- David has had significant involvement at more than 100 Superfund and RCRA sites across the country. His efforts have ranged from leading PRP Groups, to negotiating consent decrees regarding NPL sites, to litigating cases in various U.S. District Courts and the First Circuit Court of Appeals, to representing creditors and debtors on environmental matters in U.S. Bankruptcy Courts.
- David was part of the team selected by the Cooperating Parties Group to perform an allocation relative to the Lower Passaic River Study Area CERCLA site (dioxins, mercury, PCBs and other contaminants of concern).
Litigation / Enforcement Actions
- David is co-lead counsel in the defense of a RCRA imminent and substantial endangerment citizen suit case concerning mercury contamination in Maine's tidally influenced Penobscot River. The case is currently in the remedial options evaluation phase, with court-appointed experts (supervised by a Special Master) pursuing additional investigatory efforts prior to remedy recommendation. (Natural Resources Defense Council et al v. HoltraChem et al., USDC - Maine).
- Co-counsel in defense of state enforcement action seeking a $250 million remedy to address mercury contaminated soils, sediments and groundwater at RCRA and Maine Uncontrolled Hazardous Substances site. Two-week state administrative hearing resulted in a significantly modified order delineating a refined remedy at a vastly reduced cost ($100 million). (United States Surgical and Mallinckrodt US LLC v. Maine Department of Environmental Protection)
- David was co-lead counsel for the PRP Group that orchestrated the first large multi-party (4,000 PRPs) CERCLA / uncontrolled site liability risk transfer settlement in the country. (State of Maine v. United States, Settling Non-Federal Defendants et al).
- David negotiated the settlement of a first-in-the-nation enforcement action brought by the U.S. EPA concerning alleged liability of a Maine landowner under the Toxic Substances Control Act's Renovation, Repair and Painting Rule. EPA's complaint sought up to $225,000, but the alleged liability (relating to scraping and sanding of the exterior of a pre-1978 rental housing unit) was fully resolved via consent order requiring a $10,000 penalty payable in installments over a two year period. This case presented novel evidentiary proof issues. The alleged violations were captured on video by an unknown individual that was posted on YouTube. The website address for the YouTube posting was then forwarded to the EPA. While the posting was subsequently removed from YouTube, EPA had interviewed the individual who posted the video but refused to disclose the identity of that person to the Respondent. (In Re Wentworth)
- David was lead counsel to a major third-party defendant in U.S. District Court litigation involving a manufactured gas plant site. The litigation involved two different lawsuits, one of which went through a 12-day liability and allocation trial. Other aspects of the case, including challenge to a consent decree, were pursued through the First Circuit Court of Appeals. (Bangor v. Citizens Communication v. Barrett Paving)
- David was lead counsel to a Fortune 500 consumer products corporation wrestling with a two-decade long RCRA corrective action groundwater remediation effort at a formerly owned facility. He crafted an innovative approach to resolve the matter through a natural resource damage settlement and long-term monitoring. Through a first-of-its-kind set of agreements involving the client, the state, the current owner and a well-established environmental organization, the environmental group purchased alternative resources for public use (funded by grants from the client) and the matter reached a global settlement. (In Re Kimberly-Clark Corporation)
Due Diligence / Mergers & Acquisitions
- Leading a team of Preti Flaherty environmental attorneys, David managed the organization and packaging of all environmental and health/safety aspects of a large manufacturing business (including wastewater and air permitting and compliance histories, historical contamination, clean-up requirements and interactions with former owners and regulators) prior to auction sale. The sale was ultimately consummated in a significant nine-figure transaction.
- David and his team assembled environmental permits, prepared environmental histories, and the managed Phase 1 environmental site assessments for 113 different gas stations/convenience stores and fuel oil storage/delivery sites in three states prior to initiation of an auction sale process.
- David was lead environmental lawyer for Brookfield Renewable Energy Partners on its purchase of 26 hydropower projects in Maine and New Hampshire ($760 million enterprise value) on three different rivers, including two that USF&W Service had designated as critical habitat for endangered species.
- For Granite Shore Power, a joint venture comprised of Atlas Holdings LLC and Continental Commodities Inc., David lead Preti’s environmental team in due diligence, purchase offer preparation, negotiation and related matters associated with the auction purchase of Public Service Company of New Hampshire’s five stations fleet of thermal assets comprising over 1130 MW of nameplate capacity.
- David was lead environmental counsel to Calais LNG, a project that sought to bring a $1B liquefied natural gas (LNG) regasification terminal and accompanying send-out pipeline to Downeast Maine. The project required complex consultation processes and permitting efforts under the Clean Water Act, the Coastal Zone Management Act and various state statutes involving numerous federal and state agencies, including FERC, DOI, USCG, Army Corps, Maine DEP and the Maine State Planning Office, as well as local governments.
- In ASARCO v. Union Pacific Rail Road, a CERCLA contribution action, David provided a declaration and expert trial testimony regarding the background on EPA information requests, policies and procedures related to such requests, and the Agency’s enforcement process related to failure to adequately respond.