Contaminated Property / Transactions / Mergers & Acquisitions

But, in most cases, there are mechanisms for addressing environmental conditions and fairly and properly allocating cost and liability, including past and present contamination, historic and current non-compliance, known and unknown liabilities, and even threatened or pending lawsuits.

Our in-depth knowledge of contaminated property issues and related state and federal laws and risk-based remediation programs, allows ELC attorneys to quickly evaluate environmental conditions and make sense of technical issues. When our clients buy and sell property or acquire or divest of entire companies, ELC leads the environmental due diligence, working closely with qualified environmental consultants to ensure legally sufficient “all appropriate inquiry” is reflected in Phase I and Phase II Environmental Site Assessments. Where industrial facilities are involved, we also obtain and review all environmental permits and compliance documentation.

When our clients sell property, we manage the compilation, disclosure and explanation of environmental information to the purchaser. In instances where there are extensive environmental reports, we create and oversee virtual document rooms to manage the distribution of environmental data.

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 the legal significance of the Phase I and II findings, review and evaluate environmental permit conditions and compliance, and advise on regulatory initiatives affecting the value of the property or the industry as a whole.

Whether we represent the buyer or the seller, our job is to understand and illuminate the environmental risks and structure solutions to manage them. In some instances, this simply involves price reductions, hold-backs, indemnities and other contractual allocation of costs and liabilities. We may also negotiate the purchase of insurance to address pollution liability or cap potential remediation cost. In other cases, we work closely with opposing counsel to better understand or even resolve environmental 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 also stay involved after the 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 property transactions and mergers and acquisitions includes:

• 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 “live-work-play” community in Midtown Atlanta; Oversight of client’s post-acquisition environmental compliance and environmental elements of financing, insuring, and sale of individual parcels.
• Directed environmental due diligence for Global Fortune 500 company’s successful bid to acquire 50% interest in 13 power plants in six states, including valuation of future impact of California’s new SB1368 and AB32 greenhouse gas legislation on two coal-fired plants, of new Regional Greenhouse Gas Initiative requirements on plants in the Northeast, and of anticipated federal greenhouse gas legislation.
• Advised Global Fortune 500 lender in the initial environmental due diligence for a high-rise construction project 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 a major investor in the redevelopment of a multi-block area of potentially contaminated property in Atlanta, including multiple properties enrolled in the Georgia Brownfield Program.
• Represented not-for-profit residential home for children in negotiations to obtain gasoline company’s remediation of soil contamination linked to up-gradient former gas station, including negotiating scope of work with gasoline company attorneys, working closely with client’s environmental consultant to oversee gasoline company’s clean-up to required terms, and negotiating the neighbor’s payment of client’s consultant and attorney fees.
• Represented purchaser in the acquisition of commercial property in urban area with groundwater contamination and incomplete remediation of benzene contaminated soil, negotiated price reduction for vapor intrusion mitigation and worked with Seller to obtain state “no further action” letter prior to closing.
• Represented joint venture purchaser of large vacant property for residential townhome development where Seller’s documentation included a modeled plume of soil vapor contamination across the property, including negotiation of contractual protections, negotiation of terms of pollution liability insurance, and development of a scope of work to measure and document lower actual soil vapor during development and to construct a soil vapor barrier beneath the townhomes.
• Represented seller in sale of vacant parcel on “brownfield” property subject to deed restrictions limiting soil and groundwater exposure, including negotiation of access agreement for pre-closing geophysical investigation, pollution liability insurance endorsements, and side agreement to Purchase and Sale Agreement addressing environmental limitations on development.
• Represented a lender to a hospital in a loan transaction for construction new on a historically contaminated site in downtown Milwaukee, including working with the hospital’s counsel to negotiate the scope of additional Phase II site investigation and to obtain the Wisconsin Department of Natural Resources’ concurrence in the adequacy of the investigation and agreement to take no further action regarding the property.