1 / 7

Legal Perspectives M ay 19, 2014 Jay Fox Regional Counsel FTA Region III

Legal Perspectives M ay 19, 2014 Jay Fox Regional Counsel FTA Region III. Initial Thoughts. 1998 US DOT Policy Statement Encourages use of brownfield sites FTA Circular 5010.1D, Chapter IV, Section 2g(4) (Contaminated Property) Use of broad, discretionary language Due diligence

payton
Download Presentation

Legal Perspectives M ay 19, 2014 Jay Fox Regional Counsel FTA Region III

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. Legal PerspectivesMay 19, 2014Jay FoxRegional Counsel FTA Region III

  2. Initial Thoughts • 1998 US DOT Policy Statement • Encourages use of brownfield sites • FTA Circular 5010.1D, Chapter IV, Section 2g(4) (Contaminated Property) • Use of broad, discretionary language • Due diligence • Interpreting “contamination” and “hazardous material” • FTA “generally” will not participate in remediation of contamination discovered during construction • Absence of language authorizing remediation costs • The RA usually makes the discretionary decisions

  3. Due Diligence • Identify – NEPA Process • Evaluation of soil and geological resources • Hazardous materials and potential sites of concern • Impacts and mitigation measures documented • New information or circumstances • Valuation – Appraisal Process • Scope of work should include effect of contamination • Results of ESAs should be shared with appraiser • “Pre-Federalized” site assembly still subject to appraisal and review concurrence as in-kind/local match

  4. Due Diligence • Responsibility – Title and PRP Searches • Chain of title • Sellers have a duty to disclose • Buyers have a duty to investigate • Commercial v. Residential properties • Other parties • Adjacent property owners • Dumpers (they don’t usually leave a card) • Grantees • Level of intent (practice, negligence, recklessness, knowingly) • Reimbursement

  5. The Reimbursement Roadmap(fill in the blanks and find the money) ?

  6. Due Diligence • Project Costs – Remediation and Liabilities • Remediation • Agency coordination is critical • Process – reduce, remove, and/or contain • Contingency • Liabilities • Short-term liabilities related to clean-up and construction • Long-term liabilities related to continued public safety, undiscovered conditions, etc. • Other Related Costs • Reasonable and necessary legal expenses

  7. Some Other Considerations • Technical Assistance • “The grantee should contact FTA for technical assistance regarding contaminated property” • Contamination Discovered During Construction • FTA generally will not participate in remediation • Ultimate answer turns on compliance with 5010.1D • Condemnation • Capital Leases • Terms should address the responsibilities and liabilities of the parties for existing and discovered contamination

More Related