phase 1

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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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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Does A Phase 1 Have To Be Issued To The Person Seeking To Comply With AAI?

Purchasers who want to be able to assert the CERCLA Bona Fide Prospective Purchaser (BFPP), Innocent Landowner (ILO) or Continuous Property Owner (CPO) landowner liability protections (LLPs) need to conduct a pre-acquisition investigation that complies with EPA’s All Appropriate Inquires (AAI) rule. A question that is surfacing with surprising frequency is if the phase 1 …

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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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Fifth Circuit Affirms Dismissal of Bond Counsel in Bombing Range Case While Other Parties Settle

We have previously discussed the complex litigation involving a planned development on a portion of a World War 2 bombing range in Louisiana . In the latest installment of this saga, the Court of Appeals for the Fifth Circuit affirmed the dismissal of a legal malpractice claim filed against bond counsel in Coves of the Highland Community …

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Methane Gas, an Apartment Complex and a Bankruptcy Filing

A federal bankruptcy court authorized the owner of the upscale Marble Cliffs Crossing Apartments complex in Columbus, Ohio to install a methane gas remediation plan over the objections of the purchaser of the mortgage note, holding that the plan was necessary to protect the safety of tenants and was critical for preserving the value of …

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Parties Must Proceed To Trial on Meaning of “Satisfactory Phase 1” Contingency

The twin rulings in Westwood Dev. Partners, LLC v. Draper, 2012 Del. Super. LEXIS 161, 2012 Del. Super. LEXIS 162  (Del. Super. Ct., Mar. 29, 2012) eluded our radar screen last year due to the end of the year crush of deals. While these rulings are admittedly a bit stale, we are sharing them since they provide …

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A Lawyer, an Underwriter and an Appraisor-An Update

The title of this post sounds like a teaser to a bad joke but unfortunately it refers to the latest round of motions in two sprawling lawsuits involving a defunct planned community that was to be developed on what proved to be a part of a world war 2 bombing practice range. The defendants include …

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NY Case Illustrates Why Borrowers Should Not Simply Rely on Lender Approval of Phase 1

Lenders have long played a role as “surrogate regulator” in transactions. In many cases, lenders force potential borrowers to investigate suspected contamination and frequently require remediation under state oversight. Borrowers often balk at these requests any may even retain their own independent consultants to try to convince lenders that the work is not required or …

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