Periconi, LLC

May 2012 Archives

11th Circuit Decision Follows that of Niagara v. Mohawk: Under CERCLA, Parties Who Enter Into Consent Decree with Government Are Limited to a § 113(f) Contribution Claim

Since the Second Circuit Court of Appeals decided Niagara Mohawk Power Corp v. Chevron U.S.A., Inc., 596 F.3d 112 (2d Cir. 2010), a number of other Circuits have followed the Second Circuit's holding that parties who enter into a consent decree with the U.S. Environmental Protection Agency ("EPA") following an EPA enforcement action and then seek recovery of cleanup costs from other potentially responsible parties ("PRPs") are limited to a contribution claim under § 113(f) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA); they may not bring a cost recovery action under § 107(a) of CERCLA for those same costs. See, e.g., Morrison Enter., LLC v. Dravo Corp., 638 F.3d 594, 603 (8th Cir. 2011); Agere Sys., Inc. v. Advanced Envtl. Tech. Corp., 602 F.3d 204, 229 (3d Cir. 2010). See also Periconi, LLC Environmental Law Blog, here, here, and here for a summary of the Niagara Mohawk case. The most recent decision in line with the Second Circuit is the Eleventh Circuit's decision in Solutia, Inc. v. McWane, Inc., Case No. 10-15639 (11th Cir. Mar. 6, 2012).

Environmental Due Diligence in Real Estate Transactions Blog Series: Part IV - Working with Environmental Consultants

In our series highlighting the tools of environmental due diligence in real estate transactions, we've covered the basics of (1) what is "environmental due diligence," (2) what are the important environmental provisions you need in a purchase and sale contract, and (3) what environmental investigations and audits you need to undertake after signing the contract. In our final post, we'd like to discuss what to consider when selecting and working with the environmental consultant who, with the help of the environmental attorney, will be performing much of the due diligence work on the property.

Environmental Due Diligence in Real Estate Transactions Blog Series: Part III - Environmental Site Assessments and Compliance Audits

So now you've selected your property and have a proper purchase and sale agreement in place; what do you do next?

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