Environmental Due Diligence

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

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

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 /

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

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

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 /

[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 /

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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2nd Circuit Affirms Dismissal of Negligence Claim Agst Consultant

consultant malpractice, Corporate and Real Estate Transactions, Environmental Due Diligence /

We have previously discussed Ridge Seneca Plaza, LLC v. BP Prods. North America, No. 6:06-cv-06333 (W.D.N.Y. 3/28/11) where the federal district case from the western district of New York ruled that a purchaser could not bring a malpractice claim against a consultant who had been retained by a bank. . We picked this case because it

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CMBS Special Servicer May Not Recover VI Test Costs Under Environmental Indemnity

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

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

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NYC OER To Issue Environmental Review and Assessment (ERA) letters

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

One of the key challenges facing purchasers of contaminated property is that the Bona Fide Prospective Purchaser, Contiguous Property Owner and Innocent Purchaser liability protections that are available under the federal Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund) and similar state laws are self implementing. While EPA may occasionally enter into a

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New York’s Quirky Rules for Heating Oil Storage Tanks

Corporate and Real Estate Transactions, Environmental Due Diligence, Navigation Law, oil spills, Underground Storage Tanks /

Storage tanks used for the storage of heating oil for on-site consumptive use are excluded from federal underground storage tank (UST) program.  However, a number states including New York regulate heating oil tanks. There are approximately 3 million residential heating oil tanks in New York State. While home heating oil tanks for single family homes

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Should Consultants Use ASTM E1527-13 Prior to EPA Recognition?

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

On November 6th, ASTM announced that it has published its E1527-13 Phase 1 Standard for Environmental Site Assessments. Upon publication of a new ASTM standard, the prior version becomes obsolete. In a normal transition, environmental consultants would transition to using the new E1527 version like they did with the E1527-94, E1527-97 and E1527-00. However, this is not

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NYSDEC Adds New Categories of Sites To Database To Chagrin of Some Property Owners

Corporate and Real Estate Transactions, Disclosure of Environmental Liabilities, Environmental Due Diligence, Hazardous Waste, New York Brownfield Cleanup Program, oil spills /

The New York State Department of Environmental Conservation (NYSDEC) recently announced that it had added approximately 1,950 sites to its Environmental Site Remediation Database Search database of sites that are subject to one of the agency’s remedial programs. The  NYSDEC said it was adding these additional sites to facilitate real estate transactions and address the

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