Edward (Ned) B. Witte

Superfund

In addition to representation of lead parties and serving in chair positions for steering committees at Superfund sites in states including Wisconsin, Illinois, Indiana, Michigan, Pennsylvania, New York, New Jersey, Vermont, Delaware, Alabama, Georgia, Florida, Texas, and California, three CERCLA sites that are reflective of Ned’s work in this area are:

Ned represented the lead Potentially Responsible Party (PRP) at the NL Industries/Taracorp smelter superfund site in Granite City, Illinois. Part of this work included negotiating the terms of institutional controls on residential properties over 100 square blocks affected by smelter-generated lead deposition, including use of the Uniform Environmental Covenants Act.

Ned represented a manufacturer in the negotiation of a consent decree to favorably resolve his client’s liability under the Comprehensive Environmental Compensation and Liability Act (CERCLA) at a site in South Central Wisconsin where the U.S.EPA had completed certain response activities and thereafter commenced cost recovery and contribution civil claims against the company under 42 U.S.C. 9607 and 9613(g)(2) based on the presence of hazardous substances in a community drinking water system. The Consent Decree did not require the client to perform any further response actions at the site and afforded full protections from contribution actions by other PRPs.

Ned has represented a co-PRP in the El Monte Operable Unit of the greater San Gabriel Valley Superfund site. Work on this matter has included coordinating with the co-PRP and jointly retained environmental consultant for design and construction of a plume containment and groundwater remediation system to include extraction, treatment and reinjection of contaminated groundwater in the shallow zone and treatment and conveyance of deep groundwater to the municipal drinking water system pursuant to the provisions of California Drinking Water Program Policy 97-005 (Guidance for Direct Domestic Use of Extremely Impaired Sources). Challenges to implementation of the objectives of the system have included the detection of “Emerging Contaminants” potentially resulting from failure of capture by adjacent remediation systems and unprecedented drought conditions in Southern California.

Transactional

Representing a seller in an asset purchase transaction, Ned coordinated the sale of multiple manufacturing facilities and a national network of service centers for a leading United States manufacturer of elevators and escalators, including pre-sale environmental site assessments and compliance audits, “triage” of conditions identified by these reviews, and the negotiation and allocation of known and potential environmental liabilities in the deal documents.

Ned represented a Michigan based purchaser of an auto parts manufacturer in Grant County, Wisconsin. Ned counseled the purchaser regarding naturally occurring elevated concentrations of lead identified during the phase II investigation, including interpretation of state of Wisconsin guidance.

Ned served as lead environmental counsel to a California investor owned utility in structuring the environmental due diligence and transfer in ownership of hydroelectric watershed properties collectively comprising 140,000 acres of land.

Enforcement/compliance

Ned represented a school district in northeast Wisconsin where a high school was constructed on property that was the prior site of a sand and gravel pit utilized for landfilling of PCB-containing paper sludge. Ned successfully self-directed a cost recovery action against the corporate successor-in-interest to the paper company that disposed the sludge and to recovery $1.9 million towards the remediation costs utilizing the Wisconsin Local Government Negotiation and Cost Recovery Procedure (Wis. Stat. §292.35). Ned is currently overseeing another matter utilizing this statute.

Ned acted as lead counsel in advising a Fortune 100 company in the identification and disclosure of conditions of noncompliance with federal Clean Air Act (CAA) standards at five of the client’s facilities, including the absence of any permits where CAA Title V and Prevention of Significant Deterioration permits were necessary. Utilizing the voluntary disclosure protocols under the United States Environmental Protection (U.S.EPA) “Audit Policy”, Ned negotiated a Consent Agreement and Final Order (CAFO) with U.S.EPA’s Office of Enforcement and Compliance Assurance (OECA) that provided for a penalty of $0 based upon cost-effective compliance alternatives proposed to U.S.EPA. In the CAFO, U.S.EPA acknowledged an otherwise potentially assessable penalty of $1.5 million in the CAFO. (U.S.EPA Docket No. HQ-CAA-2008-6001).

Enforcement/compliance

Representing the parent company of a multi-state, publicly traded company with internationally known racetracks, casinos and an online wagering company, Ned structured the environmental compliance audits of four racetrack properties and operations in multiple states and the subsequent implementation of an environmental compliance program.

Brownfields

Ned served as lead environmental counsel in advising a passenger train service corporation in regard to the proposed reuse of a Superfund site that included a closed railroad yard with industrial levels of polychlorinated biphenyls (PCBs) as a mixed residential/ retail/transportation development.

Ned has represented a Wisconsin municipality in the Fox River Valley in establishing an action against a party associated with an abandoned manufacturing facility that was deemed to present a fire hazard and was therefore the subject of a raze order. With Ned’s assistance, the municipality was able to assert the claim that the adverse party had created, exacerbated and continued nuisance conditions on the property by the party’s actions, including by allowing “scrappers” to damage and remove fire suppression infrastructure from the property. After structuring a settlement agreement to address costs of demolition, asbestos abatement and environmental repair, the site was selected by the National Basketball Associations for a development league (D-League) franchise affiliated with the NBA’s Milwaukee Bucks.

Siting

Ned lead a team of environmental lawyers in assembling and preparing the narrative for the successful applications for two, approximately 50-mile 345-kilovolt transmission lines in North Central Wisconsin designed to relieve congestion and add transfer capability in the area. The applications were the first prepared pursuant to Wisconsin Law providing for joint applications to the Wisconsin Public Service Commission and the Wisconsin Department of Natural Resources. (PSC Dockets 137-CE-122 and 137-CE-123).

In late 2014, the Board of Health of a county in East Central Wisconsin passed a motion that a wind energy system consisting of eight, 2.5 MW wind turbines constituted a “human health hazard” pursuant to state law, as implemented at the county level. Ned represented the owner of the wind farm in developing and presenting a response challenging the legitimacy of and ultimately nullifying the county body’s actions based on applicable Wisconsin law.