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.
The U.S. Supreme Court has recently declined to consider a case centering on the question of when a citizens' group may challenge an ongoing environmental remediation under the federal Superfund law. The Court's decision lets stand a May 2014 ruling by the Seventh Circuit that chipped away at Superfund's general prohibition on legal challenges to ongoing removal or remedial actions.
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.
New Yorkers like to think their city is the biggest and baddest, and now there's another reason for those sobriquets: last month, the former Wolff-Alport Chemical Company site - less than 1,000 feet from a public middle school and a private day care center- earned the title of most radioactive site in New York City today, and became the second radioactive site in New York City in the Superfund program's history. On May 8, 2014, EPA listed the 3/4-acre property located at Irving Avenue and Cooper Avenue in Ridgewood, Queens, as a federal Superfund site. This is the third active federal Superfund site in New York City.
How many remediation angels can dance on a single remediation pinhead? In the recent NL Industries v. ACF Industries ruling, a federal judge in the Western District of New York decided that, for the purposes of CERCLA cost recovery and declaratory judgment claims, all actions taken to clean up a Superfund site constitute one set of remedial actions, regardless of the number of "operable units" the site is divided into during the remediation.
Sometimes the Supreme Court's silence can be just as powerful as a decision. Or as James Joyce said about "absence" - it's the "highest form of presence."
Love Canal, New York; Cuyahoga River, Ohio; Times Beach, Missouri; Hopewell, Virginia; Three Mile Island, Pennsylvania. These are the sites of some of the worst environmental contamination in our nation's history. Each of these disasters drew significant public attention, and incited the political will to confront similar environmental hazards more systematically.
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.
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 recent decision in the United States District Court for the Southern District of New York suggests that the interpretation can be much more complicated.