Environmental aspects of real estate and commercial transactions : from brownfields to green buildings / James B. Witkin, editor.
2011
KF1298 .E577 2011 (Map It)
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Title
Environmental aspects of real estate and commercial transactions : from brownfields to green buildings / James B. Witkin, editor.
Published
Chicago : American Bar Association, Section of Environment, Energy, and Resources ; Section of Real Property, Trust and Estate Law, [2011]
Copyright
©2011
Call Number
KF1298 .E577 2011
Edition
Fourth edition.
ISBN
9781616329112 (pbk.)
1616329114 (pbk.)
1616329114 (pbk.)
Description
xxxvi, 793 pages ; 26 cm
System Control No.
(OCoLC)702648028
Bibliography, etc. Note
Includes bibliographical references and index.
Record Appears in
Gift
Purchased from the income of the Rouse Fund
Added Author
Added Corporate Author
Gift
The Arthur W. Diamond Law Library
Purchased from the income of the Rouse Fund
Table of Contents
Acknowledgments
xxi
About the Editor
xxiii
About the Contributors
xxv
Introduction
xxxv
pt. I
An Overview of Environmental Liability
ch. 1
Federal Environmental Liability / Rachel S. Rosenthal
3
Liability Arising from Ownership or Leasing of Real Estate
4
The Comprehensive Environmental Response, Compensation, and Liability Act
4
The Resource Conservation and Recovery Act
20
Liability Arising from the Buying or Selling of Real Estate
21
Liability of "Interim Landowners" and Disclosure of Known Releases or Threatened Releases on Property
21
Sale of Real Estate as Arranging for Disposal under CERCLA
23
Conclusion
24
ch. 2
Common Law Causes of Action for Environmental Claims / James B. Witkin
31
Nuisance
31
Private Nuisance: Elements
32
Public Nuisance
34
Defenses
36
Damages
37
Trespass
37
Elements
37
Damages
40
Defenses
40
Strict Liability
41
Abnormally Dangerous Activity
41
Case Law
42
Defenses
44
Comparison to Other Torts
44
Negligence
44
Elements
44
Defenses
47
Comparison to Other Torts
47
Conclusion
47
ch. 3
Transaction-Triggered Environmental Laws / David B. Farer
57
New Jersey Industrial Site Recovery Act
59
Subject Parties
59
ISRA Triggers
59
The ISRA Process
60
Exemption Procedures
61
The ISRA Hammer: Violation and Penalty Provisions
62
Iowa Environmental Quality Act
62
Connecticut Transfer Act
62
Connecticut Termination of Operations Law
63
Oregon Hazardous Waste Removal and Remedial Action Act
64
Subject Parties and Properties
64
Trigger, Process, and Penalty Provisions
64
Indiana Responsible Property Transfer Law
64
Subject Parties and Transactions
65
The Indiana Transfer Law Process
65
Violation and Penalty Provisions
66
Michigan Natural Resources and Environmental Protection Act
66
Subject Parties and Transactions
66
Trigger, Process, and Penalty Provisions
66
Ohio Cessation of Regulated Operations Program
67
Subject Operations and Parties
67
Trigger, Process, and Penalty Provisions
67
San Francisco's Ordinance
68
The Ordinance Process
68
California Cleanup of Santa Susana Field Lab Law
69
Delaware Transfer or Closure of Establishments Law
69
Subject Parties and Properties
69
Triggers, Process, and Enforcement
69
Sleepy Hollow's Environmental Protection and Property Reclamation Law
70
Subject Parties and Properties
70
Triggers and Process
70
Exemptions
70
Enforcement
71
Repealed Transaction-Triggered Environmental Laws
71
Illinois
71
Hawaii
71
Related State Laws
71
ch. 4
Lender and Fiduciary Liability Issues / John M. Ix
75
CERCLA Risk for Lenders and Fiduciaries
76
Exemptions and Defenses under CERCLA before the 1996 Amendments
77
Statutory Exemption
77
Third-Party Defense
77
Innocent Landowner Defense
78
Bona Fide Purchaser and Contiguous Landowner
79
Other Defenses
80
Effect of the Asset Conservation Act of 1996 on Lender Liability
80
Participation in Management
81
Foreclosure and Postforeclosure Activities
81
Security Interest
82
The Lender
82
Conforming Amendments to RCRA
82
Impact of the Asset Conservation Act on Lending Practices
83
Remaining Environmental Risks for Lenders
83
Judicial Interpretation of the Secured Creditor Exemption
84
Post-Rule Era: Lenders' Foreclosure and Postforeclosure Activities
84
Post-Rule Era: Lenders' Preforeclosure Activities
86
Post-Rule Era: Lease-Finance Transactions
87
Non-CERCLA Assurances for Lenders
89
Practical Solutions to Lenders' Concerns
90
Developing a Strategy That Addresses Environmental Risk
90
Activities before Creation of a Security Interest: Due Diligence
91
Avoidance of Operator Liability before Creation of a Security Interest
92
Loan Documentation: Creating the Security Interest and Policing the Loan
92
Monitoring and Enforcement of the Loan
93
Protection of the Collateral: Cleanup Obligations
93
Protection of Collateral: Notice Provisions
94
Exercise of Remedies
94
Postforeclosure Activities
95
Solutions: Summary
95
Effect of the Asset Conservation Act of 1996 on Fiduciary Liability
95
Benefits and Limitations of the Federal Statutory Protections
96
State Statutory Relief
98
Measures for Limiting Fiduciary Liability
99
Environmental Policy
99
Due Diligence
99
Leases
100
Fiduciary Agreements
100
Insurance Policies
100
Divestment of Trust Property
100
Conclusion
100
ch. 5
Environmental Release Reporting Obligations / David J. Freeman
111
Federal Reporting Requirements
111
Statutory and Regulatory Provisions
111
What Is a Release?
116
State Law Reporting Requirements
118
Other Considerations
118
Contractual Obligations
118
Common Law Fraud
118
Status as Innocent Purchaser
119
Sentencing Guidelines and Incentives for Reporting
119
Counsel as Coconspirator
120
Ethics Considerations
120
Waiver of Privilege
120
Conclusion
122
ch. 6
Criminal Liability for Environmental Matters / Gregory S. Braker
127
Examples of Environmental Criminal Dispositions
129
Employee/Tenant Exposure
129
Hazardous Waste Handling
131
Maintenance of Enclosed Systems and Equipment
131
Spills, Leaks, and Other Illegal Discharges
132
Violations Resulting from New Development
133
Statutory Overview
134
Clean Air Act
134
Clean Water Act
135
Resource Conservation and Recovery Act
136
Comprehensive Environmental Response, Compensation, and Liability Act
136
Title 18 Penalty Provisions
136
Who May Be Prosecuted?
137
Successor Liability
138
What State of Mind Is the Government Required to Prove?
138
Knowledge of the Law
139
Knowledge of the Operative Facts
139
The "Responsible Corporate Officer" Doctrine
141
Willful Blindness
143
Negligence
143
Knowing Endangerment
143
Miscellaneous Issues
144
Factors Considered by Prosecutors before Filing a Criminal Case
145
Suggestions for the Proactive Client
146
Resources
147
General Handbooks
147
Federal Websites
147
Federal Policy Documents
147
pt. II
Environmental Due Diligence in Real Estate and Commercial Transactions
ch. 7
The Due Diligence Dilemma: How Much Is Enough? / Eva Fromm O'Brien
155
The Innocent Purchaser Defense
156
Phase I Environmental Site Assessments
158
The ASTM Standards
158
Beyond the Scope of the ASTM Standard
162
Case Law Interpreting the Innocent Landowner Defense
164
Consultants and Their Role in the Due Diligence Process
168
Conclusion
169
Resources
169
ch. 8
Environmental Consultants / Eva Fromm O'Brien
173
Selecting a Consultant
174
The Initial Screening Process
174
Requests for Proposals and Qualifications
176
Proposal Review and Consultant Selection
176
Addressing Contractual Concerns
176
General Contract Terms
176
Consultants' Representations, Warranties, and Covenants
180
Indemnity Issues
181
Insurance Requirements
182
Supervising the Consultant
183
Determining the Scope of Work for the Phase I Audit
183
Determining the Scope of Work for the Phase II Audit
186
Establishing the Report Format
188
Reviewing the Final Report
188
Understanding the Report
188
Protecting a Report from Disclosure
189
Attorney-Client Privilege
189
Other Potential Privileges
190
Typical Problems Encountered with Reports
190
Addressing the Consultant's Liability for Work Performed
191
Resources
192
ch. 9
Understanding Environmental Reports and Risk-Based Cleanups: Science Issues for Transactional Lawyers / John W. Watson
195
Approaching the Prospect of Phase II Sampling
196
Evaluating Phase II Sampling and Analysis Reports
196
What the Report Should Tell the User
196
What the Consultant Does in the Field for Phase II
197
Evaluation of Phase II Results
199
Common Problems with Phase II Reports
200
Understanding Environmental Sampling Data and Lab Reports
202
Sampling
202
Site Maps
202
Boring or Well Logs
202
Chain-of-Custody Records
203
Laboratory Analytical Reports
203
Addressing the Physical Chemistry of Contaminants
205
Contaminant Categories
205
Physical and Chemical Properties of Contaminants
206
Assessing the Risks of Contaminants
207
Risk Assessment
207
Contaminant Toxicity
208
Exposure Assessment
208
Unacceptable Risk
210
Target Cleanup Levels: How Clean Is Clean?
210
Superfund Framework for Establishing Cleanup Objectives
211
Use of Exposure Controls to Mitigate Risk
212
Brownfields Remediation
213
Conclusion
213
pt. III
The Transaction: Structural, Tax, and Other Business Issues and Implications
ch. 10
Structuring the Transaction to Allocate Environmental Liability / Gregory A. Bibler
219
Early Considerations
220
Accounting Considerations
220
Offer or Letter of Intent Stage
221
Acquisition Agreement Stage
222
Preclosing Diligence
222
Representations and Warranties
222
Covenants
226
Contractual Indemnification
227
Cost-Sharing Provisions
230
Miscellaneous Provisions
231
Other Types of Agreements
232
Financing Agreements
232
Lease Agreements
232
Service Agreements
232
Side Agreements
233
Institutional Controls
233
Mechanisms to Structure the Transaction
233
Transfer of Assets
234
Formation of a Subsidiary
234
Limited Liability Company
235
Limited Partnership
235
Lease Agreement
235
Global Transactions
236
Conclusion
236
Appendix: Sample Provisions
239
Representations and Warranties
239
"As Is" Provision for Purchase and Sale of Real Property
241
Excluded Liabilities Provisions for Asset Purchase Agreements
242
Indemnification Provisions
243
Environmental Remediation and Indemnification Agreement
244
Lease Provisions
248
Financing Agreements---Covenants
251
ch. 11
Brownfields Redevelopment: Creative Solutions to Historical Environmental Liabilities / Todd S. Davis
253
Defining the Brownfields Problem
253
What Is a Brownfield?
255
Why Are Brownfields Demanding Attention?
255
Assessing the Barriers to Brownfields Redevelopment
256
Ambiguous Legal Liability
257
Lack of Concentrated Expertise
257
Potentially Substantial Capital Costs
257
Insufficient Financing
257
Nebulous Government Policies
258
Entrenched Attitudes among Regulators
258
Absence of a Consistent Redevelopment Framework
258
Public Opposition
258
Limited Demand for Redeveloped Sites
259
Competition from Greenfields
259
Understanding Owner Liability under Superfund
259
Bringing Down the Barriers
260
The Brownfields Act: A New Federal Commitment to Brownfields Redevelopment
260
Summary of the Brownfields Act's Major Provisions
261
Prospective Purchaser and Innocent Landowner Liability Protection
261
Case Studies
264
Northcliff: From Abandoned Brownfield to Thriving Retail Center
264
Collinwood Yards
266
Food for Thought
267
ch. 12
An Overview of Institutional Controls / Amy L. Edwards
271
Introduction
271
Definition of Institutional Controls
272
Examples of Institutional Controls
272
Proprietary Controls
273
State and Local Government Controls
275
Informational Devices
279
Enforcement Tools
282
The Enforceability of Institutional Controls
282
Implementation Considerations
285
Description of Restricted Activities and Uses
285
Description of Permitted Activities and Uses
285
Maintenance Requirements
286
Subordination Requirements
286
Disclosure Requirements in Deeds, Leases, and Mortgages
286
Mechanisms for Modifying or Terminating the Controls
286
Impact of Noncompliance with the Controls
287
Whether the Control "Runs with the Land"
287
Easements
287
Emergencies
288
Legal Authority
288
Public Participation Issues
288
Conclusion
288
ch. 13
Tax Aspects of Environmental Matters / Tammara F. Langlieb
293
Environmental Remediation
294
Background
294
Deduction or Capitalization
294
How Increases in Value or Useful Life Are Measured
295
Treatment of Remediation Costs as a Loss
298
Deduction or Capitalization of Specific Remediation Costs
299
Legal Fees
304
Fines and Penalties
304
Timing of Deduction
305
Cost Recovery
306
Valuation of Contaminated Real Estate
306
Building Green Structures
307
Background
307
Energy-Efficient Commercial Buildings Deduction
307
Energy-Efficient Homes Credit for Contractors
308
Renewable Energy Incentives
310
Energy-Efficient Property Tax Credit
310
Manufacturing Energy Project Credit
311
Conclusion
311
Resources
312
ch. 14
Environmental Disclosure Requirements under Securities Laws / Jeffrey A. Smith
321
Background
321
The Statutory and Regulatory Framework
323
Disclosure of Capital Expenditures: Item 101
323
Disclosure of Legal Proceedings: Item 103
325
Management's Discussion and Analysis: Item 303
325
Climate Change Issues
328
Proxy Materials
329
General Disclosure Requirements
330
Accounting Requirements
330
Recent Trends in SEC Disclosure Policies
332
Case Law
332
Enforcement Matters
333
Plain-English Disclosure
334
Conclusion
336
ch. 15
Treatment of Environmental Liabilities in Bankruptcy / Sandra Franco
341
Introduction
341
Environmental Laws
342
The Bankruptcy Code
343
Bankruptcy Concepts as Applied to Environmental Claims
343
Abandonment of Contaminated Property
343
Effect of the Automatic Stay
344
Dischargeability of Environmental Obligations
345
Injunctions and Cleanup Orders: Are They "Claims"?
346
When Does the Claim Arise?
347
Due Process: What Constitutes Sufficient Notice?
348
Allowability, Amount, and Priority of Environmental Claims
349
Prepetition Settlement Agreements as Executory Contracts
351
Successor Liability Issues Peculiar to Bankruptcy
352
Protections for Lenders and Fiduciaries
353
Insurance for Environmental Claims
353
Conclusion
354
ch. 16
Environmental Issues in the Landlord-Tenant Context / Donald I. Berger
369
Overview of Legal Principles Affecting the Land lord-Tenant Relationship
370
Overlapping Liability as Owner and Operator
370
Limitations on the Third-Party and Innocent Landowner Defenses
371
Risk Shifting through Indemnities
371
Permitting and Disclosure Obligations
372
Remediation Obligations
372
Leases: Negotiating and Drafting to Address Environmental Issues
373
Issues Relating to the Initial Transfer of Possession
373
Issues Relating to Tenant's Operation of the Premises
376
Issues Relating to Lease Expiration or Termination
380
Green Leasing Issues
382
Conclusion
386
ch. 17
Current Insurance Policies for Insuring against Environmental Risks / Ann M. Waeger
395
Introduction
395
Available Types of Insurance Coverage
397
Possible Transactional Uses for Environmental Insurance Products
398
Claims-Made versus Occurrence-Based Coverage
398
Overview of Available Environmental Insurance Coverage
398
Pollution and/or Remediation Legal Liability
398
Cleanup Cost Cap, Stop Loss, or Cost Containment Coverage
399
Contaminated Property Development
400
Lender Environmental Protection Insurance
401
Contractor's Pollution Liability and Errors and Omissions Insurance
402
Finite Risk
403
Uses of Environmental Insurance Coverage
403
Additional Security for Contractual Indemnity
403
Security When No Contractual Indemnity Is Given
404
Security for Ongoing Manufacturing Operations
404
Additional Loan Security
404
Development
405
Contractor's Work
405
Settlement of Claims under General Liability Policies
405
Settlement of Superfund-Type Liabilities
406
Government-Led Brownfield Insurance Programs
406
Massachusetts Brownfield Redevelopment Access to Capital Program
406
Connecticut Department of Economic and Community Development Program
407
Wisconsin Department of Natural Resources Program
407
New York Department of Environmental Conservation Brownfields Cleanup Program
408
Select Issues to Consider When Evaluating Coverage
408
Up-Front Premium Payment
408
Financial Viability of Insurance Company
408
Sparsity of Case Law Interpreting Coverage
408
Fact-Sensitive Transactions
409
Careful Analysis of Terms and Exclusions
409
Time Frames
409
Admission of Policies in Various States
409
Examples of Policy Terms That Require Negotiation
410
Known Conditions
411
Insured
411
Bodily Injury
411
Property Damage
411
Underground Storage Tanks, Asbestos, and Lead Paint
412
Material Change in Use
412
Intentional Acts
412
Contractual Liability
412
Insured's Property
413
Cancellation
413
Choice of Law/Choice of Forum
413
"Other Insurance" Provision
413
Notice
414
Subrogation
414
Severability or Separation of Insureds
414
No Assignment
414
Natural Resource Damages
414
Mold, Fungus, and Microbial Matters
415
War and Terrorism
415
Site Development/Capital Improvements Exclusion
416
Cleanup Cost Cap Policy
416
Application Process
416
Selected Case Law
417
Conclusion
419
pt. IV
"What the Audit Revealed: Dealing with Specific Substances and Situations
ch. 18
Underground Storage Tanks / Walter G. Wright Jr.
425
Background
426
Environmental Impacts
426
Federal and State Regulatory Programs
427
Resource Conservation and Recovery Act
427
MTBE
436
Key UST Regulatory Requirements Affecting Commercial Transactions
437
State Programs
438
Tools for Resolving UST Issues in Commercial Transactions: Uses and Limitations
441
State Funds
441
Environmental Assessments
441
Contractual Allocation of UST Responsibilities
442
ASTs: An Alternative to USTs
443
UST Secured Creditor Exemptions
443
ch. 19
Asbestos / Sasha M. Reyes
451
Background on Asbestos
452
Where Asbestos Is Found
452
Why Asbestos Is Regulated: Health Issues
453
Jurisdictional Agencies and Asbestos Regulations Applying to Real Estate Transactions
453
The EPA NESHAP Regulations
453
OSHA Regulations
456
Asbestos School Hazards Abatement Reauthorization Act
459
State Laws Governing Asbestos Removal in Buildings
460
Real Estate Transactions
460
Leasing Property
460
Purchasing Property
461
Financing Real Estate Deals
462
Building Inspections
462
Removal Projects
463
Consultant and Contractor Selection
463
Documentation
464
Management of Asbestos in Place
465
Potential Liability for Asbestos
466
Claims Brought against Building Owners
466
Claims Brought by Building Owners
467
Insurance Issues
468
Resources
468
ch. 20
Lead-Based Paint / Catherine A. Potthast
471
Background
471
Personal Injury, Regulatory, and Criminal Litigation
474
Title X: Federal Regulation of Lead Paint in Residential Transactions
475
Public and Assisted Housing
475
Task Force and Appraisal Guidelines
477
Required Disclosures in Residential Transactions
477
1992 Amendments to the Toxic Substances Control Act
479
Certification Regulations
479
Renovation Activities
480
Lead-Based Paint Activities
482
Identification of Lead Paint Hazards and Technical Requirements
482
Hotline and Clearinghouse
483
Leaded Waste
483
State and Local Regulation
484
Disclosure Provisions
484
Inspection and Remediation Requirements
484
Practical Issues regarding Remediation
485
Conclusion
488
ch. 21
Indoor Air Quality/Vapor Intrusion / Shailesh R. Sahay
495
Indoor Air Quality Problems
496
Sick Building Syndrome
496
The HVAC System
497
Chemical and Biological Contaminants
498
Radon
498
Vapor Intrusion
500
Health Effects Associated with Indoor Air Pollution
503
Federal and State Regulation of Indoor Air Quality
504
Federal Regulation
504
State Regulation
507
Indoor Air Quality Litigation
508
Parties to IAQ Litigation
508
Theories of Liability
509
Practical Considerations in Prosecuting or Defending an IAQ Case
515
Damages
519
Conclusion
520
ch. 22
Mold / Walter G. Wright Jr.
531
Mold: The Relevant Characteristics
533
The Indoor Environment
533
The Presence of Mold in Structures
534
Addressing Structural Mold
536
Assessment of Mold in the Transactional Context
536
Remediation
541
Prevention
542
Current and Proposed Governmental Programs and Requirements
543
Federal Legislation
543
State Legislation
544
Mold as a Potential Material Transactional Issue
544
Transactional Impairments
544
Relevant Real Property Transactions
545
Management/Allocation of Risk/Responsibility
553
Assessment/Remediation
553
Contractual Allocation of Risk/Responsibility
554
Insurance
556
pt. V
Environmental Issues Affecting Real Estate Development
ch. 23
Regulatory Takings: What Does It Take to Make a Take? / John J. Delaney
573
Introduction
573
Kelo (2005): The Public Use Clause
574
Stop the Beach Renourishment (2010): Judicial Takings Put on Hold
575
Basis of Regulatory Takings Law: The Fifth Amendment
575
Pennsylvania Coal (1922): Overreaching Regulation as a Taking
576
First English (1987): Compensation Is an Available Remedy for Landowners
577
Tahoe-Sierra (2002): Has First English Been Narrowed?
577
Penn Central (1978): The Balancing Test for Less than Total Takes
577
Per Se Takings: Two Categories
578
Loretto (1982): Physical Invasions
578
Lucas (1992): Per Se Regulatory Takings
578
Categorical Takings Likely to Be Rare
579
Regulatory Exaction Cases
580
Nollan (1987): The "Essential Nexus" Test
580
Dolan (1994): The "Rough Proportionality" Standard
580
Lingle (2005): Agins Prong 1 Invalidated; Nollan and Dolan Confirmed
581
Four Classifications of Regulatory Takings Based on Lingle
582
The "Catch 22" Standing Barrier for Takings Claimants in Federal Court
582
Williamson County (1985): A Conundrum
582
International College of Surgeons (1997): An Anomaly
583
San Remo Hotel (2005): A Glimmer of Hope
583
Conclusion
583
ch. 24
Wetlands: Taming the Swamp Monster / Lowell Rothschild
589
Are There Wetlands on the Parcel?
591
CWA Jurisdictional Wetlands
591
Physical Definition of Wetlands
594
Delineation of Wetlands
595
Sources of Assistance for Wetland Delineation
596
How Can Wetland Property Be Developed?
597
What Activities in Wetlands Are Regulated?
598
Permit Exemptions
599
General or Nationwide Permits
599
Individual Permits
601
Appeal of Permit Denial
606
Is There Any Enforcement Concern?
606
The Enforcement Arsenal
607
Who Can Be Held Liable?
608
Making Lemonade: Protecting and Recouping Investments
609
Challenging Government Regulatory Decisions
609
The Compensation Remedy for Takings
610
Private Remedies in Wetlands Transactions
612
Utilizing Wetlands as Wetlands
613
Conclusion
614
ch. 25
The Endangered Species Act / J. B. Ruhl
625
Background
625
Statutory and Regulatory Overview
627
Species Listing, Critical Habitat Designation, and Recovery Planning
628
Take Prohibitions
630
Incidental Take Authorities
632
Enforcement and Other Programs
636
Pitfalls for Development Projects and the Promise of Administrative Reform
637
The Perverse Incentives Problem
638
No Grandfathering
639
The Science "Black Box"
640
The Post-Listing Paradox
641
Of "Secondary" and "Speculative" Takes
642
Open-Ended Mitigation
643
An ESA Checklist for Development Projects
644
Before and During Project Design
644
During the Permitting Phase
645
Dealing with Newly Listed Species
646
Conclusion
646
ch. 26
Environmental Justice and Transactions / Michael B. Gerrard
653
What Environmental Justice Is All About
653
Legal Authorities
654
Civil Rights Laws
654
Environmental Laws
657
Applications of Legal Authorities
658
Siting
658
Permitting
660
Planning and Zoning
661
Determinations of Need
662
Existing Facilities
663
EJ Issues in Transactions
664
ch. 27
Conservation Easements / David J. Dietrich
669
Conservation Easement as a Real Estate Document
669
In General
669
Common Law
670
UCEA
670
Federal Statutory Basis: IRC Section 170
670
In General
670
Donative Intent
671
Partial Consideration
671
Requirements for Deductibility
671
Conditions on Subsequent Transfers by Donee; Compliance with Easement Terms
676
Subsequent Transfers
676
Compliance
676
Valuation of Conservation Easement Donations
676
Federal Gift and Estate Taxation of Conservation Easements
677
IRC Section 2055A: Estate Tax Deduction
677
IRC Section 2031(c): Estate Tax Exclusion
677
IRC Section 2522: Gift Tax Considerations
678
The Conservation Easement
678
Grantor's Choice of Entity and Timing
678
Selection of Grantee
679
Baseline Study/Appraisal
679
Retained Interests/Permitted Uses
680
Working Forest Easements
680
Jeopardizing Income and Estate Tax Deductions
681
Amendments and Modification of the Original Easement
681
Permitted and Prohibited Use Considerations
682
Conservation Easements and Eminent Domain
683
Federal Farm and Ranch Lands Protection Program
683
The Taxpayer-Friendly Pension Protection Act of 2006 and the Tax Relief Act of 2010
684
ch. 28
Brownfields Redevelopment at Closed Military Bases / Jill E. C. Yung
697
The Base Realignment and Closure (BRAC) Program
697
Comparison of Closed Bases with Other Brownfield Sites
698
Basic Framework for Base Cleanup and Reuse Planning
700
Base Disposal Planning
700
The Delicate Relationship between the Military, EPA, and States
700
Restoration Advisory Boards: Facilitating Community Input into the Cleanup Process
702
Environmental Condition of Property (ECP) Reports: Identifying Uncontaminated Property
702
The Redevelopment Plan: Connecting Reuse Planning with the Cleanup Process
703
NEPA Compliance
705
Deciding How the Base Will Be Transferred
705
Transfers to Other Federal Agencies and Public Benefit Conveyances (PBCs)
705
The Rise, Fall, and Partial Resurrection of No-Cost Economic Development Conveyances
706
Leases in Furtherance of Conveyance
707
Agreements between LRAs and Master Developers
708
Satisfying the Transfer Requirements of CERCLA Section 120(h)
708
Transferring Base Property after Remediation Is Complete
709
Early Transfer Authority: Transferring Base Property before Remediation Complete
711
DoD's Environmental Indemnity and Covenant to Perform Future Cleanup
711
Potential Concerns about the Covenant to Perform Additional Remediation
711
Potential Concerns about the Section 330 Indemnity
712
Covenants Not Required for Transfers to Potentially Responsible Parties
713
Early Transfers with Privatized Remediation
714
The Evolution of Early Transfer Proposals
714
The Benefits of Early Transfer with Privatized Remediation
714
Key Elements of an Early Transfer with Privatized Remediation
716
Challenges for Early Transfers at Bases Sold by Auction
720
Conclusion
720
ch. 29
Smart Growth and Sustainability / Girair Simon
731
Introduction
731
Federal Level
732
State Level
734
Regional Coordination
736
Local Level
738
Conclusion
740
Table of Cases
743
Index
771