Environmental Trial and Appellate Court Litigation

N.W. Bernstein & Associates, attorneys have more than 50 years combined experience litigating environmental actions representing both plaintiffs and defendants.  

Hazardous Waste Litigation

During the inception of the Superfund program in the early 1980s, Mr. Bernstein led the first large multiparty Superfund settlement with the Agency after the scandals that forced the Administrator from office. In 1984 and 1985 he led the first small generator cash-out anywhere in the country at the Chem-Dyne and Conservation Chemical sites. 

In 1988, as the partner in charge of the environmental group at the former New York law firm of Shea and Gould, Mr. Bernstein led the defense of the New York landfills litigation and achieved a favorable settlement for his client and several other defendants – the first major landfills settlement in the country. 

Mr. Bernstein participated in the briefing and argument in United States v. Alcan Aluminum Corp., 964 F.2d 252 (3d Cir. 1992), the first case lost by the U.S. Department of Justice at the federal appellate level on the issue of Superfund joint and several liability. Later that year he also filed the main industry amicus brief in the Second Circuit on Superfund divisibility. Also during the 1990s, he successfully represented a coalition of companies in their cost recovery action against more than twenty major utilities that had received a “free ride” from EPA at a large West Virginia PCB site. Within eleven months after Mr. Bernstein filed suit against the utilities, all but one had settled and the remaining defendant settled on the eve of trial. 

In 2013, he defeated arguments by the DOJ in the U.S Court of Appeals for the Seventh Circuit in the landmark Bernstein v. Bankert, 2013 WL 3927712 (7th Cir.), case.  His success in that case makes it easier for companies nationwide that are subject to certain types of EPA consent orders to sue other polluters, including federal polluters such as the Department of Defense, if they don’t voluntarily participate in site cleanups.  In December 2013 and again in November 2014, he filed briefs environmental matters in the Supreme Court of the United States.

In his capacity as Trustee of a New Jersey Superfund Site, Mr. Bernstein brought suit in 2017, through local counsel, against a large cable manufacturer and one of its wholly owned subsidiaries to force them to contribute to cleanup costs at a PCB and heavy metals contaminated site adjacent to the Arthur Kill. After the cable manufacturer attempted to bring in nearly 50 additional parties, which would delayed resolution of the case for several years, we were able to settle by the end of 2019, receiving for the Trust a large sum to address upland remediation costs, plus an understanding that would address certain sediment costs and provide for the future cooperation of the parties at the site.

In November 2017, Mr. Bernstein helped settle on favorable terms an action brought by ExxonMobil in 2005 against our client Electric Boat Corporation and other companies in connection with a hazardous waste site in Long Island City, Queens.  Mr. Bernstein played a significant role in the case, developing evidence that helped facilitate the settlement.

In December 2017 and in 2019, we completed back to back favorable recoveries in the Southern District of New York for our client, the White Plains Housing Authority, for contamination interfering with an estimated $300 million five building reconstruction project and creating the potential for endangering the health of residents. The cases involved two contamination plumes from each of two former gasoline stations migrating onto our client’s property. The Housing Authority recovered large sums in damages, and we forced one of the companies to remediate a portion of our client’s property thereby protecting tenants from the plume of benzene, toluene, xylenes and other chemicals that had migrated from one of the former gas stations toward a residential building.  As of March 2020, one defendant remains in the case. Summary judgment against that party is under consideration by the Court. 

Clean Water Act and Clean Air Act

Mr. Bernstein was a former Associate Counsel Special Litigation at Ford Motor Company in Dearborn, Michigan, responsible for Ford’s environmental litigation (other than automotive emissions). In that capacity he, among other things, oversaw the successful defense of EPA claims against Ford for alleged violations of the Clean Air Act at several locations. Mr. Bernstein argued the electroplating pretreatment cases under the Clean Water Act in the Third Circuit, successfully defended the Company from a threatened Clean Water Act citizens’ suit based on a claim asserted by a national environmental organization, and also negotiated settlement on favorable terms other claims for discharges, including to the Rouge River, allegedly prohibited under the Clean Water Act.  He filed extensive comments on EPA’s proposed Electroplating and Metal Parts and Machinery (MP&M) effluent guidelines challenging their applicability to companies already regulated under other regulations and guidelines. Additional comments were also filed with EPA on similar aspects of the pre-treatment program under the Clean Water Act.

Toxic Tort

With respect to toxic tort defense, Mr. Bernstein obtained summary judgment for a primary third-party defendant in a major lead inhalation case related to the reconstruction of Grand Central Terminal and obtained a dismissal of a second toxic tort (environmental exposure) case. He was also successful in heading off potential litigation arising out of claims that cutting and breaking of wall board and the application of joint compound involved potential carcinogenic risk to construction workers and claims that mineral wool fiber used in various types of insulation, including in the aircraft industry, posed risks similar to asbestos.