Real Estate CERCLA, Remediation and Brownfield Redevelopment
For more than 35 years, our attorneys have represented clients in cleanup and litigation proceedings under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund) and state cleanup laws, and in numerous brownfield remediation and redevelopment matters across the country. McKenna Long & Aldridge (MLA) offers clients a wide range of experience and services related to these matters.
We represent clients with widely varying stakes in Superfund and state projects, including:
- Implementing all aspects of site investigation and cleanup;
- Negotiating favorable deals for parties with potentially significant liability;
- Chairing Steering Committees representing large groups of PRPs and negotiating creative settlements;
- Obtaining “de minimis” settlements for parties with insignificant potential liability; and
- Devising and successfully executing offensive and defensive strategies in district court Superfund litigation.
We also represent and advise clients at every phase in the life cycle of a CERCLA or state Superfund case, including:
- Responding to EPA or state information requests;
- Commenting on EPA’s or a state agency’s proposed remedy;
- Mounting challenges to selected remedies;
- Negotiating and complying with judicial orders and administrative consent orders;
- Responding to and complying with unilateral administrative orders;
- Participating in formal mediation; and
- Litigating private cost recovery and contribution actions in district court.
With MLA’s depth in government contracts law, we frequently represent government contractors in negotiations with EPA and other federal agencies to obtain contribution for CERCLA liability or other remediation costs and to recover remediation costs using their contractual relationship with the federal agencies. Our unique mix of government contracts and environmental experience allows us to quickly gauge the contractual evidence and the strength of potential claims against the U.S. Handling these cases on a regular basis, we can anticipate the government’s litigation positions, settlement strategies, and valuation.
Remediation and Brownfield Redevelopment
Successful remediation and brownfield development requires a careful balance of legal, environmental, and economic insights. MLA attorneys manage a wide variety of disciplines involved in any remediation or brownfield project to assure that the right balance is achieved to complete a successful project. We have experience in all areas of redevelopment, and have learned that:
- Transactions in contaminated property are driven by the underlying real estate value,
- Very few environmental problems are unsolvable,
- The best business approach to contaminated property is to treat the environmental issues as one would handle any other contingent liability or unavoidable cost, and
- Smart developers work the risks and cost into the economic evaluation of the deal just as one would for any other future contingent cost.
Our capabilities and experience in remediation and brownfield redevelopment projects includes:
- Private Brownfield Transactions – One of the most common, and often most effective, ways to deal with contaminated property is also one of the oldest: simply allocate the duties and risks associated with the contamination through contractual measures. MLA’s attorneys have wide experience using contractual measures to create wholly private brownfield structures that address the risks of brownfield development.
- Transactions Under Brownfield Statutes and Regulations – During the 1980s and early 1990s, the government realized that the potentially devastating liabilities it had imposed on owners of contaminated properties were having an unanticipated effect: completely innocent developers were avoiding contaminated properties, which were often located in urban areas most in need of redevelopment, and locating instead in the suburban sprawl-zone, areas called “greenfields” to distinguish them from the contaminated “brownfields” located elsewhere. To counter this result, the government began to enact various “brownfield” laws that immunize purchasers of contaminated property against cleanup liabilities. MLA’s attorneys have handled numerous developments under these brownfield statutes.
- Environmental Insurance – Environmental insurance can be one of the most important tools in the risk-reduction arsenal, although the cost and exclusions of environmental insurance may limit its value in many transactions. We have a wealth of experience in the insurance area, enabling us not only to advise clients on when insurance would be (and would not be) a valuable element of a brownfield component, but even in drafting and finding underwriting for the coverage itself.
- On-the-Ground Solutions – One of the most troubling aspects of dealing in contaminated property is the uncertainty in knowing exactly what one is buying into. MLA attorneys have developed a wide range of means to specify and quantify the risks inherent in brownfield properties.
- April 6, 2011
- Creating Value Out of Air: Three-dimensional airspace subdivisions can add value to real estate developments.As real estate developers seek to maximize value by creating or redeveloping urban properties into high-density, mixed-use developments, concerns regarding autonomy of operations for each use, conflicts among the different uses, and financial constraints can arise. Three-dimensional subdivisions—airspace lots or parcels created vertically and horizontally within a building to establish separate legally transferrable lots—is a way of addressing all of these concerns.
- July 13, 2010
- Dissolving Community Redevelopment
- Receivers Maximize Value of Distressed Assets, While Saving Lenders Money
- What Happens When Joint Ventures Come Under Stress?