Environmental Law

Real Estate and Commercial Transactions

Counsel clients who are selling, buying, leasing or financing real property on how to avoid or minimize liability under environmental laws; have handled over 1,500 transactions
Coordinated due diligence and environmental site assessments of real estate on hundreds of projects
Use creative ways to close transactions involving contaminated properties
Assist clients with purchase of environmental liability insurance for over 100 properties

Environmental Remediation and Cost Recovery

Counsel clients performing cleanups under state and federal laws, including the New Jersey Spill Act and the Industrial Site Recovery Act (ISRA), the federal Superfund law, and underground storage tank laws
Help clients to recover, or avoid spending, costs of environmental remediation
Have obtained funds under most federal and state government programs to help clients pay for cleanups, including brownfields funding
Determine if insurance coverage is available to pay for cleanup costs and pursue payment from insurance company

Real Estate Development

Assist clients with commercial, industrial and residential development of contaminated properties, using benefits of recent brownfields laws
Obtain permits to develop in or near freshwater and coastal wetlands, waterfront or coastal areas, streams, flood plains, the Hackensack Meadowlands, the Pinelands and areas subject to riparian claims by the state

Environmental Litigation

Handle disputes over responsibility to clean up environmental contamination
Settled many cases without need for litigation by demonstrating command of key issues to opposing parties
Contest matters between clients and governmental agencies, such as defending against penalty assessments

Operation of Manufacturers and Other Environmentally Sensitive Businesses

Water and air pollution control permits
Management of solid and hazardous waste
Compliance with worker and community right-to-know laws
Occupational Safety and Health Act (OSHA) matters
Extensive experience in gasoline service stations, automotive dealerships, dry cleaners, composting and recycling facilities, and transfer stations

REPRESENTATIVE MATTERS

When Home Depot signed a contract in 2000 to buy land on which to build its first store in the city of Paterson, NJ and help spur economic growth in its Route 20 corridor, no one could have anticipated that seven years would pass before construction would start. Yet shortly after the contract was signed, the seller discovered that it had underestimated environmental problems, which led to financial hardship and an effort by its lender to foreclose. Litigation ensued more than two years ago. 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 is projected to open in June 2008.
The firm successfully negotiated a contract for a client to purchase a former manufacturing facility that had known hazardous substances contamination. Under the contract, the client was obligated to accept the property “as is” and to protect the seller from future cleanup costs. During due diligence, environmental investigation was undertaken in order to better estimate the cost of the cleanup. In order to cap the client’s total exposure for cleanup costs, the firm negotiated on behalf of the client a Guaranteed Cleanup Cost Contract with an environmental consultant. Under that contract, the consultant agreed to cleanup the known environmental liability for no more than $549,640. Any cleanup costs above that amount would be paid for by the consultant. Since the Guaranteed Cleanup Cost Contract only covered known contamination, the firm negotiated an environmental insurance policy with AIG Environmental Insurance Company to protect the client against any future costs associated with unknown contamination at the property that could be discovered at a later time. The policy also covered any third-party claims for property damage or bodily injury, arising on- or off-site, from either known or newly discovered contamination. With these protections in place, the client was pleased to close title to the property.
Cole Schotz represented a client in an $8.5 million acquisition of a manufacturer of precision mechanical components. The firm was instrumental in overcoming significant environmental liability obstacles associated with the acquisition. These obstacles included complex compliance issues and the existence of a multi-million dollar cleanup of the company’s main operating facility. Our client succeeded in acquiring the assets of the business within its strategic time frame. We also succeeded in obtaining the protection of environmental indemnities and cleanup obligations from the seller, guaranteed by its well-known and well-financed parent. 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 which owned a contaminated property on U.S. Route 1. 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 pursuant to which the consultant agreed to complete the remediation of the property for no more than a sum certain, the “guaranteed cleanup cost”. We then approached AIG Environmental Insurance Company and negotiated an environmental insurance policy which included cost cap coverage, pursuant to which the guaranteed cleanup cost serves as the deductible and AIG provides 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 groundwater cleanup had not been completed.
The firm represented a national television network in connection with its local affiliate's application for municipal approvals to locate antennas on the building it occupies. Locating the antennas on the roof of the building, which houses the station's studios and offices, is critical to the station's operations and security. The application faced organized community opposition and required extensive expert testimony in support of our client's position. Following numerous hearings, the municipal zoning board preliminarily denied the application, but provided our client with an opportunity to address issues raised by the opposition. We filed an appeal of the board's preliminary denial 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 of the station's building.
The firm submitted one of the first exemption applications to the New Jersey Department of Environmental Protection under the newly enacted Highlands Water Protection and Planning Act, a law which strictly limits development in the New Jersey Highlands, which includes all or parts of Bergen, Passaic, Morris, Hunterdon, Warren, Somerset and Sussex Counties. The application resulted in one of the first exemptions granted by the DEP under the Highlands Act. The Act was signed into law the month before the exemption was granted, and 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 in civil penalties for the improper maintenance of oil and gas wells and for various violations of state environmental laws. The state of Ohio proceeded to enter a judgment against our client in the New Jersey court system. In lieu of the $5 million penalty, we successfully negotiated a settlement with the state of Ohio Attorney General’s Office and the Ohio Department of Natural Resources that provided for an administrative penalty of $10,000 and a complete Release and Satisfaction of Judgment Liens in Ohio and New Jersey.
On behalf of a large retail client, we successfully negotiated an Agreement to Reimburse for Remediation Costs under the Brownfields and Contaminated Site Remediation Act with the New Jersey Department of Commerce and the New Jersey Department of Environmental Protection. The Agreement provides for the state to reimburse our client for up to 75% of the remediation costs necessary for the redevelopment of a site located in an Urban Enterprise Zone in Newark. The project involved the condemnation by Newark of a large parcel consisting of residential, commercial and industrial properties to allow for the proposed retail development.

EVENTS

Environmental & Risk Management Issues: Doing More with Less, NYCREW Network, April 20, 2010

Publications

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Practice Areas

ATTORNEYS

Case Study

Environmental Law

REPRESENTATIVE MATTERS

EVENTS

Publications