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Ed Greene Ed is an environmental lawyer and former owner of an environmental insurance firm - specializing in environmental risk management for lenders and their borrowers nationwide. Ed has a LL.M. in Banking & Financial law with expertise in the securitization process and has participated as a panelist at national conventions and published numerous articles on the topic of environmental best practices for lenders. A lesser known fact - Ed gave up his modeling career to review Phase I reports for the last 15 years.
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Recent Blog Entries
$2.5MM jury award against the supplier, Banner Supply, of Chinese drywall (contrast that to the manufacturer).
Jury award includes: $100,000 a month from the time the plaintiffs moved into the house unitl the time they can move back after repairs (nearly 3 yrs); $200,000 for loss in value to home because of stimga; and $705,000 in expenses repaid for repairs, renting another home, maintaining the homes.
Largest single award to a single plaintiff (husband & wife) to date. $2.6MM was awarded to 7 families and liability was found against the manufacturer - as opposed to the supplier.
"Polluted brownfields offer an attractive option for renewable-energy projects in need of inexpensive property."
The article states that the EPA has stated of 15 million acres of polluted land - 11,000 sites are good for renewable projects like solar, wind farms, biomass, geothermal, and landfill-producing methane. Gov't officials are working with developers and utilities to promote the use of such properties.
EVP of Apex Wind Energy said they secured permits in 2 months for a wind-farm at a brownfield site in NY that would normally take 2 years.
And with polluted sites and hypocritical NEWBYS, it's hard to argue against such a use for these properties.
The causes of action in the 33-page complaint: negligence, strict liability for an abnormally dangerous product, private and public nuisance, and trespass to land. The Plaintiffs are each seeking $50 million in compensatory damages alleging fuel leaks contaminated the groundwater at their residences.
Complaint also seeks punitive damages and $300 million on each cause of action for restoration of the water supply. The complaint also alleges bodily injury.
I have not seen/read the complaint - but all causes of action are common law and not CERCLA. No innocent landowner defense here!
A federal district judge in New Orleans awarded $2.6 million in damages yesterday to 7 Virigina families who sued Chinese drywall manufacturer Taishan Gypsum Company, Ltd. (Chineses state owned drywall manufacturer).
The judge order the manufacturer (who did not answer the complaint or appear in court ...) to remove and replace all the drywall, copper plumbing, air conditioning and ventilation units, insulation and electrical wiring as well as flooring in affected homes.
Judge also awarded relocation costs for 4-6 months while homes are being repaired.
Another ruling in Hernadez v Knauf is expected soon.
This case could have huge implications on drywall makers, importers, distributors, builders, installers and .... you guessed it - Insurance Companies!
Allen v. Dackman, No. 46 March 22, 2010. Lawyers USA No. 933-1722. Maryland Court of Appeals holds a member of a limited liability corporation which owned a property - personally liable for lead paint poisoning.
The defendant stated he never visited the property nor knew the plaintiff's lived there - he simply was a member of a LLC of the property in which the plaintiffs lived and allegedly suffered lead paint poisoning. The sole purpose of a LLC - is to specifically limit the liability of such a person = passive investor/real estate owner.
The Court disagreed with defendant's argument and found that Maryland's Housing Code imposes liability on an individual who "owns, holds, or controls" the title to a dwelling.
There also was a question of law concerning whether the plaintiff/tenant's were legal tenants. The Court found liability regardless of whether the tenants were there legally or not.
In MA - the 'Lead Law' imposes strict liability on landlords (and lenders) for lead poisoning. It appears from the initial reading of this case - that the Court took 'liberty' with their reading of the Housing Code and basically found a member of a LLC strictly liable for bodily injuries stemming from lead for simply being a passive owner of a real estate property.
How many of your clients own properties with lead paint that think they are protected for various reasons - e.g. because they are a LLC or because they have not knowledge of the lead or because the tenants were illegal tenants?
John McGrail, owner of JM Realty and Mayo Group properties, Boston real estate developer and management companies, instructed employees to perform demolotion and renovation services at three properties in Lynn, Boston and Worcester, MA.
The asbestos was transferred to a warehouse and thereafter placed in various dumpsters to be picked up with the regular trash. Asbestos was also placed in a vacant lot.
McGrail faces three counts of violating the Clean Air Act for failure to file notice of the removal and 3 counts for failure to comply with the regulations for removal.
But what about the owner of the vacant lot and landfill where the asbestos may or may not be? They can find themselves liable as well (if this guy is in jail - it would be tough to go after him).
Environmental risk from "midnight (illegal) dumpers" is very much a real risk to landowners.
Can't imagine the bodily injury claims from the employees against JM Realty and the co-owners of the Mayo Group. Tough insurance case given this would likely be excluded for at least 2 major reasons: (1) Wrongful Acts, (2) Pollution Exclusion - unless there is a separate pollution policy. If so - you would need to "buy back" the asbestos exclusion. The landfill and vacant lot might be covered if they had a policy.
And how would you like this group managing your property? Risk management needs to extend to the third parties you hire!
Finger vs. Audubon Insurance Co., Docket No. 09-8071 (March 22, 2010) - Appears to be one of the first court cases holding in favor of insurance coverage for damage caused by Chinese drywall.
The homeowners, Mr. and Mrs. Finger claimed that their 'all risk' homeowners insurance policy provided by Audubon Insurance Company covered them for the loss they suffered due to the off-gassing from Chinese drywall. In insurance terms, an "all-risks" policy is to cover you for all risks of direct physical loss or damage to your house, contents and other permanent structures - unless an exclusion applies. Under insurance law as a principle - such exclusions under an all risk policy are strictly construed (and narrowly construed) and any ambiguity is read in favor of the insured. It is the insurance company's burden to prove that a loss comes within the a policy exclusion. The insured has a "very light" burden and must show that damage to the insured's property occurred (general insurance law 101). The loss in question was rust of metals within the Finger's home.
Audubon denied coverage based on three exclusions in the policy: (1) Pollution Exclusion, (2) Gradual and Sudden Loss, and (3) Faulty, Inadequate or Defective Planning. The Court denied each assertion holding in favor of the homeowners for coverage.
Court's Reasoning:
(1) Pollution Exclusion (Audubon's policy language): "We do no cover any loss, directly or indirectly, regardless of any cause or event contributing concurrently or in any sequence to the loss, caused by the discharge, dispersal, seepage, migration or release or escape of pollutants. Nor do we cover the cost to extract pollutants from land or water, or the cost to remove, restore, or replace polluted or contaminated land or water. A "pollutant" is any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals, and "waste." A "contaminant" is an impurity resulting from the mixture of or contact with a foreign substance. "Waste" includes materials to be disposed of, recycled, reconditioned or reclaimed."
The Court found that Chinese drywall release of various gases into the home is not sufficient to qualify as a "pollutant" under the pollution exclusion. Further - the court as a standard rule of law stated that, "the Pollution Exclusion does not, and was never intended, to apply to residential homeowners claims for damages caused by substandard building materials."
(2) Gradual or Sudden Loss (policy language): "We do not cover any loss caused by gradual deterioration, wet or dry rot, warping, smog, rust or other corrosion. In addition, we do not cover any loss caused by inherent vice, wear and tear, mechanical breakdown or latent defect. However, we do insure ensuing covered loss unless another exclusion applies."
The Court found that this exclusion applies to expected losses - not unexpected losses. Additionally,
"the Finger's losses relate to the drywall off-gassing, not by wear, tear and/or gradual deterioration."Audubon then suggested no coverage due to the language "any loss caused by ... rust or other corrosion." The Court found, "the exclusion is intended to apply where corrosion, rust or the like is the cause of the property damage; it is not designed to preclude coverage when the rust or corrosion is the damage itself." "Here the corrosion caused to the metals in the Finger's home by the sulphurous gases released by the Chinese drywall is the loss, not the cause of the loss ...".
Audubon then argued the "latent defect" language precludes coverage due to the latent defect of the Chinese drywall. The Court held the exclusions applies to a "loss due to any quality in the property that causes property to damage or destroy itself that results from something within the property itself as opposed to some outside force." "Here there is no evidence that the Chinese drywall is damaging or destroying itself, indicating the "inherent vice" or "latent defect" language in the exclusion.
(3) Faulty, Inadequate or Defective Planning (policy language): "We do not cover any loss by faulty, inadequate or defective: a. Planning, zoning, development, surveying, siting; b. Design, specifications, workmanship, repair, construction, renovation, remodeling, grading, compaction c. Materails used in repair, construction, renovation or remodeling, grading or compaction; or d. Maintenance; of part or all of any property whether on or off the residence. However, we do insure ensuing covered loss unless another exclusion applies."
Court held that this exclusion does not apply as Chinese drywall is not defective within the meaning of this exclusion. In interpreting the language of the exclusion the Chinese drywall '"defect" is not one that renders the drywall unable to perform the purpose of drywall."
If you have clients with Chinese drywall damage - an experienced coverage review of their policy is probably in order.
For a complete history of the pollution exclusion click here.
AVX Corp. vs. Horry Land Company, Docket No. 4:07-cv-03299-TLW (2007) is environmental litigation alleging $5 million in damages to undeveloped land and will come down to the battle of the consultants to acertain where the contamination has come from - with 2 entirely different stories and legal theories.
AVX Corp. operates a manufacturing facility of electronic components (which used VOC compounds including TCE in its operations) and is adjacent to a 27 acre wooded and unpaved parking lot parcel owned by Horry Land (vacant, undeveloped land). In 1979 Horry leased a portion of their property to AVX for use as a parking lot. AVX acknolwedges a release of contamination on said property in 1995 and began monitoring it with state DEP oversight. Horry was not notified of this and in 2005 conducted a Phase I to explore alternative uses for the property and to identify possible RECs. Horry's consultant recommended a Phase II which was conducted near the AVX property inlcuding water samples and five geoprobe borings. The borings found TCE contamiation according to Horry's consultant which greatly exceeding state standards.
Horry hired an appraiser in 2007 that valued the land at $5,375,000 without contamination and 0 with the existing contamination. At this point Horry sent demand letters to AVX Corp for costs and indemnification for remediation.
AVX Corp denies any liability and denies that it caused the contamination citing the defendant's own environmental reports conducted in 2007 which allegedly identified contamination never used by AVX and in remote areas not near the AVX property. AVX conducted its own testing under a work plan approved by the state DEP.
AVX Corp then filed suit under CERCLA against Horry Land in October of 2007 for contribution costs, and declaratory judgment - seeking to find the defendant as the responsible party. The defendant counterclaimed under a series of common law claims (not CERCLA) including: Negligence, Negligence Per Se, Strict Liability for Hazardous Waste, Nuisance and Trespass.
Both parties are seeking attorney's fees and costs involved with risk assessment to date. Each is also seeking to hold the other liable for the actual contamination.
Battle of the consultants - to determine where the contamination came from and the best evidence will probably carry the day.
Interesting one site - 2 completely different theories of who is responsible, where the contamination came from and the theories of law for recovery.
February 13, 2010 - Vermont's Yankee Nuclear Power Plant in Vernon, VT is leaking tritium into the groundwater including the Connecticut River. This obvious health and safety concern to humans and the environment is serious. However, this is not in any way a condemnation of nuclear facilities. On the contrary, nuclear facilities provide some of the cleanest, non-fossil fuel, clean energy available today. Since its conception to the present the US provides 15% of the world's nuclear electricity. France produces 77% of their electricity from nuclear plants. The Huffington Post reports that "Obama Nuclear Plant: President to Announce Loan Guarantee for More than $8 Billion.
More importantly; how are those harmed going to be made whole? How can a nuclear power plant, probably the most environmentally toxic and potentially catastrophic facility, possibly be insured if a regular real estate transaction with a REC cannot be insured?
President Dwight Eisenhower (D) signed into legislation the Price-Anderson Act providing "governmental insurance" above private commercial insurance after the first $10 billion from a collective pool of insurers.
The first layer of insurance for nukes comes from the private sector commercial insurance companies. Liability insurance is available up to $375 million from the American Nuclear Insurers.
Insurance covers a variety of environmental risk - from the most potentially catastrophic risk - nuclear - to the most mundane.
Everyone on commonground uses insurance in their personal lives and in business. However, no-one expects to have a fire or die tomorrow. Why then do you have fire and life insurance insurance? Either because it’s required – or because it provides a benefit! Every environmental consultant has (or should) have environmental insurance in the form of professional liability insurance.
Accordingly we can start with the 1 of the 3 major forms of environmental insurance – (1) Environmental Professional Liability Insurance for contractors/consultants (including remediation, lead & asbestos abatement). Why do you individually; or does your firm have environmental insurance? Because it’s both required by your clients and the government (see SBA requirements) and it protects you from unwanted liability. Do you expect to make a mistake, error or omission? No. But you still carry the insurance.
Environmental insurance is not a panacea; but rather it a tool to be implemented in various situations – most of which include a use in conjunction with environmental due diligence.
So where does the “transactional environmental insurance” fit in to the environmental due diligence industry? Namely, where does (2) Pollution Legal Liability (“PLL”) and (3) Environmental Lender Insurance fit in? Also who are the players and what are the limitations to environmental insurance? [Sidebar: environmental insurance is an approximately $2-3 billion premium industry with presently 30 insurance companies and has been around for over 30 years. Policy exclusions typically include mold, naturally occurring radon, lead, radioactive material – and existing environmental conditions above reportable levels. However, that being said – coverage can be procured for each of these named risks on a case by case basis].
Applications & Benefits (Mitigant to Risk); and Who Accepts It
We all know that each and every transaction is unique and there are numerous stakeholders involved and therefore this list, while factual and accurate to this day, does not proclaim that in every situation environmental insurance can be implemented. It is simply a list of its current uses and applications:
· Replace Phase I (mostly confined the environmental lender insurance policies for low risk properties), replace Phase II, in lieu of indemnification (borrower’s or in a purchase & sale agreement), in lieu of an escrow, provide protection for “reopeners” (see Vapor Intrusion), change in regulations, coverage for ongoing operational activities (USTs, ASTs, drycleaners, bulk fuel facilities, manufacturers, indoor air pollution), and in some cases - for existing contamination (i.e. just above reportable conditions in a risk-based state where monitoring only is required);
· Time element: if a portfolio of properties is being sold or refinanced and there is no time to update and/or order new Phase Is on all the properties – environmental insurance can be procured;
· EPA (see attached spreadsheet – provided by the EPA - which specifically acknolwedges enivronmental insurance: they do not endorse it), SBA, state Brownfield (the state of Massachusetts will subsidize the premiums of environmental insurance in conjunction with a Brownfield redevelopment), rating agencies; financial institutions, property owners, manufacturers, facilities - all recognize the application of environmental insurance. [Sidebar: numerous federal laws require Financial Assurance - and commercial insurance can be one acceptable form - they include: OPA, CERCLA, RCRA, OCSLA, FLPMA, AEA, TSCA, SDWA, SMCRA. Financial Assurance is required for vessels carrying oil or hazardous substances, USTs (some states ASTs), solid & haz. waste landfills, industrial oil and gas wells, offshore oil-drilling facilities and pipelines, nuclear power plants and coal/mining operations].
Insurance Brokers. Insurance brokers are regulated by their state of domicile, are required to have a license (several in some cases) and are under a duty to represent the Insured’s interest. See Johnson & Higgins v. Bloomfield, 907 P.2d 1371 (1995) – where an insurance broker was held liable for negligently performing his services to the tune of $600,000 for failure to procure environmental insurance for a client that owned a building that had “sick building syndrome.” Environmental insurance is a specialty insurance not unlike Directors & Officers, Fiduciary, and other insurance where the underlying risk needs to be known by the broker that owes you – the Insured (property owner, bank) a duty to procure the correct coverage. Would you ask your life insurance agent to procure an environmental insurance policy for your most trusted client? [Sidebar: insurance broker v. agent. Insurance broker works for the Insured; an insurance agent works for the insurance company]. Consequently, like Environmental Professionals and any other service provider – there are more qualified insurance brokers than others.
Insurance Underwriters. The vast majority of environmental insurance underwriters started their career in the environmental due diligence industry and typically have a technical background (geology, engineer, chemistry). Again, like every industry – there are better more experienced underwriters than others.
Insurance Carriers. The insurance industry is a highly regulated industry (regulated by the each individual state and not the federal government; although there is federal legislation as well). A failure of an insurance company to pay a valid claim can result in numerous penalties, punitive damages, cease & desist orders and – if bad enough – jail time! During the “Elliot Spitzer” crackdown – more than a few insurance people (brokers and insurance company employees) when to jail!
As stated earlier – environmental insurance is not the panacea of environmental risk and requires expertise to procure the appropriate coverage. Common complaints that insurance carriers deny claims and exclude risk (even go insolvent) – have validity (however, please remember that you would look a little silly asking for fire insurance when your house is already on fire!). But is this valid criticism unique to environmental insurance - or does it apply to the insurance industry in general? I believe it's the latter and that is the 'nature of the beast.' Insurance companies are no doubt in the business of making money and paying claims puts a dent in profits. And there is just criticism of a broker who is trying to get his/her commission - rather than providing a value-added service. Again, I believe that can be said about any service industry.
Regardless of whether one accepts the use of environmental insurance or not - the trend in environmental risk is increasing in most states which presents challenges to the best of the environmental service providers (EPs, attorneys, insurance brokers). Risk-based states like Massachusetts are 'reigning in' the acceptable levels of contamination (VOCs) and enforcement is still a big priority. A recommendation that a site is 'closed' with a state (especially in a risk-based state) with a 'sign-off' or a no further action letter is by no means a guarantee that environmental risk won't rear its ugly head in the future. In the courtrooms, plaintiffs are winning more environmental liability cases under the common law theories of nuisance and trespass. This presents another challenge to environmental professionals in providing expert advice on how to manage a client's environmental risk.
Perhaps environmental insurance is a tool to be considered, perhaps it is not .... Whether it is or not, hopefully it comes from a vantage point of understanding what environmental insurance is - and just as importantly - what it is not.
I hope this helps a bit and welcome all questions and constructive criticism. Thank you for reading.
Ed Greene
Consultants that have municipalities as clients - tell them they are strictly liable under CERCLA and more importantly - state and local laws for environmental contamination.
Adobe Lumber Inc.vs. Hellman et al. (2009) a property owner purchased a shopping center in CA only to find that the "Suite K" which contained a dry cleaner dumped its contamination down a drain connected to the city's sewer pipes (system). The sewer pipes leaked causing further contamination. CT: Held City strictly liable.
The city proclaimed it was an innocent landowner (the so-called panacea of Phase I ASTM AAI). In denying their status as an innocent landowner, the U.S. Federal District Court (E.District CA) cited intera alia Carson Harbor Village v. Unocal Corp., 270 F.3d 863 (2001) stating, "Commentators have written the obituary for the innocent landowner defense many times since it was created in 1986 - further citing Rosemary J. Beless, "Superfund's Innocent Landowner Defense: Guilty Until Proven Innocent", 17 J, Land Resources & Envtl. 247 (1997); Shane Claonton, Passive Disposal of the Innocent Landowner Defense, 9 J. Nat. Resources Envt. L. 255 (1993-1994); L. Jager Smith, Jr., Note, CERCLA's Innocent Landowner Defense: Oasis or Mirage?", 18 Colum. J. Envtl. L. 155 (1993).
See also case law U.S. vs. 150 Acres of Land, 240 F.3d 704 (6th Cir.2000).
Phase Is and CERCAL AAI are not relevant in reality.
Lowell, MA. The Grand Manor Condominium complex was built over a city dump around 1983 and now considered an "imminent hazard" by the DEP. However, the fact that the site was built over a city dump was not discovered until November 2008 when the condo association hired a contractor to install a new drainage system. Testing of the excavated dirt from the project revealed elevated levels of ***, cadmium, lead and tetrachloroethene.
Liable parties: The DEP says: The Condo owners and the City of Lowell. The developer has passed and it is unknown whether he knew it was a dump at the time (does it matter?). The City is denying liability at the present. So who pays for the cleanup? Each individual condo owner right now. I live in a condo - and I looked at one down the road and quickly found out it had an assessment due to petroleum contamination leaking into the harbor. I passed on that condo.
Condo owners - state they cannot sell their condos and renters have left breaking their leases. One condo onwer stated: "No bank would give anyone who wanted to buy one a mortgage." He is right.
Property valuation in 2009 = $5,891,300. Today = $3,123,600.
Condo president quickly found numerous newspaper articles on the city dating back to the 1950s stating the site was a city dump. How could this happen? How was the due diligence on this site missed?
And yes - environmental insurance could have been purchased and would be covering the Condo Association - so each individual (like you and me) would not be out-of-pocket on the cleanup. I can assure you their current policy excludes pollution.
However, this is not about insurance - it's about the fact that at any time, any place - this could happen to you or me! Pollution knows no boundaries.
TRC appears to be handling the cleanup. How do you consult an individual when you are at the site and they ask - how could this happen? Who is going to pay for this?
Highlights from the Conference: Keynote Speaker - Curt Spalding, EPA Region 1 Administrator: National and regional focuses of the EPA.
EPA Nationally: (1) Enforcement and Compliance, (2) Clear Air Act (Climate Change), (3) Clean Water Act - stormwater!, (4) CERCLA, (5) Environmental Justice and (5) Smart Growth.
EPA Region 1 (New England): much broader 'agenda' including: Wet Weather Pollution, Green Jobs, Lead Poisoning, Enforcement.
MA DEP indicated their Priorities are: (1) Compliance Assessment (i.e. UST compliance), (2) Verification of Compliance (i.e. audits of 'closed sites'), (3) Maintaining Healthy Environment (i.e. diesel emission from idling buses), (4) "Blitz" - High Intensive Inspection/Enforcement: Chapter 91 Enforcement - with the reduction in staff either you work with the DEP or they leverage outside sources - e.g. the Attorney General's office for enforce regulations, (5) Leveraging Outside Agencies for assistance with Enforcement.
- MA DEP about inspections (7,400 in 2009) and enforcements (3,500 in 2009). Total penalties in MA = $6.9M vs $5.4M in 2008. Focus on really cracking down on asbestos abatement contractors! Criminal violators were prosecuted and likely to see jail time;
- DEP referenced M.G.L. c 148 section 38J - residential ASTs and encouragement of insurance coverage;
- Some interesting case law referenced about arranger liability under CERCLA and other case law like Commonwealth v. Pan Am Railways - minor spill ($100,000 cleanup) of oil but a failure to report it lead to the highest fines possible under the law ($500,000 total fines $125,000 per violation);
- Case law on environmental contractors (LSP case) - to follow.
For those in the greater 'southern New England/NYC' area - Foxwoods (Ledger, CT) is hosting a day long Mortgage Expo: "Expo in the Sun."
Among the noteworthy Agenda meetings:
9-10:45am: "504 Basics: Getting the CRE Loan Made"
1:15-2:00: "Finding the Money: CRE Financing"
Some noteworthy speakers: Presidents of Salem Five Bank, Liberty Bank; SVP of Charter Oak Federal Credit Union and more cre (and residential) mortgage leaders and other providers.
As reported in Commercial Mortgage Alert (CMA, 12/18/09) - Envirofinance Group of Sacramento has raised $50 million of private equity to do just that - purchase distressed loans with brownfield issues. Envirofinance is the "outgrowth" of CERF; a company originally founded by the director of the Massachusetts Brownfield Redevelopment to Capital. Environfinance is backed by a big equity player - Snow Phipps of NYC.
Valuations of such loans/land is challenging for numerous reasons; one of the biggest is the fact that the secondary market is in a log jam. However, another is: what is the value of a distressed loan that also happens to be a brownfield?
Several investors suggest such loans/properties are only worth 5-15 cents on the dollar. CMA reports that Envirofinance is looking for a 25-30% return targeting loans between $5MM and $25MM. That is an unheard of return in any market, let alone a in recession (sign me up)!
Benjamin Leslie-Bole of ERM summer 2009 newsletter, "How I See it: The State of the Brownfield Industry", inter alia, subscribes to a common theme from me involving environmental risk. Namely, "creative solutions" and a "totality of the circumstances" approach to such transactions are essential. Stakeholder involvement is critical and one cannot look with tunnel vision at a particular environmental issue to be a successful seller/buyer, lender or equity stakeholder of a loan/property with environmental challenges. You have to look at the big picture. See OWS discussion! In fact, such an approach by a consultant should make you stand out in a competitive marketplace.
Given the disastrous outcome of property values plummeting - wouldn't a specialty appraisal group for such loans/properties (brownfieldS) be invaluable to the FDIC and equity players like Envirofinance?
In other words - wouldn't this be a great source of NEW BUSINESS for consultants?
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