Recommending a Strategy
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Transcript Recommending a Strategy
PLANNING FOR
ENVIRONMENTALLY
CHALLENGED
PROPERTY ©
Richard M. Fil, Esq.
Robinson & Cole LLP
SOURCES OF
LIABILITY FOR
ENVIRONMENTAL
CONDITIONS
CERCLA (a/k/a “Superfund”),
42 U.S.C. Section 9601 et seq.
State cleanup requirements
Common law claims from third
parties
SOURCES OF
LIABILITY FOR
REGULATORY
NONCOMPLIANCE
Capital expenditures
Fines, penalties, etc., including
economic advantage
Primary sources of law:
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–
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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.
FOUR ESSENTIAL
STEPS TO MEET THE
CLIENT’S GOALS
I.
II.
III.
IV.
Understand client’s assets
and liabilities
Identify requirements and
options for compliance
Assess options for
compliance
Create a plan based on the
client’s goals
I.
Environmental conditions
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–
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UNDERSTAND
THE CLIENT’S
ASSETS AND
LIABILITIES
On-site conditions
Off-site conditions
Past operations
Compliance
DETERMINE THE
CONDITION OF THE
PROPERTY
Evaluate site history / past uses
Consider retaining
environmental counsel and
consultants
Maintain ownership /
confidentiality of reports
Be aware of reporting
obligations that may trigger
agency involvement
POTENTIAL
REPORTING
REQUIREMENTS
Significant Environmental
Hazards, C.G.S. Section 22a-6u
Spills, C.G.S. Section 22a-451
Connecticut Transfer Act,
C.G.S. Section 22a-134 et seq.
Termination of Operations, P.A.
99-68
L.E.P. Code of Ethics, RCSA
Section 22a-133v-6
II. IDENTIFY
REQUIREMENTS AND
OPTIONS FOR
COMPLIANCE
Identify and address cleanup
obligations
Consider options for other
affected property
IDENTIFY CLEANUP
OBLIGATIONS
Do the Remediation Standard
Regulations (“RSRs”) apply?
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–
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Under order?
Subject to the Connecticut
Transfer Act?
On the Inventory of Hazardous
Waste Sites?
CONNECTICUT
TRANSFER ACT
Is the site an “establishment” ?
Will there be a “transfer” ?
“ESTABLISHMENTS”
UNDER THE
TRANSFER ACT
Generated over 100 kilograms
of hazardous waste in any
month since November 1980
Used for treatment, storage or
disposal of hazardous waste
generated by another person
Operated at any time since May
1967 as:
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Dry cleaner
Furniture stripper
Auto body shop
“TRANSFERS”
UNDER THE
TRANSFER ACT
Include:
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Transfers of majority interest in
stock
Leases (including all options) for
25 years or more
Do not include:
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Transfers to immediate family
members
Transfers approved by a Probate
Court
CONSIDER OPTIONS
FOR OTHER
AFFECTED
PROPERTY
Sell it
Clean it up
Do nothing
III. ASSESS OPTIONS
FOR COMPLIANCE
Understand requirements and
opportunities for cleaning up
property
Be aware of alternatives
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–
–
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ELURs
Alternative criteria
Exceptions
Groundwater reclassification
PROTECTION FROM
ENVIRONMENTAL
LIABILITY
Covenant not to sue
Innocent landowner defense
CERCLA - 1996 fiduciary
revisions
OPTIONS FOR
PROTECTING YOUR
CLIENT’S INTERESTS
Covenant not to sue
Potential cost recovery options
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–
–
Other responsible parties
Insurance
UST funds
Environmental insurance
Favorable contractual
provisions
IV. CREATE A PLAN
BASED ON THE
CLIENT’S GOALS
Consider client’s goals for
property disposition
How can these goals be realized
based on the condition of the
property?
Obtain additional information /
expertise as needed
CAVEATS
Retain environmental counsel
when appropriate
Periodically revisit
environmental issues and
options for compliance
Don’t let the environmental tail
wag the planning dog