Harriton & Furrer, LLP
Urs Broderick Furrer, Esq. & Kimberly A. Sanford, Esq.
June 25, 2013
As major oil companies have shed stations, distributors and independent and small-chain owners/operators have greatly expanded their portfolios. According to API, major oil companies now own only about 10% of the total number of U.S. retail stations. In addition, owners of the approximately 146,000 U.S. convenience stores spend more than $600 million to address environment-related issues at those stations, including pollution prevention, control and abatement. Many of these expenses are spent on outside consultants evaluating conditions and remediating contamination.
In my more than twenty-two years of experience in working with numerous companies and technical professionals, several key factors, if implemented, can act to proactively mitigate litigation exposure thereby saving thousands if not hundreds of thousands of dollars.
Most importantly is to expect and plan for environmental litigation. Starting with this simple understanding will result in a more effective defense. Whether petroleum retailers can minimize that environmental liability depends on whether they are prepared.
Find Counsel
Your first critical line of defense is to locate, interview, and retain experienced environmental counsel. Your counsel, who need not be local, should be experienced in defending petroleum marketers and needs to understand your business. Your counsel should have experience in evaluating technical data and working closely with forensic geochemists and hydrogeologists. Successful litigation can be optimized by selecting the appropriate attorney and working with him or her to chart a proactive defense, before you have been sued.
More specifically, by working with the necessary experts, your environmental attorney can help you develop a proactive monitoring approach. Information is paramount; it is imperative that you be immediately aware of any product loss. With the right proactive monitoring plan in place, awareness of product losses occurs long before they migrate off- site, giving you critical time to respond.
With the right monitoring plan in place, you will also learn of off-site sources affecting your property before such contamination migrates into your tank field or beneath your dispensers. The right monitoring plan may enable you to successfully shift responsibility to the off-site discharger in the eyes of both the regulator and potential Plaintiffs before it’s too late. For consultants, develop a relationship with environmental counsel that can assist you in developing this proactive monitoring plan for your clients.
Further, it is essential that your attorney and the experts he or she retains work closely with the field personnel in order to ensure that relevant data is properly collected and evaluated in order to investigate all potential on-site historical and all off-site sources. Indeed, withoutthe development of an accurate site conceptual hydrologic and transport model, consultants may not have the appropriate technical awareness to protect you.
Understand Exposure
Because consultants and field personnel may be focused on collecting, compiling and reporting data to regulators in order to comply with the relevant regulatory requirements, your attorney and the experts he or she works with should oversee the field work with a focus towards mitigating litigation exposure and defending against existing and/or future claims. Indeed, your attorney and your experts should work together with the field remedial consultants to recognize key technical elements in order to avoid improper assumptions and inaccurate conclusions. For this reason, it is critical that your environmental attorney be involved from the beginning. Your counsel must work with your consultants to prepare for the potential litigation exposure you face and work with them to build a defense before you have been sued. Once you have been sued, it will likely be too late.
Simply stated, while the retention of environmental counsel and experts ahead of time may seem unnecessary and unwarranted, working before hand with them will help you make the right decisions as to data collection and analysis to better prepare for the inevitable litigation.
i Mr. Furrer is admitted to practice in New York, Connecticut, New Jersey, Pennsylvania and Massachusetts as well as the United States District Courts for the Southern, Eastern, Northern and Western Districts of New York, District of Connecticut, District of New Jersey and Eastern District of Pennsylvania and the United States Court of Appeals for the Second Circuit and is a member of the law firm of Harriton & Furrer, LLP. Mr. Furrer can be reached at (914) 730-3400 or ubfurrer@hflawllp.com.
With offices located in Armonk, New York, Harriton & Furrer, LLP, represents corporate clients in environmental, commercial and insurance defense and products liability and real estate matters. It has successfully represented numerous petroleum companies and other corporate clients in environmental matters concerning the discharge of petroleum products and other hazardous substances as well as other petroleum franchise-related issues.
Keith S. Harriton, Esq. is admitted to practice in New York and Connecticut as well as the United States District Courts for the Eastern and Southern Districts of New York and the United States Court of Appeals for the Second Circuit. Mr. Harriton can be reached at (914) 730-3400 or ksharriton@hflawllp.com.
ii Kimberly A. Sanford, Esq. is admitted to practice in New York and Connecticut as well as in the United States District Courts for the Southern and Northern Districts of New York and is an associate with the law firm of Harriton & Furrer, LLP. Ms. Sanford can be reached at (914) 730-3400 or kasanford@hflawllp.com.
This article is being provided for informational purposes only and not for the purposes of providing legal advice or creating an attorney-client relationship. You should contact an attorney to obtain advice with respect to any particular issue or problem you may have. In addition, the opinions expressed herein are the opinions of Mr. Furrer and Ms. Sanford and may not reflect the opinions of Synergy Environmental, Harriton & Furrer, LLP or either of those firms’ clients.
