Environmental Site Assessments and Continuing
“Due Care” Obligations — Recent Changes and
What they Mean in the Real World
by
Charles M. Denton
for
Michigan Association of Environmental Professionals (MAEP)
Cleary University, Howell, Michigan
February 6, 2014
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construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
Environmental Site Assessments and Continuing
“Due Care” Obligations — Recent Changes and
What they Mean in the Real World
Charlie Denton
(616) 742-3974
cdenton@btlaw.com
Tim Haley
(317) 231-6493
thaley@btlaw.com
www.BTLaw.com/Environmental
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which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and may not be reproduced, in any form, without the express written consent of
the author or presenter. The information on this page is intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
Environmental Due Diligence – What Is It?
• In any transaction, the parties must identify and quantify
liabilities and risks (“due diligence”).
• Environmental due diligence is a way to identify potential
environmental liabilities.
• Provides a prospective Buyer/Tenant with information
concerning the historical uses and current environmental
conditions of the property.
• Financial responsibility for those potential environmental
liabilities can then be divided up via contractual provisions and
possibly insurance in the deal.
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Reasons Due Diligence is Needed for Buyers/Tenants
• Statutory Defenses to CERCLA Strict (No Fault) Liability
•
•
•
– Environmental liability protections require “all appropriate inquiries”
(“AAI”)
Financing
– Lenders almost always require environmental investigations – new SBA
procedures
– Brownfield revitalization grants for site characterization and assessment
Business Purposes
– Like all other due diligence: Understanding the risks and costs associated
with the transaction, and determining whether you should go forward with
the transaction and under what conditions
– Allocating liabilities, indemnification, warranty survival periods in
transaction documents
Manage Risks
– Insurance /clean up programs
– Purchase price adjustments
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the author or presenter. The information on this page is intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
CERCLA Strict Liability
• Under the Federal Comprehensive Environmental Response,
Compensation and Liability Act (CERCLA), persons may be
held strictly liable for cleaning up hazardous substances at
properties that they either currently own or operate or owned or
operated at the time of disposal.
• Strict liability in the context of CERCLA means that a
potentially responsible party may be liable for environmental
contamination based solely on property ownership and without
regard to fault or negligence.
• Michigan Natural Resources & Environmental Protection Act
(NREPA) Part 201 is different than CERCLA by imposing
liability only if the owner/operator is responsible for an activity
causing a hazardous substance release – unless they purchase the
property without a BEA!
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the author or presenter. The information on this page is intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
Brownfield Amendments to CERCLA
• Provided three landowner liability exemptions:
– Innocent Landowner
– Contiguous Property Owner
– Bona Fide Prospective Purchaser (“BFPP”)
– There is no protection under CERCLA for a
current property owner where hazardous substances
are released
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BFPP Exemption Requirements
Generally, can acquire property with knowledge of
contamination, so long as:
• Performed “all appropriate inquiries” prior to
purchase;
• Not affiliated with a PRP; and
• Complies with “Continuing Obligations”
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the author or presenter. The information on this page is intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
What is a Phase I – Environmental Site
Assessment (“ESA”)?
• A Phase I Environmental Site Assessment (ESA) is an
investigation of the property for pre-existing environmental
conditions or related problems related to the use or
disposal of hazardous substances (and petroleum)
• “All Appropriate Inquiries” EPA Rule first became effective
November 1, 2006
• ASTM 1527-05 is equivalent to AAI (40 CFR § 312.11(b))
Note: ASTM 1527-13 is new Phase I ESA/AAI Standard
(discussed below)
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Phase I ESAs and AAI
Timing
• Conducted within one year prior to purchase date, but
several important components must be updated within
180 days prior to purchase
• In essence, an ESA older than 180 days will likely be
“stale”
• What are the implications if ESA is determined to be
“stale”? (E.g., client will likely target consultant and
legal counsel)
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the author or presenter. The information on this page is intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
Important Environmental Issues NOT Addressed
by a Phase I ESA
•
•
•
•
•
•
•
mold
radon
indoor air contamination/OSHA
lead-based paint
wetlands
regulatory/permit compliance
other considerations such as water use rights, lead in
water lines, or pesticide usage (site-specific)
• land use/development restraints
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the author or presenter. The information on this page is intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
Performing a Phase II Environmental Assessment
• A Phase II ESA is recommended when the Phase I ESA finds
material RECs and further investigation is warranted
• Usually involves collecting soil and/or groundwater samples
• A Phase II is not required to comply with AAI, but may be
desirable for:
– Financing
– More fully understanding risks (if necessary)
– Beginning remediation process
– Examining feasibility of insurance claims
– Developing “continuing obligations” for BFPP defense
• Tailor any Phase II to the property and future uses
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which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and may not be reproduced, in any form, without the express written consent of
the author or presenter. The information on this page is intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
Revisions to Environmental Due Diligence
Standards
• ASTM International promulgates standards for Phase I and
Phase II Environmental Site Assessments
• Revisions to Phase I ESA finalized in 2013
• Some key changes:
– HREC, CREC, REC definition revisions
– Vapor migration
– Clarifying “User” responsibilities (Questionnaire)
– Agency file reviews
• EPA Adopted “AAI” Rule Update (January 2014 Alert)
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Vapor Intrusion Issues
• Vapor intrusion (VI) generally occurs when there is a
migration of volatile chemicals from contaminant
sources into an overlying building.
– Volatile chemicals can emit vapors that may migrate
through subsurface soils and into indoor air spaces
of overlying buildings in ways similar to that of
radon gas seeping into homes.
– Volatile chemicals may include volatile organic
compounds, select semi-volatile organic
compounds, and some inorganic analytes, such as
elemental mercury, radon, and hydrogen sulfide.
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Vapor Intrusion
VI Implications in the Real World
• EPA issuing its Final VI Guidance soon
• More sites will “screen in” and require a VI assessment
• Critical to properly assess VI pathway and consider
site-specific evaluation
• EPA push for pre-emptive mitigation if (when) you
“screen in”
• IL EPA new rule on VI (July 2013):
http://www.epa.state.il.us/land/taco/indoorinhalation-amendments.html
• New 2013 ASTM Phase I Standard includes vapor
migration; some argue that VI was always part of AAI
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“Continuing Obligations” under CERCLA (CounterPart to “Due Care” under Michigan Part 201)
• No “disposal” after property ownership
• Cooperate with those conducting response actions, including
site access
• Comply with land use restrictions established or relied on in
connection with the response action
• Not impede the effectiveness or integrity of any institutional
control
• Provide all legally required notices
• Take reasonable steps to:
(a) stop any continuing release
(b) prevent any future threatened release; and
(c) prevent or limit any human, environmental, or natural
resource exposure to any previously released hazardous
substance
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which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and may not be reproduced, in any form, without the express written consent of
the author or presenter. The information on this page is intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
CONFIDENTIAL © 2014 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of Barnes & Thornburg LLP,
which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and may not be reproduced, in any form, without the express written consent of
the author or presenter. The information on this page is intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
Implementation of Continuing Obligations
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the author or presenter. The information on this page is intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
Who is BFPP? Ashley II (4th Cir. 2013)
• In April 2013, the Fourth Circuit became the first Federal
Court of Appeals to address the scope of “continuing
obligations” that bona fide prospective purchasers (BFPPs)
must satisfy to avoid liability for cleanup costs under CERCLA:
PCS Nitrogen Inc. v. Ashley II of Charleston Inc., 714 F.3d 161 (4th
Cir. 2013).
• In this CERCLA cost-recovery case, Ashley II of Charleston Inc.
(Ashley) sought BFPP protections for property that was formerly
used to manufacture fertilizer since 1884, and was
contaminated with arsenic, lead and other hazardous
substances. At trial, it was established that the contamination
was caused by the practice of using pyrite slag byproduct to
stabilize on-site roads in the 1930s, dust generated from
manufacturing practices in the 1970s, and various demolition
and construction activities that occurred throughout the
operation of the facility, among other possible sources.
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the author or presenter. The information on this page is intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
Ashley II (cont.)
• At trial, Ashley’s BFPP defense to strict owner liability was defeated
on several grounds, and Ashley appealed. On appeal, the 4th Circuit
focused on Ashley’s failure to comply with one of a BFPP’s
“continuing obligations,” which is sometimes referred to as the
“reasonable steps” or “appropriate care” requirement. This
obligation requires that the would-be BFPP:
– Exercise[] appropriate care with respect to hazardous substances
found at the facility by taking reasonable steps to (i) stop any
continuing release; (ii) prevent any threatened future release; and
(iii) prevent or limit human, environmental, or natural resource
exposure to any previously released hazardous substance. 42
U.S.C. § 9601(40)(D).
• The 4th Circuit Court of Appeals agreed that Ashley violated this
BFPP requirement for failing to maintain the limestone cover on the
property; failing to address the exposed sumps from the demolished
building; and failing to address the debris pile that accumulated at
the site.
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Implementation Considering State Laws,
Guidance and Programs
• Many States have “mini-CERCLA” statutes that provide similar
liability structures as a matter of State law
• These statutes can vary slightly from the federal statute
– Example:
• Include Petroleum within “hazardous substance” releases
• Include specific BFPP protections for tenants
• Require ESA filing or other notification to State agency
• Opportunity for Due Care Plan approval by Michigan
DEQ as “response activity” plan
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the author or presenter. The information on this page is intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
Implementation Considering State Laws,
Guidance and Programs
• Procedures for preserving State law protections vary:
– Example: California Land Reuse and Revitalization Act (CLRRA)
Health and Safety Code §25395.92
• Must enter agreement with DTSC
• Application and AAI
• Agreement on “activities” to be performed
• Oversight costs reimbursement
– See, e.g., 3000 E. Imperial v. Robertshaw Controls Co., 2010 U.S. Dist.
LEXIS 138661 (C.D. Cal. Dec. 29, 2010): plaintiff met
“appropriate care” standard even though some residual TCE
remained in underground storage tanks after plaintiff had cleaned
them out
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the author or presenter. The information on this page is intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
Implementation Considering State Laws,
Guidance and Programs
• Compare with NREPA Part 201 in Michigan:
• Like CLRRA, Part 201 is statute and regulation based,
but virtually entirely self-directed
• Analogous, but some additional State law
requirements
– Notice of Migration requirements for
adjacent/down-gradient property owners and
easement holders
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the author or presenter. The information on this page is intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
BFPP Continuing Obligations -Saline River Properties v. Johnson Controls (E.D. Mich. 2011)
• Saline, Michigan industrial property purchased by Plaintiff
Saline River Properties (“Saline”) from foreclosing lender in
2006, with Baseline Environmental Assessment (BEA), to
redevelop for residential use; JCI (as successor to Hoover
Universal) had entered into RCRA Corrective Action Consent
Order in 2003 to remediate property.
• Plaintiff purchaser tried to enforce EPA Consent Order
requiring former owner JCI to remediate groundwater
contamination, but Plaintiff was not a “contract” third-party
beneficiary of EPA Consent Order and JCI complied with
Consent Order obligation to submit Corrective Measures
Proposal.
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the author or presenter. The information on this page is intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
Saline River Properties v. Johnson Controls
(E.D. Mich. 2011) (cont.)
• CERCLA and Michigan NREPA Part 201 Counterclaims by JCI
against Saline
– Exacerbation: Saline caused a release or disposal by taking
the affirmative action of breaking up concrete slab, which
caused hazardous substances to migrate into additional soils
and groundwater
– Innocent Landowner: Saline did not meet its burden of
presenting evidence on each of the required elements of
§107(b)(3) (including “exercised due care”); breaking up
concrete slab negates innocent landowner status
– Michigan NREPA Part 201 liability: No BEA defense
because of finding exacerbation by breaking up slab
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Saline River Properties v. Johnson Controls
(E.D. Mich. 2011) (cont.)
• “Due Care” Section 20107a liability – evidence submitted by JCI that
allowed NREPA Part 201 Counterclaim to survive summary judgment:
– There was a large concrete slab on the property
– Saline knew there was contamination beneath the slab
– A concrete slab can serve as an engineered barrier to contamination
beneath the slab
– Saline knew about its “due care” requirements, which included not
exacerbating existing contamination
– Saline’s environmental expert advised it not to break up the slab
– Saline hired a contractor who broke up the slab
– Saline did not undertake any measures to prevent rainwater infiltration
– By breaking up the slab, Saline did not follow its Due Care Plan
– Rainwater infiltration caused contamination to migrate, resulting in
additional monitoring costs to JCI
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Saline River Properties v. Johnson Controls
(E.D. Mich. 2011) (cont.)
• After 8-days bench trial (June 2012), Saline was found liable to
JCI for (only) $1,200 in past response costs! Those were the
only costs tied to additional groundwater monitoring required
by slab demolition (correlated with detected increase in VOCs);
other costs were related to concrete rubble, which was not
caused by Saline’s release of contaminants.
• Saline found not liable for future response costs incurred by
JCI, since future costs were speculative – JCI failed to prove that
it will incur future costs.
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Implementation Considering State Laws,
Guidance and Programs
• Voluntary Cleanup Agreements limited to “innocent
parties”
– e.g., Idaho (VCP), California (CLRRA), South
Carolina (Non-Responsible Party Voluntary
Cleanup Contract), Mississippi (Brownfield
Agreements)
– Note: some states have voluntary cleanup programs
for responsible parties as well
• Comfort letters or similar programs
– e.g., EPA, Indiana, Utah
• PPA Agreements
– e.g., Arizona, Oregon
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Implementation Considering State Laws,
Guidance and Programs
• Required for Federal law protection?
– Not a Federal statutory element, but . . .
– Compare Robertshaw (C.D.Cal) with Johnson Controls
(E.D. Mich)
• Some important/material differences exist in Federal
and State laws
• Consider timing – pre-purchase obligations vs. postpurchase obligations under State programs
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Questions?
Charlie Denton
(616) 742-3974
cdenton@btlaw.com
Tim Haley
(317) 231-6493
thaley@btlaw.com
CONFIDENTIAL © 2014 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of Barnes & Thornburg LLP,
which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and may not be reproduced, in any form, without the express written consent of
the author or presenter. The information on this page is intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.