ASTM's New Continuing Obligations Standard: What it Means For You

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Tim Haley, Associate at Barnes and Thornburg
When EPA issued its All Appropriate Inquiries rule in 2005 and ASTM followed with the E1527-05 Phase I ESA Standard, greater clarity was brought to the site assessment market for both property owners and environmental professionals. These two documents spelled out the steps needed to obtain a CERCLA liability defense. However, with this clarity came additional confusion: how does a property owner maintain their CERCLA protection after the Phase I has been completed? According to language written by Congress, CERCLA libaility protection begins with AAI, but may also require "continuing obligations" without saying much more about what that might entail. After several years of drafting and debate, ASTM issued the E2790 Standard Guide for Identifying and Complying with Continuing Obligations in July.

What does the standard entail? How will it change your practice? Should prpoerty owners and lenders be concerned? How should it be applied to real-life scenarios? Attorney Tim Haley of Barnes & Thornburg will answer all of these questions and more during a free webinar on October 6, 2011 at 2pm EST.

Tim is not only an experienced environmental attorney, but also contributed to writing the E2790 Standard.
Oct 6 2011
60 mins
ASTM's New Continuing Obligations Standard: What it Means For You
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  • Tune in for the industry’s only inside look at how the first half of the new year shaped up. In this complimentary web event, Dianne Crocker will share the latest stats from EDR’s ScoreKeeper service on how the property due diligence market looks at mid-year—as well as what your forecast for the second half will look like. Attendees of this 60-minute webinar will learn:

    • The strength of commercial real estate investment and lending activity
    • ScoreKeeper’s barometers of regional, state and metro hot spots for Phase I ESA volume
    • Key forces driving demand for due diligence this year
    • Changes in risk tolerance from the user community
    • EDR Insight’s near-term forecast for environmental due diligence
  • Following decades of studies, scrutiny and debate, the U.S. EPA updated its TCE’s toxicity profile in the IRIS database, dramatically lowering the toxicity value. For transactional due diligence, this more stringent limit has important implications, including markedly more extensive and expensive cleanup processes. Given the focus on vapor migration in the new ASTM Phase I ESA standard, environmental professionals need to be increasingly cautious when making REC determinations and recommendations to clients.

    Adding to the confusion is the significant variability in how regulators are using the updated TCE toxicity profile when making closure decisions at contaminated properties. For instance, U.S. EPA Regions 9, 10 and states like Minnesota, Indiana and Massachusetts (among others) have implemented profoundly different approaches to address TCE risk at contaminated sites. Thus, it is critical for environmental professionals to stay abreast of the how TCE guidance is being interpreted and applied across the country. In the latest development, the Agency for Toxic Substances & Disease Registry is proposing a dramatic change to its TCE toxicity profile for the first time in 18 years. The comment period ended on March 16, 2015, and if the update is finalized in its current form, there will be more intense scrutiny on exposure risks which will further complicate transactional due diligence.

    This timely webinar will bring together an attorney and a national subject matter expert to address the various impacts of TCE’s toxicity update on transactional due diligence. This panel will help EPs answer the following questions:

    -Does TCE in groundwater constitute a VEC and/or a REC?
    -How should an EP manage variability in TCE standards in multi-state transactions?
    -How can an EP take steps to minimize exposure to potential liability?
    -How can an EP make sense of the science and available guidance?
    -How should an EP communicate potential risks associated with TCE to clients?
  • Commercial real estate markets continue their slow recovery. As demand for loans intensifies, regulatory compliance is top of mind for financial institutions. Bank regulators are exercising strict oversight over all types of bank underwriting, including commercial appraisals. This webinar will address head-on the challenges that institutions face in meeting the latest guidance impacting the appraisal function, and what risk managers can and should be doing to survive an appraisal compliance audit.

    Attendees will receive answers to these important questions:

    • What do current guidance/regulations require of banks related to appraisals and how has that changed?
    • What specific things are bank examiners looking for in an appraisal compliance audit?
    • Are you doing everything you can to prepare your institution for the scrutiny of examiners before an audit? During an audit? After an audit?
    • What are the latest best practices that banks should include today in their appraisal policies to protect themselves during this stage of market recovery?

    EDR Insight is fortunate to have Mitch Kreeger for this timely event. Kreeger is a well-known Subject Matter Expert (SME) on various valuation, environmental and seismic risk, and regulatory compliance topics by peers nationwide. Currently, Kreeger is Chief Appraiser and Principal Consultant at Kreeger Consulting, a private appraisal/environmental/seismic risk consulting services firm that offers commercial appraisal reviews, outsourced Chief Appraiser duties, and advisory services to lenders on regulatory compliance, efficient appraisal/environmental risk functions, and effective policy updates.

    Audience:
    • Primary: Risk managers at financial institutions, particularly at community bank level
    • Secondary: Commercial appraisers
  • Exposure to professional liability ranks high on the list of any environmental professional’s concerns. In this webinar, industry veteran Anthony Buonicore will present five carefully-selected case studies where an EP was sued, highlighting how costly litigation could have been avoided. Attendees of this webinar will come away with steps that can be taken to minimize professional liability exposure when:

    • Submitting a Phase I ESA proposal
    • Conducting a Phase I ESA
    • Writing the Phase I ESA report
  • With risk management in the spotlight, environmental risk management policies are more important than ever. Environmental insurance options have evolved to offer lenders proven ways to manage risk as commercial loan originations increase in the second act of market recovery. Join us for this webinar as seasoned insiders share their insight into how insurance policies can effectively manage risk exposure. Attendees will also learn how environmental insurance can be applied to lending practices based on real world examples of claims scenarios.

    Benefits to attendees:
    • Background on the latest tools available to help lenders protect collateral on real estate loans or investments.
    • The know-how to avoid an embarrassing loss on loan portfolios due to environmental issues.
    • The latest intel on how lender environmental insurance can help lenders make more loans.

    Target audience:
    • Risk managers at community banks
    • Risk managers at national/international banks looking for a refresher
    • Credit managers and chief credit officers
    • Environmental due diligence professionals serving lenders
    • Insurance professionals
  • Vapor migration is part of the new Phase I environmental site assessment protocol from ASTM, E 1527-13. In December, the US Environmental Protection Agency blessed the new standard as compliant with the federal All Appropriate Inquiries rule, emphasizing the importance of assessing vapor migration risk as a standard part of Phase I ESAs. US EPA went even further in the December preamble and stated that vapor migration has always been a part of conducting AAI. In light of US EPA’s statements and the emphasis that assessing vapor migration is current standard practice for AAI-compliant Phase I ESAs, how is vapor being addressed in the field? If a Phase I ESA report identifies vapor migration as a Recognized Environmental Condition, or REC, what next? In today’s market of intensely short turnaround times for property transactions, is a vapor migration issue a deal killer? What are the current tools and options to investigate a vapor migration REC under transactional time constraints? When should a buyer walk away from a site potentially impacted by vapor migration? When to mitigate? How are environmental due diligence firms establishing consistent processes for recommending “next steps” for clients when vapor migration issues arise?

    This timely webinar will bring together an attorney and two leading technical experts to address head-on the various avenues that firms are taking to assist end users of Phase I ESA reports on how to address vapor migration risk during the deal making process.
  • Regulatory pressures are fundamentally impacting the way that financial institutions manage the appraisal function. Our speakers will tackle the most impactful issues for both lenders and appraisals today. An expert from the Appraisal Institute, the largest appraisal membership society in the world with 23,000+ real estate valuation experts worldwide, will share first-hand research into the challenges faced by appraisers and by lenders that rely on the technical expertise of appraisal services. Attendees will learn about the concerns commercial real estate appraisers face, and the challenges their lender clients face in finding quality appraisers to help them respond to new policies and requirements. Speakers will also share insight into the latest policies from bank regulators like the OCC and FDIC that are impacting the integration of appraisals and environmental risk management. An expert in the trenches of a small community bank will share his insights into the shifting alignment of appraisals and environmental risk management at the community bank level, the importance of having a sound policy in place and actions that banks can take to best prepare for the scrutiny of examiners.

    BENEFITS TO AUDIENCE:
    - Information on how appraisers can meet today’s top challenges, align their services with the challenges lender clients face
    - A deeper understanding of bank regulations impacting appraisals
    - An insider’s take on what bank examiners look for
    - Advice on steps banks can take to protect themselves against examiner scrutiny
    - A look into the forces that are bringing appraisals and environmental due diligence functions closer together

    PRESENTED BY:
    - Bill Garber, Director of Government and External Relations, Appraisal Institute
    - Brian Ginter, Director - Executive Staff, Diversified Real Estate Consulting Network
  • With scrutiny on lenders’ risk management policies intensifying, more and more community banks are writing their first policies or updating old ones. The OCC just raised the bar for the banks it regulates with the August release of expanded guidelines for environmental risk management that bring their policy requirements in line with those of the FDIC. What are the critical components that should be in every policy? What elements are common to most institution’s policies? How does your institution measure up to industry best practices? How is policy administered across organizations?

    Join us for this webinar as seasoned insiders selected from the ranks of a mid-sized bank and small community lender share their experiences in writing and updating environmental policies. Learn what these experts are doing to protect their institutions from environmental risk exposure, and the dangers that lenders face by not having adequate policies in place to protect them from financial and legal liability.
  • Do you have more questions than answers about the industry’s transition over to a new ASTM Phase I ESA protocol? You’re not alone.

    On August 15, 2013, the U.S. Environmental Protection Agency published a Direct Final Rule which proposes to reference the E 1527-13 standard as compliant with the agency’s All Appropriate Inquiries rule (40 CFR Part 312). The agency’s 30-day public comment period just closed and the ASTM standard moves one step closer to publication.

    Right now the #1 question in the industry is: When will ASTM E 1527-13 take effect?

    At this webinar, two of the experts closest to the ASTM process will share the latest status of the AAI rule amendment and publication of the new Phase I ESA standard.

    There are a number of moving pieces in play right now. Tune into this event to learn the latest on the ASTM front, the hot-button issues raised during the public comment period, what happens to E 1527-05 and more. It is an important time for the industry as it prepares to put a new standard into effect and this event will help keep environmental professionals abreast of the process as it unfolds.

    Speakers:

    Julie Kilgore, President, Wasatch Environmental, Inc., Chair of ASTM E50 Committee on Environmental Assessment, Risk Management and Corrective Action and Chair of the E1527 Task Group

    William Weissman, attorney, member of ASTM E50 Executive Subcommittee, retired partner of Venable LLP, Washington, DC
  • Change is in the air on the vapor intrusion front. Literally and figuratively. On April 16, the U.S. Environmental Protection Agency released a draft document, the OSWER Final Guidance For Assessing And Mitigating The Vapor Intrusion Pathway From Subsurface Sources To Indoor Air — External Review Draft for public comment. The release of EPA’s guidance comes just months before ASTM is poised to release a revised version of E 1527 that adds definitions of migrate/migration to address the vapor pathway as a potential conduit for contamination.

    As attention being placed on vapor risk increases, environmental professionals need to stay abreast of the changes and their implications. With the long-awaited federal guidance now out for public comment, environmental due diligence professionals, lenders, as well as prospective purchasers of properties like drycleaners, gas stations, and other types of properties impacted by petroleum or solvents have a valuable resource for understanding VI risk, assessing it and ultimately, managing it as appropriate for their own risk tolerance. Join us at this webinar to hear the perspectives of three experts on:

    • The implications of the federal vapor guidance and an insiders’ unique take on hot button issues;
    • How one environmental professional talks to his clients about vapor risk and protects their liability exposure; and
    • How vapor risk is being mitigated and managed in today’s deals.
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  • ASTM's New Continuing Obligations Standard: What it Means For You Recorded: Oct 6 2011 60 mins
    Tim Haley, Associate at Barnes and Thornburg
    When EPA issued its All Appropriate Inquiries rule in 2005 and ASTM followed with the E1527-05 Phase I ESA Standard, greater clarity was brought to the site assessment market for both property owners and environmental professionals. These two documents spelled out the steps needed to obtain a CERCLA liability defense. However, with this clarity came additional confusion: how does a property owner maintain their CERCLA protection after the Phase I has been completed? According to language written by Congress, CERCLA libaility protection begins with AAI, but may also require "continuing obligations" without saying much more about what that might entail. After several years of drafting and debate, ASTM issued the E2790 Standard Guide for Identifying and Complying with Continuing Obligations in July.

    What does the standard entail? How will it change your practice? Should prpoerty owners and lenders be concerned? How should it be applied to real-life scenarios? Attorney Tim Haley of Barnes & Thornburg will answer all of these questions and more during a free webinar on October 6, 2011 at 2pm EST.

    Tim is not only an experienced environmental attorney, but also contributed to writing the E2790 Standard.
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  • Presented by: Tim Haley, Associate at Barnes and Thornburg
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