Litigation and Legal Support Services

TBLS experts have extensive experience working with law firms, individual attorneys, in-house counsel, legislative and governmental counsel, compliance officers and other legal advisors on a wide range of environmental issues, problems and opportunities. Whenever needed, we collaborate closely with other consultants in a wide variety of related fields. The legal contexts in which we provide critical environmental support include the following:

• Mergers and Acquisitions
• Real Estate and Other Buy/Sell Transactions
• Development of Agreements, Contracts and Terms and Conditions
• Valuation Issues
• Cost Estimates
• Litigation, Mediation and Other Dispute Resolutions
• Negotiation of Settlements
• Design, Implementation and Evaluation of Remediations and Clean-Ups
• Environmental Insurance Placements and Claims Review
• Environmental Insurance Coverage Disputes
• Contamination Issues
• Construction Issues
•  “Peer Review” Assessments and Opinions
• Regulatory Enforcements
• Development of Legal Opinions and Memoranda
• Promulgation of Statutory and Regulatory Methodologies and Standards
• Development of “Best Management Practices”

Our skills and expertise cover many major topics, including:

• Financial Solutions, including Stop-Loss Assurance and Liability Buyouts
• Financial Modeling for Long-Tail Liability Management
• Forensic Litigation Support
• Forensic Financial and Liability Support
• Environmental Liability Evaluations
• Environmental Liability Due Diligence and Underwriting Evaluations
• Remediation Feasibility Studies and Design (including for Soil, Groundwater and Sediments)
• Environmental Audits of Insured Facilities
• Regulatory Audits under EPA, RCRA, NRD and Superfund

Litigation and Legal Support Experience

Innovative Environmental Valuation Studies – TBLS expert worked with a legal and consulting team over a two-year period to formulate a groundbreaking environmental valuation methodology for Groundwater Natural Resource Damage settlements using recycled stormwater. The project involved the New Jersey DEP and its economics expert as well as a team of recognized industry experts in specialized fields (including watershed, groundwater, engineering, water treatment, regulatory and real estate). Law Firm: Wolff & Sampson, West Orange, NJ

Water Rights Study – TBLS expert collaborated with environmental and other attorneys to develop an opinion as to ownership of water resources derived from recycled stormwater. The project involved legal research and preparation by the law firms of a comprehensive legal memorandum as to the ownership rights. Law Firms: Wolff & Samson, West Orange, NJ, Patton Boggs, Newark, NJ and McCarter English, Newark, NJ

Environmental Tax Credit Study –TBLS expert provided technical environmental expertise and research to outside counsel relating to the legal underpinnings and practices for promulgation of New Jersey Administrative Code § 7:14D, “Determination of Environmental Benefit of the Reuse of Further Treated Effluent in Industrial Facilities”. The rules enable buyers of treatment/conveyance equipment to apply for a DEB (Determination of Environmental Benefit) and obtain a corporate business tax credit or sales tax refund. Law Firm: Patton Boggs, Newark, NJ

NRDA Settlements – TBLS expert furnished environmental expertise for two NRDA settlements of Groundwater Natural Resource Damages. The expert collaborated extensively with in-house counsel, the New Jersey Attorney General (Division of Law-Environmental Enforcement Division) and the NJDEP (as plaintiffs), and their respective counsel and outside experts, as well as outside counsel for the defendants. Tasks included valuation of NRD liabilities and in-kind services replacement, including the establishment of insurance indemnification for the in-kind services remedy. The TBLS expert also worked with several insurance carriers and AON Environmental to establish a first-of-kind indemnity agreement for NRDA settlements. Law Firms: Patton Boggs, Newark, NJ; McCarter English, Newark, NJ 

NRDA & Intellectual Property – TBLS expert supported a non-disclosure stance taken by a third party drawn into a lawsuit between the State of New Jersey (as plaintiff) and a defendant company under a Natural Resource Damages case. The third-party firm had previously hired the State of New Jersey’s expert witness consulting firm on an unrelated matter and possessed a variety of intellectual property in the Natural Resource Damages space. The defendant sought through naming the third-party firm as a material witness to discredit the State of New Jersey’s expert by exposing this proprietary information. A limited amount of information was shared under a court protection order. Law Firm: Connell Foley, Roseland, NJ

Innovative Stormwater Lease Agreement – TBLS expert collaborated with four law firms and in-house corporate real estate, environmental and financial advisors to formulate a first-of-kind, “fee-for-use” leasing agreement for reuse of stormwater derived from roof/common area runoff. The yearlong genesis involved significant legal research and the evaluation of several existing types of leases and fee contracts (such as oil leases, solar leases, etc.) in which the lessee was not a tenant. Development of the fee-for-use lease (which involved input from the insurance carriers, mortgage holders, landowner and operator) shaped Best Management Practices for real estate access, insurance coverages, infrastructure construction, and operating, maintenance and monitoring protocols. Law Firms: Winston & Strawn (Washington, DC), Saul Ewing (Washington, DC), Loeb & Loeb (Los Angeles) and McCarter English (Newark, NJ)

Liability for Cleanups Settled before Trial – Represented multiple major oil companies as defendants in disputes with independent service station dealers regarding responsibility for the cleanup of the dealers’ sites and reasonableness of costs. The cases settled prior to trial at a considerable discount to the original claims. Law Firms: – Stoel Rives LLP, Portland, Oregon and Alter Wynne, Seattle, WA

Warehouse Purchase & Sale – TBLS expert was retained by a warehouse owner and its law firm in connection with a real estate transaction. The issues included third-party environmental trespass by an off-site DNAPL plume, and assessment of on-site cleanup responsibility of a middle-market tenant that had impacted the warehouse site. The TBLS expert advocated the use of environmental insurance to provide buyer/seller protection against the third-party offsite plume and for any subsequent issues due to tenant’s environmental cleanup. The matter was resolved without litigation through (among other things) implementation of the environmental insurance, which took away any potential for diminution of value of the property for the buyer. Law Firm: Hillis Clark Martin & Pederson, Law Offices

Reservation of Rights Dispute – TBLS expert was retained by an insurance company for reservation of rights case involving potential fraud from disclosure dispute as to cleanup costs and purported Natural Resource Damages claims for an upland and sediment cleanup Superfund site. The initial work involved management of a third-party environmental consulting firm to develop a reasonable-case cleanup cost estimate and Natural Resource Damage claim, estimated by the third party firm to be in the range of $70 million. Based on this estimate, and using an equal alternative approach, the expert helped the insured and the carrier to redesign the remedy and was involved in preparation of bid documents and carrying out an innovative bidding process with some of the best sediment remediation design firms in the US. The third stage involved assisting the insured and the insurance carrier with technical review of claims to test for reasonableness (during Remedial Investigation, Feasibility Study and Remediation Design phases). The fourth stage involved: (a) taking the new design out to bid using an innovative construction payment process, (b) a sliding-fee profit margin whereby the contractor would share risk with the insured and the carrier and (c) assisting construction bid submittals and the ensuing environmental claims. All work was completed without litigation at less than one-half the cost of the amount of the original (independent) third-party environmental cleanup estimate. The USEPA awarded a commendation for the project in 2006 as one of the best sediment remediations under CERCLA, and the project is in its second term of a 30-year post-closure monitoring. Insurance Carrier: AIG Environmental/AIG Technical Services. Insurance Carrier Law Firm: Schulte Roth & Zabel LLP.  Defendant’s Law Firm: Perkins Coie, Seattle, WA

Insurance Company vs. Municipality – Evaluation of construction work costs and practices for an insurance company defendant sued by a municipality. The plaintiff alleged that the defendant was liable for all costs on an excavation and removal project at a tenant’s facility where petroleum hydrocarbon impact emanated from a previous usage. The case settled before trial. Law Firm: Cozen & O’Connor, Seattle, WA

Unigard Insurance Company vs. Safeco Insurance Company – Evaluation of cleanup for the plaintiff insurance company (Unigard) in a dispute with the defendant insurance company (Safeco.) The case was settled prior to trial with the defendant carrier assuming responsibility for the cleanup. Law Firm: Riddell Williams, Seattle, WA

Financial Institution vs. Holding Company – Represented major financial institution plaintiff in dispute with holding company over costs and sufficiency of remediation efforts for a chlorinated hydrocarbon cleanup. Work entailed evaluating the efficacy of the cleanup to date and rendering an opinion as to its sufficiency. Resulted in release of merger escrow funds back to the bank. Law Firm: Foster Pepper PLLC

Public Testimony and Legislative Panels – Two cases concerning an office building involved the historical impact of petroleum hydrocarbons on the building’s site, and toxic tort and trespass from an offsite source that caused bodily injury and property damage to the building. In both, the defendants took responsibility before trial for past and future cleanup costs. Because the source of impact to the building involved trespass of publicly owned groundwater, a legislative panel was convened to discuss the facts of the case and to seek relief. The TBLS expert provided expert testimony to the legislative panel as part of an expert team. Law Firms: Greenburg Traurig, Miami, FL and Kane Jordan von Oppenfeld & Bischoff, Phoenix, AZ

Expert Report of Opinion – Forensic Remediation Cost Review – Retained by an insurance carrier’s outside counsel to conduct a forensic review of the reasonableness and necessity of cleanup costs that the plaintiff expended on a service station/bulk plant remediation site. The case was settled before trial at a significantly reduced claim amount. Law firm: Brown Davis & Roberts, Gig Harbor, WA

Expert Peer Review of Phase I ESAs for Financial Institutions – Provided expert environmental “peer review” opinions for commercial lending due diligence for the commercial divisions of five major financial institutions (Keycorp, Wells Fargo, Washington Mutual (now JP Morgan Chase), US Bancorp and Bank of America). Duties included review of Phase 1 ESAs prepared by others and a determination of sufficiency in accordance with ASTM standards.

Expert Peer Review of Phase I ESAs for Restaurant Franchise Owner – Provided expert environmental “peer review” services for a New York law firm in support of their client, a major restaurant franchise owner, regarding a real estate transaction. Law Firm:  Kaufmann Gilden Robbins & Oppenheim LLP

Expert Testimony, Material Witness and Depositions

Practicality of Obtaining Insurance Coverages – Represented defendant in a case involving the practicality of the use of environmental insurance for a shopping center where a gas station mini-mart was impacted with petroleum hydrocarbons and a dry cleaner was affected by chlorinated hydrocarbons. Gave expert testimony on whether a carrier’s due diligence during underwriting would have resulted in unrestricted coverage for cleanup. Law Firm: William Kastener Gibbs, Seattle, WA

Utility Plaintiff Cost Recovery – Represented a power utility plaintiff in a cost-recovery case against grocery chain and service station defendants. Allegations were made as to responsible party for historical contamination related to ownership of a petroleum hydrocarbon plume affecting the utility’s property. The District Court found for the plaintiff in bench trial. Law Firm: Cable Huston Benedict, Portland, OR

Export Report of Opinion – Errors and Omissions – Represented a defendant (engineer) through his carrier (Cigna) in an errors and omissions/construction defect case with a plaintiff property owner. The plaintiff alleged that the defendant had been negligent in the cleanup of diesel range fuels at a petroleum bulk plant. TBLS expert used a statistical analysis to show that the field screening methods employed would have had no better results than the plaintiff’s expert’s claims that field sheen testing should have been used. The case settled prior to trial at a considerable discount to the original claim amount, with no admission of liability. Defendant’s Law Firm: Chmelik Sitkin & Davis PS, Carrier’s Law Firm:  Blount Law Firm.

Efficacy of Remediation Remedy – Represented a plaintiff landowner in a dispute with a tenant regarding the sufficiency of cleanup of petroleum hydrocarbons by use of bioremediation. Expertise of the TBLS expert as to bioremediation cleanup method was established by the court. The case was resolved for the plaintiff in bench trial. Law Firm: Parsons Behle & Latimer, Salt Lake City, UT

Material Witness for Construction Dispute – TBLS expert was engaged by the General Services Administration for assistance on a major foundation failure relating to a tied-back wall of a federal office building. The TBLS expert was retained originally as the lead inspector for the earth portion of the construction. Following the failure of hundreds of tiebacks due to a construction defect (and the subsequent implementation of a solution), the TBLS expert served as a key material witness and gave multiple depositions over several years in appellate proceedings for several GSA claims. The case was ultimately resolved in favor of the GSA. Client: General Services Administration, Portland, OR