Practice Areas & Industries: Morris Polich & Purdy LLP

 





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Practice/Industry Group Overview

Morris Polich & Purdy has more than 35 years of experience providing cutting-edge representation in environmental matters including litigation, regulatory compliance, enforcement and business transactions.

We have experience in all areas of environmental law, including: 

  • Contamination of land, water and air
  • Regulation of hazardous materials
  • California’s Proposition 65
  • Federal Superfund cost-recovery litigation
  • Chemical and toxic exposure

We have served a wide range of public and private clients, including:

  • Water and waste water utilities
  • Manufacturers and distributors of chemicals
  • Manufacturers and designers of chemical protection equipment
  • Property owners, developers and contractors
  • Manufacturers and generators of hazardous substances
  • Banks
  • Municipalities
  • Environmental consultants

We have appeared as counsel both in regulatory agency proceedings and in litigation involving alleged violations and permitting matters arising under:

  • California Environmental Quality Act ("CEQA")
  • Comprehensive Environmental Response Compensation and Liability Act ("CERCLA")
  • Porter-Cologne Act, California Water Code § 13240, et seq.
  • Clean Water Act, Total Maximum Daily Loads, NPDES permitting, enforcement actions
  • Clean Air Act
  • Safe Drinking Water Act
  • Resource Conservation and Recovery Act (“RCRA”)
  • California Proposition 65
  • Endangered Species Act
  • Underground/Aboveground Storage Tanks, California Health & Safety Code §25270, et seq.
  • Lempert-Keene-Seastrand Oil Spill Prevention and Response Act

A CROSS SECTION OF OUR EXPERIENCE

CERCLA

  • We acted as counsel at the trial and appellate phases of a seminal CERCLA decision in the Ninth Circuit Court of Appeals concerning prior owner liability. The plaintiffs sued an assortment of public and private entities seeking recovery for the costs of removing hydrocarbon contamination from a wetlands area. We convinced the Court to uphold the dismissal of all CERCLA claims against our client, who was the prior owner of the property. That decision, which was rendered by the en banc panel of the Court, has been the subject of extensive nationwide commentary.
     
  • We serve as counsel for a California City in CERCLA litigation relating to a lake allegedly contaminated by our client. The suit by the lake owner is against another city and county as well as private businesses.
     
  • We defended a private CERCLA action filed in U.S. District Court for the Eastern District of California. The plaintiff, a California city, claimed that our client’s shipbuilding operations contaminated industrial property on the Sacramento Delta.
     
  • We represented an agricultural cooperative and a chemical blender and filler in connection with the Purity Oil Sales and San Gabriel Valley Superfund sites.

Water Quality

  • We represent a California theme park regarding copper discharges. The park has been cited by an administrative agency for violations of its operating permits due to exceedences. We are working with the park to resolve the matter with the agency and create new systems to assure compliance.
     
  • We represent a landowner with regard to efforts to remediate extensive groundwater contamination in the South Bay area of Los Angeles County. The property was the location of an aircraft parts manufacturing plant for several decades. On and off site releases of TCE, PCE and Chromium 6 have been identified in both soil and groundwater. We acted as the client's representative in extensive negotiations with the Regional Water Quality Control Board to obtain approval for a cutting-edge in situ remediation technology.
     
  • We serve as counsel for a California theme park in Clean Water Act litigation. The matter, brought by environmental groups, claims the client discharges trash and various minerals and chemicals into a river that borders the property.
     
  • We represented a client in litigation against the State Water Resources Control Board seeking to enjoin the Board from withdrawing from an agreement to issue a No Further Action Letter with regard to Volatile Organic Compound contamination that threatened groundwater. The case was satisfactorily resolved by settlement.
     
  • We represent a California water utility company in negotiations with the EPA regarding the Omega Chemical Superfund Site. The utility is relying on our firm to determine the nature and extent of the potential damages to evaluate the possibility of suit.
     
  • We represent a property owner in a multi-defendant action brought by a public water district alleging contamination of groundwater by industrial solvents.

Air Quality

  • We represented a national telecommunications company in connection with a proposed multi-million dollar penalty by a local air pollution control district for fiber optic cable installation; successfully negotiated elimination of the penalty.
     
  • We represented paint manufacturers, dealers and contractors against various local air quality management districts and the California Air Resources Board to invalidate regulations limiting the organic compound content of architectural coatings.
     
  • We challenged the environmental, economic and constitutional appropriateness of a local air quality management district’s air permit-trading scheme on behalf of a metals industry alliance.
     
  • We obtained stipulated orders for abatement from local air quality management districts allowing continued operation, pending permit modification, for a ski resort, a cheese manufacturing facility, several metal fabricators and coaters, a wood treatment facility, an industrial bakery, and a food flavoring manufacturer.
     
  • We represented a construction company in a criminal action arising from an alleged violation of local air quality standards.

Endangered Species Act

  • We represented the San Bernardino Municipal Water Department in consultation with the U.S. Fish & Wildlife Service regarding the Santa Ana suckerfish. Our client is one of the few to be excluded from critical habitat designation proposed for this species.
     
  • We represented a recreational motorcycle club in a successful challenge to designation of desert tortoise critical habitat.

Toxic Substances

  • We represented a contractor in a case involving alleged injuries to teachers and students who were exposed to chemicals emanating from roofing system components during roofing work at several schools in a Southern California school district. We established at arbitration that the roofing system could not have caused the alleged injuries.
     
  • We obtained summary judgment for a client in a case involving the deaths of three water treatment plant workers caused by exposure to sulfur dioxide. We established that our client's product did not cause the release of sulfur dioxide.
     
  • We represented a premises owner in a case involving allegations of severe bodily injuries caused by long-term exposure to significant levels of mold. Our attorneys were successful in convincing the trier of fact that, according to the weight of established scientific evidence, mold could not have caused the alleged injuries.

Proposition 65

  • We represented the owner of a ski area in the San Bernardino Mountains in an environmental damage and Proposition 65 action. The case was successfully settled and the Proposition 65 action was dismissed.
     
  • We represented a retail distributor in a private Proposition 65 action regarding a nicotine-containing dietary supplement.
     
  • We represented one of the nation’s largest direct marketers of industrial supplies and equipment regarding numerous catalog items.

General

  • In a private matter, we represented the interests of a large multi-national entertainment conglomerate in complying with the various hazardous waste disposal/handling/storage, water quality, air quality, and storm water discharging guidelines. The client’s manufacturing arm had not complied with the governing agencies’ requirements for several reporting periods and was faced with substantial penalties. We obtained a dismissal of the pending action by the creation of a comprehensive environmental, health and safety program.
     
  • We also represent clients in cases concerning MTBE contamination of groundwater, the investigation of soil and possible groundwater contamination by Volatile Organic Compounds allegedly released by a medical device manufacturer, and the heavy metal contamination of nutritional supplements.
     
  • We represented a former lessee who was sued by a local redevelopment agency under California’s Polanco Act. The agency alleged that our client was responsible for the costs of investigating and remediating soil and groundwater contamination on industrial property.

 


 
 
Articles Authored by Lawyers at this office:

CWA Citizen Suit Dismissed Due to Itchy Trigger
, December 16, 2013
Seeking to apparently maintain priority over a local regulatory agency for its claims, an environmental group disregarded the required 60-day waiting period for its Clean Water Act (CWA) citizen suit leading to a district court dismissal and an affirmation of the dismissal by the 11th Circuit. See...

Determining the Limitations Period for a Cost Recovery Action Under CERCLA:  You Say “Remedial,” I Say “Removal”
, December 16, 2013
Last month, the Second Circuit Court of Appeals issued an important opinion that contrasted “removal” versus “remedial” activities under CERCLA, interpreting “removal” actions broadly to allow a cost recovery action to proceed, despite the defendants’...

Ignorance Does Not Excuse CERCLA Liability
, December 16, 2013
For those familiar with the strict liability rubric that is the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), it will come as no surprise that ignorance is no defense to liability. However, those less familiar may be surprised to find that a real property owner can...

Seventh Circuit Strikes down Local Government’s Stormwater Assessment Fees on Indian Lands
, December 16, 2013
In 2007, the Village of Hobart (“the Village”) passed an ordinance assessing stormwater management fees to finance the construction and operation of a stormwater management system on all land in the Village, including those owned by the Oneida Tribe of Indians. The tribe sued and the...

A Cautionary Tale for Those Seeking Cost Recovery for Petroleum
, November 12, 2013
Application of the petroleum exclusion to preempt CERCLA cost recovery claims is nothing new, but using that exclusion to preempt state law cost recovery claims certainly is. In the case of Members of the Beede Site Group v. Federal Home Loan, Mortgage Corp., 2013 WL 4778570 (D. N.H. Sept. 5,...

AB 440 Revives Polanco and Shifts Authority to Local Agencies
, November 12, 2013
On October 5, 2013, Governor Jerry Brown, signed into law AB 440, which shifts the powers redevelopment agencies once had under the Polanco Redevelopment Act (“Polanco”) to cities and counties, and to housing authorities that assume the functions of a former redevelopment agency where...

Our Water Is Going to Pot
, November 12, 2013
In Northern California, the marijuana cultivation business has increased at an astronomical rate in recent years. Pot plants are grown both on private and public lands with cultivation activities having a number of consequences: improper grading, terracing, damming, road construction,...

Supreme Court Agrees to Review Greenhouse Gas Ruling
, November 12, 2013
Following the Supreme Court’s landmark decision in Massachusetts v. EPA, 549 U.S. 497, 529 (2007), that greenhouse gasses “unambiguous[ly]” may be regulated as an “air pollutant under the Clean Air Act (‘CAA’),” the U.S. EPA promulgated a series of...

Unintended Consequences of Intentional Discharges of Pollutants are not “Accidental,” and thus Pollution Exclusion Applies
, November 12, 2013
According to the Second Circuit, the proper question to ask regarding the term “accidental” in a pollution exclusion is whether the initial discharge is intentional, not whether any later overflow or seepage was intended. Where the initial discharge is intentional, the exclusion...

Climate Change
, October 14, 2013
By the time you read this the Intergovernmental Panel on Climate Change (IPCC) will have announced that the earth is not heating up as fast as previously predicted even though the amount of greenhouse gas emissions has risen. Climate change skeptics will jump on this and proclaim that they are...

EPA Reconsiders and Invalidates Idaho’s De Minimis Water Quality Standard Exemption
, October 14, 2013
In a July 23, 2013 letter, the Environmental Protection Agency (EPA) disapproved Idaho Code § 39-3603(2)(c) as a new or revised water quality standard, in accordance with Section 303(c) of the Clean Water Act (CWA) and 40 CFR Part 131.

Future Response Costs off the Table until Right to Past Response Costs
, October 14, 2013
While clarity is not always the case with issues involving CERCLA cost recovery, the availability of future response costs is the exception. Future response costs simply are not available under CERCLA until the right to past response costs is established. Despite this clarity, a potentially...

Litigation against a Major Emitting Facility Barred by the Statute of Limitations
, October 14, 2013
Pursuant to the Clean Air Act section 165 (42 U.S.C. §7475(a)), whenever a “major emitting facility” located in certain regions carries out construction or modification, the facility is required to obtain a preconstruction permit from the federal EPA. Among the requirements...

Michigan Court Holds that Pollution Exclusion Applies Based on Emissions Violation Where Emissions Were into Insured’s Own Building Rather than Into the Atmosphere
, October 14, 2013
A pollution exclusion in a Directors and Officers liability policy will not be read to distinguish between traditional, outdoor environmental pollution and indoor air pollution for purposes of its application to a claim arising from a criminal action against the insured, says a Michigan federal...

Multiple PRP EPA Letters is Not Evidence of Separate "Suits" to Trigger CGL Coverage, and the Owned-Property Exclusion Bars Indemnity Coverage for a Mere “Threat to the General Environment,” - Eighth Circuit
, October 14, 2013
A property owner received a Special Notice Letter from the EPA, identifying it as a potentially responsible party (PRP) and demanding reimbursement of cleanup costs under CERCLA. The owner tendered the letter to its insurers, who refused to defend or indemnify the owner for the reimbursement...

Ninth Circuit Finds that Letters from the EPA Can Qualify as a "Suit" Under CGL Policy, Sufficient to Trigger Insurer’s Duty to Defend
, October 14, 2013
Stating its concern that “insurance coverage should not depend on whether the EPA may choose to proceed with its administrative remedies or go directly to litigation,” the Ninth Circuit has found that letters to a property owner from the EPA regarding contamination cleanup at a...

Standing to Pursue Claims under Clean Water Act Continues to Present Issues for Environmental Groups
, October 14, 2013
There are many cases where an environmental group has had their Clean Water Act suit dismissed for lack of standing and the dismissals do not seem to be abating. In Conservation Law Foundation v. EPA, 2013 WL 4581218 (D. Mass. Aug. 29, 2013), a collection of environmental groups challenged the...

Third Circuit Finds the Clean Air Act Does Not Preempt State Common Law Claims
, October 14, 2013
In Bell v. Cheswick Generating Station, No. 12-4216 (Aug. 20, 2013), the Third Circuit ruled, as a matter of first impression, that the Clean Air Act does not preempt state law tort claims. The decision was based on the plain language of the Clean Air Act and U.S. Supreme Court precedent.

Atypical Environmental Dispute over Mining Practices in Alaska
, October 11, 2013
An environmental group organizing to challenge a mining company’s operations in Alaska recently prevailed in overturning a lower court ruling based on California’s Anti-SLAPP statute. The Anti-SLAPP statute involves challenging legal claims that seek to silence the right to petition, or...

Proposed Updates to EPA’s Multi-Sector General Permit for Stormwater
, October 07, 2013
On September 27, 2013, the U.S. Environmental Protection Agency (EPA) published the proposed 2013 Multi-Sector General Permit (MSGP) for Stormwater in the Federal Register. The EPA is seeking public comment on the proposed MSGP over the next 60 days. The proposed 2013 MSGP Stormwater provisions...