Reed Smith EME Environmental Law Services

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Transcript of Reed Smith EME Environmental Law Services

Page 1: Reed Smith EME Environmental Law Services

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Our approach

Drawing on decades of specialist expertise across multiple jurisdictions and industry sectors, our Europe and

Middle East (EME) environmental law specialists guide clients through every stage of the life cycle of their business.

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A life cycle approach to Environmental legal services Reed Smith LLP 01

We provide specialist environmental advice on domestic and international corporate, private equity, finance and real estate transactions across all business sectors.

Our core transactional services include:

• Environmental due diligence and risk/impact assessment

• Negotiation of specialist environmental warranties and indemnities

• Environmental risk transfer/allocation solutions

• Appointment and supervision of environmental consultants

In recent years, we have represented developers, operators, lenders, private equity investors and others in the development, disposal, acquisition, financing and/or decommissioning of power stations, oil refineries, terminals, storage depots and related infrastructure, mines, landfill sites, gas storage facilities, waste management sites, chemicals manufacturing facilities, hotel chains, communications satellites, wind, solar, biomass, bioliquids and biofuels facilities, food and drink manufacturing facilities, and pulp and paper plants.

Representative matters

• Representing a private equity buyer in its bid to acquire a nationwide portfolio of downstream oil and gas assets.

• Representing a major U.S. energy company in the acquisition of a substantial portfolio of wind power projects across the United Kingdom and the United States.

• Representing a metals and mining company on its acquisition of several zinc mines in Africa and Europe.

• Negotiation of a bespoke off-site, third-party pollution liability product to protect the buyer of a large portfolio of petrol filling station sites affected by historic hydrocarbon and other contamination.

• Representing the buyer in connection with the environmental aspects of the acquisition of a portfolio of European aviation fuel storage and airport supply facilities.

• Representing the buyer on the acquisition of a fuel storage, blending and recycling facility in south-west England.

Company and asset acquisition

Case Study We were instructed to advise the buyer on its proposed acquisition of six separate companies in the United Arab Emirates, Oman and Qatar specialising in road construction and the production of construction aggregates and asphalt. The companies, with some 900 employees, produced 7.5 million tonnes of aggregates and 1.6 million tonnes of asphalt mix per year via three quarries and 10 asphalt plants. The acquisition was governed by English law and negotiated between client teams in London and Paris, whilst the assets and relevant documents were all in the Middle East. We assembled a team of environmental and health & safety lawyers drawn from our London and Abu Dhabi offices who worked jointly on the extensive due diligence and warranty and indemnity negotiations. Our diligence revealed that a number of sites lacked key permits and that at certain of the quarries, boundary and volume limits had been exceeded, but working with local lawyers and the relevant authorities these were resolved without delay to completion. We also negotiated for our client a 5 year environmental indemnity covering clean-up liability associated with historic soil and groundwater contamination at and emanating from the acquired sites (either required by a regulator or which a reasonable and prudent owner would perform) and, unusually, any future liability associated with historic breaches of environmental laws or permits at the sites by the target companies.

Company and asset acquisition

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We work closely with the firm’s real estate, construction and finance practitioners to assist clients in dealing with the environmental risks associated with redevelopment and rehabilitation of contaminated land.

We have worked on some of the largest and most high-profile brownfield redevelopment projects and won several awards for our work in this area.

We are experienced in handling soil, water, air quality and natural habitat pollution issues, flood risks the preparation and review of environmental impact statements/assessments, and development of detailed remediation strategies.

We have also developed innovative and award –winning environmental liability transfer mechanisms.

Representative matters

• Acting for the owner and developer of a £400m 23 hectare redevelopment of a former industrial site, to create 1,000 new homes and 300,000 sq ft of office space in a mixed use community, including shops, restaurants and a new railway station.

• Acting for the owner and operator of a chemicals manufacturing facility in relation to the investigation and remediation of organochloropesticide contamination of a major chalk aquifer (including aldrin, dieldrin and PCE contamination).

• Acting for the owner and operator of a former steel works and tar and benzole distillation facility in relation to the investigation and remediation of a large acid tar lagoon and associated landfill.

• Acting for the trustee owners of a former English china clay works in Cornwall in relation to the remediation of NORM (naturally occurring radioactive material) contamination of the site.

• Preparing a remediation agreement between a German plant operator, former owner and third-party guarantor regarding red mud lake risk exposures.

• Advising a major oil company on the disposal and remediation of a portfolio of disused oil refining and storage assets.

Remediation and brownfield redevelopment

Case Study Our client's UK site had been an oil refinery for over 100 years, one of the oldest in the world. Inevitably, the site (which extended to over 2,000 acres plus various associated pipelines and storage facilities) had suffered heavy environmental impacts over the years, particularly as modern environmental laws did not exist for much of the refinery's lifetime. Our client maintained significant reserves against potentially future environmental liabilities associated with historic on and off-site contamination, and was spending substantial sums every year in managing the environmental risks it presented. Using a range of innovative legal structures, we were able to devise and successfully implement a transaction structure that has seen the site fully remediated over a 7 year period and returned to beneficial use as a new "urban village" of some 4,000 new homes, a remarkable transformation for the site. The project saw the refinery decommissioned, permits surrendered and - through various innovative structures never before used in such a context and without any reliance on insurance- achieved a full liability transfer and "clean exit" for our client from historic liabilities, releasing substantial reserves to the client's P&L account, won numerous awards for innovation and created a positive, reputation enhancing legacy for our client in the local area.

Remediation and brownfield redevelopment

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We frequently advise businesses on critical environmental licensing and permitting issues.

We help our clients with drafting and making permit applications, appeals and variations, and compliance issues, including representation in connection with regulatory investigations and enforcement proceedings, transfers and surrender of permits, onsite closure and aftercare requirements, suspension, and withdrawal and forfeiture, particularly in relation to:

• Integrated pollution control permits

• REACH and other regimes regulating the marketing and use of chemicals

• Waste management licensing

• “Producer responsibility” legislation

• Effluent and discharge consents

• Water abstraction licences

• Greenhouse gas emissions permits

• Utilities consents

• Permits/consents associated with the construction and operation of on and offshore installations

Representative matters

• Advising the operator of a major petrochemicals facility in connection with PPC permit surrender issues, in particular obligations to clean up contamination to baseline conditions.

• Advising numerous separate clients in relation to the applicability of use class exemptions from the need to hold electricity supply and/or transmission licences under the UK’s Electricity Act 1989.

• Advising a UK specialty chemicals manufacturer on environmental indemnity, IPPC and real estate issues associated with the closure of a major chemical works in South Wales.

• Advising energy generators, automotive, chemicals and telecommunication manufacturers, fuel service providers and many others on PPC consent/integrated environmental permit issues.

• Advising and negotiating with regulatory authorities relating to industrial water abstraction, water discharge and trade effluent agreements.

• Representing the landlord in the grant of an “oven-ready” long lease of part of a former petrochemical complex to the developer of a new CCGT power plant, including obtaining all necessary consents and a transfer of historic and future environmental risk to the developer.

• Advising clients in the waste industry and other sectors in relation to various aspects of the UK waste management licensing regime and the “waste duty of care” requirements.

Permitting

Case Study We were instructed to conduct a review on behalf of the operator of two UK petrochemical plants of its permitting arrangements, including its PPC, GHG and landfill permits. We worked alongside environmental consultants to review the extent to which the operator was in compliance with the permit conditions (including whether any reporting obligations had been triggered as a result of the identification of significant contamination that was potentially migrating offsite into a river) and assess its potential liabilities upon permit surrender, i.e. to remediate the site back to baseline level. The review identified that the operator had not been complying the soil and groundwater monitoring obligations under its SPMP (Site Protection and Monitoring Plan) and also that monitoring boreholes established at the start of the permit had been incorrectly installed, resulting in potentially inaccurate monitoring data. We worked with the operator to address this without triggering reporting duties, to ensure that the operator had sufficient quality data when required for the purposes of preparing a Site Condition Report for the eventual surrender of the permit. The review ultimately facilitated the successful transfer of all relevant permits to a purchaser of the sites with a full release for the seller.

Permitting

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Reed Smith is one of the world’s leading energy law firms, and the firm’s environmental team advises clients on a wide range of environmental issues associated with the generation, supply and consumption of energy, including:

• Sustainability and support of biomass and biofuels

• Renewable energy incentive mechanisms

• Energy from waste

• Energy procurement

• LNG and shale gas

We also advise on all aspects of international climate change and emissions law and policy, including emission reduction projects, emissions trading, carbon disclosure and reporting requirements, insurance of climate change risks, and carbon capture and storage. Our work covers:

• All aspects of the European Union Emissions Trading Scheme (EU ETS)

• Emissions reduction projects under the Kyoto Protocol flexible mechanisms (Clean Development Mechanism (CDM) and Joint Implementation (JI) projects)

• Voluntary emissions reduction projects and offset initiatives

• Carbon trading disputes

Representative matters

• Assisting a European national oil company in security-appropriate duty exemptions and renewables obligation certificates in respect of its supplies of biodiesel made from 100 percent hydrogenated biomass.

• Separately advising various power generation and distribution companies, an aircraft manufacturer and lessors, a pharmaceuticals manufacturer, several major oil companies, and others on their rights and obligations under Phases I, II and III of the EU ETS, and the strategic issues arising.

• Advising the UNFCCC’s Green Climate Fund in relation to the establishment of a framework agreement to provide funding of up to $100bn annually for climate change adaptation and mitigation projects.

• Representing various project developers and private and institutional investors in a number of CDM and JI projects around the world, including in Africa, Brazil, Mexico, China, Russia, Bulgaria and Israel, in relation to due diligence, project development, financing and implementation, and all regulatory aspects of project approval, emissions reduction verification, and credit issuance and distribution.

• Representing a consortium of investors on the construction of a new 25 MW biomass fired power plant, intended to provide power to the production plant of a global automotive manufacturer, including: input to planning application, negotiation of 100 year site lease and all access rights, accreditation under the Renewables Obligation Order, 5-year renewable contract for the supply of biomass, power purchase agreement, grid connection and EPC construction contracts.

Energy and emissions

Case Study We were appointed by one of the largest corporate consumers of power in the UK to represent it in procuring a 5-year, £200 million per annum contract for the supply of renewable electricity to meet all its UK power needs. We helped the client to develop documents supporting a competitive tender process, to hedge forward positions in advance of conclusion of the main supply contract and then to conduct negotiations to near final contract terms with three separate power suppliers. The client had adopted a company policy to source 100% of its power from renewable sources. The contract therefore included detailed provisions relating to the sourcing of power and associated “green certificates”, electricity source labelling, future proofing against changes to future renewable energy policy and taxation, and the sleeving into the contract of the client’s various existing renewable power PPAs.

Energy and emissions

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We advise some of the world’s leading producers and suppliers of consumer and business products on the range of laws and regulations governing supply and use of substances, product design and safety, use of materials, labelling, packaging, marketing and end-of-life obligations.

We assist clients throughout the life cycle of their products to implement product stewardship measures, work effectively within their supply chain to achieve compliance, manage regulator interactions and resolve compliance issues.

Our services in this area include:-

• EU REACH and other global REACH-like regimes

• CLP and CE marking

• the Waste Electrical and Electronic Equipment (WEEE), Restriction of use of Hazardous Substances (RoHS) and other “producer responsibility” and take-back obligations

• Batteries regulation

• Eco-design and energy efficiency

• Biocompatibility

• Environmental marketing and ‘green claims’

• Waste management and ‘circular economy’ measures

• Conflict Minerals

• Product safety, withdrawals and recalls

Representative matters

• Advising many different companies in connection with all aspects of REACH compliance, including pre-registration, registration, corporate restructuring to facilitate optimum REACH compliance strategies, issues associated with importation and treatment and processing of product in and outside customs supervision, etc.

• Advising a U.S. fashion retailer on EU General Product Safety Directive, CE marking, safety labelling and packaging requirements in connection with sales into the EU.

• Advising a minerals trading company on Conflicts Minerals due diligence and compliance and assisting them through the process of establishing an effective conflict minerals policy and procedures.

• Advising numerous EU and non-EU clients in the electronics, pharmaceuticals, healthcare and other industries in relation to compliance obligations under WEEE, RoHS and Construction Products Regulations.

• Advising a European retailer in connection with its failure to comply with the producer responsibility obligations regarding packaging waste in multiple jurisdictions.

• Supporting a global manufacturer of electric vehicles to design its lithium-ion battery take-back scheme, including preparing and submitting a position paper to the regulator and successfully obtaining regulatory approval of the scheme.

• Advising a manufacturer regarding green claims requirements under consumer protection laws and the ASA CAP Code.

Product compliance

Case Study A global technology company hired us to carry out a multi-jurisdictional regulatory compliance review in connection with a new consumer product launch. The review was highly confidential and time critical. Since review of the laws of all 28 EU member states was impractical both in terms of time and budget, we worked with the client to devise a targeted risk strategy, focussing on analysis of overarching EU laws and then the carrying out of a gap/variations analysis in a handful of chosen EU jurisdictions selected to cover key sales markets, civil code jurisdictions, eastern and western Europe and jurisdictions perceived to have the most rigorous enforcement regimes. We took the lead in issue-spotting and authoring the primary analysis, supervised the input of local lawyers from our own offices and external firms, including technical consultants where needed, and took the lead in producing an easy to read final combined report. The report covered, among other matters chemical substance regulation, end-of-life take back obligations, batteries regulation, packaging and labelling requirements, eco-design, biocompatibility and electromagnetic interference.

Product compliance

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We advise clients on the vast array of emerging EU and international environmental and climate-change-related legislation.

We have an in-depth, practical understanding of the EU legislative process and considerable experience of successfully lobbying the European Commission, Parliament and EU Council, as well as domestic governments and regulators, to secure amendments to proposed EU environmental legislation on behalf of our clients.

Our emerging legislation monitoring service affords our clients maximum opportunity to seek to influence its form and content, and prepare for implementation.

We can provide a bespoke legislation monitoring and government relations service for clients to suit their particular needs and budget.

Representative matters

In recent years we have advised clients on compliance with and/or lobbied on behalf of clients for legislative change in relation to:

• ICAO proposals for a global “market-based measures” scheme for international aviation emissions.

• The Waste Electrical and Electronic Equipment (WEEE) Directive and its sister directive on the Restriction on the use of Hazardous Substances (RoHS).

• The REACH Chemicals Regulation.

• The End-of-Life Vehicles Directive.

• The UK’s Community Energy Savings Programme (CESP).

• Renewable Transport Fuel Certificates in respect of biofuels.

• The development, implementation and operation of the EU ETS, including proposals for Phase III of the EU ETS.

• EU proposals to expand the EU ETS scheme to the aviation and shipping industries.

• The Environmental Liability Directive, including proposals to expand its scope to cover all offshore installations.

• The EU Waste Batteries Directive.

Emerging legislation

Case Study Following extensive lobbying efforts, and after eventually having to commence judicial review proceedings against the UK government, we successfully achieved a complete u-turn in government policy on biofuel subsidies and a change in the relevant statute in favour of our client. The UK government offers subsidies to the producers of certain biofuels in the form of Renewable Transport Fuel Certificates. Our client produces a market leading biofuel with many environmental and performance advantages over other more traditional biofuels. Despite this, for historical reasons the relevant legislation was worded so as to award our client less RTFCs than other, less sustainable competitor products. Together with our client, we lobbied the UK Department for Transport and others on this issue, attending several meetings with relevant policy makers to explain the unfairness in the treatment of our client's product, arguing that the relevant UK legislation was unlawfully discriminative and therefore contrary to EU competition and trade laws. Despite acknowledging the strength of our arguments, government representatives appeared unwilling to amend the relevant legislation to remove this inequitable treatment. On behalf of our client, we therefore secured a tactical formal "decision" from the government which we knew would be unfavourable to our client, but enabled us to bring judicial review proceedings challenging the reasonableness and rationality of that decision. In the face of this judicial review challenge, the government backed down and agreed to amend the law. Amending legislation giving our client's product fully equal treatment was agreed with our client in draft, consulted upon and enacted within the same year.

Emerging legislation

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We help our clients assess and manage environmental and product risks, and develop strategies to minimise the potential for litigation or regulatory action. Some disputes are, however, unavoidable, and sometimes it is necessary to take proactive legal action to protect our clients’ interests or defend our clients against regulatory or third-party actions.

We have decades of environmental dispute resolution experience, including representing clients in:

• defence of regulatory investigations and enforcement actions

• toxic tort cases and other civil and administrative litigation, arbitration and mediation

• judicial review of environmental authority decisions

• handling of environmental warranty, indemnity and insurance claims

• dealing with product liability and product recall situations

We can also provide our clients with a global emergency response and risk management service tailored to local legal and commercial conditions.

We have experience in preparing clients to deal with, and guiding them through, on and offshore pollution and other major environmental incidents and explosions and other significant industrial incidents.

Representative matters

• Acting for a major petrochemical plant in a large number of downwind respiratory illness claims alleged to have been caused by emissions from the plant.

• Acting in a fuel oil spillage contamination claim dealing with damage to neighbouring properties, and the co-ordination of a remediation programme approved by the Environment Agency.

• Representing an industrial client in defence of a High Court action involving allegations of common law nuisance and negligence by more than 150 local residents concerning emissions from a coking plant.

• Successfully challenging, by way of judicial review, national CO2 emissions allowance allocation methodology decisions on behalf of several industrial clients dissatisfied with their allowance allocations under the European Emissions Trading Scheme.

• Advising clients in relation to an urgent product recall and liability situation concerning goods and parts supplied in large numbers across the EU containing asbestos, including appointing and working alongside media consultants and technical specialists.

• Acting for an oil major in relation to liabilities arising out of the Buncefield oil storage terminal explosion.

Environmental litigation and emergency response

Case Study Our client had operated its coal and coke production facility for approximately 100 years. A village had grown up around it over the years and many of the local inhabitants had worked at the client's industrial plant. Despite the fact that our client's environmental performance had steadily improved over the years, and was in broad compliance with all applicable environmental laws and permit terms (never once having been prosecuted), personal injury lawyers had advertised in the area and agreed to bring claims against our client in nuisance on behalf of local residents on a "no win, no fee" basis for anyone claiming to have suffered noise, dust and/or odour nuisance from the plant. In all, some 150 households joined the action in which the various claims were consolidated under a "Group Litigation Order" (what in the US would be called a Class Action). The Claimants sought substantial alleged damages for loss of amenity and related losses, and more importantly for our client, an injunction seeking to restrict and/or change the time/nature of the operations at the plant. We defended the proceedings vigorously on behalf of our client over a 4 year period, deploying extensive expert evidence to demonstrate that the allegations of noise, dust and odour nuisance were wildly exaggerated and in some cases simply not possible (for example by correlating complaints with wind speeds, directions, dust deposition rates etc). Ultimately, the claims for an injunction were dropped altogether and we were able to secure a very favourable out of court settlement for our client in relation to the damages claims following a day long mediation with claimant representatives and their lawyers.

Environmental litigation

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We advise on all aspects of waste management law, including duty of care obligations, hazardous and clinical waste regulation, permitting, definition of waste and by-products, and end-of-waste status.

We have acted for waste producers, handlers, processors and landfill operators with respect to operational issues and regulatory interactions.

We also advise on international shipment of waste laws including:.

• the Basel Convention

• the OECD Decision

• the EU Waste Shipments Regulations

• the International Convention for the Prevention of Pollution from Ships (MARPOL)

• other regional and bi-lateral state agreements

• laws relating to NORM waste

The ability to advise clients in this area also requires a detailed understanding of when the law will regard a substance as “waste” (a complex topic in itself) and how the law will determine whether the waste in question is hazardous or non-hazardous. Since most international shipments of waste are by sea, this area also requires and understanding of the interaction between international waste regimes on the one hand and the MARPOL Convention on the other.

Representative matters

Waste management:

• Advising a global pharmaceuticals manufacturer and separately, a global consumer electronics manufacturerin connection with compliance with UK and EU hazardous waste laws.

• Advising a vehicle manufacturer in relation to serious and sustained breaches of waste classification and duty of care obligations.

• Advising a multinational oil and gas company in relation to the handling of oil-contaminated waste water resulting from its tanker offloading process.

Transfrontier shipment of waste:

• Support in connection with applications for prior informed consent.

• Responding to regulatory investigations of international waste shipments.

• The treatment of “off-spec” cargoes.

• Advice in connection with the application of transboundary movement of waste rules to the offshore oil and gas industry.

• Advising a German industrial waste management company in cross-border waste transportation and disposal permitting and compliance.

Waste: management and shipment

Case Study We were instructed by a distribution company to carry out an environmental, health & safety audit of certain aspects of its operations. The original scope of our engagement did not cover waste issues. Our audit revealed excellent levels of compliance throughout the majority of the business. However, although out of scope we identified during our review that the client appeared potentially to be handling waste in the form of returned goods which it was storing and eventually disposing of on behalf of manufacturers for whom it performed packing and distribution functions. In some instances, it appeared that goods that might well be classified as waste were also being shipped across national boundaries, potentially in conflict with international laws on the transboundary shipment of waste. Our remit was expanded to cover advice on waste designation, classification, storage, treatment and permitting and transboundary shipment. In light of our advice, significant amendments were made to the client’s operating procedures to ensure future compliance with waste laws without the need to engage regulators or limit the range of services offered to its customers. Procedures enacted included the manner and timing of the giving of disposal instructions, volumes and periods of storage, aged-stock clearance strategy and the appropriate use of external contractors. The project resulted in our client having a competitive edge over rival firms both in terms of the future efficiency of its operations and protection from regulatory enforcement in a notoriously “grey area” of waste law.

Waste management and shipment

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The closure of industrial and other contaminated sites will tend to crystallise certain environmental liabilities and generate enhanced regulatory scrutiny.

Environmental permits will need to be transferred or surrendered, which may trigger obligations to clean up any pollution caused during the life of the permit. Other site clean-up may be needed to prepare a site for sale and/or redevelopment.

A range of new licences and consents may be required for the demolition, decommissioning and remediation activities proposed.

Our lawyers are experienced in all of these areas. Our services in connection with the decommissioning and closure of on and offshore installations include:

• Environmental Impact Assessment (particularly relevant for offshore decommissioning projects)

• Site condition/baseline comparison analysis

• Development of detailed options appraisals and remediation strategies

• Transfer and surrender of permits

• Negotiations with regulatory authorities

• Associated waste disposal issues

Representative matters

• Advising a multinational tar distiller in connection with site closure, PPC/EPR permit surrender and remediation of an associated landfill and acid tar lagoon upon site closure.

• Advising a UK speciality chemicals manufacturer on environmental indemnity, IPPC and real estate issues associated with the closure of a major chemical works in South Wales.

• Advising various clients in connection with the environmental aspects of the decommissioning of North Sea oil and gas installations.

• Advising a major chemicals manufacturer in the decommissioning and disposal of certain European chemicals manufacturing facilities.

• Advising a chemical manufacturer in relation to the remediation of NORM contamination at a former manufacturing facility.

Closure, decommissioning clean-up and disposal

Case Study We represented the owner and operator in the closure, decommissioning and sale of two chemicals manufacturing facilities in which we successfully secured the transfer of all environmental permits and all historic soil & groundwater pollution risk to the fullest extent possible. The sites had a long history of heavy industrial use and previous site investigations had identified significant contamination at both sites. Most notably, hydrocarbons were suspected to be migrating beyond the boundary of one of the sites into a main river and the other site was significantly impacted by a highly acidic lagoon and landfill. Extensive ground investigations had been performed to prepare the sites for closure and decommissioning when a potential buyer for the sites was found. The parties agreed an ambitious timescale to reach exchange of contracts. Within three weeks our team populated a comprehensive data site, dealt with all buyer enquiries, and negotiated to signature the main asset purchase agreement and related transfer documents which included a full transfer of past and future environmental risk. As part of the acquisition, the buyer agreed to take a transfer of the environmental permits and historic waste management licences for both sites, including all liabilities associated with those permits and licences and this was achieved in the following weeks prior to completion. The sale achieved a successful “clean exit” for the seller from its UK operations.

Closure, decommissioning, clean-up and disposal

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reedsmith.com

Reed Smith is a global relationship law firm with more than 1,700 lawyers in 26 offices throughout Europe, the Middle East, Asia and the United States.

Founded in 1877, the firm represents leading international businesses, from FTSE 100 corporations to mid-market and emerging enterprises. Its lawyers provide litigation and other dispute-resolution services in multi-jurisdictional and high-stake matters, deliver regulatory counsel, and execute the full range of strategic domestic and cross-border transactions. Reed Smith is a preeminent advisor to industries including financial services, life sciences, health care, advertising, entertainment and media, shipping and transport, energy and natural resources, real estate, manufacturing and technology, and education.