New Mexico had issued an order under its Water Quality Act to abate groundwater contamination eminating from septic field and lagoon on debtor’s property. The debtor argued that since the state was essentially requiring it to pay for the cleanup, the order should be considered a claim that could be discharged under the Bankruptcy Code. …
District Court Rules Injunctive Order not Dischargeable Claim Read More »
A Chapter 13 debtor had previously owned a gas station. After the New York State Department of Environmental Conservation (NYSDEC) issued a notice of violation involving failing to comply with underground storage tanks (USTs) regulations, the debtor filed its chapter 13 petition. In its Statement of Financial Affairs, the debtor disclaimed knowledge of environmental issues …
In April 2009, the New York Rules of Professional Conduct (Rules) for attorneys replaced the New York Code of Professional Responsibility disciplinary rules (Code). Section 1.6 of the Rules now governs the obligations of lawyers involving confidential information obtained during or relating to representation of a current or former client Rule 1.6(a) provides that a …
NY Ethics Opinion May Erode Confidentiality for Sampling Results Read More »
In a recent ASTM conference call, several consultants took the position that they could not envision a circumstances under which a “vapor encroachment condition” (VEC) identified pursuant to ASTM E2600-10 would not be a “recognized environmental condition” (REC) pursuant to ASTM E1527-05. I was surprised by this statement and therefore have decided to post about …
Should a Vapor Encroachment Condition (VEC) Always Be a REC? Read More »
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The federal district court for the Southern District of New York denied a motion to dismiss filed by Morgan Stanley Mortgage Capital, Inc (MSMC)that it failed to adequately disclose environmental conditions at a shopping center and should not be required to buy back the $81MM loan. This case has some yummy nuggets. In this case, …
CMBS Lender Kept In Case Over Questions About Environmental Disclosure Read More »
Lenders have long played a role as “surrogate regulator” in transactions. In many cases, lenders force potential borrowers to investigate suspected contamination and frequently require remediation under state oversight. Borrowers often balk at these requests any may even retain their own independent consultants to try to convince lenders that the work is not required or …
NY Case Illustrates Why Borrowers Should Not Simply Rely on Lender Approval of Phase 1 Read More »
The ASTM E1527 Phase 1 standard contains a term “Historic Recognized Environmental Condition” or HREC. The term was added to the standard in 2000 to provide a tool for consultants to help distinguish between properties where there was a release in the past that was satisfactorily remediated with sites that have historic contamination that have …
State Court Decision Ilustrates Dangers of Inadequately Evaluating Neighboring HRECs Read More »
A New Jersey Appeals Court refused to disturb a $248,928 damage award against a bank involving a sale of contaminated property. The plaintiff had argued that the trial court had erred in calculating the damages flowing from the bank’s breach of contract. In Ritschel v. Spencer Savings Bank,SLA, 2011 N.J. Super. Unpub. LEXIS 1257 (May 16, 2011), …
State Appeals Court Affirms Damage Award Against Bank for Sale of Contaminated Property Read More »
Buyer agreed to purchase former oil field in 1996 to develop for residential complex. Contract included 40 pages detailing remedial obligations of parties. Buyer had five years to complete investigate of property and inform seller of contamination. If cleanup exceeded $30MM, seller could take over cleanup. Contract also provided that after completion of sellers’ corrective …