If you own contaminated property, you have a problem. Most likely, the state you live in will require you to clean it up, even if the contamination was caused by someone else. Unfortunately, the remediation costs can total millions of dollars and last several years, preventing you from selling your property or otherwise developing it in a way that would maximize its value. I represent both plaintiffs and defendants throughout the United States in lawsuits which seek the recovery of costs and damages incurred in cleaning up contaminated property.
What Is a Typical Pollution Lawsuit?
In many of the pollution lawsuits I handle, the contamination is from industrial operations on a neighboring property or from operations that occurred on your property prior to your ownership, which were not disclosed to you when you purchased the property. Often, owners first discover the contamination when they are trying to sell their property. That is because prospective purchasers are required by a bank to obtain a Phase I Environmental Site Assessment which uncovers the contamination.
The historic operations that led to the contamination vary greatly. However, it is not uncommon to find soil and groundwater contamination due to industrial chemicals spilled on the ground or which have leaked from underground storage tanks that included either:
- Petroleum hydrocarbons such as gasoline, or diesel fuel.
- Chlorinated solvents such as the dry cleaning chemical tetrachloroethylene (perchloroethylene, or PCE) and the degreasing solvents trichloroethylene (TCE), 1,1,1-trichloroethane (TCA), and PCE.
Once the contamination is discovered, the purchase usually falls apart and the owner is then left wondering what to do next. Most states have a Voluntary Cleanup Program which enables the owner to clean up the property without fear that the state will seek an enforcement action against him. Upon completion of the program, the owner obtains a Certificate of Completion. Some states also permit an owner to enter his property into the Innocent Owner Operator Program, Dry Cleaners Remediation Program, or programs concerning Leaking Underground Storage Tanks where the owner obtains a No Further Action Letter or similar certificate upon completion. Some states also permit an owner to obtain a Municipal Setting Designation on the property as part of the remediation activities.
While each of these programs might satisfy the owner’s obligations to the state, they usually do not protect him from claims made by others due to the contamination, and they certainly do not compensate the owner for past costs he incurred in remediating his property. In addition, none of the programs provide protection from vapor intrusion issues, which are increasingly a major concern with environmentally impacted properties.
Can You Seek Recovery of Your Cleanup Costs?
If the contamination was caused by previous operations on your property or on the neighboring property, you can file suit to seek recovery of the money spent to remediate the property. In order to do this, you will need an experienced environmental trial attorney. Along with representing plaintiffs and defendants in these kinds of cases, I also specialize as PRP group counsel in Superfund cost recovery and contribution actions on a contingent fee basis.
The typical causes of actions asserted in most environmental lawsuits arise under either statutory or common law. Under statutory law, the plaintiffs typically assert “cost-recovery” claims against defendants in an effort to recover the money they spent to investigate and remediate their property. These claims arise under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) or a state equivalent, for instance under the Texas Solid Waste Disposal Act (SWDA). Plaintiffs sometimes also assert citizen suit claims under several federal environmental statutes (e.g. RCRA, the Resource Conservation and Recovery Act) as “private attorneys general” which entitles them to statutory penalties, injunctive relief, as well as attorney’s fees.
Under common law, the typical causes of action asserted by the plaintiffs are for nuisance (private and public), trespass, negligence, negligence per se, breach of contract, strict liability for ultra-hazardous and abnormally dangerous activities, liability under state hazardous sites cleanup acts, and fraud. Plaintiffs have also asserted claims for negligent misrepresentation, unjust enrichment, impairment of use of property, deceptive trade practice act violations, and premises liability. The success of these latter claims differs dramatically from jurisdiction to jurisdiction.
How Do You Choose the Right Environmental Trial Attorney?
Environmental litigation is complex. The applicable laws and statutes are often difficult to understand and apply. To make matters worse, the application by the courts can sometimes differ significantly depending on where the case is filed. As a result, when choosing the right environmental trial attorney, expertise should be your primary concern. It is very important that the attorney have a firm grasp on the different ways courts have handled various key and recent issues in environmental litigation.
It is also important to choose a lawyer who has significant past experience in environmental litigation. Although the case law is complex, some of the same issues come up in almost every case. Your attorney should have a standard set of written discovery requests concerning core background information. He should also be very familiar with the EPA and state environmental agencies as he will oftentimes need to work in parallel with those agencies in order to resolve the litigation. Finally, it is paramount that the attorney has a bank of good environmental consultants who can provide expert testimony if necessary.
Not only do I meet these qualifications, I am also open to alternative fee arrangements that align my interests with yours. Hourly arrangements have been the norm in the past. However, for many clients the hourly arrangement is simply no longer acceptable as cases tried on an hourly basis can easily dwarf the amount needed to clean up the property, leaving the client “upside down” in the case due to the attorney’s fees incurred. Sometimes an hourly arrangement is the most appropriate means of handling the matter. However, when representing a plaintiff, I am open to representing the client on a contingency basis. When representing the defendant, I am open to defending the matter based upon fixed fees for certain phases of the litigation. This latter strategy is a new concept which compensates the attorney for outcomes, not incremental projects (i.e. 1/10 billable items) that do not further the outcome of the case.
Do you have questions? You can get our FREE ebook, Environmental Litigation: What Every Attorney and Environmental Professional Needs to Know, just by providing your name and email address. We promise your information won’t be shared with third persons. And if you’d like to speak with me about your case, I welcome your phone call at 972-850-8490. I look forward to speaking with you.