Litigation & Enforcement Defense

Nijman Franzetti lawyers are litigators as well as environmental attorneys who understand environmental science. Our attorneys exhibit exceptional capabilities both inside and outside the courtroom and at the negotiation table. Our attorneys are subject matter experts. We understand the interface of chemistry, biology, risk, and the law. We partner with scientific experts or other firms that need environmental assistance. And we ultimately simplify complex material to present to judges and juries. We have litigated and/or defended enforcement actions across the United States, Puerto Rico, and the Virgin Islands.

Our litigation practice includes the following categories:

• Enforcement and litigation, including the defense of alleged violations brought by USEPA, states and local entities; prosecuting or defending litigation involving federal environmental statutes, such as CERCLA and RCRA; and handling contaminated property disputes between private entities;
• Toxic Tort Litigation, including cases involving PFAS, benzene, asbestos, chlorinated solvents, metals, radiological materials, petroleum and other hazardous or toxic substances;
• Product Liability Defense that involves chemicals or chemical-containing products; and
• Environmental crimes and investigations

Nijman Franzetti has a record of success in helping clients determine how best to approach and manage enforcement defense in an efficient and strategic way. Each of our environmental litigators also performs compliance consulting for clients, enabling them to identify the best methods to confront an enforcement matter and achieve compliance swiftly. If compliance is not easily achievable, we go to court or administrative bodies to obtain a variance or to defend based upon technical, procedural or legal defenses.

In the non-enforcement setting, we represent both plaintiffs and defendants in contaminated property disputes (including Superfund, citizen suits and contractual indemnifications) between predominantly corporate entities. Our knowledge of environmental remediation methods and regulations allows us to determine the most effective approach to resolution. We often defend matters brought by USEPA, the Department of Justice, and state attorneys general. Many of these cases include claims involving the common law, such as negligence, nuisance and trespass.

For all our enforcement and litigation matters we call upon our relationships with experts in a range of fields, including investigations and remediation; contaminant fate and transport; air modeling; exposure assessments; epidemiology; genomics; toxicology; chemical engineering; microbiology; general medicine; appraisals and economic damages; historic manufacturing and industrial practices.

Our attorneys are well versed in litigating toxic tort and chemical-product liability matters. We work closely with environmental experts in such cases to develop a scientific analysis of alleged exposure, particularly involving injury or property damage due to migration of or exposure to toxicants or hazardous substances. Our attorneys have employed several tools to win these types of cases, including conducting scientific studies to disprove exposure and/or toxicity in a specific setting; using genomic testing to prove a lack of exposure, causation, or damages; relying on Daubert or Frye to challenge and exclude key expert testimony; and using MDL proceedings to impact a wider portfolio of claims.

In cases involving an environmental crime, we often partner with criminal lawyers who come from the US Attorney’s Office or Attorney General’s office. We provide the necessary expertise on the environmental regulatory and/or scientific aspects of a matter, while the criminal attorney provides the experience with criminal judges and statutes.

Noteworthy and recent matters handled by our lawyers include:

• Served as environmental litigation counsel to a waste company in a toxic tort case involving alleged property damage due to the historic operation of a landfill in Wisconsin. We tried the case before a state court jury during a seven-week trial with a verdict for our client and no damages awarded to the plaintiffs. (12th Circuit, Waukesha County, Wisconsin). The verdict was upheld on appeal.
• Defeated USEPA at trial and on appeal in a federal court CERCLA matter, with the lower court finding and court of appeals affirming that the USEPA acted in an “arbitrary and capricious manner” and forcing USEPA to pay the client’s attorneys’ fees. United States v. Tarkowski (N.D. Ill.) (7th Cir.).
• Successfully defended a metal plater in PFAS multi-party litigation by a public water supply entity in federal district court in West Virginia in Weirton Area Water Board and City of Weirton v. 3M et al. (N.D. West Virginia, Civil Action No. 5:20-CV-102).
• Prevailed in a first-of-its-kind lawsuit brought against the State of Illinois to recover response costs with respect to violations of the Illinois Environmental Protection Act involving a Superfund Site in Illinois.
• Acted as environmental co-counsel on behalf of a chemical company in a jury trial in the northern district of Illinois regarding alleged breach of contract and fraud claims arising from the purchase of a chemical plant in Illinois. After an eight-week trial, the jury awarded approximately $41 million to our client.
• Obtained a defense verdict for an industrial manufacturing client in a contaminated property damage case in federal court involving a breach of contract claim and allegations that client violated environmental laws.
• Represented a Michigan energy company to challenge USEPA’s interpretation and enforcement of an Administrative Order on Consent concerning a $200 million CERCLA cleanup on Lake Michigan.
• Successfully excluded environmental experts in case pending in Colorado federal court involving allegations of contamination stemming from historic operations.
• Represented large city involving criminal allegations that its wastewater treatment plants knowingly violated federal environmental laws. Presented evidence to convince the USEPA’s Criminal Investigation Division to drop the case.
• Representing potentially responsible party in one of the oldest Superfund matters in the United States in a contribution and cost-recovery claim against a third party. Using forensic fingerprinting, chemical fate and transport, and other scientific methodologies to demonstrate that the third party disposed of the hazardous material decades ago
• Represented various clients in cases challenging the reach of the Clean Water Act, including the federal government’s NPDES, Total Maximum Daily Load (“TMDL”) and wetlands programs.
• Currently representing chemical manufacturer in RCRA and tort case involving radiological materials allegedly spread across Niagara Falls.
• Represented manufacturer and its parent in RCRA and toxic tort litigation in both federal and state court involving the alleged migration of contaminants into neighboring wells. Settled both suits on favorable terms and currently working with the Illinois Environmental Protection Agency and other parties on cleaning up the contamination.
• Defending client against demand letter from NYSDEC seeking order to investigate offsite contamination in Buffalo NY related to possible successor liability; continue to manage legacy cleanup.
• Defending client in an enforcement case filed by the Illinois Attorney General for alleged releases of hydrofluoric acid impacting nearby residents and related permit violations.
• Represented railroad in a series of toxic tort well contamination lawsuits in Montana. Team successfully scaled back the type and number of claims through a Lone Pine Order.
• Served as national coordinating counsel for client on asbestos litigation.
• Represent numerous clients in PFAS toxic tort litigation, including a large petroleum manufacturer in a case in Madison County, Illinois, making the unique claim that multiple products caused his cancer – PFAS, asbestos, and cigarettes.
• Represent client in response to IEPA NOV for two PFAS firefighting foam releases at Decatur, IL facility in 2022.