Our Recent Litigation Support & Expert Witness Case Work

First Environment’s litigation support group provides expert witness services to law firms in all facets of environmental law throughout the U.S. and internationally. A few examples of our exciting recent work are described here.

CERCLA Cost Recovery Litigation
USA v. Land O’Lakes Inc. et al., United States District Court for the Western District of Oklahoma, Civil Action No. 5:16-cv-00170, Testifying Expert
  • Expert Report: Yes
  • Deposition Testimony: Yes
  • Trial Testimony: Settlement
“… the team was outstanding in every way imaginable and your individual and collective contributions led directly to a superb outcome. Our appreciation of each of you will never be forgotten.”
– Hudson Refinery Superfund site client comments following favorable settlement

The case involved the Hudson Refinery Superfund Site in Cushing, OK, a retired petroleum refinery formerly owned by Land O’Lakes, whose decommissioning was directed by the U.S. Environmental Protection Agency (EPA). EPA wrongfully categorized the plant equipment, such as the cat cracker, as a waste to which they applied Resource Conservation and Recovery Act (RCRA) requirements, rather than limiting the RCRA applicability to waste streams associated with the equipment. The EPA contractor then disposed of the equipment as hazardous waste rather than allowing it to be resold as used equipment. Using reverse engineering techniques and process flow modeling, the First Environment team was able to demonstrate that the equipment was never waste material and had commercial value as used equipment once decontaminated and decommissioned. Dr. Tod Delaney, president of First Environment, then opined that EPA’s failure to properly categorize the status of then equipment in performing the remediation led to markedly higher costs being incurred over what was necessary and appropriate. A settlement was reached that reduced the original demand from EPA by 80%.

Insurance Coverage
Indiana GRQ, LLC v. American Guarantee and Liability Insurance Company, et al., United States District Court for the Northern District of Indiana, Civil Action No. 3:21-CV-227-DRL-MGG, Testifying Expert

Expert Report: Yes
Deposition Testimony: Yes
Trial Testimony: Yes
Jury Trial: Yes

The litigation involved the recovery of costs for the cleanup of PCBs at the former Studebaker manufacturing plant in South Bend, IN. The basement containing the plant’s 11 massive transformers was inundated with water during a major flood in August 2016. The First Environment team researched the transformer design and Toxic Substances Control Act (TSCA) regulations.  Dr. Delaney established that the damage to the transformers and resulting PCB contamination of the underground vaults occurred as a result of the flood and was not a result of releases from operations. He also established that the insurance companies’ remediation efforts had not complied with TSCA, including EPA notification, as required by the statute. The jury awarded $25 million in indemnity costs to the owner, $13.1 million for the TSCA cleanup of the site. The jury also awarded $77 million in punitive damages due to the bad faith of the carriers.

On June 20, 2023, the court denied the defendants’ motion to apply a statutory cap to the punitive damages award using Dr. Delaney’s expert testimony on the failure of the insurance carriers’ consultant to report the PCB contamination to USEPA as support for the jury’s finding that the environmental damages incurred by the insured could be tied to the bad faith of the carriers.

Insurance Coverage
Kuhlman Electric Corporation, v. The Travelers Indemnity Company, et al.  In The Circuit Court for The First Judicial District of Hinds County, Mississippi, Case No.· 251-007-549-CIV, Testifying Expert

Expert Report: Yes
Deposition Testimony: Yes
Trial Testimony: Yes
Jury Trial: Yes

Insurance coverage litigation involving the discharge of PCBs at a transformer manufacturing site located in Jackson, MS. Dr. Delaney testified regarding causation, timing, and extent of contamination at a jury trial associated with PCB contamination in soil, groundwater, and surface water at the site. His testimony also covered the reporting requirements associated with the discharge of large amounts of PCB oils over the policy years dating back to the 1960s, as well as the requirements under TSCA to clean up the contamination and the costs of the cleanup. The jury returned a verdict that greatly reduced the cleanup costs being claimed by the insured.

Remediation Contract Dispute
Mcmillan Mcgee Corp. v. The Third Site Trust Fund, United States District Court for the Southern District of Indiana- Indianapolis Division, No. 1:21-Cv-01988-RLM-MJD, Testifying Expert

Expert Report: Yes
Deposition Testimony: Yes

First Environment performed an expert review of remedial technologies employed at the Third Site Superfund Site located in Zionsville, IN, part of the Enviro-Chem Corp. Superfund Site. Mcmillan Mcgee had contracted with the trustees of the site to remediate the soils and groundwater using electro-resistive heating (ERH) to EPA cleanup criteria for the relevant volatile organic compounds (VOC) contamination. Dr. Delaney provided an expert opinion assessing the failure of the technology to meet the cleanup criteria. Dr. Delaney opined that the ERH system was not designed properly, leading to its ineffectiveness in the cleanup of the site.

Other Recent Litigation Cases
  • Rochelle Park, NJ – Testifying expert opining on the standard of care employed by an underground storage tank (UST) contractor for a UST removal at a healthcare facility in New Jersey and the costs and responsibilities for the ensuing cleanup under NJDEP’s site remediation program.
  • Verona, NJ – Testifying expert in an insurance coverage case to opine on the insured’s performance of remedial activities in accordance with the NJDEP’s site remediation program, including immediate environmental concern (IEC) source control work, compliance with mandatory timeframes set forth in the Administrative Consent Order (ACO), light non-aqueous phase liquid (LNAPL) recovery work, and ecological receptor analysis in a manner that was protective of human health, safety, and the environment.
  • Long Island, NY – Testifying expert reviewing technical and engineering manufacturing operations at several aerospace facilities to assess the sources of comingled groundwater solvent contamination and the relative responsibilities of each facility for the contamination.
  • Tulsa, OK – Testifying expert in a workplace exposure matter assessing air contaminants at American Airlines’ aircraft maintenance facility
  • Los Angeles County, CA – Testifying expert reviewing operations at municipal airport with comingled contamination allegedly emanating from aerospace manufacturing facilities and a former Nike Missile base.
  • Hawthorne, CA – Testifying expert reviewing operations at several aerospace manufacturing facilities to decipher the sources of a comingled solvent contamination plume and the relative responsibilities of each facility for the contamination.
  • LaSalle, IL – Testifying expert on behalf of the insured in an insurance coverage litigation involving technical analysis of the nature, extent, and timing of contamination emanating from a former zinc smelting site and the necessity and reasonableness of associated clean-up costs.
Arthur J. Clarke, J.D.

Market Area Director - Litigation and Regulatory Services

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Art has more than 30 years of experience as an environmental chemist, regulatory manager, and environmental attorney. He specializes in litigation support, transactional support, due diligence, and regulatory compliance matters and has extensive technical experience as both a project manager and analytical chemist. Art regularly oversees facility compliance auditing and pre-acquisition investigations. He also provides regulatory counseling and consulting to clients appearing before state and federal administrative agencies, administrative law proceedings, and plenary courts. Art assists with negotiations regarding permitting and regulatory compliance matters, and also supports regulatory enforcement defense. He has designed and implemented regulatory compliance and auditing programs for a number of clients and has created subject matter newsletters and alerts to private and public sector clients. In addition, Art has led international and domestic due diligence teams in the investigation and assessment of pre-acquisition liabilities. He also counsels clients on sustainability matters, renewable energy, and green leases. As First Environment’s corporate quality assurance manager since 2010, he develops and manages the firm’s quality programs; authors standard operating procedures; and oversees execution of program and project plans, audits, and corrective actions.