John F. Cermak

John Cermak's practice focuses primarily on judicial and administrative litigation, contaminated sites, environmental, health and safety counseling, and the environmental aspects of real estate and corporate transactions. John litigates CERCLA cost-recovery actions, citizen suits under the Clean Water Act and the Resource Conservation and Recovery Act, environmental common law tort actions, Clean Water Act penalty actions, toxic tort suits, appellate court challenges to agency rulemakings, and proceedings before administrative agencies. He also represents clients in complex multiparty Superfund cost recovery actions.

John regularly counsels clients on federal, state and local environmental laws relating to water quality, air quality, hazardous and solid waste, health and safety, soil vapor investigations, environmental audits, release reporting, and environmental compliance. Moreover, he handles the environmental aspects of the purchase and sale of real property, including review of Phase I, II, and III environmental site assessments, the negotiation of environmental representations and warranties, and indemnity agreements. John also has extensive experience in the environmental due diligence aspects of corporate mergers and acquisitions.

Experience

Environmental Litigation

John handles state and federal trial and appellate litigation under virtually all of the major federal environmental laws, and similar state laws, as well as laws unique to California. His experience, which is at both the trial court and appellate level, ranges from briefing and arguing complex hazardous waste and toxic exposure issues to prosecuting and defending complex governmental enforcement actions seeking civil penalties and injunctive relief. In addition, he has represented clients in lawsuits alleging common law causes of action relating to environmental contamination of property, such as nuisance, trespass, negligence, and ultra-hazardous activity and in toxic tort suits. Examples include:

• Defend client (an aerospace company) as the former lessee of multiple industrial properties occupied at various times from the 1950s to 1990s in cost recovery action brought by property owner under California’s Hazardous Substances Account Act and common law causes of action.
• Defend class action toxic tort suit (as co-counsel with a large national firm) brought against aerospace company asserting common law claims of negligence, nuisance and trespass as a result of groundwater contamination and associated vapor intrusion, and property damage claims.
• Defend paper company in CERCLA cost-recovery action seeking over $1 billion in costs relating to PCBs in river and lake sediments extending down an 80-mile stretch of river.
• Defend toxic tort suits by homeowner relating to contamination associated with former wood treatment facility.
• Defend manufacturer in a CERCLA cost recovery action involving one of largest contaminated groundwater basins in the United States used for drinking water.
• Defend client against "citizen suit" action brought by the State of Ohio seeking injunctive relief and civil penalties pursuant to RCRA and the CWA.
• Brief and argue petitions for review challenging rules issued by the United States Environmental Protection Agency (EPA) pursuant to CERCLA, RCRA, CAA, CWA, TSCA and the SDWA in federal appellate courts throughout the country.
• Prosecute and defend cost-recovery actions under CERCLA and equivalent state statutes, such as California's Superfund law known as the Hazardous Substances Account Act, in courts throughout the United States, for clients in variety of industries, including oil refiners, chemical manufacturers, automobile manufacturers, paper manufacturers, hazardous waste transporters, and paint manufacturers.
• Defend clients in enforcement actions by federal and state agencies, including EPA, the Occupational Safety and Health Administration, Department of Toxic Substances Control, the regional water quality control boards and the air quality management districts, seeking injunctive relief and civil penalties.

Environmental Counseling

John regularly counsels clients under federal, state and local environmental laws on a wide range of topics. Examples include:

• Assist clients on compliance with wastewater treatment industrial user permits, air permits, and hazardous waste permits.
• Advise client on federal and state self-auditing and associated self-reporting requirements for manufacturing facilities across the United States.
• Advise clients on release reporting requirements relating to both recent and historical releases.
• Advise clients on liability because of its status as an arranger, generator or transporter of waste, or because of its status as a lender, trustee, shareholder or parent.
• Counsel clients on the applicability of air, hazardous waste and water quality regulations, and permitting.
• Advise clients on applicability of hazardous waste and recycling laws to certain operations.
• Counsel clients on remediation and closure requirements.
• Counsel clients on health and safety requirements, including OSHA investigations, closing conferences and citations.
• Assist clients in developing test protocols to determine compliance of products with Proposition 65.
• Assist clients on insurance coverage disputes.

Contaminated Sites

John represents clients at contaminated sites, including complex Superfund sites (and state equivalents). The sites range from contaminated groundwater basins with multiple operable units, to large-scale landfills, contaminated sediment sites on rivers and creeks, including some with multiple operable units and extending 80 miles or more, and contaminated sites with commingled groundwater plumes extending beneath large geographic areas. Examples include:

• Represent clients at various contaminated groundwater basins designated as federal Superfund sites, including various operable units in the San Fernando Valley Superfund Site and the San Gabriel Valley Superfund Site.
• Represent paper company at multi-party Superfund site in Michigan stretching 80 miles down the Kalamazoo River.
• Represent paper company at multi-party Superfund sites with PCB-contaminated sediments in rivers and lakes in Wisconsin.
• Represent client at a Texas Superfund site along a river involving historical disposal of paper mill waste.
• Represent chemical manufacturer and aerospace company at one of the largest Class I landfills in the United States.
• Defend client against imminent and substantial endangerment orders issued by various EPA regions, including Region V, Region VI, and Region IX, and State of California’s DTSC, and Cleanup and Abatement Orders issued by California Regional Water Quality Control Boards, with regard to contaminated sites.
• Represent aerospace manufacturers in preparing litigation strategy for defense of cost recovery action, including supervising preparation of technical defenses which include site assessment studies to identify off-site contaminant plumes at a contaminated site.
• Routinely advise clients on potential lender, shareholder and parent-subsidiary liability with regard to contaminated sites.
• Advise clients regarding settlement options, including de minimis and mixed funding settlements at contaminated sites.
• Advise clients on and litigate insurance coverage issues for environmental claims with regard to contaminated sites.
• Represent clients in various mediations/arbitrations at large multi-party contaminated groundwater basin sites.

Environmental Aspects of Real Estate and Corporate Transactions

John regularly carries out due diligence reviews, including review of Phase I, II, and III environmental reports and the negotiations of environmental representations and warranties, and indemnities. In addition, he has litigated many of the issues that can arise under those provisions. Examples include:

• Perform environmental compliance audits for clients, including major chemical manufacturer, nutritional health company, eyeglass manufacturer, aerospace component manufacturer, drill rig manufacturer, gear manufacturer and metal forming operations.
• Advise clients on environmental aspects of corporate transactions, including business acquisitions, reorganizations, lending activities, bankruptcy, SEC disclosure, and real estate development and transfers.
• Participate in Phase I and Phase II due diligence reviews of numerous industries, including zinc manufacturer, photo developers, printing companies, steel manufacturer, health care provider, and soundproofing material manufacturer.
• Perform environmental audit of abandoned pesticide plant on behalf of lending institution.
• Advise clients on successor liability issues associated with acquisition of corporate assets.
• Advise clients on property transfer disclosure laws.
• Negotiate representations and warranties and indemnities provisions of stock and asset purchase agreements.
• Draft Phase I and Phase II scopes of work for bid requests to environmental consultants.
• Negotiate consulting agreements, including insurance coverage and indemnity issues, with environmental consultants.
• Conduct due diligence and negotiate environmental provisions in real property transactions.