4B — November 28 - December 11, 2014 — Shopping Centers — M id A tlantic
Real Estate Journal
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By Suzanne Schiller, Manko, Gold, Katcher & Fox, LLP Four environmental laws every developer & property owner should know
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the placement of dredged or fill material into “waters of the United States” and pro- vides a process by which de- velopers must apply to obtain a permit to fill wetlands. The Army Corps of Engineers has initial responsibility for ap- proval of such permits, and as a condition of approval will often require mitigation in the form of restoration of existing degraded wetlands, creation of new wetlands, or improve- ment/ expansion of an existing wetland. Section 402 of the CWA requires entities to obtain a
National Pollution Discharge Elimination System (NPDES) permit for any discharges of pollutants into waters of the United States. Stormwater run-off during construction ac- tivities requires the issuance of a NPDES Permit. The issuance of NPDES permits have been delegated by EPA to almost every state, and therefore these permits are typically issued by the state environmental agency. Resource Conservation and Recovery Act (RCRA) The Resource Conservation and Recovery Act (RCRA) regulates the maintenance and disposal of solid waste and sets requirements for the handling, transportation and disposal of hazardous waste. RCRA is typically implemented by state agencies that are free to impose additional and/or more stringent hazardous waste management requirements. Very few building managers and retailers will not have RCRA concerns as examples of hazardous wastes covered by RCRA include cleaning solvents, aerosol cans, paints, and batteries. Exemptions are available for “conditionally exempt small quantity genera- tors” or “small quantity genera- tors” so minimizing hazardous wastes is an important goal for retailers to meet. Small Business Regula- tory Enforcement Fairness Act (SBREFA) The Small Business Regula- tory Enforcement Fairness Act (SBREFA) requires federal agencies to establish a policy or program that reduces and waives civil penalties for viola- tions of a statutory or regula- tory requirement by a small entity. Whether one is a “small business” is dependent upon a variety of factors, including type of business, number of employees, gross receipts, and in the case of environmental laws, the amount of pollutants generated. EPA maintains a website dedicated to SBREFA issues (www.epa.gov/sbrefa) and how EPA involves small entities in rulemakings that are likely to impact them. Suzanne Ilene Schiller is a partner at the environ- mental, energy and land use law and litigation firm of Manko, Gold, Katcher & Fox in Bala Cynwyd, PA. She can be reached at 484-430-2354 or sschiller@ mankogold.com. n
ous waste disposal areas.” A wide variety of entities may be liable for cleanup, including prior owners, current owners, generators and transporters. To encourage the purchase, clean-up and redevelopment of contaminated sites, CERCLA provides two potential defenses to liability for developers pur- chasing property: the Innocent Landowner Defense and the Bona Fide Prospective Pur- chaser (“BFPP”) Defense. An owner of property found to be contaminated may be able to assert the innocent landown- er defense if the property was
acquired after the hazardous substance was disposed there and at the time of acquisition, the owner "did not know and had no reason to know" that the hazardous substance was disposed on the property. To qualify for the BFPP defense, among other things buyers must not be affiliated with any party responsible for the con- tamination and post-purchase must not contribute to and take reasonable steps to control the existing contamination. Clean Water Act (CWA) Section 404 of the Clean Water Act (CWA) regulates
omprehensive Envi- ronmental Response, Compensation and
L i a b i l i t y Act (CER- CLA) CERCLA, also known as Superfund, is a broad stat- utory scheme that provides for “liability,
Suzanne Schiller
compensation, cleanup and emergency response for haz- ardous substances released into the environment and the cleanup of inactive hazard-
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or more than twenty years, Manko, Gold, Katcher & Fox’s partners have been active members of ICSC, reflecting the firm’s experience and commitment to serving the environmental and energy law and litigation needs of the shopping center industry, including :
Environmental Aspects of Site Development and Brownfield Redevelopment Site Remediation Under Federal and State Cleanup Programs Real Estate Litigation and Land Use Hearings Environmental Permitting and Licensing
Environmental and Regulatory Audits
Indoor Air Quality/Vapor Intrusion Consulting and Litigation
Superfund and Cost Recovery Litigation
Photo © Tony Tremblay | istockphoto.com
Jonathan H. Spergel, Esquire 484-430-2309; jspergel@mankogold.com Suzanne Ilene Schiller, Esquire 484-430-2354; sschiller@mankogold.com
401 City Avenue, Suite 901 Bala Cynwyd, PA 19004 www.mankogold.com
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