Environmental Law

Superfund

Partners

Cohen, Edward A.

Kellmeyer, Joseph M.

Kennedy, Crystal M.

Sonderegger, Paul T.

Stone, Brian C.

Strassner, Peter S.

Associates

Bousquet, Kimberly M.

Kemper, Ryan Russell

Linzer, Ross E.

EHS Senior Advisor

McCombs, Max W.

• Agrium
• American Commercial Barge Lines
• Bemis Company
• BNSF Railway
• Bunge North America
• CKE Restaurants (Hardee's)
• ConocoPhillips
• ExxonMobil Coal & Minerals
• ExxonMobil
• Insituform Technologies
• Kansas City Southern Railway
• Laclede Gas
• Mallinckrodt
• Norfolk Southern
• United Van Lines 
• WCA Waste Corporation

Superfund Experience

CERCLA Cost Recovery and Defense
We are currently defending 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) is 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.

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.

Toxic Tort Defense
Thompson Coburn defended a major Missouri-based aircraft parts production and maintenance company, which was one of several defendants sued in a toxic tort case filed in federal court by area residents living near a Superfund site. The plaintiffs alleged multiple personal injuries arising from groundwater contamination caused by releases of chlorinated solvents (e.g., TCE, vinyl chloride, perchloroethylene) from a former manufacturing plant. At the beginning of the case, we successfully persuaded the court to enter a Lone Pine order, which required the plaintiffs to demonstrate they had sufficient evidence that our client caused or contributed to the releases of the chlorinated solvents. After a brief period of conducting discovery, it became apparent that the plaintiffs had no causal evidence of any kind showing that our client ever used any chlorinated solvents at the site. After our client presented plaintiffs’ counsel with the opportunity to dismiss the case or face a motion for sanctions, our client and the plaintiffs entered into a settlement agreement in which plaintiffs dismissed all claims without any payment by our client.

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.