Environmental Cleanups and Cost Recovery Litigation

The discovery of historical contamination by a client typically leads to two interrelated events. First, current environmental laws place the initial liability for cleaning up historical contamination on the current owner of contaminated property. Once discovered, the law mandates a response. Commensurate with that response, however, is the need to determine if others, both historically and currently, may be responsible for all or some of the costs of the cleanup. These laws allow persons who are required to cleanup these properties the opportunity to seek reimbursement or contribution for the cleanup from historical owners and operators who may have contributed to the contamination, as well as a myriad of persons who may have either transported the material to the location or who may have arranged for disposal of the wastes on the land. However, the failure to properly follow strict rules and guidelines on preserving the right to sue can prove fatal to any such claim.

McLeod, Alexander, Powel & Apffel, P.C. has extensive experience in both prosecuting and defending against claims involving the cleanup of environmentally impacted properties. The Firm, typically in conjunction with responses to agency demands to cleanup a site, assists owners and operators in navigating the statutory requirements to preserve their contribution claims. Further, the Firm conducts extensive research of the ownership and operational history of an impacted property to identify potentially responsible parties.

Environmental Compliance and Defense of State Agency Enforcement Actions

The best protection against litigation is prevention and compliance with existing environmental laws and statutes. Our attorneys routinely counsel clients and environmental consultants in compliance issues, including interfacing with state and federal agencies to seek practical solutions to compliance problems. Further, our attorneys have developed a negotiating relationship with state and federal agencies over environmental enforcement actions.

Land Use Planning and Real Property Environmental Issues

The reality of environmental laws and regulations impacts every phase of an owner’s use, planning and development of real property. The Firm attorneys in this practice area coordinate with members of the Real Estate Practice Group of the Firm to devise strategies to deal with environmental issues and concerns that relate to the development and use of real property.

Toxic Tort and Personal Injury Law

Environmental Law and Toxic Tort claims are intertwined. The Firm is invariably called upon to assist in complex multi-plaintiff litigation relating to alleged exposure by current and historical operations relating to industrial facilities. Our attorneys are directly involved in toxic tort litigation that concerns environmentally impacted sites and areas.

Major Environmental Laws

• National Environmental Policy Act of 1969 (NEPA) [42 U.S.C. 4321-4347] NEPA is the basic national charter for protection of the environment. It establishes policy, sets goals, and provides means for carrying out the policy.
• Chemical Safety Information, Site Security and Fuels Regulatory Relief Act [Public Law 106-40, Jan. 6, 1999; 42 U.S.C. § 7412(r) Amendment to Section 112(r) of the Clean Air Act]
• The Clean Air Act (CAA) [42 U.S.C. §§ 7401 et seq. (1970)]
• The Clean Water Act (CWA) [33 U.S.C. §§ 1251 et seq. (1977)]
• Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund) [42 U.S.C. §§ 9601 et seq. (1980)]
• The Emergency Planning & Community Right-To-Know Act (EPCRA) [42 U.S.C. §§ 11011 et seq. (1986)]
• The Endangered Species Act (ESA) [7 U.S.C. 136; 16 U.S.C. §§ 460 et seq. (1973)]
• Fedeal Insecticide, Fungicide and Rodenticide Act (FIFRA) [7 U.S.C. §§ 135 et seq. (1972)]
• Federal Food, Drug, and Cosmetic Act (FFDCA) [21 U.S.C. §§ 301 et seq.]
• Food Quality Protection Act (FQPA [Public Law 104-170, Aug. 3, 1996]
• The Freedom of Information Act (FOIA) [U.S.C. §§ 552 (1966)]
• The Occupational Safety and Health Act (OSHA) [29 U.S.C. §§ 651 et seq. (1970)]
• The Oil Pollution Act of 1990 (OPA) [33 U.S.C. §§ 2702 – 2761]
• The Pollution Prevention Act (PPA) [42 U.S.C. 13101 and 13102, §§ et seq. (1990)]
• The Resource Conservation and Recovery Act (RCRA) [42 U.S.C. §§ 321 et seq.]
• The Safe Drinking Water Act (SDWA) [42 U.S.C. §§ 300f et seq. (1974)]
• The Superfund Amendments and Reauthorization Act (SARA) [42 U.S.C. §§ 9601 et seq. (1986)]

State and Federal Agency Links

• U.S. EPA
• Texas Commission on Environmental Quality
• Oklahoma Department of Environmental Quality
• National Response Center Query Page
• Agency for Toxic Substances & Disease Registry
• Capital Reports Links to State Agencies

Other Useful Environmental Links

• Cornell University Law School Environmental Links to Federal Regulations and Court Opinions
• MSDS Databases
• Cleanup Levels for Hazardous Waste Sites
• Toxlaw ChemTracker
• State Voluntary Cleanup Program Compliance History

Disclaimer

These summaries are general comments only and may not be applicable to all situations. They are not to be considered legal advice. Consultation with an attorney is needed if legal advice is sought.