Developers and Property Owners
At Daehnke Cruz Law Group, we understand the serious dilemmas facing both owners and developers of Brownfield sites or other contaminated properties here in Los Angeles and Orange Counties, and throughout California. For property owners, if full "Phase II" testing of soil (and groundwater) is not done to determine the extent of a property's contamination, the site will often be unmarketable and undevelopable. On the other hand, if this necessary Phase II testing determines that the property is heavily contaminated, the site might still be unmarketable, but now the property owner is on the radar screen of local and state regulators. Conversely, a prospective purchaser of a contaminated property will often be unwilling to spend significant amounts of its own money to conduct Phase II testing because of the fear that this site investigation money will all be wasted if the property turns out to be heavily contaminated and the developer is forced to walk away from the site.
Because of these and other considerations, it has become the practice of many large companies to "stockpile" contaminated old industrial sites rather than cleaning them up immediately. However, this approach is becoming increasingly frowned upon by the SEC and others who regulate these companies. With the addition of the financial interpretation rule known as FIN 47 and other Sarbanes-Oxley reforms, more and more companies are being required to conduct soil and groundwater investigations of contaminated parcels at their old industrial facilities.
At Deahnke Cruz Law Group, we have at our disposal numerous tools and strategies to deal with the tough issues involved with contaminated sites, including the true Brownfield properties (i.e., those which are vacant or severely underutilized because of known or potential contamination issues). Not only have we developed our own first-of-its-kind Brownfields legislative tool - SB 989 (also known as the "Bona Fide Ground Tenant" approach) to assist with revitalizing Brownfield sites here in California, our arsenal is both substantial, and diverse. Our law firm's recommended approach will vary depending on the type, amount and location of the contamination, the end use for which the site will be used, the financial wherewithal of the property owner and/or purchaser, the availability of loans, grants, insurance or cost-recovery monies to pay for site cleanup, and the likely local support for the proposed project.
At Daehnke Cruz Law Group, we know how to position Brownfield and other contaminated sites to obtain immunities for developers, cities and redevelopment agencies (and their lenders), and how to drive the remediation effort through a streamlined, expedited process [even when dealing with the Department of Toxic Substances Control ("DTSC")]. While we certainly still utilize the "old school" liability protections which are the hallmark of most environmental law practitioners, like the provision of seller indemnities and the utilization of limited liability entities, we rely on these protections solely as a backstop to legislative immunities, insurance and other more innovative liability protections, cost-sharing techniques and cost recovery tools. At Deahnke Cruz Law Group, we will not rest until we have found the best approach to the problem at hand.