Environmental Law Experience
Construction Manager Ignores Solid Waste Regulations Relating to Excavated Material
When a construction manager proceeded with an excavation to build a major structure on a New York City university campus, the construction manager disposed of the excavated materials at a site which was not able to accept the type of material which was shipped. As a result of this significant mistake and other failures by the construction manager to understand regulatory requirements, the university faced cost overruns in excess of $5 million. Osborn investigated the regulatory and operational short-comings of the construction manager and prosecuted claims for the excessive cost incurred.
Remediation of Petroleum Release
While at Morgan Lewis, Mark Pennington represented a New York department store owner in response to a release of petroleum to land and coastal waters, remediation of coastal and subsurface impacts of the spill, and disputes with a new property owner concerning rights and responsibilities for remediation prior to construction of a new commercial retail complex at the site of the spill. Involved agencies included the U.S. Coast Guard, the U.S. Department of Fish and Wildlife, and NYSDEC.
Negotiation of Settlement in Suit Against Environmental Consultant
When the due diligence performed by an environmental consultant missed leaking underground storage tanks, Osborn litigated in defense of the environmental consultant and its insurance company, and achieved a settlement with the purchaser of the contaminated property.
Brownfield Property in Brooklyn
While at a prior firm, Mark Pennington represented the New York City Partnership and Rheingold Homes Corporation in redevelopment of a brownfield property in Brooklyn as an affordable housing project (“Rheingold Gardens”). The project, which received a conditional negative declaration under CEQR, required interface with the New York City Department of Housing Preservation and Development and the City Department of Environmental Protection. Legal tasks included assistance with site acquisition, financing and insurance matters, developing a remedial action plan, negotiating restrictive covenants, preparing plans for handling of contaminated materials during and after construction, documenting completion of the remedial action, and developing appropriate disclosures to home buyers. The project won a “Phoenix Award” at the national “Brownfields 2005” conference in Denver, Colorado.
Class II Hazardous Waste Sites
Mark Pennington has experience in the representation of a variety of clients with regards to remediating Class II hazardous waste sites under NYSDEC’s inactive sites program, including negotiation of consent orders and resolution of disputes regarding remedy selection.
Complex Phase I Environmental Issues Addressed in Refinancing Auto Dealership Property
A Westchester auto dealership applied to refinance its property and the lender required a Phase I environmental investigation at the borrower's expense. The lender required that all issues raised by the report be remedied before approving the refinancing. Osborn was retained to oversee the implementation of the Phase I environmental investigation and then to review the findings with the lender's attorneys. Complicated issues relating to hydraulic lifts (governed by USEPA laws and regulations relating to underground injection control systems), asbestos, underground tanks, and potential ground water contamination were addressed effectively, and environmental impediments to the loan process were cleared.
Defense of Coast Guard Notices
While at a prior firm, Mark Pennington provided representation of an airline in defense of Coast Guard notices of violation relating to wingtip spills from aircraft at JFK airport.
Environmental Issues Relating to Construction of a Major Shopping Mall in Westchester County
When a developer discovered environmental issues on a project site in Westchester County, Mark Pennington represented the developer in the remediation of contamination and management of dewatering activities during construction of a major shopping mall.
John F. Kennedy International Airport Remediation
While at a prior firm, Mark Pennington represented an airline in negotiation and implementation of consent order for remediation of jet fuel contamination at JFK airport in tandem with a major terminal redevelopment. Services included negotiation of consent order, construction and consulting contracts; development and implementation of cost cap insurance policy; advice regarding management of excavated soils, dewatering and stormwater discharges; and development of procedures with the Port Authority of New York and New Jersey and NYSDEC to document completion of remediation prior to construction. Assisted with parallel cost recovery litigation.
New York Brownfield Clean up on Manufactured Gas Plant Site
A technology company wanted to build a new corporate headquarters in lower Manhattan. Mark Pennington provided advice on the property the company selected, which was affected by former manufactured gas plant operations. The representation included the negotiation of a Brownfield Cleanup Agreement, negotiation of a remediation contract and environmental insurance, and documentation of completion. Mr. Pennington also provided oversight of post-completion operations and maintenance and annual certifications of institutional controls and engineered controls.
Petroleum Bulk Storage Compliance
A petroleum distribution company needed advice on bulk storage compliance. Mark Pennington, while at a prior firm, represented the company in settlement conferences and compliance hearings with NYSDEC and delegated counties relating to compliance with bulk storage regulations at commercial gas stations, and in negotiation of global compliance orders requiring independent third party audits and corrective measures.
Repositioning Manufacturing Facility for Re-Use
A client was interested in the decommissioning of manufacturing facility in upstate New York. Mark Pennington provided assistance with the decommissioning as well as the identifying environmental issues in connection with repositioning of the property for re-use.
Restaurateur Purchases Former Dry Cleaning Site With Spotty History
A Manhattan bar and restaurant proprietor signed a contract to purchase property near Restaurant Row. The purchaser had not focused on its prior use as a dry cleaning establishment. After perchloroethylene ("perc") was discovered in dry wells beneath the building, the deal was believed to be dead. Osborn was successful in negotiating significant concessions and protections, which allowed the deal to go forward at a significant discount to the client.
Solid Waste Management Advice
Osborn provides counsel to our clients on the management of solid waste, in due diligence regarding disposal facilities, and in negotiation of disposal contracts with solid waste disposal facilities.
Mold Abatement Strategy Allows College Facility to Open
The new administration and student activity center of a college experienced mold growth on the walls and in the HVAC duct work due to plumbing leaks and failure to complete roof installation on a timely basis. Our Firm developed a mold abatement strategy for the owner that allowed the school to open in a timely fashion.
New York Voluntary Cleanup Program
Osborn counsels a variety of clients with regards to site investigations and remediation of former dry cleaning properties under the New York Voluntary cleanup program. Our attorneys also interact with the New York State Department of Health regarding management of vapor intrusion issues.
Metropolitan Transportation Authority’s 50th Street Facility
On behalf of a client affected by the construction of the MTA’s 50th Street Facility for the East Side Access project, Mark Pennington evaluated the MTA’s Finding of No Significant Impact under NEPA and appeared at public meetings regarding environmental mitigation measures.
New York Treatment Storage and Disposal Facility
Mark Pennington represented a New York treatment storage and disposal facility in a permit modification proceeding before NYSDEC. Petroleum Spill On behalf of a real estate company in closure of a petroleum spill matter, Mark Pennington provided representation in resolution of a dispute over the source of the spill, and in settlement of the New York State Attorney General’s claim for recovery of NYSDEC remedial costs.
SPDES Permit Compliance
On behalf of a golf course management company, Osborn provided representation relating to SPDES permit compliance proceedings related to management of reclaimed wastewater from a housing development.
Major Mold Debacle Plagues School District Renovation
When a leaking roof caused significant damage to the interior of a school building under renovation, an environmental consultant retained by the school district recommended spending almost $1 million for treatment of the affected areas. Osborn as counsel for the school district carried out a full investigation of the proposed treatment product. Through the retention of experts our Firm found the expenditure for the treatment would have no beneficial effects. The school district saved approximately $1 million which was used to complete the project with any further concerns with regard to mold.
Osborn Serves as Environmental Counsel on Major New York City Hotel Renovation
A major landmark Manhattan hotel undertook a $750 million renovation. Osborn was retained by the hotel to manage legal issues, oversee the preparation of technical analyses, and address regulatory issues relating to contracts for abatement and demolition of asbestos containing plaster. The Firm saw to it that the environmental consultant and abatement team was able to successfully carry out the asbestos abatement.
Asbestos Abated and Renovations Completed While Medical Center Remained Open
A medical center in Queens was concerned with the safety and efficiency of performing a renovation, including asbestos abatement, while the facility remained open and fully operational. By working with hospital executives and contractors, we developed legal provisions and schedule strategies that accommodated safe and smooth project completion. Our Firm also addressed a session of 100 hospital personnel to explain the procedures and to respond to questions about their efficacy.
Mold Problem Solved in New Operating Room
When mold growth appeared on the walls of an operating room in a newly constructed health care facility, Osborn brought in an environmental consultant to determine the cause and to eliminate the mold. The source of the mold was eliminated, the mold was abated, the walls were removed and replaced, and the project proceeded without further incident.
Mold Issues in the Classroom
Osborn represented a school district with regard to the remediation of mold in classroom buildings. Under Osborn guidance, an environmental consultant was retained and remediation of mold was successfully completed with a minimum of expense and disruption. School Health and Safety Threatened by Water Intrusion When a school district encountered water intrusion due to roofing, plumbing and masonry leaks, Osborn assisted the school district in achieving appropriate health and safety results.
Advised on lending on environmentally contaminated sites
While at a prior firm, John Osborn, advised lenders regarding providing loans on mildly contaminated sites in Manhattan.
Osborn Serves as Environmental Counsel on Major New York City Hotel Renovation
A major landmark Manhattan hotel undertook a $750 million renovation. Osborn was retained by the hotel to manage legal issues, oversee the preparation of technical analyses, and address regulatory issues relating to contracts for abatement and demolition of asbestos containing plaster. The Firm saw to it that the environmental consultant and abatement team was able to successfully carry out the asbestos abatement.
Settling a Violation of Lead Based Paint Notification Requirements Without Fine
A large residential management company was spot-checked for compliance with HUD Lead Based Paint Notification requirements. Although lead hazards were absent, compliance with paper work requirements was deficient at one building, and the management company faced fines well in excess of $100,000. Osborn retained an environmental consultant to prepare a comprehensive Paint Maintenance Plan for the management company to follow at all of the properties it owned and managed. The violation was settled without a fine.
Set foreclosure strategy for lender
While at a prior firm, John Osborn, advised lender on a strategy relating to the foreclosure of a factory property on a contaminated site.
Fast Food Restaurant Required Fast Odor Compliance
When adjacent residential property owners blocked alternative solutions for a fast food restaurant to vent its cooking odors, the New York City Environmental Control Board set tight deadlines. These deadlines made compliance a virtual impossibility and made facility closing appear imminent. Osborn, with the assistance of strategic alliance partners, accomplished the delivery and the installation of an electrostatic precipitator (with a typical 14-week manufacturing lead time) over a single weekend, thereby solving the problem and avoiding shutdown of the restaurant.
Osborn Assists Operation Clean House: Asbestos Re-Inspection of New York City Schools
When the New York City School Construction Authority and the New York City Board of Education's Inspectors General uncovered information that cast doubt on the accuracy of the federally mandated AHERA asbestos inspections carried out in the 1980's, the Board of Education retained an environmental consultant in 1993 to reinspect all of the City's 1,069 school buildings. Osborn was retained by the environmental consultant to assist in developing the strategy to successfully carry out this assignment and to assure appropriate legal and financial protection. We were chosen for this assignment based on our Firm's credentials in training asbestos designers, contractors and workers for a five-year period at New York University through licensing courses mandated by Federal, State and local laws. We were also chosen for our Firm's in-depth knowledge of the asbestos abatement industry and our participation as a presenter before the National Asbestos Council (now known as the Environmental Information Association - EIA).
When a construction manager proceeded with an excavation to build a major structure on a New York City university campus, the construction manager disposed of the excavated materials at a site which was not able to accept the type of material which was shipped. As a result of this significant mistake and other failures by the construction manager to understand regulatory requirements, the university faced cost overruns in excess of $5 million. Osborn investigated the regulatory and operational short-comings of the construction manager and prosecuted claims for the excessive cost incurred.
Remediation of Petroleum Release
While at Morgan Lewis, Mark Pennington represented a New York department store owner in response to a release of petroleum to land and coastal waters, remediation of coastal and subsurface impacts of the spill, and disputes with a new property owner concerning rights and responsibilities for remediation prior to construction of a new commercial retail complex at the site of the spill. Involved agencies included the U.S. Coast Guard, the U.S. Department of Fish and Wildlife, and NYSDEC.
Negotiation of Settlement in Suit Against Environmental Consultant
When the due diligence performed by an environmental consultant missed leaking underground storage tanks, Osborn litigated in defense of the environmental consultant and its insurance company, and achieved a settlement with the purchaser of the contaminated property.
Brownfield Property in Brooklyn
While at a prior firm, Mark Pennington represented the New York City Partnership and Rheingold Homes Corporation in redevelopment of a brownfield property in Brooklyn as an affordable housing project (“Rheingold Gardens”). The project, which received a conditional negative declaration under CEQR, required interface with the New York City Department of Housing Preservation and Development and the City Department of Environmental Protection. Legal tasks included assistance with site acquisition, financing and insurance matters, developing a remedial action plan, negotiating restrictive covenants, preparing plans for handling of contaminated materials during and after construction, documenting completion of the remedial action, and developing appropriate disclosures to home buyers. The project won a “Phoenix Award” at the national “Brownfields 2005” conference in Denver, Colorado.
Class II Hazardous Waste Sites
Mark Pennington has experience in the representation of a variety of clients with regards to remediating Class II hazardous waste sites under NYSDEC’s inactive sites program, including negotiation of consent orders and resolution of disputes regarding remedy selection.
Complex Phase I Environmental Issues Addressed in Refinancing Auto Dealership Property
A Westchester auto dealership applied to refinance its property and the lender required a Phase I environmental investigation at the borrower's expense. The lender required that all issues raised by the report be remedied before approving the refinancing. Osborn was retained to oversee the implementation of the Phase I environmental investigation and then to review the findings with the lender's attorneys. Complicated issues relating to hydraulic lifts (governed by USEPA laws and regulations relating to underground injection control systems), asbestos, underground tanks, and potential ground water contamination were addressed effectively, and environmental impediments to the loan process were cleared.
Defense of Coast Guard Notices
While at a prior firm, Mark Pennington provided representation of an airline in defense of Coast Guard notices of violation relating to wingtip spills from aircraft at JFK airport.
Environmental Issues Relating to Construction of a Major Shopping Mall in Westchester County
When a developer discovered environmental issues on a project site in Westchester County, Mark Pennington represented the developer in the remediation of contamination and management of dewatering activities during construction of a major shopping mall.
John F. Kennedy International Airport Remediation
While at a prior firm, Mark Pennington represented an airline in negotiation and implementation of consent order for remediation of jet fuel contamination at JFK airport in tandem with a major terminal redevelopment. Services included negotiation of consent order, construction and consulting contracts; development and implementation of cost cap insurance policy; advice regarding management of excavated soils, dewatering and stormwater discharges; and development of procedures with the Port Authority of New York and New Jersey and NYSDEC to document completion of remediation prior to construction. Assisted with parallel cost recovery litigation.
New York Brownfield Clean up on Manufactured Gas Plant Site
A technology company wanted to build a new corporate headquarters in lower Manhattan. Mark Pennington provided advice on the property the company selected, which was affected by former manufactured gas plant operations. The representation included the negotiation of a Brownfield Cleanup Agreement, negotiation of a remediation contract and environmental insurance, and documentation of completion. Mr. Pennington also provided oversight of post-completion operations and maintenance and annual certifications of institutional controls and engineered controls.
Petroleum Bulk Storage Compliance
A petroleum distribution company needed advice on bulk storage compliance. Mark Pennington, while at a prior firm, represented the company in settlement conferences and compliance hearings with NYSDEC and delegated counties relating to compliance with bulk storage regulations at commercial gas stations, and in negotiation of global compliance orders requiring independent third party audits and corrective measures.
Repositioning Manufacturing Facility for Re-Use
A client was interested in the decommissioning of manufacturing facility in upstate New York. Mark Pennington provided assistance with the decommissioning as well as the identifying environmental issues in connection with repositioning of the property for re-use.
Restaurateur Purchases Former Dry Cleaning Site With Spotty History
A Manhattan bar and restaurant proprietor signed a contract to purchase property near Restaurant Row. The purchaser had not focused on its prior use as a dry cleaning establishment. After perchloroethylene ("perc") was discovered in dry wells beneath the building, the deal was believed to be dead. Osborn was successful in negotiating significant concessions and protections, which allowed the deal to go forward at a significant discount to the client.
Solid Waste Management Advice
Osborn provides counsel to our clients on the management of solid waste, in due diligence regarding disposal facilities, and in negotiation of disposal contracts with solid waste disposal facilities.
Mold Abatement Strategy Allows College Facility to Open
The new administration and student activity center of a college experienced mold growth on the walls and in the HVAC duct work due to plumbing leaks and failure to complete roof installation on a timely basis. Our Firm developed a mold abatement strategy for the owner that allowed the school to open in a timely fashion.
New York Voluntary Cleanup Program
Osborn counsels a variety of clients with regards to site investigations and remediation of former dry cleaning properties under the New York Voluntary cleanup program. Our attorneys also interact with the New York State Department of Health regarding management of vapor intrusion issues.
Metropolitan Transportation Authority’s 50th Street Facility
On behalf of a client affected by the construction of the MTA’s 50th Street Facility for the East Side Access project, Mark Pennington evaluated the MTA’s Finding of No Significant Impact under NEPA and appeared at public meetings regarding environmental mitigation measures.
New York Treatment Storage and Disposal Facility
Mark Pennington represented a New York treatment storage and disposal facility in a permit modification proceeding before NYSDEC. Petroleum Spill On behalf of a real estate company in closure of a petroleum spill matter, Mark Pennington provided representation in resolution of a dispute over the source of the spill, and in settlement of the New York State Attorney General’s claim for recovery of NYSDEC remedial costs.
SPDES Permit Compliance
On behalf of a golf course management company, Osborn provided representation relating to SPDES permit compliance proceedings related to management of reclaimed wastewater from a housing development.
Major Mold Debacle Plagues School District Renovation
When a leaking roof caused significant damage to the interior of a school building under renovation, an environmental consultant retained by the school district recommended spending almost $1 million for treatment of the affected areas. Osborn as counsel for the school district carried out a full investigation of the proposed treatment product. Through the retention of experts our Firm found the expenditure for the treatment would have no beneficial effects. The school district saved approximately $1 million which was used to complete the project with any further concerns with regard to mold.
Osborn Serves as Environmental Counsel on Major New York City Hotel Renovation
A major landmark Manhattan hotel undertook a $750 million renovation. Osborn was retained by the hotel to manage legal issues, oversee the preparation of technical analyses, and address regulatory issues relating to contracts for abatement and demolition of asbestos containing plaster. The Firm saw to it that the environmental consultant and abatement team was able to successfully carry out the asbestos abatement.
Asbestos Abated and Renovations Completed While Medical Center Remained Open
A medical center in Queens was concerned with the safety and efficiency of performing a renovation, including asbestos abatement, while the facility remained open and fully operational. By working with hospital executives and contractors, we developed legal provisions and schedule strategies that accommodated safe and smooth project completion. Our Firm also addressed a session of 100 hospital personnel to explain the procedures and to respond to questions about their efficacy.
Mold Problem Solved in New Operating Room
When mold growth appeared on the walls of an operating room in a newly constructed health care facility, Osborn brought in an environmental consultant to determine the cause and to eliminate the mold. The source of the mold was eliminated, the mold was abated, the walls were removed and replaced, and the project proceeded without further incident.
Mold Issues in the Classroom
Osborn represented a school district with regard to the remediation of mold in classroom buildings. Under Osborn guidance, an environmental consultant was retained and remediation of mold was successfully completed with a minimum of expense and disruption. School Health and Safety Threatened by Water Intrusion When a school district encountered water intrusion due to roofing, plumbing and masonry leaks, Osborn assisted the school district in achieving appropriate health and safety results.
Advised on lending on environmentally contaminated sites
While at a prior firm, John Osborn, advised lenders regarding providing loans on mildly contaminated sites in Manhattan.
Osborn Serves as Environmental Counsel on Major New York City Hotel Renovation
A major landmark Manhattan hotel undertook a $750 million renovation. Osborn was retained by the hotel to manage legal issues, oversee the preparation of technical analyses, and address regulatory issues relating to contracts for abatement and demolition of asbestos containing plaster. The Firm saw to it that the environmental consultant and abatement team was able to successfully carry out the asbestos abatement.
Settling a Violation of Lead Based Paint Notification Requirements Without Fine
A large residential management company was spot-checked for compliance with HUD Lead Based Paint Notification requirements. Although lead hazards were absent, compliance with paper work requirements was deficient at one building, and the management company faced fines well in excess of $100,000. Osborn retained an environmental consultant to prepare a comprehensive Paint Maintenance Plan for the management company to follow at all of the properties it owned and managed. The violation was settled without a fine.
Set foreclosure strategy for lender
While at a prior firm, John Osborn, advised lender on a strategy relating to the foreclosure of a factory property on a contaminated site.
Fast Food Restaurant Required Fast Odor Compliance
When adjacent residential property owners blocked alternative solutions for a fast food restaurant to vent its cooking odors, the New York City Environmental Control Board set tight deadlines. These deadlines made compliance a virtual impossibility and made facility closing appear imminent. Osborn, with the assistance of strategic alliance partners, accomplished the delivery and the installation of an electrostatic precipitator (with a typical 14-week manufacturing lead time) over a single weekend, thereby solving the problem and avoiding shutdown of the restaurant.
Osborn Assists Operation Clean House: Asbestos Re-Inspection of New York City Schools
When the New York City School Construction Authority and the New York City Board of Education's Inspectors General uncovered information that cast doubt on the accuracy of the federally mandated AHERA asbestos inspections carried out in the 1980's, the Board of Education retained an environmental consultant in 1993 to reinspect all of the City's 1,069 school buildings. Osborn was retained by the environmental consultant to assist in developing the strategy to successfully carry out this assignment and to assure appropriate legal and financial protection. We were chosen for this assignment based on our Firm's credentials in training asbestos designers, contractors and workers for a five-year period at New York University through licensing courses mandated by Federal, State and local laws. We were also chosen for our Firm's in-depth knowledge of the asbestos abatement industry and our participation as a presenter before the National Asbestos Council (now known as the Environmental Information Association - EIA).