Presentation is loading. Please wait.

Presentation is loading. Please wait.

PLANNING FOR ENVIRONMENTALLY CHALLENGED PROPERTY © Richard M. Fil, Esq. Robinson & Cole LLP.

Similar presentations


Presentation on theme: "PLANNING FOR ENVIRONMENTALLY CHALLENGED PROPERTY © Richard M. Fil, Esq. Robinson & Cole LLP."— Presentation transcript:

1 PLANNING FOR ENVIRONMENTALLY CHALLENGED PROPERTY © Richard M. Fil, Esq. Robinson & Cole LLP

2 SOURCES OF LIABILITY FOR ENVIRONMENTAL CONDITIONS n CERCLA (a/k/a “Superfund”), 42 U.S.C. Section 9601 et seq. n State cleanup requirements n Common law claims from third parties

3 SOURCES OF LIABILITY FOR REGULATORY NONCOMPLIANCE n Capital expenditures n Fines, penalties, etc., including economic advantage n Primary sources of law: – RCRA, 42 U.S.C. Section 6901 et seq. – Clean Water Act, 33 U.S.C. Section 1251 et seq. – Clean Air Act, 42 U.S.C. Section 7401 et seq.

4 FOUR ESSENTIAL STEPS TO MEET THE CLIENT’S GOALS I. Understand client’s assets and liabilities II. Identify requirements and options for compliance III. Assess options for compliance IV. Create a plan based on the client’s goals

5 I.UNDERSTAND THE CLIENT’S ASSETS AND LIABILITIES n Environmental conditions – On-site conditions – Off-site conditions – Past operations n Compliance

6 DETERMINE THE CONDITION OF THE PROPERTY n Evaluate site history / past uses n Consider retaining environmental counsel and consultants n Maintain ownership / confidentiality of reports n Be aware of reporting obligations that may trigger agency involvement

7 POTENTIAL REPORTING REQUIREMENTS n Significant Environmental Hazards, C.G.S. Section 22a-6u n Spills, C.G.S. Section 22a-451 n Connecticut Transfer Act, C.G.S. Section 22a-134 et seq. n Termination of Operations, P.A n L.E.P. Code of Ethics, RCSA Section 22a-133v-6

8 II.IDENTIFY REQUIREMENTS AND OPTIONS FOR COMPLIANCE n Identify and address cleanup obligations n Consider options for other affected property

9 IDENTIFY CLEANUP OBLIGATIONS n Do the Remediation Standard Regulations (“RSRs”) apply? – Under order? – Subject to the Connecticut Transfer Act? – On the Inventory of Hazardous Waste Sites?

10 CONNECTICUT TRANSFER ACT n Is the site an “establishment” ? n Will there be a “transfer” ?

11 “ESTABLISHMENTS” UNDER THE TRANSFER ACT n Generated over 100 kilograms of hazardous waste in any month since November 1980 n Used for treatment, storage or disposal of hazardous waste generated by another person n Operated at any time since May 1967 as: – Dry cleaner – Furniture stripper – Auto body shop

12 “TRANSFERS” UNDER THE TRANSFER ACT n Include: – Transfers of majority interest in stock – Leases (including all options) for 25 years or more n Do not include: – Transfers to immediate family members – Transfers approved by a Probate Court

13 CONSIDER OPTIONS FOR OTHER AFFECTED PROPERTY n Sell it n Clean it up n Do nothing

14 III.ASSESS OPTIONS FOR COMPLIANCE n Understand requirements and opportunities for cleaning up property n Be aware of alternatives – ELURs – Alternative criteria – Exceptions – Groundwater reclassification

15 PROTECTION FROM ENVIRONMENTAL LIABILITY n Covenant not to sue n Innocent landowner defense n CERCLA fiduciary revisions

16 OPTIONS FOR PROTECTING YOUR CLIENT’S INTERESTS n Covenant not to sue n Potential cost recovery options – Other responsible parties – Insurance – UST funds n Environmental insurance n Favorable contractual provisions

17 IV.CREATE A PLAN BASED ON THE CLIENT’S GOALS n Consider client’s goals for property disposition n How can these goals be realized based on the condition of the property? n Obtain additional information / expertise as needed

18 CAVEATS n Retain environmental counsel when appropriate n Periodically revisit environmental issues and options for compliance n Don’t let the environmental tail wag the planning dog


Download ppt "PLANNING FOR ENVIRONMENTALLY CHALLENGED PROPERTY © Richard M. Fil, Esq. Robinson & Cole LLP."

Similar presentations


Ads by Google