Transactional

Superfund.  The federal Superfund statute is infamous for its imposition of liability without regard to fault, known as “strict liability.”  A person who purchases contaminated property may be held liable for millions of dollars of cleanup costs, despite the absence of any evidence or claim that the purchaser did anything to contaminate the property.  We invite you to consult the book, “Brownfields: Redeveloping Environmentally Distressed Properties,” Harold J. Rafson and Robert N. Rafson, eds., McGraw-Hill, 1999, to which Mr. Rosemarin and a colleague contributed several chapters. 

Proper due diligence is essential; a buyer may be able to insulate itself from Superfund liability.  By conducting “All Appropriate Inquiry,” which is detailed at 40 CFR Part 312, we have advised clients on how to obtain “bona fide prospective purchaser” (BFPP) status under the statute.  We offer seminars on this topic and invite you to call us if you are interested in learning more about the issue.  

We have helped numerous clients minimize their environmental exposure, and have extensive experience in negotiating the allocation of environmental liabilities, drafting contract language, drafting loan documents, and most of all, closing the deal.  We steer our clients’ transactions to completion by working with environmental engineers, drafting comprehensive protections and disclosures in the real estate sales contract, and by working with sophisticated insurance brokers.  Our years of experience in this field and our competitive rates uniquely situate us to offer cost-effective sophisticated counsel to clients involved in environmentally sensitive transactions.

NFRs.  When appropriate, we can assist clients with obtaining a No Further Remediation (NFR) letter, as they are known in Illinois.  (Similar documents are referred to as No Further Action letters in other jurisdictions.)  The NFR letter demonstrates that the government has determined that no additional remediation may be necessary.  Consequently, the NFR letter adds a further layer of liability protection, and perhaps of more immediate importance, may be required by the lender.