The Firm is particularly well known for maintaining a strong statewide environmental practice that rivals the environmental practice of any other law firm in California. At any one time anywhere from three to five of the Firm’s partners, and most of the Firm’s associates, are engaged in high profile environmental litigation or environmental regulatory matters. The Firm has extensive expertise and experience in handling environmental matters for both private companies and public entities throughout California. We have good working relationships with numerous state and federal environmental regulators, as well as many prominent elected officials. The Firm also has experience negotiating and litigating against all of the prominent environmental non-profit plaintiff groups in California. In addition, the Firm’s partners are highly sought after and speak regularly to business and legal groups on trends in environmental law in California.
- State and Federal Superfund Litigation
The Firm has substantial experience in representing various clients in matters involving state and federal Superfund (HSAA and CERCLA). These matters typically involve both defending against such claims, as well as pursuing those responsible for the contamination at issue. Below are several cost recovery actions the Firm is currently handling or has recently handled:
- The Firm currently represents a Northern California County in connection with a multiparty CERCLA suit brought by the United States concerning a former municipal landfill site which operated from the early 1950’s to the early 1970’s. Experts retained by the Firm have conducted extensive investigation at the site in order to develop a cost effective remedial plan. This case is currently being mediated.
- The Firm currently represents an international aerospace and defense systems company and a stainless steel tubing manufacturer in connection with claims brought by a Southern California Water District for response costs and damages pursuant to the California Superfund Act for alleged releases of volatile organic compounds from its facilities to groundwater. This District is in the early stages of implementing an approximate $100 million remediation and containment plan to address groundwater contamination over an approximate 11 square mile area in the cities of Fullerton and Anaheim.
- The Firm currently represents an international aerospace and defense systems company in connection with claims brought by a city located in the Inland Empire for response costs and damages it incurred in responding to perchlorate, and other contamination, allegedly impacting and threatening its water wells.
- The Firm currently represents an international aerospace and defense systems company in connection with claims brought by several water purveyors located in the Santa Clarita Valley for response costs and damages it incurred in responding to perchlorate, and other contamination, allegedly impacting and threatening its water wells.
- The Firm, on behalf of a large manufacturer of high temperature alloys and titanium metals, is currently pursuing a cost recovery action against several PRPs for their alleged involvement in the contamination of certain property located in Los Angeles, California. Specifically, the Firm’s client is seeking reimbursement of its response costs from several historical PRPs, including prior owners and operators, such as Burlington Northern Railroad and United Pacific Railroad in connection with their spur track operations where releases of contamination took place.
- The Firm, on behalf of a large broker and processor of ferrous and nonferrous scrap metals, stainless steel, and high temperature alloys, recently prosecuted a cost recovery action against several PRPs responsible for historical PCB contamination of property. Locating the former employee and developing his testimony proved vital to proving our client’s case, which led to the recovery of $2.8 million from these PRPs – an amount sufficient to cover this client’s total cleanup costs. Significantly, this was one of only two environmental cases featured in Settlement & Verdicts, Year-In-Review edition, a publication of the Los Angeles Daily Journal. Notably, we were recognized for our creativity and persistence in investigating and developing evidence of contamination activities that occurred over fifty years ago.
- The Firm recently represented historical operators of a bulk loading facility at the Port of Los Angeles against environmental cleanup claims brought by an environmental non-profit group and the Port of Los Angeles. The Port claimed that its cleanup costs for dredging the contamination allegedly caused, in part, by our client were in excess of $50 million. By successfully challenging the remedial approach and aggressively prosecuting historical PRPs, the Firm was able to reach a settlement that only required our client’s insurers to make a $1 million contribution despite that our client was the Port’s main target for cost recovery.
- The Firm conducted the trial of a complex environmental case in San Bernardino County involving a dispute between the Firm’s client, a large manufacturer, and its former subsidiary (now controlled by different owners) over responsibility to clean up historic contamination. Prior to trial, the Firm first eliminated a $1.4 million breach of contract claim against our client by summary adjudication motion. On the morning of the first day of trial, the former subsidiary offered to pay $400,000 to settle. Our client declined this offer and proceeded to trial. After eight days of trial, however, the former subsidiary agreed to pay $1.35 million, an amount well within the range for which our client was seeking to recover, and the parties settled. Coupled with the breach of contract victory, this resulted in a 2.75 million swing in our client’s favor.
- The Firm recently represented a Southern California City sued in connection with cost recovery claims brought regarding the remediation of a major Southern California landfill. The Firm’s attorneys worked closely with City officials to develop evidence which showed that the City’s waste contribution to the landfill was de minimis. This evidence led to the City’s payment of a nuisance value settlement.
- The Firm recently represented a Northern California City in connection with a suit brought by a property owner alleging that the City was responsible for causing and/or contributing to certain contamination impacting the owner’s property. The property owner was seeking to recover its response costs under state Superfund laws. Due to the Firm’s thorough investigation of the underlying facts and early, aggressive litigation strategy, the property owner, however, dismissed its claims against City within eight months of filing the initial complaint.
- The Firm recently represented a former Port tenant in connection with a cost recovery action brought by the San Diego Unified Port District relating to the remediation of copper contamination. This matter was successfully mediated for a small percentage of the Port’s claimed remediation costs.
- The Firm recently represented a major Southern California bank in a cost recovery action brought by the owner of a shopping center in La Verne, California (formerly owned by a predecessor to the Bank) for contamination caused by the operations of various dry cleaners at the center. The Firm was able to identify and successfully prosecute the PRPs responsible for causing the contamination at the center, and forced them to pay the majority of the costs associated with the anticipated cleanup, saving the Bank a seven-figure amount that it otherwise would have had to pay.
- The Use of the Public Process and Public Funding to Offset Liability Costs and to Develop Brownfields and Contaminated Properties
Through its attorneys’ private practice, public service, and development of relationships over the years, the Firm has developed a strong regulatory compliance and enforcement defense practice that has significantly bolstered its clients’ positions in complex environmental cases. Of particular note, our ability to work with California’s and the nation’s top administrative agencies has empowered the Firm to uniquely position its clients to explore the acquisition of reduced compliance and monitoring activities, penalties and fines, and even certain immunities in conjunction with contaminated sites.
The Firm has also been quite successful in helping to obtain public funding to help offset liability costs, for both study and remediation, in a number of our complex environmental litigations. Rarely do parties to a major environmental action avail themselves of federal, state, and local government programs which were initially created to address the very remediation issues that are the subject of such litigation. Often, the funding sources behind these public programs are protected from the general budget process through special fund or initiative status. In other circumstances, legislative member requests and line item appropriations in the general budget can lead to the allocation of public resources toward the study and/or remediation of contamination which is the subject of litigation.
Thorough research into the availability and applicability of these programs, coupled with effective political maneuvering, can bring significant public resources to the table to bolster our clients’ positions. Having a thorough working knowledge of both the process and the players is a must, and is one of the Firm’s specialties.
The Firm has also been intimately involved in the development of Brownfields policy and legislation over the past decade. From the creation of the state’s Brownfields Clean Loan Fund to the progressive evolution of immunity law with respect to Brownfields ownership and development, the Firm’s attorneys have been integral to California’s treatment of these issues. The Firm’s clients in this area include one of the largest environmental engineering, design, and development firms in the world (which, along with the Firm, recently won the bid to redevelop the waterfront for the City of Antioch along the Sacramento River which connects the State’s capitol with the San Francisco Bay), one of the nation’s largest homebuilders, a smaller boutique Brownfields developer focused on rehabilitating one acre to five acre sites, and a public entity seeking to remediate and reuse a high profile abandoned landfill surrounded by a pristine environment.
Last fall, the Firm organized and hosted a major conference on the current state of Brownfields law and opportunities, along with Oakland Mayor Jerry Brown (nationally renowned for his innovative Brownfields development policy and accompanying successes), the Director and Chief Counsel of the California Department of Toxic Substances Control, the Assistant Secretary of the California Environmental Protection Agency (responsible for Brownfields development policy, regulation, and enforcement), the Director of the California Department of Housing and Community Development, and most of the state’s leading developers and builders. The Firm’s strong relationships with the state’s administrative agencies provide our clients with unique opportunities to develop immunity plans through working directly with their regulators in a cooperative environment. In the end, we are uniquely adept in maximizing sources of public funding to assist our clients before, during, and after the development of their properties.
- Regulatory Compliance/Governmental Advocacy
The Firm regularly advises clients with regard to regional, state, and federal environmental compliance matters, including assistance with hazardous waste treatment permits, air emission limits, toxic chemical inventory reporting, hazard communication reporting, waste water and storm water discharge permits, and other permits, notices, and licenses under federal and state law. The Firm is widely recognized for effective advocacy in administrative proceedings before the U.S. Environmental Protection Agency, the California Regional Water Quality Control Board, the Office of Environmental Health Hazard Assessment, the Department of Toxic Substances Control, the Integrated Waste Management Board, the California State Water Resources Control Board, the South Coast Air Quality Management District, the Bay Area Air Quality Management District, and other state and local agencies.
We have also been involved in the development, interpretation, and application of environmental statutes and regulations through appearances before the California Senate and Assembly, the United States Congress, the Environmental Protection Agency, the California State Water Quality Control Board, and various other state and regional environmental agencies. The Firm’s attorneys have appeared before the California State Assembly to present its clients' views regarding the landmark Wright-Polanco-Lempert hazardous waste tiered permitting bill, also known as "AB 1772," on AB 2019, the Storm Water Enforcement Act of 1998, and on the proposed revisions to the General Industrial Storm Water Permit. One of the Firm’s partners received numerous appointments specifically regarding his environmental expertise, including appointments from the California Insurance Commissioner, the Los Angeles District Attorney, and the Los Angeles City Attorney. Another Firm partner served as General Counsel to the California State Controller, General Counsel to the Lieutenant Governor, the Director of Policy for the Governor, and the Director of the California Office of Administrative Law.
- Stormwater
The Firm has a broad reaching, well-respected, and expanding stormwater practice. The Firm is one of only a handful of California law firms specializing in this area of law. The Firm has long been a leader in the field, representing private entities facing enforcement actions brought by Federal, State, and local regulatory agencies. The Firm has also been active in addressing the ever-changing and ever-controversial regulatory framework on which California’s stormwater rules are based.
We have substantial experience in representing clients in a variety of stormwater contexts, although the foremost aspect of the practice is representing private parties who have been accused of violating stormwater regulations. We have represented a broad variety of clients, ranging from Northern California wineries to Chula Vista auto recyclers, and have represented clients in enforcement actions brought by local agencies to the US Environmental Protection Agency, with most of California’s Regional Water Quality Control Boards in between. Recently, we represented one of the Firm’s clients in the first US EPA stormwater enforcement action ever brought in California, addressing nine different sites. After an exhaustive investigation by the EPA, we were able to negotiate an amicable resolution whereby the client paid only a relatively small fine and agreed to implement a Supplemental Environmental Project (“SEP”). After the SEP was completed, the EPA and the Firm’s client held a joint press conference outside one of the client’s facilities to announce the success of the client’s SEP, to praise the client’s efforts, and to inform the public of the substantial environmental benefits that were expected to flow from the client’s actions. We also represented two construction industry trade associations in a pending dispute with the NRDC and the Waterkeeper Alliance over the scope of the EPA’s obligations under the Clean Water Act, and whether the EPA had authority to refuse to impose numeric effluent limits on stormwater discharges from construction sites.
The Firm’s partners are also active participants in the crafting of stormwater policy and regulation in California. We were instrumental and successful in the original effort to create a stormwater monitoring group program whereby industry members can band together to meet their collective stormwater monitoring and training requirements. The Firm is currently counsel to two of California’s longest standing and most successful stormwater monitoring groups: the Metal Recyclers Monitoring Group (“MRMG”) and the California Wineries Monitoring Group (“CWMG”), regularly counseling its members as to their stormwater obligations, options, and strategies, as well as representing the individual group members in their dealings with the stormwater regulatory community.
At a recent California Bar Association Environmental Conference in Yosemite, California, Tal Finney served as the moderator for a panel discussion on the issue of numeric effluent limits on stormwater dischargers. The panel featured Jason Booth of the Firm, who represented the interests of the regulated communities, as well as counsel for the NRDC, and a member of the State Water Resources Control Board. We have also appeared before the State Water Resources Control Board and have given testimony on numerous occasions on behalf of industry members subject to California’s stormwater regulations, arguing in favor of a more practical, financially feasible approach to stormwater regulation, and against the imposition of unworkable and potentially devastating numeric effluent limitations. The Firm regularly contributes to the ongoing debate of the numeric limit issue currently pending before the State Board, as it determines whether numeric limits should be included within the long-ago expired General Industrial Stormwater Permit.
- Clean Water Act/Proposition 65 Litigation
The proliferation of lawsuits brought by private attorneys general, or citizen suits, has created an unmet need for medium and large businesses alike, as well as public entities. With little recourse to financing the defense by insurance, companies and public entities are often left to face citizen suits at enormous costs. The Firm is among the most experienced in the State of California at handling Clean Water Act and Proposition 65 suits.
Such claims regularly call for the Firm to approach government entities, such as the attorney general's office, the district attorney, the city attorney, or the EPA, in an effort to pre-empt the suits and to build working relationships and trust among the prosecutors and authorities that can take such action. With these tools, the client receives a multi-faceted defense approach that keeps in mind the need to prepare the matter for trial, while still exploring possible settlement options and putting the client in a position to negotiate from strength.
The Firm is thoroughly experienced in counseling clients under the Clean Water’s Act National Pollutant Discharge Elimination System (NPDES). The Firm is also preeminent in NPDES storm water permitting compliance and regulation, having represented industrial and transportation interests at every major national legislative and regulatory level.
- The Firm’s Approach To Handling Complex Environmental Litigation and Regulatory Matters
§ Utilizing its Wealth of Experience
Contributing to the Firm’s success is not only knowing when to proceed in a cost effective manner, it its knowing when to utilize its attorneys’ wealth of experience. To do this, the Firm’s attorneys who are assigned to various environmental matters meet on a weekly basis. This includes both partners and associates, which is unusual for most firms. At these meetings, we generally discuss the status of each case, pending filings and deadlines, as well as the overall case status. After discussing these issues in this open forum, the attorneys then discuss the litigation strategy for each case and how best to implement that strategy. We value this type of team approach to handling most matters and, in particular, complex cost recovery actions. Not only does this foster creative alternatives to handling such matters, it promotes the sense of purpose and dedication from all our attorneys necessary to obtaining the ultimate goal … achieving the best result for our client.
- A Thorough Investigation and Understanding of the Facts and Circumstances Surrounding Such Claims
The Firm’s success is also due, in part, to its emphasis on performing a thorough, up-front factual investigation intended to assess realistic liability and damage exposures, to explore the potential for early settlements, and to locate other possible sources of contribution to contamination cleanup. Where possible, the Firm takes advantage of the interrelated nature of environmental claims and actions by local, state, and federal governmental agencies, and works with and among the involved agencies to craft effective, and sometimes innovative, solutions to complex environmental issues. The Firm draws upon its experience to establish a foundation for an effective relationship between the governmental entity or entities and our clients.
This approach leads to increased control over, and the ultimate reduction of, client costs. For example, time-consuming discovery may be narrowed to the particular issues identified during the factual investigation and early consultation with agency representatives. This provides the client with information that may lead to favorable, early settlement negotiations, and greater certainty regarding the potential liability exposure in a case or the allocation of risk. The Firm appreciates that today's competitive environment demands quick, accurate, practical work, and then provides it.
The Firm’s success in this area is due, in part, to its ability to efficiently manage what are usually extremely complex matters. To do this, the Firm typically assigns one partner and one mid-level associate to the matter. Depending on the complexity of the case and the progress of the litigation, however, the evolution of such matters typically requires the assistance of junior level attorneys and/or paralegals. For example, in pursuing historical PRPs responsible for contaminating a particular site, it is cost effective to utilize our junior associates and/or paralegals to coordinate with the numerous regulatory agencies that maintain the records we typically rely upon. In so doing, we are able to effectively identify the documentary evidence necessary in deciding which, and how many, PRPs to pursue, in an efficient, cost-effective manner.
