When it comes to the legal challenges of a Superfund site, experience is everything. At Jackson Walker, we have that experience. Our attorneys have been involved in more than 300 Superfund sites, including sites in each of the 10 Environmental Protection Agency (EPA) regions across the country. We represent a wide variety of potentially responsible parties (PRPs) and PRP groups in all issues related to the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and analogous state laws, including enforcement actions, cost recovery and contribution cases, property transactions, permitting, and compliance.
Our attorneys have represented PRPs (both big and small) and PRP groups at every stage of the CERCLA process, from CERCLA 104(e) requests, initial notification of potential liability, through site closure and redevelopment. Jackson Walker is a pioneer in the industry and has been involved in precedent-setting CERCLA cases. We have decades of experience in the rapidly evolving area of Natural Resource Damages (NRD) claims, during which we have helped clients resolve significant state and federal NRD claims in a number of jurisdictions. Jackson Walker’s wealth of Superfund experience allows us to represent our clients effectively and efficiently.
Our Superfund attorneys represent our clients in state and federal lawsuits in all regions of the country. Our experience includes the defense of and prosecution of cost-recovery and contribution actions under CERCLA and various state analogs. Our attorneys have established a reputation for obtaining practical, effective, and cost-efficient results.
Members of our Superfund team have substantial experience handling inherently complex property and corporate transactions involving CERCLA sites. Our representation in this area includes due diligence, disclosure, risk management and mitigation, and allocation of liabilities. Our understanding of the unique issues involved with contaminated properties enables us to provide creative solutions for our clients to address current needs and future liabilities.
- Represented the largest PRP at one of the nation’s largest Superfund Sites in California. Managed precedent-setting litigation for the PRP Group against numerous non-settling parties resulting in settlements of $66 million dollars. Also, negotiated the first three consent decrees for cleanup of this complex site.
- Represented client in response to a Unilateral Administrative Order from EPA related to a pesticide custom formulation facility in rural Georgia. EPA failed to name all of the responsible parties. We filed a contribution lawsuit against other PRPs and achieved settlements with all defendants to client’s satisfaction. Most defendants settled by contributing money. However, we reached a creative, business-driven settlement with a railroad company whereby services were rendered in lieu of cash to resolve this matter.
- Represented mining company in CERCLA suit brought by landowners near Georgetown Lake in Montana. Obtained favorable settlement immediately after oral argument on motion for summary judgment.
- Represented chemical company in precedent-setting CERCLA litigation through appeals in the 8th Circuit and on brief to Supreme Court. Obtained very favorable result after arbitration of the case.
- Retained to bring CERCLA contribution action against non-settling parties for a site within the boundaries of a National Park in Ohio. Worked closely with the National Park Service and Department of Justice to effect settlements with all defendants. Client and the United States agreed to share recoveries in this case.
- Negotiated the first Consent Decree in Washington State involving the use of a custodial trust and environmental insurance to resolve liability issues. In this unprecedented agreement, the owner and responsible party transferred a 50-acre federal Superfund site to a custodial trust negotiated and established for the purpose and which is administered under the supervision of the Washington Department of Ecology and US EPA Region 10. The transaction also involved the negotiation and purchase of a manuscripted 30-year finite risk environmental insurance policy. The owner and responsible party obtained a full covenant not to sue and contribution protection under applicable federal and state law. Amid this representation, we also represented the owner in its sale of the remaining approximately 200 acres of the Superfund site, including the former manufacturing facility, and other neighboring properties to a variety of purchasers utilizing specially tailored risk management tools in each transaction to ensure the long-term protection of the seller.
- Represented a responsible party with over 50 years of environmental liabilities at numerous contaminated sites across the United States, successfully negotiating a groundbreaking multisite environmental Consent Decree with three federal agencies, including all 10 U.S. EPA regions; the states of California, Rhode Island, and Washington; and the Puyallup Tribe of Indians. The agreement resolved nearly $600 million of asserted liabilities at approximately 100 separate Superfund sites, ensured favorable treatment of future claims regarding future sites, and provided a full covenant not to sue and contribution protection under applicable federal and state law, including a release of Natural Resource Damage claims. The Consent Decree was approved by the U.S. Bankruptcy Court for the District of Delaware.
- Represented the buyer in its acquisition of two adjacent tracts of land in New Jersey, one of which is a federal Superfund site and both of which are contiguous to a significant tract of high-profile, high-value wetlands, from a leading energy company. The transaction involved a negotiated assumption of liability by the buyer, a specially designed environmental escrow agreement, and carefully optimized environmental insurance to cost-effectively protect both the seller and the buyer from both known and unknown environmental liabilities, including natural resource damage claims.
- Represented a third-party liability transfer company which assumed multimillion dollar pre-existing environmental liabilities on behalf of the buyer and seller as part the sale of a large Superfund site in New Jersey. The transaction and representation involved development and negotiation of a new remedy, Scope of Work, and Consent Decree with U.S. EPA Region 2; development and negotiation of a complicated purchase and sale agreement and manuscripted insurance policies; and unique issues resulting from the anticipated ongoing operations and planned facility upgrades, requiring the development of unique contractual and risk management and allocation tools.
- Represented the responsible party in a multimillion dollar, multisite third-party liability transfer transaction with a third-party environmental liability company involving the transfer and assumption of responsibility for a portfolio of sites which included a Superfund site and a Resource Conservation and Recovery Act (RCRA) facility in post-closure, as well as two state Superfund sites, including the negotiation and implementation of new Consent Decrees. The transaction was approved by the U.S. Bankruptcy Court for the District of Delaware, the U.S. EPA, and environmental agencies in Louisiana and West Virginia, and it resulted in the substitution of the third party for the responsible party on applicable orders and consent decrees.
- Represented a creditors’ committee on environmental matters related to the bankruptcy of an international lead-acid battery manufacturer and evaluation of environmental claims of over $100 million and bankruptcy handling and post-reorganization management thereof.
- Represented a Chapter 11 Debtor-in-Possession to develop and implement a comprehensive strategy to manage and address a multitude of environmental liabilities potentially well in excess of $100 million across more than 100 current and former operations and third-party sites through its complicated reorganization proceedings, including several Superfund and state-lead sites.
- Represented a third-party liability transfer company which assumed multimillion dollar pre-existing environmental liabilities on behalf of the buyer and seller as part of the sale of a large coal- and oil-fired generating plant in New Jersey. The transaction involved manuscripted insurance policies and unique issues resulting from the anticipated ongoing operations and planned facility upgrades, requiring the development of unique contractual and risk management and allocation tools.
- Represented the buyer of two petroleum terminals in California and Oregon, both of which were contaminated from years of operational impacts and are located amid sensitive habitats and environmental resources and which continue to be operated by tenants. The transaction involved a negotiated assumption of liability by the buyer and carefully optimized environmental insurance to cost-effectively protect both the seller and the buyer from known and unknown environmental liabilities, including natural resource damage claims.
- Represented the seller in the sale of a former manufacturing facility in Houston, Texas. Designed and implemented a customized combination of an environmental liability transfer, an environmental trust, and environmental insurance to allow the transaction to proceed on economic terms along with the desired liability protection for the seller and its shareholders.
June 1, 2021
By Dan Vineyard, Lindsey Moorhead, & Carolyn Campion
In Territory of Guam v. United States, the Supreme Court unanimously held that claims for contribution under Section 113(f)(3)(B) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) require the resolution of a CERCLA-specific liability. Accordingly, settlements or consent decrees under different environmental statutes will not start the clock on a party’s CERCLA claims for limitations purposes.
April 23, 2020
The U.S. Supreme Court recently held that a state court had jurisdiction over landowners’ state common law claims against Atlantic Richfield Company related to the Anaconda Smelter Superfund Site near Butte, Montana.