Environmental Litigation

Environmental cases have included federal and state environmental cases involving the Clean Air Act, the Clean Water Act (including NPDES permits, SPCC, wetlands issues, and Combined and Sanitary Sewer Overflow cases), CERCLA/Superfund (including natural resource damage cases, multi-party PRP sites, urban impaired waterways, and contaminated sediment sites), RCRA, TSCA, the Surface Mining Control and Reclamation Act (SMCRA), EPCRA, Safe Drinking Water Act, the Natural Resources Protection Act, and the Endangered Species Act.

Representative litigation matters include:

• Lead Counsel in PFAS case opposing multi-district litigation consolidation on behalf of one of nine parties opposing consolidation with 75 other cases. Jeff argued before the Judicial Panel on Multidistrict Litigation and was successful in opposing the transfer motion. In Re: Aqueous Film - Forming Foam Products Liability Litigation (MDL No. 2873) (12/7/18).
• Lead counsel representing Goodyear in litigation against eight potentially responsible parties for contribution action under CERCLA. The Goodyear Tire & Rubber Company v. Conagra Foods, Inc. et al., (CA No. 2:20-cv-6347-JLG-EPD) (S.D. Ohio) (pending).
• Counsel representing dam owner in defense of litigation brought by several non-governmental organizations under the Endangered Species Act regarding status of incidental take statement. Atlantic Salmon Federation U.S., et al., v. Brookfield Renewable Partners, L.P., et al., (CA No. 1:21-cv-00257-JDL) (D. Me) (pending).

  • Salmon Suit Against Maine Dams to Proceed, Law360, March 31, 2022

• Defend Covidien and Medtronic in suit regarding historic contamination of property in Walpole, MA. Filed August 20, 2020 – Active. TMC 100 Elm, LLC v. Covidien LP and Medtronic, Inc., (CA No. 2081CV01675) (MA Sup. Ct.)
• Lead counsel in upcoming fairness hearing. Settlement lodged March 19, 2021. Natural Resources Defense Counsel and Maine People's Alliance v. HoltraChem Manufacturing Company, L.L.C, (CA No. 00-69-BW) (D. Me). Press links:

  • Chemical site cleanup on Maine river to cost more than $180M, Associated Press, March 23, 2021; Portland Press Herald, March 23, 2021

  • Orrington chemical plant owner could spend $267M on Penobscot River mercury cleanup, Bangor Daily News, March 23, 2021

  • Settlement In Sight For Mercury Contamination From Orrington Chemical Plant, Maine Public Radio, March 23, 2021

• Represented defendant in CERCLA cost recovery action associated with potential liability for costs at an Illinois facility. Case settled in September, 2020. Trex Properties LLC v. Able Electropolishing Co. Inc., et al., (CA No. 1:20-cv-04159) (N.D. IL)
• Lead Counsel in defense of state enforcement action seeking $250 million remedy to address mercury contaminated soils, sediments, and groundwater at RCRA and Maine Uncontrolled Hazardous Substances Site. Two week state administrative hearing led to modified order saving client $150 million. Mallinckrodt US LLC and United States Surgical Corp. v. Maine Department of Environmental Protection, (CA No. AP-2010-19) (Me Sup. Ct.).
• Lead Counsel in defense of citizen suit against hydro power project owner seeking injunctive relief for alleged violations of the Endangered Species Act (ESA). Plaintiffs alleged that the hydro power project at issue was taking Atlantic Salmon in violation of the ESA. The Court granted defendant's Motion to Dismiss and no claims for attorney fees were awarded. Friends of Merrymeeting Bay and Environment Maine v. Miller Hydro Group, (CA No. 2:11-CV-00036-GZS) (D. Me).
• Co-Lead counsel for company managing $19 billion in assets in defense of citizen suit alleging that National Marine Fisheries approval of Biological Opinions under the Endangered Species Act for several hydro power projects violated the Administrative Procedures Act. Maine Council of the Atlantic Salmon Federation, et al., v. National Marine Fisheries Service, et al. and Brookfield Renewable Services Maine LLC, et al., (CA No. 2:15-CV-00261-JAW) (D. Me) (pending).
• Lead Counsel for company in defense of citizen group challenge to environmental permits associated with $60 million project. Environmental permits were issued under Maine's Site Location of Development Act and Natural Resources Protection Act. Environmental permits were upheld after administrative hearing. Androscoggin River Alliance et al., v. Maine Board of Environmental Protection (CA No. AP -11-44) (Me Sup. Ct.).
• Lead Counsel in defense of CERCLA contribution claim associated with cleanup of former pulp and paper mill in Ohio. Obtained dismissal of Plaintiff's claims. Garrett Day LLC, et al. v. International Paper Company, et al. (CA No. 3:15-CV-36-WHR) (S.D. Ohio).
• Lead Counsel in major Clean Water Act case against fourth largest coal company in the United States for penalties and injunctive relief to address thousands of NPDES permit violations spanning several states. Worked with EPA to evaluate environmental compliance of coal company facilities with applicable environmental statutes. Developed case under the Clean Water Act against the parent company and numerous subsidiaries. Obtained company wide injunctive relief valued at $10 million and a $20 million penalty, which was the largest civil penalty ever paid for Clean Water Act permit violations at the time and is still one of the largest penalties paid for such violations. United States v. Massey Energy, (CA No. 90-5-1-1-08470) (S.D. W. Va.).
• Co-counsel in first Clean Air Act case brought pursuant to EPA's Pulp & Paper Initiative under the federal New Source Review Program. First phase of this case involved a week-long trial in Maryland U.S. District Court regarding the availability of Best Available Control Technology for alleged violations of EPA's Prevention of Significant Deterioration Program. United States v. Westvaco Corp., (CA-MJG 00-CU-2602) (D. Md.).
• Co-counsel representing the U.S. Department of Interior in civil action to recover natural resource damages for harm to Rocky Mountain National Park in Colorado. Case settlement obtained on eve of trial for the largest natural resource damages recovery to date under the Park Services Resource Protection Act. United States v. Water Supply & Storage Co., et al., (CA No. 06-CV-01728-REB-MJW) (D. Colo.).
• Lead and Co-counsel in several natural resource damages cases under CERCLA, including representation of a large oil company in state lead natural resource damage case, representation of the Department of Interior in settlement negotiations of natural resource damages from mercury in the South River in Virginia, and representation of the Department of Interior in settlement negotiations of natural resource damages at Palmerton Site in Pennsylvania.
• Lead and Co-counsel in several Superfund and RCRA Sites across the nation including: United States v. Thoro Products Co., (CA No. 04-M-2330) (D. Colo.) (Rocky Flats Industrial Park Site);United States v. Highview Gardens, Inc., (CA No. 2109-CV-02827-PD) (E.D. Pa.); United States v. Wellsford, (CA No. 054158) (E.D. Pa.); Taylor Borough Superfund Site in Pennsylvania; American Drum and Pallet Site in Tennessee; Beede Waste Oil Site in New Hampshire; Beede Site Group v. Federal Home Mortgage Corp., et al. (CA No. 1:09-CV-00370) (D.N.H.).
• Co-counsel in Clean Water Act case against sanitary sewer district serving 1.6 million people to obtain penalties and injunctive relief for hundreds of sanitary sewer overflows. United States v. Hampton Roads Sanitation Dist., (CA No. 2:09-CV-481). (E.D. Va.).
• Lead Counsel in EPA multi-media investigations of mining and pharmaceutical facilities pursuant to the Clean Air Act, Clean Water Act, RCRA, EPCRA, TSCA.
• Lead Counsel in defense of CERCLA cost recovery case in Southern District of Ohio brought by Brownfields redevelopment company. Case is pending.
• Lead counsel for Plaintiffs in toxic tort litigation in California involving exposure to high levels of copper in drinking water. James Vogeler, et al. v. Culligan Water of Orange County, et al. (Case No. 30-2012-00588355) (Superior Court, Orange County, Ca)(pending).
• Lead counsel in toxic tort case regarding uranium contamination exposure. Case settled after completion of fact discovery. Theodore and Stacey Sawyer v. Water Treatment Equipment, Inc., and Culligan International Company, (CA No. CV2011216) (Me Sup. Ct.).
• Lead counsel in oil spill contamination case in Maine regarding property damage and diminution of property value. (In progress).
• Lead counsel in oil spill contamination case in New Hampshire regarding property damage and diminution of property value. (In progress).
• Co-counsel in defense of CERCLA cost recovery case in Federal District Court in Maine brought by US DOJ. Case settled for 30% off of demand.
• Lead counsel in multi-million dollar contract dispute regarding the need for repairs to two dam projects in Maine. Case settled after motions practice. FPL Energy Maine Hydro LLC v. Great Lakes Hydro America, LLC et al., (CA No. CV-12-266) (Me Sup. Ct.).
• Lead counsel representing construction company in defense of USEPA enforcement action brought under Section 16 of the Toxic Substances Control Act (“TSCA”) for alleged violations of the Residential Lead-Based Paint Hazard Reduction Act of 1992.” In the Matter of Campos Construction: TSCA-01-2018-0058.

Allocation and Mediation Environmental Liability and Cost

Representative litigation matters include:

• Mediator in Superfund Site in Syracuse, New York. Cooper Crouse-Hinds, LLC v. City of Syracuse, New York, et al. (Case No. 16-CV-1201(MAD/ATB)(N.D.N.Y.).
• Member of team selected by PRP Group to perform an allocation relative to large CERCLA site in New Jersey.
• Allocation of liability at superfund site in California. County of Stanislaus v. City of Modesto, et al. (Case No. 667396) (California Superior Court)
• Allocation of liability at confidential site in mid-Atlantic.
• Mediator in large PRP site in Texas. USOR Site PRP Group v. A & M Contractors, Inc., et al. (Case No. 4:14-cv-02441) (S.D. Tx)

Environmental Risk & Due Diligence

At the DOJ, Jeff led several multimedia investigations to determine whether facilities were in compliance with environmental laws. Jeff regularly uses his government experience to advise clients on environmental compliance issues and environmental aspects of corporate transactions. Representative projects include:

• Represent purchaser in environmental and litigation due diligence review involving a $750 million deal to purchase more than 20 hydro power projects.
• Serving as general outside in-house counsel on environmental issues for a large multinational corporation.
• Advising pulp & paper client regarding Clean Air Act implications of corporate transactions involving change in facility use and operations.
• Advising private investment firm regarding Clean Air Act aspects of power plant acquisition and operation.
• Creating an industry-specific environmental due diligence program for one of the largest banks in the world.
• Advising clients for purposes of strategic planning regarding federal and state regulation of greenhouse gases.
• Advising developers regarding environmental due diligence and Brownfield redevelopment projects.

Environmental Aspects of Permitting Projects

Jeff has represented clients seeking federal and state environmental permits on numerous projects, including:

• Represent large uniform supply company in discussions with Massachusetts DEP and Massachusetts Boston Transit Authority regarding historic VOCs in groundwater.
• Successfully represent party in appeal of Natural Resources Protection Act Permit Appeal.  Appeal of Shelby Frame; L-29654-4P-B-Z (Denial).
• Represent offshore wind developer in issues associated with Maine permits.
• Assist client, Nichols Portland LLC, in defense of EPA enforcement of alleged EPCRA violations.
• Represented the largest hydropower owner in New England in front of the Maine Land Use Planning Commission (“LUPC”) regarding their permit application for the Middle Dam Renewal Project.” Brookfield White Pine Hydro, LLC: Hydropower Permit HP 30.
• Co-counsel representing Calais LNG in its effort to obtain state and federal permits to build and operate a liquefied natural gas receiving terminal in Calais, Maine. Permits for the project were required under the Clean Water Act, Clean Air Act, Site Location of Development Act, and Natural Resources Protection Act and required, among other things, an analysis of the projects impacts on sensitive habitat, marine life, noise, light, visual, and air impacts on Class I areas.
• Lead Counsel representing private company in obtaining and defending environmental permits for $60 million development project. Permits obtained under Maine's Site Location of Development Act and Natural Resources Protection Act.
• Lead Counsel advising several companies seeking state air and water licenses.