"[E]xperienced with waste and contaminated site concerns."
Chambers USA 2022
Baker Botts lawyers have substantial experience addressing a broad range of hazardous waste and toxic substance cleanup matters arising under the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the Resource Conservation and Recovery Act (RCRA) and other related federal and state statutes. Based on this experience, we have developed innovative and effective strategies to assist our clients when addressing environmental issues at contaminated sites.
Our CERCLA experience includes serving as lead national counsel for Fortune 500 companies at some of the most challenging sites in the country and ranges from defending against federal/state claims to prosecuting private cost recovery actions and providing counsel on Brownfields cleanups. Our lawyers have been involved in negotiating some of the most innovative settlement terms and conditions that have been agreed to as part of CERCLA cleanups. Baker Botts lawyers also possess substantial experience managing the wide array of regulatory, permitting and cleanup issues that commonly confront industrial and manufacturing facilities under RCRA. In connection with these matters, we have negotiated the terms of focused RCRA corrective action and post-closure care permits for completing corrective action work, contested and resolved numerous RCRA enforcement actions, challenged and defended RCRA permit decisions by federal/state regulators for hazardous waste facilities, and provided extensive regulatory counseling on RCRA’s complex cradle-to-grave management obligations for solid waste, hazardous waste and hazardous secondary materials.
Moreover, through our work with numerous remediation sites and voluntary cleanup projects, we have developed novel approaches for performing site cleanups and recovering cleanup costs from responsible parties. We work with technical experts and company leadership in prosecuting cost recovery actions against both private parties and the government, and have a track record of recouping costs from governmental entities that bear responsibility as former site owners/operators. We also help our clients cap and control remediation expenditures. We are leaders in effectuating “liability transfers” where the responsibility for accomplishing cleanup is assigned to a third party. We help to ensure that any such transfer arrangements offer companies more significant cost certainty, minimal tax consequences and the security that the transferee will stand behind his or her cleanup obligations.
We also help our clients:
- Avoid joint and several liability through divisibility arguments
- Designate favorable allocations within potentially responsible parties (PRP) groups
- Decide whether to rely on CERCLA § 107 versus § 113 in prosecuting cost recovery actions
- Negotiate consent decrees and consent orders
- Defend natural resource damage actions
- Address releases of petroleum products under the Clean Water and Oil Pollution Acts
BROWNFIELDS AND VOLUNTARY CLEANUPS
The federal government and many states have established programs and economic incentives intended to encourage the cleanup and redevelopment of “brownfield” sites. These sites include abandoned and underutilized industrial and commercial properties that may have some degree of environmental contamination, but which governmental officials would like to see economically redeveloped rather than simply abandoned.
Based on our prior work with many brownfield properties and familiarity with federal, state and local redevelopment incentives, our lawyers are able to provide effective counsel to clients on all the full range of legal and technical issues associated with redeveloping these sites.
Specifically, in our practice we offer the following services:
- Evaluating the potential liability risks and redevelopment opportunities associated with brownfield properties
- Identifying and assessing the economic incentives that may be available for a specific brownfield site or project under the relevant federal, state and local programs
- Meeting with the relevant federal, state and local agencies prior to acquiring a brownfield site to assess the scope of the potential cleanup that these agencies will require and, as appropriate, negotiating the terms under which the property will be cleaned up after acquisition and the releases that will be accorded the purchaser
- Providing counsel on the availability of specific liability protections under the federal Brownfields Revitalization and Environmental Restoration Act of 2001 and similar state laws
Whether for brownfield or non-brownfield properties, we also help clients take advantage of state voluntary cleanup programs. Developing effective strategies to perform remediation under these programs can avoid the need to negotiate detailed consent decrees or orders and provide the client with increased flexibility in achieving cleanup standards. Performing voluntary cleanups can affect the ability to pursue contribution or insurance coverage, and thus it is critical to carefully evaluate the advantages and disadvantages of entering the voluntary cleanup arena.
COST RECOVERY AND INSURANCE OPTIONS
In the global marketplace, many companies encounter the need for insurance coverage in a wide range of contexts, whether to insure against the potential risks of business activities or accidental occurrences, to assist with managing environmental liabilities, or to facilitate an allocation of the risks and liabilities of a specific corporate transaction. Based on our broad experience, our lawyers are familiar with the increasing number and variety of these insurance products and regularly provide clients with our analysis of their potential advantages and disadvantages in particular contexts.
In the environmental area, we have assisted numerous clients both with the evaluation and manuscripting of the terms and conditions of specific insurance policies, as well as the pursuit of claims and litigation under these policies. In many cases, these environmental policies have included cleanup cost cap (“stop-loss” or “CCC”) and pollution legal liability (PLL) coverage. CCC insurance generally provides coverage for financial losses that arise when the estimated cost of a remediation project is exceeded. In standard CCC policies, coverage is provided to address unanticipated cost overruns due to inflation, changed conditions, the imposition of more stringent regulatory cleanup standards, newly discovered contamination, technology failure, contractor error or a host of other similar reasons. PLL coverage covers third-party claims for bodily injury and property damage that may arise in connection with CERCLA or other contaminated sites as well as cleanup costs that may be incurred at a future date due to the discovery of contamination outside of the ongoing remediation activities, or even after subsequent closure of the site.
Baker Botts environmental lawyers also represent firm clients in connection with suits against their insurance carriers for recovery of the defense costs and damages arising out of environmental, toxic tort and product liability claims. Our lawyers have litigated insurance recovery actions across the country, including cases filed in California, Connecticut, Illinois, Indiana, New Jersey, New York and Texas courts. These actions have often involved seeking coverage under both primary and excess policies for both the costs of indemnification and defense arising out of environmental impairment liabilities. Our ability to represent clients with respect to both coverage litigation and the underlying environmental claims allows them to consolidate their use of outside legal counsel.
Although proceeding to trial occasionally may be necessary, we often achieve cost-effective settlements in advance of litigation. These settlements have been achieved either through informal negotiations between the insured and their carriers or through alternative forms of dispute resolution including mediation and arbitration.
During World War I, World War II, the Korean War and the Vietnam War, as well as certain other non-wartime periods, the federal government became the owner or operator of industrial facilities which released hazardous wastes into the environment.
Decades later, many companies are required to conduct cleanups at these sites at substantial cost. These companies can recoup a portion of both past and future cleanup costs by asserting “war claims” against the federal government, either under CERCLA or under wartime contracts.
Baker Botts is at the forefront in preparing, negotiating and, to the extent necessary, prosecuting war claims against the federal government. Consistent with the client’s overriding objectives and specific circumstances, we develop tailored strategies to resolve these war claims in the most efficient and cost-effective manner possible.
We help clients:
- Determine the federal nexus to the contamination at issue via a forensic historical analysis
- Develop a cogent and defensible allocation analysis regarding the government’s fair share of the cleanup costs
- Compile a costs substantiation package that fully documents the cleanup costs
- Prepare a claim package that summarizes the essential elements of the war claims
- Propose a confidential settlement negotiation process to systematically resolve all claim issues
- Present and negotiate a settlement construct that achieves the client’s desired outcome
- Devise and implement a litigation strategy for prosecuting the claim in federal court as necessary to facilitate settlement or as an alternative approach to obtain cost recovery