BROWNFIELDS LEGAL ISSUES AND COST RECOVERY CLAIMS€¦ · Allows subsequent UST owners recovery...

©2013 Kahn, Dees, Donovan & Kahn, LLP | 501 Main St., Suite 305, Evansville, IN 47708 | (812) 423-3183 | www.KDDK.com

BROWNFIELDS LEGAL ISSUES AND COST RECOVERY CLAIMS

Presented by: Mike Schopmeyer and Monica Edwards

September 26, 2013

©2013 Kahn, Dees, Donovan & Kahn, LLP | 501 Main St., Suite 305, Evansville, IN 47708 | (812) 423-3183 | www.KDDK.com ©2013 Kahn, Dees, Donovan & Kahn, LLP | 501 Main St., Suite 305, Evansville, IN 47708 | www.KDDK.com | (812) 423-3183

RECOVERY RIGHTS FOR REMEDIATING CONTAMINATED SITES

BROWNFIELDS LEGAL ISSUES AND COST RECOVERY CLAIMS 2 September 26, 2013



Underground Storage Tank (“UST”) Act I.C. 13-23-13-1, et.seq. (1987)

Allows subsequent UST owners recovery against prior UST owners for remediation costs, including court costs and attorney fees, and if UST’s are properly registered, after $35,000 deductible, recovery can be made against state’s Excess Liability Fund (ELF).




Environmental Legal Actions I.C. 13-30-9-1, et.seq. (1997)

Provides, like UST Act, another statutory means for subsequent landowners to recover from prior landowners using “private prosecutorial” enforcement actions covering a broader range of contaminants than UST Act.

Brownfield Act I.C. 13-25-5-8.5, et.seq. (1997)

Creates the mechanisms for streamlining the methods and thus costs of cleanups, along with grants and other financial incentives for owners.




American States Insurance Co. v. Kiger 662 N. E. 2d 945 (1996)

Enables recovery for contamination clean-ups against old CGL occurrence-based policies.

Shell Oil Co. v. Meyer 705 N.E. 2d 962 (1998)

Establishes, in interpreting the UST Act, the right to broadly recover costs and attorney fees, and finds subsequent landowner need not remediate first before filing suit.




Allstate Insurance Co. v. Dana Corp 759 N.E. 2d 1049 (2001)

Expands Kiger in finding that among several CGL carriers identified during a period of contamination, any one carrier can be held jointly & severally liable, thus freeing property owners from prolonged liability allocation battles.

State Auto Mut. Ins. Co. v. Flexdar, Inc. 2012 Ind. LEXIS 47 (2012)

Affirms Kiger decision and ability to recover costs for contamination clean-ups against more recent CGL occurrence-based policies.



NEW ASTM E 1527 STANDARD FOR PHASE I ENVIRONMENTAL SITE ASSESSMENT (ESA)




Environmental due diligence

History of ASTM E 1527 standard

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1990s

ASTM E 1527 developed to define “good commercial and customary practice” for conducting all appropriate inquiry (AAI)

2002 2005/2006 2013

Brownfields Law cites ASTM E 1527 as the interim standard for conducting AAI

EPA AAI Regulation references to ASTM E 1527 for conducting AAI

ASTM E 1527-13 update underway

BROWNFIELDS LEGAL ISSUES AND COST RECOVERY CLAIMS September 26, 2013



Proposed changes in ASTM E 1527-13

• Recognized environmental condition.

• Vapor assessment.

• Regulatory file review.

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Vapor Assessment

• New standard specifically indicates that potential for vapor migration must be assessed as part of Phase I ESA.

• May involve the need to obtain site access agreements to test indoor air quality at neighboring properties.

10

Image Source: http://www.epa.gov/oswer/vaporintrusion/basic.html

BROWNFIELDS LEGAL ISSUES AND COST RECOVERY CLAIMS September 26, 2013

http://www.epa.gov/oswer/vaporintrusion/basic.html

http://www.epa.gov/oswer/vaporintrusion/basic.html



Assess Before You Proceed

• To seek the protections of the Brownfields Amendments, a Phase I ESA must be performed prior to proceeding with any property purchase sale or lease.

• It is imperative that the environmental professional performing the Phase I ESA be familiar with the new ASTM E 1527 Standard.

11 BROWNFIELDS LEGAL ISSUES AND COST RECOVERY CLAIMS September 26, 2013


QUESTIONS?



MIKE SCHOPMEYER Co-Managing Partner [email protected]

MONICA E. EDWARDS Partner [email protected]

BROWNFIELDS LEGAL ISSUES AND COST RECOVERY CLAIMS 13

THANK YOU!

September 26, 2013


501 MAIN ST., SUITE 305 EVANSVILLE, IN 47708

(812) 423-3183 WWW.KDDK.COM

BROWNFIELDS LEGAL ISSUES AND COST RECOVERY CLAIMS€¦ · Allows subsequent UST owners recovery...

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