Environmental Litigation & Enforcement Actions

Member of trial team in contribution CERCLA liability litigation against 14 companies alleged to have contributed to site contamination in connection with the Centredale Manor Superfund Site in North Providence, Rhode Island. After a six-week trial against four remaining defendants, the court entered a finding of CERCLA liability against all of them.

Lead appellate counsel in a consent decree challenge. After extensive negotiations subsequent to a successful remedy challenge in the United States District Court for the District of Rhode Island, obtained the entry of a Consent Decree implementing the remedy at the Centredale Manor Restoration Project Superfund Site. Several PRPs opposed the entry of the Consent Decree on three primary grounds: implementation of a remedy that was arbitrary and capricious; failure of the District Court to conduct meaningful judicial review; and the basis and amount of the contribution of the United States DOD in relation to its alleged contribution to contamination at the site.  After coordinated briefing and argument with the US Department of Justice, the First Circuit affirmed the District Court’s entry of the Consent Decree in a reported opinion. Emhart Industries, Inc., et al. v. United States Department of the Air Force, et al.,988 F.3d 511 (1st Cir. 2021).

Prosecuted a cost recovery/allocation action against several potentially responsible parties related to the Providence, Rhode Island Superfund site on behalf of a large power tools manufacturer in the District of Rhode Island.

Aided a consortium of major consumer brand companies prepare and file a joint Amici Curiae brief in the U.S. Court of Appeals for the D.C. Circuit supporting the Clean Power Plan pursuant to the Clean Air Act (CAA).

Assisted a non-profit environmental organization prepare two Amici Curiae briefs at the summary judgment stage in the U.S. District Court for the District of Columbia in support of an energy projects developer’s and U.S. Government’s compliance with various environmental statutes, including the National Environmental Policy Act (NEPA), Migratory Bird Treaty Act (MBTA), Endangered Species Act (ESA), and National Historic Preservation Act (NHPA).

Assisted a group of businesses and trade associations prepare and file a joint Amici Curiaebrief in the U.S. Court of Appeals for the D.C. Circuit challenging volume standards for advanced biofuels under the Clean Air Act’s (CAA) Renewable Fuel Standard (RFS) program.

Represented automotive client in two Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) litigation actions in the U.S. District Court for Eastern District of New York alleging contribution to site contamination and a $35+ million cleanup remedy.

Represented consumer product manufacturing clients in a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) litigation action in the U.S. District Court for Rhode Island, including challenging liability, the Record of Decision, and a $100+ million cleanup remedy.

Lead trial counsel in a CERCLA liability trial brought by the U.S. Environmental Protection Agency (EPA) and the U.S. Department of Justice asserting a “divisibility defense” in connection with dioxin contamination at the Centredale Superfund Site in North Providence, Rhode Island. The trial required over 20 trial days spanning two months and live and deposition testimony of over 20 fact witnesses. The trial involved over a dozen expert witnesses covering complex issues of chemistry, molecule formation and synthesis, chemical fingerprinting, process chemistry, aerial photographic analysis, chemical fate and transport, and environmental engineering. Although the client ultimately did not prevail in establishing this rarely applied defense to CERCLA joint and several liability, the trial resulted in a 186-page opinion, express recognition by the court of “second to none” skilled management and presentation of complex issues, and the defense provided partial basis for subsequent finding of client’s good faith “sufficient care” defense to fines and penalties sought by the U.S. EPA for client’s refusal to comply with a UAO issued to it during pendency of the litigation. (Emhart Industries, Inc. v. United States Department of the Air Force v. Black & Decker, Inc. (C.A. No. 11-023 S))

Lead litigation counsel for a client pursued for perchlorate groundwater contamination in the Rialto-Colton Groundwater Basin in San Bernardino County, California. This multi-year litigation involved state judicial and administrative proceedings, as well as federal judicial and administrative proceedings. The parties included the cities of Rialto, California, and Colton, California, the County of San Bernardino, the Santa Anna Regional and State Water Board, the U.S. Environmental Protection Agency (EPA), the U.S. Department of Defense, and over a dozen other alleged PRPs. The team extensively litigated CERCLA liability/divisibility defenses and a variety of corporate successor liability issues for multiple historic entities under the laws of multiple states. After a court-deferred resolution of successor liability issues for trial, we negotiated a favorable settlement for the client limited to implementation of an interim remedial action, utilizing a trust funded by other PRPs, including the Department of Defense, with continuing cost-sharing by the Department of Defense in capital and O&M costs. The interim action was negotiated with significant limits on scope of remedial action and re-openers and no past or future EPA oversight costs. (City of Colton v. American Promotional Events, et al., USDC, Central District California (5:09-cv-01864-SG-SS)).

Lead trial counsel in a trial against the U.S. Environmental Protection Agency (EPA) and the U.S. Department of Justice in the United States District Court for the District of Rhode Island challenging the remedy selected by U.S. EPA for the Centredale Manor Superfund Site in North Providence, Rhode Island. This trial also required defense of an enforcement claim and a claim for over $40 million in fines and penalties for the client’s refusal to comply with an EPA Unilateral Administrative Order requiring the implementation of the challenged remedy. The trial involved EPA and client fact witnesses and experts on both sides in the areas of human health and ecological risk assessment, environmental engineering, construction and chemical fate and transport. After 13 bench trial days spanning six months, extensive briefing, and a full day of closing argument, the court found certain aspects of EPA’s remedy selection process to be arbitrary and capricious, remanded remedy to EPA, retained jurisdiction over the case through remedial design in connection with other issues, stayed enforcement of the UAO, and found objective good faith “sufficient cause” for the client to refuse to comply with that order, awarding none of the over $40 million in fines and civil penalties sought by the EPA. (Emhart Industries, Inc. v. United States Department of the Air Force v. Black & Decker, Inc. (C.A. No. 11-023 S))