Month: June 2012

Obamacare Survives But Will CERCLA or RCRA?

A majority of justices found that the individual mandate of the Affordable Care Act violated the Commerce Clause  of the U.S. Constitution in National Federation of Independent Businesses v Sebelius. The Commerce Clause is the underpinning for the jurisdiction of the federal government to enact and enforce environmental laws such as CERCLA and RCRA. Thus, …

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Environmental Liability and “Fractional” Property Interests

Last week, we discussed due diligence for transactions involving purchases of equity interests in entities that own property that are in technical default of the mortgages. This post discusses potential environmental liability for fractional ownership interests in the underlying property. First year saw students are taught in Real Property Class that property ownership consists of …

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NY Legislature Extends Brownfield Tax Credits

Both houses of the New York Legislature passed bills that would extend the sunset date for the brownfield tax from March 31, 2015 to December 31, 2015. Parties remediating sites in the Brownfield Cleanup Program (BCP) must obtain certificates of completion (COC) from the NYS Department of Environmental Conservation (NYSDEC) by that date to be able …

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Due Diligence and “Recapitalization” Transactions

Many real estate fortunes were amassed following the savings and loan (S&L) crisis of the late 1980s when the Resolution Trust Corporation (RTC) sold loan portfolios owned by defunct S&L entities at what later proved to be distressed pricing. At the depth of the Great Recession, distressed asset firms quickly raised huge amounts of capital …

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Vapor Intrusion and Statutes of Limitations

Statutes of limitations (SOL) establish the time period for bringing a cause of action. SOLs are designed to encourage resolution of disputes within a reasonable period of time before facts or evidence is lost through the passage of time, death or disappearance of witness as well as the loss of memory. The SOL will differ …

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District Ct Holds Vapor Intrusion Is Imminent and Substantial Endangerment

The recent decision in Sisters of Notre Dame De Namur v. Mrs. Owen J. Garnett-Murray, 2012 U.S. Dist. LEXIS 78747 (N.D. Cal. 6/6/12) is the latest example of how vapor intrusion has become a game changer for toxic tort and RCRA litigation. Vapor intrusion was the only potential exposure pathway since groundwater was not used …

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Contamination at Heart of Litigation Over Failed Subdivisions

The Great Recession caused hundreds of residential development projects to ground to a halt. Not surprising, these failed projects have spawned lots of litigation. An interesting Maryland lawsuit involves allegations of fraud and misrepresentation of environmental issues at a development site, and has ensnarled a foreclosing lender. In U.S. Home v Settler’s Crossing, 2010 U.S. …

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Bank Not Liable for Failing To Disclose Environmental Issues At Foreclosure Sale

In Rhima v JPMorgan Chase Bank, 2012 U.S. Dist.LEXIS 70492 (N.D.Tx. 5/18/02), plaintiff was the successful bidder at a foreclosure auction for a warehouse property. The advertised terms and conditions of the foreclosure sale offer indicated that bidders would be provided with environmental reports and access to the property for inspection but the sale was …

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