American Bar Association
 
Environmental Transactions and Brownfields

Environmental Transactions and Brownfields


Message From the Chair



Welcome to the webpage of the Environmental Transactions and Brownfields Committee, fondly referred to as ETAB.




According to our official description, ETAB “works on environmental issues that arise in business, energy or real estate transactions, including M&A deals, asset-based transactions, fossil and renewable energy projects, and remediation and redevelopment of brownfields. Substantive areas include: liability protection, transfer and apportionment; parent/successor liability; lender liability; insurance; incentive programs (e.g., VCPs, BCPs, S-RECs, TIFs); deal structure and finance.”




As you can see, this is a pretty broad list of substantive areas, not to mention acronyms. The core issues of our committee – deals and Brownfields – are found throughout the country, regardless of geography or jurisdiction. Every deal is different, and every Brownfield has its own challenges. And we like it that way.




As I noted in my first “chair column” for our newsletter, this breadth of topic and practitioner is one of the strengths of ETAB. My goal as chair is to encourage the exchange of ideas from lawyers from all across the country and from all different types of practice as we come together to figure out a better way to get deals done and Brownfields remediated and redeveloped.




In the coming months, we will increasing the resources available on this web-page. We will also be letting you know about upcoming webinars and committee calls on topics of interest to ETAB members. Let us know what matters to you and what you want to talk about. Let us know how this webpage can be more useful. Let us know what is working and what isn’t. This is your committee, and we want to be relevant to what you do on a daily basis.




My email is pelkow@rc.com. Thanks for being an ETAB member, for checking out the ETAB webpage, and for sharing your thoughts.




Pamela Elkow
2014-2015 Chair, Environmental Transactions and Brownfields Committee
ABA Section of Environment, Energy, and Resources


 


Committee Description


The ETAB Committee works on environmental issues that arise in business, energy or real estate transactions, including M&A deals, asset-based transactions, fossil and renewable energy projects, and remediation and redevelopment of brownfields. Substantive areas include: liability protection, transfer and apportionment; parent/successor liability; lender liability; insurance; incentive programs (e.g., VCPs, BCPs, S-RECs, TIFs); deal structure and finance.


Hot News

South Carolina Superfund Site Decision: CERCLA § 107(a) is Not Limited to Voluntary Incurred Response Costs
Civ. No.: 2:14-4252-MBS (District Court of South Carolina, May 8, 2015)

The District Court of South Carolina held that a corporation subject to an EPA unilateral administrative order (UAO) in connection with the Columbia Nitrogen Superfund site in Charleston, South Carolina, is allowed to seek contribution under CERCLA §113 and not §107. Defendant companies argued that the corporation was precluded from raising a §107(a) claim against them for past response costs because the response costs are being incurred under a UAO and are not, therefore, voluntary. But the statutory language of CERCLA §107(a) does not limit the cause of action to voluntarily incurred response.

http://elr.info/litigation/45/20092/pcs-nitrogen-inc-v-ross-development-corp

Circuit Split Reinforced in Split in Methodology for Determining Settlement Cost Contribution, Ameripride Services, Inc. v. Texas Eastern Overseas, Inc.
No. 12-17245, (9th Cir., April 2, 2015)

In deciding a private settling party’s contribution action for clean up costs incurred at an industrial site in Sacramento, California, the Ninth Circuit held that a district court has discretion to determine the most equitable method of accounting for settlements between private parties. The court reinforced a split between the First and Seventh, agreeing with the former that a district court is not required to apply either the proportionate share approach of the Uniform Comparative Fault Act or the pro tanto approach of the Uniform Contribution Among Tortfeasors Act. The court remanded the case to the district court for further proceedings, holding that the district court erred in failing to determine the extent to which costs were necessary response costs consistent with the national contingency plan.

http://elr.info/litigation/45/20066/ameripride-services-inc-v-texas-eastern-overseas-inc

Detroit Brownfield Redevelopment Authority Approved $1.9 Million in Incentives for a $20 Million Boutique Hotel
Crain’s Detroid Business, May 18, 2015

According to the Detroit Brownfield Redevelopment Authority, construction of a $20 million 97-room boutique hotel will begin development in the fall. The property previous was used to manufacture musical instruments, jukeboxes, and radios, and local media had reported bricks falling from the building and damaging neighboring properties. The project will be financed through the Obsolete Property Rehabilitation Act, as well as the Michigan Strategic fund, and federal historic tax credits. The buyer is enthusiastic about the opportunity for the future of Detroit, evidenced by redevelopment projects such as the new hotel.

http://www.crainsdetroit.com/article/20150518/NEWS/150519865/wurlitzer-building-sells-for-1-4-million-boutique-hotel-20

U.K. Prime Minister’s Campaign Promises Include Proposed over $1.5 Billion (USD) for Brownfield Regeneration Fund
REMI Network, May 15, 2015

In the pre-election agenda for the United Kingdom Conservative Party exists a proposed $1.55 billion (USD) in funding for brownfield regeneration. The funding is expected to come from the Right to Buy program, part of a membership organization that advocates for the interests of Britain’s homeowners. Prime Minister David Cameron’s plan envisions 95,000 homes on brownfield lands, which local authorities will require to be registered in their respective jurisdictions. The registration would ensure that the proper planning permission is in place, and would establish a London Land Commission to identify publically owned brownfield lands that can be used for redevelopment.

https://www.reminetwork.com/articles/u-k-government-eyes-brownfield-redevelopment/

Redevelopment of Dow Chemical Brownfield Site: 2.4 Million Square Feet of Industrial Space to be Built On 265 Acres In New Jersey
Business Facilities, May 6, 2015

A 2.4 million square foot redevelopment project is approved on a 265-acre industrial space in Piscataway, New Jersey. The space is a Dow Chemical brownfield site that Dow Chemical cleaned up from its former use as a plastics manufacturing plant. The project includes sate-of-the-art buildings intended for distribution and warehousing companies needing to store high-volume products.

http://www.areadevelopment.com/newsItems/4-20-2015/lincoln-equities-group-piscataway-new-jersey285483.shtml

U.S. Rep. Esty introduced Bill Supporting Brownfield Restoration Projects
MyRecordingJournal.com, May 21, 2015

U.S. Rep. Elizabeth Etsy, D-5th, announced H.R. 202, cited as the “Brownfields Redevelopment Tax Incentive Reauthorization Act of 2015,” to amend the Internal Revenue Code of 1986 to extend expensing of environmental remediation costs. The bill was announced in Cheshire, Connecticut, where an arts group will redevelop a former factory site with groundwater contamination into a center for visual in performing arts.

http://esty.house.gov/media-center/in-the-news/us-rep-esty-to-introduce-bill-offering-tax-incentives-for-brownfield
Bill Text: https://www.congress.gov/bill/114th-congress/house-bill/2002/text

Waste Removal Gets a Charge

While most other vehicles have been shifting toward a more electric power source, one vehicle in particular has remained dependent on its utilization of fossil fuels: the garbage truck. However, this summer 17 garbage trucks will roll through Northern California powered by electricity. The system to be used by these trucks is from Tesla co-founder Ian Wright and is expected to be 30 percent more efficient than existing generators.

http://news.nationalgeographic.com/energy/2015/05/150504-garbage-trucks-go-electric-tesla-cofounder-wrightspeed/

Chesapeake Energy Corp.'s Butoxyethanola Injections

A study of a natural gas well in Bradford County, Pennsylvania displayed that three households had traces of a compound commonly found in Marcellus Shale drilling fluids, 2-Butoxyethanola. The three homeowners in Bradford County filed a law suit against Chesapeake energy corporation, the drilling company responsible for the introduction of natural gas and sediments into their well water. The three homeowners settled with the Chesapeake energy corporation, and as such, the the company bought the three households owned by the plaintiffs. These problematic water quality issues demonstrates some of the commonly occurring negative impacts of hydraulic fracturing.

http://www.nytimes.com/2015/05/05/science/earth/fracking-chemicals-detected-in-pennsylvania-drinking-water.html?ref=topics

Denver's Health Impact Assessment Plan

A neighborhood near downtown Denver is using a tool known as health impact assessment in the drafting of its redevelopment plan in order to encourage more physical activity as well as environmental sustainability. The advocates for this plan are hoping it will entice more developers to use this tool, which examines environmental, economic, and social influences on health. The goal is to sculpt a development http://www.nytimes.com/2013/03/06/realestate/commercial/healthy-design-becoming-a-factor-in-construction.html?ref=topics

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