For purposes of generating discussion, I’m a landowner.

Maybe….I bought a manufacturing company that had been operating for years. Once I took control, I found out the previous owner had been allowing contaminants to seep into the slab of my building and possibly to affect soil and/or groundwater.

Or maybe…..I’ve owned a manufacturing company for years and that pesky shop foreman has bothered me once too many times about the leaky fuel tank out back. I’m going to look into it once and for all to make him stop complaining.

Question: Where do I start? Should I call the City…what department? Should I call the County….what department? Should I call an environmentalist? Should I call that divorce attorney I met at the club? Or should I just rent a backhoe and start digging around out back to see what the problem is?

Question: Are you with the City or the County or a law firm or a consulting firm, or somewhere else? What are your thoughts on where my first call should be?

The article below called, “The Brownfield Toolbox” is an oldie but goodie. It was written by some smart folks over at Barg Coffin Lewis & Trapp, LLP in San Francisco.

The article touches on many different issues, including risk-based corrective action, the details of and difference between Phase I and Phase II investigations, Voluntary Cleanup Program, Prospective Purchaser Agreements (locking in agency protection prior to purchasing), de minimis landowner settlements (I didn”t create the contamination, I just own it….), environmental insurance, etc.The issue of risk-based analysis is interesting because it details how previously there was a zero-tolerance policy with regards to contamination, which mostly lead to alot of boarded up and fenced off sites. Subsequently, the regulators moved to the risk-based system which focused less on the qualitative analysis of whether a site was contaminated and focused more o on the quantitative approach of determining how risky that contamination actually is to humans or the environment. In summary, that provided a more common-sense and solution oriented approach to redevelopment.

Question: Did anyone else find this article interesting?
Question: Any experts out there want to comment on what, if anything, has changed since this was written in June of 1999?

The attached file, “All Appropriate Inquiries - New Standard for Environmental Due Diligence” was written by the smart folks over at Winston & Strawn LLP (www.winston.com). Contact info for specific attorneys/contributors can be found at the bottom of the article.

To qualify for defenses to CERCLA’s “strict liability”, one has to show they’ve made “all appropriate inquiries” that reflect generally accepted good commercial practice. That was formerly proven by identifying recognized environmental conditions. The EPA’s new rule, effective 11/1/06, mandates that not only do you need to recognize conditions, you also need to achieve certain objectives and performance standards. The old ASTM standards have been updated to reflect EPA’s new guidelines.

Comment: I don’t know if the new ruling has changed this situation, or whether this situation was always in place. But I find it interesting that landowners could be deemed to have failed “all appropriate inquiries” if the consultant they hired doesn’t adequately consider “data gaps.” So it appears it’s not enough to hire a qualified consultant, you also have to hire one you’re sure will get it right.

Question: Clearly, Phase I costs depend on the particular assignment, so it would be difficult to estimate the EPA’s new ruling effect on costs, on an absolute $ basis. But does anyone dare to take a shot at generalizing how much Phase I costs will increase, on a percentage basis?

Call for Discussion: Any Phase I consultants care to chime in with what you’re doing to be prepared to meet the new ASTM/EPA standards? This article was written in November, 05 - does anyone know whether financial institutions are gearing up to impose the new standards in their underwriting requirements?