David Michelman has been active in the field of environmental law for more than 35 years. He is recognized for his ability to take a leadership role in litigating or settling Superfund cases involving multimillion dollar cleanups of landfills. He is often asked to serve as Liaison Counsel and/or Common Counsel, to represent the common interests of large groups of parties. In this role, he has successfully steered such cases away from expensive, uncontrolled litigation, toward a managed, cost...
David Michelman has been active in the field of environmental law for more than 35 years. He is recognized for his ability to take a leadership role in litigating or settling Superfund cases involving multimillion dollar cleanups of landfills. He is often asked to serve as Liaison Counsel and/or Common Counsel, to represent the common interests of large groups of parties. In this role, he has successfully steered such cases away from expensive, uncontrolled litigation, toward a managed, cost effective ADR process that is used as a model for other sites. He negotiates de micromis and de minimis settlements designed to get individual parties out of these cases at an early stage. He also participates in global settlement negotiations, on behalf of all of the remaining parties, to settle all of the federal or state governments' claims against them.
His practice also involves counseling clients on environmental compliance issues, permitting and real estate transactions, and representing them in litigation involving landfill cleanups and natural resource damage claims, air quality and asbestos management issues, soil and groundwater discharges from ongoing manufacturing operations, disturbances of wetlands, leaking underground storage tanks, stormwater management problems, violations of the Emergency Planning and Community Right-To-Know Act and FIFRA, and toxic tort claims for property damage and personal injuries.
He has developed innovative ways of settling litigation (and reducing fines and civil penalties) through funding EPA-approved Supplemental Environmental Projects, including: (1) an EPCRA education and training program which provided compliance seminars to the business community and general public in Puerto Rico, as part of the first multi-party settlement that EPA ever entered into under EPCRA; (2) a pollution reduction plan under which a graphics design company completely changed its operating process to phase out all use of a regulated hazardous substance over a three-year period; and (3) a shellfish restoration and pollution reduction project to re-seed 2.5 million clams to replenish Barnegat Bay, New Jersey's shellfish population and to remove nitrogen and other nutrients from this marine estuary.
In 1974, while he was with the Natural Resources Defense Council (NRDC), he participated in focusing nationwide attention on the destruction of the ozone layer of the upper atmosphere, by bringing lawsuits against various federal agencies to seek a ban on aerosol spray products containing chlorofluorocarbons. Thereafter, during more than a decade of public service with the District Attorney of Philadelphia, he helped found the field of environmental criminal law, developing and supervising criminal prosecutions for the illegal storage and disposal of hazardous, industrial, municipal and infectious wastes. David Michelman was responsible for bringing the first criminal prosecution in Pennsylvania under the state's Racketeer Influenced and Corrupt Organizations (RICO) statute, against a hazardous waste transporter who bribed city employees to dump more than 1.5 million gallons of toxic waste at the Enterprise Avenue Landfill. As a result of this investigation and prosecution, the City of Philadelphia successfully cleaned up this site, and was able to persuade the U.S. Environmental Protection Agency to make this the first Superfund site to be removed from the National Priorities List (NPL).
Superfund (CERCLA) Litigation Over Sites Contaminated With Hazardous Substances:
- Combe Fill South Landfill (Chester, New Jersey): I served as court-appointed Liaison Counsel for 120 generators in the Combe Fill South Landfill CERCLA litigation, coordinating their disparate interests, in an ADR allocation process, two mediation processes, and settlement negotiations with the federal and state governments. I supervised my group's participation in extensive informal discovery, through an ADR Process supervised by a court-appointed neutral which involved 75 depositions, and used the ADR Process results to negotiate five private party de micromis settlements allowing 60 of my group members to cash out of the litigation early. In a mediation with the governments, I developed a negotiating strategy to coordinate and promote the common interests of the landfill operators, generators, transporters and municipalities. I prepared briefs and presented arguments on key defenses such as the statute of limitations and consistency with the NCP, and challenges to the state's NRD formula and substantive demands. We eventually negotiated a $99 million settlement of the governments' demands for $200 million for response costs and natural resource damages. I then supervised my group's participation in another mediation process to allocate the settlement amount among all of the parties, and participated in drafting a consent decree and establishing escrow accounts to fund the settlement. We also identified 50 other PRPs and raised $3.5 million from these non-parties without actually suing them, in a separate de minimis settlement.
- Burlington Environmental Management Services (BEMS) Landfill (Southampton, New Jersey): I serve as court-appointed Liaison Counsel for 70 transporters in state cost recovery litigation under the New Jersey Spill Act, over $30 million in past clean-up costs and NRD's (and undetermined future costs) for the BEMS Landfill. In cooperation with the other Liaison Counsel, I have implemented an ADR Process supervised by a court-appointed neutral. I have directed a major effort to identify and bring additional parties into the case, increasing the number of ADR participants to from fewer than 50 to 200, and have coordinated deposition discovery against opt-out parties. I have supervised the participation of my Group in informal discovery in this ADR Process, including participating in 20 depositions of former landfill employees and environmental consultants. We have streamlined the ADR Process by temporarily modifying it into a less structured mediation process in order to seek an earlier settlement with the state.
- Combe Fill North Landfill (Mt. Olive, New Jersey): I served as Liaison Counsel for 10 generators in a state cost recovery action under the New Jersey Spill Act for remediation of the Combe Fill North Landfill. I negotiated a $1.1 million dollar settlement for this Group as part of an overall settlement of $10 million for clean-up costs and natural resource damages.
- Sanitary Landfill/Cinnaminson Groundwater Contamination Site (Cinnaminson, New Jersey): I served as common counsel for 25 generators, transporters, and adjacent landowners in a private CERCLA cost recovery/contribution action over the cleanup of a site encompassing a landfill (Sanitary Landfill), and surrounding industrial properties (the "Cinnaminson Groundwater Contamination Site"). I helped direct efforts to identify and join additional parties into the case, coordinated discovery efforts on behalf of the Group, and took depositions of former landfill owners, operators, and employees. Through motion practice, we obtained the dismissal of Section 107 cost recovery claims. SC Holdings, Inc. v. AAA Realty, Inc., 935 F. Supp. 1354 (D.N.J. 1996)
RCRA and Other Enforcement Litigation Involving Solid and Hazardous Wastes:
- Enterprise Avenue Landfill (Philadelphia, PA): As an Assistant District Attorney for the Philadelphia District Attorney's Office, I conducted the investigation and prosecution of numerous hazardous waste haulers and City of Philadelphia employees in connection with the illegal disposal of thousands of drums of chemicals at a City landfill and bribery of municipal employees. See, e.g., Commonwealth v. Clarence Walker, 298 Pa. Super. 387, 444 A.2d 1228 (1982). The prosecution of the owner of one hauler, ABM Disposal Company, involved the first use of the Pennsylvania Racketeering and Corruptly Influenced Organizations (RICO) statute in prosecuting environmental crimes. I also assisted the City of Philadelphia in a private cost recovery action against the generators of these chemicals (City of Philadelphia v. Stepan Chemical Co., 544 F.Supp. 1135 (E.D. Pa. 1982), and the City's voluntary cleanup of this site was the first completed clean-up ever approved by EPA under Superfund.
- Manfred DeRewal/Environmental Chemical Control Co., Inc.: As an Assistant District Attorney for the Philadelphia District Attorney's Office, I conducted the investigation and criminal prosecution of Manfred DeRewal and Environmental Chemical Control Co., Inc. for the illegal disposal of hazardous wastes. This case involved emptying 3,000 gallon tanker trucks of concentrated nitric and sulfuric acid directly and indirectly into the Delaware River, and the improper storage of hundreds of drums of chemicals. I also assisted the U.S. Attorney's Office in its parallel federal prosecution, which resulted in the first criminal conviction for an offense under the Clean Water Act.
- Illegal Construction and Demolition Waste Site (Philadelphia, PA): I represented a contractor facing criminal charges under Pennsylvania's Solid Waste Management Act for dumping construction and demolition debris at an unpermitted site. I negotiated a guilty plea to a lesser offense, with a sentence of probation. I obtained DER approval for a remediation plan for the site, and supervised its remediation. (I arranged for the fine which they were allowed to work off through a remediation project at another site.) I prevented the contractor from being debarred on future City contracts, and the forfeiture of over one million dollars' worth of trucks.
- Solvent Waste Disposal Site (Pottstown, PA): I represented a corporate officer of a business which manufactured dump trailers for the solid waste disposal industry, in civil and criminal litigation. This involved a criminal prosecution for illegal storage and disposal of waste solvents and federal court litigation of a fraud/RICO action seeking rescission of the $14 million purchase of that business (due to non-disclosure of the illegal disposal of waste).
- Plating Waste Disposal Site (Hatboro, PA): I represented the owner of a metal plating facility in negotiating a resolution of his civil and criminal liability from the discharge of heavy metals into a public sewer system and into the ground, and the abandonment of drums of wastewater sludge and plating wastes.
- Leaking Shipping Container (Port of Rotterdam, the Netherlands): I represented a chemical exporter in a criminal investigation under RCRA arising from the leakage of chemicals from a shipping container, during transit from the U.S. to Nigeria, which caused a $1 million Euro cleanup. This investigation focused on whether these old chemicals were legally shipped, as a salable "product" for the dyeing industry, or were actually "waste" that was improperly exported without a permit for disposal.
- Waste Oil Processing Facility (Philadelphia, PA): I represented a waste oil processing facility and its president in permit proceedings with the PA Department of Environmental Protection and a criminal prosecution by the PA Attorney General's Office, over operating the facility without a permit. I obtained the first permit ever issued by DEP for a waste oil processing facility, and kept the company operational through negotiated guilty pleas which placed the company and its president on probation.
Emergency Preparedness/Community Right to Know (EPCRA):
- I served as lead counsel for 5 manufacturers in Puerto Rico who were assessed over $1.2 million in administrative civil penalties by EPA over reporting violations for storage of hazardous chemicals. I negotiated the first multi-party settlement which EPA had ever entered into under EPCRA, for a minor fine ($90,000) plus implementation of a $210,000 Supplemental Environmental Project ("SEP") to provide EPCRA education and training program for the business community and general public in Puerto Rico.
- I served as counsel for a graphics design business which was assessed civil penalties for failure to report use of hazardous chemical. I negotiated a settlement which implemented a Supplemental Environmental Project to change the facility's production process, to completely eliminate its use of the hazardous chemical (nitric acid).
Water Pollution Permitting and Enforcement and Wetlands:
- I represented a manufacturer in an EPA civil penalty action under the Clean Water Act for failure to comply with stormwater discharge notification, monitoring and reporting requirements.
- I represented the owner of a commercial property in administrative permitting proceedings and federal and state court citizen-suit litigation that sought injunctive relief and civil penalties for improperly placing fill in wetlands without a permit and discharging excessive amounts of stormwater into these wetlands. After an administrative appeal, the New Jersey Department of Environmental Protection changed its position andretroactively issued a wetlands permit, legalizing the activity in the wetlands. Issuance of that permit was successfully upheld. In the Matter of Review and Revision of the Decision to Deny Freshwater General Permit No. 7, (N.J. Sup. Ct. App. Div., Dkt No. A-4593-06T1, 2/6/09).
- I represented a developer against EPA's claim that he had destroyed wetlands by excavating land to build a pond, and settled these claims for a $100 administrative civil penalty, after demonstrating that the property had not been regulated wetlands.
Air Pollution Permitting and Enforcement of the Clean Air Act:
- I resolved a civil penalties action by the Pennsylvania Dept. of Environmental Protection against a printing company for initiating construction of a New Source prior to issuance of permit. I obtained Clean Air Act New Source Review plan approval for the emissions from installation of the new rotogravure printing press at this facility. I also obtained an administrative permit amendment for a plan approval for emissions from a parts washing unit (which was part of the facility's Title V permit).