Representative Matters - Environmental Litigation

Private CERCLA Cost Recovery Action with Brownfields Issues of First Impression.

In litigation that was finally concluded in November, 2013, Tom Barefoot was lead environmental plaintiff’s counsel for the developer of a large tract of land on the Ashley River in North Charleston, South Carolina, which included a parcel designated as a federal Superfund site.  After passage of the 2002 Brownfields Amendments, the developer took title to the site, conducted site investigation activities and filed a CERCLA cost recovery action against the corporate successor to the last owner and operator of the phosphate fertilizer manufacturing plant formerly on the site. Defendant was a subsidiary of one of the largest phosphate fertilizer companies in the world and was represented by a prominent national law firm. Defendant denied that is had successor in interest liability, denied that the alleged predecessor contributed to site contamination and asserted that environmental harm at the site was divisible, thus preventing joint and several liability.

After the defendant’s successor liability was established at a phase I trial, a phase II non-jury trial was held on environmental issues. The court held for plaintiff that the defendant’s predecessor had contributed to the contamination, that the environmental harm was not divisible and that defendant had joint and several liability at the site. The court also held that the plaintiff developer had not met its burden of proving eligibility for liability protection as a bona fide prospective purchaser (BFPP) under the 2002 Brownfields Amendments. The court held the developer liable as the site’s current owner, and allocated responsibility among all responsible parties in a declaratory judgment. Ashley II of Charleston, LLC v. PCS Nitrogen, Inc., 791 F.Supp.2d 431 (D.S.C. 2011).

Tom successfully handled the appeal at the U.S. Court of Appeals for the Fourth Circuit. The appellate court affirmed defendant’s contractual successor in interest liability. On an issue of national significance, the Fourth Circuit affirmed indivisibility of harm at the site and affirmed defendant’s joint and several liability. On an issue of first impression to a federal appellate court, the Fourth Circuit affirmed the trial court’s ruling against the developer on eligibility for BFPP status. The Fourth Circuit’s opinion is the first and, as yet only, federal appellate court to address this important issue. PCS Nitrogen Incorporated v. Ashley II of Charleston, LLC, 714 F.3d 161 (4th Cir. 2013). Defendant sought review by the U.S. Supreme Court by filing a Petition for Writ of Certiorari in the Supreme Court solely on the divisibility of harm issue. Tom successfully opposed the petition in a brief submitted to the Supreme Court, which entered an order denying the petition on November 4, 2013. PCS Nitrogen Incorporated v. Ashley II of Charleston, LLC, 134 S.Ct. 514.

Recovery for Property Damage and Personal Injuries Arising from Drinking Water Contaminated by Release of Gasoline.


As co-lead counsel for 29 plaintiffs, adults and children, in a New Hanover County, North Carolina, action against Conoco, Inc., Mr. Barefoot sued for medical monitoring, personal injuries, property damage, and punitive damages resulting from gasoline contamination of our clients' sole sources of drinking water. A team of 16 experts was assembled. The case was settled after three days of intense mediation under confidential, but very favorable terms for our clients.

Recovery for Personal Injuries from Exposure to Gasoline Contaminated Water.


In a related case against Conoco, Inc., Mr. Barefoot represented a woman exposed to gasoline contaminated water, which contributed to her severe peripheral neuropathy. Conoco based its defense on two factors. First, it alleged that the amount of her exposure was insufficient to cause injury. Second, it alleged that there are no scientific studies that establish a link between benzene and/or MTBE exposure and the onset of peripheral neuropathy, a claim we could not refute. In response to this defense, we used expert hydrogeologists to establish the level of contamination in the water supply. Our expert neurologist, who worked with our firm in the prior Conoco case, was able to opine that exposure to various chemicals in gasoline was a significant contributing factor to our client's peripheral neuropathy. Significantly, his opinion was based, in part, upon consistent results found in his examinations of all adult plaintiffs in the prior Conoco case. After a successful mediation, our client received a confidential, but very favorable settlement.

Recovery of Damages, Sale of Property and Relocation Where Vapors From Subsurface Gasoline Contamination Seeped into Basement.


Mr. Barefoot represented the mother of a young child in an action against a gasoline station owner of leaking underground storage tanks (USTs). Gasoline migrated into the subsurface soils and groundwater beneath her home. This leak caused dangerous levels of petroleum vapors to seep into and accumulate in the basement of her home, and then to circulate throughout her home. The individual who sold the property to our client also was sued for knowingly concealing the contamination from her. A confidential but favorable result included payment of an undisclosed sum of money and transfer to the responsible party of title to, and environmental liability for, the contaminated property. The family was then able to relocate to an area with safe drinking water.

Recovery Where Contaminated Property Donated to University.


Mr. Barefoot served as environmental trial counsel for a major university in its suit against a gas station/convenience store for damages stemming from the contamination of property, which had been donated to the University. A confidential but favorable result included payment of an undisclosed sum of money and transfer of the title and environmental liability for the contaminated property.

Recovery of Damages, Sale of Property and Relocation Where Source of Drinking Water Was Contaminated by Chemical Distribution Facility.


Our firm represented a family consisting of a husband, wife and two infants in Western North Carolina whose home was located downhill from a chemical distribution facility. An extensive investigation revealed that the chemical distribution facility had been dumping chemical waste at the back of its property. As a direct result of this deliberate contamination, the family's sole source of drinking water was contaminated with chlorinated solvents. A very favorable result was obtained for our clients, which involved payment of a confidential sum of money and transfer of title of the contaminated property to the chemical distribution facility. The family was able to relocate to an area with safe drinking water.

Recovery of Damages, Sale of Property and Relocation Where Source of Drinking Water Was Contaminated from Leaking Gasoline Tanks.


Property damage and personal injury claims were filed on behalf of a family whose groundwater, which was their sole source of drinking water, was contaminated by gasoline. Significant questions existed as to which of two possible sites was the source of the released gasoline. After analyzing existing environmental data and conducting independent environmental studies, our experts opined that both a very dated spill of leaded gasoline and a more recent release from an underground storage tank system contributed to the contamination. An expert neurologist and a neuropsychologist testified to the personal injuries sustained. A very favorable result was obtained for our clients, which involved payment of a confidential sum of money and transfer of title of the contaminated property. The family was able to relocate to an area with safe drinking water.

Workplace Exposure to Ultra-hazardous Materials.


Mr. Barefoot represented 71 former workers of a chlor-alkali plant in North Carolina. Plaintiffs alleged that defendants, including their employer, knowingly exposed them for extended periods of time to dangerous levels of ultra-hazardous materials, including mercury and chlorine gas. According to plaintiffs’ medical experts, this excessive exposure that should have been prevented resulted in personal injuries to the former employees, including damage to their central nervous systems. Although defendants at no time refuted those material allegations, after years of litigation, the court granted summary judgment on all counts for all defendants without explanation. Summary judgment was upheld on appeal on the grounds that the employer was immune from civil suit by workers compensation exclusivity and North Carolina courts no longer recognized an exception for an employer’s egregious behavior. Other defendants were shielded from liability as individual members of the limited liability company, which they had established for the purpose of operating the plant with impunity from civil damage suits.

Personal Injuries in Community Exposed to Toxic Vapors from Asphalt Plants


Mr. Barefoot investigated claims on behalf of cancer victims living in the vicinity of both a hot mix asphalt facility and an adjoining liquid asphalt mixing plant. Vapor emissions from the plant contained known carcinogenic chemicals, including benzene and other petroleum constituents. The federal Agency for Toxic Substance Disease Registry (ATSDR) conducted a study of the surrounding population, which had experienced an unusually high incidence of certain types of cancer in both children and adults. While there was a statistically increased incidence of certain types of cancer, ATSDR could not affirmatively attribute it to the asphalt plants. After years of detailed investigation, litigation efforts were discontinued due to the lack at that time of peer reviewed scientific studies on the health effects of asphalt fumes/vapors on those living adjacent to, or downwind from, asphalt plants.

It is important to note that in the process of on-site laboratory testing of asphalt produced, hazardous chemicals, including chlorinated solvents, were routinely poured onto the soil, resulting in the contamination of the groundwater used for drinking and bathing in some of the homes of neighborhood residents at various times. These same on-site laboratory testing and disposal procedures were used at all similar asphalt facilities around the state resulting in soil and groundwater contamination.

Lead Counsel for Major PRP at the Macon/Dockery Superfund Site


Mr. Barefoot served as lead counsel in defense for a national corporation in a CERCLA cost recovery action brought by the United States. The litigation involved the Macon/Dockery Superfund Site in North Carolina. As a primary responsible party, our client sought contribution from other responsible parties. Tom worked closely in the litigation with the Department of Justice to develop liability cases against other PRPs.

Lead Counsel for Major PRP at the Aberdeen Pesticide Superfund Site


Mr. Barefoot served as lead counsel in defense for a national corporation in a CERCLA cost recovery action brought by the United States. The litigation involved the Aberdeen Pesticide Superfund Site in North Carolina. As a primary responsible party, our client sought contribution from other responsible parties. Tom worked closely in the litigation with the Department of Justice to develop liability cases against other PRPs.

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