Air Pollution – Soil Vapor Intrusion
Environmental Law Video
Lawyer & Attorney ReferralsNo Violations / Compliance With Laws
Posted By James J. Periconi, Esq. on April 1, 2008
A typical provision states: “Except as set forth in schedule x.x and except for violations which would not have a Material Adverse Effect, seller is not and has not been in violation of any Environmental Requirements.
1. Buyer or lender may want to add a provisions reaching behind the claimed absence of violation: “Except as set forth in schedule x.x, there are no bases or grounds for any action with respect to seller relating to, or arising under any Environmental Requirements [which, individually or in the aggregate would have a Material Adverse Effect].
2. The major risk for a buyer relying on this representation is that remediation could be required because of soil or groundwater contamination even when the property owner is not considered to be in violation of the law. The property owner may not be in violation until he or she fails to comply with a remediation order. Allied Princess Bay Co. No. 2 v. Atochem North American, Inc., 855 F.Supp. 595 (E.D.N.Y. 1993); Channel Master Satellite Sys., Inc. v. JFD Electronics Corp., 702 F.Supp. 1229 (E.D.N.C. 1988).
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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