ENVIRONMENTAL LITIGATION
(Briefs)
ENVIRONMENTAL ISSUES IN TRANSACTIONS
ENVIRONMENTAL COMPLIANCE
ENVIRONMENTAL LITIGATION
Mayer Brown's environmental group is uniquely qualified to resolve environmental disputes advantageously: MBEPA is experienced in the many regulatory schemes and administrative procedures at issue (in many cases having participated in development of the pertinent regulations) and has substantial experience in trying and winning a broad array of environmental cases. Our background enables the lawyers in MBEPA to settle quickly cases that should be settled and to try those cases that must go to trial. Because of the extensive courtroom experience within the practice group, we do not need to pass off cases which go to trial to non-environmental lawyers. This gives our clients continuity and substantive expertise in the courtroom. Discussed below in more detail are recent examples of cases that MBEPA handles on a regular basis.
BRIEFS
OPINIONS
Civil Enforcement Actions
EPA, the states and sophisticated citizens groups are increasingly suing industry to enforce federal and state air, water, hazardous waste, and reporting requirements, typically seeking staggering civil penalties. We are defending and have defended a wide variety of such suits.
We prevented the shut-down of a major oil refinery by the Illinois Attorney General's office, which erroneously claimed that the refinery was environmentally unsafe.
We successfully defended at trial and on appeal a citizen suit seeking payment of substantial fines by a large manufacturer for alleged RCRA violations and remediation of certain areas of claimed contamination.
Representing a furniture manufacturer, we successfully defended several separate USEPA claims of air permit and PSD violations, including winning a Sixth Circuit appeal providing for preenforcement judicial review of a USEPA stop work order (Tennessee) and obtaining summary judgment on a federal claim of violation of air regulations (Illinois).
Toxic Torts/Class Actions
We defend individual and class action claims against companies for personal injuries based on actual or threatened exposure to hazardous substances, including claims for "fear of" injuries and related requests for medical monitoring, for property damages, including diminution of property value, and consequential and punitive damages. These claims usually involve complex medical/technical matters and may coincide with OSHA or NIOSH investigations, which investigations MBEPA has handled in a number of cases.
We are currently representing an Illinois chemical industry client in a series of individual and class action claims alleging medical injuries and property damage due to historic emissions from manufacturing operations (in conjunction with "wall-to-wall" OSHA and environmental inspections).
We represented a Pennsylvania heavy industrial manufacturer in consolidated cases alleging medical injuries due to exposure to various substances, including cadmium and fluorides (in conjunction with NIOSH investigation and epidemiologic report).
We represented a Wyoming chemical company in class action claims alleging exposure to toxic fumes over long periods resulting in personal injury, fear of cancer and property value diminution.
We are representing a New Jersey chemical company in a class action alleging that various chemicals supplied by the company caused various kinds of cancer.
We represented a Texas chemical company in a massive toxic tort litigation brought by steel company employees against all suppliers of alleged toxic materials to the plant.
We represented an Illinois landfill owner in a case alleging cancer due to groundwater contamination.
We obtained a favorable jury verdict in defense of a groundwater contamination case in Montana.
Statutory Cleanup Actions
Although various "Superfund" reforms have been adopted, the government continues to bring statutory cleanup actions, as do private parties with contaminated properties. We have litigated actions initiated by the government and by private parties under federal and state Superfund laws. The issues we have addressed include NCP compliance, remediation costs, complex corporate liability questions, allocation, and the validity of settlements. We have negotiated numerous settlements, including consent decrees with the government, and served on the executive committees of various Superfund PRP committees. We also have considerable experience in natural resource damages matters. Coincident with these cases, MBEPA also typically works closely with federal and state officials and consultant groups on developing appropriate remediation plans. We successfully represented a large landfill operator that was the lead defendant in an Indiana Superfund Site in third-party actions against numerous other PRPs to recover remediation costs. Following extensive discovery and successful motion practice, through settlement we recovered over $16 million.
We successfully represented a major Michigan manufacturer against tort and CERCLA claims brought by a neighboring manufacturer alleging that contamination from client's operations forced the neighbor to go out of business and incur in excess of $200 million in alleged damages.
We obtained a favorable jury verdict in defense of a groundwater contamination case in Montana.
We represent the primary participating PRP in a river and harbor sediment cleanup in the Midwest.
We currently serve as counsel to the lead potentially responsible party at several major groundwater contamination sites in Southern California. The representation has included the negotiation of several separate consent decrees with EPA, water supply agreements with two municipal governments, and arbitration and litigation with respect to allocation issues with other PRPs.
We represented a chemical company in negotiation of investigation orders for a radioactive waste site in New Jersey.
We defended a chemical company in a CERCLA cost recovery claim for multi-million dollar cleanup in Virginia.
We obtained de minimis settlement for a chemical industry defendant that had been lead defendant in a USEPA Superfund action after developing proof that client had not contributed to the contamination at issue in Illinois.
We defended a private CERCLA action with related bankruptcy complications for alleged VOC contamination of groundwater in property used in a New Hampshire railroad yard.
Natural Resource Damage
One of our partners has served as lead counsel to a prominent paper manufacturer in the defense of the first natural resource damage action brought by the United States against industrial dischargers in Southern California. The government was induced to settle the matter on terms favorable to the client after the client instituted third-party litigation against over a hundred local governmental entities that discharged to the same water body.
Private Actions for Cleanup Costs
There are often private cleanup disputes between the seller and purchaser of industrial property that center on the representations, warranties, and indemnities of the underlying transaction documents. We have litigated actions between the purchasers and sellers of facilities that are allegedly contaminated or are violating environmental requirements where the underlying indemnities, representations and warranties were central to the case:
We defended a claim for multi-million dollar asbestos remediation costs under a sales agreement, including winning a Delaware Supreme Court decision that the claim was properly brought as a declaratory action in Delaware. (Delaware and Pennsylvania)
We represented a manufacturing company that had sold a lumber business years ago through trial and appeal in the Third Circuit on CERCLA claims alleging that our client retained responsibility for related remediation expenses on the order of $600 million.
We negotiated the successful resolution of a claim for remediation costs in excess of $4 million on behalf of a Wisconsin manufacturing client that purchased a contaminated facility.
We won summary judgment on behalf of an Illinois petroleum pipeline operator against a claim that the client was responsible for contamination caused by the preceding owner of the pipeline, which corporation had since dissolved.
We represented a defense industry manufacturer in a CERCLA action to remediate a substantial spent solvent plume in California.
Challenge to Governmental Action/Permitting Appeals
Under the environmental laws, a regulated entity often has a limited opportunity to challenge an agency action such as a regulation or permit. Such challenges must be brought within a specific period of time and usually cannot be raised as a defense to an enforcement action. We have broad experience in representing industry in challenges to permit denials and related enforcement actions. We also prevailed in one of the few successful preenforcement review cases.
We represented a large national manufacturer in appeal of RCRA corrective action permits before the Environmental Appeals Board and the state of Ohio.
We successfully represented on appeal an Illinois municipal waste combustor seeking to reverse denial of various permits, after having won from the EAB a requirement that IEPA issue necessary federal permits.
One of our partners challenged the California state ambient air quality standard for sulfur oxides on behalf of a major West Coast trade association. The standard was invalidated based on scientific inadequacies.
We represent a large national agricultural group in preparing challenges to USEPA policies for regulating various agricultural activities under the Clean Water Act.
We represented manufacturing and chemical industry clients in a challenge to the federal implementation plan adopted for the Chicago area and achieved stay of regulations and favorable plan revisions for clients.
We represented landfill operator in proposing Illinois state landfill regulations and defending proposal on appeal.
We represented an Illinois city in successful defense of its decision barring landfill expansion.
We challenged statewide packaging review legislation before the Supreme Court of Minnesota.
Criminal Investigations and Actions
Federal and state governments increasingly are "criminalizing" perceived environmental misconduct. Often, corporate executives are personally at risk of jail time. Our attorneys have experience in all aspects of criminal actions, from the typical "wall-to-wall" investigations and inspections through the grand jury process and trial, as well as in the inevitable media relations issues.
We represent a chemical industry client in grand jury investigation of alleged CWA and RCRA violations in Illinois.
We successfully represented a chemical industry client in grand jury investigation of alleged CWA violations in West Virginia.
We recently handled the defense of a prominent real estate management company in a criminal prosecution for improper disposal of hazardous materials.
We represented a recycler in a Fourth Amendment claim and criminal investigation defense in Minnesota.
We defended an Illinois toxicological laboratory at trial against claims of criminal misconduct.
Environmental Disasters
At times clients are struck by unexpected disasters such as explosions at plants, ships that catch fire, and sudden releases from trucks or railcars. These cases require experienced crisis management, involving complex and interrelated issues of community relations, media management, and liability minimization. We provide on-the scene assistance to minimize litigation and defend related lawsuits.
We have represented a major Illinois refinery in mitigating the effects of an explosion that caused two deaths and a subsequent fire, and the ensuing governmental investigations, enforcement actions, and private litigation.
We represented a major French oil company in responding to a tanker sinking off the Gulf Coast and releasing significant quantities of oil, including advising on the successful cleanup of the spill and insurance recoveries.
We represent an Illinois manufacturer who shipped product blamed for an explosion and the extensive shutdown of the product purchaser's manufacturing operations.
Takings/Condemnation/Governmental Action
Some governmental actions may constitute a "taking" or other constitutionally infirm interference with private property. We have sued local governments for constitutional violations based on ordinances and other regulations adopted by those governments, and we have also represented a variety of clients in condemnation proceedings that have environmental issues, such as whether the condemning body is acting in compliance with the National Environmental Policy Act:
Representing a major fertilizer manufacturer, we filed a lawsuit in Florida state court challenging certain "setback" regulations that substantially inhibited our client's ability to mine its property, and subsequently negotiated a favorable settlement that the client valued at approximately $160 million.
We successfully represented a major Illinois limestone quarrying operation in fending off a condemnation threat by a governmental body that wanted to convert the quarry into a reservoir.
Representing a landfill operator we brought suit under civil rights laws for denial of access to POTW and achieved favorable settlement.
On behalf of Illinois chemical manufacturer we successfully overturned a local ordinance that made its operations illegal.
Insurance Coverage
We represent policy holders in environmental coverage litigation under comprehensive liability insurance policies:
Representing a major heavy equipment manufacturer, we are seeking recovery of several million dollars in remediation costs for various manufacturing facilities from California to New York.
Representing a major manufacturer, we obtained a successful settlement of claims related to a Superfund cleanup.
We represented a major railroad in claims against an insurer for remediation costs in western states.
ENVIRONMENTAL ISSUES IN TRANSACTIONS
MBEPA is involved in hundreds of deals annually across the country as an integral part of our practice. Consequently, our environmental lawyers have developed a broad range of experience with all types of property transactions. We evaluate potential liabilities and regulatory compliance in conducting environmental due diligence and negotiate the environmental portion of the deal. We frequently handle post-closing compliance and remediation activities. The types of properties with which we have worked include such typically problematic properties as petroleum refineries, quarries, scrap yards, landfills, manufacturing facilities, dry cleaners and military sites. Clients include real estate investment trusts (REITs); developers and lending institutions; food processing, mining, chemical, and waste disposal and recycling companies; and heavy industrial manufacturing companies.
REITs
We assist many publicly traded and privately held REITs in developing environmental policy in acquisition strategies in the U.S., Mexico, Europe and Central Asia. We represent REITs in hundreds of domestic and international transactions annually involving retail shopping malls, office buildings, hotels, warehouse facilities, manufactured housing parks, and multi-family communities.
Mergers and Acquisitions
A substantial part of our practice is providing the environmental expertise to evaluate and negotiate identified and potential environmental liabilities in corporate transactions involving industrial and manufacturing concerns.
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We are representing a significant scrap metal recycler in numerous corporate acquisitions and mergers nationwide.
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We represented an oil and gas manufacturer in its acquisition of a 90-year old, 200,000 barrel-a-day Texas refinery.
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We represented a steel company in acquisitions of sites on the east coast.
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We represented a purchaser of over 700 gas stations out of bankruptcy proceedings.
Lending
We have developed environmental policy and due diligence protocols for lending institutions in connection with their commercial real estate and mortgage lending. We have also assisted such clients in updating and standardizing environmental language in security agreements and environmental indemnity agreements. We represent several national lenders in evaluating risks in financing for various real estate investments and acquisitions. For example, we represented a lender in the acquisition of over 1,000 oil and gas sites in western states and developed the strategy to conduct an appropriate environmental due diligence review.
International
We provide environmental counseling in the purchase of manufacturing facilities, industrial and commercial contaminated sites, and multi-site portfolio deals in many international arenas.
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We assisted a joint venture interest in acquiring chemical manufacturing facilities in Australia, the United Kingdom, and the Philippines.
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We advised clients on the acquisition of warehousing sites, parking structures, office buildings, and refrigeration facilities in Europe and Asia.
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We assisted in the acquisition of vacant land for commercial development in Mexico.
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We provided advice in connection with due diligence for overseas acquisitions in France, Germany, Spain, Italy, Belgium, Poland and Australia.
ENVIRONMENTAL COMPLIANCE
MBEPA has been counseling clients on environmental compliance since the early 1970's when Congress first enacted the cornerstone Clean Air Act, Clean Water Act and Resource Conservation and Recovery Act legislation. We are actively involved in the development and amendment of key state and federal regulatory programs as well as in the arena of environmental compliance. As a result, we offer experience and expertise in the development of practical strategies for achieving regulatory compliance, responding to governmental inquiries, and avoiding costly environmental litigation. We also bring to the table extensive experience in counseling clients on how to avoid future environmental problems and how to take advantage of environmental opportunities.
Regulatory Advice
The environmental statutes and their implementing regulations can be extremely complex and their interpretation often benefits from information about their historical background as well as experience in analogous areas. We have extensive experience with the statutes in question and can provide advice based on experience without the need for extensive research. Examples of areas of expertise include:
Broad representation with respect to the Clean Air Act, including Title V permitting, state implementation plan and federal implementation plan adoption, appeal and enforcement, new source permitting and appeals, offsets and bubbles, stop work orders and preenforcement review.
Extensive experience with the Resource Conservation and Recovery Act regulating hazardous wastes and solid wastes, including RCRA permitting and appeals, corrective action orders, generator and 90 day storage issues, citizens suit issues, and Subtitle D solid waste regulatory adoptions and enforcement.
Experience under the Clean Water Act which includes: adoption and appeal of categorical discharge standards, implementation and review of NPDES and stormwater permitting, enforcement proceedings and Corps of Engineers and wetlands issues.
Experience with regulation of PCBs under TSCA.
Land Contamination and "Brownfields" Issues
Looming environmental liabilities caused many urban industrial and manufacturing sites to become vacant. Recently, federal, state and local governments have encouraged development of these "brownfield" sites through enacting various legislation. We have extensive experience counseling clients on developing such "brownfield" sites from coast-to-coast, and provide expertise on a wide spectrum of contaminated property issues, from identifying strategies for risk-based voluntary remediation to obtaining "no further action" letters from governmental agencies. Members of MBEPA were extensively involved in drafting the Illinois brownfields legislation, known as "TACO."
We are representing the owners of property within designated California Superfund sites in obtaining releases from liability.
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We represented the purchaser of multi-parcel industrial site in Houston for residential redevelopment, one of the first to participate in Texas voluntary cleanup program.
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We represented a manufacturer with the environmental portion of a purchase, finance and construction of new facility negotiated under City of Chicago TIF redevelopment agreement.
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We represented the purchaser of a former steel and wire manufacturing site which conducted the first remediation under new Illinois TACO regulations.
Waste and Materials Management
Through a variety of federal and state statutes and regulations ranging from the federal Resource Conservation and Recovery Act to state and local underground storage tank requirements, businesses across the country face significant regulation of waste, chemicals and other materials. MBEPA has extensive experience in all aspects of these requirements, from the siting and permitting of waste treatment, storage and disposal facilities to counseling clients on RCRA regulatory compliance, waste handling and the proper management of chemicals and other materials. We often advise clients on RCRA facility reporting, interim status, permitting and compliance issues and advise clients on RCRA generator and transporter issues.
We assisted a chemical manufacturing plant in obtaining state concurrence in the withdrawal of a RCRA Part B permit application which allowed the plant to replace a facility-wide corrective action with less costly voluntary remedial activity.
We advise property owners regarding duties and liabilities associated with groundwater contamination and the migration of contaminant plumes to off-site properties.
We advise clients regarding regulatory requirements governing leaking underground storage tanks, associated site remediation, and fund reimbursement.
We represent clients in responding to RCRA ¤ 3008(h) "imminent hazard" orders.
We represent an Illinois manufacturing plant in negotiations and litigation over regulatory status of an ash pond.
We have advised on the constitutional aspects of state and local flow control statutes and regulations.
Permitting, Operational Changes and Facility Expansion
We work hand-in-hand with company managers to plan for and minimize the many environmental permitting and regulatory compliance issues that may be triggered by new construction or operational changes.
We represent a major petroleum association on a wide variety of matters, including its negotiations with the South Coast Air Quality Management District in California to develop streamlined permitting and environmental review requirements for substantial refinery modifications which will be required to produce the MBTE-free Phase 3 gasoline which was mandated by the Governor of California.
We helped a large chemical company resolve several outstanding environmental issues at various facilities in connection with transition into two separate companies.
We worked with regional planning commissions, local municipalities and state agencies to help a utility company expand its operations at several of its water treatment facilities to allow it to service the needs of new suburban developments.
Construction, Development and Siting of New Facilities
The development and siting of new facilities often requires effective resolution of wetlands concerns, brownfields issues and a variety of other environmental issues. We frequently develop strategies and techniques in conjunction with the environmental consultants to achieve closure of such issues satisfactory to governmental agencies and financing institutions.
We have been involved in waste facility siting hearings and permitting activities for low level radioactive waste disposal facilities, landfills, balefills and recycling and energy centers.
We obtained necessary approvals to permit one of the first projects designed to use solid waste as a boiler fuel and continue to be involved with significant municipal waste, resource recovery and waste-to-energy projects.
We advised a client on the development of landfill gas-to-energy facilities on former landfill properties and obtaining a "unique use" Special Use Zoning Permit.
Audits and Problem-Spotting
A wide range of operational problems can be detected and resolved through facility-wide environmental audits. We assisted in developing, planning and reviewing internal environmental compliance audits/investigations. For example, during facility-wide operational compliance audits of several food packing companies in the Midwest, we worked with environmental consultants to ensure that potential environmental compliance issues were addressed and negotiated resolutions of outstanding problems with governmental agencies.
Information Management
Businesses today must be prepared to respond to requests for information on a myriad of environmental matters, including the volume and nature of chemicals used, air emissions and wastewater discharges, wastes generated, and the identity of waste haulers and disposal facilities used. We often assist clients with regulatory requirements for maintaining and reporting environmental information and in developing procedures to protect and defend the confidentiality of competitive business information. We routinely assist clients in:
Making and substantiating claims of Confidential Business Information in relation to submissions to state and federal government agencies.
Developing procedures to protect trade secrets, production data, and information development in voluntary environmental audits or site investigations.
Advising industrial and commercial property owners on state and federal release reporting requirements and procedures. Responding to governmental, employee and public information requests and developing emergency response plans.
Changes in Laws, Regulations and Rulemaking
We frequently assist companies and associations in rulemaking and legislative activities to ensure that the specific needs of a company or an industry are considered and addressed before environmental laws and other requirements become final.
We are currently advising one of the nation's largest diesel engine manufacturers with respect to strategic response to efforts by various agencies in California to radically reduce the use of diesel engines in the public and private sectors on the basis that emissions from such engines allegedly contain toxic air contaminants.
We have been involved in several significant regulatory matters on behalf of affected clients, including the development of statewide and site-specific Reasonably Available Control Technology ("RACT") regulations and adoption of and challenge to the Illinois FIP.
We have represented numerous clients in rulemaking proceedings by and regulatory negotiations with the California Air Resource Board, the South Coast Air Quality Management District and various agencies with water quality and hazardous waste control responsibilities in California, including the development of the RECLAIM program for new source review in the South Coast Air Basin.
We have represented a number of clients in recent state rulemaking on risk-based clean-up standards and the development of voluntary site remediation procedures.
We have represented clients in the development of new rules affecting third-party rights to appeal NPDES permits.
For further information about Mayer Brown's environmental law capabilities, please contact any one of our
environmental partners.
