Periconi, LLC

Real Estate Transactions & Environmental Law Archives

New York's Highest Court to Weigh in on Who Bears the Cost of Regulatory Inaction on Fracking

Fresh off its hotly anticipated August 2014 decision upholding the right of municipalities to zone oil and gas extraction operations out of their towns, the New York State Court of Appeals is set to weigh in on another oil and gas extraction issue. This latest matter arrived at the Court of Appeals through a somewhat unusual route, but promises to decide whether landowning lessors or industry lessees bear the cost of state level regulatory inaction on high volume hydraulic fracturing of shale with horizontal drilling (also known as fracking). 

EPA Clarifies What Phase I Environmental Site Assessment Procedure Satisfies its All Appropriate Inquiries Rule

As most folks in the commercial real estate industry know, the Bona Fide Prospective Purchaser exemption from liability under the federal Superfund law is a very useful tool. Accordingly, a Phase I Environmental Site Assessment is standard practice for nearly every purchase of commercial real estate because it helps to satisfy EPA's "All Appropriate Inquiries" requirement for obtaining BFPP status and avoiding the often harsh liability associated with Superfund. 

Sustainability Embraced by Real Estate Investment Industry

"Sustainability" and "development" do not often go to the dance together, but that may be changing. Today's real estate investors are embracing their interconnection, and encouraging environmental social governance (ESG) within the industry. With the rise in environmental consciousness that has accompanied global climate change, sustainability reporting has become an increasingly important tool for real estate investors who wish to engage in socially responsible investing. 

Sellers Beware: Unauthorized Petroleum Tank Repair Ruled a Breach of Environmental Warranty

Everyone's heard of the phrase, "Be careful what you wish for," but Sunoco, Inc. might be ready to coin a new phase, "Be careful what you warrant."

Soil Vapor Intrusion Concern Prompts EPA to Support Revision to Phase I Environmental Site Assessment Protocol

The health threats posed by physical contact with contaminated soil or groundwater are well known. But increasingly, state and federal regulators are recognizing that harmful vapors from such contamination can be drawn into nearby buildings and pose a threat to the occupants. Known as soil vapor intrusion, this threat can come from undiscovered contamination beneath a building, or even from the remnants of previously remediated soil or groundwater.

Can Entering Into a CERCLA Consent Decree Preclude Subsequent Cost Recovery Actions?

Congress enacted the Superfund Act, whose formal name is the Comprehensive Environmental Response, Compensation, and Liability Act, or CERCLA, in 1980 to promote the clean up (remediation) of properties, typically abandoned landfills or other sites, that had been contaminated by the disposal of hazardous materials. To further this goal, Congress cast a wide net and imposed strict liability for all "Potentially Responsible Parties" (PRPs) who contributed to the contamination at a site. See 42 USCS Sec. 9607(a). 

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?

Environmental Due Diligence in Real Estate Transactions Blog Series: Part II - Contract of Sale of Real Property

In our first post in this blog series, we explained exactly what is meant by the term "environmental due diligence" in real estate transactions and discussed some of the "tools" of environmental due diligence. In this post, we'll cover in detail one of those tools: the contract of sale for real property.

Revised Standards for Phase II Environmental Site Assessments

So far, in the Periconi, LLC Environmental Law Blog, we've discussed what to do before you purchase a contaminated property (see here) and what to do after you've purchased a contaminated property (see here), but there is a step that often takes place in between - i.e., between contract signing the closing on the purchase - that may be triggered by the results of your Phase I Environmental Site Assessment ("ESA"): the invasive Phase II ESA investigation. 

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