Hazardous Substance Releases

It can be challenging to successfully manage an unexpected release of a hazardous substance. Immediate response to evacuate personnel and stabilize the situation comes first. But, if certain conditions exist, it is also imperative to quickly contact local, state and federal emergency response personnel. Failure to make the “immediate” notifications and follow-up reports required under the Emergency Planning and Community Right-to- Know Act (“EPCRA”) can lead to penalties and lawsuits. Companies that follow their environmental management plans – including a Spill Prevention, Control and Counter-Measure Plan (SPCC) — have a game plan and have trained their employees. But it is sometimes difficult to decipher what the regulations require in a given situation. A common difficulty is determining whether the “release” involved a “reportable quantity” of the “hazardous substance.” It is also sometimes difficult to determine if a release has left the property boundary. Our experience in working through these situations with various governmental agencies can be of assistance in making the right decision in a timely manner and properly documenting your response actions.

Historic Contamination

The discovery of historic contamination also raises a number of questions — namely: if, when and what to do? And who must do it? First you need to understand the facts; next you need to consider your legal obligations. Whether the discovery of historic contamination must be reported and remediated is primarily a matter of state law, but in some circumstances it may raise federal RCRA, EPCRA, Clean Water Act, Oil Pollution Prevention Act or even Clean Air Act issues. If no law requires you to address the discovered historic contamination, you may nonetheless want to consider the desirability of addressing the contamination through a voluntary clean-up under the parameters of a state voluntary program. This is a fact-based, liability-based, and cost-based consideration.

Environmental Law Counsel has years of experience guiding clients through the right questions, identifying the legal requirements, and, as necessary or appropriate, assisting clients through reporting, investigating, and remediating contamination in the appropriate program to obtain a “no further action” letter.

Contaminated Property Transactions

The discovery of historic contamination often arises in the context of a transaction. Environmental Law Counsel has broad experience in contaminated property transactions. Our job is to understand and illuminate the environmental risks and structure solutions to manage them. It is important to perform vigorous environmental due diligence to understand the nature, scope, legal context and potential cost of an environmental issue. Too many companies have a Phase I performed, but don’t bother to read it or to make sure they understand the implications of the findings and recommendations.

When our clients acquire a property or company, we ensure there is no stone unturned, no unnecessarily missing documents or interviews, no ambiguous findings or unsupported recommendations. We analyze Phase I and II reports for compliance with industry standards for “all appropriate inquiry” for compliance with CERCLA. But more importantly, we analyze the legal significance of the Phase I and II findings for our client’s potential liability and pocketbook.

We bring the expertise to assist our clients in negotiating price reductions, hold-backs, indemnities and other contractual allocation of costs and liabilities. We may also recommend and negotiate the purchase of insurance to address pollution liability or cap potential remediation cost. In some cases, we work closely with opposing counsel to better understand or even resolve contaminated property issues through meetings with regulators during the due diligence period. Occasionally, we work to obtain No Further Action letters or to otherwise document that a facility has returned to compliance before title changes hands.

Where our client is the purchaser, we may stay involved post-closing to shepherd a contaminated property through a state voluntary clean-up program, to help set-up new environmental compliance procedures, or to file missing reports or non-compliance self-disclosures with the appropriate agencies to minimize on-going exposure.

Representative Matters

Our notable experience in land matters includes the following:

• Assisted manufacturing client in emergency response to the release of pressurized liquid chlorine from a rail-car on its property, including assistance in making immediate notifications and follow-up reports and representation before EPA in a subsequent compliance inquiry .
• Defended manufacturer against state notice of violation and citizen complaint alleging disposal of hazardous waste by virtue of leaching of historic contamination and other violations of a RCRA permit.
• Directed environmental due diligence for Fortune 500 company’s real estate investment arm in multiple acquisitions, including the acquisition of a 138-acre former steel mill brownfield property which had been transformed into an award winning urban “live-work-play” community; Oversight of client’s post-acquisition environmental compliance and environmental elements of financing, insuring, and sale of individual parcels.
• Advised Global Fortune 500 lender in initial environmental due diligence and throughout subsequent deed in lieu transaction, asbestos abatement, building demolition, soil investigation, and remediation on a large property on Chicago’s Gold Coast which is listed as a USEPA CERCLIS site due to the presence of historic thorium contamination.
• Environmental due diligence on behalf of Fortune 500 company financing the redevelopment of a multi-block area of potentially contaminated property in Atlanta, including post-closing soil remediation, ground water investigation and enrollment of multiple properties in the Georgia Brownfield Program.
• Represented sellers, purchasers and lenders in many transactions involving investigation, testing, monitoring and remediation of soil contamination from historic industrial operations, leaking underground storage tanks, and dry cleaners, including obtaining “no further action” letters in various state voluntary clean-up programs and closure of leaking underground storage tank sites.
• Represented a group of clients in rulemakings creating Illinois’ voluntary risk-based clean-up program, known as the Illinois’ Site Remediation Program and the Illinois Tiered Approach to Clean-Up Objectives, including cross examination of expert witnesses, presentation of testimony, and submission of legal and technical comments.
• Prepared comments on behalf of energy company in proceedings to establish state regulations governing hydraulic fracturing.