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Superfund

The Environmental and Natural Resources Practice Group routinely advises clients on a wide range of issues related to the remediation of contaminated property, including all phases of CERCLA and state superfund actions. In representing a variety of clients, our group has developed a thorough appreciation for recurring issues in CERCLA and state superfund litigation and regulatory practice, including allocation of response costs among potentially responsible parties (PRPs) and scoping of site assessment, immediate removal, and remedial actions. We also have experience with more unusual issues, such as circumstances under which PRP assets are protected from judgment and the use of supplemental state claims and other federal claims to expand upon the scope of relief provided by CERCLA. In addition, we have developed considerable experience in identifying and applying to our clients' advantage state and federal cleanup criteria, guidance and procedures, and technical and cost considerations associated with site remediations. We also advise clients on approaches for conducting cleanups which optimize opportunities for insurance coverage and reimbursement from applicable state and federal trust funds.

Our counseling approach seeks to avoid disruptive and expensive disputes which can develop between the client and private parties or regulatory agencies. However, when environmental disputes cannot be resolved through negotiation, our group represents clients in litigation in federal and state trial and appellate courts, as well as in administrative hearings before federal and state agencies.

We provide counseling on all aspects of contaminated property remediation, including:

• Responding to CERCLA § 104(e) and similar state requests for information;
  
  
• Negotiations with regulatory agencies with respect to site assessment, remediation, listing/delisting, and cost recovery;
  
  
• Identification and investigation of PRPs;
  
  
• Negotiations with PRPs;
  
  
• Seeking reimbursement of costs from the Hazardous Substances Trust Fund and similar state funds;
  
  
• Pursuing insurance defense and coverage for site liabilities;
  
  
• Addressing potential environmental impacts to neighboring properties;
  
  
• Representation in state and federal litigation in a variety of actions, including prosecution and defense of contribution and cost recovery claims, declaratory judgment actions concerning potential site liability, challenges to EPA site listings, and insurance coverage disputes.
  

Our Superfund representation includes a wide range of clients, public and private, including Fortune 30 corporations, general and limited partnerships, municipalities, lenders, fiduciaries, state quasi-governmental authorities, and individuals. We have represented clients in cleanup actions in over 30 states and in 8 EPA regions. Based upon the range of clients represented, and the geographical reach of our representation, the Environmental and Natural Resources Practice Group has experience with a comprehensive array of site remediation issues.

The Environmental and Natural Resources Practice Group includes attorneys with technical training and experience in biology, chemical engineering, ecology, statistics, and water quality, including one attorney with a Ph.D., M.S.E. in Engineering and one with an M.S. in Biology. Our group includes a former EPA lead counsel for several multi-party cleanups, including sites with over 100 PRPs; the former Superfund coordinator for Regions 3 and 9 of the EPA; the lead environmental counsel to one of Florida's largest cities with respect to its municipally-owned CERCLA sites. In addition, our practice group leader was formerly Chief of the Hazardous Waste Law Branch in the U.S. Environmental Protection Agency, Office of Regional Counsel, Region 4, and, in that capacity, supervised the legal aspects of all CERCLA and RCRA actions taken in the 8 southeastern states under the jurisdiction of Region 4.

Our attorneys have published in numerous publications, including the Georgia Bar Journal, Natural Resources and Environment, Georgia State Bar Journal, Georgia Practice and Procedure, Georgia and Southeastern Environmental News, Mercer Law Review, Banking Law Journal, The Business Lawyer, Journal of Commercial Lending, Journal of Natural Resources and Environmental Law, and Tulane Environmental Law Journal.

Examples of the Environmental and Natural Resources Practice Group's experience with CERCLA and similar state programs include:

• Serving as litigation counsel for a major small engine manufacturer seeking to recover costs incurred in conducting a removal action at the Peach Metal Industries Superfund Site in Georgia. Summary judgment was obtained against the Defendants, which included a trust, individuals, and corporations, and the case subsequently was settled on favorable terms. This representation also included the filing of a petition for reimbursement with EPA's Environmental Appeals Board under CERCLA Section 106. The petition ultimately was withdrawn in exchange for EPA's binding agreement not to seek oversight costs from the client.
  
  
• Representing an international chemical company in negotiations with EPA and other PRPs with respect to a former metals recovery facility listed on the NPL. The client's alleged liability was based on its stock purchase of a company which spun off the metals recovery operations immediately prior to the purchase. Through negotiations with EPA and litigation with other PRPs, the client's potential liability was assumed by another PRP, whom the Agency ordered to perform RD/RA at the site.
  
  
• Representing a manufacturing company identified by EPA as a PRP at a wood treatment site, based upon the company's acquisition of a portion of the site from the facility owner. We obtained on behalf of the company one of the first NPL partial site delistings in the nation, as a result of which the company was no longer deemed liable as a PRP at the remaining NPL site.
  
  
• Representing a major financial institution in responding to a CERCLA notice letter and information request concerning the client's potential liability at a Superfund site, based upon the institution's seizure of property at the site used as collateral for a loan to the site owner/operator. The response documented that the client's actions were carried out under the auspices of a court-appointed receiver and, accordingly, the institution should not be designated as an "operator" at the site. EPA subsequently issued correspondence withdrawing the notice letter.
  
  
• Successfully representing a major corporation in a CERCLA contribution action involving more than $10 million incurred in remediating a former manufactured gas plant site.
  
  
• Representing an individual who, as former chief executive officer and sole shareholder of a chemical company which owned and operated a site for 16 years, was a co-defendant and cross claimant in a CERCLA contribution action brought by the site owner. Plaintiff's motion for summary judgment on our client's alleged liability as an owner/operator under CERCLA was denied, and the case subsequently settled.
  
  
• Representing a Florida city in defense of a lawsuit asserting environmental justice claims associated with a ROD landfill cap remedy. The case was successfully concluded when the district court granted the client's motion to dismiss, and the Eleventh Circuit Court of Appeals affirmed the dismissal.