Environmental due diligence is a key first step in most transactions leading to site development or brownfield redevelopment projects. Prospective purchasers need to understand from the outset whether contamination is present and how it may be addressed, and if the presence of sensitive environmental resources will constrain site development. On the other side of the transaction, sellers will want to develop strategies to minimize any long-term environmental responsibilities in connection with properties they are divesting. Where lenders are involved, they will also want to understand how site conditions may affect their collateral or their borrower's ability to repay its loan.
MGKF attorneys, with the assistance of our in-house technical staff, routinely develop and execute environmental due diligence strategies and negotiate and draft provisions of transactional documents addressing environmental due diligence rights and obligations and allocating environmental liabilities among the parties to transactions where brownfield redevelopment or site development is the ultimate goal. When it comes to brownfield or other site development transactions, in addition to the standard environmental due diligence activities critical to any real estate or corporate transaction, our experience extends to the following tasks that are frequently essential to the purchase, sale, and financing of these properties:
Brownfields Due Diligence Tasks
- Assisting the client in identifying and retaining an environmental consultant to perform due diligence investigations of the property to identify areas that may be affected by releases of hazardous substances and delineate the extent of any identified contamination.
- Reviewing investigation plans and reports for consistency with applicable regulatory standards for conducting environmental due diligence, including the federal "all appropriate inquiry" rule and comparable state requirements to qualify the client for applicable legal defenses.
- Where contamination requiring remediation is identified, assisting in evaluating the feasibility of remediating the property to standards appropriate to the future use of the site that secure protection from future clean-up liability to the government and third parties.
- Where hazardous substances, such as asbestos or lead paint, are identified in buildings on the property, or vapor intrusion from underground contamination may affect building occupants, advising the client as to the effect of those conditions on future building use, rehabilitation, or demolition.
- Counseling the client regarding cost-effective remedial strategies available under various state and federal brownfields programs and how such strategies may be integrated within the plans and specifications for development of the property.
- Negotiating appropriate agreements with government agencies (e.g., Buyer-Seller and prospective purchaser agreements) to provide prospective liability relief for purchasers and sellers.
- Where the U.S. Environmental Protection Agency ("EPA") has a potential basis to assert jurisdiction over a contaminated site remediation, obtaining a "comfort letter" or other assurance that EPA will either not assert its jurisdiction or will defer to the relevant state environmental agency in overseeing and approving the remediation.
- Advising the client on supplementing standard contractual protections with pollution legal liability and/or remediation cost-cap insurance to protect against unknown environmental conditions, "reopeners" after approval of the remediation work, and remediation cost overruns.
- Identifying and applying for state and federal grants, low-interest loans, or other financial incentives that may be available to underwrite environmental investigation and remediation activities to be conducted by the client.
Other Site Development Due Diligence Tasks
- Identifying sensitive environmental resources such as wetlands, threatened or endangered species, and floodplains that may impact the developability of a property.
- Evaluating the availability of water and sewer capacity for the project.
- Advising clients regarding other environmental compliance issues that may arise such as permitting of air emissions and wastewater or stormwater discharges, and property transfer requirements, where applicable.
- Providing advice concerning financing arrangements, including counseling lenders and purchasers as to lender environmental due diligence activities and requirements, and drafting and negotiating the environmental terms of loan and mortgage documents.
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Examples of representative environmental due diligence matters involving MGKF attorneys, technical staff, and paralegals include the following:
- The firm counseled a major international petrochemical producer in connection with the sale of a plastic resins and polystyrene manufacturing facility in Western Pennsylvania. The client's site was built by the United States government in 1942, and had substantial historic environmental impacts. MGKF oversaw the acquiring corporation's due diligence and negotiated the environmental provisions of the transaction. MGKF also drafted a comprehensive environmental remediation agreement with the Pennsylvania Department of Environmental Protection that was critical to the transaction.
- We assisted a large independent oil refiner in the acquisition of a 950-acre refinery in New Jersey producing in excess of 330,000 barrels per day of gasoline, oils, and other products. MGKF handled all environmental due diligence issues which primarily involved assessing the seller's historic environmental compliance. MGKF also addressed ongoing site remediation issues, the transfer of operating licenses and permits, negotiated consent order responsibility, facilitated compliance with New Jersey's Industrial Site Recovery Act ("ISRA"), and drafted and negotiated all environmental terms of the Purchase Agreement and related documents.
- MGKF advised a global multinational technology and services company (among the largest in the world) in the divestiture of both their consumer electronics and medical supply businesses. MGKF oversaw all environmental due diligence related to the divestiture, negotiated environmental provisions in various agreements facilitating the divestiture and ensured that property indemnity of the client was in place to minimize ongoing liability.
- The firm represented a private real estate equity firm in its $1.65 billion acquisition of a major nationwide retail chain consisting of 250 stores and distribution facility locations throughout the country. MGKF managed all pre-acquisition environmental due diligence activities for more than 23 million square feet of real estate in multiple states. Many of the retail locations were impacted from either the presence of historic underground storage tanks or were impacted by releases from dry cleaning operations.
- MGKF is involved in an ongoing representation of a national retail chain in hundreds of sale-leaseback transactions throughout the country, many of which involve former gas stations. MGKF manages all environmental due diligence in these transactions, drafts and negotiates environmental and indemnification terms in the sale-leaseback agreements, and ensures compliance with all applicable state property transfer and notification statutes.
- MGKF’s Jonathan Spergel Panelist for “Environmental Sustainability: Planning for Smart Growth” at the 2018 Pennsylvania Brownfields ConferenceOctober 15, 2018
- January 2, 2018Protecting PRP Interests in Contribution and Cost Recovery Process
- MGKF’s Spergel and Franey Presented “Building on Contaminated Land” at the 2017 PBI Real Estate InstituteDecember 18, 2017
- MGKF’s Bender and Moshang Presented “Emerging Issues in Environmental Law: Impacting Real Estate Acquisition, Development and Ownership”August 15, 2017
- May 25, 2017
- March 31, 2017
- Schiller Moderates ABA Webinar “An Update on Arranger Liability Under CERCLA: Recent Cases and the Impact of Pakootas”November 28, 2016
- April 26, 2016
- April 14 and May 3, 20162016 Temple Real Estate Institute
- December 10, 2015
- Ball Panelist for “The Future of Environmental Due Diligence & Risk Management” for RE3 Conference 2015September 17, 2015
- Campbell Provides the Litigation Perspective on Vapor Intrusion as Part of the “EPA Vapor Intrusion Guidance: Analysis and Application”August 17, 2015A Webcast for the American Law Institute
- April 6, 2015
- December 11, 2014
- MGKF Presented "Practical Considerations for Buying and Selling Contaminated Property" at the DELVACCA Real Estate InstituteNovember 6, 2014
- MGKF's Jonathan Spergel and Michael Gross Guest Speakers at 2013 PA Brownfields Conference on December 11November 19, 2013“The Real Estate Hibernation Has Ended—What Developers Need to Know About Key Environmental Regulatory Changes in the Post-Recession Economy”
- MGKF Attorneys Joseph Manko and Bryan Franey will present at the PBI Real Estate Institute on December 5thNovember 18, 2013
- October 28, 2013
- September 18, 2013
- February 15, 2012
- Bruce S. Katcher and Jonathan E. Rinde, Partners of Manko, Gold, Katcher & Fox, LLP, to Speak at Brownfields 2011March 8, 2011
- Jonathan Spergel, Partner with Manko, Gold, Katcher & Fox, LLP, Spoke at 15th Annual Business of Brownfields ConferenceApril 27, 2010
- Michael C. Gross of Manko, Gold, Katcher & Fox, LLP to Speak on Environmental Due Diligence and Environmental PermittingFebruary 11, 2009
Seminars & Speaking Engagements
- February 27, 2018
- January 9, 2018Protecting PRP Interests in Contribution and Cost Recovery Process
- June 6, 2017a Strafford live webinar: 1:00 - 2:30 p.m. EDT
- February 1, 2017
- December 14, 2016An American Bar Association Webinar
- November 15, 2016New Act 2 Standards and Their Impact on Cleanups and the Management of Fill
- September 9, 2015CO-HOSTED BY MANKO, GOLD, KATCHER & FOX AND BL COMPANIES
- Act 2 Today and Tomorrow: Current Challenges and Opportunities for the Act 2 Program in the Coming YearsMay 15, 2015PA Brownfields Conference 2015
- January 21, 2015A Strafford CLE webinar program
- September 9, 2014Co-Hosted by Manko, Gold, Katcher & Fox and BL Companies
- February 10, 2014
- The Real Estate Hibernation Has Ended--What Developers Need to Know About Key Environmental Regulatory Changes in the Post-Recession EconomyDecember 11, 2013for the 2013 PA Brownfields Conference
- December 5, 2013Pennsylvania Bar Institute's 17th Annual Real Estate Institute
- September 18, 2013
- May 15, 2013
- MGKF to Participate in Webinar on Vapor Intrusion: Legal Concerns, Risk Management and Scientific Factors for Attorneys and Their ClientsMay 13, 2013
- March 7, 2013 (Philadelphia); April 22, 2013 (Pittsburgh)
- February 25, 2011
- February 15, 2011
- "Environmental Due Diligence" and "Environmental Permitting" at the Zoning, Subdivision and Land Development Law SeminarMarch 5, 2009
- "Environmental Due Diligence in Real Estate Transactions" at the Real Estate Purchase and Sale Transactions SeminarJuly 22, 2008
- October 1, 2013Pennsylvania State ChapterPublished by Matthew Bender
- January 14, 2019
- November 29, 2018
- January 23, 2017
- January 22, 2017
- January 22, 2017
- June 23, 2016Critiques NJDEP Delay in Ranking of Hazardous Discharge Sites
- February 15, 2016
- January 25, 2016
- August 18, 2015
- January 3, 2014
- EPA Elevates Significance of Vapor Intrusion at Contaminated Sites: Comment Period on New EPA Guidance Now OpenApril 12, 2011
- July 14, 2010
- Comprehensive EPA Lead Paint Rule to Take Effect in April: New Requirements for Broad Range of Renovation ActivitiesMarch 29, 2010
- December 29, 2008
- February 6, 2007
- November 21, 2018New Jersey Law Journal
- New Jersey Appellate Division Ruling Expands the List of Potential Owners Eligible for Innocent Party Grants under the Brownfield ActSeptember 28, 2017MGKF Litigation Blog
- July 27, 2017The Legal Intelligencer - Environmental & Energy Supplement
- Second Circuit Upholds Principle that Passive Sandwich Lessee is Neither an "Owner" nor an "Operator" under CERCLAMay 18, 2017MGKF Litigation Blog
- New Jersey Appellate Division Applies Equitable Principles in Allocating Investigation Costs Between Neighboring PRPsMarch 10, 2017MGKF Litigation Blog
- Prior Property Owner Fails to Escape New Jersey Environmental Suit Because of Ambiguity in the Purchase and Sales Agreement of a Contaminated PropertyDecember 21, 2016MGKF Litigation Blog
- Pennsylvania District Court Addresses Several Key Issues in Litigation of CERCLA Contribution Claims & Allocation of Response CostsApril 22, 2016ABA Section of Environment, Energy and ResourcesSuperfund and Natural Resource Damages Litigation Committee Regional Update
- July 10, 2015The Legal Intelligencer
- March 13, 2015The Legal Intelligencer
- July 11, 2014The Legal Intelligencer
- March 19, 2013The Legal Intelligencer
- December 19, 2012The Legal Intelligencer
- July 16, 2012Association of Corporate Counsel's "Green-house Counsel"
- November 1, 2011Association of Corporate Counsel's "Green-house Counsel"
- September 11, 2011Mid Atlantic Real Estate Journal
- December 16, 2010The Legal Intelligencer
- April 5, 2010Association of Corporate Counsel's "Green-house Counsel"