Another ASTM Standard Satisfies All Appropriate Inquiries under CERCLA

Posted on July 6, 2009 by Greg Smith

US EPA has amended the Standards and Practices for All Appropriate Inquiries (“AAI”) to acknowledge another ASTM standard can be used to satisfy the AAI requirement for the landowner defenses to liability under Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) – innocent landowners, bona fide prospective purchasers, and continuous property owners. In addition to ASTM International Standard E1527-05, you can now use, when applicable, ASTM International Standard E2247-08 entitled Standard Practice for Environmental Site Assessments:  Phase I Environmental Site Assessment Process for Forestland or Rural Property (“ASTM E2247-08”).

 

 The Scope of ASTM E2247-08 indicates it can be used “for conducting a [Phase I] of a property120 acres or greater of forestland or rural property or with a developed use of only managed forestland and/or agriculture with respect to the range of contaminants within the scope of [CERCLA] and petroleum products.  The property need not be contiguous; however, the non-contiguous areas should have substantially the same general land use and be part of the same transaction.  The property may contain isolated areas of non-forestland and non-rural property.” ASTM E2247-08 indicates it is “closely related” to ASTM E1527.

 

US EPA’s action does not require the use of ASTM E2247-08 when applicable, but rather provides it as an additional tool. Any person seeking to qualify for a landowner defense under CERCLA still has the option of performing AAI by complying with the requirements set forth in regulation (40 CFR Part 312) or ASTM E1527-05.
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Potential Effect of Climate Change Regulation on Real Estate Development

Posted on April 13, 2009 by Sherry Hesselbein

Recent activity in Washington, D.C. suggests that the federal government is moving one step closer to regulating greenhouse gas emissions.  US EPA has determined that greenhouse gas emissions are pollutants that endanger the public’s health and welfare.  US EPA’s endangerment finding could lead to regulation of greenhouse gas emissions under the Clean Air Act.  Alternatively, a new cap-and-trade bill has been introduced, which would remove greenhouse gases from regulation under the Clean Air Act, but would require a reduction in greenhouse gas emissions of 85% from 2005 levels by 2050. 

What does the potential regulation of greenhouse gases mean for real estate development? 

INCREASED ENERGY COSTS !

Energy-utility companies will be greatly impacted by regulation of greenhouse gases.  Particularly, in Ohio and other Midwest states, where electricity production is almost entirely dependent upon coal-burning, reducing greenhouse gas emissions could be quite costly.  Moody’s has estimated that consumer electricity costs will rise between 15-30% as a result of any cap-and-trade regulation.

With the expectation of increased energy costs, real estate developers should look to energy-efficient building systems or alternative energy sources as ways to reduce these costs.  The Ohio Department of Development and the Ohio Air Quality Development Authority offer grants to help offset some of the initial costs for installing alternative energy sources.  Additionally, tax credits are available for certain projects.

If you would like to learn more about potential climate change regulation and Ohio funding for alternative energy projects, these topics will be presented at the CREW of Greater Cincinnati 2009 Midwest Regional Conference.  The conference will take place April 23-25, 2009 at the Cincinnati Hilton Netherland Plaza.  Other topics presented at the Conference include:  "Successful Urban Renaissance Developments"; "Diversity by Design: Successful Inclusion Projects"; "Case Studies in Brownfield Redevelopment"; and "Capital Markets -- Effects from Washington Decision Making".  

 Continuing Education Credits for Ohio Real Estate licensing have been applied for all sessions of the Conference, and Continuing Legal Education Credits have been received for "Case Studies in Brownfield Redevelopment"; "Capital Markets -- Effects from Washington Decision Making"; and Alternative Energy Projects.  
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