Texas Oil Company to pay $115,000 Civil Penalty to resolve violations of Oil Pollution Prevention Regulations

Agreement with Texas-based company resolves findings of non-compliance

The U.S. Environmental Protection Agency (EPA) recently announced a proposed settlement with Citation Oil & Gas Corp. (Citation) of Houston, Texas, to resolve alleged violations of federal regulations intended to prevent oil pollution. The Clean Water Act violations pertain to oil spill prevention requirements and Spill Prevention, Control, and Countermeasure (SPCC) regulations at Citation’s Park County, Wyoming, oil production facilities. Citation will pay a civil penalty of $115,000 to resolve the alleged violations.

This proposed settlement resulted from EPA’s investigation of two spills at Citation facilities. The first spill occurred on February 9, 2016, when Citation released approximately 300 barrels of crude oil from its Embar 3 Facility into Buffalo Creek, a tributary of the Big Horn River. The second spill occurred on August 21, 2019, when Citation released approximately 1000 barrels of produced water from its North Waterflood Station into the same tributary.

“Companies that store oil have a responsibility to follow laws that protect the public and the environment,” said Suzanne Bohan, director of EPA Region 8’s Enforcement and Compliance Assurance Division. “Due to the harm oil can cause when released to water resources and the environment, every effort must be made to prevent spills and to clean them up promptly once they occur.”

In investigating Citation’s spills, EPA discovered deficiencies in Citation’s SPCC plans for the North Waterflood Station and Middle Waterflood Station. The company corrected these deficiencies and submitted corrected plans to EPA, helping ensure that water resources and communities where Citation operates are better protected from damaging oil spills.

Federal oil spill prevention, control, and countermeasure rules specify requirements for businesses that store oil and prevent oil discharges that can affect nearby water resources. For more on the Clean Water Act’s prohibition against discharges of oil into waters of the U.S. and SPCC regulations, visit: https://www.epa.gov/compliance/clean-water-act-cwa-compliance-monitoring#oil.

This proposed Consent Agreement is subject to a 30-day public comment period and final approval by the EPA’s Regional Judicial Officer. To access and comment on the Consent Agreement , visit: https://www.epa.gov/publicnotices/notices-search/location/Wyoming

Source: The U.S. Environmental Protection Agency (EPA)

Environmental Due Diligence Carries on, With Limitations, During the COVID-19 Pandemic

Written by Michael A. NesteroffLane Powell PC

COVID-19 Resource

Banks, borrowers and their supporting professionals, like everyone else, are having to adapt to the rapidly-changing circumstances surrounding COVID-19. With commercial and multi-family real estate, one of the more difficult issues is how to conduct a Phase I Environmental Site Assessment in order to qualify as the “All Appropriate Inquiry” that most lenders require. A full Phase I investigation includes items such as a site visit, interviews with knowledgeable people, and records research, but each of those are constrained during this global pandemic and shelter-in-place or stay-at-home orders. Lenders and environmental professionals, however, are getting creative and flexible in the ways they address this unique situation.

Lender Adaptations

Because banks are considered an essential business service, many lenders are continuing to process loan applications, although they face the same logistical issues that we all are confronting with working from home. Depending on the type of loan involved, banks may be more flexible with the level of environmental due diligence required. For example, a refinance of a loan on a property where there was a recent Phase I, or the property has not changed, may not require any additional environmental review or a desktop review may suffice. Instead of one-size-fits-all approaches to due diligence, banks now are evaluating what’s needed on a property-by-property basis. In some instances, the environmental review may be called a “Limited Site Investigation,” instead of a Phase I, with follow-up site inspections conducted when the crisis abates.

Consultant Approaches

Environmental professionals, while not specifically called out as an essential business service, are considered support for an essential business service, such as a bank. This allows them to conduct the necessary site assessments and fieldwork but, in many cases, they may not be able to do so because the subject property is closed; the people to be interviewed are staying at home, whether because of stay-at-home orders or illness; and the government agencies and offices with relevant property records are not open to the public. Furthermore, the consulting firms are cognizant of the health and safety needs of their employees and don’t want to place them at unnecessary risk.

In some instances, such as hospitals, long-term care facilities, assisted living facilities, nursing homes or senior living communities, environmental consultants simply are not conducting in-person interior inspections. In other cases, multi-family properties for example, the inspections may consist of looking only at vacant units and common areas, but foregoing occupied units. Other workarounds include the site contact walking through the building on FaceTime or having a resident take photographs. One pitfall is that a building occupant or resident may not be as aware of what to look for, or may even want to minimize issues that an environmental consultant would spot. If a site visit is absolutely necessary, some consultants are scheduling visits for weekends or evenings when fewer people are around, having the site contact open all doors, wearing gloves, and maintaining social distancing as much as possible. For larger, open properties, use of a drone may be a helpful substitute.

Communication between the client and the environmental professional is key. If the scope of work may be more limited by current conditions, that should be made clear from the outset and the parties reach consensus on the necessary adjustments. Communication between the consultant and site contact also is important, although privacy issues prevent inquiring about a site contact’s COVID-19 status. Indeed, not everyone is convinced that current measures, such as social distancing, are warranted. In those situations, the consultants are having to communicate in advance their practices and expectations.


About the Author

Mike Nesteroff is a preeminent environmental lawyer with extensive experience representing clients in environmental litigation, agency negotiations, property acquisition and leasing issues, and counseling clients on risk and compliance. During his 31 years at Lane Powell, Mike has represented clients in litigation claims involving hazardous material investigations, cleanups and cost recovery at sites in Washington, Oregon and Alaska. He has obtained a several million-dollar cost recovery judgment on behalf of one client and a defense verdict in another cost recovery case. Mike has also represented clients in litigation involving public records and obtained a favorable court of appeals ruling on a previously-untested exemption in the Washington Public Records Act.

What can the Act of God Defence in Regulatory Offences tell us about Responding to the COVID 19 Crisis

Written by Stanley Berger, Partner, Fogler Rubinoff

In April 2008 water bodies in Alberta were frozen over and as a result, migratory birds were drawn to Syncrude’s open tailings ponds where over 1600 waterfowl died from exposure to bitumen. Syncrude was prosecuted under federal and provincial environmental laws for the adverse impacts of the tailings on migratory birds.

The company defended itself by arguing that that the convergence of record snowfalls and the freezing of the adjacent waters that the waterfowl would naturally use for sustenance during spring migration amounted to an Act of God which could not reasonably be anticipated. The company had a system of deterrents which had worked reasonably well in previous years to prevent the loss of all but a small number of birds drawn to the open tailings, but the record snowfall had interfered with their planned deployment.

The Court, conceded that the convergence of adverse weather, open tailings, frozen natural water bodies and bird migration was an unavoidable natural event. (2010) ABPC 229 at par. 136) Nevertheless, the Court reasoned that while the exact circumstances or degree of severity may have been unpredictable, the convergence of these critical factors was not remarkable. The company’s response was deficient whether it had been “the second worst snowfall in 65 years that occurred, coupled with a late breakup and quick thaw or, or some lesser but still significant amount of snow or rain. “(at par. 138) On October 22, 2010

Provincial Court Judge Tjosvold imposed fines and orders totaling three million dollars for violations of Alberta’s Environmental Protection and Enhancement Act and Canada’s Migratory Birds Convention Act. see Berger and Myers, Prosecution and Defence of Environmental Offences, Sentencing Service on Thomson and Reuters Proview at https://nextcanada.westlaw.com/.

Lessons Learned: Regulatory Due Diligence During and After COVID  19

Regardless of whether one is religious or not, COVID 19 would certainly fit within the Act of God defence if faced with a charge of non-compliance with a regulatory offence. But the level of sympathy expected to be extended by a court to this defence will ultimately depend upon the magnitude of the harm environmental, health and safety or otherwise and the steps taken by a defendant to plan for a once in a lifetime event. The nuclear industry offers an excellent example. Licensees of nuclear facilities have always been required to deploy minimum complements of workers at all times to ensure that critical activities such as the operation of the nuclear reactor and its cooling systems are maintained. There are always control room operators on hand even during a pandemic though additional precautions are taken to ensure that their health and safety are optimized. Businesses should review their regulatory licenses and approvals and identify which of their operations need to be maintained at all times in order to protect public health and safety and the environment. Once identified, budgets
and schedules should be set for implementation. Particularly, but not exclusively where costs are prohibitive or actions are not feasible, transparent communication with the relevant regulatory authorities should be initiated without delay to ensure that there is a mutual consensus on the expectations of the parties. Finally, those expectations should be reduced to writing and kept on line so that they are readily accessible. Given the magnitude of the current crisis, regulators may not respond to e-mails in a timely fashion, so businesses should ensure that all requests for reviews of compliance plans are sent and kept electronically.

This republished article is intended for general information purposes only and should not be relied upon as legal advice.


About the Author

Stan Berger has practiced regulatory law for 37 years. He represents nuclear operators and suppliers, waste management operators, renewable energy operators, receivers-in-bankruptcy, municipalities and First Nations. He was an Assistant Crown Attorney in Toronto for 8 years, Senior counsel and Deputy Director for Legal Services/Prosecutions at the Ministry of the Environment for 9 years and Assistant General Counsel at Ontario Power Generation Inc for 14 years.  He is the author of a quarterly loose-leaf service published by Thomson Reuters entitled the Prosecution and Defence of Environmental Offences and the editor of an annual review of environmental law.  Mr. Berger was the President of the International Nuclear Law Association (2008-2009) and the founder, and President of the Canadian Nuclear Law Organization.

Practical Tips for Managing Environmental Issues During the Coronavirus Pandemic

Written by Sheila McCafferty Harvey and Reza Zarghamee, Pillsbury Law

Due diligence and compliance challenges require flexible approaches and creative solutions.

Practical Tips Regarding Due Diligence

The COVID-19 pandemic already has created significant disruptions to daily business and governmental activities, as employees across industries have been encouraged to practice social distancing and work from home. Moreover, an increasing number of states have issued shelter-in-place orders and nonessential business shutdowns, which may last for several months.

Among the challenges facing companies in these circumstances is the practical matter of how they may satisfactorily conduct environmental due diligence under such conditions for corporate and real estate transactions. To explain, in transactions involving the transfer of title to real property or the creation of a leasehold interest (since the 2018 BUILD Act), prospective purchasers and lessees must satisfy the requirements of the All Appropriate Inquiries (AAI) Rule (40 CFR Part 312) to obtain innocent status and, thus, qualify for one or more affirmative defenses to liability under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9601, et seq. (CERCLA). The baseline level of environmental due diligence under the AAI Rule is the performance of a Phase I Environmental Site Assessment in accordance with the ASTM E 1527-13 standard. An ASTM-compliant Phase I also has become the industry standard for environmental due diligence required by financial institutions and insurers for purposes of project financing and obtaining insurance coverage, respectively, although such companies tend to allow somewhat greater flexibility in terms of strict adherence to the standard.

A Phase I contains many components, some of which may be performed on a “desk-top” basis. Environmental Data Resources LLC, the provider of the EDR Radius Map Report that accompanies the majority of Phase I reports, is committed to providing its services during the pandemic. As a result, between the services of EDR and the Phase I author, assuming responsive information is available online, the expectation is that environmental consultants should be able to continue to perform these tasks, despite the new paradigm of working at home. However, an essential component of the ASTM standard is a site visit of the subject property. Non-essential business shutdowns and shelter-in-home orders may prevent consultants from performing such visual inspections in certain states. Although the ASTM standard allows for the specification of “data gaps” and “limiting conditions/deviations,” the site visit is such a core requirement of the standard that, in the ordinary course, failure to perform one within 180 days of the closing date of a transaction renders a Phase I inadequate for purposes of qualifying for CERCLA defenses.

EPA has yet to give any indication about how it will treat the failure to perform a site visit due to COVID-19-related disruptions in terms of Phase I user’s eligibility for the CERCLA defenses. A distinct possibility thus exists that a Phase I consisting of a desk-top only review will be deemed inadequate, regardless of the exigent circumstances preventing a site visit. Therefore, to the extent possible, companies should schedule Phase I ESAs to occur after the expiration of non-essential business shutdowns or shelter-in-home orders. If a Phase I cannot be delayed, then companies may wish to consider creative means of performing the site inspection, e.g., perhaps using drones to examine interior and exterior site features or using FaceTime to direct any facility personnel onsite to perform the site surveillance.

For a Phase I intended to satisfy a business purpose (e.g., securing a loan, obtaining insurance coverage), failure to satisfy the ASTM standard could have undesirable consequences. However, because agreements between private parties are negotiable, the party commissioning the report has, in theory, greater flexibility in terms of working around the COVID-19-related obstacles. Specifically, the inability to obtain firsthand information regarding a site may be excused or addressed in business agreements. To this end, the party commissioning the report is encouraged to proactively engage the other parties seeking to rely on the report to discuss whether a report without a site visit would suffice and, if not, what possible alternatives would be acceptable for purposes of obtaining the business objective.

Practical Tips Regarding Environmental Compliance Obligations

Proactiveness is also necessary to ensure continued compliance with environmental cleanup obligations, permit conditions, and environmental due diligence standards during the COVID-19 pandemic. In evaluating options and implementing measures to ensure continued compliance with environmental legal requirements, businesses are encouraged to take a systematic approach, which may entail all or some the following steps:

  • Develop an internal team responsible for the COVID-19 response: The establishment of clearly defined roles and a chain of command can be tremendously useful to ensuring that the tasks needed to maintain compliance are expeditiously performed.
  • Consult existing plans and internal policies: Some businesses already may have in place plans and policies that have been triggered by the current crisis or are otherwise useful. For example, environmental management systems, hazardous waste contingency plans and risk management plans may contain specific protocols for exigent circumstances that may prevent compliance with legal obligations (e.g., the inability to remove hazardous waste within the 90-day threshold specified for large quantity generators) or trigger certain preventative measures (e.g., the securing of extremely hazardous substances regulated under Section 112(r) of the Clean Air Act as part of a risk management plan).
  • Identify what tasks and deadlines are required or coming up in the near-term and whether they are at risk of being impacted: Businesses should develop lists of upcoming environmental tasks and deadlines, including scheduled remedial activities, sampling, submittals to agencies, commitments to private-parties under environmental indemnities, etc. For items due in the next few months, an assessment should be made about the degree to which the requisite task may be affected by COVID-19-related disruptions. A broad view of how current conditions may affect the ability to discharge obligations should be taken in this regard. For example, it may be useful to ascertain which tasks require outside vendors or subcontractors and the likelihood that they would be available to assist.
  • Review relevant statutes, regulations, guidance, and other documents for authority that might excuse or delay performance: Applicable laws, regulations, and legal instruments such as permits and orders should be consulted to determine if they contain provisions that afford relief from the obligations discussed in the previous bullet. The EPA has policies and guidelines regarding governmental expectations during emergency situations, and an increasing number of states have issued guidance on how businesses may invoke enforcement discretion during the current crisis. Pillsbury is closely monitoring these developments and tracking them on its website. Where such agency guidance is vague or off-point, businesses are recommended to consult the specific documents establishing their legal obligations, as many consent orders, cleanup agreements, private-party indemnities, and permits contain provisions that bound parties may invoke to obtain relief from requirements that may be difficult or impossible to perform because of COVID-19-related restrictions. “Force majeure” clauses are a good place to start, as these provisions serve to excuse or delay performance under exigent circumstances. Some such clauses explicitly designate pandemics and governmentally declared emergencies and shutdowns as force majeure events. However, they often also have time limits, so they should be reviewed as soon as possible.
  • If legal authority affording relief is identified, follow the specified procedures for invoking the authority and providing notice. This should be done as early as possible, especially if the applicability of specific guidance or provision is questionable, to ensure enough time to react if a third party (e.g., governmental agency) disagrees about the existence of an adequate basis to excuse or delay performance.
  • Document efforts to comply and reasons impeding performance. The legal landscape is extremely fluid right now, giving rise to a heightened potential for legal disputes over failure to perform. For this reason, as well as the fact that many force majeure clauses require it, businesses should document all efforts to comply, as well as information supporting the contention that COVID-19-related disruptions have prevented compliance, as such information may be useful in supporting petitions for enforcement discretion.

Key Takeaways

  • The COVID-19 pandemic is impeding the ability of businesses to perform transactional environmental due diligence and usual compliance activities.
  • How courts and businesses (e.g., lenders, insurers) will value attempts to perform All Appropriate Inquiries that, because of COVID-19-related orders, may not include such activities as physical inspections of the subject property is uncertain. Though we may see various guidance emerge in the coming days, much like the numerous hastily promulgated stay-home orders, we can expect a patchwork with ample ambiguity and unanswered questions.
  • In such a dynamic and unprecedented legal and business climate, proactive and creative compliance strategies, and effective strategies to document parties’ efforts to comply with existing obligations, can help hedge against transactional and compliance risks.

About the Authors

Sheila Harvey, Pillsbury’s Energy Industry Group leader, is an accomplished adviser on environmental and energy policy and regulatory issues and their impact on transactional and litigation matters.

Reza Zarghamee advises U.S. and international clients on a vast array of environmental matters, including the strategies for performing compliance audits, transactional due diligence, remediation, and SEC disclosures.

 

US Relaxation of Environmental Rules in the Wake of the COVID-19 Pandemic – The Implications for Canada and Mexico

Written by Joseph Castrilli, Counsel, Canadian Environmental Law Association

In a move that has implications for international arrangements with Canada regarding protection of the North American environment, the Environmental Protection Agency of the United States, citing the coronavirus pandemic as its justification, has announced that it will temporarily not seek penalties against companies that violate monitoring, reporting, and other obligations under US federal environmental laws. In a policy statement issued on March 26, 2020, the agency indicated that it will exercise “enforcement discretion…for noncompliance covered by this temporary policy and resulting from the COVID-19 pandemic” if the regulated community takes the steps set out in the policy.

Steps Under the Relaxation Policy

The steps under the policy require the regulated community to: (1) act responsibly to minimize effects and duration of any noncompliance; (2) identify the nature and dates of the noncompliance; (3) identify how COVID-19 was the cause of the noncompliance, the decisions and actions taken in response, including best efforts to comply and return to compliance; (4) return to compliance; and (5) document the information, actions, and conditions specified in steps 1-4.

Regulated Activities Covered by the Policy

The agency’s enforcement discretion under the policy covers: (1) routine compliance monitoring and reporting by regulated entities (the policy indicates that “EPA does not expect to seek penalties for violations of routine compliance monitoring, integrity testing, sampling, laboratory analysis, training and reporting or certification obligations in situations where the EPA agrees that COVID-19 was the cause of the noncompliance and the entity provides supporting documentation to the EPA upon request”); (2) settlement agreement and consent decree reporting obligations and milestones (the policy adopts the same position as in point number (1), above, but notes that consent decrees are still subject to independent judicial oversight); and (3) facility operations (the policy indicates that it applies to facility operations impacted by COVID-19 that may create acute risk or imminent threat to human health or the environment, result in air emission control, wastewater, or waste treatment system or equipment failure that may result in exceedances of enforceable limits, cause hazardous waste generation transfer, or animal waste feeding operation compliance, delays, or other noncompliance, all of which are generally to be covered by steps 1-4, above, except for imminent threats which also will require EPA consultation with state or tribal governments).

How the Policy Has Been Viewed in the United States

As reported in the media, the relaxation of environmental measures has been both assailed (“an open license to pollute…and abject abdication of the EPA mission to protect our well being” – Gina McCarthy, EPA Administrator in Obama administration) and defended (“a very straightforward and sensible guidance” – Grant Nakayama, EPA Office of Compliance in Bush administration) by legal, regulatory, and regulated communities in the United States. Others suggested that the issue was not so much the policy itself as how it will be implemented, particularly in the context of air pollution from industrial facilities located predominantly in low income communities where at-risk populations historically under stress from air pollutants that exacerbate asthma, breathing difficulty, and cardiovascular problems now also face respiratory threats posed by a virus that attacks the lungs.

Implications for Canada

Despite the policy’s direct impact in the United States, there are significant implications for Canada (and Mexico) as well. First, there are a myriad of cross-border environmental problems a policy such as this could exacerbate. Air emissions from the Ohio Valley have long had significant impacts in Ontario, Quebec, and the Maritimes. Superfund hazardous waste sites along the Canada – United States border, such as in the Niagara area, have long had significant implications for the integrity of the shared waters of the Great Lakes. Water pollution discharges from the state of Washington impact the Salish Sea, the estuary formed by inland waters with southern British Columbia that connect to the Pacific Ocean primarily through the Strait of Juan de Fuca.

Second, there are a variety of pacts between Canada and the United States that the policy could ride roughshod over:

• The Boundary Waters Treaty of 1909 (Article IV, section 2) that requires that neither country should cause water pollution in its waters which will cause injury to health or property in the other country and the companion Canada-United States Great Lakes Water Quality Agreement of 2012, which provides for a regional mechanism to achieve the Treaty’s goals in the Great Lakes Basin ecosystem;

• The Canada – United States Air Quality Agreement, signed in 1991, with the goal of reducing air emissions that cause acid rain, which was expanded in 2000 to reduce transboundary smog emissions; and

• The environmental side agreement under the North American Free Trade Agreement (as amended) commits Canada, Mexico, and the United States to ensuring that their laws and regulations provide for high levels of environmental protection and that they are effectively enforced through measures that include compliance monitoring and reporting (Articles 3 and 5).

Whether viewed as a waiver of monitoring and reporting requirements with respect to emissions or discharge limits or, more ominously, as a waiver of compliance with the limits themselves for the duration of the pandemic, this is not good news for the environment or public health in North America especially in the midst of a pandemic caused by a virus that attacks the respiratory system of its victims. It is also not clear whether Canada (or Mexico) were consulted by the EPA before this policy went into effect (it is retroactive to March 13, 2020). Coupled with the major de-regulation push the EPA has been engaged in over the past few years, the policy seems all of a piece with the worst impulses of those who want to de-construct the administrative state. We can do better than turn the clock back to the dark ages of environmental non-regulation. In the midst of a pandemic, stopping the spread of bad ideas would be a good place to start, including ensuring they are not imported to Canada.


About the Author

Joseph F. Castrilli is counsel to the Canadian Environmental Law Association in Toronto. He is a member of the Ontario and British Columbia Bars, is certified as a specialist in environmental law by the Law Society of Ontario, and has appeared before all levels of court on environmental matters, including the Supreme Court of Canada. He also has taught environmental law courses and seminars at Queen’s University, University of Toronto and Osgoode Hall Law School at York University.

 

The importance of collaboration in countering CBRNe threats

Written by Steven Pike, Argon Electronics

In what is a rapidly changing and increasingly challenging global environment, the importance of maintaining international cooperation in countering CBRNe threats has never been more crucial.

The successful management of any form of cross-border hazard – be it biological, chemical, nuclear or otherwise – relies on targeted, sustained and collaborative action.

The value of developing a cohesive approach to CBRNe response was just one of the topics touched on by Henriette Geiger in her opening speech at the Annual General Meeting of the European Union CBRN Risk Mitigation Centres of Excellence in Brussels in June 2019, in which she stated:

“We are facing challenges today that go beyond national borders and [that] cannot be tackled alone.

“This is true for cooperation on CBRN matters, as witnessed by recent CBRN attacks and events in Europe…[and] also by the re-emergence of epidemic diseases.”

Countering invisible threats

Fast forward just nine months, and the impact of the COVID-19 pandemic is demonstrating all too starkly just how vitally important it is to maintain global cooperation in the fight against an invisible yet deadly threat.

From governments to tech companies to international agencies, the race is on to put in place measures that can help to contain the spread of the coronavirus.

The challenge in any crisis situation though is in ensuring that those personnel operating on the frontline of emergency response are sufficiently trained and equipped to handle what can often be complex, highly charged and in many cases unprecedented emergency situations.

The role of realistic CBRNe training

When planning exercises for diverse CBRNe or HazMat threats, a key priority is to develop relevant scenarios that facilitate optimum readiness, maintain maximum levels of safety and present minimal regulatory burden.

In the last decade, there has been an increasing interest in the use of hands-on training exercises using simulators to enable civilian and military CBRNe practitioners to test their technical knowledge in a manner that is realistic, cost-effective and safe.

Classroom learning will always continue to provide value in helping build theoretical understanding of the science and technology that underpins CBRNe defence.

But it is through the provision of realistic training that knowledge and competency can truly be put to the test.

Hands-on training that uses actual equipment (or its simulator equivalent) can help to build deeper understanding of the key science that underpins the release, dispersal and measurement of CBRNe agents.

By incorporating the use of simulator detectors in the context of CBRNe exercises, there is also the opportunity for personnel to gain familiarity both with the chemical and physical properties of specific hazards and with the ways that these hazards may affect individuals, equipment and infrastructure.

The value of international collaboration

At a time when international cooperation can offer significant benefits, the cooperative research agreement (CRADA) signed between Argon Electronics UK Ltd and the the Lawrence Livermore National Laboratory (LLNL) is an initiative that promises to both bolster and re-envision the delivery of realistic hands-on CBRNe training.

The two-year agreement, valued at $2.55 million, merges LLNL’s game-changing Radiation Field Training Simulator (RaFTS) technology with Argon Electronics’ extensive experience in the creation and development of simulation hardware and software.

While the project is currently focused on enhancing the provision of radiation training, there is the ability for the same technology to be applied across the broader range of CBRNe response, and in doing so to substantially raise the bar of emergency preparedness.

As the events of COVID-19 pandemic have demonstrated, the consequences of CBRNe emergencies can stretch national capabilities to their very limits.

While responsibility for first response remains with individual nations, there is also much to be gained from countries working together, combining their resources and developing common frameworks in order to mitigate against the effects of future global threats.


About the Author

Steven Pike is the Founder and Managing Director of Argon Electronics, a leader in the development and manufacture of Chemical, Biological, Radiological and Nuclear (CBRN) and hazardous material (HazMat) detector simulators. He is interested in liaising with CBRN professionals and detector manufacturers to develop training simulators as well as CBRN trainers and exercise planners to enhance their capability and improve the quality of CBRN and Hazmat training.

Who Pays When Remediation Goes Wrong? A U.S. Federal Court’s Evaluation of Contractor Liability

Written by Michael S. Kettler, an Associate in the Environmental Law Practice of Riker Danzig Scherer Hyland & Perretti LLP, with offices in Morristown and Trenton, New Jersey; New York City; White Plains, New York; and Stamford, Connecticut  He may be reached at [email protected] or 973-451-8520.

The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”) has been a prodigious generator of litigation for decades. First, the government sought to compel potentially responsible parties (“PRPs”) to clean up contaminated sites. Then, those PRPs who were found liable or who settled with the government sought contribution from other PRPs. Now, even after these interminable disputes over liability for remediation costs are resolved, the implementation of costly remedies can give rise to yet more litigation if those remedies fail. A recent decision by the federal district court in Philadelphia in Cottman Avenue PRP Group v. AMEC Foster Wheeler Environmental Infrastructure Inc., arising from one of the earliest CERCLA Superfund sites, is an example of this last type of case and offers important lessons both for parties responsible for remediation and the contractors they hire to fulfill those obligations.

A predecessor of AMEC Foster Wheeler (“AMEC”), acting as a remediation contractor, designed a sheet pile wall intended to prevent PCB-contaminated soil at a Philadelphia Superfund site from falling into the Delaware River. Construction of the sheet pile wall was completed in 2010, but by 2012, cracks in the wall and unwanted movement of the wall were observed. The PRP group, making claims both under CERCLA and its contract with AMEC, sued AMEC in 2016 after the PRP group had to repair the wall.

AMEC prevailed on the CERCLA claims based on its assertion of the statutory defense for “response action contractors.” That is, CERCLA provides that “a response action contractor with respect to any release or threatened release of a hazardous substance … shall not be liable … to any person for injuries, costs, damages, expenses, or other liability … which results from such release or threatened release”; however, a response action contractor nonetheless will be liable for “a release that is caused by” the contractor’s negligence. 42 U.S.C. § 9619(a)(1)-(2). (The New Jersey Spill Act includes a similar defense for contractors, see N.J.S.A. 58:10-23.11g1.) The court held that AMEC could not be liable under this standard because the PRP group incurred costs in response to a threatened release of PCBs only, and could not prove that an actual release occurred. In fact, the PRP group’s repeated assurances to the United States Environmental Protection Agency that the defective sheet pile wall did not cause any releases to the river ultimately proved fatal to its CERCLA claim against AMEC. The court concluded that, under the “plain terms” of the response action contractor defense, a contractor cannot be liable for a threatened release of hazardous substances under CERCLA because the statute immunizes them from liability for a release or threatened release, but the exception creating liability refers only to a release caused by the contractor’s negligence. Although a reasonable interpretation of this CERCLA provision when read in isolation, it seems inconsistent with the statute’s general liability scheme, which imposes liability for both releases and threatened releases.

In contrast to the dismissal of its CERCLA claim, the PRP group had mixed success on its contract claims. Yet, the success or failure of the contract arguments rested not on the intent of the parties as expressed in the contract, but rather on certain background legal rules that the parties may not have contemplated when they entered the agreement.

First, the court found that the warranty provided by AMEC for the remediation work had expired and, as a result, the breach of warranty claim brought by the PRP Group was untimely. Under Pennsylvania law, unless the contract specifically provides otherwise, the “discovery rule” does not apply to breach of warranty claims, so the four-year statute of limitations applicable to breach of warranty begins to run upon completion of the work under the contract, regardless of when the defect causing the breach of warranty becomes apparent. Here, AMEC’s final inspection of the sheet pile wall under the contract occurred in 2011 and the PRP group did not sue until 2016, so the breach of warranty claim was barred. This is a harsh rule for remediating parties, who might not expect that their warranty for a remedy intended to last for decades would evaporate after four years.

AMEC also raised timeliness as a defense to the PRP group’s claim under the contractual indemnity, but the court ruled in favor of the PRP group on that issue. Specifically, AMEC unsuccessfully argued that its indemnification obligations ended upon termination of the contract in 2011 because the indemnification clause did not state that it survived termination, whereas other terms of the contract included explicit “survival” language. The court analogized the indemnification clause to “structural provisions relating to remedies and dispute resolution,” such as an arbitration clause, which usually survive termination of the contract. Thus, in contrast to the warranty, specific language was not needed to preserve indemnification claims that might arise after the remedy was constructed.

Finally, AMEC could not escape claims that it breached the contract by not procuring all of the required insurance policies. Although during the term of the contract AMEC intermittently provided certificates of insurance to the PRP group, in discovery it could not produce insurance policies that satisfied the requirements under the contract. Unlike the breach of warranty claim, the “discovery rule” did apply to this breach of contract claim, so the PRP group could bring the claim even though the breach—the failure to obtain insurance—had occurred long before the PRP group brought the lawsuit in 2016.

Remediating parties and the engineers and contractors they hire should observe three takeaways from the Cottman Avenue case:

  • Response action contractors have a powerful and unique defense to statutory environmental claims. Strict liability does not apply to response action contractors under CERCLA (or the New Jersey Spill Act), and, under this case, even a negligent contractor would not be liable for threatened releases. Like the Cottman Avenue PRP Group, remediating parties may be caught in a bind between assuring regulators that no contaminants have been or will be released and preserving potential CERCLA claims against their contractors.
  • Specify survival of warranties and indemnification provisions. Contracts often contain an explicit period that a warranty will remain in effect and also provide that indemnities will survive termination of the agreement. The failure to include these terms in this contract led to extensive litigation that could have been avoided and that probably produced results that the parties would not have expected when they entered the contract.
  • Pay attention to insurance requirements (and other ongoing obligations). Before agreeing to maintain certain insurance, parties should make sure they have the ability to provide that insurance or evidence thereof, which it seems was not done in this case. It may be tempting to put a contract out of sight and out of mind after it is signed, but without a system to make sure ongoing insurance obligations are met, a party may find itself in the unfortunate position of acting as its own insurer.

Reprinted with permission from the Riker Danzig Environmental Law Blog.  © 2020 Riker Danzig Scherer Hyland & Perretti LLP.


About the Author

Michael S. Kettler is an associate in the Riker’s Environmental Group and is experienced in litigation and environmental counseling. Mr. Kettler received his J.D. degree from Columbia University School of Law in 2012. He earned his B.A. degree, summa cum laude, in Philosophy, Politics and Economics from the University of Pennsylvania in 2009, where he was Phi Beta Kappa. Prior to joining Riker Danzig, Mr. Kettler was an associate at K&L Gates LLP in New York. He is admitted in both New Jersey and New York.

A Call to Keep Workers Safer When Transferring Flammable and Combustible Liquids

Written by Nancy Westcott, President of GoatThroat Pumps

Every day industrial workers transfer potentially hazardous chemicals, such as solvents, acetones, lubricants, cleansers, and acids, from large drums into smaller containers, or into machinery.  Traditionally, such potentially flammable or combustible liquids have been tipped and poured.  Today such spill-prone, VOC emitting methods are no longer considered acceptable, safe, or compliant – not when a fire or explosion can result.

In particular, younger workers, having seen the resulting physical injuries, chronic respiratory ailments, and even deaths endured by parents, grandparents and friends want much safer working conditions.  Consequently, there is now a call for greater safety and regulatory oversight to protect vulnerable workers and their families as simply and efficiently as possible.

“It can be catastrophic to a company if toxic or highly flammable material is accidentally released at the point of use,” says Deborah Grubbe, PE, CEng, is founder of Operations and Safety Solutions, a consulting firm specializing in industrial safety.

“When tipping a heavy drum, it is extremely difficult to pour a liquid chemical and maintain control,” adds Grubbe.  “Companies have to assume that if something can go wrong during chemical transfer, it will, and take appropriate precautions to prevent what could be significant consequences.  Because there is no such thing as a small fire in my business.”

Although the dangers of transferring flammable and combustible liquids are very real, protecting workers from harm can be relatively straightforward.  This includes proper safety training, the use of personal protective equipment (PPE), and the use of engineering controls to prevent dangerous spills.

A Lethal Situation

During a manufacturing process on Nov 20, 2017 at Verla International’s cosmetics factory in New Windsor NY, an employee transferred hexamethyl disiloxane (flash point -6 °C / 21.2 °F) from a drum into another container and then wiped down the chemical drum.  The friction from wiping created static electricity that caused the drum to become engulfed in flames within seconds.  The resulting fire and explosions injured more than 125 people and killed one employee.

A video released by the Orange County Executive’s Office shows the worker wiping down the chemical tank, “causing static which is an ignition event.” “Seconds later, the tank becomes engulfed in flames, with parts of the man’s clothing catching on fire as he runs from the explosion,” according to the Poughkeepsie Journal, a local area newspaper.

Although the man sustained only minor injuries, many at the cosmetics factory were not so lucky.

With the potentially lethal consequences from the use of flammable/combustible liquids in so many industrial facilities, it is essential to understand the hazard.

Flammable and Combustible Liquid Hazards

In a flammable liquids fire, it is the vapors from the liquid that ignite, not the liquid.  Fires and explosions are caused when the perfect combination of fuel and oxygen come in contact with heat or an ignition source.  Based on their flash points, that being the lowest temperature at which liquids can form an ignitable mixture in air, flammable liquids are classified as either combustible or flammable.

Flammable liquids (those liquids with a flash point < 100 deg F) will ignite and burn easily at normal working temperatures where they can easily give off enough vapor to form burnable mixtures with air.  As a result, they can be serious sources of a fire hazard. Flammable liquid fires burn very fast and frequently give off a lot of heat and often clouds of thick, black, toxic smoke.

Combustible liquids (those liquids with a flash point > 100 deg F) do not ignite so easily but if raised to temperatures above their flashpoint, they will also release enough vapor to form burnable mixtures with air. Hot combustible liquids can be as serious a fire hazard as flammable liquids.

Both combustible and flammable liquids can easily be ignited by a flame, hot surface, static electricity, or a spark generated by electricity or mechanical work.  Highly volatile solvents are even more hazardous because any vapor (VOCs) released can reach ignition sources several feet away.  The vapor trail can spread far from the liquid and can settle and collect in low areas like sumps, sewers, pits, trenches and basements.  If ventilation is inadequate and the vapor trail contacts an ignition source, the fire produced can flash back (or travel back) to the liquid. Flashback and fire can happen even if the liquid giving off the vapor and the ignition source are hundreds of feet or even several floors apart.

The most obvious harm would be the danger of a fire or explosion.  “If the vapor is ignited, the fire can quickly reach the bulk liquid. A flammable vapor and air mixture with a specific concentration can explode violently,” according to information on the topic posted online by the Division of Research Safety by the University of Illinois at Urbana-Champaign.

Consequently, minimizing the dangers of handling flammable and combustible liquid chemicals requires proper training and equipment.

Safe Handling

Without proper ventilation, the handling of flammable substances has a good chance to create an explosive atmosphere.  It is essential to work only in well-ventilated areas or have a local ventilation system that can sufficiently remove any flammable vapors to prevent an explosion risk.

Because two of the three primary elements for a fire or explosion usually exist in the atmosphere inside a vessel containing a flammable liquid (fuel and an oxidant, usually oxygen), it is also critical to eliminate external ignition sources when handling such liquids.  Sources of ignition can include static discharge, open flames, frictional heat, radiant heat, lightning, smoking, cutting, welding, and electrical/mechanical sparks.

Static Electricity Grounding

When transferring flammable liquids from large containers (>4 L), to a smaller container, the flow of the liquid can create static electricity which could result in a spark. Static electricity build-up is possible whether using a pump or simply pouring the liquid.  If the bulk container and receiving vessel are both metal, it is important to bond the two by firmly attaching a metal bonding strap or wire to both containers as well as to ground, which can help to safely direct the static charge to ground.

When transferring Class 1, 2, or 3 flammable liquids with a flashpoint below 100°F (37.8°C), OSHA mandates that the containers must be grounded or bonded to prevent electrostatic discharge that could act as an ignition source. NFPA 30 Section 18.4.2.2 also requires a means to prevent static electricity during transfer/dispensing operations.

Engineering Controls

Beyond PPE and proper ventilation, it is absolutely critical for workers to use regulatory compliant, engineered controls to safely transfer flammable and combustible liquids at the jobsite.  Most states and municipalities across the U.S. have adopted NFPA® 30 Flammable and Combustible Liquids Code and OSHA 29 CFR 1910.106, which address the handling, storage, and use of flammable liquids.  With NFPA 30, material is classified as a Class 1 liquid (flammable) and Class 2 and 3 (combustible).

The codes account for safeguards to eliminate spills and leakage of Class 1, 2, and 3 liquids in the workplace. This begins with requirements surrounding the integrity of the container, but also extends to the pumps used to safely dispense flammable and combustible liquids.

Point of Use Containment

According to Gary Marcus of Justrite Manufacturing in an article posted on EHS Today’s web site, “Drums stored vertically are fitted with pumps instead of faucets for dispensing. Use of a pump is generally considered safer and more accurate. Some local codes require pumps for all drums containing flammable liquids.

A fast-growing approach to flammable liquids storage is to keep as much liquid as possible close to the point of use because it is efficient and saves time. Workers can minimize their exposure to potential ignition sources if they replenish their solvent supply from a drum near their workstations, rather than from the solvent room a quarter-mile away. OSHA permits up to 60 gallons of Class I or Class II liquids and up to 120 gallons of Class III liquids to be stored in safety cabinets close to workstations.”

In most workplaces, supervisors and facility managers have been recommending rotary and hand suction pumps to transfer flammable liquids for decades. However, they are increasingly turning to sealed pump systems designed for class 1 and 2 flammable liquids, which are a more effective engineering control tool for protecting employees and operations.

Conventional piston and rotary hand pumps have some inherent vulnerabilities.  These pumps are open systems that require one of the bungs holes to be open to the outside atmosphere. The pumps dispense liquids from the containers using suction, so it requires that a bung be open to allow air to enter the containers to replace the liquid removed.  Without this opening, either the container will collapse or the liquid will stop coming out.

Typically, there is also a small gap between the container opening (bung) and the pump dip tube that allows air to enter.  This opening also allows some vapor release into the atmosphere when the pumps are unused and connected to the container.  The gaps may allow an explosion to occur at a temperature near the flashpoint.  This can cause a high-velocity flame jet to vent near the bung, which could injure personnel near the container.

In addition, using the piston and rotary pumps to remove liquid from containers can allow some spillage since there is no flow control device. If a seal fails, liquid can also be sprayed from the pump and onto the user and the floor.

As a solution, the industry has developed sealed pump dispensing systems that enhances safety by eliminating spills and enables spill-free, environmentally safe transfer that prevent vapors from escaping the container.

These systems are made of groundable plastic and come complete with bonding and grounding wires. The spring actuation tap handle can be immediately closed to stop liquid flowing preventing any spills. The design of this sealed pump system also prevents liquid vapors from exiting the container when the pump is unused.   These characteristics significantly reduce the chance of an ignition event.   The combination of all these features ensure the pump meets both NFPA30-2015.18.4.4 standards and NFPA 77.

Now that the hazards of transferring flammable and combustible liquids are clearly recognized, proactive industrial facilities are beginning to protect their workers and their families by implementing safety training, PPE use, and sealed, grounded pumps.  This will help their operations stay compliant, mitigate insurance risks while minimizing the risk of fire and explosion due to spills, vapors, and static shock.


About the Author

Nancy Westcott is the President of GoatThroat Pumps, a Milford, Conn.- based manufacturer of industrial safety pumps and engineered chemical transfer solutions that keep companies in regulatory compliance.

Use of Drones in Environmental/Engineering Services

Written by Walter Wright Jr, Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C

The use and functions of unmanned aerial vehicles (i.e, drones) in service industries is rapidly evolving.

Environmental services and/or environmental monitoring/enforcement is an example of an area in which the usefulness of drones is being recognized.

By way of example, as noted in a previous post (see post here), the Louisiana Department of Environmental Quality as early as 2018 added drones as a tool in the agency’s environmental protection missions. The three drones employed by the agency are used for activities such as:

  • Surveillance
  • Enforcement
  • Permit Support Documentation
  • Waste and Landfill Inspections
  • Legal Dumping of Chemicals, Oil or Waste Tires
  • General Emergency Response Functions Involving Facility Discharges, Train Derailments, Truck Accidents, Oil Spills
  • Investigations of Unusual Events

An example in the environmental services area is the Little Rock/Springdale firm of Pollution Management, Inc., (“PMI”) which operates a drone for certain environmental/engineering services.

The company states it uses a drone in the engineering area for activities such as:

  • aerial imagery (i.e., dam/levee inspections, slope failures, structure layout, etc.)
  • Topographic data (civil site layout, flood studies, landfills, industrial site design)

In the environmental area the drone is stated to be utilized for aerial site reconnaissance for areas that are:

  • Large areas of land
  • Not easily accessible by foot or vehicle
  • May not be easily observable due to thick vegetation or other impediments

In other words, drones apparently have certain potential inherent advantages when it comes to their ability to cost effectively observe for environmental assessment purposes larger or relatively inaccessible areas.

Note that the utilization of drones for income-producing purposes is subject to Federal Aviation Administration (“FAA”) rules and restrictions. PMI indicates that Professional Engineer Brad Wingfield recently passed his FAA Part 107 aviation exam. As a result, he is certified to pilot drones for commercial purposes.


About the Author

Walter Wright practices Environmental and Energy Law in the Little Rock, Arkansas, office of Mitchell Williams Law Firm.  He has taught Environmental Law at the University of Arkansas at Little Rock School of Law since 1989.  Mr. Wright is a graduate of the University of Arkansas and the George Washington University National Law Center in Washington, D.C.

Challenges to Environmental Investigations and Cleanups During the COVID-19 Crisis

Written by John McGahren, Stephanie R. Feingold, Ariel Kapoano, and Jenna Ferraro, Morgan, Lewis & Bockius LLP

Business closures and remote work requirements, work stoppages, travel restrictions, state and federal government slowdowns, and supply-chain disruptions are impacting parties’ abilities to satisfy obligations pursuant to environmental settlements, including administrative consent orders or judicial consent decrees with the US Environmental Protection Agency (EPA), and administrative orders with various state environmental agencies as well as compliance obligations under federal environmental laws such as the Clean Air Act, Clean Water Act, and Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).

State Guidance

Although the CDC has released guidelines recommending work from home and social distancing, there are currently no federal mandates or executive orders requiring business shutdowns or mandatory quarantine. Instead, many states, counties, and municipalities are releasing executive orders as well as nonbinding policies ranging from shelter-in-place to closing nonessential businesses and limiting gatherings of people.

These state and local mandates uniformly exempt “essential businesses” from such directives. The “essential business” exemption includes services and sectors that promote public safety, health, and welfare, although exactly what constitutes an “essential business” can vary. For example:

New York: Executive Order 202.6 exempts “essential businesses” to include healthcare operations (including research and laboratory services); essential infrastructure (including utilities); telecommunication; airports and transportation infrastructure; essential manufacturing (including food processing and pharmaceuticals); essential retail (including grocery stores and pharmacies); essential services (including trash collection, mail, and shipping services; news media; banks and related financial institutions); providers of basic necessities to economically disadvantaged populations; construction; vendors of essential services to maintain the safety, sanitation and essential operations of residences or other essential businesses; and vendors that provide essential services or products (including logistics and technology support, child care, and services needed to ensure the continuing operation of government agencies and provide for the health, safety, and welfare of the public).

New Jersey: Executive Order No. 104 exempts “essential businesses,” defined to include “grocery/food stores, pharmacies, medical supply stores, gas stations, healthcare facilities and ancillary stores within healthcare facilities.” All gatherings within the state are limited to 50 persons or fewer, except for “normal operations at airports, bus and train stations, medical facilities, office environments, factories, assemblages for the purpose of industrial or manufacturing work, construction sites, mass transit, or the purchase of groceries or consumer goods.”

It is less clear, however, whether environmental cleanups and investigations would constitute “essential businesses” subject to these exemptions. Furthermore, some states have expanded their initial executive orders, and others may follow suit. For example, while Pennsylvania initially recommended the closure of nonessential businesses, on March 19 Governor Tom Wolf signed an executive order forcing the closure of all but “life-sustaining” businesses. The state will begin enforcement actions against noncompliant businesses on March 21 under the terms of this order. Construction activities, for example, are no longer permitted to operate in Pennsylvania.  Additionally, on March 19, Governor Gavin Newsom of California signed an executive order requiring all residents to stay home, except as needed to maintain continuity of operations of the 16 “federal critical infrastructure sectors” including critical manufacturing, chemical, emergency services, energy, healthcare and public health, financial services, food and agriculture, and water and wastewater. And on March 20, just one day after having directed 75% of all nonessential employees to stay home, New York Governor Andrew Cuomo announced that he would be putting out an executive order mandating that 100% of employees in “nonessential” businesses in the state stay home.

Many state environmental agencies have not yet released guidance on the impacts of COVID-19. Moreover, even if environmental cleanups are permitted to proceed, maintaining the recommended “social distancing” in site investigation or remediation activities presents a challenge. Further challenges to ongoing site investigations and cleanups may also arise due to workforce absenteeism due to illness or caring for an ill family member.

EPA Guidance

EPA has not yet released guidance on the impact to agency operations due to COVID-19. Moreover, each site is differently situated, so there may be no one-size-fits-all solution. Parties currently remediating sites pursuant to settlements with EPA should carefully scrutinize their respective agreements and orders, including the force majeure clauses, to determine whether current circumstances may constitute such an event, and how and when to notify the agency. Most such provisions require notification within days, or even hours, of the discovery of the force majeure event, prompting yet more uncertainty as to whether there has been a trigger based on the novel pandemic response gripping the nation.

For example, EPA’s Model Consent Decree Language and Model Administrative Consent Order Language both define force majeure events as any event arising from “causes beyond the control” of respondents that “delays or prevents the performance of any obligation” under the order despite respondents’ “best efforts to fulfill the obligation.”

Each ongoing cleanup faces unique challenges depending on locality and nature of the cleanup. Responsible parties should consider outreach to EPA requesting the following actions:

  • Recognize the rapidly changing circumstances at the local, state, and federal level caused by COVID-19
  • Temporarily suspend notice deadlines for force majeure events caused by the COVID-19 crisis, as well as waive penalties for failure to timely notice or meet a deadline where the implications of COVID-19 have made it impracticable or impossible
  • Work with responsible parties on an individualized basis to determine whether ongoing work can continue and the extent to which deadlines should be extended, and follow a dispute process in the event of disagreement
  • Acknowledge that there may not be a one-size-fits-all approach for sites that are at different stages of remedial progress and subject to varying state restrictions

Until state and federal environmental authorities take affirmative action, responsible parties should consider proactive outreach to their EPA and state agency contacts for their specific cleanup sites for further guidance in this unprecedented situation, and stay tuned for further announcements on the status of environmental cleanups in the midst of the COVID-19 pandemic.

Copyright 2020.  Morgan, Lewis & Bockius LLP.  All Rights Reserved. 

 This article is provided as a general informational service and it should not be construed as imparting legal advice on any specific matter.


About the Authors

John McGahren is the Princeton litigation practice leader and deputy chair of the firm’s global environmental practice. John counsels clients on litigation, enforcement, and transactional matters. He prosecutes and defends citizen suits, Superfund and RCRA disputes, Clean Water and Air Act litigation, state law actions, and natural resource damage claims.

Stephanie R. Feingold represents clients in litigation and dispute resolution and provides environmental and regulatory counseling. Her work spans investigations, cost recovery and contribution actions, and enforcement actions brought by and against environmental agencies and government authorities, as well as private party actions.

Ariel Kapoano represents clients in complex environmental, toxic tort, contract, and consumer fraud litigation matters. She has experience in all aspects of litigation including factual investigation, discovery management, motions practice, and trial.

Jenna C. Ferraro is a part of the firm’s litigation team, which counsels clients and provides legal services in a wide range of areas, including general civil and commercial litigation, environmental law and toxic torts. Jenna’s experience includes many aspects of litigation, including discovery matters and motion practice.