The Environmental Handbook for Property Transfer and Financing

INTRODUCTION. LEGISLATIVE and JUDICIAL BACKGROUND. Introduction. Legislative Background. The Comprehensive Environmental Response, Compensation and Liability Act. Scope of Liability. Imposition of Liability. Title III: Emergency Planning and Community Right-To-Know. The Resource Conservation and Recovery Act. The Clean Water Act. The Clean Air Act. The Toxic Substances Control Act. Judicial Interpretations. Subsequent Purchaser Liability. Lease Liability. Corporate Liability. Lender Liability. State Laws. Common Law Claims. Conclusion. DEFENSES and PROTECTION FROM LIABILITY. Introduction. Statutory Defenses to CERCLA Liability. Third Party Defense. Innocent Purchaser Defense (The "Due Diligence" Test). De Minimis Settlement Alternatives. Covenants Not to Sue. Right to Contribution. Private Actions. Defenses to Other Environmental Regulations. Conclusion. ENVIRONMENTAL SITE ASSESSMENTS. Introduction. Scope of an Environmental Site Assessment. Factors Affecting the Scope of a Site Assessment. Basic Site Assessment Activities-Phase I. Title Search and Review of Documents Related to the Site. Inspection of the Property and Interviews of Site Personnel. Contact Environmental Regulatory Agencies. Follow Up Site Assessment Activities-Phase II. Additional Site Assessment Activities. Site Assessment Report. Contracting for the Site Assessment. Who to Contract for the Assessment. How to Contract for the Assessment. When to Contract for the Assessment. How Much Will the Assessment Cost? UNDERSTANDING the RESULTS of an ENVIRONMENTAL SITE ASSESSMENT. Introduction. Environmental Standards. General. SARA ARARs. Drinking Water Standards. RCRA Hazardous Waste Standards. Water Quality Criteria. New Jersey Trigger Levels. CERCLA Reportable Quantities. Radon Action Level Guidelines. Potential Environmental Liabilities. General. On-Site Contamination. Off-Site Contamination. Environmental Regulatory Violations. Conclusion. STRUCTURING the TRANSACTION: DEALMAKER VS. DEALBREAKER. Introduction. When Environmental Issues Should Be Addressed. Negotiation of the Contract of Sale. General Goals of the Parties. Disclosure of Available Information. Scope of the Environmental Site Assessment. Warranties, Representations, and Indemnifications. Contract Termination Clause. Structuring the Transaction. Creating a Separate Corporate Identity to Take Title. Asset Purchase vs. Stock Purchase. Lease with Option to Purchase. The Escrow Agreements. Alternatives When Potential Environmental Liability is Encountered. Terminate the Transaction. Delay Closing Until Remediation Completed by Seller. Close Transaction with Reduced Purchase Price. Close Transaction with the Buyer Maintaining Private Action Against Seller for Remediation Costs. Close Transaction, with Portion of Purchase Price Funding Escrow Account to Fund Remediation. Conclusion. HYPOTHETICAL CASE STUDIES. Introduction. Case Studies. A Manufacturing Company Applies for a Loan to Expand Facilities. A Corporation Seeks to Acquire a Manufacturing Plant. A Corporation Seeks to Acquire Another Corporation. A Commercial Property Owner Has Tenants That Handle Hazardous Materials. A Developer Seeks to Acquire a Large Farm for Proposed Residential Development. Conclusion. GLOSSARY. APPENDICES. Appendix A: Statute Citations. Appendix B: Environmental Site Assessment Checklist Outline. Appendix C: Chemical-Specific ARARs. Appendix D: Sample Contract Provisions. INDEX.