Superfund Experience

Nearly every company may become subject to Superfund liability for past acts of hazardous waste disposal. Sometimes the act of disposal occurred 100 years ago and sometimes the act was much more recent. Either way, the familiar "polluter pays" principle of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), commonly known as Superfund, means that most companies will negotiate a Superfund settlement at some time in their corporate existences. Schiff Hardin attorneys regularly assist companies in understanding the factual basis for their legal liability and evaluating settlement and litigation options.

We assist clients in:

Understanding the settlement document, whether it be an administrative order on consent or consent decree (scope of releases, re-openers, the work requested, and the long-term consequences of these provisions)
Strategic planning for remedial investigations, including timely uses of risk reduction evaluations
Advocating for cost-effective, and sometimes innovative, remedies that reduce risk
Identifying and interpreting applicable or reasonable and appropriate requirements (ARARs)
Effectively working within a joint defense group
Effectively using the group process to the economic advantage of the participant
Fostering good communication with regulators and recommendations for actions based on experience
Investigating and evaluating the evidentiary basis of the CERCLA claim
CERCLA litigation, including defending clients in cost recovery actions and asserting contribution claims against other potentially responsible parties

Schiff Hardin's broad experience has taught us to use multiple tools to cost-effectively advise our clients on a course of action.

The Legal Toolbox

By understanding and using Environmental Protection Agency (EPA) procedures, Schiff Hardin can:

Negotiate reasonable and practicable responses to government requests
Use and modify model Superfund settlement documents
Find helpful EPA guidance documents
Use presumptive remedies or innovative technologies
Wisely choose litigation or negotiation strategies

The Factual Toolbox

We understand the "dirt is first" — that is, the facts of historic site use; manufacturing processes, technologies, and waste generation; geology, hydrogeology, fate-and-transport; and the like are essential to remedy selection and implementation because we have implemented remedies at all of the following kinds of sites:
Sediment sites

Large multi-source sites
Sites with successive historic operations
Lagoon sites
Landfill sites
Single-pollutant sites
Multi-pollutant sites
Manufactured gas plants
Coal ash sites

The Experience Toolbox

Schiff Hardin combines legal and technical expertise to overcome the wide range of issues presented in Superfund matters:

Difficult liability allocation and technical issues inherent in complex sites
Appropriate selection of environmental consultants and contracts to manage them
Bankruptcy
Access to property
Multi-party dispute resolution
Group governance

In short, while the prospects of joint and several liability and multi-million dollar cleanup costs can be daunting, Schiff Hardin's experienced attorneys help you manage the process so that you can manage your business.

Common Counsel Representation in Superfund Matters

Common counsel representation frequently involves years and years of close involvement with myriad aspects of the property.

Defining common counsel's role and helping clients achieve that end requires skills that cross many legal disciplines, skills that Schiff Hardin lawyers have demonstrated for more than 20 years.

Common counsel:

Learns site history, including all parties' connections to the site
Facilitates development of group strategy
Understands sufficiently the technical aspects of the site so that the statutes, regulations, guidance, and case law can be applied to achieve cost savings
Facilitates effective and cost-effective group member interaction
Supervises and facilitates committee actions
Negotiates for the joint interests of the group
Performs legal research and drafting as needed
Strategizes concerning technical aspects of the case
Negotiates and supervises group contracts
Diligently pursues recalcitrants for "fair share" contribution

Fiduciary and Trustee Representation

When a demand for Superfund contribution is made against a fiduciary or trustee, unique statutory rights and case law are implicated. Schiff Hardin's Environmental group is well-versed in the issues that arise in such cases, and has experience representing fiduciaries and trustees in contribution litigation under Superfund.

Liaison Counsel and Committee Membership

Because Superfund liability is joint and several, that is, each is liable for the shares of all of the others, potentially responsible parties (PRPs) work within a joint defense group to address common goals. Resolving legal liability at the least cost is the primary goal in any Superfund matter. To get to that point, a group generally works through representatives on committees, and may:

Actively pursue or defend against a cost recovery action
Develop the common facts of historic operation, ownership, and users of the site
Implement environmental studies and remediation
Use alternative dispute resolution mechanisms or judicial proceedings to resolve joint liability and allocation issues
Use a combination of all of these and other tools.

Schiff Hardin has effectively served as liaison counsel when asked. Liaison counsel is used when each member of a defense group wishes to actively work to represent its interest but realizes that certain drafting, management and ministerial duties are best performed by one entity with group cost-sharing.

On behalf of our clients, we have participated in group committees, such as the technical, allocation, steering, membership, legal and community relations committees.