Ongoing Matters

Multi-Party Mediation/Environmental Litigation of State Law Claims - City and County of San Francisco v. ARCO December 1995
Advised the City and County of San Francisco (CCSF) in the environmental review and permitting of a major Master Plan expansion of the San Francisco International Airport (SFIA). In connection with the Master Plan expansion, we represented CCSF in negotiations with numerous tenants and multiple government agencies to obtain fast-track, facility-wide cleanup of hydrocarbon contamination without delay to expansion activities and at significant cleanup cost savings to CCSF. Negotiations resulted in development of an innovative cleanup order under the state Containment Policy, which is serving as a model for airports across the country. In addition, the Morrison & Foerster team represents the CCSF in its ongoing efforts to recover environmental cleanup costs at SFIA. Following intensive mediation and litigation in 1999-2000, the City and County recovered about $13 million from twenty-nine current and former tenants (airlines and oil companies). A second phase of cost recovery (over $13 million) is underway.

Complex Multi-Party CERCLA Contribution Litigation - K.C. 1986 v. Reade Mfg. Co, et al . December 1993
Representation of U.S. Borax in complex ongoing litigation pursuant to CERCLA and state common-law claims arising from soil and groundwater contaminated primarily with arsenic at a former herbicide blending and distribution facility in Kansas City. Close work with EPA Region VII has resulted in more than $1 million in discretionary funding from the federal Superfund to help offset the "orphan share" of cleanup costs at the site - costs that are ordinarily borne by private parties.

CERCLA Natural Resource Damages Action: Mercury - United States v. Santa Clara County, et al. January 1992
Representation of the Santa Clara Valley Water District in a CERCLA Natural Resource Damages action concerning mercury contamination in the Guadalupe River Watershed and South San Francisco Bay. Through extensive engagement with the Trustee Agencies (led by the U.S. Fish & Wildlife Service) we were able to avoid litigation entirely by participating in a collaborative damages assessment and settlement process, resulting in minimal damage assessment costs and expeditious resolution of Trustees' claims through a negotiated agreement allowing our client and other PRPs to implement local restoration and enhancement projects in lieu of paying either compensatory damages or federal or state oversight costs or legal fees.

2004

CERCLA Contribution Litigation and Financing of Remediation - W.S. Associates v. Cryo-Maid
Represented Nestlé USA on a San Leandro, California site with extensive TCE contamination to soil and groundwater. Although Nestlé was the only large company among the PRPs, the Firm was able to generate a fund from the others sufficient to 1) address the investigation and remediation requirements imposed on the site, 2) contract for a guaranteed remediation backed by an independent insurance policy, and 3) provide compensation to the property owner for costs and economic losses incurred. A portion of the case involving a contribution claim initiated by Nestlé against a bankrupt former master lessor of the property resulted in a favorable decision by the U.S. Court of Appeals for the Ninth Circuit (Nestlé USA Beverage Division, Inc. v. D.H. Overmyer Company, Inc., 1999 U.S. App. LEXIS 6008 (9th Cir. March 31, 1999).

2001

CERCLA Allocation Trial - Waste Management of Alameda County v. East Bay Regional Park District March 2001
Successful defense of East Bay Regional Park District in a CERCLA lawsuit initiated by Waste Management over a former landfill. After a trial, the court assigned Waste Management a 95% share of future response costs and awarded our client reimbursement of 95% of its past response costs. 135 F. Supp. 2d 1071 (N.D. Cal. March, 2001).

CERCLA Citizen Suit at Federal Facility
Fremont National Forest - Uranium Mines. Represent Kerr McGee Corporation in litigation with EPA over cleanup at the site of two former uranium mines in Lakeview Oregon. The site has been designated as a CERCLA “federal facility” based on the ownership of federal forest land and the involvement of the federal Atomic Energy Commission in the development of uranium mining in the 1950s. Result: Negotiations with EPA and the US Forest Service during the RI/FS process reduced cleanup costs by nearly two thirds. A group of PRPs, led by Kerr McGee, has filed a citizen suit in federal district court in Oregon to require the government to perform the cleanup itself. The action is currently stayed and mediation with the government is underway.

Negotiation of Cost-Effective Remedial Plan
We represent a tenant, and now owner of contaminated property in the City of Industry, California.  The contamination was caused by a prior defunct operator.  Result:  We prepared a complaint for cost recovery and damages on behalf of our client and threatened litigation.  However, we also facilitated a careful negotiation with the other responsible parties, who have access to insurance, and have crafted a creative approach where the parties are cooperating in the investigation and potential remediation of the site.  All parties have signed a standstill and tolling agreement and are contributing to the negotiated resolution of this problem, which may result in enormous cost savings and efficiencies for all parties.

Clean Water Act Citizen Suit
Defended Water District against claims made by local and national environmental groups concerning pollutant discharges. Result: Negotiated deminimus settlement based on in-kind contributions to environmental mitigation projects. Our client’s co-defendant litigated for three years before settling on far less favorable terms.