Contaminated Sites and Natural Resource Damages

Our Environmental lawyers represent clients at high-visibility Superfund and contaminated sediment sites throughout the United States. We routinely counsel and represent industrial, manufacturing, and retail clients regarding solid and hazardous waste issues, as well as radioactive waste and hazardous materials transportation. We have defended clients in enforcement actions brought by the U.S. Environmental Protection Agency (EPA), state environmental agencies, and state attorneys general relating to all aspects of hazardous materials and hazardous waste law. This experience affords us key insights in integrating legal, policy, scientific, technical, and community issues into an effective strategy for defending claims and managing compliance, enforcement, and liability for such operations and sites.

“A sizable outfit capable of tackling a range of environmental matters, often representing large industrial clients [and] handling enforcement defense litigation arising from toxic air pollution, manufacturing and mining challenges from EPA and CAA rules. Notable ability in managing environmental natural resource and supply chain issues.”
Chambers USA 2021, Nationwide: Environment

We bring value to our clients in the following ways:

Negotiation and litigation skills: We represent clients and negotiate with government agencies regarding all aspects of site cleanup, including site listing, remedial investigations, human health and ecological risk assessments, feasibility studies, remedy selection, remedy implementation, and government cost recovery, as well as claims for natural resource damages. We have a nuanced understanding of the defense and prosecution of cost recovery and contribution actions, as well as liability for response costs in private litigation. Our experienced litigators develop alternative dispute resolution mechanisms, including arbitration and mediation, among private parties and with government agencies and toxic tort claimants.
Strategic perspective: Our lawyers apply their legislative and regulatory advocacy skills to defend clients against claims relating to liability, remediation, and natural resource damages. We have represented clients in judicial challenges to remedial and natural resource damage rules issued by federal and state agencies, as well as with respect to bankruptcy issues in the context of environmental remediation costs. We also advise on alternative funding mechanisms, including environmental insurance products and liability transfer arrangements.
Deep industry knowledge: Our lawyers are familiar with the state-of-the-art science of many hazardous substances, including polychlorinated biphenyls (PCBs), mercury, per- and polyfluoroalkyl substances, bisphenol A, 6PPD, flame retardants, phthalates, chlorinated solvents, benzene, asbestos, metals (including lead), dioxins, formaldehyde, and radioactive materials. This knowledge is invaluable in reaching realistic and workable solutions to complex problems. We have worked with virtually all of the major consulting firms on matters related to geotechnical engineering, risk assessment, fate and transport modeling, historical analysis, response cost accounting, and economic issues. Our substantial history of working with these firms ensures that our clients receive the best technical advice.

Natural Resource Damages

Natural resource damages (NRD) play a role in many contaminated sites, and recent initiatives in several states have highlighted the importance of these claims. We have experience representing clients at all stages of the NRD claims assessment process, including challenging U.S. Department of Interior and National Oceanic and Atmospheric Administration regulations and methodologies that trustees may use in assessments, codeveloping natural resource restoration plans and projects with trustees to compensate for alleged damages cost-effectively, and litigating economic valuation issues.

Sediments and Groundwater

We represent clients at some of the largest contaminated river, sediment, and groundwater sites in the country. Our procedures include identifying contaminants and their likely sources, as well as the geographic area of concern, through an evaluation of both downstream and upstream areas. We work with the nation’s top fate and transport modelers to determine the risks of exposure to contamination, including how activities such as water withdrawal and anticipated natural events will affect exposure to humans and wildlife.

We evaluate peer-reviewed toxicity assessments and challenge deficient toxicity assumptions both administratively and judicially. Our lawyers participate in site-specific scientific peer reviews of risk assessments and modeling studies and develop community relations programs to minimize the risk of tort claims and build consensus for remedies.

Hazardous Waste

Our lawyers provide effective advice on the full array of issues related to the storage, transportation, and disposal of solid and hazardous waste materials. We are particularly well suited to handle enforcement matters arising under all major federal and state environmental laws, including the Resource Conservation and Recovery Act and the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).

Toxic Substances and Green Chemistry

EPA has the authority to control how both new and existing chemicals on the Toxic Substances Control Act (TSCA) Inventory are manufactured, processed, distributed, and used by manufacturers. Our lawyers assist clients with TSCA regulatory and litigation matters, including compliance assistance and enforcement defense. We work closely with toxicologists, analytical chemists, and other science experts to prepare evidence-based TSCA risk evaluations. We represent companies in TSCA enforcement proceedings, conduct audits so that they are protected by the attorney-client privilege, and counsel companies in self-disclosure actions.

In addition, our practice includes counseling and advocacy on state chemical ingredient disclosure and liability issues, including the California Air Resources Board’s volatile organic compounds, California’s Green Chemistry Initiative, and Proposition 65; Washington, Vermont, Oregon, Maine, and other state green chemistry laws; and state chemical-specific restrictions on products.

Through our offices in Europe and Asia, we provide global compliance assistance throughout the supply chain to comply with law in all jurisdictions, such as the European Union’s Registration, Evaluation, Authorisation, and Restriction of Chemicals.

Representative Matters

Recent examples of our work include the following:

We, for many years, have played a leading role in the Berry’s Creek PRP Group. Through our strategic efforts, our client has helped redirect the course of EPA’s remediation activities away from a large-scale marsh removal action that would have been extremely expensive as well as environmentally damaging. We worked with EPA to develop an adaptive management, phased remedy approach that allows the PRPs to demonstrate that a more limited waterbody sediment removal may successfully address contamination issues. We also represent our client in allocation proceedings for the site.
We represent two PRPs at the Portland Harbor NPL Site, at which remediation costs are expected to run into the multiple billions. We represent these parties in helping to develop group strategy for dealing with EPA; took the lead for the group in compiling voluminous technical and legal comments against the proposed plan for the site; are working to ameliorate what we believe to be an unnecessarily expensive and impracticable remediation plan for the site; and are participating in ongoing allocation proceedings for the costs of the anticipated remediation.
We represented the single potentially responsible party (PRP) at a PCB Site in New York containing 40 miles of Hudson River sediment contaminated by PCBs and the associated floodplains. Our work has included: direct involvement in the EPA’s remedial action/feasibility study (RI/FS) for the River; the EPA’s selection of a significant dredging remedy in the Upper River; the negotiation of consent agreements for the design and implementation of that remedy; the implementation of the dredging remedy in 2009–2016; the successful defense of a lawsuit by the State of New York challenging EPA’s Certification of Completion of the dredging remedy; negotiation of a consent agreement for an RI/FS of the River floodplains; implementation of that agreement; assistance in assessing potential liability for the Lower River; and assistance in preparation of the defense of CERCLA NRD claims by federal and state trustees.

We represented the single PRP at a PCB Site in Massachusetts and Connecticut, comprising an approximate 250-acre former plant site and associated upland areas and miles of downstream sediment, banks, and floodplains contaminated by PCBs and other constituents. Our work has included direct involvement in the negotiation of a consent decree with the federal and state governments; the resolution of cost recovery and NRD claims; the negotiation of a unique brownfields agreement for redevelopment of the plant site; and representation in connection with decree implementation, including: the investigation, risk assessments and evaluation of alternative remedies for the plant and the Housatonic River; appeals from EPA’s remedy for the Housatonic River; and reviewing, defending, and successfully disputing EPA response cost claims.
We represented one of the PRPs at a PCB Site in Wisconsin in conducting the largest environmental dredging project in the U.S., involving 39 miles of sediments contaminated by PCBs, including portions of Green Bay.
We represent a PRP in connection with the Hackensack River superfund site. We are working to ensure that any investigation of the Hackensack will be undertaken appropriately, that risks are adequately assessed, and that work takes into account the multiplicity of sources in the Hackensack River.
We represented, as part of a larger legal team, a solvent mining company in the successful mediation of the largest ability to pay settlement for natural resource damages.
We represented one of a handful of PRPs at a PCB Site in Michigan, involving 80 miles of sediments allegedly contaminated by PCBs, including at trial of a lawsuit brought by one PRP against the others in the U.S. District Court for the Western District of Michigan and seeking to allocate hundreds of millions of dollars in past and anticipated future costs for cleanup of the river and several landfill and mill sites along the river.
We represented an integrated lead mining and processing company in negotiations with the U.S. Department of Justice, EPA, and other federal and state agencies to address the governments’ claims regarding legacy liability for environmental cleanup and alleged injuries to natural resources resulting from lead mining and smelting operations.
We represented a large scrap metal recycler in connection with the creation of a hazardous materials compliance program.
We represent industrial manufacturers, importers, and consumer product companies with legal support on all aspects of TSCA.
We represent clients with TSCA confidential business information claims, substantiation requirements, and public records act requests.
We represent manufacturers and importers regarding compliance with Significant New Use Rule regulations by EPA’s new chemical program.
We represent multinational companies in conducting TSCA compliance audits, which include a review of numerous toxicological test results for reporting as Section 8(e) substantial risk information.
We represent clients in navigating the conflicts and inconsistencies between the TSCA and federal and state statutes governing pesticides, foods, drugs, and cosmetics.

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