This document summarizes several key environmental issues that can affect real estate transactions and development projects. It discusses regulations pertaining to waste management (RCRA/Texas SWDA), hazardous substance cleanup (CERCLA/Texas SWDA), and brownfield redevelopment. It also covers stormwater management and permitting requirements, protections for floodplains and wetlands, asbestos and lead regulations, the Endangered Species Act, and emerging trends around greenhouse gas regulation and sustainable development.
2. Overview
RCRA / Texas SWDA
CERCLA / Texas SWDA
Brownfield Redevelopment
St
Storm Water Management
W t M t
Floodplains and Wetlands
Asbestos & Lead
Endangered Species
Trends – Sustainable Development
3. RCRA / Texas SWDA
Waste management - “Cradle-to-grave”
Allows EPA to address releases from
underground storage tanks
Injunctive relief available if “imminent and
substantial endangerment”
5. Trinity River Audubon Center
EFFORT TO HAUL IT OUT?
City s
City’s Expert Report Estimated:
12 year excavation process
146,000 truckloads of materials
Semi trucks must enter/exit every 3
minutes with 15 pieces of h
i t ith i f heavy
construction equipment operating 8
hours per day
$107,000,000.00
13. CERCLA / Texas SWDA
CERCLA Defenses
Innocent Landowner
Contiguous Property Owner
Bona fide Prospective Purchaser
p
Requires “All Appropriate Inquiry”
ASTM E1527-05 – consistent with final
rule on AAI
Codified at 40 CFR Part 312
14. CERCLA / Texas SWDA
Why Perform Assessment?
Set transaction condition
√ Liability allocation
√ Remediation conditions
Who pays?
Who runs the show?
Permitted uses?
How clean?
Who’s the long-term caretaker?
√ Construction-related issues
Lender requirements
Asset valuation
15. CERCLA / Texas SWDA
Recognized Environmental Conditions
AIA Components
Co po e s
Records review
Site reconnaissance
Interviews with owners, occupants,
operators and state and local
regulatory agencies
Report
Qualified environmental professional
16. CERCLA / Texas SWDA
AAI Does Not Radon
Cover: Mold
Petroleum Municipal solid
waste
Asbestos in
buildings
b ildi Wetlands
Lead-based paint Threatened and
endangered
Lead in drinkingg
species
water
Archeological and
Indoor air
cultural
pollution/vapor
intrusion Regulatory
compliance
17. CERCLA / Texas SWDA
If REC → Phase II Invasive sampling of
Soil
Ground water
Surface water
Sediment
18. Brownfield Redevelopment
Texas Risk Reduction Program
Remedy Standard A
Self Implemented
Meets critical PCLs
No physical or institutional controls
19. Brownfield Redevelopment
Texas Risk Reduction Program
Remedy Standard B
Prior TCEQ approval required
Meets critical PCLs
Physical and institutional controls may
be used
20. Brownfield Redevelopment
Goal – get environmentally impaired
p p
properties back on the market
Manage CERCLA and other environmental
risks
21. Brownfield Redevelopment
Texas Voluntary Cleanup Program
Remediate to meet Texas standards
Certificate of Completion – releases future
owners and lenders from liability to Texas
Must apply before taking title
Must apply before performing remediation
22. Brownfield Redevelopment
Texas Innocent Owner/Operator
Program
Immune from liability if
Property contaminated by release or
migration from off-site source or
sources, and
Did not cause or contribute to the
source or sources of the contamination
26. Release Reporting
Storage tank systems
Non-tank releases
“Whenever an accidental discharge or
spill occurs from an activity or at a
facility which causes or may cause
pollution . . . “
27. Storm Water Management
Typical Problems – Construction
Extensive siltation and sediment deposits
p
Excessive storm water discharges
Storm water relocates hazardous
substances from industrial run-off
28. Storm Water Management
Clean Water Act
NPDES Program
g
Regulates discharge of any pollutant
from any point source to navigable
waters
TPDES Program
29. Storm Water Management
Construction General Permit
What’s regulated
What s
Large construction activities
Disturbs > 5 acres
Small construction activities
Disturbs > 1 acre
Part of larger “common plan of
development”
p
30. Storm Water Management
Construction General Permit
Storm Water Pollution Prevention Plan
File Notice of Intent (NOI)
Pay Fee
Post Construction Site Notice with NOI
Construction
File Notice of Termination
31. Storm Water Management
Enforcement
Government enforcement – EPA priority
CWA citizen suits
Failure to obtain permit
Ongoing violation of a permit
Trespass nuisance negligence claims
Trespass, nuisance,
32. Floodplains
Land subject to inundation by the 100-year
flood
Designated by FEMA maps
Regulated at local level
33. Wetlands
Areas inundated or saturated by surface or
g
ground water at a frequency and duration
q y
sufficient to support a prevalence of
vegetation typically adapted for life in
saturated soil conditions
d il di i
34. Wetlands
Rapanos v. United States (2006)
Scalia, Renquist, Thomas, and Alito
Opinion:
J i di ti only over relatively
Jurisdiction l l ti l
permanent, standing or continuously
flowing bodies of water forming
streams, oceans, rivers, and lakes,
AND
Wetlands with a continuous surface
connection thereto
35. Wetlands
Rapanos v United States (2006)
v.
Kennedy Opinion:
Jurisdiction over water or wetland if it
possesses a “significant nexus” to
waters that are navigable i f t or th t
t th t i bl in fact that
could reasonably be so made
Significant nexus - wetlands alone or
wetlands,
in combination with similarly situated
lands in the region, significantly affect
the chemical, physical and biological
integrity of traditionally navigable water
36. Wetlands
Rapanos v United States (2006)
v.
Stevens Souter, Ginsburg, and Breyer
Stevens, Souter Ginsburg
Dissent:
Jurisdiction extends to the outer limits
of the commerce power
37. Wetlands
EPA and USACE Memorandum
Follow Kennedy Opinion
Jurisdiction:
T diti
Traditional navigable waters
l i bl t
Relatively permanent, non-navigable
tributaries of traditional navigable
waters
Wetlands d ec y adjace to bo ,
e a ds directly adjacent o both,
even if no continuous surface
connection
38. Wetlands
EPA and USACE Memorandum
Case-by-Case Significant Nexus
Evaluation
Non-navigable tributaries - NOT
relatively permanent
l i l
Wetlands adjacent to non-navigable
tributaries - NOT relatively permanent
Wetlands adjacent to, but not directly
abutting,
abutting relatively permanent tributary
39. Wetlands
Texas § 401 Certification
TCEQ certifies § 404 permit complies with
Texas water quality standards
Tier I
Small project
Checklist - incorporates all applicable
BMPs
Tier II – Individual certification
Imposes regional conditions on NWPs
40. Asbestos
TSCA
Production, use, disposal
Clean Air Act
Air emissions (NESHAP)
Concern - friable asbestos and some non-
friable
41. Asbestos
Demolition and Renovation
Texas Asbestos Health Protection Rules
Asbestos survey
Remove all ACM before demolition or
renovation, with certain exceptions
Municipal ordinances
43. Lead-Based Paint
1977 - CPSC ban
1996 - Lead Paint Disclosure Regulations
2010 - Lead Renovation, Repair and
Painting Rule
44. Endangered Species Act
Prohibits any action that results in a
"taking" of a listed species, or adversely
g p , y
affects habitat
Plants and animals
US Fish & Wildlife
1500 endangered species
300 threatened species
45. Trends
Greenhouse Gas Regulation
Massachusettes v. EPA (2007)
GHG Reporting Required (9/09)
Endangerment finding (
g g (12/09)
)
Regulation of GHGs under CAA (3/10)
Tailoring Rule (5/10)