Brownfields

NYS Tax Department Rules on Eligibility of Post-COC Costs for BCP Tax Credits

Brownfields, New York Brownfield Cleanup Program /

During the Great Recession, many brownfield sites in the lost their project financing. In New York, sites that were remediated and received a Certificate of Completion (COC) remain valuable because owners have ten years to develop the sites and claim the lucrative qualified tangible property (QTP) tax credit (explained below). As market conditions have stabilized, […]

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Ct Allows Claim Agst Consultant For Missing Contamination at Lowe’s Site To Proceed

Brownfields, consultant malpractice, Corporate and Real Estate Transactions, Environmental Due Diligence, environmental insurance, oil spills, Underground Storage Tanks /

Some time ago, we discussed the $14MM lawsuit filed by Lowe’s Home Centers  against a consultant. Lowe’s alleged  that the consultant failed to identify all areas that had been contaminated with PCBs and the store opening was delayed because of complications associated with the previously unknown PCB-contaminated soil was improperly disposed. The matter eventually settled Another

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EPA Proposes to Approve E1527-13 As AAI

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

EPA has published a notice in the federal register proposing that the E1527-13 will satisfy the All Appropriate Inquiries. EPA believes (mistakenly in our opinion) the proposed action is non-controversial. However, just in case the agency published a final direct rule and a proposed  rule . If EPA does not receive adverse comments by September

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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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NJ Ct. Vacates NJDEP Denial of Innocent Party Grant

Brownfields, Corporate and Real Estate Transactions, Environmental Due Diligence, NJ Spill Act, vapor intrusion /

During the early years of New Jersey’s remediation program, challenging decisions of the New Jersey Department of Environmental Protection (NJDEP) bordered on Quixotic mission. Times have changed, though, and courts are no longer intimated by NJDEP and we have discussed a number of cases where courts have overruled the agency’s decisions. See dry cleaner case and

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Parties Battle Over Scope of Seller’s Post-Closing VCP Obligations

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

Carroll Co. v. Sherwin-Williams Co., 2013 U.S. Dist. LEXIS 47349 (D.Md. 4/2/13) involved a dispute over the cleanup obligations of a seller. This case illustrates the drawback of having of a seller complete a cleanup after closing. In December 2005, Carroll Company (Carroll) entered into an Asset Purchase Agreement to purchase a chemical blending and

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Ct Allows Environmental Escrow Claim Agst FDIC To Proceed

Brownfields, Corporate and Real Estate Transactions, Lender Liability, Underground Storage Tanks /

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

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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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NYC Developers Need to Anticipate Possible Hazardous Waste Fees

Brownfields, Hazardous Waste, Navigation Law, New York Brownfield Cleanup Program, NYC OER /

Large swaths of New York City contain fill material that may contain constituents such as heavy metals. Other soils may contain VOCs, petroleum and lead paint from demolished buildings. As a result, brownfield projects in New York City can generate large quantities of excavated soil that may have to be managed as hazardous waste. Having

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NYC OER Issuing Comfort Letters To Facilitate Real Estate Transactions

Brownfields, Environmental Due Diligence, Lender Liability, Navigation Law, New York Brownfield Cleanup Program, NYC OER, Underground Storage Tanks, vapor intrusion /

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

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