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"The Tennessee Riverkeeper filed notice Tuesday of intent to sue the current owners of the old city of Florence landfill for violations of the Clean Water Act. 

 
The suit alleges that contaminated liquid from the landfill has been bubbling up from a nearby spring for decades and flowing to Cypress Creek and the Tennessee River."
 
This is NOT the landfill adjacent to the land of the former Florence Country Club; it is an older one nearby that never was properly closed by the city.  Now it is owned by some other folks who should have checked it out before buying it but did not.  It is now their little red wagon and the wheels might be coming off.

 

http://blog.al.com/breaking/20...incart_river_default

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When buying suspect property, a "due diligence" study in the form of a Phase I Environmental Site Assessment should have been performed prior to purchasing the property.  I managed an environmental consulting company years back and have performed over a hundred Phase I's along with many Phase II and a  few remediatory Phase III's.  Can't tell you how many people I saved from financial ruin if they had bought the property without the study.   

 

One case study that was presented to me during a training session involved a residential neighborhood that would have never turned up on any environmental radars.  One day a neighborhood dog shows up at this owner's front door with a medical waste bag in his mouth.  Turned out, the subdivision builder had used medical waste as fill material to build up the land as well as get extra money for disposing of said waste.  Nearly every house in the neighborhood was immediately put up for sale and the home owners were basically stuck with what they had.

 

At a minimum, a Phase I ESA should be performed to show "due diligence" on any property than may be suspect.

 

 

Hooberbloob is correct.  It is standard practice for buyers of real property to carry out the kinds of investigations he describes.  Intelligent buyers will do this. 

 

Banks that lend money for property aquisitions typically arrange for this kind of investigation because they don't want to finance a property that is later found to be a toxic hell hole that will cost big bucks to clean up, with the bank then either 1) foreclosing when the buyer defaults on loan payments and declares bankruptcy, or 2) steering clear of foreclosure because the bank does not want to become the new owner of the contaminated site. In the latter case, the bank's only hope is to get some fraction of its money back via bankruptcy proceedings.  All in all a messy business for the bank.

 

Assessing the environmental status of this property would have been a no-brainer for anyone qualified to perform a Phase I examination.  The current owners could have spared themselves a

ton of trouble by contracting for such an assessment.

If a bank loan is involved with this property, the bank itself could be left holding the bag.  I've seen it countless times.  The owner would default on the loan and the property then becomes the banks.  Whoever is suing the property owner then recalibrates their sights on the new owner, which was the bank or whoever had the deepest pockets.  Only way to shift the blame back to the original offender would be to show they performed due diligence by methodically investigating the property for liabilities prior to lending.  Will be hard to defend themselves without this.

Serious Question.

 

This property was known to be a former landfill site.

 

A Phase I would have served what purpose?

 

An aside. I find it rather "curious" that an organizations first step was to the media rather than a request to sit down with the owner(s) to address the situation. I like to think that if it was me, I would first contact the owner about my concerns. Then, if no action...............

Ubu - in this case, since the property was known to be an old dumpsite prior to the purchase, they could have skipped the phase I and proceeded directly to a phase II, which would encompass soil and groundwater testing to determine if the contamination on the site was great enough to create a liability.

 

The key to this situation is, did the purchaser/bank show due diligence in checking out the property prior to buying/lend money.  If they can prove due diligence, then the liability can be shifted to the previous owner.  At least that's how it was when I was in this type of work field.  It's been a while since I've done this stuff, so I may be behind on any new regulations/laws.

Originally Posted by Ubu:

Serious Question.

 

This property was known to be a former landfill site.

 

A Phase I would have served what purpose?

 

An aside. I find it rather "curious" that an organizations first step was to the media rather than a request to sit down with the owner(s) to address the situation. I like to think that if it was me, I would first contact the owner about my concerns. Then, if no action...............

I'm not a fan of these eviro groups.  This land sits undeveloped for decades then some hapless person wanting to develop for perfectly good reasons gets walloped for something they had no hand in.  Doesn't seem fair does it?  It's almost like they were lying in wait hoping someone would screw up and buy the land so they could sue.

Thanks for the answer Mr. "H". That was the point I was trying to get across. A Phase I would have been a waste of money as far as this property was concerned. 

 

I have nothing against these "groups" per se. In a way I admire their passion. I just wonder about their "methods".

 

The way they approached this particular instance makes me think they are really more concerned with a little media attention than "saving the environment".  You know........using the environment as their vehicle..........

 

Originally Posted by Ubu:

Serious Question.

 

This property was known to be a former landfill site.

 

A Phase I would have served what purpose?

 

An aside. I find it rather "curious" that an organizations first step was to the media rather than a request to sit down with the owner(s) to address the situation. I like to think that if it was me, I would first contact the owner about my concerns. Then, if no action...............

___

Skipping the Phase I is not the best idea.  Sure, they knew the site had been a dump, but the purpose of the Phase I assessment is to identify all potential situations involving contamination of a property with hazardous substances or petroleum hydrocarbons. There could have been more problems with that property than its former use as a dump.  Also, the Phase I investigation takes into account the potential for adjacent or nearby sites to have produced contamination that migrated onto the property.   The simple knowledge that it wonce was a dump does not take that factor into account. 

 

Originally Posted by Ubu:

Thanks for the answer Mr. "H". That was the point I was trying to get across. A Phase I would have been a waste of money as far as this property was concerned. 

 

I have nothing against these "groups" per se. In a way I admire their passion. I just wonder about their "methods".

 

The way they approached this particular instance makes me think they are really more concerned with a little media attention than "saving the environment".  You know........using the environment as their vehicle..........

 

___

Fat chance that the owners would have welcomed an approach from an environmental group urging them to clean up their property!  Riverkeepers and other such organizations have no enforcement authority.  It is only through the courts and the environmental agencies that they can succeed in getting this kind of mess cleaned up.  Those agencies would have to become involved sooner or later even in the very unlikely event that the owners had said, "Sure, we will clean up this pollution.  Let's go to it!"  A landowner has to satisfy the regulatory cleanup standards, using agency-approved methods. That requires immediate oversight by the agency(ies).

Originally Posted by Mr. Hooberbloob:

Phase II can encompass all the stuff done in a Phase I plus soil and water testing.  Due diligence means doing everything possible to determine liability.


___

Environmental due diligence, pursuant to the ASTM standard E1527-05, does not require, in any sense, "doing everything possible."  In fact, the standard for such investigations is carefully crafted so as to avoid the implication that the investigation must include "everything possible." It specifies that the investigation is to include "all appropriate inquiry" within the qualification of  "practicable and reasonable."  Records required to be consulted are those that are "practically reviewable."   Historical sources consulted are those that are "reasonably ascertainable." These qualifiers are provided in the standard so as to disabuse users of any notion that the investigation must be exhaustive or that it must, per your untutored misrepresentation, include "everything possible to determine liability."  Moreover, any actual determination of liability, relying on information in the Phase I or Phase II assessment and/or other factors, is not perfomed by the person or company pconducting the assessment.  Only regulatory agencies and/or the courts can make such a determination.

 

You have obviously been away from the business too long to remember these factors correctly.  Maybe you could take a refresher course.

You can talk all the regulations you want, but I don't know why the Hensley Family would have purchased an ex-dump under any circumstances?  Dumps are what smart real estate investors avoid like the plague.  It's not like the property's prior use was a secret. 

 

While the environmentalists are at it, they should be pulling the Ellie Martin Family into any potential lawsuit.  When in doubt, sue them all.  And don't forget about the lessees, the City of Florence who did the polluting.

 

But let's not forget that Ellie Martin and Billy Hensley are dead.  That leaves the City of Florence that's alive.

 

Second thought, those environmentalists can go crawl back in their holes.  This is really none of their business.

Originally Posted by upsidedehead:
Originally Posted by Ubu:

Thanks for the answer Mr. "H". That was the point I was trying to get across. A Phase I would have been a waste of money as far as this property was concerned. 

 

I have nothing against these "groups" per se. In a way I admire their passion. I just wonder about their "methods".

 

The way they approached this particular instance makes me think they are really more concerned with a little media attention than "saving the environment".  You know........using the environment as their vehicle..........

 

___

Fat chance that the owners would have welcomed an approach from an environmental group urging them to clean up their property!  Riverkeepers and other such organizations have no enforcement authority.  It is only through the courts and the environmental agencies that they can succeed in getting this kind of mess cleaned up.  Those agencies would have to become involved sooner or later even in the very unlikely event that the owners had said, "Sure, we will clean up this pollution.  Let's go to it!"  A landowner has to satisfy the regulatory cleanup standards, using agency-approved methods. That requires immediate oversight by the agency(ies).

___________________

 

Sorry Grandpappy, but I am going to "agree to disagree" on this.

 

Welcomed? Probably not, but most "future plaintiffs" attempt to "exhaust all remedies", including making contact with the "future defendant" to address "the issue". This group has by-passed that step and went directly to the media. You know this to be true. 

 

As to contact with regulatory agencies: I haven't seen any mention of where this group has filed a complaint with a regulatory agency. Did I miss that? All I saw was the threat of a lawsuit in the articles. 

 

As to your comment about the owners probable actions: Who knows? He wasn't given that opportunity was he? As far as I am concerned he has already been judged by this group. You would think that the attorney for this group would have shown a little consideration for a fellow attorney. Past actions by some is no reason to paint all with a wide brush. 

 

I just think someone should be given a chance before "The Scarlet E" is placed on their chest.  

Originally Posted by Bamaman1:

You can talk all the regulations you want, but I don't know why the Hensley Family would have purchased an ex-dump under any circumstances?  Dumps are what smart real estate investors avoid like the plague.  It's not like the property's prior use was a secret. 

 

While the environmentalists are at it, they should be pulling the Ellie Martin Family into any potential lawsuit.  When in doubt, sue them all.  And don't forget about the lessees, the City of Florence who did the polluting.

 

But let's not forget that Ellie Martin and Billy Hensley are dead.  That leaves the City of Florence that's alive.

 

Second thought, those environmentalists can go crawl back in their holes.  This is really none of their business.


___

Clean water is the business of all of us.  You can opt out of concern for it if you foolishly wish to, but do not tell us that it is none of our business. Cypress Creek and the Tennessee River are the public commons; they belong to all of us.  When anyone, public or private, defiles such waters, there is nothing wrong, and everything right, about concerned members of the public rising up to demand thatt they stop polluting and that they clean up their mess.

Originally Posted by Mr. Hooberbloob:

Phase II can encompass all the stuff done in a Phase I plus soil and water testing.  Due diligence means doing everything possible to determine liability.

I believe Mr. "H" is referring to "potential" liability for the purchaser. That was what we were discussing, was it not?

Ubu, take note.  See the closing paragraph of the attached Notice of Intent to Sue, which graciously offers to meet with the Hensley-Graves people to discuss the issues raised in the notice.  I have been in the environmental business for over 40 years and have been involved in many instances of litigation involving clients, the government, and third party organizations.  Believe me, it is very unlikely that a polluter would agree to any such discussions unless there was an incentive to do so. The threatened lawsuit is a powerful incentive. Read the remainder of the notice for detailed information concerning the particular kind of contamination involved in the old dump site and the waters it is affecting.

 

Attachments

Files (1)
Notice of Intent to Sue

Not disagreeing on those points. Please do not take me wrong. I fully understand the "history". For the record I am "involved" in Phase I assessments to some degree in "what I do".

 

My "issue" is that they did not give him a chance to answer before they went to the media,. Note the date of the letter and the date of the media articles. Was that a reasonable amount of time? Two days from the date thereof?

 

How would you feel if it was you? That's the position that I am coming from.

 

Just because "most" people this group encounters acts a certain way does not mean that everyone does or relieve you of being "considerate". 

 

I use "considerate" loosely. I am exhausted and the brain is not "firing on all cylinders", but you grep my intent.......right?

 

Peace grandpappy!

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