CERCLA / SUPERFUND: DESCRIPTION

For over 25 years, McKenna Long & Aldridge attorneys have represented our clients in cleanup and litigation proceedings under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA” or “Superfund”). Our attorneys have worked on numerous federal Superfund sites, spanning all 10 EPA regions of the United States.  In addition, McKenna Long & Aldridge attorneys have worked on a multitude of state Superfund cleanup and litigation matters.

Our Superfund practitioners have been on the leading edge of the program since the enactment of CERCLA in 1980.  The roster of sites handled by our firm includes some of the oldest sites in the program, including Lone Pine, Hardage, Stringfellow, Operating Industries, and Kin-Buc.  These are the sites where many of the fundamental legal principles of the program (e.g., challenges to joint and several liability, constitutionality, the bar to pre-enforcement review of remedy selection) were decided. 

Our roster of sites also includes many where the federal government sought to push the boundaries of liability, such as the Vertac site in Arkansas where the government first asserted the so-called “Aceto” theory of arranger liability and the Lowry Landfill site in Colorado where we asserted the so-called “Alcan defense” on behalf of our client.  Likewise, we represented the owner/operator potentially responsible party at the Woolfolk Chemical Works site in Georgia, which was one of the first sites to implement a “brownfields” redevelopment project as part of the remedy, as well as involving an extensive relocation of residents due to contaminated soil being discovered on nearby properties. 

More recently, we have handled some of the largest natural resource damage claims to arise under CERCLA, including State of New Mexico v. General Electric Company, Civ. No. 99-1118 (D. N.M. 2004) where the State’s $5 billion claim was dismissed on summary judgment.  Currently, we are handling CERCLA private cost recovery actions around the country, which will test the boundaries of the U.S. Supreme Court decision in Cooper Industries v. Aviall Services Inc., No. 02-1192 (Dec. 13, 2004), which articulated limits regarding the availability of CERCLA contribution actions. 

We have represented the interests of clients with widely varying stakes in Superfund cases, including:

• Representing sole owner/operator PRPs in regard to implementation of all aspects of the investigation and cleanup of a site
• Obtaining “de minimis” settlements for parties with small potential liability at a site
• Negotiating favorable deals for parties with potentially large liability at a site
• As Chair of Steering Committees, representing large groups of PRPs, negotiating creative settlements with EPA
• As common counsel for large groups of defendants, devising and successfully executing defense strategies in district court Superfund litigation

We have represented clients at every phase in the life cycle of a Superfund case, including: 

• Responding to EPA information requests
• Commenting on EPA’s proposed remedy for a site
• Mounting challenges to selected remedies
• Negotiating judicial and administrative consent orders
• Responding to unilateral administrative orders
• Participating in formal mediation
• Representing clients in private cost recovery and contribution actions in district court litigation

Given our firm’s depth in government contract law, we frequently represent government contractors in negotiations with EPA in their efforts to obtain contribution for CERCLA liability or other remediation costs and in their related efforts to recover remediation costs through the terms of their contract, through the Federal Tort Claims Act or through other federal contractor recovery mechanisms.  Our mix of government contract and environmental expertise allows us to quickly assess the strength of various potential claims against the United States.  Moreover, because we handle these cases on a regular basis, we have the ability to anticipate the government’s litigation positions and settlement strategies and we can predict what value the government will place on a certain set of facts.

For information about representative cases, please click here.