On April 4, 2013 the Court of Appeals issued its opinion upholding the trial’s ruling that the BFPP defense did not apply to Ashley. Although the district court’s decision was based on several facts, the Court focused on only one of them: Ashley’s failure to exercise appropriate care by: (i) stopping continuing releases; (ii) preventing future releases; and (iii) limiting human or environmental exposures. On appeal, Ashley argued that the “appropriate care” required under CERCLA should be a lower threshold for developers given Congress’ intent to promote brownfield redevelopment. The 4th Circuit rejected this. In doing so it examined what steps must be taken to satisfy the “appropriate care” requirement. The Court concluded that the Second Circuit’s due care inquiry was the appropriate assessment. That inquiry looks at whether the party “took all precautions with respect to the particular waste that a similarly situated reasonable and prudent person would have taken in light of the circumstances.” [Citing, New York v. Lashins Arcade Co., 91 F3d 353, 361 (2d Cir. 1996)] In Ashley’s situation, the Court noted that Ashley’s failure to fill certain sumps demonstrated it did not take reasonable steps that a similarly situated person would have taken.

The 4th Circuit’s decision should be a warning to all developers; do not presume that BFPP or innocent purchaser status shields you from properly handling contaminants when the site is redeveloped. Developers should establish, and follow, a clear due care plan that describes: how continuing and future releases are to be handled and how human and environmental exposures are to be controlled. Failure to do so could result in liability for response costs beyond what was originally contemplated.

The post Redevelopments Gone Bad: An Update on Ashley II of Charleston LLC V. PCS Nitrogen INC. appeared first on Dawda PLC.

reinvent government
create more and better jobs
restore our cities
enhance our national and international image
protect our environment
solve problems through relentless, positive action
In support of the Governor’s goals, the MDEQ has partnered with stakeholders to formulate a plan for improvements in Michigan’s environmental programs. This effort is referred to as the Collaborative Stakeholders Initiative (“CSI”). CSI grows out of a series of recommendations prepared by the Office of Regulatory Reinvention and that was submitted to the Governor’s office.

Participants in CSI are taking a closer look at seven key issues facing Michigan’s cleanup and redevelopment programs. They include:

(1) Groundwater and Surfacewater Interface (GSI) pathway;

(2) Cleanup criteria;

(3) Vapor intrusion;

(4) Free product, source removal and Csat;

(5) Brownfield redevelopment;

(6) Part 201 Rules/Operational Memorandum Guidance; and

(7) Due care obligations.

As a backdrop to reviewing these issues and developing recommendations, participants also hope to derive the benefits of an opportunity for exchange and cooperation between the MDEQ, the regulated community and other public stakeholders. Each issue subgroup is in the process of refining their recommendations and developing action plans after having completed several intensive sessions both in Lansing and during a three-day working program at the Kellogg Biological Station on Gull Lake. There will be a public session to present these recommendations on March 15, 2012.

The action plans will include recommendations with respect to Part 201 and Part 213, Part 201 Rules, applicable Operational Memorandums, Guidance Documents, and other policies affecting the implementation of these programs. There will be an opportunity learn more about these recommendations and action plans during a webcast scheduled for March 15, 2012. More details on connecting to the webcast to follow.

As someone involved in the CSI process, it is my belief that the process and this initiative has the potential for being extremely beneficial, and may lead to many changes within Michigan’s cleanup and redevelopment program that will facilitate expedited cleanups and redevelopment while protecting the environment.

The post Reinventing Michigan’s Cleanup and Redevelopment Programs appeared first on Dawda PLC.

If you are interested in the presentation, you can do the following:

• ATTEND IN PERSON. To attend the event at the Kellogg Center in East Lansing, Michigan, you must fill out the online registration form here.

• LISTEN REMOTELY VIA THE LIVE WEBINAR. You must register for the GotoMeeting webinar by completing the registration here. Upon registration, you will be provided a confirmation email and the link to join the webinar.

• LISTEN TO A RECORDED WEBINAR AFTER THE EVENT. The MDEQ plans on posting the webinar by March 23, 2012. We will update this information when it becomes available and you also can check the Remediation Division’s website and the CSI page.

I will be participating in the event and will provide an update shortly thereafter.

The post Reinventing Michigan’s Cleanup and Redevelopment Programs – Update appeared first on Dawda PLC.