Skadden’s Environmental Group represents clients in high-stakes contamination, regulatory and enforcement matters. We aim to minimize costs and business risks by developing and implementing strategies that address the disparate interests of various stakeholders (often including community-based groups, foreign and domestic environmental organizations and governmental entities) and evaluate and resolve complex and often overlapping environmental and natural resource concerns.

When these matters cannot be resolved through a cooperative approach with various stakeholders, Skadden’s Environmental Group has extensive litigation experience to help clients achieve a strategic resolution of contested issues. Our attorneys approach environmental litigations from three perspectives. First, we seek to maximize available legal advantages; to control the schedule, terms and scope of the litigations; and to position the cases for summary dismissal and/or early and favorable settlement. We team with our clients, outside technical experts and, where appropriate, local counsel, to develop and implement such defensive efforts. Second, we approach disputed matters from the perspective that environmental litigation raises substantive and political issues outside of the courtroom, which our clients must fully understand and address. We help our clients control the debate on these issues, working with them from the policy perspective and in their relations with the business, environmental and local communities. Third, we help our clients develop settlement strategies and mitigation arguments designed to end the case and/or win broad support from the local and environmental communities.

Contamination and Cleanup Litigation

We have experience in a number of contamination and cleanup areas that are very difficult to litigate, such as (1) claims involving historical releases and multiple ancient sources of hazardous materials, (2) claims involving challenges to cleanup standards and methodologies, (3) complex causation and exposure claims, (4) complex cleanup costs and damage assessment claims, (5) complex natural resource damages claims and (6) multiparty cases involving the intersection of toxic torts and environmental cleanup matters. Such cases have included Superfund removal and remedial actions and decisions, RCRA corrective actions/closures and state-based cleanups. In addition to cleanup issues, many of these cases also have involved complex liability and allocation matters. Through formal discovery, independent historical and factual investigations, and expert assistance, we have defended and asserted joint and several liability claims and litigated complex allocation claims.

The following matters illustrate our experience representing clients in complex and disputed contamination and cleanup-related matters:

• Alcoa Inc. in the defense of a mass tort action involving alleged PCB exposure and a putative class of approximately 12,000 persons; and in several cases associated with a Superfund site in Louisiana, including defending Alcoa in a $43 million cost recovery claim brought by the United States, representing Alcoa as a defendant and plaintiff in a number of associated contribution claims and defending Alcoa in a related mass tort action;

• Axel Johnson Inc. in connection with three federal Superfund sites located in North Carolina. Our representation involved negotiating administrative consent orders for cleanup and cost reimbursement at two sites. We also defended Axel Johnson in cost-recovery actions brought by the federal government seeking cost reimbursement and penalties exceeding $40 million at one site and seeking cost reimbursement at the second site of approximately $17 million; and as plaintiff in connection with its malpractice, fraud and unfair trade practices claims against Arcadis Geraghty and Miller, Inc. for its negligent and deceptive actions in connection with the performance of a Superfund removal action;

• Sealed Air Corporation in the defense of a major lawsuit brought by the United States alleging that W.R. Grace & Co.’s spin-off of its packaging business with Sealed Air was a fraudulent conveyance intended to insulate these assets from Grace’s environmental liability. The case primarily involved litigating the estimated cleanup costs, appropriate cleanup levels and methods, and NRD claims for dozens of sites across the country. The government alleged that Grace had understated its environmental liability by more than $450 million;

• United Air Lines, Inc. in the development and negotiation with governmental agencies and other airlines of a cleanup program and administrative order for petroleum contamination at JFK Airport in New York, and as a plaintiff and defendant in an associated complex litigation with several airlines and the fueling company involving contractual indemnity, cost recovery and contribution claims exceeding $100 million in cleanup costs and damages for petroleum contamination at JFK Airport;

• Chris-Craft Industries, Inc. in the Montrose case involving a $1 billion natural resources damages claim relating to DDT contamination. Depositions of more that 80 expert witnesses were taken during that case;

• Diamond International Corp. in connection with a number of multiparty Superfund cost-recovery and cleanup actions and natural resource damage claims nationwide, including a multiparty site in Maine in which we secured a technical impracticability waiver and achieved an unprecedented final settlement, pursuant to which the cashout parties (including our client) resolved all future cleanup, governmental cost and natural resource damage liabilities (estimates of which exceeded $30 million) without any payment due;

• MeadWestvaco Corporation in settling a potentially large environmental indemnification claim; and

• United States Enrichment Corporation (USEC) in defending a Superfund cost recovery claim brought by the United States against USEC for the cleanup of a depleted uranium treatment and disposal facility in South Carolina.

Environmental Compliance Disputes

We advise clients on environmental compliance matters — both preemptively to ensure compliance and avoid enforcement attention, as well as responsively to strategically and aggressively defend civil and criminal enforcement actions. We advise clients in high-stakes civil and criminal enforcement matters involving regulatory and enforcement regimes; long-term operations involving extensive agency and business records and decades of alleged violations or liability generating actions; and complex technical and scientific matters. Our attorneys represent clients on such matters in federal and state trial courts and appellate courts, before federal and state administrative agencies, and in alternative dispute resolution proceedings nationwide. The following matters illustrate our experience in this area:

• CFI Industries, Inc. in connection with an EPA national enforcement initiative and RCRA investigation involving Bevill Amendment and other issues;

• EcoElectrica in administrative proceedings before EPA’s Environmental Appeals Board in appeals concerning the issuance of a PSD permit for its 500 MW electric generation facility. We defeated two separate appeals alleging that the permit failed to meet the complex modeling and other scientific criteria required for issuing a PSD permit and alleged that the facility was improperly sited;

• CEMEX in connection with administrative proceedings regarding the modification of a Title V air permit and related NIMBY injunctive proceedings;

• a large manufacturing company in connection with conducting an internal preemptive investigation regarding potential MACT and Title V air permit non-compliance matters at a number of facilities, developing and implementing a compliance strategy and program, and negotiating a favorable administrative consent agreement resolving past non-compliance issues;

• a large manufacturing company in connection with an administrative enforcement action alleging violations of EPA 40 CFR Part 68 (chemical accident prevention program);

• CFI Industries, Inc, in connection with an investigation of potential PSD/HF MACT violations at an integrated fertilizer manufacturing facility;

• AES in a Martin Act investigation by the New York attorney general’s offices of climate change disclosure;

• a number of clients seeking grants and loans from the Department of Energy under the American Recovery and Reinvestment Act of 2009. Our representation for these clients has focused on securing quick resolution of the requirements for project approval under the National Environmental Policy Act;

• an Amerada Hess senior environmental attorney in a criminal investigation involving alleged hazardous waste reporting and disposal violations;

• Phillip Services Corp. in a complex criminal case involving illegal disposal of hazardous waste;

• Cavenham Forest Industries Inc. in its appeal before the EPA’s Environmental Appeals Board regarding objectionable corrective action provisions in its RCRA post-closure permit for that facility, and as a plaintiff in related contribution claims;

• a major company producing products for the energy industry in an internal investigation; and

• a major international company in an internal investigation involving environmental issues confronting a business operation located in Mexico.

We also have evaluated hundreds of environmental compliance programs and environmental management systems and assisted companies in developing and implementing environmental compliance programs and environmental management systems. We also have represented numerous companies in connection with environmental permitting issues, including the identification of necessary permits and permit requirements, acquisition of necessary permits, and compliance with permit requirements. Such compliance has included U.S. and international environmental regimes, as well as compliance with the guidelines and policies of international financing organizations (such as the World Bank, International Finance Corporation and Export-Import Bank of the United States) and key stakeholders (such as Equator Principles), and analysis of issues raised by bilateral trade agreements (such as the North American Free Trade Agreement (NAFTA) Environmental Side Agreement).

Our extensive litigation, general regulatory and compliance counseling experience has involved a wide-range of federal and state environmental and natural resource regulatory programs, including, for example, (1) Clean Air Act issues (including NSR/PSD matters, Title V permit issues, synthetic minor permitting issues, acid rain matters, GHG issues and MACT); (2) the National Environmental Policy Act; (3) hazardous, radioactive and solid waste disposal, transportation and management issues; (4) Clean Water Act issues; (5) wetlands and Section 404 permitting issues; (6) endangered species issues; (7) TSCA issues and (8) SEC disclosure issues.

Bankruptcy Reorganizations

We have represented many clients in connection with major environmental matters in their bankruptcies. As national bankruptcy environmental counsel for many clients, we have extensive experience in:

• negotiating, litigating and resolving environmental claims brought by private parties;

• discharging environmental cleanup obligations owed to governmental entities to the maximum extent allowed by the Bankruptcy Code;

• establishing trusts to hold and manage contaminated properties to allow the debtor to reorganize free from legacy liabilities;

• abandoning idled property that is of no value to the debtor;

• defending fraudulent transfer and veil-piercing claims;

• resolving insurance coverage claims;

• defeating objections to plans of reorganization based on environmental concerns; and

• strategically evaluating the benefits of a Chapter 11 versus Chapter 7 bankruptcy.

Clients for which we have served as national environmental bankruptcy counsel include:

• We also have served as counsel to official committees of equity security holders, working to develop alternative plans of reorganization that strategically address environmental liabilities to maximize shareholder returns.

Additional Environmental Litigation-Related Experience

Our general knowledge of the environmental litigation field is greatly enhanced by the fact that we have one of the largest M&A environmental due diligence and environmental risk allocation practices in the country. We have, for example, represented during the past 10 years more than 500 Skadden clients (many on multiple matters) in conducting and reviewing environmental due diligence and allocating environmental risks, both in the United States and abroad. In the course of this work, we have analyzed countless contested contamination, cleanup and enforcement matters. We also have litigation experience in cleanup indemnification issues. Additionally, we have been involved in a number of alternative dispute resolution proceedings nationwide.

We have worked closely with Skadden’s Complex Mass Torts and Insurance Group on a number of litigations involving the intersection of toxic torts and environmental cleanup matters. We are experienced in all matters leading up to the impact of human exposure to toxins, including environmental fate and transport issues, toxicity issues, environmental-related causation issues, environmental regulatory requirements and policies, and environmental cleanup and damage issues. We also advise on procedural and substantive class action issues, legal and technical human health and damage valuation issues, and causation issues. Additionally, we have significant experience in developing and aggressively litigating cases involving complex technical/scientific matters, and the identification and development of very old and complex operational and causation issues.