All Forum Posts by: Lawrence P. Schnapf

no obligation to remove tank just disclosure for residential properties with heating oil tanks, just disclosure. but seller may have reporting obligations if leak suspected. tank owner would be responsible for cleanup. 

tank could be leaking even if its still contains product. there is an easy paste test to determine if there is water in the tank. if water is in the tank, it could mean there are small holes allowing product to escape.

should always take soil AND groundwater samples unless groundwater is deep (20 feet or more). 

was the 'No leak or environmental damage" based on visual observation or sampling?  there can be overfills and spills that migrate into the soil and groundwater beyond the USTgrave. Is groundwater used?

doesnt California have a residential disclosure law that requires notice of such conditions as LBP, ACM, etc.?

If the asbestos is in good condition, no need to do anything. There is only a risk when the asbestos is damaged or disturbed. If your tenant is not comfortable with this situation, probably best to let them leave. They could intentionally damage the popcorn and then claim they were exposed to asbestos fibers. 

for environmental, you need to decide what is a material risk that will enable you to walk away from the deal. what is the dollar amount and how do you develop that amount.

its this residential property? do you have underground heating oil tank, drinking water well or on-site septic? and what state? 

I represent a number of lenders on environmental issues. if you have solvents migrating off-site, you may not only possibly become a responsible party but also could become subject to toxic tort suit for property damage. your lawyer should advise you on the wisdom of enrolling in the state brownfield or voluntary cleanup program. to maintain liability protection, you need to exercise "appropriate care". doing work pursuant to a state agreement will generally provide you with such protection. you probably wont be able to get insurance coverage for on-site cleanup but might be able to get coverage for off-site claims. I cannot emphasize enough the importance of enrolling in a state program ASAP. 

Until you have an approved cleanup plan, lenders are going to use a worst case scenario for estimate. You really cannot develop a good estimate until the scope of the contamination is fully understood. solvents are very tricky. i have never seen a solvent cleanup that came close to pre-cleanup plan estimates.  

dont rely on the bank. some banks are more sensitive than others about environmental issues. Conn has a disclosure law and you have a right to terminate the agreement if you are not satisfied. while it may not be necessary to remove the tank, the seller should provide evidence that the tank was properly closed. since it was not filled with inert material, it does not sound like it was properly closed (if the tank is not filled, it could collapse later on from rust which could cause a cave-in of soil. 

also need to verify the sampling was done properly. samples collected from the side of the tank are not dispositive. need to confirm that a sample was collected from below the bottom of the tank. also- how shallow is groundwater? if it is within a few feet of the tank, you should request that a groundwater sample be collected.

there are two ways to properly close a tank: remove tank or clean it and fill with inert material. sounds like seller has not fully complied with tank closure requirements.

soil samples should have been collected from beneath the tank as well as the sides. groundwater samples should also have been collected to make sure old spills did not impact groundwater. Fill pipes need to be capped.

assuming sampling is properly completed and shows no impacts, its ok to close in place in lieu of  removal. you can show the closure report to a future buyer.

again-need to make sure the sampling was done in accordance with state protocols. often times, tank companies do not strictly comply with the UST rules-especially if the tank is unregulated because of its size.