Superfund/CERCLA

Overview

Beveridge & Diamond, P.C. has worked at over 120 sites across the country that are subject to the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund) and similar state statutes.  Our focus is on helping clients plan and execute cost-effective strategies to manage significant potential liabilities for removal or remedial action and natural resource damages (NRD).  We also help our clients with similar issues at corrective action sites under the Resource Conservation and Recovery Act (RCRA) and related state statutes.

Much of our experience relates to large sites or facilities involving:

• contaminated sediments (containing hazardous substances such as PCBs, PAHs, mercury, other heavy metals, or dioxins and furans)

• contaminated groundwater (containing chlorinated solvents such as TCE or PCE)

• contaminated soil (containing volatile organic compounds (VOCs), semi-volatile organic compounds (SVOCs), metals, asbestos, and other substances)

Our work typically includes developing overall strategy, helping technical consultants develop persuasive arguments on response action and NRD issues, negotiating administrative orders and judicial consent decrees with EPA and other government agencies, defending against government cost recovery claims and unilateral orders, negotiating allocation with other potentially responsible parties (PRPs), and pursuing contribution litigation as needed against other PRPs.  When appropriate, we have also helped our clients obtain legislative or congressional assistance.  We also have often served as “common counsel” to PRP groups.  Because we understand the key technical issues and agency perspectives as well as the relevant legal issues, we have been able to help our clients save or recover hundreds of millions of dollars at these sites.

Full Description

Beveridge & Diamond has represented clients in every aspect of practice under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund) and similar state statutes. We have worked at over 120 sites across the country. Our clients include large corporations, small companies, real estate partnerships, public entities and individuals. We have also served on numerous occasions as “common counsel” to groups of potentially responsible parties.

In the course of our work – including our close teamwork with our clients, their technical consultants and local counsel – we have assisted in the saving or recovery of hundreds of millions of dollars, by helping our clients:

• maximize credibility and minimize vulnerability in responses to government information requests;

• optimize the results of remedial investigations and feasibility studies (in one instance, contributing to a $100 million savings in potential remedial costs by warding off a remedy threatened by EPA);

• reduce the scope of proposed remedies through comments on proposed remedial action plans and negotiations over remedy implementation;

• modify final remedies through further investigation and negotiations;

• negotiate and minimize the risks associated with administrative orders and consent decrees;

• defend against government cost recovery claims and obtain forgiveness of past costs;

• defend against private cost recovery/contribution actions;

• obtain millions of dollars through contribution actions against and negotiations with other potentially responsible parties, including federal agencies;

• obtain favorable case management orders, and craft alternative dispute resolution proceedings, to minimize the high transaction costs associated with government and private cost recovery actions;

• negotiate and obtain recovery under “mixed funding” agreements with EPA (in one case, enabling our client group to recover virtually the entire preauthorized amount – more than $1.6 million – from the Superfund);

• compel the federal government to fulfill its remedial responsibilities under Section 120 of CERCLA; and

• pursue and obtain changes to proposed EPA rules and federal legislation.

As noted in a separate practice area description (see “Natural Resource Damages”), the Firm also has unparalleled experience in the rapidly growing area of natural resource damages under Superfund and similar state statutes, particularly with respect to contaminated sediment sites. We currently represent clients on several significant natural resource damages claims by federal and state natural resource trustees, and we have negotiated partial and complete resolutions of natural resource damages liability and provided advice to clients at many other sites. Our work has helped clients develop practical strategies for addressing the myriad of legal, scientific, economic and political issues that arise in such cases.

In some Superfund cases and other types of environmental matters, we have been successful in pursuing alternative dispute resolution (ADR) procedures that have resulted in favorable settlements for our clients without expensive litigation. For example, we assisted a client in reaching an agreement with the Department of Defense (DOD) that allocated Superfund responsibility in a manner acceptable to both parties. This was the first time that the DOD had entered into an ADR process. In another case, we obtained a court order requiring more than 80 parties to participate in an ADR proceeding we had fashioned, leading to a settlement with most of the parties and creation of the necessary foundation for a subsequent settlement with the United States for site cleanup and response costs.

• Saginaw River and Saginaw Bay, MI:  We assisted a major automobile manufacturer settle state and federal response action and NRD claims arising from the presence of PCBs in Saginaw River and Saginaw Bay sediments and biota.  The state had initiated an NRD lawsuit due to statute of limitations concerns; the federal trustees and EPA were brought into the settlement for a global resolution of response action and NRD claims relating to the river and bay.

• Sheboygan River, WI:  We represent a major manufacturer of small engines that had a facility on the Sheboygan River.  Through various sets of comments on proposed EPA remedial plans, we helped significantly reduce the scope and cost of the dredging remedy.  After negotiating a remedial action consent decree with EPA for work in the Upper River and floodplain, we subsequently helped the client negotiate a liability transfer agreement that shifted all of the client’s remediation obligations and liabilities to a third party, backed by a substantial finite risk/remediation cost cap insurance policy that we also helped negotiate.

• Lower Fox River and Bay of Green Bay, WI:  We helped a major paper manufacturer develop a long-term strategy to manage response action and NRD liabilities associated with historical releases of PCBs to the Lower Fox River and Green Bay.  In furtherance of that strategy, we negotiated various agreements with the State and EPA for certain response and NRD activities (including a focused dredging project adjacent to the client’s facility), and in 2002 we helped the client reach a global settlement with all federal, tribal, and state natural resource trustees to resolve all NRD claims associated with the river and bay.

• Berlin & Farro Liquid Incineration, MI:  We helped guide a PRP group through negotiation of an administrative order on consent for an RI/FS, performance of the RI/FS, comments on the proposed remedial action plan, negotiation of an administrative order for remedial design, modification of the remedy, a final consent decree, and completion of the remedy.  We also sued and obtained settlements from over 70 non-participating PRPs (and brought others into the group), and collected over $4 million.

• Cardington Road Landfill, OH:  We helped a PRP group negotiate an administrative order on consent for performance of the RI/FS and a consent decree for performance of the RD/RA for this site, ensuring that the group had the maximum possible influence over the site remedy.  We also assisted with preparation of the various reports and other documents that resulted in an acceptable remedy for the site.  In the meantime, we directed the compilation of a database on several hundred PRPs, added significantly to the size of the group, and recovered several million dollars from nonparticipants (including approximately $1 million from a number of municipalities).

• Crab Orchard National Wildlife Refuge, IL:  For a major electronic equipment manufacturer, we negotiated an administrative order for  implementation of an RI/FS for several areas on the Refuge that were contaminated with PCBs.  We then negotiated a remedial action consent decree that included a substantial ongoing cost contribution from the U.S. Department of the Interior (“DOI”) and a final settlement of DOI’s claims for PCB-related NRD at the Refuge.

• St. Lawrence River, NY:  We have assisted a major automobile manufacturer since 1988 with response activities and other EPA and NYDEC demands at a foundry located adjacent to the St. Lawrence River and the lands of the St. Regis Mohawk Tribe.  We helped the client strengthen the administrative record, take advantage of recent EPA policy changes, fend off certain remedial approaches, and obtain revisions to a unilateral EPA order for remedial action that allowed significant post-ROD modifications to the work.  Overall, our efforts helped to reduce the potential cost of the remedy (relative to the remedy that was threatened just before we got involved) by tens of millions of dollars.  We also negotiated a funding and participation agreement with the natural resource trustees in 1990 that was one of the first of its kind in the country, and we are now advising a group of clients with respect to an unusual cooperative process with the trustees to evaluate specific natural resource damages issues in an attempt to reach a settlement.

• Waukegan Harbor, IL:  We helped a marine engine manufacturer negotiate a remedial action consent decree with EPA regarding onsite soil cleanup work and dredging of a portion of Waukegan Harbor.  The remedy included converting a boat slip into an onsite confined disposal facility for sediments highly contaminated with PCBs, an essential element of the settlement that required a novel solution under both TSCA and Superfund.  The consent decree also settled potential NRD claims for injuries to sediments and submerged lands.  The settlement ended 7 years of litigation with EPA (which had been managed by other counsel).