Larry Schnapf

Minnesota Supreme Court Clarifies Spoliation Rule In Mold Case

Mold / By

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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Court allows Claim To Proceed Against Home Builder For Failing To Disclose Wetlands

Disclosure of Environmental Liabilities, wetlands / By

In Stalvey v. NVR, Inc., 2012 U.S. Dist. LEXIS 2506 (N.D. Ohio 1/09/12), the plaintiffs entered into an Ohio Purchase Agreement with defendant for the construction and purchase of a house. As part of the Agreement, defendant provided plaintiff with a Topographic Survey & Improvement Plan that did not depict the presence of wetlands on

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Wisconsin Appeals Ct Says Corporate Agents May Be Individually Liable for Misstatements in Property Condition Reports

Disclosure of Environmental Liabilities / By

In Ferris v. Location 3 Corp., 804 N.W.2d 822 (Wisc. Ct. App.  2011), the plaintiff Ferris purchased real property located from defendant Location 3 Corporation.3 Sometime after closing, Ferris discovered that the landfill adjacent to his property was also a Superfund4 site. Ferris then filed a complaint against Location 3 and certain employees of firm

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Seller Allows Broker To Draft Environmental Condition and Then Loses Breach of Contract Case

Corporate and Real Estate Transactions, oil spills, Underground Storage Tanks / By

Hager’s of Cohasset, Inc. v. Nelson, 2011Minn. App. Unpub. LEXIS 156 (Minn.Ct. App. Feb. 15, 2011) is yet another lesson from a long line of cases that illustrate the risks of not using counsel for commercial property transactions especially those have problematic environmental issues. In this case, the plaintiff operated a fuel-oil business. In October 2007,

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No Arranger Liability For Migration of Contaminated Groundwater

CERCLA / By

Hobart Corp v Waste Management of Ohio, 2011 U.S. Dist. LEXIS 148224 (S.D.Ohio 2/10/11) is an obscure decision from 2011 but has some complaint drafting lessons. This case started off as a classic CERCLA contribution action for a landfill cleanup. The plaintiff entered into a settlement with EPA to perform an RI/FS and then decides

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GAO Report Discusses Concerns About Pipelines Used For Fracking Operations

Environmental Due Diligence, Fracking, oil spills / By

Approximately 2.5 million miles of pipelines transverse the United States carrying hazardous liquids and natural gas from producing wells to end users (residences and businesses). Many of these pipeline networks are aging while others such as natural gas gathering pipelines remain largerly unregulated. Moreover, development has encroached on many of pipelines that were formerly located

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Court Rejects EPA Challenge to State BACT Determination for Coal Power Plant

Air Pollution / By

The Clean Air Act imposes an alphabet soup of emission control technologies on owners and operators of stationary sources. Depending on the regulatory program and air pollutants, a facility may have to comply with BACT, BART, BDT, GACT, LAER, MACT and RACT. While the process of identifying the applicable emission standard is largely a technical

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Court Rules Purchaser of Coal Plant Assets Acquired “Free and Clear” Is Liable For Pre-Closing NSR Violations

Air Pollution, Corporate and Real Estate Transactions, Environmental Due Diligence / By

A federal district court ruled that purchaser of a coal-fired power plant was held liable as a successor for violations of the New Source Review program that had occurred prior to the transaction. The court said the purchaser had expressly assumed the liabilities even though the order of the bankruptcy court approving the sale provided

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Regulatory Re-Interpretation Triggers Contractual Indemnity

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

Historical environmental compliance is critically important in corporate transactions especially when a business or facility may be subject to a regulatory programs that is evolving or subject to re-interpretation such as the New Source Review program. In such cases, the parties will try to contractually allocate the risks. Despite the fact that these agreements are

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Bankruptcy Discharge Bars Claim of Purchaser Agst Former Oil Well Operator

bankruptcy, Environmental Due Diligence, oil spills / By

In Shelton Property Rural Acreage, LLC v Placid Oil Co., 2011 U.S. App. LEXIS 16681 (5th Cir. 8/10/11), Placid Oil operated oil wells on leased property from 1942 to 1956. In 1986, Placid filed a chapter 11 bankruptcy proceeding. The bankruptcy court issued a confirmation order in 1988 that contained a discharge of all claims

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