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...
Environmental Due Diligence
EPA Announces New Tenant Protections Under Superfund
EPA has just extended to tenants the Bona Fide Prospective Purchaser ("BFPP") protection, by which Congress previously exempted certain prospective owners from harsh Superfund liability. Even where the landlord loses its BFPP protection, the new EPA enforcement...
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...
No Asbestos, PCBs, USTs
It may be appropriate to add specific representations on individual contaminants or areas of concern to buyer or lender. In addition to those listed, formaldehyde and radon may be of concern to the buyer.1. The representation may be: "There is not now at, on, or in...
No Notices or Knowledge of Basis
1. Disclosure of outstanding notices or basis for notices is important to a continuing business: "Seller has not received written or oral notification that any of its current or past operations or a by-product thereof is related to or subject to any investigation by...
No Hazardous Substances
This most common of representations and warranties is most often abused. Buyer or tender may initially want a flat representation that there are not now and never have been any Hazardous Materials on the premises or any operations that generate, use, treat, store, or...
No Violations / Compliance With Laws
A typical provision states: "Except as set forth in schedule x.x and except for violations which would not have a Material Adverse Effect, seller is not and has not been in violation of any Environmental Requirements. 1. Buyer or lender may want to add a...
Inducement / Best Knowledge
Typically the preamble for the representations and warranties will state that they are made to induce the buyer to purchase or the lender to make the loan contemplated. 1. Although buyer prefers seller's representations and warranties to be absolute, seller will want...
Material Adverse Effect and Adverse Environment Condition
Material Adverse Effect: In a sale of any ongoing business, one way to address the difficulty of being absolute in the representations and warranties when in fact the parties are not concerned about the de minimis presence of hazardous materials or damages, is to...
Term Definition: Environmental Damages
Environmental Damages: This definition is a convenient place to collect all the possible liabilities and damages arising from the presence of hazardous materials on the property in violation of, or requiring remediation under, any Environmental Requirements. It can...