To do that, however, requires that the landlord give the tenant permission to conduct a site inspection and undertake other due diligence at the property and to potentially notify the appropriate agencies if a reportable release is discovered. The guidance does, however, provide a meaningful benchmark of likely federal policy in connection with future tenancies. While a tenant might think of starting with a Phase I investigation, there are commercial services that, for a few hundred dollars, will gather information from various existing environmental databases to provide an idea of the historical uses of hazardous materials at and around a specific property. Guidance issued by the Environmental Protection Agency suggests that, under certain circumstances, there is an exception to this rule for a tenant who purchases leased property from its landlord. Statement in compliance with Texas Rules of Professional Conduct.
In those instances, obtaining environmental samples can provide information that will avoid undue delay in development or unexpected costs. This has been a source of great concern to land buyers, owners, foreclosing banks and other stakeholders acquiring land, and why conducting thorough has become such a key to liability protection for these many stakeholders. Accordingly, if Hearthside were found to be the owner of the site, it would bear responsibility for cleanup costs associated with the contamination of its own and any other land to which the contaminants had migrated. The prospective tenant needs to balance the cost of obtaining additional information with the risks of entering into a lease if there are significant questions about the condition of the underlying property and its impacts on future site operations. There are several reasons to request an environmental audit before purchasing property. Groundwater contamination from a nearby source, such as a dry cleaner, can pose an indoor health issue, particularly if the plume extends beneath your site.
In so doing, the statute would apply to the party with the evidence to defend against a claim, which is also the party most in need of the statute's protections. Use for marketing or solicitation is prohibited. However, even armed only with information from an inexpensive database search, a prospective tenant may be able to negotiate favorable lease provisions, offering some protections in the event contamination is uncovered or agreeing to share the cost of site testing with the landlord. But there are also situations where tenants may need to know more about the property and surrounding sites. All appropriate inquiries must be conducted or updated within one year of acquiring ownership of a property.
Depending on historical uses of nearby property and the availability or lack thereof of actual soil and groundwater data, it may make sense to obtain samples to determine if vapor intrusion is a potential problem. For example, a property owner must comply with the National Ambient Air Quality Standards, the New Source Performance Standards, and the National Emission Standards for Hazardous Air Pollutants. As is obvious, there exist both pros and cons regarding whether or not one should have an environmental audit performed. He may be reached at. Under federal law, the most commonly encountered environmental statutes are the Comprehensive Environmental Response, Compensation, and Liability Act, the Resource Conservation and Recovery Act, the Toxic Substances Control Act, the Clean Air Act, and the Clean Water Act.
January 17, 2019 By David J. Enforcement of both the Clean Air Act and the Clean Water Act is through the Illinois Environmental Protection Agency and the U. Supreme Court to intervene and resolve this confusion. In the event that a landowner refuses to accept responsibility for cleanup, the entity that performed the cleanup can easily determine whom to sue for repayment. McDaniel holds a certificate in hazardous materials management from U.
Finally, lenders who accept leases as collateral may consider due diligence as a form of risk mitigation. The guidance provides background on these older enforcement discretion policies and explains their relationship to the statutory contiguous property owner liability protection. Physical characteristics of the land that signal potential environmental problems are as follows: dead or distressed vegetation; depressions; disturbed soil; drums or other storage containers; high tension power wires; pipelines; and railroad tracks. This imposition of strict liability solely on the basis of property ownership does something other than cause handlers of dangerous substances to be responsible for the hazards they create. Additionally, investigation imposes delays on the transfer of property, and can trigger reporting or remediation obligations that would not have been incurred if the contamination had not come to light to begin with. You also must prove that not only were you not responsible in any way for the contamination of the property, but also that the contamination was caused by a third party with whom you had no employment, agency or contractual relationship. Another defense is the third party defense.
It is important to note that owners may be held liable even if they purchased land without knowledge of hazardous waste buried there. The prior existence of underground storage tanks, manufacturing or dry cleaning operations, or other activities that might have contaminated the soil or groundwater at the site need to be determined up front. Even though the purchaser ultimately may not be liable for the clean-up costs, the purchaser may still be required to spend time and money identifying the responsible party. The statutory requirements that must be met in order to qualify as an innocent landowner vary depending on whether you acquired the property with no knowledge of contamination or whether you inherited the property. Accordingly, commercial and industrial tenants should reconsider environmental due diligence and risk management programs for any new lease.
The Illinois Site Remediation Act allows a buyer to escape liability through remediation, and thus minimizes the need for an environmental audit for liability under state laws. Generally, unless the target site and adjacent and upgradient properties are totally clear of all suspected releases, at least preliminary site testing should be conducted to determine if there is soil, soil gas, or groundwater contamination at the site. Understand that these reports are only as good as the information that was included in the databases, many of which are no longer maintained by the agencies that created them. Third, the third party must not have caused the release in connection with a direct or indirect contractual relationship with the defendant. Bases for Environmental Liability Although environmental problems often are not readily apparent to a property purchaser, the prior use of the land, as well as its physical features, may provide clues about environmental liability. The goal is to determine if there are recognized environmental conditions that might impact the value of the property.