April 2012

State Appeals Ct Affirms Note Purchaser Cannot Bring Nuisance Action For Contamination

common law, Lender Liability, Underground Storage Tanks /

It is no secret that distressed debt investors are eagerly looking for opportunities to purchase defaulted or underwater loans. One strategy used by investors with a healthy risk appetite is to purchase promissory notes secured by contaminated property at deeply discounted pricing. The investor then brings an RCRA 7002 action seeking an order requiring the […]

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Pipeline Expansion Project May Proceed After Ct Upholds Validity of Easement

Fracking, oil spills /

With the nation is in the middle of building pipeline infrastructure to transport natural gas from fracking operations as well as Canadian oil, I suspect we will see more case like Enbridge Pipelines (Ill.) L.L.C. v. Moore, 633 F.3d 602 (7th Cir. 2011) where landowners argued that a 1939 pipeline easement had expired. Presumably, the

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Appeals Court Reverses Judgment For Seller Who Failed To Disclose Wetlands on Disclosure Form

Disclosure of Environmental Liabilities, wetlands /

We have reviewed several cases where sellers have been held liable for failing to adequately disclose environmental conditions in mandated property condition reports even where the property is sold “as is”. Another example is Wise v. Hays, 943 N.E.2d 835 (Ind. Ct. App. 2011), a state appeals court reversed a grant of summary judgment  in

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Environmental Saga Involves Successor Liability, Bankruptcy and Environmental Justice

bankruptcy, CERCLA, common law, Corporate and Real Estate Transactions, Hazardous Waste /

The most recent decision in Flake v. Schrader-Bridgeport Int’l, Inc., 2011 U.S. Dist. LEXIS 30372  (M.D. Tenn., Mar. 23, 2011) is just another chapter in this long-running environmental saga involving a successor liability, bankruptcy, toxic tort and environmental justice issues along with a piece of American automotive history. This well-traveled case began in a Tennessee county

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Claim For Contaminated Fill Barred By Statute of Limitations

common law, Environmental Due Diligence, Hazardous Waste /

The movement and disposal of fill material from demolition sites tends not to be well-regulated. During the real estate bubble when demand for aggregate was at a premium, unsavory actors in the industry exploited the regulatory gaps. These companies would charge clients to dispose of contaminated fill, pocket the fees and then sell the materials

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Failure To Timely Report Release Raises Triable Issue Sufficient to Preclude Summary Judgment

CERCLA /

Ameripride Services. v. Valley Indus. Services, 2011U.S. Dist. LEXIS 55634 (E.D.Ca. 5/12/11) discussed how delays or failure to comply with CERCLA reporting requirements may impact a claim for contribution or cost recovery. In this case, Texas Eastern Overseas, Inc (TEO) conducted industrial dry cleaning at a facility until 1983 when it sold the property to

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Was It Buyer’s Remorse, Sloppy Drafting or Simply No Meeting of the Minds?

Corporate and Real Estate Transactions /

It is hard to tell if Malcolm Carter Enterprises v. Microsemi Real Estate, Inc., 2011Cal. App. Unpub. LEXIS 3583 (Ct. App.-4th Div 5/12/11) is a case of buyer’s remorse, sloppy drafting or simply the lack of a meeting of the minds. It is surprising that what should have been a fairly straight-forward transaction resulted in

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Court Finds No Successor or Parent Liability For “Indirect” (Grandparent) Corporation

CERCLA, Corporate and Real Estate Transactions /

In Precision Brand Products. v. Downers Grove Sanitary District, 2011 U.S. Dist. LEXIS 88009 (N.D. 8/811), the Illinois Environmental Protection Agency (“IEPA”) detected TCE in private wells  serving a residential community adjacent to the Ellsworth Industrial Park (EIP) in Downers Grove, Ill in 2001. The federal EPA conducted an investigation and issued PRP notices. A

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Connecticut Supreme Court Rejects Use of “Reverse Veil Piercing” In Environmental Enforcement Action

Corporate and Real Estate Transactions /

In the usual veil piercing case, a plaintiff asks a court to disregard a corporate entity so the assets of the owner can be used to satisfy the liability of the entity. However, sometimes the plaintiff seeks to use corporate assets to satisfy the debts of a shareholder under a theory known as “reverse veil-piercing”.

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Minnesota Supreme Court Clarifies Spoliation Rule In Mold Case

Mold /

Can a person faced with environmental conditions posing potential health risks implement remedial measures without running the risk of being sanctioned for destroying evidence? This problem can arise when a consultant destroys soil or groundwater samples but what about a mold case where  the home itself is the evidence? This was the issue addressed in Miller

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