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CERCLA

Ct Says NJ Brownfield Agreement Not Enough to Establish Innocent Party Status

bankruptcy, Brownfields, CERCLA, Corporate and Real Estate Transactions, Environmental Due Diligence, NJ Spill Act /

The brownfield reforms that swept the country in the 1990s created new tools for developers of contaminated sites to help minimize their liability. Some of the reforms like the CERCLA Bona Fide Prospective Purchaser (BFPP) liability protection are self-implementing while others such as prospective purchaser agreements, covenants not to sue or letters stating that the developer […]

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Ct Allows CERCLA Claim Agst Bank To Proceed In Methane Case

Brownfields, CERCLA, Environmental Due Diligence, Hazardous Waste, Lender Liability, Methane Gas /

Back in October 2011, we discussed a failed $35MM development project where a bank sought damages from three environmental consultants for failing to anticipate methane gas problems at the development site. The plaintiff, BancorpSouth Bank, was a successor by merger to The Signature Bank that had financed the project. The project consisted of 150-acre site that

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Parties Must Proceed To Trial on Meaning of “Satisfactory Phase 1” Contingency

CERCLA, Corporate and Real Estate Transactions, Environmental Due Diligence /

The twin rulings in Westwood Dev. Partners, LLC v. Draper, 2012 Del. Super. LEXIS 161, 2012 Del. Super. LEXIS 162  (Del. Super. Ct., Mar. 29, 2012) eluded our radar screen last year due to the end of the year crush of deals. While these rulings are admittedly a bit stale, we are sharing them since they provide

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4th Circuit Allows Landlord Cost Recovery To Proceed

CERCLA, Environmental Due Diligence /

Last year, we criticized the ruling in Stratford Holdings LLC v Fog Cap Retail Investors LLC where the district court for the southern district court of Georgia appeared to conflate reporting obligation of section 103 of CERCLA with the cost recovery and contribution provisions of CERCLA when the court granted a motion to dismiss by the defendant

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CMBS Special Servicer May Pursue Guarantor Despite Environmental Policy

CERCLA, Corporate and Real Estate Transactions, Environmental Due Diligence, environmental insurance, Lender Liability, vapor intrusion /

ORIX Capital Markets, LLC v. Cadlerocks Centennial Drive LLC, 2013 U.S. Dist. LEXIS 6081 (D. Mass. 1/15/13) involved a relatively small commercial loan but offers lots of lessons for borrowers, their counsel and environmental consultants. In this case, Salomon Brothers Realty Corp. (Solomon) extended a ten-year loan in the amount of $1.925MM to Cadlerocks Centennial

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Fourth Circuit Affirms Ashley Rulings

Brownfields, CERCLA, Corporate and Real Estate Transactions, Environmental Due Diligence /

The United States Court of Appeals finally issued its much anticipated ruling in PCS Nitrogen v Ashley II of Charleston, 2013 U.S. App. LEXIS 6815 (4th Cir. 4/4/13) last week. However, the wait turned out to be much ado about nothing. The court affirmed the district court rulings but did not clarify perhaps the most

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Revised ASTM Phase 1 Standard To Be Reviewed by EPA

Brownfields, CERCLA, Environmental Due Diligence /

The ASTM task group that is responsible for finalizing the E1527 phase 1 standard has completed its final proof-reading and editorial changes. The revised standard will now go to EPA for approval. If EPA blesses the changes( which we believe it will), the E1527-13 will become the equivalent for complying with the All Appropriate Inquiries

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Bank Agrees To Reimburse EPA for Post-Foreclosure Removal Action Costs

Brownfields, CERCLA, Hazardous Waste, Lender Liability /

We have frequently written on the heightened risks that lenders face when foreclosing or taking control of the property of defaulted borrowers. See Ohio Bank to Reimburse EPA. Despite several high-profile enforcement cases such as the HSBC case in New York that illustrate the potential exposure that lenders face when they take control over a borrower’s

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4th Circuit Hears Oral Argument on Ashley II Case

Brownfields, CERCLA, Environmental Due Diligence /

The United States Court of Appeals for the Fourth Circuit heard oral argument in early December on the appeal of the Ashley II of Charleston v PCS Nitrogen decision, 2010 U.S. Dist. LEXIS 104772 (D.S.C. 9/20/10).  The case involves a 43-acre Columbia Nitrogen Superfund Site in the Upper Peninsula area of Charleston, South Carolina. The

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