Archive for the ‘Environmental Due Diligence’ Category

JP Morgan Chase Actually Acquired “Toxic” Assets During the Great Recession

Sunday, March 4th, 2018

During the Great Recessions, the term “toxic assets” became a cliché. It was used to describe loans and other financial instruments that had fallen significantly and for which there is no longer a functioning market. The presence of these so-called toxic assets on their balance sheets caused many banks to fail.

As it turned out, JPMC actually acquired some toxic assets in the more traditional sense when it purchased the acquired the insolvent Washington Mutual Bank (WMB). As a result of this transaction, the bank eventually entered into a series of consent orders with United States and the California Department of Toxic Substances Control (DTSC) to resolve the liability of WMB and various predecessors involving the former BKK Sanitary Landfill Site  in West Covina, California. Under the consent order JPMC agreed to pay $27 million to the DTSC for its past response costs and remaining $58 million to the PRP steering committee. In addition, JPMC paid DTSC $1 million for attorney fees and other costs incurred related to the Consent Decree. In the federal consent agreement, JPMC agreed t pay to EPA  $1MM for past response costs.

The story began back in 1959 when Home Savings of America FSB (“Home Savings”) purchased land in West Covina, California. In 1963, Home Savings leased a portion of the landfill to BKK Corp., which developed and operated the a landfill that accepted both solid waste and hazardous wastes. Around 1973, Home Savings transferred title to the BKK Facility to a subsidiary, Oxford Investment Corp. (“Oxford”) which held title until approximately 1977 when BKK Corp. exercised a lease option to acquire title to the facility.

In 1995, Oxford became a direct subsidiary of H.F. Ahmanson & Company, the parent corporation of Home Savings. Oxford was subsequently renamed Ahmanson Developments Inc.  In 1998, H.F. Ahmanson &c Company merged into Washington Mutual Inc (WMI), which was the parent corporation of WMB. As part of that transaction, Home Savings merged into WMB, and Ahmanson Developments Inc., became a direct subsidiary of WMI.

In 2004, NAMCO Securities Corp., a subsidiary of WMB, loaned BKK Corp. money to assist BKK Corp. with maintaining its post-foreclosure financial assurance. However, BKK Corp. notified DTSC later that year that it could no longer perform its post-closure obligations for the closed hazardous waste landfill or operate the Leachate Treatment Plant.

DTSC was forced to retain a contractor to conduct emergency response activities at the BKK Facility. The agency then issued an Imminent and Substantial Endangerment Determination and Order and Remedial Action Order (ISE Order) to BKK Corp. and approximately fifty (50) other parties including WMB.

DTSC subsequently entered into a series of administrative settlement agreements with some of the PRPs named in the ISE Order. WMB was one of the settling respondents. DTSC later filed an action for cost recovery against 25 PRPs including WMB which resulted in a consent order that required the settling defendants to undertake various actions regarding the BKK site and to reimburse DTSC for certain costs it had incurred or would incur in the future related to the Subject Property.

After the Office of Thrift Supervision closed WMB and appointed FDIC as the receiver, WMI and WMI Investment Corp. commenced a chapter 11 petition. DTSC, the PRP steering committee and certain of its members filed proofs of claim in the WMB Receivership alleging that WMB and its subsidiaries or affiliates were liable for response costs and other damages associated with the BKK Facility. These claims were disallowed.

In 2012, the Bankruptcy Court approved a settlement agreement whereby the settling parties agreed, among other things, that JPMC would fund the obligations of the WMI Entities for Response Costs associated with the BKK Facility and act as their agent for certain insurance policies. Interestingly, the settlement agreement provided that the automatic stay would be lifted to the limited extent required to determine WMI’s liability for response costs related to the BKK Facility.

The Schnapf Environmental Journal that was published from 1998 to 2008 and is available from the newsletter page of this website discussed a number of instances where lenders incurred environmental liability as a result of acquisitions. For example, the 2002 September issue discussed Citibank’s liability for the Shattuck Chemical Company. The December 2004  issue covered the listing of a bank branch office to the federal superfund list.

Remedial Program Reform Proposals for EPA Administrator Pruitt

Tuesday, February 28th, 2017

Regulatory reform is at the centerpiece of the Trump Administration’s plan to stimulate economic growth. During the presidential campaign, candidate Trump vowed to rollback a variety of Obama Administration Climate Change Initiatives but said little about EPA remedial programs such as the federal Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or superfund). Based on his testimony and follow-up written response to Congress, it appears that EPA Administrator Scott Pruitt recognizes the value of brownfield programs and the need to remediate contaminated sites. There also seems to be strong bipartisan support for the brownfield program in the House committee responsible for the EPA budget.

As a result, I have shared the following recommendations to Administrator Pruitt for reforming EPA’s remedial programs. These suggestions could improve the efficiency of the remedial programs without weakening environmental protections. Some of the changes could be achieved through legislative amendments but could be administratively implemented if Congress does not have the time to address environmental issues during the current term. The proposals are not in any order of importance

  1. CERCLA Continuing Obligations Guidance– The 2002 amendments to CERCLA added the Bona Fide Prospective Purchaser (BFPP) and Contiguous Property Owner defenses. These defenses (in particular the BFPP defense) were enacted to help incentivize purchasers to acquire and remediate contaminated properties so they can be put back into productive use. While EPA promulgated an all appropriate inquiries (AAI) rule to help define the pre-acquisition obligations necessary to be able to assert these defenses, there is little guidance from EPA on how property owners or operators may satisfy their “appropriate care” or “continuing obligations” so they can maintain their liability protection after taking title or possession of property. The 2003 “Common Elements Guidance” is inadequate. The lack of guidance and recent caselaw have created uncertainty for developers and undermined the value of these defenses. EPA should issue detailed guidance on what constitutes appropriate care. Developers and property owners should not have to rely on ASTM to provide guidance on how to comply with their legal obligations.

2. Revise “Enforcement Discretion Guidance Regarding the Affiliation Language of CERCLA’s Bona Fide Prospective Purchaser and Contiguous Property Owner Liability Protections” – This memo did not sufficiently address concerns raised by the Ashley decision that purchasers of contaminated property could lose their eligibility for the BFPP by agreeing to indemnify sellers. 

3. More Robust Use of PPAs and CPO “Assurance Letters”- With the passage of the 2002 CERCLA amendments, EPA announced in guidance that it would issue PPAs or CPO assurance letters only in rare instances because the landowner liability protections were self-implementing. However, these agreements can be incredibly valuable. EPA should urge its regional offices to issue such documents where they can facilitate redevelopment such as in urban superfund sites (e.g., GowanusCanal, Newtown Creek) and where municipal governments are willing to foreclose on contaminated properties and then convey title to redevelopers. 

4. Clarify Scope of Municipal Liability Protections Under CERCLA to Encourage Taking Title of Vacant Properties and Facilitate Reuse- There is considerable uncertainty among local government community if municipalities can invoke the protections of 42 U.S.C. 9601(20)(D) and (9601(35)(A)(ii) where they take title in lieu of formal tax foreclosure proceeding since this may not be “involuntary”. Local governments might be more willing to take title and assemble vacant properties so they would become more attractive to redevelopment if they could obtain clarity on the scope of this protection. Presumably, a purchaser from a municipality would then be able to assert the BFPP or third party defense. A related problem is that the BFPP defense would not apply to local governments who took title prior to January 11, 2002.

5. Reform EPA Remedial Programs Into a Single Unified Cleanup Program- Our nation’s remedial programs were created as we became aware of new concerns. This has resulted in different cleanup standards and procedures. We have separate staffs for CERCLA, RCRA, TSCA (PCBs), USTs, etc. We now have three decades of experience remediating sites. I think we should strongly consider combining these discrete offices into one streamlined remedial office that will provide consistent regulatory approach and reduce unnecessary staff. 

6. Clarify Lender Obligations Following Foreclosure- The original EPA lender liability rule contained a “bright-line” test for lenders to follow so they can be deemed to have taken commercially reasonable steps to sell property following foreclosure, thereby staying within the safe harbor created by the secured creditor exemption. Unfortunately, when the rule was vacated and the 1996 lender liability amendments were added to CERCLA, the “bright line” test was omitted. So lenders have no guidance on how to proceed during what is the worst economic downturn since the Great Depression. Can they reject an offer that is equal to artificially depressed price? How long can they hold onto property without losing protection? Some states allow for two years while others allow up to five years to sell the property. Greater clarity will help lenders move these properties.If control of Congress changes, this can be legislative proposal.  

7. Encourage States to Adopt Licensed Professional Programs– States are facing severe staffing constraints which are creating backlogs in site remediation.  EPA could use its authority under section 128 of CERCLA (approval of state response programs) as well as its RCRA delegation authority to have states adopt licensed site professional programs like MA, NJ and CT so that states could devote their limited resources to the sites that pose the greatest risk to human health and the environment. EPA could establish a national licensing program for consultants that sets forth minimum professional requirements and states could adopt these programs as part of their remedial programs. One way to accomplish this could be by amending the All Appropriate Inquiries (AAI) Rule to revise the definition of Environmental Professional. This could avoid having to promulgate a new regulation.  

8. Revise NCP- revising the NCP. It was last revised in 1990. Since then we’ve learned a lot about cleanup and have lots of informal guidance to help streamline the process and make it more cost-effective. Doesn’t make sense to continue to follow the RI/FS lockstep process. Why review five alternatives? The NY brownfield program requires applicants tp propose remedy and an unrestricted cleanup alternative, and this approach has been able to generate robust cleanups. The NCP could be revised to incorporate streamlined provisions for brownfield sites that will produce faster and more cost-effective cleanups while preserving right of contribution. Right now, firms are incentivized to follow the lock-step approach to preserve their ability to pursue cost recovery. 

9. Revise CERCLA Disclosure Requirements With Amnesty Program To Incentivize Accelerated Cleanups- Property owners are not currently required to disclose historic contamination. As a result, many sites remain unremediated until the owner is ready to sell the property. To help accelerate cleanups, I think EPA could announce it was going to change its disclosure rules from reportable quantity approach to contaminant concentrations and at the same time provide current property owners a one year amnesty period to voluntarily disclose contamination. Much like the EPA audit policy, owners who disclose the existence of contamination that they are not responsible for would be afforded BFPP status. They would have to exercise “appropriate care” but not full cleanup. The SARA Title III program resulted in substantial reductions in pollution. It seems worth the try to experiment with an amnesty period for contaminated sites. 

10. Seek Cost Recovery from Responsible Parties When Brownfield Grants Are Awarded – According to a 2004 EPA study, there may be 300,000 contaminated sites in the nation that may cost over $200 billion (not adjusted for inflation) to remediate.  Many brownfield sites were created when corporations closed plants and either relocated elsewhere in the country or exported the jobs overseas yet remains financially viable. EPA has been granting brownfield grants to local governments without considering if there is a responsible party.  Before EPA gives away public money, it should make a determination that there are no responsible parties. If responsible parties are available, RPA should give the responsible party an opportunity to conduct an investigation and remediation of the contaminated property is has left behind. If the responsible party declines to participate int he cleanup, EPA could then award the Brownfield grant and seek cost recovery. In this way, the brownfield funding program would not have to rely entirely on Congressional appropriations.

11. Move Away from Brownfield Grants/Loans and To Tax Credits- The brownfield financial incentives are becoming like public works projects. The funding often takes too long for private development. Rather than giving funds to local government to investigate and reuse planning, EPA could incentivize the private market to do this work by expanding and extending brownfield tax credits. The New York Brownfield tax credit program has resulted in an estimated $7.5B in investment in the state at a cost of $750MM. Tax credits put the upfront risk on the developer instead of the taxpayers. 

12.Adopt National Environmental “WARN” Obligations Under RCRA- to prevent future brownfields, companies closing operations should be required to notify relevant permitting authority at least 90 days in advance of closing to ensure that appropriate closure occurs so that public money does not have to be used to address cleanup or local government seeks brownfield funds.

13. Require States To Use Parceling To Encourage RCRA Brownfields- EPA RCRA Brownfield Reforms urged states to allow owners or operators of TSDF to sell off clean parcels of their facilities (e.g., portions never used for any waste management) while the HWMUs or SWMUs were undergoing corrective action. EPA should more forcefully use its delegation authority to allow this much needed reform.  

14. Clarify RCRA liability for Generator-only sites- There is much confusion if closure obligations for a generator site run with the land. In other words, a site may have been owner or operated by a defunct generator. A prospective purchaser is interested in redevelopment but is concerned it will become subject to closure obligations for the areas where wastes were managed. Presumably, generator sites could be treated as any brownfield site without the need to undergo formal RCRA closure.  

15. Add Landowner Liability Protections to TSCA for PCB Cleanups- Purchasers often take steps to qualify for CERCLA BFPP only to learn after taking title that the property has been impacted with PCBs and they are subject to TSCA cleanup. This might require Congressional action but I do not see any reason why TSCA should not have a BFPP defense. Congress added AAI and BFPP to OPA in 2004 with little controversy.

16. TSCA PCB Reform- The PCB cleanup and disposal rules are a bit RCRA-like, a bit CERCLA-like and not well integrated. The cleanup should also not depend on the original spill concentration but on current concentrations and media. I’d like to see the entire Subpart D to 40 CFR 761 repealed, and disposal of PCB-containing material handled entirely within RCRA via the listed-waste and LDR route. 

17. Adopt Restatement (Third) of Torts Approach to Joint Liability– When CERCLA was enacted, Congress said that liability should be premised on evolving concepts of common law. At the time of its enactment, the Second Restatement was in effect which favored use of joint liability for indivisible harm. However, this was before states began adopting comparative negligence statutes. The Third Restatement states that the law has shifted dramatically from the use of joint liability and that courts should try to find a basis for apportioning liability where there is a reasonable basis. Despite the publication of the Third Restatement in 2000, federal courts continue to cling to the doctrine espoused by the Second Restatement. Recently  an appeals court declined to adopt the suggestion of an amicus brief submitted by The American Tort Reform Association to use the Third Restatement to apportion liability for the Fox River cleanup. My post on this case is at: http://www.environmental-law.net/2012/08/7th-circuit-declines-to-apply-third-restatement-of-torts-in-apportionment-case/ . The Administration might want to have Congress clarify that CERCLA liability should be based on the Third Restatement or  EPA could issue interpretative guidance that it now considers the Third Restatement to be the governing law for CERCLA liability. This  would reflect the Congressional intent to follow the evolving common law and confirm the direction where the law has moved.

THE TEN COMMANDMENTS OF ENVIRONMENTAL LAW

Thursday, February 23rd, 2017

The collective wit and wisdom from three decades of practicing environmental law (in no order of importance).

1.Thou shall not call the environmental lawyer the day before the closing

2. Thou shall not accept without further inquiry a Phase 1 reports that says there are no RECs

3. Thou shall be concerned when the Phase 1 says the tank was reportedly removed, asbestos was reportedly abated, or the dry cleaner was reportedly only a drop off location. 

4.If a tank be in the ground, it shall have leaketh

5. If a dry cleaner operated at the property, it shall have leaketh

6. He who is most anxious to close shall bear the environmental risk.

7. Thou shall looketh carefully at Phase 1 recommendations

8. Thou shall be concerned when the real estate partner asketh you to take a quick look at a “clean” phase 1.

9.Thou shall not underestimate the importance of public support during project development.

10. Thou shall know that you need a permit to drain the swamp

 

 

 

 

 

 

EDR Commonground Interview On the State Environmental Due Diligence

Friday, December 9th, 2016

This interview occurred at the old Yankee Stadium in 2008 shortly after the last game was played. 

NY Court of Appeals Finds PRP Letter Triggers Contractual Indemnification

Wednesday, January 27th, 2016

The New York State Court of Appeals held that a PRP letter issued by the New York State Department of Environmental Conservation (NYSDEC) was sufficient to trigger an indemnity obligation under a purchase and sale agreement. While lower courts have found PRP letters to constitute “suits” within the meaning of  a Comprehensive General Liability policy so as to trigger a duty to defend, this is the first time the a PRP letter has been interpreted within the context of a private indemnity agreement.

In Remet Corp. v. Estate of Pyne, 26 N.Y.3d 58 (N.Y. 2015), James R. Pyne sold all of his stock in Remet Corporation (Remet) and real property to Burmah Castro Holding (BCH) for approximately roughly $28 million. During pre-acquisition due diligence, BCH learned that a leased facility in Utica was located adjacent to the Old Erie Canal site, a parcel that was listed on the New York State List of Inactive Hazardous Waste Sites. BCH became concerned that Remet could become responsible for the remediating the Old Erie Canal site which BCH’s consultant estimated could cost as much as $29MM.  After BCH proposed excluding the site from the transaction, Pyne agreed to provide a ten-year indemnity to BCH for losses related to pre-existing environmental conditions provided that the losses resulted from actions that the purchaser was “required to take under or in connection with any Environmental Law.” The indemnity also contained a “muzzle” clause that provided that such required actions could not be a result of  communication by BCH with NYSDEC.  A $2.7 million environmental escrow account was established.

In October 2002, the NYSDEC sent Remet and four other parties a notice letter identifying them as a generator PRPs for the Old Erie Canal site.  The notice letter provided in part that if the PRPs did not enter into a signed Consent Order within 30 days, NYSDEC would terminate discussions and implement a remedy using the state superfund. The letter warned that NYSDEC would seek cost recovery for its costs and that the letter constituted a demand for payment of all monies the NYSDEC might expend for the investigation and remediation of this site, plus any and all interest.

Remet tendered an indemnification claim to Pyne in accordance with the indemnification procedures under the purchase and sale agreement (PSA). Pyne declined to assume control of the defense but cooperated with Remet in implementing the company’s initial response to the PRP letter. Remet, three other PRPs, and Mr. Pyne investigated the Old Erie Canal site and prepared a report with Pyne and Remet splitting 25% of the costs. In discussions with NYSDEC, Remet and Pyne argued that Remet should not be considered a PRP because Remet did not generate any waste stream from its processes and the chemicals it used did not match the contaminants identified at the Old Eric Canal site. The NYSDEC negotiations were unsuccessful. Pyne died in March 2003. Later that year, Remet’s management team acquired all of Remet’s stock and the Pyne estate agreed to assume the Pyne’s indemnification obligations under the PSA.

NYSDEC subsequently issued a letter indicating that since none of the PRPs had agreed to perform any work, the agency would use state funds to complete the investigation and implement the remedy.  Eventually, NYSDEC selected a remedy estimated to cost $12.5MM

With its indemnification claim still pending, Remet filed a claim against the Pyne estate in the Surrogate Court seeking to bar distributions from the estate until the indemnification claim was resolved. The Pyne estate objected to any release of funds from the escrow account to cover the approximately $550K demanded by NYSDEC for a portion of the work and instructed Remet that any unilateral contact with the NYSDEC would constitute a waiver of any right to indemnification under the PSA.

Remet then commenced an action against the Pyne estate to enforce the estate’s indemnification obligations of $550K as well as a declaration that it was entitled to reimbursement for all future costs. The trial court granted summary judgment to Remet, holding that Remet would have to expend money since it would either have to respond to the PRP letter or defend a NYSDEC cost recovery action. The court also noted that Pyne’s cooperation following the PRP Letter was inconsistent with the estate’s position that the PRP letter did not “require” action. The estate appealed and the appellate court reversed, ruling that the DEC did not “require” any action but merely informed Remet of its potential liability and sought voluntary action.

Before the Court of Appeals, Remet relied heavily on a line of insurance cases holding involving that PRP letters were “suits” within the meaning of Comprehensive General Liability policies that triggered an insurer’s duty to defend. Remet analogized that if a PRP letter was coercive and adversarial enough to constitute a “suit,” it is coercive and adversarial enough to “require” responsive action. Moreover, Remet argued that if the appellate decision was affirmed, “every business insured under a liability policy that provides coverage for defense of environmental claims will have an incentive to resist cooperating with DEC upon receipt of a PRP letter, until there has been a final determination of liability.”

The estate argued that the NYSDEC letter simply indicated that Remet was a PRP and that it had no indemnification obligation under the PSA until a court actually held that Remet was found to actually be a  responsible party. The estate pointed out that the NYSDEC never categorized or ever asserted that Remet was anything other than a PRP. Indeed, the estate emphasized that NYSDEC had not taken any enforcement action against Remet or any other of the PRPs.

The Court of Appeals rejected this creative but strained interpretation, holding that the PRP letter was sufficiently coercive and adversarial as to “require” action ” under Environmental Law as provided under the PSA. 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, even though Remet was labeled a “potentially responsible party,” it responses to the letter were coerced and  not voluntary. The court also found persuasive the circumstances surrounding the execution of the indemnification clause and the funding of the environmental escrow account as evidence that the parties were aware of the potential for substantial expenses relating to the Erie Canal Site, and that Pyne’s cooperation after receipt of the PRP letter was evidence that Pyne thought action was required action.

Principal New York State Environmental Laws Impacting Commercial Leasing Transactions

Saturday, January 16th, 2016

Parties to commercial leasing transactions frequently overlook environmental issues because they believe that tenants who do not use large quantities of hazardous chemicals will not be exposed to significant environmental liability. Consequently, the parties may do little to no environmental due diligence and use obsolete or boilerplate lease provision that do not specifically allocate environmental risks. Even when a lessee examines environmental conditions of a site, the investigation is often limited to ensuring that there are no environmental conditions that would impair its ability to operate at the site or that the property is adequate for the intended use.

What these parties do not realize that owners and operators of commercial property can be liable for contamination associated with historic uses. This means that landlords can be liable for contamination caused by their tenants and tenants may be responsible for contamination that preceded its tenancy.

In the second installment of a series that I am publishing in the venerable New York State Bar Journal, I review the key New York State Laws that can impact commercial leasing transactions. The article is available here. The next installment in this series will cover NYC environmental laws. The first article discussing federal environmental laws impacting commercial leasing transactions is available from our publications page here.

Lender that Sold Contaminated Property Agrees to $1.4MM Settlement

Wednesday, May 6th, 2015

We have previously reported on instances where banks have incurred cleanup costs in connection with properties they have sold.  For some examples, click here, here, here, here and here

The latest installment of this saga involves Bank of America (BOA) which agreed to pay $1.4MM as part of a settlement involving a dry cleaner property that a BOA predecessor owned decades ago. A federal district court approved the settlement in Whitehurst v. Heinl, 2015 U.S. Dist. LEXIS 49147 (N.D.Ca. 4/14/15).

In this case, Charlotte A. Heinl (“Heinl”) operated a Norge Cleaners in Oakland, California from approximately 1965 to 1987. Bank of America, National Trust & Savings Association (“NTSA”) owned the property from approximately 1969 to 1987 and had leased it to Heinl. Bank of America became the successor to NT&SA when BankAmerica Corp. merged with NationsBank in 1998. As part of that merger, Bank of America, NTSA, was renamed Bank of America, NA (BOA).

NTSA sold the property to Richard and Lorraine Whitehurst (“Plaintiffs”) in 1987 for $265,000 pursuant to an “as is” agreement. The Plaintiffs had also been provided with a opportunity to investigate the property prior to the closing and had obtained a 120-day extension. The Property had been part of a larger parcel of real property that NTSA subdivided shortly before it sold the property to the Plaintiffs. The remainder of the parcel is still owned by Bank of America, NA and is potentially impacted by the former dry cleaner.

Sampling conducted September 2007 revealed elevated levels of PCE and its breakdown products in the groundwater. After the California Regional Water Quality Control Board, San Francisco Bay Region (“RWQCB”) sent an information request to the Plaintiffs, they filed a complaint against the Heinl and BOA asserting the defendants were liable under RCRA 7002,  CERCLA and various state common laws claims. The plaintiffs sought an order compelling the defendants to remediate the contamination and sought damages because they had been unable to lease or sell the property due to the presence of the contamination. The bank subsequently filed claims against both Whitehurst and Heinl alleging they were responsible for the contamination.

After several court-sponsored mediations failed to achieve a settlement, the parties reached an agreement on the eve of trial. Under the settlement, the parties agreed to establish a $2MM remediation fund. BOA agreed to contribute $1.4K with $200,000 of that amount representing a contribution from the Plaintiffs Whitehurst in the form of an interest free loan. The plaintiffs will be required to repay the loan within 6 months of receipt of a NFA letter from the RWQCB.  The Fireman’s Fund agreed to tender $600K on behalf of Heinl who passed away during the course of the litigation.

The plaintiffs and BOA entered into Fixed Price Remediation Agreement  with a consultant to implement remedial actions required by the RWQCB. BOA is required under the agreement to designate a Project Manager to supervise the cleanup and handle various administrative tasks associated with the cleanup.

A copy of the order approving the settlement is available from Google Scholar here 

 

NYC Enacts New Disclosure Law for School Sites

Monday, March 16th, 2015

On February 5th, New York City Mayor Bill de Blasio signed into law Int. No. 126-A (Local Law 12) requiring the Department of Education (DOE) promptly notify parents and other community groups of sampling results identifying elevated levels of in any public school or any proposed public school owned or leased by the DOE. The law takes effect in 90 days.

The law was passed in the wake of discovery of contamination at  PS 51 in the Bronx. PS 51 was located in a building that previously been occupied by in lamp factory. It was not until the lease was up for renewal and DOE had changed its policy to conduct indoor air sampling for lease renewals that sampling was performed. The investigation found levels of VOCs in the indoor air that exceeded the state Department of Health Vapor Intrusion Guidelines for TCE. DOE learned of the contamination in January 2011 but did not communicate the sampling results to the school community until August. The school was subsequently relocatedand the school site was enrolled in the NYSDEC brownfield cleanup program. 

This was only the latest incident where buildings contaminated from prior uses had been converted to schools without adequately investigation or abating the risks posed by the contamination. The problem frequently occurred for leased school sites since School Construction Authority (SCA) was not required to perform environmental reviews under the State Environmental Quality Review Act (SEQRA). The SCA has subsequently amended its policy to require environmental due diligence for new leases and lease renewals.  It was this pursuant to this new policy that the contamination was discovered at PS 51. Due diligence results for leased school sites are now available from the SCA website 

The law applies to contaminants, pollutants and the hazardous substances appearing at 40 CFR 302.4 that exceed “maximum levels” set forth in applicable federal or state regulatory guidelines. If no applicable regulatory guidelines have been established for a particular substance, DOE or SCA are to establish acceptable levels based on current industry standards and relevant published scientific data and guidance.

The disclosure obligation does not apply to tests for asbestos, lead-based paint or polychlorinated biphenyls since the DOE is believed to have adequate sampling and notification protocols for these substances. Notification is also not required where DOE or SCA reasonably expect exceedances of the maximum levels to return to or below the maximum levels through ventilation or cleaning within twenty-four hours, provided that the results that exceed maximum levels have returned to at or below maximum levels within such twenty-hour period and have not occurred in substantially the same space within the previous year

Within ten days of receipt of an environmental report showing exceedances of the maximum levels, DOE must notify parents of current students and the current employees of any public school. If the results are received during a scheduled school vacation period exceeding five days, the notification shall within ten days after the end of such period. The DOE is also obligated to make reasonable efforts to notify the parents of former students and former employees of any school for which notification is required.

DOE is also required to notify the directors of all afterschool programs operating under its jurisdiction, local elected officials, community education councils and local community boards. DOE is also required to “conspicuously post” a link to any environmental report that triggers notification on its website within ten days of receipt of the sampling results. The reports shall be searchable by school, community school district, council district and borough.

Copy of the bill available here 

NYSDEC Proposes Amendments to Haz Waste Rules

Tuesday, February 10th, 2015

The New York State Department of Environmental Conservation is proposing significant changes to its hazardous waste management regulations (6 NYCRR Parts 370-374 and 376). The proposed amendments are available here.

The proposed changes will incorporate thirty-seven (37) amendments to the federal Resource Conservation and Recovery (RCRA) regulations that have been adopted by the federal Environmental Protection Agency (EPA) from January 2002 through April 2012. The June 26, 2014 Cathode Ray Tube Export rule is also included in this rule making. The list of federal rules along with brief descriptions is available here 

Specifically, NYSDEC is seeking comments on the following EPA rules:

  • Solvent Contaminated Wipes Rule – EPA’s July 31, 2013 rule revises the definition of solid waste to conditionally exclude solvent-contaminated wipes that are cleaned and reused and revises the definition of hazardous waste to conditionally exclude solvent-contaminated wipes that are disposed.
  • Carbon Dioxide Sequestration Rule – EPA’s January 3, 2014 Carbon Dioxide Sequestration Rule provides a conditional exclusion for carbon dioxide (CO2) streams in geological sequestration activities. This rule would conditionally exclude CO2 streams that are hazardous waste from the definition of hazardous waste, if they are captured from emission sources and are injected into Class VI Underground Injection Control wells for geological sequestration, provided that certain requirements are met.
  • Hazardous Waste Electronic Manifest (e-Manifest) Rule – EPA’s e-Manifest Rule provides the legal and policy framework to authorize th use of electronic manifests. The e-Manifest system will go into effect through out the United States at the same time, whether or not authorized states have amended their regulations.
  • EPA’s 2008 Definition of Solid Waste Rule, as amended in January 2015 redefines “hazardous secondary materials.” It streamlines regulation of hazardous secondary material to encourage beneficial recycling and help conserve resources. By removing unnecessary regulatory controls, it is expected to make it easier and more cost-effective to safely recycle hazardous secondary materials. EPA published substantial revisions to this rule on January 13, 2015. As amended, the rule provides greater safeguards from mismanagement. Certain parts of the 2015 Final Rule are more stringent than current DEC regulations. DEC must adopt these provisions, which include a revised definition of “legitimate recycling,” a prohibition on sham recycling, and new recordkeeping requirements related to speculative accumulation provisions.
  • Amendments to DEC’s Used Oil Management regulations (6 NYCRR Subpart 374-2). DEC is considering whether or not to continue to require Petroleum Bulk Storage (PBS) registration for certain small used oil tanks for which PBS registration is not otherwise required; whether to amend the used oil collection center requirements to allow entities collecting used oil in small volumes to obtain a Part 360 registration and more closely follow EPA requirements in lieu of obtaining a Part 360 permit. Changes in record retention time requirements to more closely follow EPA requirements are also being considered.

In addition, NYSDEC is proposing approximately 80 changes to clarify regulatory language and to correct errors. This list of so-called state-initiated changes can be accessed here

DEC will host a live webinar on February 25, 2015, 10:00am-12:00pm. To register for the webinar, click here 

Do Clients Have To Complete Consultant Questionnaires To Comply With AAI?

Wednesday, December 10th, 2014

The short answer is no.

Environmental consultants routinely submit environmental questionnaires to property owners and their clients as part of the phase 1 process. Some consultants tell their clients that they are obligated to complete the questionnaire to be able to comply with EPA’s All Appropriate Inquires (“AAI”) rule. A few go as far as saying they cannot issue a phase 1 report unless the client completes the questionnaire.  However, this is flat out wrong.

EPA’s AAI rule does not require users  to complete the questionnaire. Indeed, the AAI Rule does not even require purchasers, brownfield grantee or lender (collectively the “user”) to provide the results of their “additional inquiries” to the environmental professional much less complete a questionnaire to satisfy with AAI. All the user needs to do is demonstrate that it performed those “additional inquiries” We will now break down the user obligations.

The AAI rule identified what elements of the investigation were the responsibility of the environmental professional and which criteria were the responsibility of the prospective purchaser or brownfield grantee. The information that has to be obtained by the user are known as “additional inquiries” and set forth in 40 C.F.R. 312.22. The “additional inquiries” include: specialized knowledge or experience of the prospective landowner (or grantee); the relationship of the purchase price to the fair market value of the property, if the property was not contaminated; and commonly known or reasonably ascertainable information.

In the preamble summarizing the changes from the proposed rule to the final rule that was published in the November 1, 2005 federal register, EPA stated at page 66076:

“The final rule does not require the prospective landowner (or grantee) to provide the information collected as part of the “additional inquiries” to the environmental professional. Although we expect that most prospective landowners and grantees will furnish available information or knowledge about a property to an environmental professional he or she hired when such information could assist the environmental professional in ascertaining the environmental conditions at a property, we affirm that compliance with the statutory criteria does not require that such information be disclosed. [emphasis added]. 

 Since it ultimately is up to the owner or operator of a property to defend his or herself against any claims to liability, we agree with commenters that asserted that the regulations should not require that prospective landowners (or grantees) provide information collected to comply with the “additional inquiries” provisions to the environmental professional. Should the required information not be provided to the environmental professional, the environmental professional should assess the impact that the lack of such information may have on his or her ability to render an opinion with regard to conditions indicative of releases or threatened releases of hazardous substances on, at, in or to the property. If the lack of information does impact the ability of the environmental professional to render an opinion with regard to the environmental conditions of the property, the environmental professional should note the missing information as a data gap in the written report.” [Emphasis added]

 Beginning on page 66082 of the preamble to the AAI rule in the discussion captioned “H. Who Is Responsible for Conducting the All Appropriate Inquiries?” EPA stated as follows [note we have broken out large block paragraph into smaller paragraphs for ease of reading]:

 “Several commenters asserted that the mandatory nature of the proposed provision requiring the prospective landowner to provide information regarding the four criteria listed above to the environmental professional is problematic. Particularly with regard to the requirement to provide “specialized knowledge or experience of the defendant,” commenters pointed out difficulties in a prospective landowner being able to document such knowledge and experience sufficiently. Also, with regard to the information related to the “relationship of the purchase price to the fair market value of the property, if the property was not contaminated,” many commenters pointed out that prospective landowners may not want to divulge information regarding the price paid for a property. Commenters pointed out that the requirement to consider “commonly known or reasonably ascertainable information” about a property is implicit to all aspects of the all appropriate inquiries requirements. In addition, commenters stated that CERCLA liability lies solely with the owners and operators of a vessel or property. A decision on the part of a prospective landowner to not furnish an environmental professional with certain information related to any of the statutory criteria can only affect the property owner’s ability to claim a liability protection provided under the statute. In addition, the statute does not mandate that information deemed to be the responsibility of the prospective landowner and not part of the “inquiry of the environment professional” be provided to the environmental professional or even be part of the inquiry of the environmental professional. Some of the statutory criteria are inherently the responsibility of the prospective landowner.

We agree with the commenters who asserted that the results and  information related to the criteria identified as being the responsibility of the prospective landowner should not, as a matter of law, have to be provided to the environmental professional. The statute does not mandate that a prospective landowner provide all information to an environmental professional. Given that the burden of potential CERCLA liability ultimately falls upon the property owner or operator, a prospective landowner’s decision not to provide the results of an inquiry or related information to an environmental professional he or she hired to undertake other aspects of the all appropriate inquiries investigation can only affect the liability of the property owner.

In addition, we believe that the environmental professional may be able to develop an opinion with regard to conditions indicative of releases or threatened releases on, at, in, or to a property based upon the results of the criteria identified to be part of the “inquiry of an environmental professional.” Any information not furnished to the environmental professional by the prospective landowner that may affect the environmental professional’s ability to render such an opinion may be identified by the environmental professional as a “data gap.”

The provisions of the final rule (as did the proposed rule) then require that the environmental professional comment on the significance of the data gap or missing information on his or her ability to render such an opinion, in light of all other information collected and all other data sources consulted.

As a result of our consideration of the issues raised by commenters, today’s final rule modifies the requirements of Sec. 312.22 “additional inquiries” by stating (in paragraph (a)) that “persons * * * may provide the information associated with such inquiries [i.e., the information for which the prospective landowner or brownfields grantee is responsible] to the environmental professional * * *.” The proposed rule provided that such information “must be provided” to the environmental professional.” [Emphasis Added]

AAI is a performance-based regulation. Failure to provide the information in 40 CFR 312.22 does not cause a prospective purchaser or party seeking the landowner liability protection to automatically lose its liability protection. The user may lose its ability to claim the protections IF the absence of that information prevents the EP from reaching a conclusion about the presence or absence of RECs or a release.  At the end of the day, the EP has to decide if the failure to respond certain information is a significant data gap that prevents the EP from rendering a conclusion if there is a release (or REC).  

The questionnaire is just the starting point for the due diligence since the environmental consultant will perform its own site inspection and historical records review. It will be a rare occasion when a purchaser or lender will have material information about the property that the consultant will not be able to obtain or that will result in a data gap that will prevent the consultant from determining if there is a recognized environmental condition (REC) on the property. The absence of an uncompleted questionnaire will not be significant in the overwhelming number of transactions where the client is a purchaser or lender. If the consultant still feels obligated to identify failure to prepare the questionnaire as data gap in such a situation, the consultant should be required to indicate that the data gap is not significant and does not alter the conclusions of the report.