We help clients resolve issues related to contaminated property. We work with engineers and other consultants to develop the best approach for attaining cost-effective remediation. We also have great familiarity and work extensively with regulatory authorities, which allows for effective representation regarding investigation, remediation, and closure of a contaminated property. We commonly navigate various regulatory programs of these authorities, including:
- CERCLA/Superfund and its state counterparts
- Voluntary Cleanup and Corrective Action Programs
- Municipal Setting Designation
- Innocent Owner/Operator Programs
- Brownfield Redevelopment and Grant Programs
We regularly advise landowners on the procedures and requirements of the Texas Commission on Environmental Quality Voluntary Cleanup Program and the Innocent Owner/Operator Program and other similar programs in other states. We work with regulatory authorities to fashion timely and cost-effective methods to obtain closure of a site. We are thoroughly familiar with the Texas Risk Reduction Program (TRRP) rules and guidance, and we regularly advise clients on cleanup levels, notice obligations, restrictive covenants, and remediation strategies.
For example, in some instances a buyer of property may close on the purchase of contaminated land and receive a written release of liability from regulatory authorities after cleanup. We also work with both the TCEQ and municipalities to enable use of Municipal Setting Designations to streamline remediation projects involving groundwater contamination. We have assisted numerous clients in obtaining Certificates of Completion and “no further action” letters under these cleanup programs.
Our attorneys also have extensive experience with the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), the federal Superfund law, and its state counterparts. We have represented potentially responsible parties (PRPs) against the United States government and private parties in respect to National Priorities List (NPL) and state Superfund sites. We have also litigated private CERCLA claims involving recovery of remediation costs incurred to clean up contaminated properties.These issues most commonly arise in transactions involving real property, and we structure these transactions to limit and manage liabilities.
Working closely with our Real Estate and Corporate & Transactions practices, we provide a full range of services to clients involved in transactions that have an environmental component. For example, we are commonly called upon to allocate responsibility between a buyer and a seller of real property related to environmental contamination issues. We also commonly represent current and former landowners in disputes related to contamination.
Where environmental concerns are present, our attorneys can also help clients develop strategies to reduce or defray the liability through environmental insurance policies and other risk management tools. By helping our clients quantify the liability, we are able to develop cost-effective strategies for remediation, taking advantage of any available programs, policies and incentives and other cost recovery and funding opportunities.
- Representation of a former landowner in remediation and closure of a former drycleaner site
- Representation of a current landowner in remediation and closure of a contaminated property and settlement with a former owner to pay for it
- Representation of an oil and gas client in resolving its CERCLA/Superfund liabilities across the United States, including resolution of claims brought by regulatory authorities and among other potentially responsible parties
- Representation of a steel manufacturing client as potentially responsible party in the proposed listing of a state Superfund site, including negotiating terms of a TCEQ administrative order regarding remedial investigation and feasibility study
- Representation of client involving site investigation and remediation of pesticide contamination, including advice regarding the Voluntary Cleanup Program; a consent decree to resolve claims for natural resource damages, CERCLA, the Texas Solid Waste Disposal Act; and Texas Risk Reduction Rules
- Representation of a seller of a former manufacturing facility in designing and implementing a customized combination of environmental liability transfer agreements, an environmental trust, and environmental insurance to allow a transaction to proceed with the desired future liability protection for the seller and its affiliates and shareholders
- Representation of a seller of a petroleum refinery with material environmental and closure liabilities, including numerous former spills, several landfills and dump sites in various stages of closure, and several other waste facilities
- Representation of a buyer of two petroleum terminals, involving a negotiated assumption of liability by the buyer and carefully optimized environmental insurance to cost-effectively protect the buyer from both known and unknown environmental liabilities
- Representation of a client in negotiations with the TCEQ to settle claims brought by the agency under the Texas Solid Waste Disposal Act
- Representation of a client regarding its cleanup of groundwater contamination which had migrated off-site to a neighboring property
- Representation of a client in successfully obtaining an innocent owner certificate from TCEQ confirming that it was not responsible for groundwater contamination which migrated onto its property