Willms & Shier has spent 35 years helping clients clean up and redevelop contaminated sites. We help clients understand the legal and business risks associated with various remediation solutions, from dig and dump to risk assessment. Our lawyers are intimately familiar with brownfields laws, regulations and standards. Whether we are representing land owners, tenants or municipalities, our objectives are the same: find practical, cost-effective solutions to bring higher and better uses to contaminated sites.
We are experienced with large scale, complex sites with contaminants ranging from solvents to coal tar. When neighbours are potentially affected by migrating plumes we help assess risks, prepare notification plans and consult with the public and government agencies to reach solutions. Sometimes clients need to provide compensation or property value protection plans. We help draft plans that are rational, justified and financially viable.
Many of our clean-up and redevelopment files proceed through transaction, financing, land use planning and remediation stages to successful redevelopment. In some cases our clients file Records of Site Condition. In others, for strategic reasons, the clients choose not to file an RSC. Often the process moves smoothly, with approval, build-out and lease or sale eventually resulting.
The following are some examples of recent contaminated site clean-up and redevelopment problems we helped clients to solve:
- We were retained by a lawyer to advise a developer client regarding remediation and residential development options for the contaminated Phase 2 of a condominium project. When we examined the plans, we discovered that the developer had not cleaned up contamination in the internal road that provided access to Phase 1 and formed part of the common elements. The contamination had not been disclosed to purchasers, who had not yet closed. If the developer had to disclose contamination to prospective purchasers at that late date, there was a significant risk that some purchasers would refuse to close and would have had financing withdrawn. Luckily, we were able help the developer and his lawyer to implement a strategy that dealt with the contamination without having to disclose to potential purchasers or their lenders. As a result, the Phase 1 homes have all closed. Phase 2 remediation was successfully completed and its homes have been sold as well.
- Our industrial client agreed to negotiate the purchase of a portion of the neighbour's industrial property that had been impacted by our client's operation. Negotiating the access agreement with opposing environmental counsel alone took the better part of three weeks. The environmental impact was eventually defined by extensive Phase II ESA work and the impacted lands were severed to facilitate the purchase by our client.
- Our industrial client's land was contaminated by the previous owner. There was extensive heavy metal contamination in the soil around and under the building. The former owner recognized his obligation to remediate. This contamination was not mobile but significantly exceeded clean-up standards. Cleaning up would require underpinning the building at significant cost. However, the clean-up would cost only a quarter as much after demolition of the building at the end of its useful life. Our client found a tenant who wanted a long term lease on the building, without any requirement to clean up. We were able to help our client structure an agreement with the original owner resulting in a discounted cash payment to our client based on the higher clean-up costs. Our client satisfied the former owner's concerns about liability, and is still able to invest the cash until the building comes down, while collecting rent during the balance of the building's life. This very profitable deal suited the former owner, who was able to dispense with future contingent liability.
- A prospective purchaser discovered contaminated fill was discovered around and under our client's apartment building. The purchase agreement required our client to pay for any environmental investigation and clean-up. The clean up would have cost more than half of the purchase price. We negotiated our client out of the deal. We assisted the client in obtaining a health risk assessment that first satisfied his mortgagee and tenants, and eventually satisfied another purchaser. We made our client whole through the threat of litigation and a settlement with insurers.
Thursday, November 8, 2012