Environmental law attorney Andrew L. Kolesar on the consequences of toxic decisions
Published in 2014 Ohio Super Lawyers magazine
on December 4, 2013
Updated on December 5, 2013
The American industrial age is ending and Andrew L. Kolesar has a front-row seat.
It’s Kolesar’s job, as leader of the environmental practice group at Thompson Hine in Cincinnati, to assist companies in regulatory enforcement matters, enforcement defense and environmental litigation. This includes dealing with the legal issues surrounding contaminated industrial properties that may require a certain level of cleanup, before selling and repurposing into a residential, commercial or industrial property.
These properties are commonly referred to as “brownfields” and are home to many hazardous substances. “It runs the gamut from arsenic to zinc and hundreds of substances in between,” Kolesar says. “One of the more common problems is the presence of industrial solvents in soil and groundwater, particularly chlorinated solvents such as tetrachloroethylene (also referred to as PCE), trichloroethylene.”
Kolesar warns everyone involved against rash decision-making when litigating around these contaminated sites.
“Selling that old industrial property to the first buyer that comes up may not be a good thing,” he says. “It may be an inexpensive sale price so the buyer thinks he is getting a good deal. And the seller thinks he is making a good decision of getting rid of the property and getting out of town. But if that property is contaminated and the buyer uses that property for some use that is inappropriate—for example, putting a day care center or condominiums on a property that has contamination—that may just make the liability bigger.”
Day care center? On a contaminated site?
That is a hypothetical in Kolesar’s experience. But he has seen contaminated properties become residences and assisted living facilities, and he has been involved in the aftermath of those toxic decisions.
“That’s an example of what proactive companies are trying to avoid,” he says, “and what I’ve been active in helping them avoid.”
The level of cleanup, he adds, depends upon the property’s future use. “Cleaning up to residential standards generally is much more expensive than cleaning up to commercial/industrial standards,” he says. “If a property is in an industrial area, it may be relatively inexpensive to remediate to meet industrial standards, for example, by capping soil contamination with an asphalt parking lot to ensure that employees will not be in direct contact with soil contamination.”
Kolesar’s practice involves representing sellers of former manufacturing plants more often than purchasers, often on a national basis. But one client is closer to home.
Kolesar grew up in Hamilton, 40 miles from Cincinnati, where his father was an insurance agent and his mother a homemaker. He fished in local creeks and ponds, played outside all day, rooted for the Big Red Machine. He went to Virginia Military Institute on a basketball scholarship. At Ohio State, he graduated with a master’s in civil engineering, got a job with a consulting firm in Columbus, then became an environmental manager for Whirlpool Corp. in Marion. Regulatory issues, particularly in hazardous waste, came to the fore. “I worked with lawyers as part of my job and I liked what they were doing,” Kolesar remembers. “So I decided to go to law school.”
After a stint with Skadden, Arps, Slate, Meagher & Flom in Washington, D.C., he returned to Ohio in 1995. Since then, he’s represented Hamilton, his former hometown, in environmental matters.
Hamilton has a rich industrial history—General Motors Co., Champion Coated Paper Co. and Mosler Safe all had plants there—and Kolesar was instrumental in the recent repurposing of one 106-year-old facility. Generally referred to as “the former Smart Papers facility,” it was originally owned and operated by Champion Paper, then International Paper Co. and finally Smart Papers Holdings. Kolesar coordinated Hamilton’s due diligence before it acquired the property.
“I worked with an environmental consultant to evaluate existing information about the property that we could obtain from publicly available sources,” Kolesar says. “This is generally referred to as a ‘Phase I Environmental Site Assessment.’ I then advised the city manager, city law director and eventually city council on the environmental risks associated with owning the property and ways to minimize those risks.”
What were the risks? Kolesar isn’t at liberty to say.
In the course of his career he’s seen some remarkable old facilities demolished. Yet he’s an optimist for the post-industrial age.
“At the end, you have a beautiful office building, or a park or a new manufacturing plant,” he says. With the former Smart Papers facility, which once employed as many as 5,000 people, he says the city is attempting to sell or lease parcels of the property to manufacturing companies or property developers. “The city’s objective is to get the property back into productive use as soon as possible,” he says. “That effort is ongoing.”