Brownfields Practice

BCK assists clients in addressing the unique challenges of cleaning up and redeveloping contaminated property.  Environmental assessment, reuse, liability protection and allocation, acquisition cost and deal structure, regulatory compliance and permitting are some of the issues that can complicate a brownfields transaction.  We address these issues within the context of the overall transaction to reach solutions that facilitate the entire redevelopment project. The result is an efficient process that minimizes environmental and regulatory obstacles and a project structured to meet the client’s goals.

The Firm is helping to devise a brownfields redevelopment plan for this site in Pittsfield, MA.

The Firm has in-depth experience addressing environmental issues that arise in real estate and corporate transactions. Our attorneys have experience, among other things, serving as in-house counsel to a real estate developer, special counsel and general counsel to corporate and governmental entities at the center of large brownfields projects, the former Brownfields Coordinator for Massachusetts Department of Environmental Protection and as a local Conservation Commissioner. This experience enhances our understanding of our clients' needs and of the regulatory process, allowing us to successfully develop cost-effective and creative solutions to address our clients’ concerns.

We have assisted developers, businesses, municipalities, quasi-public authorities, environmental consulting firms and non-profit institutions in simple and complex real estate and corporate transactions and in all phases of the transaction, cleanup and redevelopment.  We assist clients in negotiating and drafting purchase and sale agreements, leases and partnership agreements. We counsel clients on liability protection and due diligence; assist with financing, permitting, regulatory compliance, procuring environmental insurance and accessing public financial assistance and liability endpoints.

A representative sampling of our brownfields work includes the following:

• Brownfields Real Estate Development, LLC (“BRD”) purchased a contaminated property for residential redevelopment.   We assisted BRD by negotiating and drafting a Purchase and Sale Agreement, addressing responsibility for the environmental liability and cleanup. During the due diligence process we identified critical environmental regulatory concerns and negotiated the release of a large EPA lien, resolved DEP compliance issues and documented the resolution of these matters in an EPA Settlement Agreement and a DEP Administrative Order of Consent.  In addition, we obtained a Massachusetts Covenant Not to Sue providing liability protection under G.L. c. 21E and an EPA Comfort Letter regarding the resolution of the EPA lien and BRD’s status as an innocent “Bona Fide Prospective Purchaser.”  We  assisted the client in procuring environmental insurance and we are currently assisting with on-going permitting, cleanup and compliance during the redevelopment process;

• The City of Pittsfield had its prime industrial property contaminated by PCBs. The Firm represented the City in a successful mediation which took several years and produced a complex settlement in the form of a Consent Decree. The Consent Decree was approved in the fall of 2000 by a Federal District Court and is worth in excess of 250 million dollars. The Firm also helped to devise and implement an innovative "Brownfields" redevelopment plan for the Pittsfield Economic Development Authority ("PEDA"), which was created to redevelop the remediated property. For more information on the redevelopment, visit the PEDA website and the United States Environmental Protection Agency's website;

• A community which took contaminated property for nonpayment of taxes. The community seeks clean-up from the responsible parties so the property can be redeveloped for beneficial uses. The Firm employed a multi-pronged strategy which resulted in a negotiated settlement that was far quicker and less expensive than litigation and thus helped the community achieve its goals years sooner than would otherwise be the case;
• A large non-profit institution which received a gift of contaminated property in a densely populated area. We helped our client turn what could have been nothing but a liability into a sale for brownfields redevelopment which resulted in a positive financial benefit for our client's core mission;

• A developer purchasing its first brownfields parcels. We guided the developer through the due diligence and acquisition process, assisting the developer in hiring a consultant to conduct the environmental site investigation, addressing the results and negotiating the allocation of liability, drafting the environmental provisions of the purchase and sale agreement, and assisting with the procurement of environmental insurance.  After the closing we provided ongoing support and regulatory guidance during the cleanup process, the lease negotiations and subsequent sale of the property;

• A business that acquired an industrial facility at a former superfund site:  Several years after acquiring the remediated property, the US Environmental Protection Agency discovered additional contamination at the property during a routine inspection.  We advised the client on its potential liability and options for resolving the matter and assisted the client in seeking contribution for the cleanup from the prior owners and responsible parties.  We are in the process of negotiating the terms of a settlement in which the prior owners will contribute to the cost of cleanup; and
• The Firm has drafted numerous bylaws and local regulations designed to provide local governments with the appropriate tools to regulate growth and protect the local environment from development at formerly contaminated sites.

Also visit the Firm's Brownfields Information and Resources.

For more information about the Firm's Brownfields expertise and practice, contact Barbara Landau at (617) 236-4090 or blandau@bck.com.

LOCATIONS
Massachusetts One Gateway Center, Suite 851 Newton, Massachusetts 02458 617.244.9500 (voice) 617.244.9550 (fax) bckboston@bck.com	Vermont P.O. Box 205 Woodstock, VT 05091 802.356.2560 (voice) 802.910.1003 (fax) bckvt@bck.com	Mountain States P.O. Box 1527 411 N. Leadville, Ave., Suite 3 Ketchum, ID 83340 208.727.9734 (voice) 208.727.9735 (fax) bckidaho@bck.com