Pete Seeger’s popular song from the 1960s “Where have all the Flowers Gone?” has the haunting recurring lyrics “When will they ever learn”. This song came to mind when we came across another case of a bank taking title to contaminated property without doing any environmental due diligence. In this case, Suburban Bank and Trust […]
The foreclosing lender in Hoang v. California Pacific Bank, 2014 Cal. App. Unpub. LEXIS 5230 (July 23, 2014) made some curious decisions and the result was the bank was ordered to pay damages to the purchaser that exceed the sales price of the property. The irony is that the lender probably complied with the CERCLA
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
Major CMBS Lender Requiring EPs to Perform Site Inspections Read More »
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
Problems Emerge with New CREC Definition Read More »
Earlier this year, we discussed the federal district ruling in Orix Capital Markets, LLC v Cadlerocks Centennial Drive, LLC, 2013 U.S. Dist. LEXIS 48424 (D. Mass. 4/2/13) where a special servicer was allowed to pursue a guarantor despite the presence of an environmental insurance policy and was awarded over $100K in environmental investigation costs. This
CMBS Special Servicer May Not Recover VI Test Costs Under Environmental Indemnity Read More »
The Office of the Comptroller of the Currency (OCC) has been updating its Comptroller’s Handbook to reflect changes to supervisory policy as well as to implement the Dodd–Frank Wall Street Reform and Consumer Protection Act of 2010. The Comptroller’s Handbook is a collection of booklets divided into five handbook series that contain OCC procedures for
More Prominent Role for Environmental Risk Management in Revised OCC Handbook Read More »
We previously discussed the RCRA lawsuit filed by a bank that had foreclosed on a residential property that turned out to be impacted by contamination from an adjacent dry cleaner in Forest Park National Bank v Ditchfield. The bank had alleged that vapors migrating from the contaminated groundwater and soil constituted an imminent and substantial endangerment
Dry Cleaner Settles Foreclosing Lender RCRA Action Read More »
What happens to a remediation escrow account when the funds are deposited in a bank that is subsequently closed and Federal Deposit Insurance Corp (FDIC) is appointed as a receiver? Some of the issues that need to be considered are illustrated in Kuruvilla Edukutharayil v. FDIC, 2013 U.S. Dist. LEXIS 8840 (N.D.Ill. 1/23/13). In this
Ct Allows Environmental Escrow Claim Agst FDIC To Proceed Read More »
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
Ct Allows CERCLA Claim Agst Bank To Proceed In Methane Case Read More »
EPA and some state environmental agencies may occasionally issue “comfort letters” to facilitate a particular brownfield project to assuage concerns of developers or lenders about their potential liability. However, regulators have made it clear that they do not have the resources to review conclusions in phase 1 or phase 2 reports generated during routine real
NYC OER Issuing Comfort Letters To Facilitate Real Estate Transactions Read More »