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Table of Contents
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List of Forms by Chapter
- Chapter 1 — Environmental Due Diligence in Commercial Transactions
- Chapter 2 — State and Federal Environmental Liability
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Chapter 3 — Environmental Considerations in Corporate and Real Estate Transactions
- I. [3.1] Introduction
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II. Initial Steps
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III. Context of Contractual Negotiations — Liability Allocation
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IV. [3.10] The Contractual Provisions — Representations, Warranties, and Indemnities
- [3.11] Properties To Be Considered
- [3.12] Time Limitations
- [3.13] Materiality Limitations — Caps and Thresholds
- [3.14] Disclosure Schedules
- [3.15] Definitions
- [3.16] Specific Representations
- [3.17] Permits
- [3.18] No Pending Actions
- [3.19] No Releases on Property
- [3.20] No Other Environmental Conditions
- [3.21] No CERCLA Liens or State Superliens
- [3.22] No Underground Storage Tanks
- [3.23] Property Not Listed on NPL, CERCLIS, SEMS, or Comparable State List
- [3.24] Presence of Asbestos, PCBs, or Mold/Microbial Matter
- [3.25] No Hazardous Substances on the Premises
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V. [3.26] New and Additional Considerations
- New Environmental Issues
- [3.27] Emerging Contaminants
- [3.28] Sediment Contamination
- [3.29] International Environmental Laws
- [3.30] Water Scarcity
- Additional Environmental Matters
- [3.31] Representation and Warranty Insurance
- [3.32] Buildings and Structures
- [3.33] Natural Resource Damages
- [3.34] Workplace Health and Safety
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VI. Appendix — Sample Contract Provisions
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Chapter 4 — Lender Liability Under Environmental Laws for Real Estate and Corporate Transactions
- I. [4.1] Introduction
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II. Avoiding Liability as a Lender Under the Environmental Laws — Secured Creditor Exemptions
- Lender Liability Exemption Under CERCLA
- [4.2] Initial Exemption
- [4.3] Fear of Fleet Factors
- [4.4] USEPA’s Lender Liability Rule
- [4.5] Asset Conservation Act of 1996 — More Security for the Secured Lender
- [4.6] Lenders’ Protection Under the Illinois “Superfund” Law
- [4.7] Limited Secured Creditor Protection Under RCRA
- [4.8] UST Regulation and Lender Liability Protections
- [4.9] Lenders’ Liability for RCRA Citizen Suits
- [4.10] Limits to Lenders’ RCRA Liability Under Illinois Law
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III. [4.11] Protecting Lenders’ Collateral
- [4.12] Due Diligence Before the Investment Decision — All Appropriate Inquiries
- [4.13] Need for Standardization and Protection
- [4.14] ASTM Standard E1527
- [4.15] Congress Protects Prospective Purchasers
- [4.16] USEPA’s “All Appropriate Inquiries” Rule
- [4.17] Protections During the Life of the Loan
- [4.18] Warranties, Covenants, and Continuing Obligations
- [4.19] Indemnities and Guarantees
- [4.20] Insurance
- [4.21] Precautions in the Event of Workout, Default, and Foreclosure
- [4.22] Best Practice — Environmental Risk Program
- [4.23] Cost Recovery — Potential Opportunity or Risk
- [4.24] Contribution Under CERCLA §113(f)
- [4.25] Cost Recovery Under CERCLA §107(a)
- [4.26] Impact on the Illinois Site Remediation Program
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Chapter 5 — Illinois Environmental Forums
- I. [5.1] Overview
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II. [5.2] Who Can Bring Issues Regarding a Transaction to an Illinois Environmental Forum
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III. [5.7] What Are the Types of Issues
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IV. [5.13] Specific Environmental Forums
- [5.14] Illinois Environmental Protection Agency
- [5.15] Permitting
- [5.16] General Permitting
- [5.17] National Pollutant Discharge Elimination System Permitting
- [5.18] Air Permits
- [5.19] Hazardous Waste Treatment, Storage, and Disposal Facility (Resource Conservation and Recovery Act) Permits
- [5.20] Other Permits
- [5.21] Enforcement
- [5.22] Negotiations Regarding Upcoming Regulations
- [5.23] Regulatory Relief Mechanisms
- [5.24] Site Remediation Program
- [5.25] General Agency Regulations
- [5.26] Illinois Pollution Control Board
- [5.27] General Regulations
- [5.28] Enforcement Forum
- [5.29] Appeals from Final Agency Decisions
- [5.30] Variances
- [5.31] Regulatory Proceedings
- [5.32] Other Board Actions
- [5.33] Appeals of Board Decisions
- [5.34] Other State Agencies
- [5.35] Local Environmental Authorities
- [5.36] Illinois Attorney General, State’s Attorney, or Municipal Corporation Counsel
- [5.37] Illinois Courts
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Chapter 6 — Environmental Litigation: From Pollution to Takings, the Endangered Species Act, and Environmental Justice
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Chapter 7 — Brownfield Development: Government Money for Private Development
- I. [7.1] Introduction
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II. Process
- [7.2] Aligning Development with Government Objectives
- [7.3] Public Funding Predicates
- [7.4] The Public Purpose Test
- [7.5] The “But-For” Test
- [7.6] Satisfying Public Funding Predicates
- [7.7] Development Process
- [7.8] Market Demand
- [7.9] Access
- [7.10] Use
- [7.11] Finances
- [7.12] How Government Money Interacts with Development Basics
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III. Government Funds
- [7.13] Sources of Government Funds To Benefit Private Development
- Brownfield-Specific Programs
- [7.14] Brownfield Grants
- [7.15] Federal Law Definition of “Brownfield Site”
- [7.16] Eligible Entity
- [7.17] Brownfield Development
- [7.18] Contact Information
- [7.19] Brownfields Tax Incentive
- [7.20] Illinois Brownfields Initiative
- [7.21] Illinois Definition of “Brownfields Site”
- [7.22] Illinois Brownfield Grant and Loan Programs
- [7.23] Illinois Municipal Brownfields Redevelopment Grant Program
- [7.24] Illinois Brownfields Redevelopment Loan Program
- [7.25] Stipulated Grant/Illinois Brownfields Revolving Loan Fund
- [7.26] Leaking Underground Storage Tank Fund
- [7.27] Brownfields Site Restoration Program
- [7.28] Non-Brownfield-Specific Redevelopment Programs
- [7.29] General Economic Development Incentives
- [7.30] Tax Abatement and Rebate Programs
- [7.31] Tax Increment Financing
- [7.32] Business District Development and Redevelopment
- Real Estate Tax Abatement
- [7.33] Home-Rule Authority
- [7.34] Non-Home-Rule Authority
- [7.35] Historic Preservation Tax Incentives
- [7.36] Historic Building 20-Percent Tax Credit
- [7.37] Non-Historic Building 10-Percent Tax Credit
- [7.38] Contact Information
- [7.39] Low-Income Housing Tax Credits
- [7.40] New Markets Tax Credits
- [7.41] Enterprise Zones
- [7.42] Other Incentives and Economic Resources
- IV. [7.43] Conclusion
- V. [7.44] Quick Reference Guide for Brownfields Cleanup Funding Under the Illinois Revolving Loan Fund
- Chapter 8 — Environmental Issues in the Landlord-Tenant Relationship
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Chapter 9 — Insurance Coverage for Environmental Claims
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I. [9.1] Introduction
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II. [9.4] Policy Defenses
- [9.5] No Occurrence
- [9.6] Intentional Act but Unintentional Damages
- [9.7] Trigger of Coverage
- [9.8] Distinction Between Claims-Made and Occurrence Policies
- Trigger Under Occurrence Policies
- [9.9] Exposure Theory
- [9.10] Triple Trigger Theory
- [9.11] Manifestation Approach
- [9.12] Injury-in-Fact Trigger
- [9.13] Illinois Approach
- [9.14] Insured Breached the Terms and Conditions of the Policy
- [9.15] Duty To Defend Against a Potentially Responsible Party Letter
- [9.16] Claim Is for Equitable Relief, Not Damages
- [9.17] No Claim for Property Damage
- [9.18] CERCLA Response Costs Are Not Damages
- [9.19] CERCLA Response Costs Are Damages
- [9.20] Illinois Law Deems Response Costs To Be Damages
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III. [9.21] Policy Exclusions Barring Environmental Claims
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IV. [9.28] Minimizing the Exposure
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Chapter 10 — Treatment of Environmental Obligations in Bankruptcy
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I. [10.1] Overview of Bankruptcy Process
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II. Knowledge and Notice of Bankruptcy Proceedings
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III. [10.8] Claims
- IV. [10.14] Automatic Stay
- V. [10.15] Abandonment of Contaminated Property
- VI. [10.16] Environmental Cleanup Costs as Administrative Expenses
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VII. Environmental Issues in Bankruptcy-Related Property Purchases
- [10.17] Introduction
- [10.18] Property Contamination Issues
- [10.19] Purchases of Bankruptcy-Related Property
- [10.20] Financial Viability
- [10.21] Notice
- [10.22] Late-Filed Claims
- [10.23] When Does a Claim Arise?
- [10.24] Section 363(f) Transactions
- [10.25] Definition of “Free and Clear” Generally
- [10.26] Definition of “Free and Clear” in Environmental Cases
- [10.27] Definition of “Free and Clear” in Successor Liability Cases
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Chapter 11 — Site Remediation Program
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I. [11.1] Introduction
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II. Entering the Site Remediation Program
- [11.6] Application
- [11.7] Advanced Partial Payment for Services
- [11.8] Site Owner Authorization
- [11.9] Illinois Environmental Protection Agency Review of Application
- [11.10] Appeal of Illinois Environmental Protection Agency Denial of Application
- [11.11] Withdrawal or Termination of the Site Remediation Program Application
- [11.12] Use of Review and Evaluation Licensed Professional Engineer or Geologist
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III. The Site Remediation Program Process
- [11.13] Remedial Activities and Reports
- [11.14] Site Investigation
- Comprehensive Site Investigation
- [11.15] Phase I and Phase II Investigations
- [11.16] Comprehensive Site Investigation Report
- [11.17] Focused Site Investigation
- [11.18] Determination and Implementation of Remediation Objectives
- [11.19] Remediation Objectives Report
- [11.20] Remedial Action Plans
- [11.21] Remediation Action Completion Report
- Illinois Environmental Protection Agency Review of Plans and Reports
- [11.22] Review of a Plan
- [11.23] Disapproval of a Plan or Report
- [11.24] Standards for Review
- Establishment of Alternative Groundwater Standards
- [11.25] Groundwater Management Zones
- [11.26] Soil Management Zones
- [11.27] No Further Remediation Letters
- [11.28] Payment of Fees
- [11.29] Duty To Record No Further Remediation Letter
- [11.30] Voidance of No Further Remediation Letter
- [11.31] Remediation Sites Proposed for Use as Schools
- [11.32] Background of School-Specific Regulations and Statute
- [11.33] Requirements of Subpart H
- [11.34] Brownfield Programs
- [11.35] Brownfields Redevelopment Loan Program
- [11.36] Municipal Brownfields Redevelopment Grant Program
- [11.37] Brownfields Site Restoration Program
- [11.38] Cook County Tax Incentive
- [11.39] Environmental Remediation Tax Credit
- [11.40] Available Resources for Additional Site Remediation Program Guidance
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IV. [11.41] Tiered Approach to Corrective Action Objectives
- [11.42] Tier I Analysis
- [11.43] Remediation Objectives
- [11.44] Remediation Objectives for Noncarcinogenic Chemical Mixtures
- [11.45] Tier II Evaluation
- [11.46] Tier II Groundwater Objectives
- [11.47] Tier III Evaluation
- [11.48] Area Background Method
- [11.49] Institutional Controls
- [11.50] Groundwater Ordinances
- [11.51] Highway Authority Agreements
- [11.52] Engineered Barriers
- [11.53] Building Control Technologies
- [11.54] Environmental Land Use Controls
- [11.55] Available Resources for Additional Tiered Approach to Corrective Action Objectives Guidance
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Chapter 12 — Consultant Privileges and Proving CERCLA Defenses
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Chapter 13 — Environmental Disclosure Requirements: Accounting, SEC, and Sarbanes-Oxley Act Considerations Associated with Environmental Liability and Sustainability
- I. [13.1] Introduction
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II. [13.2] Overview of the SEC Narrative Environmental Disclosure Requirements
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III. [13.9] Additional Requirements Imposed by Sarbanes-Oxley
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IV. Impact of Specific Accounting Standards on Environmental Disclosure Requirements
- [13.15] Overview of Financial Accounting for Environmental Liabilities
- [13.16] Guidance on Estimation of Environmental Contingent Liabilities
- [13.17] Fair Value Accounting — Asset Retirement Obligations: FASB Statement of Financial Accounting Standards No. 143 and FASB Interpretations Nos. 45 and 47
- [13.18] Estimating Fair Value — FASB Statement of Financial Accounting Standards No. 157
- [13.19] Contingent Liabilities Acquired in Business Combinations — FASB Staff Position No. 141(R)-1
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V. Enforcement Under the Securities Exchange Act of 1934 and the Securities Act of 1933
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VI. Sustainability Reporting and Shareholder Proposals
- VII. [13.25] Conclusion
Authors
Environmental Law in Corporate and Real Estate Transactions 2019 Edition
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