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Posted By James J. Periconi, Esq. on April 20, 2008
In a sale or loan transaction the most important pre–closing covenant is that the borrower or seller will maintain the property in compliance with all environmental laws and will re–affirm accuracy of the representations and warranties as of the closing date.
Environmental Assessment
As a contingency to the closing, buyer or lender may require the right to conduct an environmental site assessment.
1. Buyer or lender will want the opportunity to conduct environmental site assessment with its own consultant. Seller or borrower will want an opportunity to approve consultant, and/or approve the protocol for the assessment.
2. Other issues to be resolved: who will get to see the final report; who will get to review copies of the draft report; who will get to review the scope of work; how will the cost of the assessment be allocated between the parties; how long will the assessment take; how much time will be allowed to remediate any exceptions; will lender or buyer report any exceptions to DEC; will seller or borrower have any authority over the issue of reporting to DEC or the substance of the report.
About the author
James J. Periconi, Esq.
James Periconi’s practice focuses almost equally on commercial property transaction counseling, on environmental regulatory matters in the U.S. Environmental Protection Agency and the New York State Department of Environmental Conservation (DEC), and on environmental litigation in the federal and state courts. A former Chief of Solid and Hazardous Waste Enforcement for the State DEC and an Assistant New York Attorney General prosecuting civil and criminal environmental cases, he has in private practice since 1989 had substantial experience representing defendants in governmental actions brought for remediation of Superfund and other contaminated sites, and for prosecution and defense of private cost recovery actions for such sites.
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