Murtha Means More

Environmental Law


Contact: Francis A. Di Luna

Contact: Mark R. Sussman

Coastal resource permitting

Property bordering coastal resources, such as tidal waters, tidal wetlands, beaches, dunes and areas of shellfish concentrations are subject to an additional layer of state and local regulation. Such resources are sensitive, scarce and highly-valued, so development projects in these areas, even very small ones, can be highly controversial, resulting in complicated and drawn out permitting procedures. Our lawyers have a deep and sophisticated understanding of the issues related to the competition of interests between desires to protect and preserve coastal resources and individual’s property rights to reasonable use of their waterfront properties. Our lawyers have long-standing relationships with the agencies charged with regulating uses in coastal areas, and can help clients secure necessary permits for developing land and constructing docks, seawalls and related structures in a timely and cost-effective nature by identifying project aspects that are inconsistent with law or policy and minimizing delays and costs associated with incomplete applications.

Energy and Environmental Projects

The Firm advises clients on all facets of energy projects and other environmentally significant facilities, including financing, permitting and developing innovative projects that produce energy from biomass, fuel cells, solar, solid waste, natural gas, oil, coal and other resources through cogeneration, small power production and merchant power plant development. We provide our considerable experience in federal and state energy policy and pricing law, in addition to environmental law, for such projects.

Environmental Permitting

We develop permitting strategies that lead to the cost-effective and timely issuance of permits with which our clients can comply under the many air, water, waste, and land use permits required by federal, state and municipal laws.

Financing Transactions

Our attorneys regularly advise client on the lease, purchase or sale of real property and other assets. The Firm’s extensive transactional experience includes handling various types of sophisticated financings, including asset securitizations, revolving credit and term loans, letters of credit and related reimbursement agreements, interest rate swaps, and taxable and tax-exempt bond issuances. We also negotiate appropriate contractual terms addressing all forms of environmental risks and compliance with applicable laws.

Brownfields Remediation

We assist our clients in planning and overseeing the work of environmental engineers and consultants in investigating and remediating Brownfields under federal and state-based programs. Typically, these efforts involve considerable strategizing concerning the breadth of work necessary to meet applicable cleanup standards and other remediation guidance.

Liability and Risk Management

We help clients assess and manage environmental risks under environmental laws, such as the federal "Superfund" and similar state laws that enable the assertion of claims against waste generators, transporters and site owners. We provide the sophisticated guidance, assistance and defense required to comply with laws, regulations, permit requirements and the like in all aspects and at all stages of compliance and enforcement processes.

Land Development

We represent developers of land in sensitive areas, such as wetlands and the coastal zone, at all stages of the development process, from planning to permitting, the public participating process, and administrative and judicial proceedings.

Land and Natural Resource Conservation

Our environmental and estate planning attorneys often collaborate to counsel business owners, municipalities, charitable organizations and property owners on all aspects of the preservation of open space, forest and agricultural lands. Often, owners’ goals include securing income and estate tax benefits.

Litigation and Alternative Dispute Resolution

Complex environmental litigation is sometimes required to manage and resolve "Superfund" and other waste liability matters and to adjudicate regulatory compliance issues. Our attorneys have litigated all types of environmental controversies, including government enforcement actions, federal and state citizen suits, toxic torts, private cost recovery actions, environmental insurance claims and challenges to environmental permits and approvals.

Any transaction involving the transfer of real estate, stock or business assets has the potential to trigger significant environmental liability issues.  Our environmental lawyers bring years of experience to such projects. We help clients identify and address liabilities associated with both known and unknown environmental conditions to minimize risks and maximize options.  We understand the different and frequently overlapping federal (Superfund and RCRA) and state transfer and remediation laws that impact those sites, and help our clients to clean up these sites in concert with redevelopment plans. Available tools include prospective purchaser agreements, covenants not to sue, innocent purchaser "safe harbors" and Environmental Land Use Restrictions.  Other vital tools are insurance products such as pollution legal liability and cost cap policies that, properly selected and negotiated, can effectively minimize risks of toxic tort and other third party actions and cost overruns. We also assist our clients in identifying and taking advantage of Brownfields grant and loan programs that are available from state and federal agencies.

The "Superfund" statute, passed by Congress in 1980, has dramatically affected the business community over the past three decades, as millions of dollars have been applied to address historic disposal and release practices. We have been involved in Superfund actions since the beginning of the program, representing myriad large and small clients in minimizing the liabilities relating to their generator, transporter, or site owner or operator status. Such representations have ranged from Superfund sites involving a half dozen "potentially responsible parties" ("PRPs") to larger sites with hundreds or even thousands of such PRPs. Our experience includes helping PRPs perform remedies, assisting PRPs in obtaining partial or full "cash out" settlements, and pursuing and defending cost recovery and contribution actions.

Given New England's rich manufacturing tradition, many properties and businesses confront the legacy of historic releases of manufacturing processes, such as petroleum, solvents, plating wastes and pesticides. When land or assets change hands, buyers, lenders and sellers must identify and evaluate environmental risks, negotiate appropriate contract terms and comply with applicable laws. Our Environmental Practice Group counsels clients in all aspects of such transactions. We pride ourselves in facilitating transactions through creative solutions that protect our clients from known and unknown liabilities. Often, solutions involve working hand-in-hand, not just with environmental consultants and parties to a transaction, but also agency personnel at various levels to best identify, allocate and manage risks. Our expertise involves the consideration and application of all available tools, including qualification to the maximum extent possible under the regulatory liability "safe harbors" and use of sophisticated risk transfer mechanisms such as cost-cap and pollution legal liability insurance products.

Representative Projects (Brownfields):

  • Played lead role in the state's first municipal brownfields project. Our client was able to acquire a blighted property, secure state funding for remediation, and transfer to a neighboring manufacturer, allowing the company to remain and grow in Connecticut. This breakthrough transaction occurred prior to the development of brownfields program. The creative solutions brokered by our attorneys became the basis for our current brownfields laws.
  • Represented Fortune 100 company in obtaining clean closure, termination of interim status under RCRA, and final cleanup under the Transfer Act.  This is only the second site in Connecticut to achieve final approval allowing the site to exit the RCRA regulatory program.
  • Represented retail company who is negotiating with a city and a large petroleum company to clean up a former tank farm and convert it to a distribution center. 
  • Assisted solid waste management authority in transferring environmental remediation liabilities for Brownfield site to an environmental consulting firm backed by a pollution legal liability insurance policy and other securities.   The Site is being remediated under Connecticut's Property Transfer Act.
  • Assisted large aluminum company in transferring environmental remediation liabilities for brownfield site to an environmental consulting firm. The transaction included both pollution legal liability and cost cap insurance policies to control risks and back the cleanup obligations of the contracted firm.
  • Represented the past owner/operator of a manufacturing facility that was sold for redevelopment as a shopping center.  As part of the transaction, we negotiated an agreement with the developer pursuant to which our client accepted responsibility under the Transfer Act for remediating the property in compliance with remediation standards and TSCA PCB requirements in conjunction with the redevelopment process.  To minimize remediation costs, we obtained state and federal approval for the on-site reuse of PCB contaminated materials.
  • Assisted innovative renewable energy generator in acquiring a Brownfields site for redevelopment as a renewable fuel processing and electric generation facility. The purchaser will assume responsibility for executing a Remedial Action plan, however, the potential risks are mitigated by a remediation cost cap insurance policy. 
  • Represented a major affordable housing developer in connection with multiple projects including purchase and redevelopment of old industrial mill properties. 
  • Represented Fortune 100 company in connection with the investigation and remediation of a former ammunition manufacturing facility, which is the largest undeveloped industrial / commercial site in Fairfield County. Activities included negotiating a corrective action consent order with U.S. EPA, obtaining approval of a corrective action management unit (CAMU) and development of final remediation standards.
  • Represented manufacturing client in Brownfields redevelopment project where our client is remediating PCBs and other pollutants simultaneously with construction of a new shopping center.

Representative Projects (Superfund):

  • Represented Fortune 100 company in connection with remedy negotiation and performance issues at a municipal landfill site. The matter has involved multiple settlements, including a de minimis settlement, negotiating an agreement with the U.S. Environmental Protection Agency for mixed funding for the remedy and several Records of Decision. 
  • Assisted aerospace company in connection with Superfund liability at sites in Connecticut, Rhode Island and Colorado. 
  • Represented a PRP Group in implementing a Remedial Design and Remedial Action Consent Decree at a Superfund site in Connecticut. 
  • Represented a small manufacturing company in connection with U.S. EPA Remedial Action at its facility in Massachusetts, which was destroyed by an explosion. 
  • Represented a Fortune 100 company in negotiations with the federal and state Natural Resources Trustees over alleged natural resources damages in a coastal setting.  The matter was successfully negotiated with a reasonable payment to the Trustees for wetlands restoration.
  • Represented numerous clients in connection with Superfund litigation or settlements, de minimis or otherwise, at Superfund sites in Maine, Massachusetts, Connecticut, Rhode Island, New York, Pennsylvania and New Jersey.

The development of innovative projects producing useful energy from renewable resources, solid waste, fossil fuels, fuel cells, and other energy sources through combined heat and power or other means requires in-depth knowledge and experience in federal and state energy policy and pricing law, in addition to environmental law. Murtha Cullina’s multi-disciplinary team of attorneys advise clients on all facets of such projects and other environmentally significant facilities. Our firm has been involved, in various roles, in nearly every electric generating facility in Connecticut and many in Massachusetts; including hydroelectric generating facilities, base load and peaking fossil fuel fired facilities, and nuclear energy installations. We help clients buy and sell generating assets, assist developers in securing siting and permitting approvals, advise companies on financial restructuring and provide legal support on environmental compliance issues.

Representative Projects:

  • Completed environmental due diligence for a private equity fund in connection with the acquisition and transfer of environmental permits for a 520 megawatt (“MW”) gas-fired combined cycle generating facility. Obtained siting approval and assisted with securing the air permit for a 350 MW dual-fuel simple cycle peaking facility. 
  • Assisted a renewable energy developer in obtaining siting approval and environmental permits for a 30 MW circulating fluidized bed biomass gasification facility. 
  • Performed environmental due diligence for a private equity fund in connection with a $1.3 billion acquisition of 1,400 MW of hydroelectric, jet-powered, and coal-fired generation facilities. 
  • Represented client in connection with EPA unilateral order to cease discharging silt and sediment during a hydroelectric plant dewatering outage and in connection with a negotiated Administrative Consent Order with Massachusetts DEP to remove silt/sediment from the Connecticut River.
  • Provided legal advice to a merchant power plant developer related to the planning, permitting and construction of the largest merchant power plant in Connecticut, a 792 MW dual-fuel combined cycle generation facility, including obtaining non-attainment New Source Review and Prevention of Significant Deterioration permits and NOx offsets. 
  • Assisted unregulated utility subsidiary in acquiring approximately 2,300 MW of fossil fuel-fired generation assets at multiple locations. Obtained siting approvals for an additional 240 MW of peaking generation at two facilities. Continue to assist client with environmental compliance, remediation issues and the development of a 544 MW dual fuel combined cycle facility and additional peak load capacity. 
  • Represented global power plant developer in connection with the permitting and development of the largest cogeneration facility in Connecticut, a 181 MW coal-fired circulating fluidized bed boiler for the production of electricity and industrial steam. Continue to assist client with operational and environmental compliance issues. 
  • Helped an Ivy League university with new source air permitting for a 13.5 MW central power plant consisting of three small gas turbine/duct burner units, three peaking gas internal combustion engines and a large boiler. Obtained siting approval for a fuel cell in a combined heat and power application. 
  • Coordinated project planning, siting, permitting and financing for four municipal waste combustor facilities, totaling 162 MW. 
  • Performed environmental due diligence and evaluated permitting requirements on behalf of an international private equity fund in connection with the acquisition of a submerged electric transmission line. 
  • Assisted a national energy company with environmental permitting issues associated with the acquisition of a 400 MW pulverized coal-fired electric generating facility and a dual fuel-fired 466 MW facility. Developed permit modification strategy to allow facility to comply with new air pollution regulations that required significant modifications to the coal-fired facility. 
  • Represented numerous clients with the permitting and development of electric generating facilities, including combined heat and power and distributed generation projects ranging in size from 1.2 MW to 350 MW.

Air emissions, stormwater and wastewater discharges, and solid & hazardous waste disposal activities require permits or authorizations under many federal and state laws and regulations. Murtha Cullina's attorneys assist clients that are required to comply with these laws, regulations, and permit requirements in all aspects and at all stages of the compliance and enforcement process, at the federal, state and local levels of government, and on behalf of parties against whom compliance or enforcement actions are taken.

Representative Projects:

  • Represented large aerospace manufacturer in multi-media (air, water & waste) enforcement action affecting four manufacturing facilities. Developed and negotiated a creative settlement agreement with the regulatory agency involving supplemental environmental projects and compliance audits. 
  • Represented a large ship repair company in multi-media (water, waste and coastal permitting) enforcement action relating to operations at two coastal facilities. We negotiated a settlement that involved extensive supplemental environmental projects to be carried out over a five to ten year period.
  • Conduct or coordinate confidential regulatory compliance audits for both environmental and worker health and safety issues at manufacturing and other facilities. The environmental audits encompass multimedia issues involving air, water and waste areas. 
  • Represented clients in connection with environmental audit programs and advised clients on complying with state and federal self-policing (audit) policies to minimize the risk of agency enforcement actions and civil penalties.
  • Successfully avoided citizen suits and their accompanying penalties and payment of attorneys' fees against clients by negotiating Consent Orders or entering into stipulated judgments with the Connecticut Department of Environmental Protection. 
  • Successfully negotiated Consent Orders with the Connecticut and Massachusetts Departments of Environmental Protection, as well as other state agencies, that have resulted in significant reductions in civil penalties for various regulatory violations and/or claims for reimbursement of remediation costs to which our clients have been exposed. 
  • Assisted numerous clients in applying for and obtaining a federally enforceable air permit to limit potential emissions to below the major source threshold (General Permit to Limit Potential to Emit ("GPLPE") to avoid the need for obtaining an individual Title V permit. 
  • Negotiated Title V air permit for manufacturing facility allowing the use of mobile source standards to calculate air emissions for engines tested at its facility. Assisted same facility with obtaining new source review permits for degreaser and other equipment with conditions that allow the facility to increase its operations. 
  • Negotiated water diversion permits for quarries and construction companies with operations throughout the State.

 

Property bordering coastal resources, such as tidal waters, tidal wetlands, beaches, dunes and shellfish concentration areas are subject to an additional layer of state and local regulation.  As such resources are sensitive, scarce and highly-valued, development projects in these areas, even very small ones, can be highly controversial, resulting in complicated and drawn out permitting proceedings.

Our lawyers understand the competing interests of those who wish to protect and preserve coastal resources and the owners of waterfront properties who wish to exercise their common law property rights to "wharf out."  We have substantial experience with the agencies charged with regulating uses in coastal areas.  We can help clients secure necessary permits for developing waterfront land and constructing docks, seawalls and related structures.  We can shorten the time and minimize the cost of permitting by identifying project elements that are inconsistent with law or established agency policy.  We have the experience to use the regulatory tools available to overcome arbitrary bureaucratic decisions.

Representative Projects:

  • Successfully represented numerous private clients in obtaining permits from the Army Corps and Connecticut Department of Environmental Protection, Office of Long Island Sound Programs ("OLISP") for residential docks.
     
  • Successfully represented several clients in contested hearings on permits for residential docks, including one opposed by a well-organized group fighting to keep private docks from being built on the Connecticut River.
     
  • Defended private clients from notices of violation from OLISP for unpermitted boardwalks, docks, seawalls and walkways.
     
  • Defended private client in suit by the Attorney General filed on behalf of OLSIP seeking penalties for alleged violation of a consent order requiring significant modifications to an existing permitted dock.
     
  • Filed petition for declaratory ruling on behalf of a private client challenging OLISP's "policy" that dredging is not allowed for residential docks and obtained ruling from the Commissioner that no such agency policy existed.
     
  • Represented Fortune 100 company in obtaining federal and state permits to dredge coastal waters as part of significant remediation project.

Wastewater treatment facilities, such as sewers and sewage treatment facilities are critical, but often overlooked, elements of municipal infrastructure and commercial and industrial development. Our firm has significant experience with addressing the myriad issues related to these facilities for both public and private clients. On the public side, we help municipalities fight or comply with orders from the Department of Energy and Environmental Protection, obtain necessary permits, assist with financing and construction, help formulate revenue programs to pay for projects, and draft regulations for the operation and management of wastewater treatment facilities. For our private clients we negotiate fair terms for connections to and use of sewers and when necessary, seek court relief from unfair benefit assessments, denied access or excessive costs.

Representative Projects:

  • Assisted municipality in establishing a Water Pollution Control Authority, drafted sewer regulations and coordinated the acquisition of a privately constructed sewer line, negotiated an intermunicipal agreement for wastewater treatment plant capacity and drafted contracts for the operation and maintenance of the sewer system. Helped the WPCA establish benefit assessments and user charges. 
  • Served as special counsel to a municipal WPCA and provide legal advice related to establishing capacity fees, updating the facilities plan, and processing applications for connecting to the sewer system. 
  • Represented a municipal WPCA in arbitration over an intermunicipal agreement and a dispute over the opponents claim to our client’s reserve funds. 
  • Represented a municipal WPCA in consolidated appeals of the WPCA’s establishment of benefit assessment and connection fees for an expanded sewer system. 
  • Assisted developers in obtaining revisions to the State of Connecticut Office of Policy and Management’s State Plan of Conservation and Development to allow the extension of sewers to serve private development projects. 
  • Negotiated financial assurance agreements with WPCAs on behalf of residential property owners and developers served by community sewerage systems as required to obtain DEP construction and discharge permits.

Water is becoming an increasingly scarce commodity.  Connecticut's Water Diversion Policy Act and pending Streamflow Regulations create significant regulatory hurdles for those whose operations rely on withdrawing more than 50,000 gallons of ground or surface water per day, whether for industrial processes, irrigation of golf courses and crops, or provision of drinking water to customers.  We have assisted clients in all affected sectors to get the water they need in a timely and cost-effective manner.

Representative Projects:

  • Negotiated a Consent Order to allow continued operation of wells and surface diversions and obtained permits necessary for an industrial client to withdraw ground and surface water at several facilities for sand and gravel operations, concrete plants, and asphalt plants at several locations.
  • Took over lead responsibility for obtaining permit for diversion for existing facilities at commercial nursery necessary for irrigation and expanded permitted operations to provide for significant expansion.
  • Obtained diversion permits for irrigation of golf courses of various sizes.
  • Represented municipal water utility in complying with terms of Consent Order concerning both surface and ground water withdrawals, negotiating new Consent Order and obtaining permits for existing and proposed withdrawals.
  • Represented private water company in obtaining expansion of wellfield in environmentally sensitive area.
  • Represented private water company in successfully negotiating terms of diversion permit for out-of-basin transfer of surface water to another company's system in the face of agency concerns about streamflow issues.

 

Land development projects, whether residential subdivisions, retail shopping centers or other large-scale development projects, may require a variety of state and federal environmental permits beyond local zoning and wetland approvals.

Army Corps of Engineers wetlands permits and related State Water Quality Certifications are commonly required where projects involve even small quantities of wetland fills.  Construction projects involving more than five acres of soil disturbance require registration for federal/state Construction Stormwater discharge permits.  Sites conducting certain "industrial activities" must obtain federal/state Industrial Stormwater discharge permits.  Projects requiring significant roadway infrastructure improvements or traffic impacts from parking facilities in Connecticut may require State Traffic Commission approvals.

Applications in Connecticut for State Water Quality Certifications in connection with Army Corps wetlands permits and state stormwater registrations will trigger a state Endangered Species Act review, which can complicate and delay permit issuance.

Our lawyers have successfully negotiated clients' applications through these complicated permit processes in contexts ranging from golf courses, highway expansions, residential subdivisions, active adult communities and retail shopping centers.

Representative Projects:

  • Represented state trade association in Connecticut Department of Environmental Protection proceedings on new General Permit for Discharge of Stormwater Associated with Industrial Activities, successfully negotiating numerous provisions to protect the interests of the organization's constitutents.
  • Obtained Army Corps wetlands permit and state Water Quality Certification involving on-site wetlands fills and off-site mitigation for retail shopping center.
  • Counseled client with locally approved residential subdivision to modify wetlands crossing to successfully avoid Army Corps wetlands jurisdiction and state Endangered Species Act review, avoiding years of delay.
  • Negotiated Consent Order in connection with alleged violation of a construction stormwater permit registration by activities which encroached on possible state endangered species habitat.
  • Obtained construction stormwater authorization following negotiation of best management practices, conservation easements, and deed restrictions designed to preserve state endangered species habitat.
  • Obtained Army Corps wetlands permits and state Water Quality certification for wetlands fills with on-site mitigation, conservation easements, and off-site wetlands creation for expansion of State highway for Tribal casino expansion, which included state Endangered Species Act sign-off.
  • Successfully defended appeal and suit for temporary injunction on issuance of State Traffic Commission approval for road expansion project.

Murtha Cullina is a leader in the field of land conservation. Our conservation practice involves all aspects of transactions designed to protect property from development, with a focus on sophisticated conservation easement matters. Conservation easements are a flexible tool for extinguishing defined development rights for a property in a manner that allows the property owner to continue to own and use the land subject to the development restrictions. Conservation easement deals can involve the purchase or sale of easement interests, the donation of development rights, or bargain sale scenarios. In donation and bargain sale scenarios, our services include careful tax planning to meet applicable Internal Revenue Service tests (e.g., the "conservation purposes" test) and other requirements such that donors may qualify for significant income tax deductions and reductions in estate and property taxes.

Representative Projects:

  • Assisted a client in selling a conservation easement over a 5,300 acre working forest in Connecticut under the auspices of the United States Forest Service Forest Legacy Program. 
  • Assisted a forest resource company in the purchase of multiple parcels totaling thousands of acres in Massachusetts, and the subsequent sale of conservation easements over most of such parcels to Commonwealth of Massachusetts agencies, water companies and private foundations. 
  • Represented dozens of property owners in the donation of development rights in the form of conservation easements in exchange for significant tax benefits. 
  • Represented water companies in numerous transactions involving the purchase of development rights for important lands within their watershed in order to protect vital water supplies. 
  • Represented private grant-making foundation in negotiating conservation easement terms for easements covering large expanses (hundreds of thousand of acres) of working forest in the northern woods of Vermont, New Hampshire and Maine. 
  • Assisted a state-wide agricultural conservation organization in numerous conservation easement deals throughout Connecticut on working farmlands, some of which involve funding from the Natural Resource Conservation Service. 
  • Represented a number of local land trusts in repeat transactions to acquire lands or conservation easements over key properties.

Working closely with the lawyers in our Environmental Practice Group, our trial lawyers regularly defend clients in federal and state court from claims based on environmental harms and noncompliance. We represent businesses, individual landowners, developers and municipal agencies in proceedings involving claims by the federal and state governments, other landowners, and other potentially responsible parties.

Our experience covers the entire range of environmental claims, allowing us to make sense of the alphabet soup of federal statutory claims under RCRA, CERCLA, CWA, etc. in which potential liability can exceed $100 million. Because of the enormous risks involved, we believe that early and effective compliance counseling can avoid costly litigation. When litigation is unavoidable, however, we have the experience to try these cases to a successful conclusion.

For more information, contact:
Gregory A. Sharp in Hartford at (860) 240-6046 or gsharp@murthalaw.com
 

Description

Contact: Francis A. Di Luna

Contact: Mark R. Sussman

Coastal resource permitting

Property bordering coastal resources, such as tidal waters, tidal wetlands, beaches, dunes and areas of shellfish concentrations are subject to an additional layer of state and local regulation. Such resources are sensitive, scarce and highly-valued, so development projects in these areas, even very small ones, can be highly controversial, resulting in complicated and drawn out permitting procedures. Our lawyers have a deep and sophisticated understanding of the issues related to the competition of interests between desires to protect and preserve coastal resources and individual’s property rights to reasonable use of their waterfront properties. Our lawyers have long-standing relationships with the agencies charged with regulating uses in coastal areas, and can help clients secure necessary permits for developing land and constructing docks, seawalls and related structures in a timely and cost-effective nature by identifying project aspects that are inconsistent with law or policy and minimizing delays and costs associated with incomplete applications.

Energy and Environmental Projects

The Firm advises clients on all facets of energy projects and other environmentally significant facilities, including financing, permitting and developing innovative projects that produce energy from biomass, fuel cells, solar, solid waste, natural gas, oil, coal and other resources through cogeneration, small power production and merchant power plant development. We provide our considerable experience in federal and state energy policy and pricing law, in addition to environmental law, for such projects.

Environmental Permitting

We develop permitting strategies that lead to the cost-effective and timely issuance of permits with which our clients can comply under the many air, water, waste, and land use permits required by federal, state and municipal laws.

Financing Transactions

Our attorneys regularly advise client on the lease, purchase or sale of real property and other assets. The Firm’s extensive transactional experience includes handling various types of sophisticated financings, including asset securitizations, revolving credit and term loans, letters of credit and related reimbursement agreements, interest rate swaps, and taxable and tax-exempt bond issuances. We also negotiate appropriate contractual terms addressing all forms of environmental risks and compliance with applicable laws.

Brownfields Remediation

We assist our clients in planning and overseeing the work of environmental engineers and consultants in investigating and remediating Brownfields under federal and state-based programs. Typically, these efforts involve considerable strategizing concerning the breadth of work necessary to meet applicable cleanup standards and other remediation guidance.

Liability and Risk Management

We help clients assess and manage environmental risks under environmental laws, such as the federal "Superfund" and similar state laws that enable the assertion of claims against waste generators, transporters and site owners. We provide the sophisticated guidance, assistance and defense required to comply with laws, regulations, permit requirements and the like in all aspects and at all stages of compliance and enforcement processes.

Land Development

We represent developers of land in sensitive areas, such as wetlands and the coastal zone, at all stages of the development process, from planning to permitting, the public participating process, and administrative and judicial proceedings.

Land and Natural Resource Conservation

Our environmental and estate planning attorneys often collaborate to counsel business owners, municipalities, charitable organizations and property owners on all aspects of the preservation of open space, forest and agricultural lands. Often, owners’ goals include securing income and estate tax benefits.

Litigation and Alternative Dispute Resolution

Complex environmental litigation is sometimes required to manage and resolve "Superfund" and other waste liability matters and to adjudicate regulatory compliance issues. Our attorneys have litigated all types of environmental controversies, including government enforcement actions, federal and state citizen suits, toxic torts, private cost recovery actions, environmental insurance claims and challenges to environmental permits and approvals.

Any transaction involving the transfer of real estate, stock or business assets has the potential to trigger significant environmental liability issues.  Our environmental lawyers bring years of experience to such projects. We help clients identify and address liabilities associated with both known and unknown environmental conditions to minimize risks and maximize options.  We understand the different and frequently overlapping federal (Superfund and RCRA) and state transfer and remediation laws that impact those sites, and help our clients to clean up these sites in concert with redevelopment plans. Available tools include prospective purchaser agreements, covenants not to sue, innocent purchaser "safe harbors" and Environmental Land Use Restrictions.  Other vital tools are insurance products such as pollution legal liability and cost cap policies that, properly selected and negotiated, can effectively minimize risks of toxic tort and other third party actions and cost overruns. We also assist our clients in identifying and taking advantage of Brownfields grant and loan programs that are available from state and federal agencies.

The "Superfund" statute, passed by Congress in 1980, has dramatically affected the business community over the past three decades, as millions of dollars have been applied to address historic disposal and release practices. We have been involved in Superfund actions since the beginning of the program, representing myriad large and small clients in minimizing the liabilities relating to their generator, transporter, or site owner or operator status. Such representations have ranged from Superfund sites involving a half dozen "potentially responsible parties" ("PRPs") to larger sites with hundreds or even thousands of such PRPs. Our experience includes helping PRPs perform remedies, assisting PRPs in obtaining partial or full "cash out" settlements, and pursuing and defending cost recovery and contribution actions.

Given New England's rich manufacturing tradition, many properties and businesses confront the legacy of historic releases of manufacturing processes, such as petroleum, solvents, plating wastes and pesticides. When land or assets change hands, buyers, lenders and sellers must identify and evaluate environmental risks, negotiate appropriate contract terms and comply with applicable laws. Our Environmental Practice Group counsels clients in all aspects of such transactions. We pride ourselves in facilitating transactions through creative solutions that protect our clients from known and unknown liabilities. Often, solutions involve working hand-in-hand, not just with environmental consultants and parties to a transaction, but also agency personnel at various levels to best identify, allocate and manage risks. Our expertise involves the consideration and application of all available tools, including qualification to the maximum extent possible under the regulatory liability "safe harbors" and use of sophisticated risk transfer mechanisms such as cost-cap and pollution legal liability insurance products.

Representative Projects (Brownfields):

  • Played lead role in the state's first municipal brownfields project. Our client was able to acquire a blighted property, secure state funding for remediation, and transfer to a neighboring manufacturer, allowing the company to remain and grow in Connecticut. This breakthrough transaction occurred prior to the development of brownfields program. The creative solutions brokered by our attorneys became the basis for our current brownfields laws.
  • Represented Fortune 100 company in obtaining clean closure, termination of interim status under RCRA, and final cleanup under the Transfer Act.  This is only the second site in Connecticut to achieve final approval allowing the site to exit the RCRA regulatory program.
  • Represented retail company who is negotiating with a city and a large petroleum company to clean up a former tank farm and convert it to a distribution center. 
  • Assisted solid waste management authority in transferring environmental remediation liabilities for Brownfield site to an environmental consulting firm backed by a pollution legal liability insurance policy and other securities.   The Site is being remediated under Connecticut's Property Transfer Act.
  • Assisted large aluminum company in transferring environmental remediation liabilities for brownfield site to an environmental consulting firm. The transaction included both pollution legal liability and cost cap insurance policies to control risks and back the cleanup obligations of the contracted firm.
  • Represented the past owner/operator of a manufacturing facility that was sold for redevelopment as a shopping center.  As part of the transaction, we negotiated an agreement with the developer pursuant to which our client accepted responsibility under the Transfer Act for remediating the property in compliance with remediation standards and TSCA PCB requirements in conjunction with the redevelopment process.  To minimize remediation costs, we obtained state and federal approval for the on-site reuse of PCB contaminated materials.
  • Assisted innovative renewable energy generator in acquiring a Brownfields site for redevelopment as a renewable fuel processing and electric generation facility. The purchaser will assume responsibility for executing a Remedial Action plan, however, the potential risks are mitigated by a remediation cost cap insurance policy. 
  • Represented a major affordable housing developer in connection with multiple projects including purchase and redevelopment of old industrial mill properties. 
  • Represented Fortune 100 company in connection with the investigation and remediation of a former ammunition manufacturing facility, which is the largest undeveloped industrial / commercial site in Fairfield County. Activities included negotiating a corrective action consent order with U.S. EPA, obtaining approval of a corrective action management unit (CAMU) and development of final remediation standards.
  • Represented manufacturing client in Brownfields redevelopment project where our client is remediating PCBs and other pollutants simultaneously with construction of a new shopping center.

Representative Projects (Superfund):

  • Represented Fortune 100 company in connection with remedy negotiation and performance issues at a municipal landfill site. The matter has involved multiple settlements, including a de minimis settlement, negotiating an agreement with the U.S. Environmental Protection Agency for mixed funding for the remedy and several Records of Decision. 
  • Assisted aerospace company in connection with Superfund liability at sites in Connecticut, Rhode Island and Colorado. 
  • Represented a PRP Group in implementing a Remedial Design and Remedial Action Consent Decree at a Superfund site in Connecticut. 
  • Represented a small manufacturing company in connection with U.S. EPA Remedial Action at its facility in Massachusetts, which was destroyed by an explosion. 
  • Represented a Fortune 100 company in negotiations with the federal and state Natural Resources Trustees over alleged natural resources damages in a coastal setting.  The matter was successfully negotiated with a reasonable payment to the Trustees for wetlands restoration.
  • Represented numerous clients in connection with Superfund litigation or settlements, de minimis or otherwise, at Superfund sites in Maine, Massachusetts, Connecticut, Rhode Island, New York, Pennsylvania and New Jersey.

The development of innovative projects producing useful energy from renewable resources, solid waste, fossil fuels, fuel cells, and other energy sources through combined heat and power or other means requires in-depth knowledge and experience in federal and state energy policy and pricing law, in addition to environmental law. Murtha Cullina’s multi-disciplinary team of attorneys advise clients on all facets of such projects and other environmentally significant facilities. Our firm has been involved, in various roles, in nearly every electric generating facility in Connecticut and many in Massachusetts; including hydroelectric generating facilities, base load and peaking fossil fuel fired facilities, and nuclear energy installations. We help clients buy and sell generating assets, assist developers in securing siting and permitting approvals, advise companies on financial restructuring and provide legal support on environmental compliance issues.

Representative Projects:

  • Completed environmental due diligence for a private equity fund in connection with the acquisition and transfer of environmental permits for a 520 megawatt (“MW”) gas-fired combined cycle generating facility. Obtained siting approval and assisted with securing the air permit for a 350 MW dual-fuel simple cycle peaking facility. 
  • Assisted a renewable energy developer in obtaining siting approval and environmental permits for a 30 MW circulating fluidized bed biomass gasification facility. 
  • Performed environmental due diligence for a private equity fund in connection with a $1.3 billion acquisition of 1,400 MW of hydroelectric, jet-powered, and coal-fired generation facilities. 
  • Represented client in connection with EPA unilateral order to cease discharging silt and sediment during a hydroelectric plant dewatering outage and in connection with a negotiated Administrative Consent Order with Massachusetts DEP to remove silt/sediment from the Connecticut River.
  • Provided legal advice to a merchant power plant developer related to the planning, permitting and construction of the largest merchant power plant in Connecticut, a 792 MW dual-fuel combined cycle generation facility, including obtaining non-attainment New Source Review and Prevention of Significant Deterioration permits and NOx offsets. 
  • Assisted unregulated utility subsidiary in acquiring approximately 2,300 MW of fossil fuel-fired generation assets at multiple locations. Obtained siting approvals for an additional 240 MW of peaking generation at two facilities. Continue to assist client with environmental compliance, remediation issues and the development of a 544 MW dual fuel combined cycle facility and additional peak load capacity. 
  • Represented global power plant developer in connection with the permitting and development of the largest cogeneration facility in Connecticut, a 181 MW coal-fired circulating fluidized bed boiler for the production of electricity and industrial steam. Continue to assist client with operational and environmental compliance issues. 
  • Helped an Ivy League university with new source air permitting for a 13.5 MW central power plant consisting of three small gas turbine/duct burner units, three peaking gas internal combustion engines and a large boiler. Obtained siting approval for a fuel cell in a combined heat and power application. 
  • Coordinated project planning, siting, permitting and financing for four municipal waste combustor facilities, totaling 162 MW. 
  • Performed environmental due diligence and evaluated permitting requirements on behalf of an international private equity fund in connection with the acquisition of a submerged electric transmission line. 
  • Assisted a national energy company with environmental permitting issues associated with the acquisition of a 400 MW pulverized coal-fired electric generating facility and a dual fuel-fired 466 MW facility. Developed permit modification strategy to allow facility to comply with new air pollution regulations that required significant modifications to the coal-fired facility. 
  • Represented numerous clients with the permitting and development of electric generating facilities, including combined heat and power and distributed generation projects ranging in size from 1.2 MW to 350 MW.

Air emissions, stormwater and wastewater discharges, and solid & hazardous waste disposal activities require permits or authorizations under many federal and state laws and regulations. Murtha Cullina's attorneys assist clients that are required to comply with these laws, regulations, and permit requirements in all aspects and at all stages of the compliance and enforcement process, at the federal, state and local levels of government, and on behalf of parties against whom compliance or enforcement actions are taken.

Representative Projects:

  • Represented large aerospace manufacturer in multi-media (air, water & waste) enforcement action affecting four manufacturing facilities. Developed and negotiated a creative settlement agreement with the regulatory agency involving supplemental environmental projects and compliance audits. 
  • Represented a large ship repair company in multi-media (water, waste and coastal permitting) enforcement action relating to operations at two coastal facilities. We negotiated a settlement that involved extensive supplemental environmental projects to be carried out over a five to ten year period.
  • Conduct or coordinate confidential regulatory compliance audits for both environmental and worker health and safety issues at manufacturing and other facilities. The environmental audits encompass multimedia issues involving air, water and waste areas. 
  • Represented clients in connection with environmental audit programs and advised clients on complying with state and federal self-policing (audit) policies to minimize the risk of agency enforcement actions and civil penalties.
  • Successfully avoided citizen suits and their accompanying penalties and payment of attorneys' fees against clients by negotiating Consent Orders or entering into stipulated judgments with the Connecticut Department of Environmental Protection. 
  • Successfully negotiated Consent Orders with the Connecticut and Massachusetts Departments of Environmental Protection, as well as other state agencies, that have resulted in significant reductions in civil penalties for various regulatory violations and/or claims for reimbursement of remediation costs to which our clients have been exposed. 
  • Assisted numerous clients in applying for and obtaining a federally enforceable air permit to limit potential emissions to below the major source threshold (General Permit to Limit Potential to Emit ("GPLPE") to avoid the need for obtaining an individual Title V permit. 
  • Negotiated Title V air permit for manufacturing facility allowing the use of mobile source standards to calculate air emissions for engines tested at its facility. Assisted same facility with obtaining new source review permits for degreaser and other equipment with conditions that allow the facility to increase its operations. 
  • Negotiated water diversion permits for quarries and construction companies with operations throughout the State.

 

Property bordering coastal resources, such as tidal waters, tidal wetlands, beaches, dunes and shellfish concentration areas are subject to an additional layer of state and local regulation.  As such resources are sensitive, scarce and highly-valued, development projects in these areas, even very small ones, can be highly controversial, resulting in complicated and drawn out permitting proceedings.

Our lawyers understand the competing interests of those who wish to protect and preserve coastal resources and the owners of waterfront properties who wish to exercise their common law property rights to "wharf out."  We have substantial experience with the agencies charged with regulating uses in coastal areas.  We can help clients secure necessary permits for developing waterfront land and constructing docks, seawalls and related structures.  We can shorten the time and minimize the cost of permitting by identifying project elements that are inconsistent with law or established agency policy.  We have the experience to use the regulatory tools available to overcome arbitrary bureaucratic decisions.

Representative Projects:

  • Successfully represented numerous private clients in obtaining permits from the Army Corps and Connecticut Department of Environmental Protection, Office of Long Island Sound Programs ("OLISP") for residential docks.
     
  • Successfully represented several clients in contested hearings on permits for residential docks, including one opposed by a well-organized group fighting to keep private docks from being built on the Connecticut River.
     
  • Defended private clients from notices of violation from OLISP for unpermitted boardwalks, docks, seawalls and walkways.
     
  • Defended private client in suit by the Attorney General filed on behalf of OLSIP seeking penalties for alleged violation of a consent order requiring significant modifications to an existing permitted dock.
     
  • Filed petition for declaratory ruling on behalf of a private client challenging OLISP's "policy" that dredging is not allowed for residential docks and obtained ruling from the Commissioner that no such agency policy existed.
     
  • Represented Fortune 100 company in obtaining federal and state permits to dredge coastal waters as part of significant remediation project.

Wastewater treatment facilities, such as sewers and sewage treatment facilities are critical, but often overlooked, elements of municipal infrastructure and commercial and industrial development. Our firm has significant experience with addressing the myriad issues related to these facilities for both public and private clients. On the public side, we help municipalities fight or comply with orders from the Department of Energy and Environmental Protection, obtain necessary permits, assist with financing and construction, help formulate revenue programs to pay for projects, and draft regulations for the operation and management of wastewater treatment facilities. For our private clients we negotiate fair terms for connections to and use of sewers and when necessary, seek court relief from unfair benefit assessments, denied access or excessive costs.

Representative Projects:

  • Assisted municipality in establishing a Water Pollution Control Authority, drafted sewer regulations and coordinated the acquisition of a privately constructed sewer line, negotiated an intermunicipal agreement for wastewater treatment plant capacity and drafted contracts for the operation and maintenance of the sewer system. Helped the WPCA establish benefit assessments and user charges. 
  • Served as special counsel to a municipal WPCA and provide legal advice related to establishing capacity fees, updating the facilities plan, and processing applications for connecting to the sewer system. 
  • Represented a municipal WPCA in arbitration over an intermunicipal agreement and a dispute over the opponents claim to our client’s reserve funds. 
  • Represented a municipal WPCA in consolidated appeals of the WPCA’s establishment of benefit assessment and connection fees for an expanded sewer system. 
  • Assisted developers in obtaining revisions to the State of Connecticut Office of Policy and Management’s State Plan of Conservation and Development to allow the extension of sewers to serve private development projects. 
  • Negotiated financial assurance agreements with WPCAs on behalf of residential property owners and developers served by community sewerage systems as required to obtain DEP construction and discharge permits.

Water is becoming an increasingly scarce commodity.  Connecticut's Water Diversion Policy Act and pending Streamflow Regulations create significant regulatory hurdles for those whose operations rely on withdrawing more than 50,000 gallons of ground or surface water per day, whether for industrial processes, irrigation of golf courses and crops, or provision of drinking water to customers.  We have assisted clients in all affected sectors to get the water they need in a timely and cost-effective manner.

Representative Projects:

  • Negotiated a Consent Order to allow continued operation of wells and surface diversions and obtained permits necessary for an industrial client to withdraw ground and surface water at several facilities for sand and gravel operations, concrete plants, and asphalt plants at several locations.
  • Took over lead responsibility for obtaining permit for diversion for existing facilities at commercial nursery necessary for irrigation and expanded permitted operations to provide for significant expansion.
  • Obtained diversion permits for irrigation of golf courses of various sizes.
  • Represented municipal water utility in complying with terms of Consent Order concerning both surface and ground water withdrawals, negotiating new Consent Order and obtaining permits for existing and proposed withdrawals.
  • Represented private water company in obtaining expansion of wellfield in environmentally sensitive area.
  • Represented private water company in successfully negotiating terms of diversion permit for out-of-basin transfer of surface water to another company's system in the face of agency concerns about streamflow issues.

 

Land development projects, whether residential subdivisions, retail shopping centers or other large-scale development projects, may require a variety of state and federal environmental permits beyond local zoning and wetland approvals.

Army Corps of Engineers wetlands permits and related State Water Quality Certifications are commonly required where projects involve even small quantities of wetland fills.  Construction projects involving more than five acres of soil disturbance require registration for federal/state Construction Stormwater discharge permits.  Sites conducting certain "industrial activities" must obtain federal/state Industrial Stormwater discharge permits.  Projects requiring significant roadway infrastructure improvements or traffic impacts from parking facilities in Connecticut may require State Traffic Commission approvals.

Applications in Connecticut for State Water Quality Certifications in connection with Army Corps wetlands permits and state stormwater registrations will trigger a state Endangered Species Act review, which can complicate and delay permit issuance.

Our lawyers have successfully negotiated clients' applications through these complicated permit processes in contexts ranging from golf courses, highway expansions, residential subdivisions, active adult communities and retail shopping centers.

Representative Projects:

  • Represented state trade association in Connecticut Department of Environmental Protection proceedings on new General Permit for Discharge of Stormwater Associated with Industrial Activities, successfully negotiating numerous provisions to protect the interests of the organization's constitutents.
  • Obtained Army Corps wetlands permit and state Water Quality Certification involving on-site wetlands fills and off-site mitigation for retail shopping center.
  • Counseled client with locally approved residential subdivision to modify wetlands crossing to successfully avoid Army Corps wetlands jurisdiction and state Endangered Species Act review, avoiding years of delay.
  • Negotiated Consent Order in connection with alleged violation of a construction stormwater permit registration by activities which encroached on possible state endangered species habitat.
  • Obtained construction stormwater authorization following negotiation of best management practices, conservation easements, and deed restrictions designed to preserve state endangered species habitat.
  • Obtained Army Corps wetlands permits and state Water Quality certification for wetlands fills with on-site mitigation, conservation easements, and off-site wetlands creation for expansion of State highway for Tribal casino expansion, which included state Endangered Species Act sign-off.
  • Successfully defended appeal and suit for temporary injunction on issuance of State Traffic Commission approval for road expansion project.

Murtha Cullina is a leader in the field of land conservation. Our conservation practice involves all aspects of transactions designed to protect property from development, with a focus on sophisticated conservation easement matters. Conservation easements are a flexible tool for extinguishing defined development rights for a property in a manner that allows the property owner to continue to own and use the land subject to the development restrictions. Conservation easement deals can involve the purchase or sale of easement interests, the donation of development rights, or bargain sale scenarios. In donation and bargain sale scenarios, our services include careful tax planning to meet applicable Internal Revenue Service tests (e.g., the "conservation purposes" test) and other requirements such that donors may qualify for significant income tax deductions and reductions in estate and property taxes.

Representative Projects:

  • Assisted a client in selling a conservation easement over a 5,300 acre working forest in Connecticut under the auspices of the United States Forest Service Forest Legacy Program. 
  • Assisted a forest resource company in the purchase of multiple parcels totaling thousands of acres in Massachusetts, and the subsequent sale of conservation easements over most of such parcels to Commonwealth of Massachusetts agencies, water companies and private foundations. 
  • Represented dozens of property owners in the donation of development rights in the form of conservation easements in exchange for significant tax benefits. 
  • Represented water companies in numerous transactions involving the purchase of development rights for important lands within their watershed in order to protect vital water supplies. 
  • Represented private grant-making foundation in negotiating conservation easement terms for easements covering large expanses (hundreds of thousand of acres) of working forest in the northern woods of Vermont, New Hampshire and Maine. 
  • Assisted a state-wide agricultural conservation organization in numerous conservation easement deals throughout Connecticut on working farmlands, some of which involve funding from the Natural Resource Conservation Service. 
  • Represented a number of local land trusts in repeat transactions to acquire lands or conservation easements over key properties.

Working closely with the lawyers in our Environmental Practice Group, our trial lawyers regularly defend clients in federal and state court from claims based on environmental harms and noncompliance. We represent businesses, individual landowners, developers and municipal agencies in proceedings involving claims by the federal and state governments, other landowners, and other potentially responsible parties.

Our experience covers the entire range of environmental claims, allowing us to make sense of the alphabet soup of federal statutory claims under RCRA, CERCLA, CWA, etc. in which potential liability can exceed $100 million. Because of the enormous risks involved, we believe that early and effective compliance counseling can avoid costly litigation. When litigation is unavoidable, however, we have the experience to try these cases to a successful conclusion.

For more information, contact:
Gregory A. Sharp in Hartford at (860) 240-6046 or gsharp@murthalaw.com
 

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