Environmental Due Diligence

NYSDEC Proposes New Water Quality Guidance Values for Emerging Contaminants

On October 6, 2021, New York State Department of Environmental Conservation (NYSDEC) proposed Released new water quality guidance values (GVs) for emerging contaminants Perfluorooctanoic acid (PFOA), Perfluorooctane sulfonic acid (PFOS), and 1,4-Dioxane (1,4-D). The new guidance values are established in a draft addendum to Technical and Operational Guidance Series (TOGS) 1.1.1: Ambient Water Quality Standards and Guidance …

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New Phase 1 Standard is Approved by ASTM Governing Body!

The ASTM E1527-21 is now official! It was approved  on November 1st after three years of development. I served as the co-chair of the legal sub-committee. Among the changes: Key terminology revisions: The terms “Recognized Environmental Condition” (REC); “Controlled Recognized Environmental Condition” (CREC); and “Historical Recognized Environmental Condition (HREC) have been strengthened to reduce misclassifications of …

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Continuing to Struggle with CERCLA liability, the 7th Circuit Holds that a Phase 2 ESA Satisfies AAI

The Court of Appeals for the 7th Circuit has long struggled with interpreting the scope of CERCLA liability, often issuing poorly-reasoned and inconsistent decisions. This trend continued with its recent opinion in Von Duprin vs Moran Electric Service, Inc., et al,  2021 U.S. App. LEXIS 26726 (7th Cir. 9/3/2021) where the court issued a number …

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Property Owner Fails to Qualify as BFPP Because Phase 1 Did Not Contain EP Certification

A property owner failed in its bid to qualify as a CERCLA bona fide prospective purchaser because its phase 1 did not contain the environmental professional certification required by the section 40 C.F.R. § 312.21(d) of EPA’s All Appropriate Inquires (AAI) rule. In Von Duprin LLC v. Major Holdings, 2021 U.S. App. LEXIS 26726 (7th …

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OER Launches Revised Searchable Property Environmental E-Database (SPEED 2.0)

The New York City Office of Environmental Remediation released an update to its Searchable Property Environmental E-Database (SPEED 2.0) environmental mapping tool in April. SPEED is a useful due diligence tool that allows users to obtain environmental information at a city, borough, neighborhood or site level. All of SPEED’s data is regularly updated to provide …

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EPA Issues Guidance For Continuing or Suspending Response Actions During COVID-19 Crisis

In our post discussing EPA’s Enforcement Discretion guidance, we mentioned that EPA was working on guidance for performing remedial actions during the Covid-19 crisis. On April 10th, EPA issued its “Interim Guidance on Site Field Work Decisions Due to Impacts of COVID-19” (Interim Guidance) to regional offices when determining to continue, reduce, or pause on-site …

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Revised ESD Essential Services Guidance Appears to Include Phase 1 Reports and End Confusion for Consultants

As we discussed in a prior Post, the Empire State Development Corporation (ESD) issued a guidance document that were exempt from  Governor Cuomo’s  Executive Order 202.8 banning non-essential services from operating to control the spread of the covid19 virus. In response, the New York State Department of Environmental Conservation (“NYSDEC”) issued its own Guidance describing the …

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EPA Issues Enforcement Discretion Memo for Routine Civil Violations Arising from COVID-19 Pandemic

Update: EPA has created a frequently-asked questions about covid-19 webpage that is available Here. The federal Environmental Protection Agency has issued a Memo announcing that it will temporarily exercise enforcement discretion for certain civil violations where the non-compliance was a result of the COVID-19 pandemic. Contrary to news articles in such publications  as E&E News, The …

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New DEC Interactive Map Expedites Environmental Due Diligence

Performing environmental due diligence has become easier with the launch of the New York State Department of Environmental Conservation DECInfo Locator. Until the launch of this website, consultants and attorneys seeking information about contaminated sites had to file requests under the state Freedom of Information Law (FOIL). The limited NYSDEC FOIL staff usually took weeks …

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Consultants in Bank Lawsuit Saved by the (Statute of Limitations) Bell

Christmas arrived early for two environmental consulting firms when a federal district court ruled in Bank United, N.A. v. Merritt Environmental Consulting Corp, 2018 U.S. Dist. Lexis 214448 (S.D.N.Y. 12/20/2018) that a lender had waited too long to file a complaint against the consultants for failing to identify radioactive contamination in a phase 1 environmental …

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