Jun 20, 2018

EPA Soliciting Comments on BUILD Act

Dirty Warehouse: BUILD Act

The Environmental Protection Agency is seeking to streamline the cleanup and reuse of National Priorities List sites with an emphasis on private party participation and private investment. NPL site designation was once a popular way for affected communities to secure federal funding for remediation, but the program has long suffered from lack of funding. Now, the Trump administration seeks to streamline the delisting of NPL sites in the same manner as the redevelopment of brownfields. One example of this initiative is the Brownfields Utilization, Investment and Local Development (BUILD) Act, which was enacted on March 23, 2018, and reauthorizes EPA’s… Read more

May 9, 2014

New Environmental Assessment Standard for Brownfields

In November, 2013 the American Society for Testing Material (“ASTM”) adopted ASTM E1527-13 for the assessment of Brownfield properties. An ASTM Task Force has determined that more than 60% of environmental professionals are using the standard for all their Phase I assessments, and the U.S. EPA has adopted the standard for its “All Appropriate Inquiry Rule.” The new standard is more restrictive than the ASTM E1527-05 standard and is arguably more protective of the potential purchaser. Most notably, the new standard requires the environmental professional to assess the site for potential vapor intrusion – a consideration that historically has been… Read more

Oct 18, 2013

EPA to Clarify Brownfields Due Diligence

EPA has announced that it will withdraw its direct final rule published in the Federal Register on August 15, which updated brownfields due diligence requirements, and will issue a new final rule.  The August due diligence rule had been criticized because it allowed use of an outdated ASTM standard for “all appropriate inquiry” (AAI) when acquiring brownfield sites, as well as the updated ASTM standard.  It was asserted that allowance of two different standards would create regulatory confusion on the level of due diligence required.  EPA had been expected to state that ASTM’s latest version of the AAI standard, E1527-13,… Read more

May 6, 2013

Federal Court of Appeals Addresses Superfund Liability of Brownfield Developers

In a case of first impression regarding brownfield developer liability under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund), the Fourth Circuit Court of Appeals on April 4 decided the issue of whether a current owner of a hazardous waste site can escape liability as a Bona Fide Prospective Purchaser (BFPP) under Brownfield redevelopment legislation enacted by Congress in 2002.  Specifically, the opinion in PCS Nitrogen Inc. v. Ashley II of Charleston LLC LP, Nos. 11-1662, 11-2087, 11-2099, 11-2104 and 11-2297 (4th Cir. April 4, 2013), interpreted the requirement that, in order to escape liability as a… Read more

Feb 4, 2013

New EPA Guidance Broadens Tenant Protections at Brownfield Sites

In response to concerns that liability protection for tenants was not clear enough to encourage development of renewable energy on brownfield sites, EPA issued a guidance document on December 5 in order to broaden protections of tenants who meet certain criteria, even if the site owner does not qualify for protection as a Bona Fide Prospective Purchaser (“BFPP”).  Signed by EPA’s enforcement head Cynthia Giles and waste chief Mathy Stanislaus, the new protections are outlined in a memorandum entitled “Revised Enforcement Guidance Regarding the Treatment of Tenants Under the CERCLA Bona Fide Prospective Purchaser Provision.” Under 2002 brownfield amendments to CERCLA, Section… Read more