Federal Cleanup Programs

The federal government administers a wide variety of statutory programs that could affect the remediation of a contaminated site, whether the remediation is undertaken voluntarily or at the direction of the government. Frequently our remediation projects under federal programs have involved redevelopment activities and coordinating site cleanup with state program requirements. MGKF attorneys and in-house technical consultants have counseled clients on satisfying the obligations of these federal programs, reconciling conflicting or overlapping requirements of multiple federal and state regulatory frameworks, and retaining and overseeing remediation consultants and contractors. We also represent clients where federal enforcement, cost recovery and natural resource damage claims are brought, and in bringing or defending claims for private party cost recovery under federal laws.

Among the federal cleanup programs that fall into this category are the following:

The Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C. § 9601 et seq. ("CERCLA" or "Superfund"), is the principal federal law affecting the cleanup of contaminated properties. We have represented many clients in investigating and remediating both large Superfund sites (those properties listed by the U.S. Environmental Protection Agency ("EPA") on the National Priorities List or "NPL") and non-NPL properties where EPA has asserted CERCLA's "removal" authority to require cleanup (including complex sediment sites), and negotiated the requisite consent orders and decrees with the agency. We have also defended multi-party cost recovery litigation brought by EPA or private parties, defended unilateral orders issued by EPA under § 106 of CERCLA, and sought cost recovery on behalf of our clients to recover their cleanup costs. Finally, we have assisted clients in redeveloping Superfund sites and in securing CERCLA bona fide prospective purchaser and other liability protections available to innocent parties that facilitate these projects, including those that require compliance with EPA's "all appropriate inquiry" rule.

The Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq. ("RCRA"), may require investigation and remediation under various authorities. We represent clients in complying with RCRA's "corrective action" provisions that apply to hazardous waste treatment, storage, and disposal facilities pursuant to permit requirements and through administrative orders issued to interim status facilities. EPA also has separate enforcement authority to address imminent and substantial endangerments to health or the environment pursuant to § 7003 of RCRA, and we have defended suits brought by the agency under that authority. We have also defended and instituted citizen suits under § 7002 of RCRA, which allows suits to be brought requiring cleanup to address imminent and substantial endangerment conditions, as well as permit and other violations. Finally, RCRA contains special provisions under Subtitle I that regulate certain underground storage tanks ("USTs") containing petroleum or other hazardous substances, including installation, closure, spill prevention and corrective action requirements. The UST requirements are frequently delegated to the states.

The Toxic Substances Control Act, 15 U.S.C. § 2601 et seq. ("TSCA"), affords EPA broad authority to regulate polychlorinated biphenyls ("PCBs"), pursuant to which the agency has developed extensive regulations governing the remediation of PCB-contaminated environmental media. We have assisted clients in navigating the complexities of EPA's PCB remediation "Mega Rule" in addressing historic PCB spills that affect soils, groundwater, and building components through the rule's self-implementing provisions. In addition, brownfield sites contaminated by PCBs present special challenges and we have assisted clients in redeveloping these sites and overcoming regulatory hurdles.

The Base Closure and Realignment Act, 10 U.S.C. § 2687 ("BRAC"), provides for the closure of military bases, including the investigation and cleanup of contamination prior to transfer to subsequent owners and the provision of liability protection to those owners. We have assisted municipal and private clients in securing these protections and ensuring the proper cleanup of these facilities as part of their redevelopment, including major redevelopment sites at the Philadelphia Naval Yard and the Watertown Arsenal in Massachusetts.

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Examples of select matters that MGKF has handled under these programs include the following:

• The firm has represented many clients in litigation over and negotiating consent orders for the preparation of Remedial Investigation and Feasibility Study ("RI/FS") documents at a wide range of Superfund sites, counseled clients through the legal and technical requirements of those studies, commented on EPA's proposed plans for the remedies, and negotiated consent decrees for the performance of remedial actions following EPA issuance of its Records of Decision ("RODs"). We have also negotiated ROD revisions.
• We counseled a national commercial developer in remediating a Superfund site, securing liability protections from EPA through a consent decree, and redeveloping the site for commercial offices.
• MGKF advised a site-owner/developer in remediating under CERCLA a former lithium manufacturing facility and assisted in the site redevelopment as a continuing care retirement facility.
• We have represented a client in connection with remediating a state-lead Superfund site in New Jersey that includes both soil and groundwater issues primarily related to mercury contamination, and involves the remediation of currently developed and undeveloped properties. The client intends to incorporate the development of new warehouse space as part of remediating the latter.
• MGKF counseled an industrial client in remediating a closed chemical manufacturing facility contaminated with chlorinated solvents, where the ultimate goal was to redevelop the property and an adjacent site as a big-box retail facility while satisfying both RCRA corrective action and state site remediation requirements.
• The firm obtained EPA approval on behalf of a major utility to complete RCRA corrective action based on attaining Pennsylvania's Act 2 cleanup standards to facilitate development of a large cogeneration facility.
• We advised a scrap company in negotiating an EPA consent order for the remediation of a scrap yard impacted by PCBs and lead, and in the sale of the site for residential redevelopment.
• We represented a client in connection with the remediation and sale of a closed manufacturing site contaminated with PCBs associated with the former use of the site as a used oil recovery facility by a prior owner. We worked with the client's consultant in developing an engineering control remediation strategy, and oversaw preparation of the consultant's work plan to ensure compliance with TSCA's complex PCB self-implementing remediation requirements under federal law.