Lender Liability

EPA Withdraws Final Rule That Would Have Recognized ASTM E1527-21 While Continuing To Recognize ASTM E1527-13

As we  predicted,  EPA received numerous negative comments to its Direct Final Rule that would have recognized that the new ASTM E1527-21 phase 1 standard may be used to comply with the All Appropriate Inquires (AAI) rule for asserting certain landowner liability defenses and qualify for brownfield grants. All of the comments criticized EPA’s plan to …

EPA Withdraws Final Rule That Would Have Recognized ASTM E1527-21 While Continuing To Recognize ASTM E1527-13 Read More »

Expect Adverse Comments as EPA Drops Ball on ASTM Recognition

In our prior blog, we announced that the Environmental Protection Agency (“EPA”) would publish a proposed rule and direct final rule proposing to amend and amending the All Appropriate Inquiries rule (“AAI”)  to reference the revised ASTM E1527-21 ‘‘Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process’’ (“E1527-21”) and allowing it to …

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EPA Scheduled to Publish Recognition of ASTM E1527-21 in March 14th Federal Register

EPA has released a pre-publication copy of its proposed and direct final rule to recognize E1527-21 as a method for complying with its All Appropriate Inquiries (AAI) Rule.  If EPA does not receive any negative comments, the final direct rule will become effective upon the expiration of the public comment period. Upon the effective date, …

EPA Scheduled to Publish Recognition of ASTM E1527-21 in March 14th Federal Register Read More »

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 …

New Phase 1 Standard is Approved by ASTM Governing Body! Read More »

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

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, …

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Remedial Program Reform Proposals for EPA Administrator Pruitt

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 …

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Lender that Sold Contaminated Property Agrees to $1.4MM Settlement

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 …

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

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 …

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Bankruptcy Courts Rules Bank May Not Seek Cost Recovery for Contaminated Site Purchased in Auction Sale

Pete Seeger’s popular song from the 1960s “Where have all the Flowers Gone?” has the haunting recurring lyrics “When will they ever learn”. This song came to mind when we came across another case of a bank taking title to contaminated property without doing any environmental due diligence. In this case, Suburban Bank and Trust …

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