SUPERFUND

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.