State Cleanup Programs

MGKF works extensively with clients to navigate the legal, technical, and practical aspects of contaminated site remediation projects under state cleanup programs. These projects encompass brownfield redevelopments through voluntary cleanup programs, as well as cleanups at active commercial and industrial facilities pursuant to state enforcement authorities.

The presence or potential presence of contaminated soil, groundwater, indoor air, or other environmental media—whether due to recent spills or historic site activities—can complicate the use and development of real property, hinder project financing, and impose cleanup liability on site owners, occupants, and other parties. MGKF's attorneys and in-house technical consultants possess decades of combined experience counseling clients on all aspects of site remediation issues. We assist clients to find thorough, practical, and cost-effective cleanup solutions, resulting in state approvals consistent with business objectives and protective of human health and the environment.

Our familiarity with state cleanup programs is broad as well as deep, including completion of numerous projects under the Pennsylvania Land Recycling Program and New Jersey's Site Remediation Program and Industrial Site Recovery Act ("ISRA"). MGKF's knowledge stems in part from helping to shape these programs through involvement on agency advisory boards and by drafting client comments on bills and proposed rulemakings. Among these activities, the firm was significantly involved in developing the Pennsylvania Land Recycling Program's cornerstone legislation, the Land Recycling and Environmental Remediation Standards Act of 1995 ("Act 2"), along with the Act 2 regulations and policy guidance.

Elements of our state cleanup program practice include the following:

Consultant and Contractor Retention: MGKF has worked with scores of environmental consulting firms and remediation contractors on state cleanup program projects. We advise clients on selecting such firms, using our experience to suggest the right "fit" between a particular consultant or contractor and each site's contamination issues and intended use. The firm drafts requests for proposals, evaluates statements of qualifications and bids, and counsels clients on the final selection process. MGKF also routinely reviews and negotiates consultant and contractor retention agreements on clients' behalf.

Site Investigation Review: Based on our experience with contamination scenarios at a variety of sites—ranging from corner service stations and dry cleaners, to agricultural properties, to major industrial facilities such as refineries and manufactured gas plants—MGKF works with the client's consultant to design appropriate, cost-effective, and comprehensive strategies to investigate contamination at each property. Our uncommon mix of legal and technical expertise helps to ensure that the number, location, and type of soil borings and groundwater monitoring wells installed, laboratory analytical suites run, and other aspects of site investigations will accurately characterize contamination and comply with all relevant state cleanup program statutes, regulations, and guidance documents.

Data Evaluation and Remedial Strategy: Upon receipt of data, MGKF helps clients understand the magnitude of any regulated substances detected in the context of state cleanup standards relevant to the intended use of the property, separating real contamination issues from insignificant ones. Our attorneys and technical consultants then work with the client's consultant, EH&S staff, land planners and architects, and other team members to devise an overall remediation strategy to achieve closure under the state cleanup program efficiently and consistent with business objectives. We frequently counsel clients on remediation projects involving diverse issues such as soil excavation and disposal, groundwater treatment, pathway elimination through capping and other engineering controls, and mitigation of vapor intrusion risks from soil or groundwater impacted by volatile organic compounds.

Agency Interaction: Over the years MGKF has worked closely with regulatory agency officials on state cleanup program projects. In many cases, our attorneys and technical consultants discuss site investigation results and remedial strategy directly with agency technical and legal staff, both through informal calls and scheduled project meetings. These interactions help obtain up-front agency concurrence on the remediation and use/redevelopment approach, moving cleanup projects ahead with fewer surprises.

Report Review: We routinely review draft reports prepared by clients' consultants before submittal to state cleanup program staff and the public. These reviews focus on compliance with relevant state requirements and sensitivity to confidentiality and liability issues, while maintaining the integrity of the consultant's technical opinions and recommendations. We also help to prepare any required forms and notices to accompany submissions.

Public Involvement: In some instances, state cleanup programs require public involvement in site remediation and reuse plans. Even when not required, public involvement may be important to the success of a remediation and/or redevelopment project. MGKF helps clients evaluate whether public involvement may be required or prudent, and strategize how best to design and implement an effective public involvement process. Typical services include drafting informational correspondence and fact sheets, planning and overseeing public meetings, and preparing formal public comment-and-response documents.

Institutional Control Preparation: Remediation projects often involve exposure pathway elimination, such as through capping and other engineering controls or prohibitions on residential land uses or groundwater ingestion. State cleanup programs and companion laws like the increasingly widespread Uniform Environmental Covenants Act (UECA) require that such remedies be embodied in legal documents—which may include deed notices and restrictions, environmental covenants, and even planned community or condominium public offering statements and declarations—to ensure proper notice and enforceability with respect to current and future site occupants. Our attorneys draft such institutional controls carefully to comply with legal requirements and minimize potential reopening of a completed cleanup, while putting the contamination and remediation information into appropriate context for site users, future purchasers, and the general public.

The following are just a few examples of MGKF state cleanup program matters:

• MGKF has worked with a residential developer, its outside engineers and environmental consultants on several significant urban infill brownfield redevelopment projects in Philadelphia. Among other tasks, the firm has advised on investigations and cleanup strategies at these sites to attain appropriate remediation standards under Pennsylvania's Act 2 program; presented remediation and reuse plans to Pennsylvania Department of Environmental Protection, municipal, and neighborhood representatives; reviewed draft Act 2 reports; and prepared environmental disclosures and land use restrictions where required by Act 2, condominium and planned community acts, or other laws.
• The firm represented a residential and commercial developer in connection with a 300-plus acre mixed-use commercial and residential redevelopment in the New Jersey Pinelands. The project included remediating an old landfill under New Jersey's Site Remediation Program, closing a second landfill under the state's solid waste program, investigating groundwater conditions, negotiating pollution legal liability insurance coverage, and securing state brownfields financial assistance.
• MGKF counsels a national retail client on remediation issues in the acquisition and redevelopment of former gas stations, dry cleaners, and other impacted properties. Tasks include, among others, evaluating procedural requirements and remedial options available in a relevant state's voluntary cleanup program, monitoring cleanup work by the client's contractors and consultants, and drafting any needed deed restrictions or other institutional controls.
• The firm has represented many clients in satisfying the unique requirements of New Jersey's ISRA program, which requires that sellers comply with an environmental clearance process in conveying most industrial properties. These cases have involved counseling clients on remediating properties under ISRA, negotiating remediation agreements with the New Jersey Department of Environmental Protection ("NJDEP"), and securing expedited ISRA approvals and letters of non-applicability to allow transactions to proceed in a timely manner.
• In one ISRA matter, MGKF counseled a real estate developer in the sale of a New Jersey facility where historic polychlorinated biphenyl ("PCB") contamination was discovered shortly before closing. MGKF attorneys and technical staff coordinated with NJDEP in delineating and remediating the historic contamination through the ISRA Limited Site Review process, allowing the transaction to close on time and with the requisite regulatory approval.
• The firm assisted a Pennsylvania municipality to remediate a former fuel storage property for redevelopment as a public parking facility. Our services included preparing requests for proposal and evaluating bids from storage tank contractors and environmental consulting firms, collaborating with the contractor and consultant on investigation and remediation approaches, reviewing draft reports, and ensuring coordination between the environmental firms and redevelopment team. A release of cleanup liability was obtained through Pennsylvania's Act 2 program, and the redeveloped property is now a key element of the municipality's downtown revitalization efforts.
• MGKF helped an industrial client to remediate a closed chemical manufacturing facility contaminated with chlorinated solvents. The ultimate goal was to redevelop the property and an adjacent site as a "big box" retail facility while satisfying both New Jersey site remediation and federal Resource Conservation and Recovery Act corrective action requirements for soils (via thermal treatment and capping) and groundwater (via extraction, pre-treatment, and discharge to a publicly owned treatment works).