Contaminated Site Cleanup & Compliance

Photo Credit: Susan Lawson

Kaplan Kirsch’s CERCLA cleanup attorneys help clients resolve contamination liability and return sites to productive use. We advise under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as the Superfund law. We also advise under the Resource Conservation and Recovery Act (RCRA) and state cleanup programs. RCRA governs how hazardous waste is managed today, from generation through disposal. CERCLA addresses releases of hazardous substances, often from past activity, and assigns liability for cleanup. Many sites involve both laws, along with state statutes.

Our clients include water providers, airports, cities, counties, developers, nonprofits, and private companies. We have also represented regulators, including California water boards and a state attorney general’s office. That experience on both sides of the table informs how we negotiate with agencies.

How We Help Clients Manage Cleanup Liability

Our work often begins when a client receives a CERCLA Section 104(e) information request or a notice of violation. A 104(e) request is a formal legal demand with a response deadline. The answers become part of the Environmental Protection Agency’s (EPA) liability record, so clients benefit from involving counsel before they respond.

Kaplan Kirsch also helps clients recover cleanup costs from others. Under CERCLA Section 107, a party that paid for cleanup can seek cost recovery from responsible parties. Under Section 113(f), a liable party can seek contribution from other liable parties for its fair share.

Not every site requires an enforcement order. State voluntary cleanup plans (VCPs) let owners address contamination under state oversight. In Colorado, a successful voluntary cleanup can earn a No Action Determination from the state health department.

Our services include:

  • Negotiating administrative orders on consent, consent orders, and voluntary cleanup agreements
  • Responding to CERCLA 104(e) information requests, compliance orders, and notices of violation
  • Pursuing cost recovery and contribution claims against responsible parties
  • Shaping remedy selection and building the administrative record
  • Structuring fixed-price remediation agreements, cost caps, and pollution liability insurance
  • Developing PFAS liability strategies for airports

Representative Experience

Superfund Litigation & CERCLA Liability

Leviathan Mine Superfund Litigation

Represented two California water boards in complex litigation concerning liability for past and future site costs for the Leviathan Mine Superfund Site, an inactive sulphur mine discharging acid mine drainage and waste into surface water and groundwater. Prevailed on key motions and secured settlement on the third day of a scheduled five-week jury trial.

Perchlorate Groundwater Remediation

Represented a California county in remediating groundwater perchlorate plumes from a large municipal landfill following more than 10 years of federal multiparty litigation involving the Rocket, Flares, and Fireworks Superfund Site.

Superfund Remedy Selection Support

Assisted a potentially responsible party (PRP) in implementing a comprehensive package of zoning, development guidelines, and public amenities to support cost-effective remediation of a Superfund site. Prepared extensive public comments, analyzed applicable or relevant and appropriate requirements (ARARs) and “shadow” assessments to facilitate remedy selection. Also built an administrative record supporting the client’s preferred remedy if a challenge became necessary.

Mining Impacts Remediation

Represented a Utah municipality in negotiating a settlement agreement and administrative order on consent with the EPA addressing historical mining impacts. The order covered an engineering evaluation/cost analysis (EE/CA) and removal action. Also negotiated a separate settlement agreement resolving natural resource damages claims.

Groundwater & Drinking Water Protection

Municipal Water Supply Groundwater Remediation

Represented a large California municipal water provider in negotiating and implementing remedial measures and settling cost recovery claims to restore beneficial uses of groundwater at and upgradient of numerous water supply wellfields impacted by emerging contaminant plumes.

Airport Groundwater Contamination Response

Represented a California county airport in responding to a state cleanup and abatement order, implementing a response action for a large 1,2,3-TCP contaminant plume consistent with the National Contingency Plan (NCP), and pursuing cost recovery.

Chemical Storage Facility Cleanup and Redevelopment

Represented the owner of a legacy bulk chemical liquid storage facility in complying with a regional water quality control board cleanup order for soil, groundwater, and marine sediment contamination. Negotiated a lease buyout and liability transfer to a Southern California port for redevelopment as a park and walking trails.

RCRA & Hazardous Waste Facilities

Defense Manufacturing Site Remediation Agreement

Represented an environmental consulting firm in negotiating a fixed-price remediation agreement, cost cap, and pollution legal liability policy for remediation and redevelopment of a former defense manufacturing site under a RCRA order.

Hazardous Waste Facility Post-Closure Cost Recovery

Advised a state attorney general’s office and regulatory agency on cost recovering post-closure costs at four permitted RCRA hazardous waste facilities following the landfill operator’s bankruptcy.

Voluntary Cleanup & Redevelopment

Riverfront Redevelopment Consent Agreement

Represented a Colorado developer in amending a 1990s consent agreement with the state’s department of public health and environment. Negotiated a cleanup approach enabling high-rise mixed-use redevelopment on a 60-acre central Denver riverfront parcel, including a cost contribution settlement with a PRP.

Lead Soil Remediation

Represented a Colorado town in negotiating and implementing remedial measures and funding under the voluntary cleanup and redevelopment program (VCUP) to address elevated lead concentrations in soil from historic mining activity.

Former Mining Experimental Facility Remediation

Represented a nonprofit corporation in a 20+ year effort to remediate a former mining experimental facility near Denver. Implemented a redevelopment strategy and advised on CERCLA, the Toxic Substances Control Act (TSCA), the Clean Water Act (CWA), radioactive materials licensing, the state voluntary cleanup plan (VCP), and other authorities.

Former Military Gunnery Range Redevelopment

Represented the master developer of part of a former military gunnery range in negotiating a state health department consent agreement and developing an insurance program and cost-recovery approach to address ordnance contamination encountered during phased development.

Municipal Landfill Conveyance and Voluntary Cleanup

Assisted a public entity in a complex transaction involving the conveyance of a municipal landfill from the federal government. Also negotiated and implemented a state-supervised voluntary cleanup and redevelopment program (VCUP) addressing CERCLA-compliant cleanup standards and remediation alternatives.

Construction and Demolition Landfill Closure

Assisted a nonprofit in negotiating a consent order to close a construction and demolition landfill and purchase the site to protect views from a historic property.

Compliance & Emerging Contaminants

Airport PFAS Liability Mitigation

Represented airports nationwide in developing strategies to mitigate PFAS liability exposure, including measures to address current and future environmental releases.

Mixed-Use Development Stormwater Compliance

Represented a developer of a 1,000+ acre Colorado mixed-use development in responding to an asserted stormwater notice of violation and developing a comprehensive stormwater permitting and compliance strategy for ongoing site development.

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