If you know contaminated industrial property would be worth $X clean, what is the proper way to value the contamination?  Maybe it is just the “cost to cure,” but that does not capture any “stigma” that may stay with the property.  And then there is a wrinkle if the property is the subject of an agreement under which specific parties have promised the government that they will perform the clean up.  In that case, any later buyer of the property would have some degree of confidence that the clean up will occur.  Should there be no reduction in value for the contamination in that case?  Should there be some reduction on account of risk?  Should that be like the “stigma” reduction?

The Pennsylvania Commonwealth Court wrestled with these issues last month in Appeal of Harley-Davidson Motor Co., No. 159 C.D. 2013 (Pa. Commw. Ct. Oct. 30, 2013).  (Caution:  If you are reading this blog, you probably have an interest in things environmental.  This is a property tax case.  We categorically deny reading property tax cases for fun, and so should you.  It just happens to be interesting for this purpose.  Prepare your alibi before clicking.)

I consider that case in my November column for the Pennsylvania Law Weekly/Legal Intelligencer.  Read A Case Study in Valuing Contaminated Property, 36 Pa. L. Weekly 1030 (Nov. 19, 2013), by clicking here.

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Photo of David Mandelbaum David Mandelbaum

David G. Mandelbaum represents clients facing problems under environmental laws. He regularly represents clients in lawsuits and also has helped clients achieve satisfactory outcomes through regulatory negotiation or private transactions. A Fellow of the American College of Environmental Lawyers, David teaches Superfund, and…

David G. Mandelbaum represents clients facing problems under environmental laws. He regularly represents clients in lawsuits and also has helped clients achieve satisfactory outcomes through regulatory negotiation or private transactions. A Fellow of the American College of Environmental Lawyers, David teaches Superfund, and Oil and Gas Law in rotation at the Temple University Beasley School of Law as well as an environmental litigation course at Suffolk (Boston) Law School.

Since United States v. Atlas Minerals, the first multi-generator Superfund contribution case to go to trial in 1993, Mr. Mandelbaum has been engaged in matters involving allocation of costs among responsible parties, especially under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).  He has tried large cases and resolved others as lead counsel.  He has written, spoken, and taught extensively on the subject.  More recently he also has been engaged to assist lead counsel from this firm and others:

  • to develop cost allocation methodologies;
  • to craft expert testimony in support of a favored methodology (given a definition of “fairness,” why one methodology better tracks it than another);
  • to develop efficient case management approaches; and to assist private allocation as part of the neutral team.

Concentrations

  • Air, water and waste regulation
  • Superfund and contamination
  • Climate change
  • Oil and gas development
  • Water rights