Potentially Responsible Party Common Counsel Representation

Federal and state Superfund laws impose joint and several liability upon certain parties who either owned or operated sites where hazardous substances were released.  These laws also impose liability on parties thatgenerated hazardous substances that have been disposed of at such sites.  Certain sites, such as landfills, junkyards, scrap yards, dump sites, abandoned buildings, industrial sites and other facilities where hazardous substances have been disposed, may be identified as Superfund sites.

Under federal and Superfund laws, the U.S. Environmental Protection Agency (EPA) and state environmental authorities may determine that “potentially responsible parties” (PRPs) should be held liable for the investigation and cleanup of these sites.  The potential exposure at any one site can be staggering.  Liability exposure can be multiplied when waste materials were disposed of at large facilities such as landfills and open dumps.  In these types of cases, where wastes are commingled there may be massive contamination of soil or groundwater as well as vapor impacts.  Hundreds of parties may be named as potentially responsible parties.

If the EPA or state authorities seek to recover their costs or compel potentially responsible parties to undertake and investigation and clean up, it is often in the best interests of the parties to organize a group to address the demands.  Groups of potentially responsible parties often name Common Counsel to coordinate a response.  The advantage to naming Common Counsel is that work that benefits the entire group can be completed in an efficientmanner and the overall costs of defense can be shared and minimized.  Typically, individual members of such a group may seek to retain their own counsel who can provide advice to each individual client.

Because we are experienced environmental litigation attorneys, we have been chosen to serve as Common Counsel in a number of Superfund matters.  As Common Counsel we have:

  • Represented the interests of PRP Groups;
  • Drafted PRP Group Agreements;
  • Retained environmental consultants to conduct technical studies and investigations on behalf of groups of potentially responsible parties;
  • Responded to demands from federal and state environmental authorities;
  • Conducted negotiations with federal and state agencies;
  • Facilitated de minimis settlements that permit parties who contributed relatively small amounts of waste to a site to enter into settlements that provide for contribution protection and an early exit from the process;
  • Developed historical summaries and analysis of technical issues related to site investigations;
  • Participated in alternative dispute resolution processes, including arbitration and mediation, in an attempt to settle disputed Superfund matters;
  • Assisted in developing allocations of liability among various classes of potentially responsible parties (owners, operators, transporters and generators, of hazardous substances;
  • Conducted investigations to identify other unnamed potentially responsible parties; and
  • Initiated and defended cost recovery actions against previously unnamed potentially responsible parties.

These materials have been prepared by Joseph G. Maternowski of Hessian & McKasy P.A., for informational purposes only and are not legal advice.  Please read the Disclaimer that appears at the bottom of this page.

Insurance Coverage Litigation

Parties that face environmental liability arising out of past operations or releases of hazardous substances that result in property damage and cleanup liability should consider whether they may recover monies from insurers who issued comprehensive general liability (CGL) polices.  After the enactment of federal and state Superfund laws in the late 1970s and early 1980s, insurance companies changed policy terms to preclude coverage for pollution by adding pollution exclusions to their policies.

Despite the changes in CGL insurance policies, insureds may be able to assert claims for coverage as a result ofcontamination and property damage.  In many cases, insureds may have disposed of hazardous substances for periods of time in 1960s and 1970s when the language on the face of the CGL policies did not preclude coverage.  We have been involved in the review of insurance policies, coverage evaluations, retention of experts and the representation of insureds in litigation in federal and state courts seeking declarations of coverage.  In recent years insurance companies have decided to provide specialized environmental policies.

We assist clients in evaluating new environmental insurance products and determining whether such policies can be utilized to resolve liability concerns and facilitate the cleanup and transfer of contaminated property.

These materials have been prepared by Joseph G. Maternowski of Hessian & McKasy P.A. for informational purposes only and are not legal advice.  Please read the Disclaimer that appears at the bottom of this page.

Contaminated Property Litigation

Federal and state environmental laws impose liability on owners of contaminated real estate.  Purchasers and sellers of real estate need to carefully follow pre-purchase due diligence processes to avoid cleanup liability.  Even when due diligence procedures are strictly adhered to, it is possible that owners of property may face the prospect of cleanup liability.  A tenant or neighbor may be responsible for the release of hazardous substances that impairs property.

As experienced environmental litigation attorneys, we regularly evaluate cases involving property damage.  We appear regularly in federal and state courts representing parties with claims arising out of contamination of property.

These materials have been prepared by Joseph G. Maternowski of Hessian & McKasy P.A. for informational purposes only and are not legal advice.  Please read the Disclaimer that appears at the bottom of this page.

Defense of Environmental Crimes Prosecutions

Federal and state environmental laws provide criminal sanctions for knowing violations of environmental laws.  Prosecutors may charge businesses and individuals with environmental crimes.  If convicted of an environmental crime, a business may face a stiff fine of $25,000 to $100,000 or more. Individuals who are charged and convicted may face significant fines and jail time.

We counsel clients on compliance matters, including the development of environmental audit and management programs, which are designed to correct conditions that may constitute violations.  We assist clients in responding to search warrants and accompanying demands for compliance through administrative or civil matters referred to as parallel proceedings.  We partner with criminal defense counsel to serve clients who face prosecution.  When clients face parallel prosecutions – administrative or civil investigations occurring contemporaneously with criminal charges – we provide advice on the administrative and civil matters.

These materials have been prepared by Joseph G. Maternowski of Hessian & McKasy P.A. for informational purposes only and are not legal advice.  Please read the Disclaimer that appears at the bottom of this page.

Environmental, Health and Safety Audits

Businesses who fail to comply with environmental regulations may face administrative, civil or criminal enforcement.  One tool that a business may utilize to protect itself from a potential enforcement action is anenvironmental audit.  We counsel clients as to the use of environmental audits as part of more comprehensive environmental management systems that relate to compliance with regulations and permit requirements.  A business may choose to audit one facet of its operations or it may undertake a comprehensive review of all aspects of its operations.

An environmental audit is an environmental liability assessment.  A business owner or management team may utilize an audit as a means to track and report internally a business’ compliance status.  An environmental audit may assess a facility’s compliance status, including a review of wastewater discharges, solid and hazardous waste handling and disposal practices, air emissions, community right to know reporting, compliance with permitting or monitoring requirements and OSHA or health and safety compliance.

We have helped clients design audit programs and develop environmental health and safety audit forms.  Typically, the auditor, an environmental consultant or qualified professional who is well versed with all of the applicable compliance requirements, visits the subject site and completes an environmental health and safety checklist noting issues of potential concern.  We partner with environmental consulting firms that are involved in compliance assessments across the country.

We advise clients as to the potential applicability of the attorney client privilege to audit reports and findings.  We advise clients with regard to recommended corrective measures, including filing reports, obtaining permits or otherwise reporting spills and/or violations to federal, state or local environmental authorities.  When appropriate, we counsel clients as to the effect of reporting and other means of voluntary disclosures and governmental audit and self-disclosure policies that may provide protection from enforcement and, where appropriate, civil penalty mitigation or reduction.

These materials have been prepared by Joseph G. Maternowski of Hessian & McKasy P.A. for informational purposes only and are not legal advice.  Please read the Disclaimer that appears at the bottom of this page.

Phase I Environmental Site Assessments Under the “All Appropriate Inquires” Standard

We assist purchasers of real property and parties involved with business and corporate transactions with pre-purchase due diligence activities, including Phase I Environmental Site Assessments, which are designed to reveal the existence of “recognized environmental conditions” that may affect future use or redevelopment of property.

We partner with environmental consultants who conduct comprehensive reviews of environmental site assessment requirements including site visits, regulatory reviews, interviews of property owners and examination of historical information sources including aerial photographs, fire insurance maps and business directories as is required under the ASTM Standard Practice and the newly promulgated All Appropriate Inquiries standard.

We have been involved with Phase I Environmental Site Assessments assessing sites across the country.  We recommend and review Phase I Updates when report information is no longer reliable.  We obtain reliance letters from consultants for our clients.  We prepare environmental risk assessment opinion letters that discuss specific Phase I findings and, if appropriate, recommendations for Phase II assessment of soil and groundwater conditions.

We advise clients of potential liability associated with “recognized environmental conditions” and whether liability assurances or protections may be available under federal or state law and voluntary cleanup programs.  We evaluate Phase II findings of soil and groundwater impacts and other conditions that may require remediation or special handling during future use or redevelopment of property.

These materials have been prepared by Joseph G. Maternowski of Hessian & McKasy P.A. for informational purposes only and are not legal advice.  Please read the Disclaimer that appears at the bottom of this page.

Site Investigation and Remediation Through State Voluntary Cleanup Programs

Purchasers or sellers of real estate and parties involved in business and corporate transactions often learn that the property involved in a real estate transaction is subject to contamination.  Historic use of the subject property or an adjacent property may have resulted in soil or groundwater impacts.  In certain instances, findings of actual or potential groundwater impacts may require the landowner to file a report with state authorities.  Reporting may trigger responsibilities under state or federal law to conduct a follow up investigation.

We assist clients in evaluating environmental issues and risks identified in a Phase I Environmental Site Assessments that may be considered “recognized environmental conditions” or in evaluating soil and groundwater tests in Phase II reports.  A party who purchases a property that is contaminated may be subject to liability for the investigation and remediation of the site.  The provisions of state and federal environmental laws have been amended to provide that purchasers and sellers of contaminated property may receive liability assurances or project approval letters available from federal authorities and state voluntary cleanup programs.  We have been involved in assisting clients in obtaining such assurances in many states across the country.

These materials have been prepared by Joseph G. Maternowski of Hessian & McKasy P.A. for informational purposes only and are not legal advice.  Please read the Disclaimer that appears at the bottom of this page.

Brownfield Site Development

The term “Brownfield” is used to describe polluted properties, including former gasoline or bulk petroleum storage sites, old or abandoned industrial sites, landfills, open dumps or other properties, which are contaminated.  Soil and groundwater at Brownfield sites may be impacted by petroleum or hazardous substances.

When federal and state Superfund laws were initially enacted, the prospect of paying for the cleanup of these sites deterred many parties from purchasing these sites.  Many of these sites were abandoned and some were forfeited to local taxing authorities.  State and federal agencies began to evaluate the risks posed by these sites and determined that at many sites redevelopment could occur and, depending upon the risk, contaminants could be left in place.  Attorneys in our Environmental and Real Estate Practice Areas have assisted clients with the redevelopment of Brownfield sites.

These materials have been prepared by Joseph G. Maternowski of Hessian & McKasy P.A. for informational purposes only and are not legal advice.  Please read the Disclaimer that appears at the bottom of this page.

Assessment of Liability in Mergers and Acquisitions

Businesses involved in mergers or acquisitions need to take care to assess and allocate environmental liability.  In mergers or acquisitions, the acquiring entity needs to conduct due diligence to ensure that real property that is part of the transaction has not been adversely impacted by contamination.  The seller typically is required to disclose instances of past noncompliance, pending claims and issues related to the condition of any real property.  An acquiring entity should consider the compliance status of the entity that is being purchased.

Purchase or buy/sell agreements typically require a disclosure of all permits and unresolved compliance issues.  Attorneys in our Environmental, Real Estate and Business Law Departments work as a team to advise clients on mergers and acquisitions.  We prepare and negotiate the business terms in these deals.  We assist with a review of all aspects of these transactions including a comprehensive review of environmental issues that may arise in these transactions.  We negotiate indemnification provisions that are designed to appropriately allocate risks and protect the interests of our clients.

These materials have been prepared by Joseph G. Maternowski of Hessian & McKasy P.A. for informational purposes only and are not legal advice.  Please read the Disclaimer that appears at the bottom of this page.

Land Use and Zoning

When our clients seek to expand existing operations or to acquire and develop property, we provide assistance on land use and zoning matters.  We work with a team of professionals, including architects, design firms and other professionals, to develop project plans and proposals.  Attorneys in our Real Estate and Environmental Practice Groups provide advice on all aspects of these development projects.  We regularly represent clients before units of local government and other public bodies that review such projects.

These materials have been prepared by Joseph G. Maternowski of Hessian & McKasy P.A. for informational purposes only and are not legal advice.  Please read the Disclaimer that appears at the bottom of this page.

Project Approvals, Permits and Environmental Review

We assist our clients as they seek to expand their operations and acquire new businesses.  We evaluate business and manufacturing operations and complete compliance assessments.  We review existing permits and evaluate whether additional permits or project approvals may be required.  We provide assistance to clients when permits must be transferred to new operating entities.

When new or expanded operations are planned, we assist in a review of project plans and technical issues to determine whether environmental review is required.  We work with a team of design firms, architects and our clients to assess whether Environmental Assessment Worksheets or Environmental Impact Statementsmay be required.

These materials have been prepared by Joseph G. Maternowski of Hessian & McKasy P.A. for informational purposes only and are not legal advice.  Please read the Disclaimer that appears at the bottom of this page.

Evaluation of Liability in Business and Real Estate Transactions

Parties considering the purchase of real estate or a business need to be aware of potential environmental claims and liability.  Attorneys in our Environmental, Real Estate and Business Law Practice Groups assist clients in conducting due diligence reviews of pending transactions.  We review and analyze documents, public records and operations to assess potential concerns.  As business and transactional attorneys we evaluate the compliance status of operations and review their enforcement history and the sufficiency of permits.

We complete Phase I Environmental Site Assessments to determine whether any “recognized environmental conditions” may exist on real estate that may be part of a transaction.  If subsequent Phase II testing reveals soil or groundwater contamination or other issues of concern, we provide advice as to next steps including the appropriateness of seeking liability assurances through state voluntary cleanup programs.

These materials have been prepared by Joseph G. Maternowski of Hessian & McKasy P.A. for informational purposes only and are not legal advice.  Please read the Disclaimer that appears at the bottom of this page.

Advice on Federal, State and Local Regulations

We assist clients in determining whether federal, state and local regulations apply to specific operations.  We advise clients of permitting requirements that may apply to existing operations or to planned expansions.  We review federal and state statutes, local ordinances and permit terms and complete compliance assessments.  When releases have occurred we evaluate reporting requirements and provide liability assessments.

Where appropriate, we recommend that environmental consultants and engineers be retained to assist with more complex and technical compliance evaluations and permit determinations.  Often the work of these technical experts is completed under the attorney client privilege.  We recommend corrective actions and assess the applicability of audit and self-disclosure policies that may preclude enforcement.

These materials have been prepared by Joseph G. Maternowski of Hessian & McKasy P.A. for informational purposes only and are not legal advice.  Please read the Disclaimer that appears at the bottom of this page.

Rulemaking Proceedings

Federal and state environmental laws provide direction as to the broad policy goals of a particular statute.  Legislative bodies often provide direction to regulatory authorities, such as the U. S. Environmental Protection Agency (EPA) or state environmental agencies, to promulgate specific regulatory requirements and standards through the rulemaking process.

Under general principles of administrative law, environmental agencies must provide notice of a pending rulemaking to the public and offer regulated parties and the public an opportunity to provide comments on any new rule or regulation.  The agency charged with the task of promulgating a rule is required to consider comments and, where appropriate, revise the proposed rules.  As attorneys who practice in the area of administrative law, we assist clients in evaluating proposed rules and preparing comments for submission in rulemaking proceedings.  We advise clients as to the rulemaking process, including the possibility of seeking judicial review of the rulemaking process.

These materials have been prepared by Joseph G. Maternowski of Hessian & McKasy P.A. for informational purposes only and are not legal advice.  Please read the Disclaimer that appears at the bottom of this page.

Public Relations Programs

Environmental issues are often subject to intense public scrutiny.  In many cases, inaccurate information can be produced and the public’s perception of an issue may be incorrect.  We work with clients to develop appropriate responses to media inquiries.  We organize public meetings to help answer questions about the impact of manufacturing operations or releases on neighbors and others who are in the vicinity of an operation.  In many cases, we assist our client’s in house staff with the development of public relations programs to help disseminate factual information.

These materials have been prepared by Joseph G. Maternowski of Hessian & McKasy P.A. for informational purposes only and are not legal advice.  Please read the Disclaimer that appears at the bottom of this page.