1. 1. Keith W. Turner Watkins & Eager
2. 2. Environmental Risks Are Not Always Obvious
3. 3. 2012
4. 4. 1992
5. 5. Former Wood Treating Facility
6. 6. Federal Environmental Laws Clean Air Act (CAA) Clean Water Act (CWA) (original title: Federal Water Pollution Control Amendments of 1972) Comprehensive Environmental Response, Compensation and Liability Act (CERCLA, or Superfund) Emergency Planning and Community Right-to-Know Act (EPCRA) Endangered Species Act (ESA) National Environmental Policy Act (NEPA) Oil Pollution Act (OPA) Resource Conservation and Recovery Act (RCRA) Safe Drinking Water Act (SDWA) Toxic Substances Control Act (TSCA)
7. 7. Mississippi Environmental Laws Mississippi Air and Water Pollution Control Law Miss. Code Ann. 49-17- 1 through 49-17-43 Environmental Self-Evaluation Reports Miss. Code Ann. 49-2-71 Solid Waste Disposal Law of 1974 Miss. Code Ann. 17-17-1 through 17-17-67 Disposal of Waste Tires and Lead Acid Batteries; Right-Way-to-Throw-Away Program Miss. Code Ann. 17-17-401 through 17-17- 445 Mississippi Nongame and Endangered Species Conservation Act Miss. Code Ann. 45-5-1 et seq.
8. 8. Miss. Enviro Laws cont. Mississippi Brownfields Voluntary Cleanup and Redevelopment 49-35-1 Mississippi Underground Storage Tank Act of 1988 49-17-401 Lead-based Paint Activity Accreditation and Certification Act 49-17-601
9. 9. All Appropriate Inquires (AAI) ASTM Standards E 1527-13 Phase I ESA (-05 allowable until Oct. 2015) E 1528-00 Transaction Screening E 1903-07 Phase II Site Assessment E 2247-08 Phase I ESA for Forests and Rural Property Remember these reports expire
10. 10. Phase 1 ESA By an Environmental Professional Past and present owners Historical resources aerials, title, sanborns Government records Consultant reliance on EDR Site inspections
11. 11. Sanborn Maps
12. 12. Pending ASTM revisions What is a REC (HREC - historical, CREC - controlled) What is sufficient records review Vapor intrusion issue
13. 13. Types of Purchasers (CERCLA) Innocent Landowner No prior knowledge of contamination Bona Fide Prospective Purchaser Purchase with knowledge but not responsibility Contiguous Property Owner Adjacent to contamination Indicia of Ownership Holds property to protect security interest
14. 14. Maintaining Protection - Continuing Obligations Compliance with land use restrictions Allow access by agencies Stop continuing releases Prevent future releases Prevent or limit exposure
15. 15. PCS Nitrogen Inc. v. Ashley II of Charleston, 2013 WL 1340018 (4th Circuit) April 4, 2013 43 acre site First used in 1884 as phosphate fertilizer plant Several owners over the years 9 PRPs
16. 16. RHCE Innocent Landowner Defense Purchased 2 acres of the property in 1990 Excavated pond in 1991 Installed more sewer and water lines Removed 6 inches of topsoil and graded land
17. 17. Innocent Landowner Defense (429607(b)(3)) Must show 1. another party sole cause of contamination 2. PRP did not cause release in contractual connection with defendant 3. defendant exercised due care
18. 18. RHCE Defense Failed Lower court found all three pongs were not met RHCE argued it met prongs one and two court held need all three prongs
19. 19. Ashley - Bona Fide Prospective Purchase Defense (429601(40)) Purchase 27 acres in 2003 with knowledge of contamination Time of purchase contaminated soil was exposed After commencement of this action purchased additional 3 acres Incurred $194,000 for investigation and response costs
20. 20. Ashley - BFPP Must meet 1. disposal prior to purchase 2. All appropriate inquires 3. Notice 4. Care 5. Cooperation 6. compliance with institutional controls 7. Complies with requests 8. not affiliated with PRP
21. 21. Ashley Level of Care reasonable steps Stop continuing release Prevent future releases Prevent or limit exposure Ashley wanted lower level of care from innocent landowner defense But court suggests the care should higher for BRPP
22. 22. Ashley Defense Fails Failed to clean sumps after conducting demo at site Did not monitor conditions Allowed contamination to be exposed to surface
23. 23. Holcombe and Fair Purchased the site in 1985 Aware of contamination in 1990 Both impacted contaminated areas and protected areas Subdivided property to several owners
24. 24. Holcombe and Fair Evidence of site grading (of known contaminated areas) Became PRP for secondary disposal by moving contaminated soils on and about the site
25. 25. Attorney Role in AAI Process Consultant selection and oversight
26. 26. 2006
27. 27. 2002
28. 28. Environmental Consultant Selection Experience (of field staff and PM) Insurance terms Contract terms (indemnifications and limitations to contract values) State and local knowledge
29. 29. What other roles for the Attorney ? Report review (review draft and final) Transaction contract terms Indemnification terms Financial assurance methods (insurance, letter of credit, deposits Communications with MDEQ (if necessary)
30. 30. Federal windfall liens No statutory environmental liens in Mississippi MDEQ approach to cost recovery
31. 31. Information is the Key
32. 32. Risk controls Brownfield status CERCLA protections (AAI) Contract terms Insurance Clean up costs Third Party claims Re-opener costs Natural resource damages
33. 33. Strategies to Protect Seller Pre-sale ESA Implement Institutional controls Indemnifications Financial assurances Reps and Warranties MDEQ actions NFA letters, Agreed Orders, Brownfield Sites
34. 34. Strategies to Protect Buyer Current Phase I ESA and Phase II if necessary Indemnifications Financial assurances Reps and Warranties MDEQ involvement If existing contamination confirm planned site usage fits with continuing obligations/institutional controls
35. 35. Brownfields Protections CERCLA 9601(39) real property complicated by the presence or potential presence of contamination Mississippi 49-35-1 to 27 Property where use is limited as a result of actual or potential contamination or the perception of contamination
36. 36. Brownfield Benefits/Limitations All property owners directly impacted included No liability to all persons (not EPA) for clean ups costs Section 49-35-14(l) Does NOT include other damages So what about EPA enforcement ?
37. 37. Protection from EPA Enforcement EPA letter to MDEQ: CERCLA Section 128(b)(1) enforcement bar Bars federal enforcement if State Program is sufficient Three exceptions State requests assistance Multi-state site (contamination across state line) Immediate action necessary
38. 38. Mississippi Brownfields 2012 Brownfield Site Name - Location 1 Amoco/AFTA - Natchez 2 Arizona Chemical Picayune 3 CECO Building Systems Columbus 4 City Center Ridgeland 5 Colle Towing Pascagoula 6 Copiah Co. MECO Property - Gallman 7 Emerson Appliance Motors Div. - Oxford 8 DeSoto Co. School Bus Lot Hernando 9 Fabra Care Master Dry Cleaner Jackson 10 Gautier Oil Gautier 11 Intex Plastics/Hatco Plastics Corinth 12 Mound Plantation Red Barn Rolling Fork 13 Nashville-Ferry Rd/Glenn Springs - Columbus 14 National Picture & Frame/Uniek - Greenwood 15 One Hour Cleaners Starkville 16 Pennzoil-Quaker State Vicksburg 17 Pilot Travel Center Richland 18 Swifty Serve #542 Moss Point 19 Tupelo Fairgrounds/Longs Laundry Tupelo 20 W.R. Grace Solvent Waste Site - Corinth 21 West Manufacturers Blvd. - Brookhaven 22 Whirlpool Corp. - Oxford 23 Wolverine Tube - Greenville 1 2 3 4 5 6 7 8 9 11 10 12 1314 15 16 17 18 19 20 21 22 23
39. 39. Brownfield risk No protection from third party lawsuits Common Law Claims Trespass past and continuing Nuisance public and private Negligence and gross negligence Strict liability
40. 40. Blackard v. Hercules, Inc. 2014 WL 3549929 S.D. Miss Private Nuisance and Trespass Ashland not liable for the failure to correct Hercules wrongs Negligence Possessor or controller of land not liable for prior acts of the current owner Remediation and Restoration Costs Only recover restoration costs if less than the diminution value
41. 41. Wetlands Permitting Section 401 Water Quality Certification (MDEQ) Coastal counties need to also obtain permit from Mississippi Department of Marine Resources Section 404 Permit (Corps of Engineers) Vicksburg/Mobile/Memphis
42. 42. Why is there still confusion over wetlands? Rapanos v. United States, 547 U.S. 715 (2006) (Plurality decision) Three tests Kennedy Significant nexus test (with waters of the US) (biological, chemical, physical) Scalia Relatively permanent connection test (flow) with waters of the US Dissent Corps reasonable interpretation
43. 43. SACKETT v. ENVIRONMENTAL PROTECTION AGENCY Supreme Court of United States. 132 S.Ct. 1367 (2012)
44. 44. 2/3 acre lot in Idaho across from home sites on lake
45. 45. Sackett v. EPA
46. 46. Sackett v. EPA EPA claimed violations of Clean Water Act discharge of pollutants from a point source CWA 301 and 502 discharge of pollutants into waters of the US without a permit CWA 301
47. 47. EPA issued a compliance order demanding Sacketts remove all fill placed on the lot Sacketts requested a hearing from EPA but were denied EPA did not consider the compliance order a final and appealable action By not acting the Sacketts were accruing a $75,000 a day liability ($37,500 CWA violation, $37,500 Order violation) Sackett v. EPA History
48. 48. Scalia Opinion APA action acceptable under CWA when no other remedy available Is a compliance order a final agency action ripe for appeal ? YES How will decision impact agency enforcement approach ? Sackett v. EPA
49. 49. Jurisdictional Determinations 5th Circuit and 9th Circuit have held that a jurisdictional determination is not reviewable final agency action under the Administrative Procedure Act and therefore not eligible for judicial review 8th Circuit held that courts may review the Corps' approved jurisdictional determinations about whether a water body is subject to its authority.
50. 50. EPA and Corps of Engineers Revisions to the regulatory definition of Waters for the US became effective - May 27, 2015
51. 51. According to EPA the Rule does: Clearly defines and protects tributaries that impact the health of downstream waters. Provides certainty in how far safeguards extend to nearby waters. Protects the nations regional water treasures. Focuses on streams, not ditches. Maintains the status of waters within Municipal Separate Storm Sewer Systems. Reduces the use of case-specific analysis of waters.
52. 52. According to EPA - Rule does not: Protect any types of waters that have not historically been covered by the Clean Water Act. Add any new requirements for agriculture. Interfere with or change private property rights. Regulate most ditches. Change policy on irrigation or water transfers. Address land use. Cover erosional features such as gullies, rills and non- wetland swales. Include groundwater, shallow subsurface flow and tile drains
53. 53. Jurisdictional ?
54. 54. Jurisdictional ?
55. 55. Jurisdictional ?
56. 56. ?
57. 57. Excluding Dusky Gopher Frog Critical Habitat
58. 58. Markle Interests, LLC v. USFWS (5th Circuit Appeal filed) USFWS designated 1600 acres as refuge the endangered dusky gopher frog Weyerhaeuser and a group of similar landowners are appealing a Louisiana federal judge's decision rejecting their challenges, USFWS claiming land was a "critical habitat" that could be used to revive a species close to extinction, under the ESA.
59. 59. Designation of Critical Habitat of Dusky Gopher Frog (June 12, 2012) Approximately 4,933 acres are designated as critical habitat in Forrest, Harrison, Jackson, and Perry Counties, Mississippi
60. 60. USFWS: public lands alone are insufficient to ensure long-term survival of the species
61. 61. Endangered frogs find home in Jackson Co. Workers at refuge in Gautier have released hundreds since May Clarion Ledger June 15, 2015 We are taking an existing population of the frogs from Saucier in Harrison County and repopulating them elsewhere, By bringing the frogs to Jackson County, we now have two critically endangered species on our South Mississippi refuge we also house the endangered Mississippi sandhill crane.
62. 62. Northern Long-eared Bat Interim 4(d) Rule Has a northern long-eared bat maternity roost tree or hibernacula been documented on or near the project area? trees that northern long-eared bats have been documented as using during the active season (approximately April October). Once documented, a tree will be considered to be a known roost as long as the tree and surrounding habitat remain suitable for northern long-eared bat.
63. 63. Former Proposed USFWS Urban Refuge
64. 64. No federal or Mississippi limits for IAQ or mold But, Lumber Liquidators laminate wood flooring from China, exceeded World Health Organizations limits (lawsuits, federal investigations, and possible criminal charges)
65. 65. New agency focus Exposure path soil vapor intrusion Both MDEQ and EPA include a review of the issue for most sites
66. 66. Soil Vapor Intrusion
67. 67. Soil Vapor Intrusion No formal exposure limits State will follow recommended levels or can conduct risk study Remediation options Existing structures Vapor collection systems HVAC pressure control New Construction Vapor collection Slab membrane or sealers
68. 68. Underground Storage Tanks v. Aboveground Storage Tanks
69. 69. Federal State Site Specific
70. 70. What about background levels ?
71. 71. 2013 revisions to Mississippi Economic Redevelopment Act (57-91-1) now includes all brownfields within the MDEQ program. Credit for remediation and investigation costs Up to a ten year period a percentage of taxes and fees are credited to developer - limited to 2 times the amount of the allowable remediation costs.
72. 72. Before
73. 73. AFTER Liberty National Golf Course New Jersey
74. 74. Questions? Keith Turner Watkins & Eager 601-965-1958