Environmental Due Diligence

CMBS Environmental Due Diligence Needs to Consider B-Piece Buyers

Environmental Due Diligence / By

Commercial Mortgage-Backed Securities (CMBS) loans have been playing an increasingly important role in commercial real estate financing and account for around 30% of commercial loan originations. Because of the increasing use of CMBS loans, it is important for consultants to understand the different risk tolerances of the players in a CMBS transaction and how environmental […]

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Rep and Warranty Insurance Becoming More Common in M&A Deals

Corporate and Real Estate Transactions, Disclosure of Environmental Liabilities, Environmental Due Diligence, environmental insurance / By

The use of reps and warranties insurance (RWI) is becoming an increasingly popular risk allocation tool in corporate transactions. According to trade press reports, the volume of RWI doubled from 2011 to 2012, with the value of the insurance bound last year exceeding $4 billion. RWI covers losses related to breaches or inaccuracies in reps

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Major CMBS Lender Requiring EPs to Perform Site Inspections

Corporate and Real Estate Transactions, Environmental Due Diligence, Lender Liability / By

We have previously discussed discussed here and in other forums how the All Appropriate Inquiries (AAI) Rule issued by EPA in 2005 is deeply flawed and has directly contributed to a worsening in the quality of phase 1 reports. This is ironic outcome since the reason EPA was instructed in the  2002 amendments to CERCLA  to issue

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Environmental Restrictions Now Fully Enforceable by NYC DOB

Corporate and Real Estate Transactions, Environmental Due Diligence, NYC OER / By

In June, the NYC Department of Buildings (DOB) completed uploading into its Buildings Information System (BIS) approximately 200 Restrictive Declarations (RD) that can impose certain environmental obligations relating to hazardous materials. This action means that parties seeking building permits and certificates of occupancy for sites subject to RDs will have to demonstrate they have satisfied

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Kiddie Kollege Ruling Highlights Importance of Performing PAs in NJ Transactions

Corporate and Real Estate Transactions, Environmental Due Diligence, NJ Spill Act / By

Nearly eight years after a New Jersey day care was forced to close down because of mercury contamination, the legal fallout continues.  In the latest legal salvo involving the infamous Kiddie Kollege Daycare & Preschool, Inc, (Kiddie Kollege), a New Jersey trial court ordered the current property owner who leased the contaminated building to the

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Problems Emerge with New CREC Definition

Brownfields, CERCLA, consultant malpractice, Corporate and Real Estate Transactions, Environmental Due Diligence, Lender Liability, vapor intrusion / By

After a little more than six months after ASTM issued its new E1527-13 Phase 1 standard practice, problems are emerging over the new definition Controlled Recognized Environmental Condition (CREC) definition. The difficulties are related to the definition itself and differences among state environmental programs. Before discussing the CREC problems, a little background might be helpful

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Is NYSDEC Already Using the Proposed “New” Definition of Brownfield Site?

Brownfields, Environmental Due Diligence, New York Brownfield Cleanup Program / By

With the tax credits for the New York State Brownfield Cleanup Program (BCP) scheduled to expire at the end of December 2015, the New York State Department of Environmental Conservation (NYSDEC) has been inudated with applications. Indeed, according to informal betting pool among NYSDEC brownfield employees, the agency anticipates receiving 100 applications by July 1st –the

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EPA Recognizes E1527-13 But Preamble Raises Specter of Retroactive LIability For Past Phase 1 Reports that Did Not Assess Vapor Intrusion

Brownfields, CERCLA, common law, consultant malpractice, Corporate and Real Estate Transactions, Environmental Due Diligence, vapor intrusion / By

On December 30th, the  federal Environmental Protection Agency (EPA) published a final rule in the Federal Register  (78 FR 79319) recognizing the new ASTM E1527-13 phase 1 standard practice as an approved method for complying with the All Appropriate Inquires (AAI) rule. As explained below, while the preamble to the final rule is an improvement to

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Bankruptcy Court Finds Kerr-McGee Engaged in Fraudulent Transfer in Tronox Spinoff

bankruptcy, Corporate and Real Estate Transactions, Disclosure of Environmental Liabilities, Environmental Due Diligence / By

[Updated to reflect April 3, 2014 settlement] In what may be one of the most significant cases involving the application of fraudulent conveyance laws and environmental liability, the bankruptcy court for the Southern District of New York held that Kerr-McGee had engaged in a fraudulent transfer when it spun off various assets in 2005 into

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Federal Court Rules Methane Gas Constitutes “Imminent and Substantial Endangerment” Under RCRA 7002

CERCLA, common law, Environmental Due Diligence, Methane Gas, vapor intrusion / By

A federal district court ruled that methane migrating from a closed landfill to a residential development project constitutes an imminent and substantial endangerment under section 7002 of the Resource Conservation and Recovery Act in Marcas, L.L.C. v. Bd. of County Comm’rs,2013 U.S. Dist. LEXIS 104380 (D.Md. 7/25/13).  The court also followed an emerging trend and

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