Month: November 2011

New Damages Trial Ordered For Vapor Intrusion

In Sunrise Harbor Realty LLC v 35th Sunrise Corp, 2011 N.Y. App. Div. LEXIS 5834 (App. Div-2nd Dept 7/12/11), the plaintiff owned a commercial building in Copiague, New York. The plaintiff contemplated purchasing the adjacent property that contained a gas station to expand its building. A phase 2 detected petroleum-contaminated groundwater migrating onto the plaintiff …

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Study Analyzes Trends In Key Terms in M&A Deals

Shareholder Representative Services (SRS) recently issued the results of its M&A Deal Terms Study covering 196 private-target acquisition agreements. The deals closed between July 2010 and September 2011. The 2011 study compares results against an earlier study that encompassed deals from July 2007 to July 2010. Some of the interesting findings are: use of escrows …

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Third Circuit Upholds Corps Wetlands Determination

In US v Donovan, 2011 U.S. App. LEXIS 22026 (3rd Cir. 10/31/11) this case, appellant Donovan owned a four-acre parcel situated within the watershed of the Sawmill Branch. Water from stream channels on the property flowed into the Sawmill Branch which was a navigable water. The Branch then flowed into the navigableSmyrnaRiver which was connected …

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NY Court of Appeals Hears Challenge to State Superfund Regulations

The New York Court of Appeals heard oral argument on November 14th on whether the New York State Department of Environmental Conservation (NYSDEC)  exceeded its authority when its set a goal of cleaning hazardous sites to “pre-disposal conditions” in its superfund regulations. After the NYSDEC revised its Part 375 regulations in 2006, the New York …

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NY State Court Affirms Broad Liability for Owners of Property With Old USTs

Article 12 of the New York State Navigation Law imposes strict liability on “dischargers” of petroleum. The term “discharger” has been broadly construed so that it can encompass owners of property with abandoned or inactive underground storage tanks (USTs) even where the owners never used the tanks. A recent New York State appeals court illustrates …

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NYC Brownfield Projects Now Eligible for IRS Tax Deduction

Section 198(a) of the Internal Revenue Code allows owners of qualified brownfield sites to deduct their cleanup costs in the year they are incurred. To qualify for this deduction, the owner must obtain a certification from the state where the site is located that the site qualifies as a brownfield. The NYC Office of Environmental …

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Purchaser Found “Contributing to” Contamination for Failing to Provide Access for Remedial Activities

Purchaser found contamination after closing and filed lawsuit under citizen suit provision of RCRA 7002 . Defendant brings counterclaim asserting that plaintiff is obstructing remediation by denying access. Court denies plaintiff motion to dismiss on grounds that its obstruction could be construed as active storage of wastes and allowing continued leaching of wastes. Therefore, plaintiff …

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NY Ct Upholds Oil Spill Lien Procedures

Under article 12 of the New York State Navigation Law (Oil Spill Act), “dischargers” of petroleum are strictly liable for cleanup and removal of petroleum spills. To ensure that petroleum spills are promptly remediated, the Oil Spill Act created the State Environmental Protection and Spill Compensation Fund (Oil Spill Fund) to finance state cleanups when …

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Confusion Over Scope And Timing of RCRA Cleanup Leads to Potential Liability for Brownfield Developer

Last year, the brownfield community was rattled by the Ashley II decision of United States District court for the District of South Carolina holding that a brownfield developer failed to comply with the requirements of the Bona Fide Prospective Purchaser defense. The court ruled the developer did not comply with its post-closing continuing care obligations …

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