ALI-ABA Course of Study Commercial Real Estate Defaults ...

92
99 42 USC §§9601(20)E),(F),(G)
Conservation, Lender Liability and Deposit Insurance Protection Act of
1996, 99 which adopted much of the EPA Secured Creditor policy and
minimized potential liability of fiduciaries, 100 who had previously been
unprotected under the statute. 101
(d) In U.S. v. McLamb 102 the court concluded that "the Safe Harbor
Exceptions" applied to a mortgage that acquires the contaminated property
through foreclosure of its mortgage. In Walterville Ind. v. Finance
Authority of Maine 103 the First Circuit concluded that the Secured Creditor
Exception applied to a sale-leaseback financer that held title at the time of
the contamination.
(e) Many states have enacted their own versions of CERCLA,
requiring cleanup of contaminated properties and most of these states have
included lender exemption provisions like the federal statute. 104 Of
special interest, however, are so-called “superliens” enabled by the state
statutes, which allows the state to recoup cleanup costs via a lien placed on
the contaminated property, which lien has priority over all pre-existing
claims, even those of secured creditors. 105 The validity of the superliens
has been upheld by state courts.
4.7.2 Coastal Regulations
4.7.3 Wetlands Issues. Not limited to coastlines, property on bodies of water,
tidal lands, swamps, marshes, etc. Consider possibility that lands
apparently dry most of the year may be saturated during a wet season.
Applicable statutes include Rivers and Harbors Act of 1899, 1033 U.S.C.
§403, Federal Pollution Control Act (Clean Water Act) Pub. L. 92-500, 86
Stat. 816 See 33 C.F.R. 323-330 106 . Delineation errors may be expensive
100 42 USC §§9607(n)
101 See, for example, City of Phoenix v. Garbage Services Co., 816 F. Supp. 564 (Az 1993); see also Monarch
Tile, Inc. v. City of Fiorano, 212 F.3d 1219, 1222 (11th Cir. Ala. 2000), for discussion of effect of statute on Fleet
Factors.
102 5 F3d 69, at 72 (4th Cir 1993).
103 984 F.2d 549 (1st Cir 1993).
104 See, for example, New Jersey and Pennsylvania statutes, N.J.S.A. 58:10-23.11g6 and 35 P.S. §6020103,
respectively.
105 See, for example, New Jersey’s statute at N.J.S.A. 58:10-23.11(f).
106 See U.S. v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985), Bailey v. U.S. Army Corp. Of Engineers, 647
F.Supp. 44 (D.Idaho 1986).
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