Mr. Mounteer’s practice has particular emphases in the energy sector, financial disclosure of environmental liabilities, and the treatment of environmental liabilities in bankruptcy.
Mr. Mounteer routinely helps buyers and sellers, lenders and borrowers, and landlords and tenants identify, quantify, and apportion environmental liabilities that arise in business and real estate transactions. He oversees the investigation of site conditions, helps clients avail themselves of statutory defenses to liability, assists in quantifying potential liabilities, and negotiates and drafts contract terms relating to the sales and purchases, leases, and financings. Mr. Mounteer’s article “Environmental Risk: 10 Myths” Commercial Investment Real Estate 23 (Nov.-Dec. 2011) distills 25 years of experience helping clients with their transactions and financings.
Mr. Mounteer helps businesses comply with state and federal rules controlling air emissions, water discharges, waste management, and clean up contaminated properties.
He also represents businesses before Congress and federal and state agencies in a wide range of environmental, health, and safety matters.
In 1982, Mr. Mounteer came to Washington to work for Congressman Gillis Long, from Louisiana's 8th Congressional District.
In 2013 and 2014, Mr. Mounteer advised in connection with more than thirty acquisition and financings in the extraction and production, oil field services, and electricity generation sectors, including M&A and private equity acquisitions, bank representations in leveraged finance transactions, and debt and equity offerings. In 2013 and 2014, some of Mr. Mounteer’s M&A and private equity transactions included:
- representing the seller the in sale of its drilling fluids business;
- representing a Korean conglomerate in environmental aspects of acquisition of 50 percent stake in a coal-fired power plant in Chile, which included (1) evaluating environmental due diligence prepared by consultants and Chilean local counsel (e.g., compliance with Chilean air emission guidelines, disposal liability for coal-combustion residuals, wastewater discharges into—and withdrawal from—adjacent coastal bodies, and RPS compliance), and (2) reviewing and revising the stock purchase agreement’s environmental terms;
- and representing energy sector private equity fund in connection with environmental aspects (diligence and acquisition agreement drafting) in acquisitions of three oil field services businesses.
Mr. Mounteer’s 2013 and 2014 bank representations on energy sector leveraged finance transactions included:
- advising with respect to private equity fund’s acquisition of a 50% stake in fleet of coal and natural-gas fired power plants in Florida, Pennsylvania, Nevada, and California, including due diligence review of environmental disclosures and markup of stock purchase agreement for the acquisition of its stake. Key environmental issues included: (1) coal mine closure and coal combustion residue management; (2) air permitting compliance, including allowance trading under CAIR and the APR; and (3) exposure to future regulatory risk as to GHG emission regulations, CCR disposal, wastewater management, and mercury/air-toxics regulation;
- advising with respect to an independent power producer’s bid for ownership interest in fleet of fossil fuel power plants, a private equity fund’s bid for two coal-fired plants in Pennslyania, and a private equity fund’s bid for six gas-powered power plants in Georgia;
- advising on the environmental liability risks associated with private equity fund’s acquisition of off-shore oil and gas extraction business, including $2.4 billion in disclosed well-decommissioning costs;
- reviewing and assessing existing environmental diligence prepared in connection with a private equity firm’s acquisition of a multi-state gathering pipeline system by a private equity firm; and
- advising with respect to a strategic merger of oil and gas exploration and production businesses, which involved: (1) legacy environmental liability for divested operations, (2) extensive litigation and claims for contamination and natural resources damage from historical operations, and (3) impacts to company operations from new and developing state and federal environmental regulations impacting oil and gas exploration and production businesses, including hydraulic fracturing disclosure regulations, BLM permitting, disclosure, and well-casing requirements, and EPA rules tightening restrictions on air emissions.
Mr. Mounteer’s 2013 and 2014 energy sector debt and equity offering representations included:
- conducting targeted diligence into the evolving and ever-more stringent state and federal regulations governing power plant air emissions, including greenhouse gases, as well as wastewater discharges and disposal of coal ash waste of a fleet of fossil-fuel power plants located across the U.S. in connection with a bond-offering by a wholesale electric energy generation company;
- diligencing wastewater disposal, air emissions from drilling, contingent liabilities for releases of hazardous substances and petroleum, and the emerging regulations related to hydraulic fracturing in connection with the offering by an independent exploration and production company focused on the acquisition and development of unconventional oil resources in the onshore U.S. Gulf Coast;
- advising a producer and developer of advanced-biofuels (with direct-operator and toll operations in Minnesota, Colorado, and Texas) on a strategy for responding to the lender’s environmental due diligence requests (including (1) toll manufacturing liability under CERCLA; (2) air permitting compliance issues related to emission testing; and (3) NPDES-permitted stormwater discharges leading to subsurface contamination) in connection with the secured convertible debt refinancing;
- advising the joint book-runners in connection with the bond offering for an offeror that stores and markets gas and oil in subsurface geologic formations ($575 million of senior notes) on the offeror’s: (1) exposure to future regulatory compliance risks as to EPA air regulations for oil and gas storage operations governing VOCs; (2) environmental management system viability; and (3) liability for past spills, releases, and non-compliance conditions (including criminal matters); and
- revising IPO language pertaining to state solar and wind regulations for an alternative energy producer.
Mr. Mounteer’s other energy transactional work includes:
Mr. Mounteer advised four applicants with five applications for Department of Energy loan guarantees on the environmental aspects of their applications. Department of Energy environmental staff used his work product for one applicant for a loan guarantee for a concentrated solar project as its model for subsequent applications. With a Washington office colleague, Mr. Mounteer co-authored the definitive article on environmental review in connection with the loan guarantee program: “Environmental Review of Energy Projects Seeking Recovery Act Loan Guarantees” BNA Environment Reporter 1210 (May 22, 2009).
In connection with one of the applications for a DOE loan guarantee for one of the world’s largest solar photovoltaic electric generating facilities, Mr. Mounteer shepherded the endangered species and habitat protection aspects of the project. The development of this project, with DOE-supported financing, involved complicated applications of the National Environmental Policy Act, the federal Endangered Species Act, and their California state counterparts. The work involved extensive advocacy and packaging of voluminous environmental data (e.g., drafting the Environmental Assessment) in order to take the client through the process of environmental reviews and species consultations necessary to secure a loan guarantee, local permits, and biological approvals for this project.
Mr. Mounteer assisted the project developer in all environmental regulatory aspects of development operation, and sale of electric power and Renewable Energy Credits from a 185 MW wind project in Idaho. The work included: working with all levels of government to assure the project satisfied species and habitat protection laws; working with technical consultants on the pre-construction avian studies to assure that the project would not “take” any protected bird species; assuring the projects secured all necessary local land use authorizations and abided by the terms of those authorizations; assuring the projects satisfied California legal requirements to qualify the “renewable energy credits” it generates to meet California renewable portfolio standard requirements; and negotiating environmental aspects of the contractual undertakings related to the project (e.g., equity capital contribution agreement, power purchase agreement, operations and maintenance agreement). Mr. Mounteer has explained California’s rules for using out-of-state renewable energy credits to satisfy California’s renewable portfolio standard in “California Welcomes Out-of-State Renewable Energy, Sort of” Electric Light & Power (May 25, 2011).
Mr. Mounteer was engaged to assist a wind turbine manufacturer contemplating financing the sale of its equipment to a project sponsor in identifying environmental risks attendant to the financing. This included reviewing construction and land use authorizations and the sponsor’s satisfaction of species protection laws.
Mr. Mounteer advised a regional natural gas distributor in connection with its right to make “green” marketing claims with respect to landfill gas it purchased by contract. The project sponsor (not the landfill owner) that sold our client the landfill gas claimed that our client, the purchaser of the gas, did not acquire the right to identify the source of the gas (i.e., from a landfill) under the governing contract. Mr. Mounteer advised that we did not share the project sponsor’s view and that the law that might segregate “environmental attributes” from the gas simply did not apply to this transaction.
On yet other transactions involving energy assets, Mr. Mounteer has:
- designed and executed the environmental diligence and purchase agreement drafting for the acquisition of pipelines and terminals from Citgo;
- advised a bidder for two coal-fired power plants and a natural gas facility, assessed current and pending regulations, compliance issues, and enforcement history and assisted with analysis of control options and future compliance costs;
- provided a full range of environmental advice (diligence and contract drafting) to international power generating company in auction of $1.7 billion in merchant power generation portfolio of eight, fossil-fuel powered plants from New England to California’
- advised a utility on structuring the acquisition of shuttered coke battery to avoid succeeding to residual liability (exceptions to asset purchase defense, direct and derivative environmental liability, diligence design, and appropriate care for bona fide prospective purchaser defense);
- drafted environmental provisions for purchase and sale agreement and provided counsel on the transfer of permits associated with the sale of turbines from a coal-fired power plant;
- assisted in the environmental diligence of, and drafted asset purchase agreement environmental provisions (access, representations, covenants, indemnities) for, the acquisition of $110 million of pipeline and fuel storage capacity from a major integrated company, including counseling on the application of, and compliance with, Department of Transportation rules governing pipeline integrity management for high consequence areas and response plans for onshore transportation-related oil pipelines;
- developed and assisted in the execution of an environmental diligence plan for a potential financial acquirer of natural gas storage facilities (natural formations) in the southeast U.S. and drafted stock purchase agreement environmental provisions; and
- developed a comprehensive spill liability exposure assessment for a client that buys, sells, trades, and transports chemical and petrochemical products, including a review of all applicable sources of federal statutory and common law liability for chemical and oil spills and examined available means of limiting liability, including insurance products that could apply to the client’s operations.
For nearly three decades, Mr. Mounteer has helped clients quantify their contingent environmental remedial liabilities. For one client, this involved dozens of multi-party Superfund sites at which final remedies had not yet been selected and the client’s proportionate share not allocated. For another, it involved scores of underground storage tank cleanups in various stages of progress.
Mr. Mounteer has written SEC 10K disclosures for clients in a variety of industries. He has guided them through the thicket of making climate change-related disclosures in a time of evolving science and regulation. With colleagues, he published a leading article on the topic: “Disclosing Effects of Climate Change in Energy, Financial Companies’ 10-K’s” BNA Daily Environment Report B-1 (Mar. 3, 2008).
Mr. Mounteer has also helped clients account for contingent liabilities associated with asset retirement obligations. He shared some of his thinking in this regard in his article: “FASB 141(R): Substantial Additional Process, Little New Substance, in Buyer’s Accounting for Typical Environmental Loss Contingencies” BNA Environmental Due Diligence Guide (Sept. 2008).
Mr. Mounteer managed the environmental aspects of one of the largest public company bankruptcies of 2001. In this connection, he handled environmental aspects of lease rejections at contaminated properties, resolved pre- and post-petition claims, and assessed situations that would meet injunctive “imminent and substantial” standard, and thus not be “discharged” as “claims” but be visited on the re-organized entity.
Mr. Mounteer assessed the impact of General Motor’s Chapter 11 reorganization on two clients’ interests. One client had been identified as a “potentially responsible party” at several Superfund sites at which GM was also so identified. The client wanted to know what claims, if any, it would have against “new GM” for off-site arrangements for disposal from “old GM” facilities. Another client bought a business from GM over a decade prior to GM’s bankruptcy filing. GM continued to perform underground storage tank release cleanups at several client sites. Mr. Mounteer advised the client on its liability to continue cleanups at such sites if “old GM” stopped conducting them.
On behalf of an entity vested with assets after emergence from bankruptcy, Mr. Mounteer responded to government investigation and established that the entity bore no liability for a Superfund Site, at which the government expected to spend $285 million but had identified only 65 potentially responsible parties. Mr. Mounteer’s argument relied on both bankruptcy and successor liability arguments.
Business and Real Estate Transactions
In transactional matters, Mr. Mounteer has overseen the due diligence and agreement drafting on scores of commercial property acquisitions (by purchase or lease) and financings, including supervised environmental due diligence, reviewed Phase I environmental assessments and determined compliance with the “all appropriate inquiry” rule; drafted and negotiated purchase and sale agreements and credit agreement, including warranties, representations, and indemnification clauses contained in such agreements; and reviewed outstanding contractual obligations of selling corporations and renegotiated such contracts to facilitate closing when necessary.In 2013 alone, Mr. Mounteer counseled clients on the environmental aspects of over 80 transactions ranging in value between tens of millions and multiple billions of dollars. In 2013, he advised on over 20 real estate acquisitions and financings, 11 strategic mergers and acquisitions and divestitures, five sales and acquisitions by four private equity firms, and 10 banks in 35 leveraged finance and debt/equity offerings.
Mr. Mounteer led the environmental diligence team for one of Japan’s largest residential developer’s acquisition of a U.S. public employee pension fund’s interests in 28, large-scale, multi-family developments throughout the U.S. The developments were in a variety of stages of development from not yet entitled to nearly built out. The diligence review involved sorting the properties into four categories ranging from those with no material environmental issues to those for which there were inadequate disclosures, with recommendations for further diligence. Material issues included such things as the risk of subsurface contamination and substantial going-forward compliance obligations with respect to wetlands and/or species protections.
Supporting the firm’s national real estate practice, Mr. Mounteer led on the environmental component of a major real estate portfolio acquisition for a large private equity firm. The portfolio included a variety of real estate holdings, including large shopping centers, ground leases, rail road rights of way, and former military bases undergoing redevelopment for mixed use purposes. Mr. Mounteer’s work involved designing and overseeing environmental diligence tailored to each of five categories of assets, including supervising three national environmental consulting firms. The transaction was on a very fast track, and Mr. Mounteer digested reams of data in a very brief period. He developed and reported its findings in a streamlined manner. He also participated in drafting the environmental aspects of all transaction related documents (e.g., asset purchase agreement, credit agreements, and environmental indemnity agreements to support credit agreements).
Mr. Mounteer represented a real estate asset management firm that typically identifies shopping mall investment opportunities for a large public pension fund and takes a percentage of equity in those deals. In this case, the client was investing its own money in a mixed use development in a central California town. Our client’s potential partner, for 5 percent of the venture, had already acquired the land, for six million dollars, with a limited environmental indemnity from the seller. Our role was to help our client assess the environmental risk attendant with the development to determine whether to proceed with the investment.
For a deal that closed at the end of June 2010, Mr. Mounteer assisted the nation’s largest rental car company in all environmental aspects of the acquisition of thirty licensee locations in nine states. The work included: identifying operating locations that should be subject to environmental site assessments; engaging and overseeing a consultant to conduct such site assessments; designing a diligence program to investigate the petroleum storage and dispensing compliance of the licensee operations; designing and overseeing a diligence assessment of selected other compliance matters (spill prevention, control, and countermeasures, and stormwater management); negotiating all contractual environmental provisions; and advising on contingent liabilities.
Mr. Mounteer supervised all environmental regulatory aspects of the sale solid waste management assets that Republic Services was forced to sell as a result of its merger with Allied Waste Systems. The assets included nine landfills, 10 transfer stations, and 11 waste collection routes. The assets were sold in 11 distinct transactions, in both asset sales and stock purchases. The work involved gathering documents and populating the environmental component of electronic datarooms, preparing and negotiating environmental components of purchase agreements, preparing corresponding environmental disclosure schedules, fulfilling state “good character” filing requirements, and attending to such permit transfer aspects of the transaction as the company directed.
Mr. Mounteer assisted the owner of an historic horse track issuing $230 million in high yield debt disclose environmental conditions in connection with its debt offering. This included revision of environmental portions of the offering circular that served as the disclosure schedule to the note purchase agreement. It also involved ensuring that the issuer had fulfilled all commitments under a settlement agreement with the State of New York Department of Environmental Conservation in connection with past wastewater releases from the property.
Mr. Mounteer assisted our Chicago office in connection with the environmental conditions associated with the sale of a century-old hospital site to the unsuccessful Chicago Olympic bid organizing committee. Environmental conditions included the hospital’s development atop the ashes of the great Chicago fire as well as historic underground fuel storage at various locations throughout the 30-plus acre site. Mr. Mounteer helped our client (the seller) understand and quantify the environmental concerns about the property that the City raised and negotiated the transactional documents apportioning the risks arising from those concerns.
Mr. Mounteer advised a large Wall Street investment bank in connection with a substantial investment in a company that develops and operates wind farms. When our client went to syndicate its investment, it encountered some concern from a Boston-based financial institution with respect to one of the operating wind farms. The wind farm was situated on top of a steel mill slag landfill. Mr. Mounteer helped the Boston financial institution understand: (1) the protections associated with the “certificate of completion” secured under the State’s voluntary cleanup program, and (2) the legal bases for determining the wind farm project company would not have statutory, contractual, or common law environmental liability.
For other transactional matters, Mr. Mounteer has:
- served as environmental counsel for over one billion dollars in acquisitions of landfills and transfer stations, including overseeing permit transfers, complying with good character disclosure requirements, conducting due diligence, and negotiating and drafting bridge agreements to enable the transactions to close prior to permits transferring;
- drafted the environmental provisions of purchase, credit, and construction agreements on a project finance for acquisition and redevelopment of paper recycling mill;
- designed the diligence approach and revised the credit agreement for loan to historic, specialty paper mill;
- advised on the manner of transferring an equity interest in a direct investment so as not to trigger New Jersey transaction-trigger environmental cleanup statute;
- oversaw environmental diligence and prepared purchase agreement provisions for a series of acquisitions for home improvement store’s building supply subsidiary branch, since sold to a consortium of private equity firms;
- provided environmental due diligence advice incident to a brewery redevelopment mixed use site in Portland, Oregon, and a high-tech-tenanted commercial real estate development in Sunnyvale, California;
- designed the environmental diligence for the acquisition of the remaining 70 acres of what had been at one time a 1,200 acre County-owned and operated reformatory. Developed an assessment plan that included validation of the seller’s demolition and abatement work, site reconnaissance, a regulatory agency file review, and limited subsurface investigations; and
- oversaw environmental diligence for an acquisition of 57,000 acres of generally undeveloped land outside Albuquerque, New Mexico, including former U.S. government bombing range and dispute with site assessment preparer over identification of “recognized environmental conditions.”
Compliance and Enforcement
Mr. Mounteer has helped commercial and industrial clients ensure their facilities’ compliance with laws governing air emissions, wastewater discharges, and hazardous waste management – and defend against alleged violations.
From July 2013 through January 2014, Mr. Mounteer represented a Southeast U.S. manufacturer of composite decking material in connection with the OSHA investigation and enforcement action arising from an industrial accident. One employee was killed and two seriously injured in a fire originating in a mixer in which wood dust and resin material are combined. Flammable materials leaving the mixer ignited dust accumulated in the area around a catwalk over the mixers. The ensuing fire caused the death and injury. Mr. Mounteer’s representation of the manufacturer included preparing all written responses to OSHA inquiries, including responses to a formal document production request, a voluntarily submitted “advocacy” piece, and responses to an administrative subpoena. He engaged leading national combustible dust experts on the facility’s behalf and counseled the company’s president and CEO every step along the way. In January 2014, the company was cited, and OSHA levied penalties of just over $100,000, far less than was anticipated. Mr. Mounteer worked with the president and CEO to prepare “abatement certifications” to resolve the enforcement action.
For over a decade, Mr. Mounteer oversaw the fuel system compliance program (i.e., leak detection, equipment integrity, SPCC, Stage II) for a national client with more than 120 fueling operations nationwide. Matters within the scope of this assignment included assessing the need for and obtaining wastewater direct discharge permits and indirect discharge authorizations, ensuring compliance with permit conditions, and defending notices of violations. In calendar year 2005, Mr. Mounteer successfully resolved nine citations or warning letters arising from inspections of twenty-eight facilities. In calendar year 2006, he successfully resolved six citations arising from inspections of fifty-two inspections.
Mr. Mounteer has a particular specialty in the area of the “definition of solid waste” and has advised manufacturers on the applicability of the RCRA hazardous waste management rules to: (1) skims and drosses from molten metal smelting, (2) potliner from primary aluminum production, (3) solvents used in manufacturing pharmaceutical actives, (4) sulfuric acid used in detergent manufacturing, (5) refractory brick from glass furnaces, and (6) bag house dust.
Mr. Mounteer wrote the Supreme Court amicus brief to which five sitting Congressmen, including the chairman of the subcommittee with jurisdiction over the Superfund statute, affixed their names in the 1998 Bestfoods case, which addressed the nature of “operator” liability under the statute. Mr. Mounteer has served as national coordinating counsel for “flow control” litigation for one of the nation’s largest waste management companies.
Beginning in 2003 and continuing for many years, Mr. Mounteer supervised the implementation of a $20 million Supplemental Environmental Project (“SEP”) for one of the world’s largest automakers. The SEP, one of the largest ever undertaken, was one element in a larger settlement with the U.S. government. The settlement involves grants for retrofitting diesel-fueled school buses. The work has included identifying, screening, and recommending a contractor, preparing a consulting services agreement, negotiating acceptance of the plan with agencies of the U.S. government, and drafting the funding agreement for grant recipients. The work also included negotiating modifications to the program with representatives of the U.S. government, resolving disputes with disappointed applicants, and working out the mechanics of certain grants in light of the increased cost of ultra-low sulfur diesel fuel and the federal extension of the deadline for its availability.
Mr. Mounteer has assisted clients in the pharmaceutical, consumer product, confectionary, design and implement compliance audits for their facilities air emissions, water discharges, and waste management for their manufacturing facilities.
Among the other compliance advice, Mr. Mounteer has:
- counseled an international manufacturer in assessing the applicability of the new source review/prevention of significant deterioration rules at nine facilities at which furnaces had been overhauled;
- counseled an international glass maker and a detergent manufacturer on the extent to which hazardous waste management rules applied to its recycling of secondary materials (“definition of solid waste”);
- advised a primary metal industry trade association in connection with federal agency rulemaking related to whether waste management rules applied to secondary material processes;
- developed and oversaw the implementation of hazardous waste management policy for fourteen U.S. manufacturing facilities owned by one of the world’s largest privately held confectionary manufacturers;
- counseled a private contractor operating at a government-owned facility to assess compliance obligations arising from the government’s requested expansion of waste management services;
- designed the means by which a contract service provider at a major brewery could fulfill obligations imposed under both environmental laws and the brewery’s environmental policy; and
- provided counsel to a pharmaceutical manufacturer in (1) how to properly manage waste generated from its solvent recycling process, including an analysis of the application of the “derived from” rule to the residue of its process; (2) the permissibility of treatment of reactively characteristic waste in open containers without a treatment permit; (3) the permissibility of down-the-drain disposal of ignitable “characteristic” waste under the “domestic sewage exclusion”; and (4) application of the “generator treatment exemption” to certain waste management operations.
Mr. Mounteer has defended numerous environmental enforcement actions, including:
- obtained a preliminary injunction enjoining the enforcement of a Wayne County, Michigan solid waste ordinance, which by requiring out-of-state and foreign jurisdictions to adopt bottle deposit laws comparable to Michigan's, violated the Commerce Clause;
- defended a former manufacturer of optical instruments in more than a dozen toxic tort actions filed in federal and state court in Western New York for injuries allegedly caused by the manufacturer’s disposal of wastes in a municipal landfill;
- represented three former owners of a glass manufacturing facility in a private contribution action in Maryland against a fourth former owner, Mr. Mounteer succeeded in obtain a settlement against the fourth owner for its share of costs;
- negotiated a settlement for the defendant at a fraction of the plaintiff’s initial contribution demand after filing a motion for summary judgment against the plaintiff on the grounds of contractual indemnity; and
- assisted in the negotiation of a “no prosecution agreement” with the Assistant U.S. Attorney for Richmond in connection with the threatened corporate criminal prosecution of a government contractor road builder (U.S. subsidiary of a British firm) arising from allegations involving deliberate discharge of construction material into a reservoir; prepared two exhibits to the agreement, which the government accepted without change: one committed the U.S. subsidiary to carry out an environmental management system akin to ISO 14,001 but tailored to their business for their U.S. operations, the other committed the Company to conduct multi-media environmental audits of a particular construction project and to share findings with the government.
Mr. Mounteer has helped many companies responsible for the costs of cleaning up contaminated properties under federal and state clean up laws.
In 2013, on behalf of the developer client considering buying bank-owned real estate, Mr. Mounteer (i) assisted the developer client assess the risk in redeveloping a former marine oil terminal for residential use, (ii) advised on legal and environmental regulatory requirements to change land use, and (iii) negotiated a remediation agreement with the former property owner, a Fortune 50 oil and gas company. The property became bank-owned when, in 2007, the immediately prior owner, who had purchased the property from the oil and gas company had developed a row of town house on a portion of it, became insolvent. The bank insisted on selling the property “as is.” In connection with the client’s technical experts, Mr. Mounteer first assisted the client get comfortable with existing environmental conditions and the ability to clean up the property for residential use. When the prior owner became insolvent and stopped developing the property, the prior oil and gas company owner imposed land use restrictions prohibiting the property’s residential use. The oil and gas company imposed these land use restrictions, because it had not fulfilled its legal obligations under the Connecticut Property Transfer Act obligations. Connecticut Property Transfer Act triggers environmental cleanup obligations at the time of transfer. The oil and gas company had intended for the prior developer to fulfill these obligations. The bulk of the work involved negotiating an agreement with the oil and gas company to lift the land use restrictions that would have prevented the property’s redevelopment for uses other than commercial or industrial.
For fifteen years, Mr. Mounteer represented a Fortune 200 manufacturer in connection with fifty, multi-party Superfund sites from New England to California. The procedural aspects of his representation have included consent decree, unilateral order, and de minimis settlement agreement negotiations; defense and prosecution of third-party claims; and service on many executive and allocation committees of groups of potentially responsible parties. Substantively, his practice in this area has included such issues as remedy selection; consistency with the National Contingency Plan; “sale of a useful product” defenses; successor, parent corporation, municipal, and toll manufacturing liability; natural resource damages assessment; and contractual indemnification.
For over a decade, Mr. Mounteer oversaw the remediation of releases from scores of petroleum underground storage tank cleanups for a client with over one hundred domestic fuel storage facilities.
In 2010, Mr. Mounteer represented a client that sold a century-old institution to a municipality and, as a condition of the sale, agreed to remove personal property, fixtures, and buildings from the site. In the course of demolition, materials were improperly managed and mercury released at the project site. Mr. Mounteer advised the client in responding to the release, including removal actions and communications with the government.
Mr. Mounteer counseled the project manager for the redevelopment of a historic light industrial district into higher end retail space to prepare a request for proposals for renovation of the property. This involved prioritizing the concerns identified through diligence into specifications for contractors’ bids, including which concerns demanded investigation and specific proposals for corrective measures and which concerns did not need to be addressed.
Legislation and Rulemaking
Mr. Mounteer advised a regional pipeline company in connection with EPA’s proposed rule for geologic sequestration under the Safe Drinking Water Act’s Underground Injection Control Program. This work included surveying the major comments filed by various industry groups, private companies, government agencies, and non-governmental organizations with respect to: (1) injection depths, (2) waivers for higher injection depths, (3) treatment of existing Class II wells, (4) post-closure site care, and (5) construction and operation standards.
On behalf of a client in the business of recycling a secondary material, Mr. Mounteer provided advice on the validity of proposed legislation that would have imposed different reporting requirements on transporters of shipments of the secondary material to management facilities located out-of-state as opposed to in-state management facilities. He concluded that the proposal would likely fail under the “strict scrutiny” test, because there was likely a less restrictive means of burdening interstate commerce, unless in-state management facilities might be required to report comparable information to what the legislation asked transporters to report. He then helped the client to re-draft the legislation to avoid the infirmity yet achieve its business objective.
Mr. Mounteer has prepared testimony for witnesses representing business interests at Congressional hearings. He represented a coalition of companies seeking an amendment to the Superfund statute to more clearly define the scope of liability under the statute. He represents one of the nation’s largest waste management firms in connection with Congressional consideration of legislation to confer authority on states to restrict the interstate movement of solid waste.
Mr. Mounteer has represented industry interests in the development of new environmental, health, and safety rules at the federal level. On this front, he has:
- represented the owner/operator of a Michigan landfill that accepts waste from Toronto and surrounding metropolitan area before U.S. Executive Branch agencies (EPA, USTR, State) and the Embassy of Canada; participated in industry trade association legislative efforts; and developed the legal strategies under the “dormant Commerce Clause” and international trade agreements underlying those efforts;
- assisted manufacturers of laundry detergents address the potential impact of proposed drinking water regulations on their product formulations;
- prepared comments on an EPA “land disposal restriction” rulemaking that resulted in greater clarity in EPA rules governing the non-waste status of the skims and drosses processed by certain secondary metals processors;
- petitioned the U.S. EPA for a change in the definition of the Clean Air Act “hazardous air pollutant”, which resulted in the U.S. EPA’s adopting the client’s proposed definition;
- prepared comments on proposed wastewater pretreatment standards for an industrial source category for a national industry trade association fearful that such standards would have a disadvantageous competitive impact on their industry;
- assisted a metal industry trade association respond to an EPA proposal to require health and safety testing on hazardous air pollutants for emissions in large part generated by that association’s member companies;
- developed a strategy for seeking a nationwide “de-listing” of a waste classified as hazardous by EPA rules and generated in a specific industrial process; and
- in the area of product regulation: (1) advised Japanese maker of photocopiers on the permissibility of using post-industrial plastic scrap to meet California minimum-recycled-content rigid plastic container requirement for its toner cartridges, (2) provided counsel to two overseas manufacturers of consumer electronics on compliance with state laws governing recycling and disposal of products containing hazardous substances, and (3) advised the NYSE acquirer of a privately held cleaning product maker on the target’s non-compliance with State phosphate labeling laws.