Transcript Environmental Law Shaping our Communities

SESSION: Land Use & Environmental Law – Shaping Our Communities
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Our Panelists:
Michele Heffes, Deputy Port Attorney
Port of Oakland
Christine Noma, Attorney
Wendel, Rosen, Black and Dean LLP
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Typical Scenario
• Property owned by Agency:
Former Industrial Property
• Current/Underutilized Use:
Warehouse and vacant
• Proposed Use:
Development of Commercial
Retail Complex
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Role of Public Agency Environmental
Attorney
Overall Team Leader Coordinating In-House
Environmental Staff, Risk Manager, Consultant
and Outside Counsel
• Regulatory/Remediation Issues
– Investigation and Remediation
– Regulatory Notices and negotiations with
agencies over requirements and clean-up levels
– Negotiate Deed Restrictions
• Cost Recovery
– Insurance (historical CGL, PLL and CPL)
– Responsible Parties – former owners, tenants, or
operators
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Role of Public Agency Environmental
Attorney (cont.)
• Key Development Issues
– Negotiate environmental provisions in
agreement with developer/tenant
– Coordinate with in-house and outside
real estate attorneys who are working
on non-environmental aspects of deal
– Allocation of liability, especially for
pre-existing contamination
– Indemnity provisions
– Possible new PLL
– Possible new CPL
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Phase 1 Investigation
Standard Practice for Environmental Site Assessments
Phase I Environmental Site Assessment Process
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Retain and coordinate with Environmental Consultant to review
Port files and interview Port staff.
New ASTM requirements under ASTM E1527-13 issued by the USEPA
in 12/2013. (REC, HREC and new Controlled Recognized
Environmental Concern – CREC)
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Interview occupants
Review of Sanborn and Aerial Maps
Public databases review - Envirostor and Geotracker
Actual review of regulatory agency records required
Vapor migration evaluation required
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Phase 2 Investigation
• Provide direction to consultant
• Test areas with Recognized Environmental Concerns,
Areas of Concern, random sampling, and possible
targeted sampling to match development footprint
• Involves soil, groundwater and sometimes air/vapor
investigation
• Typical contaminants found: Lead, petroleum (motor
oil and diesel), PCBs, arsenic, solvents
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Role of Outside Counsel
• Advice
• Litigation
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Regulatory Notice
• In development project, the source of pollution is
typically a non-emergency historical release
• Determine whether notice is required
• Notify regulators
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EPA
DTSC
RWQCB
Local Agency ACEH
Fire Department
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Federal Court Litigation
• Comprehensive Environmental Response,
Compensation and Liability Act (CERCLA)
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Potentially Responsible Parties
Release or Threatened Release
Strict Liability
NCP Compliance
Statute of Limitations (3 year/6 year)
Petroleum Excluded
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Citizen Enforcement
Imminent and Substantial Endangerment
Petroleum Included
Injunctive Relief
• Resource Conservation and Recovery Act (RCRA)
• State Causes of Action
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State Court Action
• Health & Safety Code violation - Hazardous
Substance Account Act or HSAA
• Contribution and Equitable Indemnity
• Breach of Contract – Lease
• Negligence – Damage to real property
• Nuisance and Trespass
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Insurance
• Identify and Notify Insurers
– Conduct a search for older policies – in-house risk
manager, staff, outside counsel
– Consider retaining a company which specializes in
insurance archeology
• Commercial General Liability Policies
– Older policies - may cover claims (suit may not be
required)
– Prior Tenant Policies - Landowner listed as add’l insured
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Insurance Claim & Litigation
CGL Policies
• Older Policies
– Pre-approx. 1970-1971
– Sudden and Accidental approx. 1985-1986
– Absolute Pollution Exclusion
• Lawsuit required to trigger insurance
• Coverage Issues: State of California v. Continental
Ins.
– Continuous Trigger
– All Sums with Stacking
• Litigation Against Insurers
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Pollution Legal Liability Insurance
Environmental Site Liability Insurance
• Manuscript Policy – Not Off the Shelf
• Insurance for Unknown Pollution Conditions
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Can cover both pre-existing and new pollution
conditions
1st Party Discovery for Clean-up Costs
Coverage and Defense for 3rd Party Claims for Cleanup
3rd Party Claims for Bodily Injury and Property Damage
Non-owned Disposal Sites
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Remediation Coverage – Cost Cap
Insurance for Environmental Clean-Ups
• Insurance for Known Loss
– Provides a Risk Transfer Product for Environmental Clean-up
– Deductibles (SIR) are based on the expected Costs
– Insurance can provide coverage if other contaminants are
found
– Considered a 1st Party Policy (like Property)
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Contractors Pollution Liability Insurance
• Insurance for Unknown/Known Pollution During
Construction
– Coverage for Environmental Damage from Covered
Operations
– Claims for Clean-up, BI, and PD
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Successful Outcome
• Development Proceeds
• Responsible Parties:
– Payment for past costs and cash out
of future
– Clean-up in lieu of cash out
– Future indemnities
• Insurers:
– Reimbursement
– Limit site or policy release to insurers
– Re-openers
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Questions & Answers
Michele Heffes
[email protected]
Christine Noma
[email protected]
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