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Environmental Law

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Companies who buy, sell or conduct business on commercial or industrial property must deal with the environmental considerations inherent in such ventures. The Cole Schotz Environmental Law attorneys have the experience to shepherd clients successfully through a wide range of environmental matters, leveraging our extensive knowledge of the state and federal laws regulating environmental site assessment, remediation and cleanup, as well as the development of contaminated or environmentally sensitive properties.

Real Estate Transactions
We routinely represent clients who are selling, buying, leasing or financing real property, advising them on how to avoid or minimize liability under environmental laws. We also coordinate due diligence and environmental site assessments, and assist clients with the purchase of environmental liability insurance. When necessary, we are adept at finding creative ways to close transactions involving contaminated properties.

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Environmental Law Representative Matters

Shortly after Home Depot signed a contract to buy land for its Paterson, NJ store in 2000, the seller discovered that it had underestimated the property’s environmental problems, which led to financial hardship and an effort by its lender to foreclose.  The Cole Schotz team ended up restructuring the deal from a purchase to a ground lease, which the seller/landlord financed to pay off its creditors.  We put environmental insurance in place to protect Home Depot against environmental risk and the city awarded grants to Home Depot to assist in remediation efforts.  Cole Schotz's multidisciplinary team helped to resolve the environmental issues and the deal proceeded.  Groundbreaking occurred in June 2007, and the store opened in June 2008.

The firm successfully negotiated a contract for a client to purchase a former manufacturing facility that had known contamination. Under the contract, the client was obligated to accept the property “as is” and to protect the seller from future cleanup costs. In order to cap the client’s total exposure, we negotiated a Guaranteed Cleanup Cost Contract with an environmental consultant, under which the consultant agreed to complete the cleanup for under $549,640, and if necessary, cover any cleanup costs above that amount. Since the contract only covered known contamination, we negotiated an environmental insurance policy to protect the client against any costs associated with unknown contamination that might be discovered later and third-party claims for property damage or bodily injury.

Cole Schotz was instrumental in overcoming significant environmental liability obstacles associated with our client’s $8.5 million acquisition of a mechanical components manufacturer. These obstacles included complex compliance issues and a multi-million dollar cleanup of the company’s main operating facility. We succeeded in obtaining the protection of environmental indemnities and cleanup obligations from the seller, enabling our client to acquire the company’s assets within its strategic time frame. In addition, we represented the client as local corporate and real estate counsel and assisted with the negotiation of complex acquisition and financing transaction documents.

The firm represented a client who owned a property with groundwater contamination. In order to convince a major automotive dealer to lease the premises before the cleanup was completed, we negotiated a Guaranteed Cleanup Cost Contract with an environmental consultant, under which the consultant agreed to complete the remediation for a fixed sum. We then negotiated an environmental insurance policy that provided coverage for cleanup cost overruns in the amount of twice the guaranteed cleanup cost. On this basis, the automotive dealer tenant agreed to take possession of the property and start paying substantial rent even though the cleanup had not been completed.  

Our client, a national television network’s local affiliate, had applied for municipal approvals to locate antennas on the roof of the building that housed its studios and offices. The application faced organized community opposition and required extensive expert testimony supporting the fact that the antennas were critical to the station's operations and security. Following numerous hearings, the municipal zoning board preliminarily denied the application. We filed an appeal and entered into negotiations with the opponents, the zoning board and the building owner. On the basis of the record created in the application and subsequent negotiations, we were successful in achieving a settlement that allowed the antennas to be located on the roof.

Cole Schotz submitted an exemption application to the New Jersey Department of Environmental Protection on behalf of a client, and was granted one of the first exemptions under the newly enacted Highlands Water Protection and Planning Act. Signed into law a month before the exemption was granted, the Act strictly limits development in the New Jersey Highlands, including all or part of Bergen, Passaic, Morris, Hunterdon, Warren, Somerset and Sussex counties. Had the Act applied, it would have completely blocked the client’s proposed development.  

One of the firm’s clients had expended considerable cleanup costs for the remediation of a contaminated property in New Jersey. Without resorting to litigation, we notified the client’s past business liability insurance carriers of the claim and negotiated a settlement for a substantial portion of the client’s costs.

The State of Ohio had obtained a Default Judgment against our client in excess of $5 million for the improper maintenance of oil and gas wells and for various violations of state environmental laws. The State of Ohio then proceeded to enter a judgment against our client in the New Jersey court system. In lieu of the $5 million civil penalty, we successfully negotiated a settlement with the Ohio Attorney General’s Office and the Ohio Department of Natural Resources that levied an administrative penalty of only $10,000 and issued Release and Satisfaction of Judgment Liens in both states.

On behalf of a large retail client, we successfully negotiated, with the New Jersey Department of Commerce and the New Jersey Department of Environmental Protection, an Agreement to Reimburse for Remediation Costs under the Brownfields and Contaminated Site Remediation Act. The agreement directed the state to reimburse our client for up to 75% of the remediation costs necessary for a site redevelopment in an Urban Enterprise Zone in Newark. The project involved Newark’s condemnation of a large parcel consisting of residential, commercial and industrial properties to allow for the proposed retail development.

The Environmental and Litigation Departments teamed up to secure more than $6 million in environmental cleanup expenses for three clients.  The clients were required to clean up environmental contamination at their properties arising from their prior operation as a chemical manufacuting plant, a truck stop and a foundry.  The Cole Schotz team used a three-prong approach to reduce the clients' liability for the cleanup.  First, Cole Schotz negotiated a guaranteed cleanup cost contract with an environmental consultant to clean up the properties for a sum certain.  Second, using that contract, Cole Schotz assisted the clients with applying for an environmental insurance policy to cover the risk of cost overruns to clean up the known contamination, the cost to clean up newly discovered contamination and liability for third-party lawsuits for property damage and bodily injury.  Once the cost of the cleanup was fixed and the clients protected with insurance, we pursued the prior owners or operators that caused the contamination at the clients' sites as well as the clients' insurers that provided general liability insurance to have them reimburse our client for cleanup costs.  Cole Schotz was able to obtain favorable settlements that helped the clients defray the cost of the cleanup.

Richard Ericsson was quoted in, "Cole Schotz Adds New Enviro Practice Head"

Law 360 October 11, 2011

Richard J. Ericsson
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EPA Gives New ASTM Standard the Nod in Proposed Rule

Environmental & Energy Law Monitor June 19, 2014

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The New Environmental Due Diligence Standard Saga Continues

Environmental & Energy Law Monitor January 30, 2014

Think Twice Before Throwing Out Those Old Business Records

Environmental & Energy Law Monitor January 6, 2014

Gerard M. Giordano
Not So Fast With the New Environmental Due Diligence Standard

Environmental & Energy Law Monitor November 7, 2013

David P. Steinberger
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