ENVIRONMENTAL LAW

Class Action and Multidistrict Litigation

Train Derailment
Thompson Coburn handled a significant case for a major railroad which was originally filed as a class action in St. Clair County, Illinois. The case arose from the derailment of a train with rail cars containing chemicals such as hydrochloric acid, vinyl chloride, and methanol, which resulted in the evacuation of approximately 1,000 individuals from their homes. The plaintiffs alleged that they incurred personal injury, sustained respiratory and dermal exposure to harmful chemicals, incurred medical and related expenses, incurred property damage, and experienced emotional distress. After we successfully obtained transfer of the case to Perry County based on the doctrine of forum non conveniens, a class was certified by the trial court and affirmed by the Fifth District Appellate Court. In a major victory, the Illinois Supreme Court unanimously reversed the Fifth District’s class certification ruling and remanded the case. Thompson Coburn successfully handled and ultimately settled over 450 separate claims following the defeat of the class certification.

MTBE Potable Water Contamination
Our attorneys were actively involved in the methyl tertiary butyl ether (MTBE) litigation cases consolidated in the Southern District of New York under the Multidistrict Litigation Rules. In the first phase of this litigation, the major oil companies in the United States were sued regarding their decisions to add MTBE to gasoline. The plaintiffs alleged that their private wells were contaminated from or threatened by MTBE in the groundwater. The suits sought class treatment in a number of states. We served as lead counsel for one of the major petroleum companies in the first round of this multidistrict litigation and simultaneously served as co-counsel for two other oil companies. We were an integral player in the defense group's successful effort to defeat class certification.

Tashima Morris, et al v. Arcelormittal USA, Inc, et al, Case No. 2:09-CV-108 RM (August 12, 2010)
TC represented a client that was one of several defendants sued in state court in Indiana in 2009. The complaint initially sought class certification for all children in Lake County, Indiana for medical monitoring as a result of an alleged public nuisance created by the defendants' emissions from their smokestacks. By pleading a nuisance claim, the plaintiffs attempted to hold defendants liable irrespective of whether their air emissions comported with their air permits. The defendants successfully removed the case to the federal District Court for the Northern District of Indiana and then moved to dismiss on a number of grounds. After plaintiffs replead their claims, the defendants moved to dismiss the amended complaint. On August 12, 2010, the court granted the motion to dismiss the amended complaint. It was a complete and total victory for the defendants. In addition to the cost of medical monitoring, a loss could have further opened the door to lawsuits around the country against industry on public nuisance grounds, notwithstanding compliance with air emission or other federal or state-issued permits.

Clean Air Act Experience

Greenhouse Gas Regulations
We recently assisted a major company in its efforts to comply with EPA’s new greenhouse gas (“GHG”) regulatory scheme. We provided advice regarding the implementation of the GHG Tailoring Rule, which impacts stationary sources through the PSD permit program and the Title V Operating Permit program. In addition, we provided analysis and advice concerning the Tailoring Rule’s impact on existing obligations under the New Source Performance Standards and implications under EPA’s GHG Reporting Rule. Our work also included an analysis of pending legal challenges to the scheme.

Successful Title V Permit Defense
In 2008, Thompson Coburn represented one of the largest waste handlers in the world in its efforts to obtain an Air Pollution Control Title V Permit to Operate essential to the operation of the company’s Southern Illinois hazardous waste incinerator. With our assistance, our client successfully defended its permit against challenges by the Sierra Club and other environmental groups.

Disqualification of Plaintiff’s Experts
In this lawsuit before the United States District Court for the Southern District of Illinois, two local residents claimed that our client had negatively impacted their property and their health through water and air pollution associated with the coal mine. After extensive discovery, we filed Daubert motions to strike the plaintiffs' groundwater, air, and health experts and simultaneously moved for summary judgment. The District Court granted our motions in all respects, finding that the experts lacked a reliable, scientific methodology in deriving their opinions and without such expert testimony, the plaintiffs could not prove causation. The plaintiffs appealed some of the District Court’s rulings to the Seventh Circuit, which affirmed in all respects.

Successful Challenge to Missouri Asbestos Rules
We represented an asbestos contractor who brought a declaratory judgment challenging the Missouri asbestos rules. After the trial court determined that the rules were not valid, the state appealed to the Missouri Supreme Court. The Supreme Court affirmed the trial court’s decision.

Indoor Air Quality Lawsuits
Thompson Coburn has successfully defended numerous indoor air quality lawsuits. Most of these have focused on mold allegations. The plaintiffs have sought both personal injury and property damages. We have also counseled many clients on how to minimize or address indoor air and mold claims.

Climate Change and Carbon Credits
We assisted a 4,000-acre tree farm in evaluating the feasibility of implementing a carbon sequestration project in order to obtain marketable carbon credits. We worked with the farm's forester to evaluate the potential amount of carbon sequestered by the project and with different carbon registries and aggregators to evaluate the amount of carbon credits that could be issues.

Clean Water Act Experience

Litigation Challenging State Regulatory Agencies
Thompson Coburn represented The Home Builders Association of St. Louis and Eastern Missouri in a lawsuit against the Missouri Department of Natural Resources (DNR) challenging the process used by DNR to determine whether or not streams in Missouri should be included on the state list of “impaired waters.” Once the DNR includes a stream on the list of impaired waters, DNR can place stringent limitations on the types of discharges, such as sediment from a residential subdivision construction site, that can go into the stream. Our client asserted that the method used to determine whether a stream should be considered “impaired” was without a legitimate scientific basis. The lawsuit resulted in DNR’s agreement to conduct another study of one particular stream at issue, and to base all future decisions regarding impaired waters listings on evidence that is scientifically defensible. The settlement has statewide impact because it affects the process used by DNR in all such listing decisions.

Spill Cleanup and Related Penalty Negotiations
We represent an industrial mining/quarry business in connection with a major rock fines release into one of its state’s most pristine waterways. The spill resulted in the complete shut down of a state park approximately ten miles down stream. A fish kill and damage to natural resources were alleged to have occurred. After counseling the client through the emergency response and cleanup stages, we negotiated a settlement that involved a penalty of less than $20,000 coupled with an innovative Supplemental Environmental Project (SEP). The state indicated it would have sought in excess of $700,000 had the matter not been settled. We also successfully assisted our client in obtaining favorable terms in connection with a modification to its NPDES permit, which the state required as a consequence of the incident.

Concentrated Animal Feeding Operation Permit Appeal
We successfully represented a large concentrated animal feeding operation (CAFO) in administrative appeals brought by area residents to several water permits issued to the CAFO’s various farms. Citing the state law provision that only the permit applicant had the right to appeal water permits, the CAFO sought and obtained an extraordinary writ which held that because the residents had no right to appeal the CAFO’s water permits, they had no right to seek an administrative review of the permits. Subsequently, the case was upheld on appeal.

Defense of Suit Against a Sewer District
We defended a federal court action brought by the United States under the Clean Water Act as well as claims brought by citizen group intervenors against the sewer district. The case settled with an agreement to construct secondary treatment facilities.

Wetlands Permit and Offsets for Loss of Wetlands
Thompson Coburn assisted a riverboat casino complex in obtaining from the Army Corps of Engineers a Clean Water Act § 404 permit that was essential to its development and to its successful effort to become one of the first licensed riverboat casinos in the state of Missouri. The permit provided for the acquisition of mitigation property for the creation of new wetlands to offset the potential loss of wetlands from the development.

Oil Discharges from Vessels
Our client was accused of discharging oil from the bilge of its vessel without a permit and in violation of the federal Clean Water Act. It was also charged with failure to report the release. We succeeded in negotiating a settlement with the Coast Guard which involved no admission of liability and the payment of a fine of less than $6,000.

Release and Recovery of Radioactive Materials
We assisted a client in its reporting, investigation and cleanup of radiologically contaminated steel which had been released into a major waterway. At our client’s request, Thompson Coburn personnel were on site in a remote location at the dock where the incident occurred, within hours of the incident. We interviewed witnesses, assisted in the development of reporting strategies and assisted in the recovery of the material at issue from the bottom of the river. Our client was not required to pay any penalties or fines in connection with the incident.

Criminal Defense Experience

Criminal Defense under the Clean Water Act
We successfully defended a case involving alleged criminal violations of the Clean Water Act arising out of a crude oil pipeline rupture that caused the largest inland waterway spill in U.S. history. Approximately 863,000 gallons of oil were released to a small Missouri river. Settlement negotiations resulted in a plea to a misdemeanor violation of the Rivers and Harbors Act (strict liability statute) and a civil settlement with the state of Missouri. Negotiations also resulted in agreement for non-prosecution of company employees.

Thompson Coburn attorneys also defended a publicly held client in a case involving alleged violations of the Clean Water Act due to the discharge of ammonia into navigable waters. Settlement negotiations with the U.S. Attorney resulted in a favorable plea agreement for the company and civil settlement with the state of Missouri.

We defended a client involved in alleged criminal violations of environmental laws due to the release of liquid animal fat into a rural stream. Settlement negotiations with the U.S. Attorney resulted in a favorable plea agreement for client and a decision not to prosecute any of the client’s employees.

Criminal Charges in Styrene Case Reduced and then Dismissed
Our attorneys represented a publicly traded client charged in Texas in connection with an alleged styrene discharge and fish kill. Thompson Coburn successfully negotiated a reduction in charges, and then, based on the results of an investigation by Thompson Coburn and its client, persuaded the prosecutor to agree to pre-trial diversion, after which all charges were dropped.

Grand Jury Investigation Resulting in No Indictment
We represented a subsidiary of a publicly held company that was a target of a grand jury investigation for alleged environmental damage to a special status stream from a catastrophic release of mine waste. We negotiated a settlement with the state for minimal civil penalties and the U.S. Attorney declined to present for indictment.

Complete Acquittal in Case Involving Nuclear Power Plant Heat Shields
Thompson Coburn attorneys defended a company and its chief executive in a case that involved alleged violations for making false statements in reporting test results of fire barrier material used in numerous nuclear power plants. A criminal investigation was initiated by the Nuclear Regulatory Commission, assisted by the EPA, and the EPA also initiated separate government contract suspension procedures. Following a 10-week trial in Maryland, the jury acquitted the defendants of all criminal charges. The EPA also dismissed the government contract suspension proceedings.

Favorable Resolution of Criminal, Civil and Tort Claims related to Waste Disposal
We defended a felony prosecution of a publicly traded company, brought under RCRA, CERCLA and the federal Clean Water Act, relating to alleged unlawful waste disposal. We represented the client in grand jury proceedings, with respect to multiple subpoenas and in a plea negotiated with the U.S. Attorney’s office. We then represented a company employee who was facing a multi-count felony indictment. The employee refused to plea and, in the face of motions to dismiss and on the eve of trail, the prosecutor agreed to pre-trial diversion which led to a complete dismissal of all charges. Thompson Coburn also counseled the corporate client regarding cleanup activities, and handled and resolved all civil enforcement proceedings and hundreds of personal injury and property damage suits arising out of the matter.

Favorable Plea in a Hazardous Waste Disposal Case
Thompson Coburn also defended a client in a case involving alleged violations of Resource Conservation and Recovery Act due to improper disposal of hazardous waste. Settlement negotiations with the U.S. Attorney resulted in a favorable plea agreement for Thompson Coburn’s client and in a decision not to prosecute our client’s publicly traded parent corporation or certain company employees.

Mining-related Environmental Experience

Successful Defense of Mining Act Citizen Suit in the Illinois Supreme Court
The firm represented a coal company in an Illinois Mining Act citizen’s suit brought by an Illinois environmental group. The complaint sought an injunction requiring the excavation and offsite disposal of the approximate 400-acre coal refuse disposal areas located at a closed underground coal mine. The Plaintiff claimed that the presence of the reclaimed coal refuse disposal areas violated the Illinois Mining Act and Water Use Act. The firm successfully argued that the mine’s permits authorized the reclaimed refuse disposal areas to remain onsite and that the same issues had been litigated administratively when those permits had been approved. The Illinois Supreme agreed and affirmed the trial court’s dismissal of the case with prejudice. The Court held that: 1) Mining Act citizen’s suits may not be used to attack mining permits; and 2) the nonprofit group’s members did not file a timely judicial appeal when the mine’s permits had been approved. The Court noted that, if citizen’s suits were allowed to challenge mining permits, no permit would ever be final. The permit could “be reopened and reconsidered at any time, even years after a reclamation project has been completed in accordance with a permit.”

Coal Mine Regulatory Work
For over a decade, we have represented southern Illinois coal mines in connection with a wide range of environmental issues. On the regulatory side, we have provided ongoing compliance counseling, obtained variances and provided permitting assistance to a major energy concern. We also helped obtain approval for the first Groundwater Management Zone ever issued to a coal mine in the State of Illinois, as part of a unique settlement with the Illinois Environmental Protection Agency and the Illinois Department of Natural Resources.

Missouri Quarry/Mine Expansion
We are currently representing a mining company in connection with a potential major expansion. That representation has included providing assistance with the interpretation of permit requirements, assistance with potential governmental incentives and other financing opportunities, as well as assistance with related real estate and mineral rights matters.

Defense of Reclamation/Cleanup Plan before Federal Agency
In a federal administrative case, the claimant alleged that the Office of Surface Mining should bring an enforcement action against the State of Illinois for the alleged failure to protect the groundwater at our client’s mine site and for permitting certain surface reclamation activities. We intervened and presented evidence that the approved reclamation plan protected the groundwater and that the permitted surface reclamation activities were authorized in accordance with Illinois and federal law. The Administrative Law Judge panel found in favor of our client and the Office of Surface Mining in all respects. Langenhorst v. U.S. Department of the Interior, Office of Surface Mining, IBLA Case No. 2006-188 before the Department of the Interior, Board of Land Appeals in Washington, D.C.

Defense of Reclamation Plan before State Agency
In a state administrative case, three local residents sought revocation of a coal mine’s final reclamation plan approved by the Department. We obtained summary judgment for our client on both procedural and substantive grounds. This victory preserved our client’s approved multimillion dollar reclamation project. Langenhorst, et al. v. IDNR, Rev. No. 3 to Permit No. 57 and Rev. No. 2 to Permit No. 283 before a Hearing Officer of the Illinois Department of Natural Resources.

Defense of Challenge to Mining Permit Revision
We successfully defended a state administrative case in which the claimant sought revocation of a coal mine permit amendment that authorized construction and operation of a three mile long water discharge pipeline. The pipeline transports treated water to a local river for discharge pursuant to an NPDES permit issued by the Illinois Environmental Protection Agency. We obtained summary judgment for our client on substantive grounds. The win permitted our client to begin operation of its discharge pipeline as designed. Langenhorst v. IDNR, Incidental Boundary Rev. No. 6 to Permit No. 57 before a Hearing Officer of the Illinois Department of Natural Resources in Springfield, Illinois.

Groundwater Contamination
In a lawsuit before the United States District Court for the Southern District of Illinois, over 250 separate plaintiffs filed claims alleging that their groundwater had been contaminated due to coal mining and coal waste disposal activities. We moved for a Lone Pine Scheduling Order. After the Court expressed an intention to enter the proposed Lone Pine Scheduling Order, the plaintiffs voluntarily dismissed the case.

RCRA Experience

RCRA TSD Settlement
The U.S. EPA brought a case before an administrative judge for alleged RCRA violations and for an order requiring our client to apply for a RCRA Treatment Storage and Disposal (TSD) Facility permit. By presenting evidence during settlement negotiations, much of which consisted of EPA’s own internal memoranda, we persuaded the EPA to drop the main count of its petition, settle for a significantly reduced civil penalty and a supplemental environmental project. Our client was not required to obtain a TSD permit.

Remediation Negotiations
The EPA wanted a metal finishing company and its president to agree to unlimited liability to perform an undefined cleanup to EPA’s satisfaction. We negotiated an Administrative Order on Consent providing for a cleanup of heavy metal contamination (including lead, chromium and cadmium), which included a finite scope of work with volumetric limits on contaminated soil removal.

Former Petroleum Refinery Cleanup
We negotiated a settlement with the state of Illinois regarding the cleanup of a former petroleum refinery. Our firm represented one of the three former owners/operators of the facility. The agreement negotiated with the state included visual cleanup criteria, volumetric waste disposal limits, fixed financial exposure and broad releases from future liability. During approximately five years of negotiations, we took a lead role. Our client also received substantial settlements in the matter with respect to its insurance coverage claims.

RCRA Part B Post-Closure Permit Negotiations
Our environmental practice group negotiated what is believed to be the first Part B Post-Closure Permit ever issued for a TSD facility under the Missouri Hazardous Waste Management Law. The facility was a low-carbon steel chain manufacturing operation whose early activities predated the enactment of RCRA. After the permit was issued, and less than three years into the 30-year post-closure care period, Thompson Coburn filed a Class 3 Modification Request which successfully resulted in the cessation of all groundwater monitoring and the termination of the post-closure permit and all obligations thereunder.

Underground Storage Tanks
Thompson Coburn has handled scores of underground storage tank matters. We have prosecuted and defended lawsuits involving contamination from underground storage tanks. We have also defended administrative actions brought by governmental agencies for the removal and/or cleanup of underground storage tanks. In addition, we have successfully assisted clients in obtaining favorable eligibility determinations from state underground storage tank insurance funds. We have also handled citizen suits and common law actions to recover and avoid cleanup costs.

Solid Waste Experience

RCRA Subtitle D Interpretations
We successfully represented a major landfill operator in a preemptive declaratory judgment lawsuit filed against the state of Missouri. The case resulted in the State reversing its position and agreeing that certain significant and extremely expensive provisions of RCRA Subtitle D did not apply to our client. The state also issued an “authority to operate” license which had been previously withheld.

Landfill Enforcement Defense
We have handled enforcement/penalty cases for major waste disposal firms in which favorable resolutions were achieved. In one such case, our efforts assisted our client in obtaining a modification to its permit which allowed a major expansion of its landfill operations to occur before the liability issues were resolved.

Closure Litigation
We successfully represented a major waste disposal firm who leased a former quarry that had been permitted as a sanitary landfill. When regulatory changes made the operation of the landfill cost prohibitive, the company closed the landfill by removing the waste that had been deposited there and terminated the operations. The lessor sued for millions of dollars in unrealized tipping fees, arguing that there was an implied obligation to operate the landfill and that waste removal was not a proper method to close the facility. We obtained summary judgment for the waste disposal company in the trial court, and held it on appeal.

Pre-regulation Landfill Cleanup
We assisted a major corporation in its response to authorities regarding an emergency situation that arose from the discovery of explosive levels of methane gas in city sewers and utility trenches resulting from a pre-regulation sanitary landfill. After sending out immediate, emergency notifications to potential impacted parties, we successfully persuaded the authorities that subsequent investigation and remedial measures could be effectively implemented through a state voluntary program rather than through enforcement proceedings, an approach that resulted in substantial savings for our client.

Superfund Experience

CERCLA Contribution Litigation
Recently, we successfully defended a Fortune 500 company in two separate multi-party CERCLA contribution actions brought by Asarco LLC to recover approximately $240 million in cleanup costs and natural resource damages paid by Asarco to the United States, several states and natural resource damage trustees as a result of settlements entered into by Asarco during the Asarco bankruptcy. On behalf of our client, Thompson Coburn filed a summary judgment motion in one of the cases, and then entered into intense negotiations that resulted in an extremely favorable settlement, dismissal of both lawsuits, and an agreement that the plaintiff would not file any similar lawsuits against the client anywhere in the country. The entire matter, as to Thompson Coburn’s client, was commenced and resolved in less than one calendar year.

CERCLA Cost Recovery and Defense
We defended a former owner of a nuclear fuels processing facility that is undergoing decontamination and decommissioning (D&D) under the supervision of the Nuclear Regulatory Commission. The current owner (Westinghouse) attempting, in a CERCLA action, to recover its D&D costs from our client, a small number of other prior owners and the United States (under the theory that the United States owned the uranium processed at the site). Our client (and its co-defendants) prevailed on a partial summary judgment motion regarding the plaintiff’s Section 113 claims and on motions to dismiss the plaintiff’s common law counts. We also assisted in settling related cases and numerous claims asserted by nearby property owners relating to contaminated groundwater allegedly associated with the facility. In a separate action, our client, along with other co-defendants, successfully intervened in an effort by Westinghouse to enter into a CERCLA consent decree with a state agency in federal court . The state, in the proposed consent decree, attempted to assert regulatory authority over contamination and cleanup activities that are within the sole jurisdiction of the Nuclear Regulatory Commission under the Atomic Energy Act. The decree was an attempt by Westinghouse to create a CERCLA Section 113(f)(3)(b) claim. The court rejected the consent decree and ruled that activities agreed to with the state environmental agency were in fact preempted by the Atomic Energy Act and beyond the powers of the state agency.

In a separate action, our client, along with other co-defendants, successfully intervened in an effort by Westinghouse to enter into a CERCLA consent decree with a state agency in federal court . The state, in the proposed consent decree, attempted to assert regulatory authority over contamination and cleanup activities that are within the sole jurisdiction of the Nuclear Regulatory Commission under the Atomic Energy Act. The decree was an attempt by Westinghouse to create a CERCLA Section 113(f)(3)(b) claim. The court rejected the consent decree and ruled that activities agreed to with the state environmental agency were in fact preempted by the Atomic Energy Act and beyond the powers of the state agency.

Cost Recovery Claims
In a case filed in United States District Court for the Western District of Missouri, we defended a large food manufacturer against a third party petition for cleanup and response costs and punitive damages for environmental contamination from chlorinated solvents (TCE). We obtained summary judgment in favor of our client.

“No Action” Letters from EPA at a PCB Site
We represented two parties in obtaining "no action" letters from the EPA and assisted several other parties successfully by proving eligibility for de minimis settlements. We also drafted one of the country's first Mixed Funding proposals.

Dismissal of Government’s CERCLA Claims
We prevailed over the United States Department of Justice on a motion to dismiss on the basis that an Illinois land trustee was not an “owner” within the meaning of the liability provisions of CERCLA, notwithstanding that it held legal title to a portion of an NPL listed Superfund site. The case was one of first impression.

Prospective Purchaser Agreement
We successfully negotiated a Prospective Purchase Agreement with EPA Region IX and the United States Department of Justice to assist our client in limiting environmental liability exposure arising from the purchase of a business located in the San Gabriel Valley National Priorities List Superfund Site. Contaminants of concern were various volatile organic compounds (VOC), such as trichloroethylene (TCE) and perchloroethylene (PCE). The agreement was one of the first of its kind in that it applied to leased property and the effective date of the agreement was made retroactive to the date of the transaction closing because the acquisition had to close prior to the expiration of EPA’s public comment period.

River Superfund Action
We are currently representing a client with regard to a major river Superfund site. A primary contaminant of concern at the site is PCBs. The matter involves numerous PRPs, as the USEPA has issued several hundred General Notice Letters concerning the site. The PRPs and the Agency are currently working through a complex RI/FS process. Moreover, public records indicate that some believe that the cleanup costs at the site may exceed $1 Billion. The matter also involves a Natural Resource Damages claim.

Public Funds for Remediation of Chloroform and Carbon Tetrachloride
We represented a major PRP in negotiations with EPA Region VII, a midwestern state and city within that state, which resulted in agreements to conduct a cleanup funded, in part, by $3.5 to $5 million of public monies generated through tax increment financing (TIF). This Superfund cleanup financing arrangement was one of the first of its kind in the nation. We also drafted legislation that amended the state TIF statute in order to maximize the funding available. When another of the primary PRPs at the site became insolvent, we negotiated a buyout deal with the city, which included the city assuming all the cleanup obligations in exchange for a “cash-out” payment associated with a reverse osmosis water treatment plant which the city wanted to build.

Intervention in EPA Rule-Making
We represented a client in its successful intervention in an EPA rule-making proceeding that sought to list the its research park development as part of a National Priorities List (NPL) Superfund site. The site was listed on the NPL because of radioactive waste (uranium and radium), nitroaromatic compounds, trichloroethylene (TCE) and nitrates from this former nuclear and ordnance production facility. The client had already invested millions of dollars in infrastructure improvements. When EPA proposed the site for listing on the NPL, all leasing and development activity came to a halt. We helped the client develop and implement a successful strategy to demonstrate the research park was not contaminated and to convince USEPA that the research park should be excluded from the NPL listing. As a result of the effort, development and leasing re-commenced and, today, the research park is fully leased.

Transactional Experience

Representation of Multinational Sewer Rehabilitation Company
We represent a publicly held company that manufactures sewer liners and performs sewer rehabilitation projects throughout North America and Western Europe. We often conduct environmental due diligence for the company’s acquisitions and divestitures. Recently, we represented the company in connection with the stock purchase of a corrosion-control engineering and services company with 45 owned and leased facilities throughout the United States as well as in Canada and the United Kingdom. We also recently represented the company in connection with the acquisition of several large facilities located in Louisiana, Texas and California.

Multistate Acquisition of Chemical Manufacturing Facilities
Thompson Coburn represented a commercial real estate development company with the acquisition of a portfolio of thirteen (13) former chemical manufacturing facilities located in California, Illinois, Indiana, Massachusetts, New Jersey, New Mexico, Pennsylvania and Montreal, Canada. After the acquisition, we assisted the client in the cleanup, development and sale of the facilities.

Multistate Purchase of Motor Repair and Service Business
We represented a client in the purchase of approximately forty (40) motor repair and service centers located in Alabama, California, Colorado, Georgia, Illinois, Indiana, Kansas, Louisiana, North Carolina, Nebraska, Ohio, Oregon, Pennsylvania, South Carolina, Tennessee, Texas, Wisconsin and Wyoming.

Sale of Multistate Heat Treatment Business
We represented a client in the sale of five heat treating facilities located in Michigan, Ohio, Illinois, Missouri and California. This representation involved coordination of due diligence activities, negotiation of contract terms and obtaining environmental insurance to back-stop an indemnity from the buyer for remediation liability. In connection with this representation, we gained working knowledge of the significant pre-purchase due diligence responsibilities imposed upon and liability protections potentially available to buyers under Michigan’s Environmental Response Act (MERA).

Award-Winning Brownfield Development
Thompson Coburn represented a developer in connection with the purchase of a 153-acre abandoned manufacturing plant and its subsequent transformation into a business park. The negotiation of cleanup cost cap and pollution legal liability insurance policies were integral to the success of the development. In addition, the project received a Community Impact Award from the prestigious Phoenix Award Program in Illinois.

Hospital and Healthcare Facility Acquisition and Divestitures
We often represent hospitals and other medical care facilities with respect to real property and business acquisitions and divestitures. For example, we represented a buyer in connection with the acquisition of 23 hospitals in 9 states. As a result of these transactions, we have developed a comprehensive environmental due diligence checklist for environmental issues specifically related to health care facilities.

Multistate Residential and Mixed Use Housing Development
We represent a developer of mixed use and multifamily housing units which are constructed generally in urban areas with significant environmental concerns. The development projects are located in many states, including Tennessee, Florida, Louisiana, Missouri and Pennsylvania. Because of the residential nature of the developments, we are often involved in negotiating Brownfield Agreements with the state agencies to implement cleanups that are both cost effective and protective of the future residents.

Sale of East Coast Electronics Manufacturing Facility 
We represented a client in the sale of a former electronics manufacturing facility located in Connecticut that had been impacted with solvent contamination. This representation involved working through the complex requirements and procedures of the Connecticut Transfer Act, including the use of an Environmental Land Use Restriction.

Multistate Purchase of Scrap Metal and Battery Recycling Facility
Thompson Coburn represented a client in the purchase of a company with approximately ten (10) scrap metal/battery recycling facilities in Wisconsin and the purchase of three additional scrap yards in Minnesota, Iowa and Illinois. The due diligence included investigation of current and former facilities, disposal facilities and regulatory compliance audits. The contract negotiations included cleanup commitments by and indemnities from the sellers for conditions identified by the due diligence.

Purchase of Multistate Vehicle Manufacturing Facility
Thompson Coburn represented a client in connection with the asset purchase of eight (8) emergency vehicle manufacturing facilities located in Florida, New York, Oregon, Pennsylvania, South Carolina and Wyoming. This representation included the coordination of Phase I, Phase II and compliance assessments, negotiation and documentation of liability allocation between the seller and buyer and the post-closing resolution of contamination and compliance issues identified during due diligence.

Brownfield Development of Former Steel Plant
We assisted our client in the purchase and the development of a former steel plant into the then largest open air shopping center in St. Louis. We planned and directed the client’s due diligence investigation, along with the environmental consultants, negotiated and obtained governmental approval of cleanup plans and objectives for distinct areas of the site, presented those plans to and obtained approval from the lenders and bond underwriters that provided the financing for the project, created escrows to fund post-closing cleanup, and assisted the client in its implementation and completion of all cleanup activities.

Manufactured Gas Plant Site Cleanup/Redevelopment
We are currently representing clients involved in the investigation, cleanup and potential development of several former manufactured gas plant sites (FMGP sites). Some of the FMGP sites are located near or adjacent to major waterways. Portions of the investigations and remediation have been funded through Brownfield grants, private contributions and/or through remediation tax credits.

Cleanup Funded through Remediation Tax Credits
Thompson Coburn represented a major university in its successful efforts to develop and lease a portion of its campus to establish the world headquarters of a major business concern. Necessary remediation work revealed by environmental and geotechnical borings were funded primarily through the generation and sale of Brownfield remediation tax credits.

Retail Petroleum Facilities
For many years, we have represented a land owner who owns the ground under multiple service stations throughout the St. Louis metropolitan area, the largest car wash company in the state of Missouri and one of the country’s most significant gasoline/convenience store chains. We have assisted these clients in numerous matters, including the buying, selling and leasing of property, underground storage tank technical compliance, contaminant investigation and remediation and tank fund reimbursement claims.

Additional Representative Experience

Insurance Recovery
We regularly assist our clients in obtaining recovery for and/or coverage of cleanup costs from their CGL carriers. As an example, we recently concluded a three year coverage action in which we and our co-counsel represented an agribusiness company in the United States District Court for the District of Kansas against more than a dozen insurance companies. On the eve of trial against the sole remaining carrier, the District Court granted all three Thompson Coburn motions to exclude opinions of the insurance company testifying experts. The case resolved soon thereafter.

PCB and Solvent Sites
We negotiated on behalf of current owners of property, two separate settlements which required past owners to remediate or pay for the remediation of all or a substantial portion of multimillion dollar environmental cleanups at a former PCB transformer facility and a hand tool manufacturing facility with trichloroethylene (TCE) and perchloroethylene (PCE) contamination.

Citizen Suits
We successfully represented a city in a matter brought by environmental activists to stop the construction of a dam for a new water supply lake. When the city challenged the activists’ standing to bring the case, the activists asserted the “right to a healthful environmental” provision in the Illinois Constitution conferred standing. Ultimately, the Illinois Supreme Court held there is no right to automatic standing for alleged environmental injuries under the Illinois Constitution and dismissed the case. Glisson v. City of Marion, 720 N.E. 2d 103 (Ill. 1999).

Reduction of EPCRA Penalty Demands
EPA Region VII assessed a six figure penalty against a client for alleged violations of the reporting requirements concerning chemical usage (SARA 311/312). Upon review, we determined that EPA Region VII had incorrectly interpreted the applicable EPA Policy concerning such penalty assessments. After considering our arguments, the EPA reduced the penalty demand by more than 75%. We also represented a client who had an ammonia release at its facility in Tennessee. The EPA made a “six figure” penalty demand in an administrative action. It alleged that the release was not timely reported and that the Company also failed to disclose certain chemicals on its tier 2 reports. With our assistance, our client was able to settle the matter for approximately one-fourth the amount sought by the government.

Alternative and Renewable Energy
We represented a major wind farming company with respect to due diligence, leasing and development work for a large scale wind energy project in Missouri.