Environmental

Brownfields projects, including the redevelopment of environmentally blighted industrial sites primarily in urban areas, are at their core real estate transactions. That said, environmental issues are front and center in these projects. Our environmental lawyers bring years of experience to such projects. We help clients identify and deal with liabilities associated with both known and unknown environmental conditions to minimize risks. We understand the myriad of federal (Superfund and RCRA) and state transfer and remediation laws that impact those sites, and help our clients to clean up these sites in concert with redevelopment plans. Available tools include prospective purchaser agreements, covenants not to sue, innocent purchaser "safe harbors" and the like. Other vital tools are insurance products such as pollution legal liability and cost cap policies that, properly selected and negotiated, can effectively minimize risks of toxic tort and other third party actions and cost overruns. We also assist our clients in identifying and taking advantage of Brownfields grant and loan programs that are available from state and federal agencies.

The "Superfund" statute, passed by Congress in 1980, has dramatically affected the business community over the past three decades, as millions of dollars have been applied to address historic disposal and release practices. We have been involved in Superfund actions since the beginning of the program, representing myriad large and small clients in minimizing the liabilities relating to their generator, transporter, or site owner or operator status. Such representations have ranged from Superfund sites involving a half dozen "potentially responsible parties" ("PRPs") to larger sites with hundreds or even thousands of such PRPs. Our experience includes helping PRPs perform remedies, assisting PRPs in obtaining partial or full "cash out" settlements, and pursuing and defending cost recovery and contribution actions.

Given new England's rich manufacturing tradition, many properties and businesses confront the legacy of historic releases of manufacturing processes, such as petroleum, solvents, plating wastes and pesticides. When land or assets change hands, buyers, lenders and sellers must identify and evaluate environmental risks, negotiate appropriate contract terms and comply with applicable laws. Our Environmental Practice Group counsels clients in all aspects of such transactions. We pride ourselves in facilitating transactions through creative solutions that protect our clients from known and unknown liabilities. Often, solutions involve working hand-in-hand, not just with environmental consultants and parties to a transaction, but also agency personnel at various levels to best identify, allocate and manage risks. Our expertise involves the consideration and application of all available tools, including qualification to the maximum extent possible under the regulatory liability "safe harbors" and use of sophisticated risk transfer mechanisms such as cost-cap and pollution legal liability insurance products.

Representative Projects (Brownfields):

• Played lead role in the state's first municipal brownfields project. Our client was able to acquire a blighted property, secure state funding for remediation, and transfer to a neighboring manufacturer, allowing the company to remain and grow in Connecticut. This breakthrough transaction occurred prior to the development of brownfields program. The creative solutions brokered by our attorneys became the basis for our current brownfields laws.

• Represented retail company who is negotiating with a city and a large petroleum company to clean up a former tank farm and convert it to a distribution center.

• Assisted solid waste management authority in transferring environmental remediation liabilities for Brownfield site to an environmental consulting firm backed by a pollution legal liability insurance policy and other securities.

• Assisted large aluminum company in transferring environmental remediation liabilities for brownfield site to an environmental consulting firm. The transaction included both pollution legal liability and cost cap insurance policies to control risks and back the cleanup obligations of the contracted firm.

• Assisted manufacturing firm in selling an industrial site for mixed use retail and residential purposes. The transaction included bond and pollution legal liability insurance policy to guarantee buyer's cleanup obligations.

• Assisted innovative renewable energy generator in acquiring a Brownfields site for redevelopment as a renewable fuel processing and electric generation facility. The purchaser will assume responsibility for executing a Remedial Action plan, however, the potential risks are mitigated by a remediation cost cap insurance policy.

• Represented major aerospace company in addressing environmental liabilities at its former manufacturing facility that it sold to a mixed use commercial and residential developer.

• Assisted municipality in connection with private redevelopment of former industrial site, which included participation in a state Brownfields grant/loan program.

• Represented a major affordable housing developer in connection with multiple projects including purchase and redevelopment of old industrial mill properties.

• Represented Fortune 100 Company in connection with the investigation and remediation of a former ammunition manufacturing facility, which is the largest undeveloped industrial / commercial site in Fairfield County. Activities included negotiating a corrective action consent order with U.S. EPA, obtaining approval of a corrective action management unit (CAMU) and development of final remediation standards.

• Represented Fortune 100 Company in obtaining clean closure and termination of interim status under RCRA at only the second site in Connecticut to achieve this status.

• Represented manufacturing client in Brownfields redevelopment project where our client is remediating PCBs and other pollutants simultaneously with construction of a new shopping center.

Representative Projects (Superfund):

• Represent Fortune 100 company in connection with remedy negotiation and performance issues at a municipal landfill site. The matter has involved multiple settlements, including a de minimis settlement, negotiating an agreement with the U.S. Environmental Protection Agency for mixed funding for the remedy and several Records of Decision.

• Assist aerospace company in connection with Superfund liability at sites in Connecticut, Rhode Island and Colorado.

• Represent metals recycling company in connection with Superfund liability at a Superfund site in North Carolina. The site remediation involves multiple Removal Actions.

• Represent a small manufacturing company in connection with U.S. EPA Remedial Action at its facility in Massachusetts, which was destroyed by an explosion.

• Represented numerous clients in connection with Superfund litigation or settlements, de minimis or otherwise, at Superfund sites in Maine, Massachusetts, Connecticut, Rhode Island, New York, Pennsylvania and New Jersey.

The development of innovative projects producing useful energy from renewable resources, solid waste, fossil fuels, fuel cells, and other energy sources through combined heat and power or other means requires in-depth knowledge and experience in federal and state energy policy and pricing law, in addition to environmental law. Murtha Cullina’s multi-disciplinary team of attorneys advise clients on all facets of such projects and other environmentally significant facilities. Our firm has been involved, in various roles, in nearly every electric generating facility in Connecticut and many in Massachusetts; including hydroelectric generating facilities, base load and peaking fossil fuel fired facilities, and nuclear energy installations. We help clients buy and sell generating assets, assist developers in securing siting and permitting approvals, advise companies on financial restructuring and provide legal support on environmental compliance issues.

Representative Projects:

• Completed environmental due diligence for a private equity fund in connection with the acquisition and transfer of environmental permits for a 520 megawatt (“MW”) gas-fired combined cycle generating facility. Obtained siting approval and assisted with securing the air permit for a 350 MW dual-fuel simple cycle peaking facility.

• Assisted a renewable energy developer in obtaining siting approval and environmental permits for a 30 MW circulating fluidized bed biomass gasification facility.

• Performed environmental due diligence for a private equity fund in connection with a $1.3 billion acquisition of 1,400 MW of hydroelectric, jet-powered, and coal-fired generation facilities.

• Provided legal advice to a merchant power plant developer related to the planning, permitting and construction of the largest merchant power plant in Connecticut, a 792 MW dual-fuel combined cycle generation facility, including obtaining non-attainment New Source Review and Prevention of Significant Deterioration permits and NOx offsets.

• Assisted unregulated utility subsidiary acquire approximately 2,300 MW of fossil fuel-fired generation assets at multiple locations. Obtained siting approvals for an additional 240 MW of peaking generation at two facilities. Continue to assist client with environmental compliance, remediation issues and the development of a 544 MW dual fuel combined cycle facility and additional peak load capacity.

• Represented global power plant developer in connection with the permitting and development of the largest cogeneration facility in Connecticut, a 181 MW coal-fired circulating fluidized bed boiler for the production of electricity and industrial steam. Continue to assist client with operational and environmental compliance issues.

• Helped an Ivy League university with new source air permitting for a 13.5 MW central power plant consisting of three small gas turbine/duct burner units, three peaking gas internal combustion engines and a large boiler. Obtained siting approval for a fuel cell in a combined heat and power application.

• Coordinated project planning, siting and permitting process for four municipal waste combustor facilities, totaling 162 MW.

• Performed environmental due diligence and evaluated permitting requirements on behalf of an international private equity fund in connection with the acquisition of a submerged electric transmission line.

• Assisted a national energy company with environmental permitting issues associated with the acquisition of a 400 MW pulverized coal-fired electric generating facility and a dual fuel-fired 466 MW facility. Developed permit modification strategy to allow facility to comply with new air pollution regulations that required significant modifications to the coal-fired facility.

• Represented numerous clients with the permitting and development of cogeneration facilities ranging in size from 1.2 MW to 270 MW and totaling 423 MW and several distributed generation projects amounting to 22.5 MW of electric output.

Air emissions, stormwater and wastewater discharges, and solid & hazardous waste disposal activities require permits or authorizations under many federal and state laws and regulations. Murtha Cullina's attorneys assist clients that are required to comply with these laws, regulations, permit requirements and the like in all aspects and at all stages of the compliance and enforcement process, at the federal, state and local levels of government, and on behalf of parties against whom compliance or enforcement actions are taken.

Representative Projects:

• Represented large aerospace manufacturer in multi-media (air, water & waste) enforcement action affecting four manufacturing facilities. Developed and negotiated a creative settlement agreement with the regulatory agency involving supplemental environmental projects and compliance audits.

• Represented a large ship repair company in multi-media (water, waste and coastal permitting) enforcement action relating to operations at two coastal facilities. We negotiated a settlement that involved extensive supplemental environmental projects to be carried out over a five to ten year period.

• Frequently represent clients in connection with federal and state agency notices of violation and administrative consent order negotiations.

• Conduct or coordinate confidential regulatory compliance audits for both environmental and worker health and safety issues at manufacturing and other facilities. The environmental audits encompass multimedia issues involving air, water and waste areas.

• Engaging consultants on the client's behalf to provide any protection that might be available under the attorney work product doctrine to enable our clients to be proactive in correcting any non-compliance issues that are detected, and to consider the need to voluntarily self-report violations to avoid or minimize the risk of agency enforcement actions and civil penalties.

• Successfully avoided citizen suits and their accompanying penalties and payment of attorneys fees against clients by negotiating Consent Orders or entering into stipulated judgments with the Connecticut Department of Environmental Protection.

• Successfully negotiated Consent Orders with the Connecticut and Massachusetts Departments of Environmental Protection, as well as other state agencies, that have resulted in significant reductions in civil penalties for various regulatory violations and/or claims for reimbursement of remediation costs to which our clients have been exposed.

• Assisted numerous clients in applying for and obtaining a federally enforceable air permit to limit potential emissions to below the major source threshold (General Permit to Limit Potential to Emit ("GPLPE") to avoid the need for obtaining an individual Title V permit.

• Negotiated Title V air permit for manufacturing facility allowing the use of mobile source standards to calculate air emissions for engines tested at its facility. Assisted same facility with obtaining new source review permits for degreaser and other equipment with conditions that allow the facility to increase its operations.

• Assisted coal-fired cogeneration facility in negotiating new source review and title V air permits and NPDES permits required to operate its facility.

• Negotiated water diversion permits for quarries and construction companies with operations throughout the State.

• Negotiated modifications of new source review permits for lamination lines for a manufacturer of high performance sailcloth.

Property bordering coastal resources, such as tidal waters, tidal wetlands, beaches, dunes and shellfish concentration areas are subject to an additional layer of state and local regulation.  As such resources are sensitive, scarce and highly-valued, development projects in these areas, even very small ones, can be highly controversial, resulting in complicated and drawn out permitting proceedings.

Our lawyers understand the competing interests of those who wish to protect and preserve coastal resources and the owners of waterfront properties who wish to exercise their common law property rights to "wharf out."  We have substantial experience with the agencies charged with regulating uses in coastal areas.  We can help clients secure necessary permits for developing waterfront land and constructing docks, seawalls and related structures.  We can shorten the time and minimize the cost of permitting by identifying project elements that are inconsistent with law or established agency policy.  We have the experience to use the regulatory tools available to overcome arbitrary bureaucratic decisions.

Representative Projects:

• Successfully represented numerous private clients in obtaining permits from the Army Corps and Connecticut Department of Environmental Protection, Office of Long Island Sound Programs ("OLISP") for residential docks.
   
• Successfully represented several clients in contested hearings on permits for residential docks, including one that ws opposed by a well-organized group fighting to keep private docks from being built on the Connecticut River.
   
• Defended private clients from notices of violation from OLISP for unpermitted boardwalks, docks, seawalls and walkways.
   
• Defended private client in suit by the Attorney General filed on behalf of OLSIP seeking penalties for alleged violation of a consent order requiring significant modifications to an existing permitted dock.
   
• Filed petition for declaratory ruling on behalf of a private client challenging OLISP's "policy" that dredging is not allowed for residential docks and obtained ruling from the Commissioner that no such agency policy existed.
   
• Represented Fortune 100 Company in obtaining federal and state permits to dredge coastal waters as part of significant remediation project.

Wastewater treatment facilities, such as sewers and sewage treatment facilities are critical, but often overlooked, elements of municipal infrastructure and commercial and industrial development. Our firm has significant experience with addressing the myriad issues related to these facilities for both public and private clients. On the public side, we help municipalities fight or comply with orders from the Department of Environmental Protection, obtain necessary permits, assist with financing and construction, help formulate revenue programs to pay for projects, and draft regulations for the operation and management of wastewater treatment facilities. For our private clients we negotiate fair terms for connections to and use of sewers and when necessary, seek court relief from unfair benefit assessments, denied access or excessive costs.

Representative Projects:

• Assisted municipality in establishing a Water Pollution Control Authority, drafted sewer regulations and coordinated the acquisition of a privately constructed sewer line, negotiated an intermunicipal agreement for wastewater treatment plant capacity and drafted contracts for the operation and maintenance of the sewer system. Helped the WPCA establish benefit assessments and user charges.

• Served as special counsel to a municipal WPCA and provide legal advice related to establishing capacity fees, updating the facilities plan, and processing applications for connecting to the sewer system.

• Represented a municipal WPCA in arbitration over an intermunicipal agreement and a dispute over the opponents claim to our client’s reserve funds.

• Represented a municipal WPCA in consolidated appeals of the WPCA’s establishment of benefit assessment and connection fees for an expanded sewer system.

• Assisted developers obtain revisions to the State of Connecticut Office of Policy and Management’s State Plan of Conservation and Development to allow the extension of sewers to serve private development projects.

• Negotiated financial assurance agreements with WPCAs on behalf of residential property owners and developers served by community sewerage systems as required to obtain DEP construction and discharge permits.

• Served as bond counsel to several WPCAs to secure Clean Water Funding for sewer expansion projects, and combined sewer separation projects, amounting to over $155 million in financing for these communities.

Water is becoming an increasingly scarce commodity.  Connecticut's Water Diversion Policy Act and pending Streamflow Regulations create significant regulatory hurdles for those whose operations rely on withdrawing more than 50,000 gallons of ground or surface water per day, whether for industrial processes, irrigation of golf courses and crops, or provision of drinking water to customers.  We have assisted clients in all affected sectors to get the water they need in a timely and cost-effective manner.

Representative Projects:

• Industrial Water Users
  • Negotiated a Consent Order to allow continued operation of wells and surface diversions and obtained permits necessary for an industrial client to withdraw ground and surface water at several facilities for sand and gravel operations, concrete plants, and asphalt plants at several locations.
     
• Commercial Nursery
  • Took over lead responsibility for obtaining permit for diversion for existing facilities at commercial nursery necessary for irrigation and expanded permitted operations to provide for significant expansion.
     
• Golf Courses
  • Obtained diversion permits for irrigation of golf courses of various sizes.
     
• Municipal Water Utility
  • Represented municipal water utility in complying with terms of Consent Order concerning both surface and ground water withdrawals, negotiating new Consent Order and obtaining permits for existing and proposed withdrawals.
     
• Private Water Companies
  • Represented private water company in obtaining expansion of wellfield in environmentally sensitive area.
     
  • Represented private water company in successfully negotiating terms of diversion permit for out-of-basin transfer of surface water to another company's system in the face of agency concerns about streamflow issues.

Land development projects, whether residential subdivisions, retail shopping centers or other large-scale development projects, may require a variety of state and federal environmental permits beyond local zoning and wetland approvals.

Army Corps of Engineers wetlands permits and related State Water Quality Certifications are commonly required where projects involve even small quantities of wetland fills.  Construction projects involving more than five acres of soil disturbance require registration for federal/state Construction Stormwater discharge permits.  Sites conducting certain "industrial activities" must obtain federal/state Industrial Stormwater discharge permits.  Projects requiring significant roadway infrastructure improvements or traffic impacts from parking facilities in Connecticut may require State Traffic Commission approvals.

Applications in Connecticut for State Water Quality Certifications in connection with Army Corps wetlands permits and state stormwater registrations will trigger a state Endangered Species Act review, which can complicate and delay permit issuance.

Our lawyers have successfully negotiated clients' applications through these complicated permit processes in contexts ranging from golf courses, highway expansions, residential subdivisions, active adult communities and retail shopping centers.

Representative Projects:

• Statewide Trade Association
  
  • Represented state trade association in Connecticut Department of Environmental Protection proceedings on new General Permit for Discharge of Stormwater Associated with Industrial Activities, successfully negotiating numerous provisions to protect the interests of the organization's constitutents.
     
• Retail Shopping Center
  
  • Obtained Army Corps wetlands permit and state Water Quality Certification involving on-site wetlands fills and off-site mitigation for retail shopping center.
     
• Residential Subdivisions
  
  • Counseled client with locally approved residential subdivision to modify wetlands crossing to successfully avoid Army Corps wetlands jurisdiction and state Endangered Species Act review, avoiding years of delay.
     
  • Negotiated Consent Order in connection with alleged violation of a construction stormwater permit registration by activities which encroached on possible state endangered species habitat.
     
  • Obtained construction stormwater authorization following negotiation of best management practices, conservation easements, and deed restrictions designed to preserve state endangered species habitat.
     
• Highway Expansion
  
  • Obtained Army Corps wetlands permits and state Water Quality certification for wetlands fills with on-site mitigation, conservation easements, and off-site wetlands creation for expansion of State highway for Tribal casino expansion, which included state Endangered Species Act sign-off.
     
  • Successfully defended appeal and suite for temporary injunction on issuance of State Traffic Commission approval for road expansion project.

Murtha Cullina is a leader in the field of land conservation. Our conservation practice involves all aspects of transactions designed to protect property from development, with a focus on sophisticated conservation easement matters. Conservation easements are a flexible tool for extinguishing defined development rights for a property in a manner that allows the property owner to continue to own and use the land subject to the development restrictions. Conservation easement deals can involve the purchase or sale of easement interests, the donation of development rights, or bargain sale scenarios. In donation and bargain sale scenarios, our services include careful tax planning to meet applicable Internal Revenue Service tests (e.g., the "conservation purposes" test) and other requirements such that donors may qualify for significant income tax deductions and reductions in estate and property taxes.

Representative Projects:

• Assisted a client in selling a conservation easement over a 5,300 acre working forest in Connecticut under the auspices of the United States Forest Service Forest Legacy Program.

• Assisted a forest resource company in the purchase of multiple parcels totallying thousands of acres in Massachusetts, and the subsequent sale of conservation easements over most of such parcels to Commonwealth of Massachusetts agencies, water companies and private foundations.

• Represented dozens of property owners in the donation of development rights in the form of conservation easements in exchange for significant tax benefits.

• Represented water companies in numerous transactions involving the purchase of development rights for important lands within their watershed in order to protect vital water supplies.

• Represented private grant-making foundation in negotiating conservation easement terms for easements covering large expanses (hundreds of thousand of acres) of working forest in the northern woods of Vermont, New Hampshire and Maine.

• Assisted a state-wide agricultural conservation organization in numerous conservation easement deals throughout Connecticut on working farmlands, some of which involve funding from the Natural Resource Conservation Service.

• Represented a number of local land trusts in repeat transactions to acquire lands or conservation easements over key properties.

Working closely with the lawyers in our Environmental Department, our trial lawyers regularly defend clients in federal and state court from claims based on environmental harms and noncompliance. We represent businesses, individual landowners, developers and municipal agencies in proceedings involving claims by the federal and state governments, other landowners, and other potentially responsible parties.

Our experience covers the entire range of environmental claims, allowing us to make sense of the alphabet soup of federal statutory claims under RCRA, CERCLA, CWA, etc. in which potential liability can exceed $100 million. Because of the enormous risks involved, we believe that early and effective compliance counseling can avoid costly litigation. When litigation is unavoidable, however, we have the experience to try these cases to a successful conclusion.

For more information, contact:
Gregory A. Sharp in Hartford at (860) 240-6046 or gsharp@murthalaw.com