| ENVIRONMENTAL DESKBOOK 1998 |
| ENVIRONMENTAL LITIGATION |
Whether it takes the form of a government enforcement action, an industry challenge to new regulations, or a "citizen suit" brought by private parties, environmental litigation is extremely important to our clients and accounts for roughly half of the Firm s environmental practice. Morgan Lewis litigation activities span the full range, from the rapid assembling of a legal team to oppose a temporary restraining order that would block construction of a new industrial project to the challenging of EPA regulations in the federal courts following years of involvement in the underlying administrative process. Some cases involve defending clients against allegations of criminal conduct, while others involve consideration of thousands of pages of technical data and testimony in adjudicatory hearings before an administrative law judge.
Because the basic elements of litigation are more generally understood, this Deskbook does not undertake to provide the detailed type of explanation regarding environmental litigation that is furnished for the regulatory components of our practice. Instead, the material below is intended simply to suggest the major types of environmental litigation that have particular prominence in our practice.
| The Necessary Mix of Skills |
The Morgan Lewis Environmental Practice Group is supported by one of the nation s largest litigation departments; there are over 175 attorneys in our Litigation Section. Many highly skilled, experienced litigators in that Section devote either all or a major part of their time to environmental matters. These include Frank Thomas, Ralph Albright, William Gardner, Denis Brenan, Richard Pettigrew, Randy Visser, Howard Weir, Jim Pagliaro, Anthony Roth, Glen Stuart, and Thomas O Brien.
Many Morgan Lewis lawyers who devote most of their time to environmental regulatory matters also have extensive litigation experience. Michael Steinberg and Michael McCord each served in the Justice Department as Assistant Chief of the Environmental Defense Section. In that position, each supervised and handled litigation under all of the federal environmental statutes. William Lewis, an expert in the application of constitutional law defenses in environmental litigation, succeeded in persuading the Fifth Circuit that federal law preempted local legislation barring the incineration of PCBs. Other regulatory attorneys with litigation experience include John Quarles, Robert Collings, Kenneth Rubin, and Joshua Sarnoff. Steven Schatzow is especially skilled in litigation involving pesticides and has managed the defense of a major toxic tort case.
The recurring theme of all environmental litigation is the need to combine classic litigation skills with technical environmental capabilities. This routinely requires not only knowledge of the intricacies of environmental laws and regulations but also an ability to find and work with environmental consultants and technical experts. Morgan Lewis uses an interdisciplinary approach to staff each major case with a hand-picked team of litigation and regulatory experts whose combined talents will provide the greatest likelihood of success.
More specific information on particular subjects of note is provided below.
| Superfund Cases |
Superfund has generated far more litigation than any other environmental statute. The large number of cases reflects several unique aspects about environmental controversies arising under the statute. First, these cases tend to involve a large number of parties, adding great complexities to the most simple litigation tasks. What in ordinary circumstances might take two adversaries a few days to resolve takes several months when the dispute involves several hundred companies. Second, the financial stakes in these cases are usually quite large, in the range of many tens of millions of dollars and sometimes even higher. Third, the particular circumstances of many companies in a multi-party Superfund litigation are often quite different. Some companies may have sent only a few drums of relatively innocuous material to a site, while others may have sent much greater amounts of more toxic material. Yet because liability is typically joint and several, any company may theoretically face liability for the entire amount in controversy. Allocating to each company its fair share of liability to promote settlement is a difficult task, but one that is essential if transaction costs are to be minimized.
| Morgan Lewis Superfund Litigation |
Morgan Lewis lawyers have been involved in many of the major Superfund cases across the country. Our roles have ranged from lead counsel for large groups of similarly situated parties to a focused effort on behalf of a single party with unique concerns that do not allow for joint representation. In addition to defending companies in Superfund cost recovery actions brought by the federal government (typified by our work in the BROS, Conservation Chemical, Helen Kramer, Stringfellow, New Bedford Harbor, and Price s Pit cases), the Firm has also been in the forefront of prosecuting private party cost recovery actions. The following attorneys have devoted a substantial portion of their time to Superfund litigation throughout the country: John Quarles, Denis Brenan, Michael Steinberg, Kenneth Rubin, Kenneth Myers, Robert Collings, William Gardner, Ralph Albright, Michael Dillon, Lowell Martin, Richard Pettigrew, Frank Thomas, Howard Weir, Randy Visser, Glen Stuart, Thomas O Brien, Anthony Roth, Joseph Cyr, Joshua Swift, and Joshua Sarnoff.
| Enforcement Proceedings Civil; Criminal; Administrative; Citizen Suits |
Federal and state environmental laws provide for the imposition of substantial civil and criminal penalties for most violations of environmental requirements. Such statutes typically authorize civil penalties at levels of up to $27,500 for each day of violation, with many violations deemed "continuing" for months or even years, and the government has become increasingly aggressive in seeking maximum penalties. The per day and maximum penalties, which have recently been adjusted upward pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990, Pub. L. No. 101-410, 104 Stat. 890 (codified in the notes of 28 U.S.C. Section 2461 (1997)), are listed in a table located at 40 C.F.R. Section 19.4 (1997) with corrections noted in 62 Fed. Reg. 13,514 (March 20, 1997).
Federal and state prosecutors are also expanding their environmental criminal staffs and are more frequently seeking criminal penalties and imprisonment for infractions that were once handled through civil or administrative action. These criminal cases bring with them the potential for serious collateral consequences, such as "debarment" of the violating facility from future receipt of federal government contracts or grants.
In addition, most federal and state environmental laws authorize private citizens to seek court-imposed sanctions. Historically, most citizen suits have arisen under the Clean Water Act because of the relative ease of proving NPDES permit violations using a facility s Discharge Monitoring Report (DMR). RCRA violations are much more difficult to prove, but the number of RCRA citizen suits has increased significantly in recent years. In California, Proposition 65 is likely to inspire an even greater number of lawsuits of this type because, unlike federal law, it authorizes the successful plaintiffs to recover a portion of the civil penalties assessed by the court.
| Morgan Lewis Enforcement Litigation |
Morgan Lewis has represented clients in all types of enforcement proceedings. Kenneth Myers, Ken Rubin, Steve Schatzow, and Robert Collings have been especially active in handling civil enforcement proceedings. Edward Dennis, former Assistant Attorney General of the Criminal Division for the Justice Department, represents clients in criminal enforcement cases, as do Bill Gardner and Eric Kraeutler. John Quarles and Michael Steinberg played a major role in persuading the Justice Department not to seek criminal indictments under RCRA s "knowing endangerment" provisions against a company that accidentally discharged hazardous wastes into a municipal sewer system. William Gardner has counseled major corporate clients facing both RCRA and Clean Water Act criminal investigations. Jack Dodds and Farleigh Earhart recently defended a county in Missouri charged with criminal violations of the Clean Water Act. Bill Lewis, Steven Schatzow, and Robert Collings have had extensive involvement in several citizen suits. In the first and longest adjudicatory hearing held under the Clean Air Act section 120 special enforcement provisions, Kenneth Myers persuaded an administrative law judge to dismiss the charges against our client on the grounds that EPA had failed to prove that the client had committed a violation. We have appeared before EPA Administrative Law Judges to defend against multi-million dollar penalty assessments under TSCA and RCRA.
@SUBHEAD = Judicial Review of EPA and| Morgan Lewis Regulatory Challenges |
Most proceedings involving judicial review of regulations take place in the U.S. Court of Appeals for the District of Columbia Circuit, although a significant number are filed in other courts. Success in these cases depends primarily on a detailed knowledge of both the statute and the administrative record, not simply on traditional trial lawyer skills.
Many Morgan Lewis attorneys are involved in litigation challenging EPA rules. Michael Steinberg won major victories under RCRA by convincing the D.C. Circuit to set aside EPA s "mixture rule" in the Shell Oil case and, more recently, to overturn EPA s listing of certain pesticides as hazardous wastes. Bill Lewis and Michael McCord recently succeeded in convincing the D.C. Circuit to invalidate EPA s federal enforceability requirement in its definition of "potential to emit" in Clean Air Act regulations a definition first promulgated in 1980. For seven years at the Justice Department, Michael McCord supervised the litigation of all challenges to EPA s rulemaking activities. Other Morgan Lewis attorneys with extensive experience in judicial review proceedings include John Quarles, Kenneth Rubin, Kenneth Myers, and Joshua Sarnoff.
| Administrative Proceedings |
Much of the work of an environmental regulatory lawyer takes place in administrative proceedings before EPA and state environmental agencies. Under the federal Administrative Procedure Act and corresponding state laws, these agencies must base their decisions upon an administrative record, which includes comments of all interested parties. A court reviewing the agency decision may often only consider whether the decision is supported by the administrative record. The EPA makes use of two basic types of administrative hearings in connection with its rules. In legislative hearings, which are essentially open forums for discussion without any formal rules of evidence and usually without any cross-examination, interested parties speak before a panel of EPA employees. Administrative adjudicatory proceedings, on the other hand, are held before an administrative law judge. These hearings are sometimes used in connection with permitting issues or pesticide cancellations. They resemble typical trial court proceedings, although there is greater flexibility on the presentation and consideration of evidence. Many Morgan Lewis attorneys have had substantial experience in these matters and have developed special skills to ensure, to the maximum extent possible, that the administrative record contains not only the necessary information to justify a ruling on behalf of their clients but also appropriate documentation to rebut any conflicting positions that might be taken by the agency or opposing parties.
| Morgan Lewis Administrative Proceedings |
Many lawyers in the Environmental Practice Group have been involved in some of these hearings, and several attorneys have had substantial experience with adjudicatory hearings. Lowell Martin handled a lengthy adjudicatory hearing before an administrative law judge in Georgia involving numerous highly technical factual questions and legal issues arising under its hazardous waste regulatory program. We have defended an intense NPDES permit revocation proceeding under state law.
| Radioactive Materials and Waste |
Under the Atomic Energy Act of 1954, the National Environmental Policy Act, and pertinent Nuclear Regulatory Commission regulations, the NRC prepares an environmental impact statement or environmental assessment for the issuance of each license or license amendment. The license or license amendment may, however, qualify for a categorical exclusion. Morgan Lewis lawyers have assisted electric utilities that own nuclear power reactors and industrial companies that use radioactive materials in the preparation of applications for licenses and amendments that appropriately reflect environmental considerations. When these applications are contested, the focus of issues raised in administrative hearings before the NRC is frequently the adequacy of the review of the alleged environmental impact of NRC licensing decisions. Many Morgan Lewis attorneys have had extensive experience in litigating both unique and conventional radiological and environmental issues in NRC hearings and before the federal appellate and district courts.
Over the past few years, Morgan Lewis attorneys have also had substantial experience relating to cleanup of sites licensed by the NRC, including the development and submission of decommissioning plans to the NRC in conjunction with the submission of remediation plans for hazardous materials to the EPA or state agencies. These efforts have included representation of the licensees in contested NRC administrative hearings relating to the termination of licensees and to the decommissioning of facilities. They have also represented a group of major nuclear fuel cycle companies in the NRC s enhanced rulemaking on the establishment of radiological criteria for decommissioning, and have participated in EPA s parallel rulemaking efforts on radiological cleanup criteria.
| Toxic Tort Litigation |
An ever-increasing number of toxic tort cases are filed each year by private parties hoping to recover damages for harm allegedly suffered as a result of exposure to toxic substances. Damages are often sought for such alleged injuries as increased risk of cancer, "cancerphobia," and immune system dysfunction, particularly at landfills or other contaminated sites. Jim Pagliaro and Amy Kittredge represent one company in just such a case at a major landfill site on the Superfund NPL. Increasingly, actions are also filed for diminution of value by owners of property adjoining contaminated sites and sites that are a potential source of physical agents, i.e., electromagnetic radiation, noise, or odor. These cases raise complex factual and legal issues not found in routine personal injury cases. Many of the Firm s litigators have handled these cases in our offices throughout the country, particularly with respect to asbestos. As national defense counsel for one of the principal manufacturers of asbestos, Morgan Lewis has developed an extraordinary depth of expertise in that type of toxic tort litigation. In addition, John Linsenmeyer and Steven Schatzow have been active in toxic tort cases involving exposure to pesticides.
The Agency for Toxic Substances and Disease Registry, created by the 1980 enactment of Superfund, has been developing health assessments of each site on the National Priorities List. These special studies of the impact of a Superfund site on the neighboring community may trigger additional toxic tort litigation. A related provision, added to Superfund in 1986, provides a federal "discovery" trigger for the applicable state statute of limitations in all personal injury cases involving exposure to hazardous substances.