As promised, this next series of posts will discuss the scenarios in the picture above. These scenarios are included in an appendix to E2790 and are intended to show the Guide "in action." The use of examples in the drafting process was important-- I personally found that when concrete examples were discussed, it was easier to reach agreement on how to perform the analysis. As we go through these, keep in mind that these examples were specifically intended to illustrate certain aspects of the Guide. Also, if the facts change, the underlying analysis may change as well-- and may change significantly. So without further ado....
Scenario A Basic Facts: A user performs a Phase I on parcel A, and discovers a REC. It is believed that TCE is in the soil.
Step 1: Continuing Obligations are likely for those seeking CERCLA protections.
Step 2: An investigation is performed. TCE is delineated in soil. No TCE is found in groundwater.
Step 3: After considering options including excavation, installation of vapor barriers, and restrictive covenants, the user opts to enter the state Voluntary Cleanup Program (VCP) and perform some remediation. The user performs limited excavation, and installs a vapor mitigation system. The user records a restrictive covenant on the property restricting against residential use and restricting excavation activities. The user obtains administrative closure from the state.
Step 4: The user inspects the vapor barrier every year, per manufacturing recommendations. The user also inspects property to confirm compliance with the restrictive covenant.
As an aside, if there were any legally-required notification requirements, the user would have to comply to maintain it protections.
Note that this is a fact-driven exercise. If TCE was present in groundwater, for example, there may have been other steps needed (adding groundwater restriction in the covenant, for example). If the investigation had already been completed when the user purchased the property, they may not have needed to undertake additional investigation. Certainly, the person who later purchases parcel A from the user will have a completely different analysis as well (See Scenario C).
As a final note on this scenario: compliance with a VCP may or may not satisfy continuing obligations, and should be evaluated closely. If it is determined that the actions undertaken in the VCP also satisfy continuing obligations, the regulatory documents produced may eliminate the need or desire for any other documentation.
Scenario B Basic Facts: Parcel B had formerly been used as a machine shop. The user performs a phase I and a REC for the "likely presence" of groundwater contamination. There are no institutional controls. There is a groundwater well on site, but it has not been used in several years. The user wishes to transform the property into a multifamily apartment complex.
Step 1: Continuing Obligations may be necessary to address possible regional groundwater contamination.
Step 2: Additional investigation is performed and confirms that groundwater is not impacted. Further, no vapor concerns exist. The user chooses to properly abandon the groundwater well to eliminate potential exposures from regional groundwater.
Based on the investigation and preemptive measure taken, no continuing obligations exist unless conditions change in the future.
This scenario shows how additional investigation can shape the scope of continuing obligations. What was a REC in the Phase I was shown not to be a real-world concern.
Again, the facts drive the analysis. A common permutation to this scenario is the migrating groundwater plume. If, after the analysis above is performed, the user receives information that TCE-impacted groundwater plume has migrated to parcel B, the analysis may need to be redone to address possible vapor exposures. Subsequent information could arise when upgradient property owner A's consultant stops by and request access to drill a groundwater well and the results show the presence of TCE in groundwater.
There may or may not be ways to recoup the costs, depending on the CERCLA liability status of property owner A, the availability of state or local claims against property owner A, and the solvency of the RP at property A.
Scenario C: Scenario C is a multi-tenant property that has commercial use on the ground level and residential use on upper levels. The user purchases the property through foreclosure, but was wise enough to get a Phase I performed prior to acquiring ownership. The Phase I identifies groundwater contamination with TCE from an off-site source and that the prior owner had recorded a restrictive covenant on the property that prohibited groundwater use and prohibited residential use on the ground level.
Step 1: By virtue of the RECs, continuing obligations apply.
Step 2: Additional file research is conducted to show that the restrictive covenant was recorded in connection with the ongoing remedial action at the upgradient property D. It was shown in the files that the restrictions are imposed to address possible groundwater and vapor exposures. However, in consulting with the user's lawyer, it is determined that the restrictive covenant has no further legal effect by virtue of the foreclosure action.
Step 3: Since current (and proposed) use of the property do not result in unacceptable exposures, the user records a restrictive covenant on the property to restore its effectiveness. It is determined that compliance with the restrictive covenant is sufficient to satisfy all reasonable steps.
Step 4: The user monitors compliance with the restrictive covenant.
Of course, in addition to the steps above and to the extent the upgradient property owner is required to take response actions at property C, the user will cooperate and allow access to anyone authorized to perform a response action.
NOTE: for those reading the appendix of the Guide closely, you'll see that I tweaked the facts somewhat for simplicity. Again, it is another example of how fact-dependant these analyses are. The facts for Scenario C in the appendix implicate many of the legal issues discussed in the webinar, and I would encourage you all to read the appendix for further information.
Scenario D. A small office building that has existed for years. The user recently purchased the property. The Phase I performed prior to acquisition identifies no RECs, AULs, or data gaps. The user has no additional information of any environmental impacts at the property.
Step 1: No continuing obligations apply.
This scenario demonstrates how sites can be screened out in Step 1. Optional documentation suggestions are provided in the Guide as well.
I'll note that in the real world, the proximity of Property D to an NPL site may require some attention, as it will certainly be noted in the Phase I. It may be necessary to review the agency file or perform investigation to determine whether there are any exposure risks that require reasonable steps.
Scenario E: Parcel E is a former manufacturing facility that is a federally-designated superfund site. The clean up is complete. The site was purchased to be developed into commercial retail, which will include large parking lot space.
Step 1: Presumably, the Phase I for this site is a very thick document, and identifies all the RECs, HRECs, AULs, etc. No way to screen out of this site.
Step 2: The user identifies the restrictions and obligations contained in all AULs, which include: A restrictive covenant prohibiting excavation of an engineered barrier over the source of the groundwater plume, restrictions against residential use, and restrictions against groundwater consumption. Currently, the site is in compliance with all restrictions.
Informed by the proposed use of the property, the user develops a conceptual site model to evaluate potential exposures. No unacceptable exposures currently exist.
Step 3: Though perhaps the most complicated of the examples from an environmental prospective, this is one of the more straight-forward examples in terms of implementing the Guide, because most of the exposure analysis was done in the cleanup action. The user needs to protect the remedy, and opts to do so by using the parking lot as an engineered barrier, and ensuring that no unacceptable exposures result from any planned construction. The user also complies with the institutional controls relied on for the response action.
Step 4: The site will undergo 5 year reviews as part of the CERCLA clean up process. However, for business reasons, the user opts to be more restrictive and investigates and performs necessary maintenance on the parking lot annually.
The user will want to seriously consider documenting its decision making. The Guide provides suggested outlines for Continuing Obligations Plans that may be helpful. In addition, the user may wish to document the inspections that take place. The Guide has sample forms that maybe helpful for this as well.
This example also touches on two important variables: First, the proposed land use is critical to this analysis. If the user had not needed or wanted a parking lot, the project may not have worked at this parcel. Second, Continuing Obligations must be implemented on the ground, and the user is responsible for doing so. Although selecting the continuing obligations in this case is relatively straight-forward, who is going to ensure they are implemented? How often will they be reviewed for compliance? These are important considerations for any user during the continuing obligations selection and implementation process.
Thanks to all for the great questions. I'll check back in periodically and post responses to any others that come up. In the meantime, feel free to email or call (timothy.haley@btlaw.com).
As I mentioned in the webinar, and as is mentioned several times in the Guide itself. Make sure to talk to your environmental attorney about these issues. The law is evolving. While it is my hope that the Guide will stand the test of time, we cannot be sure that it will in every single respect. Therefore, please be sure that your environmental attorney is part of the team when evaluating or implementing continuing obligations.
Comment
Hello everyone,
As promised, this next series of posts will discuss the scenarios in the picture above. These scenarios are included in an appendix to E2790 and are intended to show the Guide "in action." The use of examples in the drafting process was important-- I personally found that when concrete examples were discussed, it was easier to reach agreement on how to perform the analysis. As we go through these, keep in mind that these examples were specifically intended to illustrate certain aspects of the Guide. Also, if the facts change, the underlying analysis may change as well-- and may change significantly. So without further ado....
Scenario A Basic Facts: A user performs a Phase I on parcel A, and discovers a REC. It is believed that TCE is in the soil.
Step 1: Continuing Obligations are likely for those seeking CERCLA protections.
Step 2: An investigation is performed. TCE is delineated in soil. No TCE is found in groundwater.
Step 3: After considering options including excavation, installation of vapor barriers, and restrictive covenants, the user opts to enter the state Voluntary Cleanup Program (VCP) and perform some remediation. The user performs limited excavation, and installs a vapor mitigation system. The user records a restrictive covenant on the property restricting against residential use and restricting excavation activities. The user obtains administrative closure from the state.
Step 4: The user inspects the vapor barrier every year, per manufacturing recommendations. The user also inspects property to confirm compliance with the restrictive covenant.
As an aside, if there were any legally-required notification requirements, the user would have to comply to maintain it protections.
Note that this is a fact-driven exercise. If TCE was present in groundwater, for example, there may have been other steps needed (adding groundwater restriction in the covenant, for example). If the investigation had already been completed when the user purchased the property, they may not have needed to undertake additional investigation. Certainly, the person who later purchases parcel A from the user will have a completely different analysis as well (See Scenario C).
As a final note on this scenario: compliance with a VCP may or may not satisfy continuing obligations, and should be evaluated closely. If it is determined that the actions undertaken in the VCP also satisfy continuing obligations, the regulatory documents produced may eliminate the need or desire for any other documentation.
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Scenario B Basic Facts: Parcel B had formerly been used as a machine shop. The user performs a phase I and a REC for the "likely presence" of groundwater contamination. There are no institutional controls. There is a groundwater well on site, but it has not been used in several years. The user wishes to transform the property into a multifamily apartment complex.
Step 1: Continuing Obligations may be necessary to address possible regional groundwater contamination.
Step 2: Additional investigation is performed and confirms that groundwater is not impacted. Further, no vapor concerns exist. The user chooses to properly abandon the groundwater well to eliminate potential exposures from regional groundwater.
Based on the investigation and preemptive measure taken, no continuing obligations exist unless conditions change in the future.
This scenario shows how additional investigation can shape the scope of continuing obligations. What was a REC in the Phase I was shown not to be a real-world concern.
Again, the facts drive the analysis. A common permutation to this scenario is the migrating groundwater plume. If, after the analysis above is performed, the user receives information that TCE-impacted groundwater plume has migrated to parcel B, the analysis may need to be redone to address possible vapor exposures. Subsequent information could arise when upgradient property owner A's consultant stops by and request access to drill a groundwater well and the results show the presence of TCE in groundwater.
There may or may not be ways to recoup the costs, depending on the CERCLA liability status of property owner A, the availability of state or local claims against property owner A, and the solvency of the RP at property A.
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Scenario C: Scenario C is a multi-tenant property that has commercial use on the ground level and residential use on upper levels. The user purchases the property through foreclosure, but was wise enough to get a Phase I performed prior to acquiring ownership. The Phase I identifies groundwater contamination with TCE from an off-site source and that the prior owner had recorded a restrictive covenant on the property that prohibited groundwater use and prohibited residential use on the ground level.
Step 1: By virtue of the RECs, continuing obligations apply.
Step 2: Additional file research is conducted to show that the restrictive covenant was recorded in connection with the ongoing remedial action at the upgradient property D. It was shown in the files that the restrictions are imposed to address possible groundwater and vapor exposures. However, in consulting with the user's lawyer, it is determined that the restrictive covenant has no further legal effect by virtue of the foreclosure action.
Step 3: Since current (and proposed) use of the property do not result in unacceptable exposures, the user records a restrictive covenant on the property to restore its effectiveness. It is determined that compliance with the restrictive covenant is sufficient to satisfy all reasonable steps.
Step 4: The user monitors compliance with the restrictive covenant.
Of course, in addition to the steps above and to the extent the upgradient property owner is required to take response actions at property C, the user will cooperate and allow access to anyone authorized to perform a response action.
NOTE: for those reading the appendix of the Guide closely, you'll see that I tweaked the facts somewhat for simplicity. Again, it is another example of how fact-dependant these analyses are. The facts for Scenario C in the appendix implicate many of the legal issues discussed in the webinar, and I would encourage you all to read the appendix for further information.
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Scenario D. A small office building that has existed for years. The user recently purchased the property. The Phase I performed prior to acquisition identifies no RECs, AULs, or data gaps. The user has no additional information of any environmental impacts at the property.
Step 1: No continuing obligations apply.
This scenario demonstrates how sites can be screened out in Step 1. Optional documentation suggestions are provided in the Guide as well.
I'll note that in the real world, the proximity of Property D to an NPL site may require some attention, as it will certainly be noted in the Phase I. It may be necessary to review the agency file or perform investigation to determine whether there are any exposure risks that require reasonable steps.
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Scenario E: Parcel E is a former manufacturing facility that is a federally-designated superfund site. The clean up is complete. The site was purchased to be developed into commercial retail, which will include large parking lot space.
Step 1: Presumably, the Phase I for this site is a very thick document, and identifies all the RECs, HRECs, AULs, etc. No way to screen out of this site.
Step 2: The user identifies the restrictions and obligations contained in all AULs, which include: A restrictive covenant prohibiting excavation of an engineered barrier over the source of the groundwater plume, restrictions against residential use, and restrictions against groundwater consumption. Currently, the site is in compliance with all restrictions.
Informed by the proposed use of the property, the user develops a conceptual site model to evaluate potential exposures. No unacceptable exposures currently exist.
Step 3: Though perhaps the most complicated of the examples from an environmental prospective, this is one of the more straight-forward examples in terms of implementing the Guide, because most of the exposure analysis was done in the cleanup action. The user needs to protect the remedy, and opts to do so by using the parking lot as an engineered barrier, and ensuring that no unacceptable exposures result from any planned construction. The user also complies with the institutional controls relied on for the response action.
Step 4: The site will undergo 5 year reviews as part of the CERCLA clean up process. However, for business reasons, the user opts to be more restrictive and investigates and performs necessary maintenance on the parking lot annually.
The user will want to seriously consider documenting its decision making. The Guide provides suggested outlines for Continuing Obligations Plans that may be helpful. In addition, the user may wish to document the inspections that take place. The Guide has sample forms that maybe helpful for this as well.
This example also touches on two important variables: First, the proposed land use is critical to this analysis. If the user had not needed or wanted a parking lot, the project may not have worked at this parcel. Second, Continuing Obligations must be implemented on the ground, and the user is responsible for doing so. Although selecting the continuing obligations in this case is relatively straight-forward, who is going to ensure they are implemented? How often will they be reviewed for compliance? These are important considerations for any user during the continuing obligations selection and implementation process.
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Thanks to all for the great questions. I'll check back in periodically and post responses to any others that come up. In the meantime, feel free to email or call (timothy.haley@btlaw.com).
As I mentioned in the webinar, and as is mentioned several times in the Guide itself. Make sure to talk to your environmental attorney about these issues. The law is evolving. While it is my hope that the Guide will stand the test of time, we cannot be sure that it will in every single respect. Therefore, please be sure that your environmental attorney is part of the team when evaluating or implementing continuing obligations.
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