Foley Hoag LLP

Identifying critical issues early, providing cost-effective solutions.

Foley Hoag’s Environmental Practice Group has been New England’s preeminent environmental practice for the past twenty years. We have the depth and capacity to handle the wide array of environmental issues that can arise in the course of your business. We will work with you on the permitting of new projects, cost-effective cleanup of urban Brownfields properties, due diligence in the support of acquisitions, defense and prosecution of environmental litigation and many other issues.

With our level of experience comes in-depth knowledge of environmental science and law, which allows us to identify critical issues early and develop practical and cost-effective strategies to address them. We develop a solid understanding of our client’s business and business objectives, and we provide focused, sound and strategic advice that maximizes opportunities and minimizes cost and liability for our client’s environmental issues. By focusing on planning and management combined with vigorous advocacy, we can provide innovative assistance that is results-oriented and focused on the prevention and minimization of your potential liability.

Foley Hoag provides strategic environmental compliance counseling nationwide. Our clients include Fortune 100 and Fortune 500 companies, as well as emerging businesses, environmental technology firms, institutions, municipalities, and state authorities.

Climate Change

Foley Hoag understands that global climate change presents great challenges and great opportunities for businesses. All businesses that emit meaningful quantities of carbon dioxide and other greenhouse gases (GHGs) face the prospect of new regulations and possibly even liability. By the same token, those companies able to get out ahead of the curve with advanced compliance or technological innovation stand to benefit greatly under the new GHG regulatory regimes that are already in place abroad and increasingly coming into force in the United States as well.

Our lawyers are ready to assist those businesses confronting the challenges of the new GHG regimes as well as those capitalizing on the opportunities which these regulatory regimes and the voluntary markets can and will present. Our lawyers pull on the firm’s long-time strengths in the areas of energy, environmental compliance, corporate finance, tax structuring, government strategies and other specialties to provide clients with a comprehensive package of services and guidance in the complex and constantly-evolving world of carbon finance, development, trading and compliance.

Recognized for our efforts

Our Environmental Practice Group was recently named one of two firms designated as the top environmental law practices in Massachusetts in Chambers USA: America’s Leading Lawyers for Business 2003-2008.

Our environmental experience includes: 

• Buying, selling, or managing contaminated property: Several of our lawyers have been involved in the statutory and regulatory reforms designed to facilitate Brownfields redevelopment. They have also been closely involved in the development of Massachusetts’ first-in-the-nation privatized cleanup program. 
• Permitting new or existing facilities: We assist companies, from large power plants and RCRA treatment, storage or disposal facilities, to small chemical, paper, or biotech firms, in obtaining wastewater, air emission, solid waste management and hazardous waste management permits under federal and state laws. 
• Buying or selling companies: We perform environmental due diligence for both buyers and sellers on large and small transactions. 
• Massachusetts Environmental Policy Act review: We help proponents of major commercial and public facilities manage this complex and important process. 
• Managing wetlands and endangered species resource protection: In the development of major regional office and industrial park developments, recreational facilities and transportation projects, we help our clients navigate wetlands and endangered species regulations. 
• Ongoing compliance advice: We provide advice on both statutory- and regulatory-specific issues and environmental management issues. 
• Litigation and dispute resolution: From superfund, Clean Water Act, and environmental insurance coverage disputes, we handle all of these matters for our clients. For Fortune 100 companies, family businesses, municipalities and redevelopment authorities, we get results. We have litigated several of the leading cases on environmental issues.

Permitting of Commercial, Industrial, Energy, and Other Facilities
Representative Experience: Industrial and Energy Facilities

• Provided compliance advice on complex environmental regulatory matters and assisted with obtaining key operating and construction permits for a major waste-to-energy facility and several large landfills in Massachusetts. We also represent these facilities in judicial and administrative proceedings. For example, we recently defended one major landfill against a local effort to shut it down by revoking its site assignment. We have also defended several of these facilities against challenges to their construction, operating and wetlands permits.
• Represent owners and developers in the difficult and often contentious process of obtaining local and state approvals for landfills, transfer stations, and other solid waste management facilities. For example, we were retained by a client to assist in siting a new solid waste management and transportation facility in southeastern Massachusetts. The facility had been turned down once before, and the client had been litigating the case for several years. In an almost unprecedented victory in the solid waste siting context, the local Board of Health recently voted unanimously to grant the site assignment. 
• Represent Boston University and Boston Medical Center in connection with the development of the National Emerging Infectious Diseases Laboratories, to be located in a new building on the Medical Center Campus. The NEIDL will perform advanced research to identify vaccines and cures for infectious diseases. We provided advice concerning the National Environmental Policy Act and the Massachusetts Environmental Policy Act, as well as other matters.
• Acted as counsel to U.S. Generating Company to license the first of its fleet of high-efficiency, gas-fired power plants in the Northeast. The Millennium Power project is a 360-megawatt facility built in Charlton, Massachusetts. As part of a project development team consisting of U.S. Generating staff and environmental consultants, we provided legal and strategic advice to obtain all necessary state and local environmental permitting and other regulatory approvals. In addition, Foley Hoag provided real estate advice regarding zoning changes, variances, subdivisions, easements and land acquisitions. 
• Represent a number of other developers of small- and large-scale electric power generating facilities in the permitting and development process. This includes facilities powered by wind, landfill gas, fuel cells, waste heat, biomass, water, municipal solid waste, gas, oil, and coal. 
• Advised a major New Hampshire-based manufacturer in obtaining approvals needed to expand and improve its main production facility. 
• Assisted a client in obtaining needed approvals to construct and operate a new paper mill located in Central Massachusetts. 
• Represented the owner of two of the largest coal-fired generating facilities in New England regarding compliance with federal and state air-pollution-control regulations, including Massachusetts’ strict new regulations governing nitrogen oxides, sulfur dioxide, mercury and carbon dioxide. 
• Represent this same client regarding compliance with Clean Water Act requirements, including the NPDES permit renewal for one station. This involved complicated issues concerning the EPA’s requirements for thermal discharge and intake structures. Because of our experience in this proceeding, we also represented this client in commenting on EPA’s draft regulations under section 316(b) of the Clean Water Act. 
• Advise a number of facilities across the nation on issues relating to the New Source Review and Prevention of Significant Deterioration Programs. 
• Advised a number of facilities in Massachusetts, New York, New Hampshire and elsewhere on Title V permitting issues.

Representative Experience: Commercial Facilities 

• Represented the developers of several large-scale suburban office parks. Obtained the necessary approvals under local and state wetlands bylaws, MEPA, the Massachusetts Endangered Species Act and others. 
• Represented a major home-improvement retailer in a variety of complicated permitting issues. We represented our client in the development of its “cross dock” facility in Central Massachusetts. This unusual facility serves as a transfer point between the client’s suppliers and its dozens of New England stores. We navigated a complicated planning board approval process and successfully bought the project through MEPA in an unusually short period. We also successfully defended the approvals in litigation. 
• Advised a developer of the property now used as a corporate campus by a major West Coast-based technology company. We successfully bought the project through the MEPA process and obtained a wetlands approval and a conservation permit allowing construction of an access road, 900,000-square-feet of commercial space, an 18-hole golf course, and the potential for expansion space. We also successfully represented the developer in wetlands-related litigation brought by a nearby condominium development. 
• Represented the developer of a significant storage facility located adjacent to Logan Airport. 
• Acted as counsel to a major national developer and operator of drugstores, for which we developed a protocol to be used with respect to siting and approvals of multiple projects. This protocol provides cost-effective site screening and permitting, allowing the client to pursue its strategic goal of rapid development, while retaining control over the cost and time necessary to obtain required approvals. 
• Assisted the developer of a mixed-use facility to be constructed above a MBTA subway station in one of Boston’s inner suburbs. 
• Represented an airline in obtaining required approvals to demolish and then reconstruct one of the five terminals at Logan Airport. 
• Represented a Boston-based college in obtaining all required approvals to construct a new performance and production facility in a constrained location in downtown Boston.

Representative Experience: Public and Infrastructure Facilities 

• Acted as counsel to the Massachusetts Bay Transportation Authority regarding the development and permitting of the new Greenbush Commuter Rail Line. This project requires a host of permits, including variances from the Massachusetts Wetlands Protection Act, approvals from several conservation commissions, a variety of licenses issued by the DEP under Chapter 91, approval by the Army Corps of Engineers, MEPA approvals, approvals under the Massachusetts Endangered Species Act, a Coastal Zone Management Consistency finding and others. 
• Represented the Massachusetts Highway Department in obtaining state and local environmental approvals needed to expand Route 3, northwest of Boston. 
• Represented the Institute of Contemporary Art in the siting and permitting of its new museum on a portion of Fan Pier in South Boston. 
• Advise the City of Everett, Massachusetts, with respect to the permitting and development of a new high school and replacement parklands. We successfully defended certain DEP permits from challenges bought by advocacy groups and obtained the required federal environmental approvals for the project. 
• Counseled the Chelsea Schools Program in an expedited, four-site, $100 million construction project. Through careful strategic planning, the entire project permitting process was successfully completed in seven months, including MEPA review and the issuance of a Chapter 91 License. In addition, working closely with the project’s remediation consultant and DEP, site contamination issues were remediated on site through a response action protocol and without disruption to the aggressive school construction schedules. 
• Assisted the Children’s Museum in Boston, where the first waterways license under the revised regulations was issued, for an expansion of this waterfront museum into the Boston Harbor Fort Port Channel.

Representative Experience: Residential and Recreational Facilities 

• Represented the developers of the Wachusett Mountain Ski Area in Princeton, Massachusetts regarding the expansion of the ski area. We successfully completed the MEPA process for this project and prevailed before the Supreme Judicial Court in litigation bought by environmental advocacy groups attempting to stop this project. 
• Helped a variety of golf course developers obtain required state and local permits and approvals. For example, we represented the developer of a new private golf course on Martha’s Vineyard obtain all required approvals, including approvals under MEPA, the Massachusetts Endangered Species Act, an amendment to a Conservation Restriction, a Water Management Act permit and others. We also represented the developer of a golf course in the western suburbs of Boston in obtaining approvals under the Massachusetts Wetlands Protection Act and the Massachusetts Endangered Species Act. The permits for that course were designed so the property ultimately could be developed into a 900,000-square-foot campus for a West Coast-based technology company. Finally, we represented the developer of a new golf course and residential community located in Southeastern Massachusetts in obtaining permits required under MEPA, the Massachusetts Endangered Species Act, and a variety of other environmental programs. 
• Advised the owners of a marina project on Cape Cod, where we secured approval from the Army Corps of Engineers, DEP, coastal zone management, and federal and state fish and wildlife agencies to allow a major harbor dredging. Our attorneys were bought into the process after 15 months of unsuccessful attempts by the client to secure the necessary project approvals. With our intervention, the project received final regulatory approval within three months of our initial client meetings. 
• Represented a Boston university in obtaining approvals required to construct a 19-story dormitory. 
• Counseled suburban landowners in obtaining local and state permits for a variety of residential subdivisions. 
• Represented municipal boards with respect to approvals and appropriate conditions for residential and other types of subdivisions.

Compliance and Risk Management Counseling

Our environmental lawyers provide ongoing compliance advice to numerous clients, over the entire range of environmental compliance matters. This includes air emissions, including emissions banking and trading and air toxics; indoor air pollution; wastewater discharges; and hazardous waste generator requirements.

We have also helped our clients design and implement corporate environmental risk-management and audit programs. Foley Hoag has been at the forefront of this trend, helping major companies develop programs that are integrated efficiently into the existing corporate structure. These programs are designed to heighten awareness of environmental issues through the corporate ranks, institutionalize policies to achieve compliance, reduce the cost of compliance, generate energy and waste disposal cost savings and improve marketing.

Representative Experience: Transaction Work

• Represented the Massachusetts Development Finance Agency in negotiations with an international pharmaceutical company over a transaction that brought a $1.1 billion high-technology manufacturing facility to the former Fort Devens in Devens, Massachusetts. The negotiations involved a complicated allocation of environmental liabilities on a current federal superfund site and an agreement regarding the construction and operation of water, wastewater and electric-supply infrastructure. 
• Represented U.S. Generating Company in its acquisition of New England Power Company’s 18 non-nuclear power generating facilities, both hydroelectric and fossil fueled. This involved the transfer of over 400 operating permits, applying for numerous additional permits, and developing a coordinated compliance strategy for the new owner. We also represented the company in the subsequent disposition of the assets to multiple purchasers. 
• Advised in the purchase of a paper mill served by a cogeneration facility. This involved the transfer of more than a dozen significant operating permits and negotiation with relevant agencies to avert a potential shutdown due to historic compliance problems. 
• Advised in the international acquisition of the stock of a Massachusetts-based chemical manufacturer. Complete environmental due diligence resulted in negotiation of a 25 percent decrease in the purchase price. 
• Acted as counsel in the acquisition of the stock of a capacitor manufacturing company located in the southeastern United States. 
• Assisted a major real estate investment company in transactions throughout New England and other areas of the country, as well as evaluating and resolving due diligence issues on a variety of developments.

Representative Experience: Environmental Cleanup/Brownfields Projects

• Represent a manufacturer regarding claims relating to environmental contamination at a facility in Venice, California. We negotiated a resolution with the California Department of Toxic Substances Control and the current owner of the property. The Consent Decree has been entered, and we are coordinating the remediation of the property. 
• Assisting Invensys Systems, Inc., in connection with the implementation of response actions at the Neponset Reservoir in Foxboro, Massachusetts. The site involves complex issues related to alleged ecological risks and the jurisdiction of the Commonwealth’s superfund statute, Chapter 21E. We worked with our client and the consultant in matters directly related to compliance with Chapter 21E and applicable regulations. We also represented our client in negotiations with the local community regarding the scope of the necessary response actions. 
• Represented the Worcester Redevelopment Authority in the acquisition and redevelopment of more than 20 acres of contaminated, abandoned, deteriorating industrial parcels. The project is a major medical facility. We assisted with identification and implementation of various techniques to reduce the cost of cleanup and site disposition. 
• Acting as counsel to the City of Chelsea, Massachusetts, in connection with the construction and reconstruction of four schools situated on contaminated parcels of urban land. We assisted the city in developing a strategy to assure that contamination did not interfere with the $100 million construction program and that construction did not exacerbate environmental conditions or remediation costs. 
• Represent a large chemical company in connection with the cleanup of contamination resulting from chemical manufacturing operations conducted for more than thirty years. We provided legal and strategic advice in structuring a phased remedial approach at the site, which involves a complex matrix of contaminants affecting a significant geographical area, including a number of third-party properties. We have also been involved in numerous aspects of the oversight and implementation of the cleanup, including negotiations with state and federal regulators, local officials and third-party property owners. We are also helping our client in preparations for the sale of portions of the site for productive reuse. 
• Assisted a private residential developer in the conversion of a former auto salvage yard into residential housing. We participated in negotiations with federal and state environmental agencies to facilitate a cost-effective cleanup that would permit residential development. 
• Represented W.R. Grace regarding the remediation of its superfund site. We advised our client concerning requirements under a pre-existing consent decree, and negotiations with federal and state regulators and local officials. We also provided advice concerning potential Brownfields redevelopment of the site. 
• Assisted a major supermarket chain in obtaining approvals to construct a new facility on a former industrial property with significant PCB contamination. We developed a strategy, which permitted our client to achieve both a cost-effective cleanup and a timely opening of the supermarket. 
• Represented a retail tenant and purchaser of a superfund site on which the EPA spent nearly $200 million in remediation costs. To limit the significant liabilities associated with the transaction, we negotiated for a prospective purchaser agreement with the EPA and a covenant not to sue with the Connecticut DEP. 
• Act as counsel to the owners of a Section 8 apartment building for the elderly in remediation of soils and sediments contaminated by prior chemical manufacturing activities at the site. Work at this Rhode Island federal superfund site has included capping, drainage improvements, and reconstruction of a dam to maintain water cover for sediments. 
• Represented the Massachusetts Development Finance Agency in the remediation and redevelopment of a former Army base contaminated with asbestos and pesticides. We negotiated a resolution with the Department of Defense under which the Army agreed to remediate areas slated for residential, commercial, and recreational development. We also worked with our client to ensure that the cleanup was safe and cost-efficient. 
• Representing the Malden Redevelopment Authority and the Mystic Valley Development Commission on the “TeleCom City Project,” a 200-plus acre industrial site in the Massachusetts cities of Malden, Medford, and Everett. The project involves the acquisition, clearance and redevelopment of major portions of a largely contaminated site, the construction of new infrastructure improvements, and the creation of open space and access to the Malden River. 
• Facilitated the redevelopment of a heavily contaminated former industrial site by working closely with both the EPA and the Massachusetts DEP to reexamine the chosen remedy and revise it to accommodate development. Following the remedy selection, we facilitated a negotiated settlement among the potentially responsible parties (“PRPs”) and then oversaw the cleanup, which is now nearly complete. 
• Represented the developer of the former Northampton State Hospital state hospital. We have acquired environmental insurance products to protect against unanticipated environmental issues on this 124-acre property. 
• Advised the owner of a chemical manufacturing facility, which closed in the early 1990s after more than a century of operation. We advised our client as to effective remediation techniques that minimized cost, while readying the site for redevelopment for park and commercial purposes. Today, the site is improved as a major regional shopping center. 
• Represented a municipality seeking to develop an assisted-living center on a site with contamination from nearly 200 years of industrial use. 
• Act as counsel to a city in the western suburbs of Boston in connection with the redevelopment of a facility that has been used for manufacturing since the Civil War. 
• Represent a group of Buzzards Bay property owners affected by the April 2003 oil spill from the barge Bouchard-120. This involves issues under both Chapter 21E and the Oil Pollution Act of 1990.

Representative Experience: Agency Administrative and Penalty Proceedings

• Represented the owner of two large coal-fired power plants in the first permit appeal of the Massachusetts Department of Environmental Protection’s Emission Standards for Power Plants, 310 CMR 7.29. This is one of the most stringent multi-pollutant regulations in the country. After vigorously litigating the case to hearing, we crafted and successfully negotiated a solution that assured electricity reliability to the New England region, while balancing near-term environmental protections. The solution was characterized by our client as a “win-win” for all parties. 
• Advised the owner of a large landfill in a proceeding in which the host community was seeking to withdraw its “site assignment” authorizing the facilities operations. We persuaded the hearing officer, handpicked by the host community, to adopt our proposed findings almost in their entirety. The local board of health rejected its hearing officer’s findings, but we succeeded in having them reinstated by the Superior Court, and the Appeals Court affirmed. 
• Represented the owner of the largest coal-fired power plants in Massachusetts in challenging proposed modifications to its wastewater discharge permit. 
• Advised the owner of recycled paper mills in a variety of environmental enforcement actions involving air, water, noise, and odor issues. 
• Represented a major telecommunications company in an enforcement action involving electric generation issues at dozens of locations. 
• Acted as counsel to the City of Everett in the defense of a Chapter 91 license issued to allow construction of a major recreational facility along an underdeveloped waterway. 
• Represented an operator of a power plant in New York State in an administrative appeal of a Title V operating permit. 
• Represented an operator of a South Carolina hazardous waste treatment, storage and disposal facility in an administrative hearing over disputed enforcement actions. 
• Defended the issuance of wetlands approvals authorizing the construction of a new golf course in the western suburbs of Boston. 
• Represented numerous developers and landowners in appeals concerning both the state Wetlands Protection Act and so-called Chapter 91 cases, concerning waterfront development.