Larry's practice focuses on administrative and judicial proceedings under the Clean Air Act, the Comprehensive Environmental Response Compensation and Liability Act ("CERCLA"), the Clean Water Act, the Toxic Substances Control Act, the Surface Mining and Reclamation Act, corresponding state legislation, environmental insurance coverage claims, toxic tort claims and various issues relating to public sewers and water supplies. He also counsels clients on a wide range of regulatory and transactional issues.
Environment and Natural Resource Litigation Experience
CERCLA (Superfund) and Related State Legislation: Defense of claims for response costs and clean-up orders by the EPA and the Army Corp of Engineers, including sites involving former Department of Defense installations. Prosecution of contribution actions and participation in allocation proceedings including the EPA's Pilot Dispute Resolution Program. Successes include the Supreme Court's decision Pennsylvania v. Union Gas, 491 U.S. 1 (1989) (CERCLA evidences intent to hold states liable in damages in federal court). His experience includes researching historical evidence of contamination, working with fate and transport models, co-mingled plumes, landfills, solvent degreasers, and leaking gasoline tanks. Successfully resolved settlements for future response costs by using provisions in Section 122f(6)(B) of CERCLA allowing settlements without reopeners for future response costs. Most recently Mr. Demase successfully obtained a decision from the United States Court of Appeals for Eighth Circuit establishing how a private party who had entered into a cleanup agreement with EPA had to seek contribution for its response costs. Morrison Enterprises v. Dravo Corporation, 638 F.3rd 594 (8th Circ. 2011, cert denied October 3, 2011).
Enforcement and Penalty Actions: The defense of government enforcement actions resulting from the failure to obtain permits for the modification of a major source of air pollution, violations of air pollution control permits, failure to obtain water discharge permits, violations of requirements to maintain discharge monitoring reports and violation of permit effluent limitations, failure to obtain permits to deposit fill in wetlands, the overloading and by-pass of municipal sewers and treatment facilities. He is familiar with policies and rules governing the calculation of civil penalties and has successfully negotiated many favorable settlements in the form of consent decrees or administrative orders.
Environmental Permits: Appeals before the Pennsylvania Environmental Hearing Board by permittee and citizen groups. Mr. Demase is currently defending an appeal for a permit issued to a natural gas processing plant by a citizens group which has alleged that the plant's air emissions should have been aggregated with another source to make it a major source.
Citizen Suits: The defense of citizen suits under the Clean Air Act and Clean Water Act for violation of particulate and opacity standards, sulfur dioxide emission limitations and clean water effluent limitations. He is familiar with the permissible scope of the citizen suit, the statutory "diligent prosecution" provisions, and the right to attorneys' fees and the use of mitigation projects in lieu of penalties. His successes include dismissal of a citizen suit for failure to comply with a consent decree. As part of the resolution of these cases, he has obtained agreements from federal and state agencies not to pursue penalty claims of their own.
Rulemaking: The challenge of rules under the Clean Air Act and the Clean Water Act, including those involving best available control technology determinations, new source permitting, hazardous air pollution, non-compliance penalties, stack height limitations, visibility protection and sulfur dioxide fine particle (PM 2.5) non-attainment designation. As a result, he is experienced at oral advocacy in the Circuit Courts of Appeal, record review and brief writing.
Toxic Tort and Property Damages: Toxic tort and property damage claims based on the discharge of air pollutants, and releases of hazardous pollutants into the air, soil and surface and groundwater. Examples of his cases include the defense of class actions for injuries suffered from contaminations of public water distribution system, claims for damage to personal property from particulate emissions from a power plant and personal injuries from the release of emissions from railroad tanker cars carrying petroleum by-products.
Environmental Insurance Claims: Obtaining insurance coverage for environmental damages under historic primary and excess liability policies and claims for reimbursement under cost-cap insurance. His settlements with insurers and declaratory judgments total more than $200 million.
Contractual Indemnities: Damage claims against environmental consultants for failure to adequately identify environmental conditions in in-site assessments; claims for damages against sellers for undisclosed environmental conditions and disputes over distribution of environmental escrow accounts.
Sewer and Water: Disputes involving intermunicipal sewage service contracts, upstream and midstream natural gas companies, sewage tapping fee determinations and rate overcharges.
Environmental Criminal Indictments: Larry teams with the firm's criminal lawyers to investigate and defend criminal indictments, assist in pleas bargains and to use agreements to assess and remediate as settlement tools.
Larry's litigation clients have included electric utilities, iron and steel manufacturers, petroleum refiners, chemical producers, Chapter 11 bankruptcy debtors and creditors, glass manufacturers, lime producers, metal recyclers, landfill operators, environmental engineering consultants, municipalities and municipal authorities, as well as various trade associations. He has represented clients in the state courts of Pennsylvania, Ohio and West Virginia and in the United States District Courts throughout the Midwest and the eastern United States, the Circuit Courts of Appeal for the Third, Fourth, Fifth, Eighth, Tenth and the District of Columbia and in the United States Supreme Court.
Counseling and Transactional Experience
Larry has counselled his clients on virtually every environmental regulatory requirement affecting the business community. He assists the firms energy, private equity, merger and acquisition and real estate groups in the design of appropriate contractual provisions for their deals and negotiates protocols for performing environmental due diligence in connection with those transactions and evaluates the results. He has reviewed and evaluated environmental assessments involving multiple facilities at diverse locations in the United States, Canada and Mexico, including facilities in states with super lien laws and water treatment facilities accepting wastewater from natural gas producing facilities. He is experienced in using insurance to replace traditional indemnity provisions to cap clean-up liability and as part of a program allowing business to remove environmental liabilities from their financial statements. He has evaluated and negotiated environmental claims under various forms of contracts, warranty and indemnification provisions. He has negotiated and drafted the environmental provisions of stock and asset purchase agreements, leases, indemnity agreements, releases and other documents. He helps clients understand the pros and cons of alternative provisions and different structures for doing business. He has helped clients design audit protocols, directed and assisted in the compliance review process, evaluated third-party auditor findings, and assisted clients in identifying and disclosing violations to EPA in an appropriate manner.
Larry has participated with clients in making site selection decisions for the location of new plants by analyzing a diverse range of environmental factors from satisfying requirements for emission reduction credits to the availability of process water. He has obtained Prospective Purchase Agreements from EPA, advised clients on qualifying as bona fide purchasers under CERCLA or meeting the test for innocent landowner and contiguous property owner defenses and obtained liability protection for buyers of contaminated property under various state programs. He was involved in the first transaction in Pennsylvania to negotiate the terms of a conditional purchase of Pennsylvania emission reduction credits. He has helped clients trade credits under the SO2 and NOx allowance programs.
Larry is helping clients understand the potential impact of greenhouse gases legislation in the RGGI states, the European Union and the requirements for creating and trading voluntary carbon emission reductions on the Chicago Climate Exchange.