When the federal government's failure to regulate air pollution on time (as required by Congress) leads to environmental exposure of a state's residents, what remedies are there to protect the populace? Answer: the affected states can sue. That's exactly what happened...
Environmental Due Diligence
What Is Required to Retain the Bona Fide Prospective Purchaser Exemption from CERCLA Liability?
Have you been in the market to buy property, but learned that the property was contaminated? There are steps that you can take to avoid opening yourself up to liability.As you may remember, we recently discussed EPA's proposed and direct final rules on Amendment to...
When Does the Discovery of Historic Contamination Qualify as a “Sudden and Accidental” Release?
Many insurance policies contain a "pollution exclusion" which seeks to exclude coverage for losses arising from pollution, except in the case of a "sudden and accidental" release. "Sudden and accidental" may bring to mind a burst pipe or overturned tanker truck, but a...
Migration of Contamination Does Not Automatically Create a Single “Facility” Under CERCLA
A federal court in New York recently decided that the migration of subterranean contamination onto a neighboring property was not, by itself, a sufficient basis to hold a neighboring landowner jointly liable for remediation costs under the federal Comprehensive...
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...
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?A. Protecting Yourself from Potential LiabilityUnder CERCLA (the Comprehensive Environmental Response, Compensation, and Liability Act) there is a broad...
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:...
Borrower’s Covenants
Post-closing covenants will be required for a borrower in a loan transaction, or a tenant in a lease transaction. 1. Borrower will be required to comply [in all material respects] with Environmental Requirements, to notify lender promptly in writing after knowledge in...
Maintain Reps
In a sale or loan transaction the most important pre-closing covenant is that the borrower or seller will maintain the property in compliance with all environmental laws and will re-affirm accuracy of the representations and warranties as of the closing...
All Required Permits
Although the possession of and compliance with all necessary permits is important information for a buyer expecting to continue a business or a lender depending on the viability of a business, representations regarding permits do not necessarily cover potential...
