Cohen & Grigsby’s Environmental Practice Group brings a multi-disciplinary approach to resolving complex environmental issues through our broad experience in the private and governmental sectors. We help our clients to achieve compliance with applicable laws and regulations, to reach desired business outcomes, and to defend them against private party litigation and governmental enforcement actions.
We understand that every enterprise contains risk, and our job is to help clients to manage these risks in a strategic and cost-effective manner. Our Group provides counsel and advice to help our clients maintain their license to operate in whatever enterprise they engage in — commercial, industrial, energy, financial and governmental — in connection with:
- Due diligence for real estate acquisitions and divestments
- M&A, real estate, corporate and financial transactions
- Oil and gas operations
- Local, state, and federal regulatory compliance
- Governmental enforcement actions
- Private party litigation such as nuisance actions, citizen suits and toxic torts
- Brownfields land recycling and other cleanups
- State and federal Superfund remedial actions
- Environmental insurance coverage litigation
Due Diligence, Corporate and Financial Transactions
Environmental risks are often a major consideration in M&A, real estate, corporate and financial transactions. Cohen & Grigsby counsels clients on environmental issues in connection with mergers and acquisitions, property sales, joint ventures, leveraged buyouts and other restructuring, privatizations and financings of projects, leases, and real estate. We have substantial experience with private equity and investment concerns in these transactions and experience in drafting environmental provisions to safeguard our clients from environmental liabilities. In advising clients on corporate transactions, we work with environmental consultants in the performance of environmental audits and assessments and analyze the findings of these studies to help determine and attenuate any potential liability exposure. We also advise on lender liability, fiduciary liability, and officer and director liability. Cohen & Grigsby has counseled manufacturers, institutional lenders, venture capital investors, private equity funds, national and local developers, and other clients on a full range of these issues, including:
- Due diligence in transactional matters
- Environmental risk exposure in real property transactions
- Issues affecting real estate acquisitions, dispositions, sale-leasebacks, foreclosure, and liquidations proceedings
- Liability, indemnification, and risk transference in sales contracts, leases, and other transaction instruments
- Compliance with deed notification and restriction requirements under state and federal laws
- Investigation and remediation obligations of buyers and sellers of contaminated property, including substantial experience with New Jersey’s Industrial Site Recovery Act and Connecticut’s Transfer Act
Oil and Gas Operations
The Energy and Environmental Practice Groups will help energy companies, operators, individuals and service providers to steer through the maze of legal, regulatory, and environmental challenges involved in the oil and gas industry.
- Due diligence – leasing and right-of-way acquisitions
- Local, state and federal regulatory compliance
- Protection of water, air and land resources
- Spill protection and onsite containment
- Permit applications
- Site remediation and restoration
- Groundwater impact claims
- Endangered Species Act assessments
Regulatory Compliance and Permitting
The Environmental Practice Group provides businesses with ongoing compliance counseling regarding the entire range of environmental regulations at the local, state and federal levels. We can assist clients in developing comprehensive compliance programs to proactively address legal, governmental and reputational risks inherent in their commercial or industrial business.
We have represented a variety of industrial, commercial and municipal clients in regulatory, permitting and compliance issues related to air emissions, wastewater management, waste management and disposal, contamination, underground and aboveground storage tanks, wetlands, stream crossings, stormwater management and various aspects of land development and construction activities, including erosion and sedimentation control and sewage facilities planning.
Our attorneys counsel clients cleaning up or purchasing property who seek liability protection under state remediation programs such as Pennsylvania’s Act 2, New Jersey’s Industrial Site Recovery Act and other state and federal brownfields legislation.
The Environmental Practice Team has significant experience regarding compliance with and liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the Resource Conservation and Recovery Act (RCRA), the Toxic Substances Control Act (TSCA), the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), the National Environmental Policy Act (NEPA), the Clean Air Act, the Clean Water Act and comparable state laws. For example, our lawyers provide counseling with respect to:
- Reporting and notice requirements
- Internal compliance programs and compliance assessments
- Preparation for government inspections
- Local, state and federal statutes governing the generation, transportation, treatment, storage and disposal of hazardous waste
- Requirements and recommendations concerning underground storage tanks
- Issuance, renewal and modification of permits and variances concerning solid waste, air emissions and wastewater and stormwater discharges
- State and federal requirements for emergency planning and community right-to-know laws
- Manufacture or use of chemicals and “toxic” materials, including premanufacture and importation notification
- Administrative actions and orders under federal and state law concerning hazardous waste, ambient air emissions and surface water discharges
- Natural gas condemnations, encroachment cases, prudent operator standard and pooling and unitization issues, and various contract and lease disputes
State and Federal Superfund/Remediation Programs
Since 1980, CERCLA, or the federal “Superfund” statute, has provided a mechanism to initiate and pay for the cleanup of hazardous substance spills and abandoned waste disposal sites. This system establishes strict liability of owners and operators, of abandoned waste disposal sites, as well as generators and transporters of the waste found at these sites. The Environmental Practice Team has substantial experience handling matters involving CERCLA, other hazardous substances legislation and environmental incidents such as toxic releases. Our practice includes business counseling aimed at avoiding environmental liabilities and, where necessary, litigation defense aimed at defeating such liabilities, including:
- Implementing environmental and insurance audits
- Defending administrative orders for the investigation, study, stabilization and cleanup of multi-party waste sites
- Advising clients subject to government-ordered cleanups, including issues of cost allocation, settlement terms and selection of remedy
- Counseling clients regarding the impact of bankruptcy on liability for contamination and the right to recover expenses
- Advising clients regarding health-based risk assessments
- Prosecuting and defending suits involving prior owners or operators of facilities where hazardous waste has been found
- Prosecuting and defending suits for cost recovery and contribution
The Environmental Litigation group represents clients in a wide array of dispute resolution forums including mediation, arbitration, litigation and allocation proceedings arising from a broad spectrum of environmental claims. These include governmental claims, public and private nuisance claims, contamination claims, cost recovery and contribution actions, and injunctive and declaratory relief.
C&G lawyers have appeared before numerous Federal District Courts and Circuit Courts of Appeal, Pennsylvania, Ohio, West Virginia, New York, California, and other state trial and appellate courts, the Environmental Appeals Board (final actions of USEPA), the Environmental Hearing Board (final actions of the Pennsylvania Department of Environmental Protection), the Pennsylvania Underground Storage Tank Indemnification Board (final actions of the Underground Storage Tank Indemnification Fund), and comparable forums in other states.
We also counsel businesses regarding insurance coverage disputes over environmental cleanup costs or other liabilities, and we have recovered substantial sums for environmental claims for clients from their historic insurance carriers.
The firm has provided counsel in the following areas, among others:
- Prosecution of coverage for onsite and offsite contamination under general liability insurance policies and, in appropriate cases, environmental impairment or pollution liability insurance policies
- Prosecution, defense, and negotiation of Superfund and state “mini-Superfund” claims involving the disposal of hazardous substances at multi-party waste sites and facilities with historical contamination
- Defense of actions by governmental and private parties for cleanup of hazardous waste disposed of at facilities with ongoing operations
- Groundwater and soil contamination claims
- Nuisance and property damage claims
- Defense of intentional tort and worker compensation suits alleging employee exposure to toxic substances
- Recovery of costs related to asbestos in products and buildings
- Cleanup and disposal of products and materials containing PCBs
- Liability concerning dioxin contamination of soils
- Recoveries for creditor clients in bankruptcy proceedings of debtors with environmental liability
Defending Against Governmental Enforcement Actions
Cohen & Grigsby lawyers have sizable depth of experience and expertise in helping clients defend against all types of governmental enforcement actions at the federal, state and local levels. These range from the simplest Consent Assessments of Civil Penalty for minor alleged permit exceedences to complex multi-party RCRA Corrective Action Orders. The Environmental Practice Team is closely involved at all stages of the proceedings, providing the client with strategic and cost-sensitive advice and services analyzing litigation risk, performing formal and informal discovery, negotiating with the agency and other parties involved, attempting to reach favorable settlement terms, and if necessary, litigating the claim.
Given that most of the firm’s environmental lawyers have multiple decades of experience in the field, many having previously worked for either government or corporations, they are well respected in the Environmental Bar and known for their effectiveness at handling the defense of governmental and third-party actions.
Voluntary and Mandated Cleanups
Cohen & Grigsby’s attorneys are frequently involved in environmental investigations and site assessments, removal and remedial actions, corrective actions, and site environmental closures under state and federal statutes.
Over the last couple of decades, most states have legislated some form of voluntary cleanup program allowing a facility owner to close out environmental issues at the facility and obtain some protection from the state agency, such as liability protection under state environmental statutes or a “No Further Action” Letter. The institution of these state cleanup programs has revolutionized how cleanups are performed across the country, as states have adopted risk-based remediation standards so that cleanups, while remaining protective of human health and the environment, no longer have to be taken all the way back to “pristine” site conditions. Even the United States Environmental Protection Agency (USEPA), in many cases, has agreed in memoranda of agreement with states that cleanups complying with state voluntary cleanup programs will be deemed to comply with federal requirements as well.
Our attorneys also have years of experience working with clients, environmental consultants, and state regulators or their appointees on investigations and cleanups conducted under state transfer statutes, particularly in New Jersey and Connecticut. These statutes require that sellers of industrial property transfer the property in a condition meeting state remediation standards with the state’s sign-off. Often, in order to allow the deal Closing to take place in accordance with the client’s needs, the work entails negotiation of an agreement between the remediator and the state to take the site to closure post-Closing. We have represented both sellers and buyers in these transactions.
Finally, there are times when USEPA or a state agency mandates cleanup of a property by a client. The Environmental Practice Team will first evaluate with the client its potential liability and exposure, and, depending on the outcome of that evaluation, will recommend to the client whether it should defend against the mandate or attempt to negotiate a reasonable consent decree or consent order between the client and the agency.
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