vapor intrusion

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 …

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

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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Cal Appeals Ct Revives VI Toxic Tort Case

In the latest installment of the saga involving the infamous Ujima Village Apartment complex that was abandoned because of vapor intrusion from a former petroleum storage facility, a California appeals court ruled in Doris Alexander v. ExxonMobil, 2013 Cal. App. LEXIS 768 (Ct. App.-2nd Dist. 9/24/13) that a trial court improperly dismissed a group of …

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Dry Cleaner Settles Foreclosing Lender RCRA Action

We previously discussed the RCRA lawsuit filed by a bank that had foreclosed on a residential property that turned out to be impacted by contamination from an adjacent dry cleaner in Forest Park National Bank v Ditchfield.  The bank had alleged that vapors migrating from the contaminated groundwater and soil constituted an imminent and substantial endangerment …

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NJ Ct. Vacates NJDEP Denial of Innocent Party Grant

During the early years of New Jersey’s remediation program, challenging decisions of the New Jersey Department of Environmental Protection (NJDEP) bordered on Quixotic mission. Times have changed, though, and courts are no longer intimated by NJDEP and we have discussed a number of cases where courts have overruled the agency’s decisions. See dry cleaner case and …

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