Superfund and Site Remediation

The cleanup of contamination can encompass projects ranging from a minor spill that can be addressed in a matter of minutes to a complex, years-long, multi-party investigation and remediation of soil and groundwater contamination and restoration of damaged natural resources. Remediation is also a key element of redeveloping contaminated "brownfield" properties as urban areas (and, increasingly, older suburbs) struggle to return abandoned and underutilized former industrial sites to productive reuse.

The following is a very brief summary of our site remediation practice, more details of which may be found by following the links below or in the right column of this page:

• Federal Cleanup Programs: Under federal law, remediation and associated litigation is addressed primarily under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA" or "Superfund"), the various corrective action requirements of the Resource Conservation and Recovery Act (RCRA), and the polychlorinated biphenyl (PCB) cleanup regulations promulgated under the Toxic Substances Control Act (TSCA). We also have experience with the specialized remediation requirements of the Base Realignment and Closure Act (BRAC). All of these federal cleanup programs may also come into play in redeveloping brownfields.
• State Cleanup Programs: Most states have cleanup programs that parallel federal law, but are often tailored toward parties who wish to remediate property on a voluntary basis without the need for state enforcement or cost recovery litigation. These state voluntary cleanup programs, frequently used by brownfield redevelopers, commonly specify contaminated site investigation procedures, soil and groundwater cleanup standards, and criteria for permanent remedies and the use of engineering and institutional controls. States also have special requirements to address the remediation of underground storage tank (UST) releases regulated under the federal RCRA UST program and analogous state authorities. Further, some states, such as New Jersey, have cleanup requirements triggered when property is transferred or industrial establishments cease operations.

In addition to counseling clients on the regulatory aspects of remediation programs, we also provide legal counsel on related issues that often come into play during site cleanups:

• Environmental Insurance: Environmental insurance may be a useful tool in managing risks associated with both historic contamination and releases from current operations. It also can provide a hedge against unforeseen cost increases in performing a remediation. Moreover, lenders frequently require environmental insurance at brownfield sites as a condition to financing, and local governments may require it in connection with large-scale municipal redevelopment projects. We help clients secure these policies in coordination with insurance brokers, and assist in negotiating policy terms.
• Public Funding: Particularly where remediation is necessary at large-scale redevelopment projects promoted by local officials, securing public funding may be a critical element of project feasibility. We have experience assisting clients to secure grants, low-interest loans, and other financial assistance from both federal and state sources to help underwrite site investigation, cleanup, and related development activities. Funding may also be available for underground tank cleanups under state financial assurance and grant programs.
• Cost Recovery: Where other recalcitrant parties bear all or part of the responsibility for remediation, we assist our clients in litigating claims against these parties for cost recovery or injunctive relief.

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MGKF lawyers, with the assistance of our in-house technical consultants, have experience in the myriad site remediation issues that these projects present. We guide our clients through applicable notice, investigation, cleanup, and post-cleanup requirements, helping them tailor a remedial strategy appropriate to the circumstances under both federal and state laws while remaining consistent with business objectives. Examples of our experience includes:

• Contaminated Sediment Sites: Our work has encompassed all aspects of contaminated sediment management, including remedy selection and implementation at the state and federal levels, fate and transport modeling for use in both remedy selection and litigation, and negotiations of consent orders and judgments with federal and state regulators. 
• Cost Recovery, Superfund, Natural Resource Damages and Citizen Suits: Serving as lead counsel in one of the first multiple-party Superfund matters to be litigated through the allocation phase to judgment.
  
  Additionally, representing multiple clients in complex cost recovery litigation involving several hundred third-party defendants and relating to the remediation of contaminated sediment in the Lower Passaic River and adjacent water bodies in New Jersey.
  
  Also representing the National Solid Waste Management Association in amicus briefing before the United States Supreme Court on successor liability issues under CERCLA.
• Environmental Insurance:  Assisted a developer client in selecting an insurance carrier and negotiating the terms of pollution legal liability and contractors pollution liability policies to manage environmental risks for itself and the municipality in the mixed-use redevelopment of approximately 363 acres in the New Jersey Pinelands. The project includes remediation of buried demolition debris, as well as closure and post-closure monitoring of a former municipal landfill.
  
  Also represented a Fortune 100 company in negotiating the terms of an environmental insurance policy, with multi-million dollar policy premiums, covering environmental liabilities arising from known and unknown environmental conditions at all divested properties. This included negotiating expanded coverage language to apply to "threatened" releases in addition to "actual" releases, extending coverage to apply to medical monitoring and emotional distress claims and claims for "stigma" damages to property, and expanding the insurer's obligation to defend environmental claims.
• Federal Cleanup Programs:  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 have also 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.
• Financial Assistance:  MGKF has advised and assisted clients in obtaining state finincial assistance for brownfield projects, including programs in Pennsylvania and New Jersey.
• State Cleanup Program:  MGKF has worked with a residential developer, its outside engineers and environmental consultants on several significant urban infill brownfield redevelopment projects in Philadelphia. Among other tasks, the firm has advised on investigations and cleanup strategies at these sites to attain appropriate remediation standards under Pennsylvania's Act 2 program; presented remediation and reuse plans to Pennsylvania Department of Environmental Protection, municipal, and neighborhood representatives; reviewed draft Act 2 reports; and prepared environmental disclosures and land use restrictions where required by Act 2, condominium and planned community acts, or other laws.
  
  Additionally, the firm represented a residential and commercial developer in connection with a 300-plus acre mixed-use commercial and residential redevelopment in the New Jersey Pinelands. The project included remediating an old landfill under New Jersey's Site Remediation Program, closing a second landfill under the state's solid waste program and installing an array of solar panels on the landfill cap, investigating groundwater conditions, negotiating pollution legal liability insurance coverage, and securing state brownfields financial assistance.