enacted in 1980, or the
Hazardous and Solid Waste Amendments to the
Resource Conservation and Recovery Act (RCRA),
enacted in 1986. Less seriously contaminated sites
are frequently remediated under state cleanup
laws, such as state voluntary cleanup programs.
Since these federal and state programs have now
been operating for more than two decades, prior
cleanups provide excellent examples of the degree
of cleanup that may be required and therefore the
likely cost of cleanup under one of these programs.
Potential Causes of Action for Statutory
Claims
A current or former owner/operator of a
contaminated site may have liability for
contamination on a site under CERCLA. Liability
under this statute is joint, strict, and several—i.e.,
there is no need to establish causation or fault. Four
categories of parties may be liable as “potentially
responsible parties” (PRPs): current owner/
operators; past owner/operators at the time of
disposal; generator; and arrangers/transporters.
PRPs can sue each other to recoup costs that they
have incurred, either under section 107 (cost
recovery) or section 113 (contribution) of the
statute. There is a long line of case law at this point
that suggests which statutory provision may be
more appropriate, given the facts of the case.
Alternatively, a lawsuit may be brought seeking
cleanup under RCRA. Under RCRA, a plaintiff
may allege either that the defendant is in violation
Environmental Transactions and Brownfields Committee, April 2016
7
of RCRA, or that an imminent and substantial
threat to human health or the environment exists.
If the polluting activity has occurred completely
in the past, only the second cause of action may
be appropriate to address an ongoing pollution
condition. Complaints under section 6972(a)(1)(A)
of the statute have not been particularly successful,
because this section requires proof that the facility
is “in violation” of the statute. Complaints have been
more successful under section 6972(a)(1)(B), which
requires evidence of an imminent and substantial
endangerment to health or the environment.
The danger posed by the contamination must be
ongoing, even if the violation is not. Schmucker
v. Johnson Controls, Inc., 2015 WL 879853 (N.D.
Ind. 2015), involved claims under both provisions
of RCRA. The plaintiffs survived a motion to
dismiss, but needed to provide additional evidence
of an actual RCRA violation as well as evidence of
imminent and substantial endangerment to health
or the environment.
State statutes may provide another basis for seeking
cleanup or damages attributable to past polluting
activities. In general, a brownfields redeveloper
can use these state voluntary cleanup programs
to remediate a contaminated site to a level that is
considered “acceptable” to the state and obtain a
Certificate of Completion or No Further Action
letter. These “completion” documents generally
provide the brownfields developer protection
against regulatory reopeners, but they rarely
provide protection against third-party or toxic tort
lawsuits.
Finally, common law theories, such as nuisance,
negligence, trespass, and strict liability, provide
another basis for seeking cleanup or recovery of
damages from past polluting activities. Many of
these theories of liability provide limited rights of
recovery if the contamination originated on the
same property.
Potential Third-Party Toxic Tort Liabilities
A property owner who owns or operates
contaminated property can be sued in a toxic
8
tort lawsuit on the basis of nuisance, negligence,
trespass, or strict liability. The elements of these
common law causes of action can vary from state
to state. Nevertheless, most states consider the
following to be basic elements of these causes of
action:
• A nuisance is an unreasonable interference with
the use and enjoyment of land. It may involve
anything that is injurious to health, offensive to
the senses, or an obstruction to the free use of
property. A nuisance may be public or private.
• Negligence is the failure to use reasonable care
to prevent harm to oneself or to others. The
basic elements of a negligence action include
(1) a legal duty to use due care, (2) breach of
that legal duty, and (3) the breach being the
proximate cause of the resulting injury.
• Trespass involves the unauthorized entry
onto the property of another. Frequently, one
must demonstrate exclusive possession of the
property being invaded.
• Strict liability exists when there is no need to
prove negligence or causation.
The types of damages sought typically include
personal injury; property damage, including
stigma; injunctive relief; and punitive damages.
There are no statutory defenses to these claims.
Expert testimony is frequently needed to prove
damages. Even where the evidence is weak, it may
take months, if not years, to have a toxic tort case
dismissed on a motion to dismiss or motion for
summary judgment, so litigation expenses can
quickly become substantial.
Cases involving potential vapor intrusion from
chlorinated solvents in soil or groundwater are
particularly challenging. Vapor intrusion refers to
the migration of vapors from the underlying soil
or groundwater contamination into structures
above the contamination. These vapors are silent
intruders; they are not visible to the naked eye,
and they frequently have no odor. They cannot
be detected except through soil gas testing of the
subsurface soils, through indoor air testing (with
the possibility of false positives attributable to other
sources), or through modeling based upon soil
Environmental Transactions and Brownfields Committee, April 2016
and groundwater data. Once detected, the vapors
can be mitigated, by increasing the air exchange
rate, by installing sub-slab depressurization
systems, or installing chemically compatible vapor
barriers. Some of these measures require regular
maintenance going forward, and can be costly to
install in existing structures.
Uncertainties Caused by Lack of Federal
and/or State Standards
An additional complication is the fact that the
Environmental Protection Agency (EPA) and
the states did not start to focus upon the vapor
intrusion pathway until 15 years ago. In addition,
the regulatory cleanup standards and remediation
requirements (e.g., what type of vapor barrier is
acceptable?) associated with this pathway have been
in substantial flux over that time frame.
EPA first issued Draft Guidance for
Evaluating the Vapor Intrusion to Indoor
Air Pathway from Groundwater and Soils in
2002 (www.epa.gov/osw/hazard/correctiveaction/
eis/vapor.htm).
EPA did not update this guide until mid-2015
(OSWER Technical Guide for Assessing
and Mitigating the Vapor Intrusion
Pathway from Subsurface Vapor Sources
to Indoor Air, available at http://www.epa.
gov/oswer/vaporintrusion/documents/OSWERVapor-Intrusion-Technical-guide-Final.pdf
(June 2015)). The final 2015 guide recognizes
that soil gas concentrations can vary over time,
discourages excessive reliance on exterior soil gas
measurements, encourages preemptive mitigation
measures (such as vapor barriers and sub-slab
depressurization systems), and encourages indoor
air sampling.
Recognizing that there were shortcomings in
the 2002 EPA draft guide, and impatient for
updated guidance, several industry groups issued
vapor encroachment/intrusion guidance in the
intervening time period. These documents were
helpful in educating regulators, developers, and
members of the public about the vapor intrusion
pathway, what might be acceptable concentrations
for different uses (e.g., commercial versus
residential), and how to mitigate any exposures.
One of the early guides was published by the
Interstate Technology & Regulatory Council,
Vapor Intrusion Pathway: A Practical Guide
(Jan. 2007), available at http://www.itrcweb.org/
documents/vi-1.pdf. This guide was intended to
provide practical advice on how to approach a
potential vapor intrusion problem, by describing
the nature of the issue, assessment approaches, and
how to install preemptive mitigation measures.
Shortly thereafter, the ASTM issued guidance on
how to assess this potential exposure pathway
as part of routine environmental due diligence.
See ASTM, Standard Guide for Vapor
Encroachment Screening on Property
Involved in Real Estate Transactions, ASTM
E2600-10 (2010).
Given the absence of final EPA guidance until
2015, many states also issued their own vapor
intrusion guides in the intervening time period
(see http://www.envirogroup.com/vaporintrusion/
index.html). The “acceptable” concentrations of
different chemicals of concern vary dramatically
from state to state, frequently because of the use
of very different attenuation factors. By way of
example, New Jersey uses an attenuation factor for
soil vapor of 0.02; California uses an attenuation
factor for soil vapor of 0.05; North Caroline uses
a soil vapor attenuation factor of 0.03 (residential)
and 0.01 (commercial); and Massachusetts uses a
soil vapor attenuation factor of 0.014. The use of
such different attenuation factors, coupled with
other site-specific information (such as soil type or
depth to groundwater), can result in very different
concentrations of specific chemicals of concern that
are “acceptable” from jurisdiction to jurisdiction. In
other words, there is no “bright line” number that is
“safe” from jurisdiction to jurisdiction.
However, many other states did not see the need
to develop vapor intrusion guidance or to consider
Environmental Transactions and Brownfields Committee, April 2016
9
this pathway in their cleanup decisions. Some of
these states include Florida and Texas. So, what
should a brownfields developer do in a jurisdiction
that has not adopted its own guidance? Can it
ignore the vapor intrusion exposure pathway? If it
is concerned about this pathway, what standards
should apply? Is a multiple-lines-of-evidence
approach enough? What else can a brownfields
developer do to mitigate the risk of toxic tort
lawsuits? What “reasonable steps” and “continuing
obligations” should it undertake to preserve any
potential liability defenses under CERCLA?
Case Studies
A handful of cases from the past decade may
be instructive in both understanding potential
toxic tort liability and developing strategies for
minimizing that liability. These cases and other
examples involve personal injury claims, property
damage (stigma) claims, exit strategy risk, and
tenant concerns. These cases demonstrate that
it will not be easy to dismiss these claims at the
summary judgment stage, even when the bases for
the claims are weak.
Personal Injury Claims
The plaintiffs in Leese v. Lockheed Martin, 2014 WL
3925510 (D.N.J. 2014), 2013 WL 5476415 (D.N.J.
2013), brought suit against adjacent property
owner, Lockheed Martin (LM), alleging that
LM’s manufacturing operations had diminished
their property value and caused physical harm
to their children. The plaintiffs bought their
property, which was across the street from LM’s
manufacturing facility in 2003, several years after
LM acquired the manufacturing facility (1995). LM
had been working with the state regulatory agency
since the 1990s to monitor contamination on and
near its facility. The plaintiffs admitted that they
were aware of the TCE groundwater plume beneath
their properties at the time of purchase. In fact,
the agreements of sale disclosed the existence of
the TCE plume beneath the plaintiffs’ properties.
Soil vapor testing was conducted in 2008, but the
results were below state standards. The plaintiffs
conducted their own testing in 2008 and 2012,
10
which revealed some slight exceedances of the
PCE screening level in 2008; this screening level
was adjusted upward in 2013, and the previously
detected concentrations were within the revised
screening levels. Plaintiffs conceded that none of
the sampling results exceeded the revised 2013
screening levels. Nevertheless, the plaintiffs sought
injunctive relief and monetary damages in their
lawsuit.
On a motion for partial summary judgment, the
court agreed with LM that the plaintiffs had not
established competent evidence of injury since the
concentrations of TCE on the plaintiffs’ property
were within current state standards, and plaintiffs
had not provided any expert testimony establishing
a nexus between the exposure and the ailments
alleged. The nexus must rise to a level of reasonable
medical probability (not possibility). Nevertheless,
the court gave the plaintiffs additional time to
provide a new expert report regarding the impact
on property values.
Property owners in a housing development and the
transferee of a former steel manufacturing facility
filed suit against the former steel manufacturer
and its successors under RCRA, the Indiana
Responsible Property Transfer Law, and the
Racketeer and Corrupt Organizations Act (RICO),
seeking damages and injunctive relief. The basis
of the lawsuit was the steel manufacturer’s alleged
dumping of industrial solvents (including TCE and
TCA) into the soil and groundwater and failure
to disclose the presence of these contaminants as
required under the Indiana Responsible Property
Transfer Law. Browning v. Flexsteel Indus., Inc., 959
F. Supp. 2d 1134, 1152 (N.D. Ind. 2013). EPA and
the state of Indiana subsequently learned that there
were elevated concentrations of TCE and other
volatile organic compounds in the groundwater in
the area. The plaintiffs brought this action, seeking
damages and injunctive relief, attempting to force
Flexsteel to develop a corrective action plan. The
court concluded that the former steel manufacturer
was required under Indiana law to disclose to
the purchaser its past handling and disposal of
hazardous chemicals. It further concluded that
Environmental Transactions and Brownfields Committee, April 2016
there were issues of material fact whether there
were adverse health effects from the contamination
via the vapor intrusion pathway.
The plaintiffs in a New York case alleged that IBM
had discharged TCE from its Endicott, N.Y., facility
into the environment, and had contaminated the
plaintiffs’ homes. Ivory v. Int’l Bus. Machines Corp.,
964 N.Y.S.2d 59 (Sup. Ct. 2012), aff ’d, 983 N.Y.S.2d
110 (2014). The court concluded that the plaintiffs’
evidence raised material questions of fact regarding
the reasonableness of IBM’s conduct and the
foreseeability of the risk from its TCE use, storage,
handling, recycling, and disposal practices.
Property Damage/Diminution in Property
Value
In another case, a residential property owner
brought suit against the owners of an adjacent
former dry cleaner in Forest Park Nat’l Bank
& Trust v. Ditchfield, 881 F. Supp. 2d 949 (N.D.
Ill. 2012). The bank that had foreclosed on the
residential property was having difficulty re-selling
the property. The adjacent dry cleaner had operated
for more than 35 years. The bank’s suit was brought
in part under RCRA, alleging that the former dry
cleaner was “in violation” of RCRA. The court
concluded that the former dry cleaner was not
“in violation,” because all dry-cleaning operations
had ceased several years ago. However, the court
would not grant summary judgment in favor of the
owners of the former dry cleaner, stating that the
contamination from the former dry cleaner might
present an imminent and substantial danger to
health or the environment, so the plaintiff might be
able to establish a threat of future harm.
In Adinolfe v. United Technologies Corp., 786 F.3d
1161 (11th Cir. 2014), the plaintiffs were allowed
to proceed with their common law claims based
upon nuisance, negligence, and strict liability even
though there had been no physical incursion of the
contamination onto their property or even minimal
concentrations of contaminants. This case was
based upon Florida law.
Exit Strategy Concerns
We have been involved in a number of transactions
recently where the driving consideration has
been exit strategy concerns. Frequently the
steps that have been taken to address potential
vapor intrusion concerns are weak. What if the
regulatory standards become more stringent in
the future? What if the current property owner
hasn’t adequately documented the steps that it has
taken to address the vapor intrusion pathway?
What if the steps that have been taken are not
considered adequate under current standards?
These considerations are driving current real estate
transactions.
Tenant Concerns
News reports in late August 2015 reported that
i3, the successor corporation to IBM in Endicott,
N.Y., intended to relocate its employees to another
city in the state because of concerns about worker
exposure to TCE at the former IBM facility.
This move was triggered in part by changes to
the N.Y. Department of Health (DOH) policy
regarding exposure to TCE. The N.Y. DOH had
recently reduced the TCE exposure limit from 5
to 2 micrograms per cubic meter. With this type
of change in regulatory standards, how does a
responsible corporate employer address tenant
concerns under these circumstances?
Conclusion
The process for determining whether vapor
intrusion presents a risk of harm remains an area
in flux with substantial uncertainty. Brownfields
redevelopers are encouraged to stay on top of the
latest federal, state, and industry guidance and
standards and to incorporate those measures into
their projects. This is an area where ignorance is
not bliss, but staying ahead of the curve is. The
prospect of litigation is real, even when you are
within current regulatory standards. Some of this
risk can be mitigated through the thoughtful use
of environmental indemnities and environmental
insurance products. But it remains difficult to
quantify, never mind mitigate, this non-regulatory
environmental risk.
Environmental Transactions and Brownfields Committee, April 2016
11
WHEN IS A FOUNDATION A REQUIRED
REMEDIAL COVER SYSTEM IN BROWNFIELD
REDEVELOPMENT?
Linda Shaw, Esq.
Knauf Shaw LLP
Rochester, N.Y.
Introduction
The question posed by the title of this article has an
obvious answer to most brownfield practitioners.
For many brownfield sites where the cost to remove
all the contamination would not only far exceed the
site’s value, but also may be physically impossible
because the entire land mass would have to be
eliminated, a foundation resulting from a new
construction project becomes the primary remedy
for the site by covering the residual contamination
after source removal. However, this seemingly
obvious question has become recently complicated
in New York, which still has among the best
refundable tax credit brownfield incentives in the
country despite two statutory amendments in less
than ten years cutting back the credits.
It is well known in the brownfield world that New
York was one of the last states to adopt a brownfield
law, but when it finally did so in 2005, the state
adopted very lucrative tax credit incentives to
offset the stringent cleanup standards, and to try to
jumpstart brownfield redevelopment in the lagging
upstate New York former industrial economy. Of
course, the New York City area was not excluded
from the tax credits, which led to significant
controversy that the program was too generous
in this lucrative real estate market despite the
continued presence of real brownfields elsewhere.
The tax credit formulas were amended in 2008 to
cap the credits so that windfalls could not occur
on small postage stamp sized brownfield sites in
Manhattan with large skyscraper projects. However,
many groups, and most notably the New York
State Department of Environmental Conservation
(DEC), felt these amendments did not go far
enough.
12
The June 2015 statutory amendments to the New
York Brownfield Cleanup Program (BCP) in
Environmental Conservation Law (ECL) article
27, title 14, and associated brownfield tax credits
in tax law section 21, were designed primarily to
(1) further cut the costs eligible for the first of two
tax credits—called the “site preparation” (a/k/a the
“remediation”) tax credits for all sites, including
most notably foundation costs not necessary for
the remediation; and (2) significantly reduce the
number of New York City sites eligible to obtain
the second, larger “tangible property” (a/k/a the
“redevelopment”) tax credit to only certain sites
or projects.1 Even though these amendments
result in significant tax incentive reductions,
DEC is now further attempting to reduce the
tax credits applicable to the cost of a foundation,
which typically serves as a cover system to address
residual contamination, by arguing cover systems
are not part of the remedy at all if either the state’s
most stringent “track 1” unrestricted use or even
its “track 2” risk-based soil cleanup standards
are achieved—even if residual groundwater
and soil vapor contamination remain. This
article will explore how, when money becomes
the sole motivating factor in policy making,
the objectives of a law may get lost. Brownfield
redevelopment makes money for any state by
putting sites back on the tax roll. See http://www.
redevelopmenteconomics.com/yahoo_site_admin/
assets/docs/BCP_Report_FINAL_R.61183141.pdf.
The legislature has passed a law stating that some
foundation costs count in the new BCP program.
DEC should be focused on which costs count and
when, rather than trying to eliminate foundation
costs altogether.
Summary of the Policy Objectives in New
York’s Program Leading to the Controversy
As the home of many of the country’s top
environmental groups, New York has some of the
most stringent cleanup standards in the country.
See ECL 27-1403; 6 NYCRR § 375-6.8(a) and
(b). In order to adopt a brownfield program that
would motivate developers to begin to transform
former industrial sites, the state needed strong
Environmental Transactions and Brownfields Committee, April 2016
financial incentives since cleanups would cost
more in New York to achieve its more stringent
standards. Therefore, the site preparation tax
credits are structured to provide more tax credits to
developers who elect to achieve the most protective
numeric “track 1” soil cleanup objectives, which
generally require excavation to bedrock or native
soil, and enable any unrestricted use on the site.
If a track 1 cleanup is achieved, a 50 percent tax
credit is earned (i.e., 50 cents on the dollar of cost).
If a “track 2” restricted use cleanup is achieved,
which is linked to New York’s risk-based industrial,
commercial, residential, protection of groundwater
or ecological resource numeric standards, and
generally requires excavation to 15 feet or until
native soil is reached, this yields a tax credit ranging
from 27 percent for industrial use to 40 percent for
residential use. Finally, a “track 4”—a “hot spot”
removal and capping remedy, which is not based
on any of the numeric standards, yields a credit
ranging only from 22 percent for industrial use to
28 percent for residential use. Compared to other
states, New York’s site preparation tax credits are
not the driver for brownfield redevelopment, as
some states provide a 100 percent incentive.
The driving incentive in New York is its second
“tangible property” or redevelopment tax credit,
which is based on one of two formulas: the
lower of three times the site preparation costs
or a percentage from 10 to 24 percent of capital
improvement costs, depending on certain factors.
This redevelopment tax credit is earned only
after the new project is placed in service on the
site. DEC’s position since the June 2015 statutory
amendments is that the sole purpose of a cover
system is to prevent physical contact with soil.
Therefore, it has concluded costs of a foundation
cover system cannot be counted as part of the
remediation if a track 1 or even a track 2 remedy
is achieved, since no soil contamination source is
left at depths that would cause direct contact with
residual contaminated soil. DEC’s position does not
address scenarios where contaminated groundwater
and/or soil vapor remain on-site or are emanating
onto the site from an adjacent brownfield, despite
the extensive track 1 or 2 soil cleanup requiring
groundwater treatment or a vapor barrier or vapor
mitigation system. DEC’s current position is that a
foundation, which certainly enables vapor controls
to function properly, is not part of the remedy but
rather only a building component. It is unclear how
DEC’s position is consistent with increased focus
on vapor intrusion.2
Based on the way New York’s tax credits are
structured as described above, by removing
foundation costs as an eligible site preparation
remediation cost the DEC’s position not only
significantly reduces the tax credits, but has the
perverse effect of discouraging the higher level
track 1 and 2 “big dig” cleanups in order to save
money, despite the law’s goal to encourage these
high-level cleanups and put the sites back in
productive use. Ironically, if the lowest level track
4 cleanup is performed, then a foundation cover
system does count toward the remedy, and thus
the tax credits. This new policy position not only
encourages more contamination to be left in the
environment, but also is arguably inconsistent
with the basic tenet of brownfield redevelopment;
notably, it is always good to cover these sites with
a new redevelopment project because the project
provides the reason to continue to manage the
site in perpetuity. Without a project, if there is
still any contamination left on the site even after
remediation, which is the case on most sites, it
remains a brownfield without a project covering it.
What the Amendments Actually Say About
Foundations
The new site preparation cost definition in Tax
Law § 21(b)(2) includes the following sentence:
“Site preparation cost shall not include the costs
of foundation systems that exceed the cover system
requirements in the regulations applicable to the
qualified site.” (Emphasis added.) The new tangible
property eligible cost definition in Tax Law § 21(a)
(3)(iv) reads “. . . eligible costs for the tangible
property credit component are limited to costs
for tangible property that has a depreciable life
for federal income tax purposes of fifteen years
or more, costs associated with demolition and
excavation on the site and the foundation of any
buildings constructed as part of the site cover that
are not properly included in the site preparation
component and costs associated with non-portable
Environmental Transactions and Brownfields Committee, April 2016
13
equipment, machinery and associated fixtures
and appurtenances used exclusively on the site,
whether or not such property has a depreciable life
for federal income tax purposes of fifteen years or
more.” (Emphasis added.)
When these two definitions are read together,
it appears the DEC and/or the New York State
Tax & Finance Department (“T&F”) would be
hard pressed to legitimately argue that no costs
associated with a foundation can count toward
the site preparation costs, when a cover system
is a required component of a remedy, since both
definitions clearly state that at least some of the
foundation costs do count as a cover system by
referencing part of the foundation as a cover
system within the statutory language. However, the
language does not clarify (1) when a cover system
is required; and (2) how thick a foundation system
has to be to serve as a cover system.
Again, it seems obvious that a foundation cover
system is required for a track 2 restricted use
cleanup because residual contamination is clearly
left behind, albeit under the levels safe for that
specific use, particularly if there are levels that
still contribute to groundwater contamination;
if soil vapor intrusion can occur; or if off-site
groundwater or soil vapor are emanating onto the
site. See 6 NYCRR §§ 375-6.6; 6.7(d). Even a track
1 unrestricted use cleanup, designed to remove all
contaminated soil down to bedrock or native soil3,
may not eliminate all on-site residual groundwater
or soil vapor contamination overnight, and
certainly does not address off-site impacts. DEC
is taking advantage of the fact that neither the
statute nor the regulations clearly define when a
foundation serves as the “cap” or “cover,” or how
thick it needs to be.
Nevertheless, the department’s guidance clarifies
that a “new slab” is required to address a site with
potential soil vapor intrusion exposure pathways
and when there is groundwater contamination. See
DER-10 § 4.1(e)(1)(ii-iv), available at http://www.
dec.ny.gov/docs/remediation_hudson_pdf/der10.
pdf.4 The regulations coupled with the guidance
require at least a 2-foot soil cover at residential sites
when a more permanent foundation or pavement
14
cover is not present, which suggests these are
superior cover systems without defining them in
their own right. See 6 NYCRR § 375-6.7(d); DER-10
§ 4.1(f)(2). Based on this guidance, it is completely
unclear how all foundation costs, including a vapor
barrier, can be deemed not part of the engineering
controls for the remedy when contaminated soil is
present above the protection of groundwater levels
(see 6 NYCRR §§ 375-6.5; 6.8(b)), contaminated
groundwater is emanating onto the site and soil
vapor issues remain present. A vapor barrier
without a foundation holding it in place to protect
it is a useless barrier that will fail over time.
This still does not address, however, the minimal
thickness required for a building or pavement
cover system. While a foundation or pavement
system may arguably, due to its lower permeability,
be even thinner than a soil cover system that uses
low permeability soil, a hardscape foundation or
pavement can only properly serve as a cap if it
does not crack, since cracks allow for infiltration
of storm water into the site or vapor into the site
structures. Therefore, to effectively serve as a
cap, a foundation or pavement system must be
thick enough, based on site conditions, to not
crack (so that it meets the long-term maintenance
requirements in the BCP through implementation
of the site management plan and an environmental
easement), yet not be too thick so that it is no
longer a necessary part of the remedy. Despite lack
of clarity in New York’s BCP law and regulations
on this issue, the Building Code of New York
State5 and State of New York Department of
Transportation Standard Specifications6 identify the
structural requirements necessary to ensure that a
cover system is thick enough to avoid cracking or
settling. DEC has not yet suggested that parties look
to these codes for guidance; however, these codes
are already part of state law.
If these minimal thickness requirements outlined
in the Building Code are applied by a licensed
professional engineer, and adjusted as necessary
based on a geotechnical investigation for
structurally unstable sites (such as historic fills
sites), DEC should be able to reach some resolution
on the foundation issue by developing a reasonable
minimum thickness for a cover system that should
Environmental Transactions and Brownfields Committee, April 2016
be required when on- or off-site groundwater and
soil vapor issues continue to persist at the site after
remediation is complete. If groundwater or soil
vapor contamination are emanating onto the site
from an off-site source, a good cover system with
at least a vapor barrier is the only way to prevent
recontamination of the remediated site unless
the department immediately pursues the adjacent
polluters, and is rapidly successful in obtaining
an off-site cleanup, which rarely happens in time
before the project needs to be completed.
In sum, brownfield cleanup programs are not only
remediation, but also redevelopment programs.
See ECL § 27-1403. A new building, including
its foundation, and associated paved parking lot,
and vapor controls typically serve as the remedial
cap or cover system, as opposed to a soil cover
system, on the average redeveloped brownfield
site. Therefore, if foundations and parking lots are
no longer part of a valid remedy program other
than possibly for track 4 cleanups, parties in the
program may elect to implement fewer track 1 and
2 cleanups. They may instead implement track 4
cleanups so that a portion of the foundation costs
will in fact count toward site preparation costs.
Such a policy, if continued, would be contrary to
the purpose of the BCP law to encourage more
permanent cleanups, and contrary to the basic
tenets of brownfield site reuse. Since the new tax
law § 21(b)(2) and § 21(a)(3)(iv) provisions, when
read together, clearly recognize some foundation
costs required for a cover system do count as site
preparation costs, it would be a far more useful
exercise if the DEC were to focus on how thick
a foundation has to be to effectively function as
a cover system, when needed to address residual
groundwater and soil vapor issues at brownfield
sites after source removal, than to engage in
its current exercise of pretending new building
structures only serve the purpose of blocking
direct exposure to residual contaminated soil. This
position encourages more contaminated soil to
remain in place, which is genuinely contrary to
brownfield redevelopment principles.
Endnotes
1 NYC sites eligible for the tangible property tax
credits are “upside down,” as defined by ECL § 271405(31); “underutilized,” as defined by ECL § 271405(30); slated for an “affordable housing project,” as
defined by ECL § 27-1405(29); or located in an “EnZone” (high poverty, high unemployment areas defined
by census data), as defined by tax law § 21. See also
ECL § 27-1407(1).
2 OSWER TECHNICAL GUIDE FOR ASSESSING AND
MITIGATING THE VAPOR INTRUSION PATHWAY FROM
SUBSURFACE SOURCES TO INDOOR AIR (OSWER
Publication 9200.2-154) (2015), available at http://
www.epa.gov/oswer/vaporintrusion/; EPA, VAPOR
INTRUSION SCREENING LEVEL (VISL) CALCULATOR AND
USER’S GUIDE, (2015), available at http://www2.epa.
gov/vapor intrusion/vapor-intrusion-screening-levels.
3 The statutory definition of a track 1 cleanup site,
which otherwise cannot include an engineering control,
may require such control for groundwater remediation
when “the long-term employment of institutional
or engineering controls after the bulk reduction of
groundwater contamination to asymptotic levels has
been achieved” and when the track 1 soil cleanup
objectives have otherwise been achieved. See ECL §
27-1415(4).
4 See also ECL § 27-1405(11) and 6 NYCRR § 3751.2(o), which define an “Engineering Control” as any
physical barrier or method employed to actively or
passively contain, stabilize, or monitor contamination,
restrict the movement of contamination to ensure the
long-term effectiveness of a remedial program, or
eliminate potential exposure pathways to contamination.
Engineering controls include, but are not limited to,
pavement, caps, covers, subsurface barriers, vapor
barriers, slurry walls, building ventilation systems, . . .
(Emphasis added.)
5 2010 Building Code of New York State, New York
State Department of State (Aug. 2010), available at
http://publicecodes.cyberregs.com/st/ny/st/b200v10/
index.htm.
6 State of New York Department of Transportation,
Standard Specifications (Jan. 9, 2014), available
at https://www.dot.ny.gov/main/business-center/
engineering/specifications/english-spec-repository/
espec1-9-14english_0.pdf; NYSDOT Standard Sheets,
available at https://www.dot.ny.gov/main/businesscenter/engineering/cadd-info/drawings/standard-sheets-us.
Environmental Transactions and Brownfields Committee, April 2016
15
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Environmental Transactions and Brownfields Committee, April 2016