©2004 Warner Norcross & Judd LLP THE MOST BASIC, SHORT-COURSE INTRODUCTION TO LEGAL ISSUES ASSOCIATED WITH BROWNFIELDS TRANSACTIONS Brownfields 2004: Gateway.

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Presentation transcript:

©2004 Warner Norcross & Judd LLP THE MOST BASIC, SHORT-COURSE INTRODUCTION TO LEGAL ISSUES ASSOCIATED WITH BROWNFIELDS TRANSACTIONS Brownfields 2004: Gateway to Revitalization September 20-22, 2004 America’s Center St. Louis, Missouri Presented by: Eugene E. Smary Warner Norcross & Judd LLP Grand Rapids, Michigan

©2004 Warner Norcross & Judd LLP Legal Context for Brownfield Redevelopment Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund) State “Mini-Superfund” Statutes

©2004 Warner Norcross & Judd LLP Liability Under Superfund And Similar State Laws: Owners/ Operators –At Time of Disposal –Current Generators/Arrangers for Disposal Transporters

©2004 Warner Norcross & Judd LLP Legal Focal Point for Brownfield Redevelopment: Environmental Liability Avoidance –In the Past-Avoid Buying Contaminated Property Perpetuate Brownfields Evaluate And Manage Risk, Even If Liable

©2004 Warner Norcross & Judd LLP Original Superfund Avoidance Mechanisms Innocent Purchaser All Appropriate Inquiry (Phase I Evaluation; Phase II Evaluation) Contractual Allocation

©2004 Warner Norcross & Judd LLP 2002 Brownfield Amendments Created Contingent Liability Exemptions –Bona Fide Prospective Purchaser –Contiguous Property Owner –Innocent Purchaser

©2004 Warner Norcross & Judd LLP All Appropriate Inquiry Standard – THE KEY Phase I ASTM Standard –Until EPA Promulgates Regulations Proposed Regulations Published In The Federal Register On August 26, 2004 (69 Fed Reg 52542) –Read Proposed Regulations –Attend Afternoon Session On September 22, 2004 For Panel Discussion

©2004 Warner Norcross & Judd LLP Non-Statutory Legal Considerations Contract With Consultant –Clearly State Purpose Of The Consultant’s Work: Provide Purchaser With Available Statutory Protections And Defenses To Liability –Contractual Cap On Liability? Frequently Limited To Amount of Fee Would You Go To A Doctor Or A Lawyer Who Limited His Or Her Liability To The Fee? If Not, Why Entrust Your Liability Avoidance In Contaminated Property To Someone Who Does Not Stand Behind The Work? Role Of Lenders –Role Of Other Non-Governmental Third Parties

©2004 Warner Norcross & Judd LLP Assuring Liability Avoidance Into The Future Always Keep In Mind The So-Called “Common Elements” Or Conditions Subsequent To Statutory Exemptions Develop A “Due Care Plan” Review And Update Due Care Plan Frequently, Hopefully At Least Annually

©2004 Warner Norcross & Judd LLP REMEMBER The Law Can Help You But Only If You Follow It Carefully And Get Good Legal Advice