• Negotiated a favorable settlement of a significant opacity enforcement
case in May 2006. A state agency, acting at the encouragement of EPA,
issued a Notice of Violation (“NOV”) alleging over 3,300 opacity violations
placing the client’s plant operations in peril due to the potential
liabilities. Settlement negotiations lasted nearly two years, and
resulted in payment of a $75,000 civil penalty along with an agreement to
install particulate matter controls at the plant and fund several
supplemental environmental projects (“SEP”). The plant’s Title V air
operating permit came up for renewal during negotiations which complicated
the settlement. During the course of negotiations, the client was also
able to renegotiate its primary customer contracts resulting in additional
revenues to support the settlement.
• Filed an informal appeal of objectionable conditions placed on a renewed
Title V air operation permit granted to a client in Alaska. The agency
director ruled in the client’s favor on both issues.
• Represented a client that received a notice of violation from a local air
agency alleging noncompliance due to a change in fuel suppliers. No
physical or operational changes occurred at the plant; rather, the plant
began purchasing wood-based fuels from suppliers that were chipping wood
derived from “urban” sources rather than traditional forest sources.
The matter was settled by including the client’s fuel quality assurance
procedures in an enforceable order and by having the client submit a form
documenting an exemption from the NOC requirements. No fine was levied
against the client.
• Obtained an agency determination that emissions during the initial
construction of an oil production well were not counted towards PSD permit
applicability or against PSD avoidance limits.
• Successfully represented
family interests in three properties which housed metal working plants with
significant environmental contamination resulting from the release of metal
working and metal cooling fluids.
Plant 1 was
straightforward in that the former family business was the only tenant of
the building since construction. ELN convinced the tenant to conduct
and fund a thorough cleanup of the property (estimated at $1 million).
However the tenant refused to pay for the client’s legal and consulting
fees. ELN and litigation co-counsel sued the tenant and recouped all
out of pocket expenses for the client.
Plant 2 had a history of use by multiple entities including the
client’s own businesses. The current tenant had contributed to the
contamination and could not attribute it to other parties.
Negotiations resulted in a settlement whereby the tenant paid for the
client’s entire out-of-pocket expenses for past and future estimated costs
as well as the estimated premium for environmental insurance.
Plant 3 involved the Land Owner, the Building Owner-Client and
two Tenants) with a plume of chlorinated solvent under the building and
metal working fluids under the building floor. The Land Owner sought
reimbursement for costs related to the solvent plume. An ELN-led
review concluded that the solvent did not originate on the property and the
client formally denied the claim based, in part, under the doctrine that a
person who acquires property through inheritance is an “innocent purchaser”
and immune from federal and state superfund liability.
Also at Plant 3, the client was demanding of the Occupant assessment and
remediation of the contamination under the floor when the Occupant announced
its insolvency and pending asset sale. The Occupant and the buyer of
the Occupants assets were attempting to extinguish their environmental
obligations but the deal required an assignment of the lease from the
Client. Using that leverage, ELN negotiated an agreement for cost
sharing of an environmental investigation and remediation with $500,000
contributed to an escrow account for that purpose by the Occupant and Buyer.
