vapor intrusion

NYSDOH Lowers Vapor Intrusion Action Levels for TCE

As anyone who has gone through the New York State Brownfield Cleanup Program (BCP) is all too aware, the New York State Department of Health (NYSDOH) has an important role in the cleanup process. The NYSDOH is responsible for determining that work completed under the NYSDEC remedial programs are protective of public health for the …

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Cal Appeals Ct Affirms $2MM judgment against foreclosing bank for failure to complete remediation is

The foreclosing lender in Hoang v. California Pacific Bank, 2014 Cal. App. Unpub. LEXIS 5230 (July 23, 2014) made some curious decisions and the result was the bank was ordered to pay damages to the purchaser that exceed the sales price of the property. The irony is that the lender probably complied with the CERCLA …

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Problems Emerge with New CREC Definition

After a little more than six months after ASTM issued its new E1527-13 Phase 1 standard practice, problems are emerging over the new definition Controlled Recognized Environmental Condition (CREC) definition. The difficulties are related to the definition itself and differences among state environmental programs. Before discussing the CREC problems, a little background might be helpful …

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NY Governor Sends Revised BCP Reform Bill to Legislature

Earlier this week, Governor Cuomo sent his sweeping BCP reforms to the State Legislature. Under the state Constitution, the Governor has 30 days to make technical amendments to his budget legislation without involving the legislature. Despite vociferous complaints by brownfield developers, environmental lawyers and affordable housing advocates about the severe curtailments to the categories of projects …

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EPA Recognizes E1527-13 But Preamble Raises Specter of Retroactive LIability For Past Phase 1 Reports that Did Not Assess Vapor Intrusion

On December 30th, the  federal Environmental Protection Agency (EPA) published a final rule in the Federal Register  (78 FR 79319) recognizing the new ASTM E1527-13 phase 1 standard practice as an approved method for complying with the All Appropriate Inquires (AAI) rule. As explained below, while the preamble to the final rule is an improvement to …

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Federal Court Rules Methane Gas Constitutes “Imminent and Substantial Endangerment” Under RCRA 7002

A federal district court ruled that methane migrating from a closed landfill to a residential development project constitutes an imminent and substantial endangerment under section 7002 of the Resource Conservation and Recovery Act in Marcas, L.L.C. v. Bd. of County Comm’rs,2013 U.S. Dist. LEXIS 104380 (D.Md. 7/25/13).  The court also followed an emerging trend and …

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CMBS Special Servicer May Not Recover VI Test Costs Under Environmental Indemnity

Earlier this year, we discussed   the federal district ruling in Orix Capital Markets, LLC v Cadlerocks Centennial Drive, LLC, 2013 U.S. Dist. LEXIS 48424 (D. Mass. 4/2/13) where a special servicer was allowed to pursue a guarantor despite the presence of an environmental insurance policy and was awarded over $100K in environmental investigation costs. This …

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CERCLA “Discovery Rule” Playing Important Role in Toxic Tort Cases

State statutes of limitations (SOL) establish the time period when an injured party may bring a lawsuit seeking compensation for damages. In general, the SOL “clock” will start when a claim “accrues” (e.g. when all of the required elements of the cause of action have been satisfied. Because of the long latency period between exposure …

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