Kevin M. Hogan

Represents clients in state and federal court and before administrative panels and arbitration tribunals, in enforcement proceedings and cost recovery actions brought by the U.S. Environmental Protection Agency (EPA) and the New York State Department of Environmental Conservation (DEC), and in citizen suits and private-cost recovery claims commenced under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), Resource Conservation and Recovery Act (RCRA), Clean Water Act (CWA), and New York’s Oil Spill Act. Also assists clients in defending and challenging New York State Environmental Quality Review Act (SEQRA) and other agency decisions pursuant to Article 78 of the New York Civil Practice Law and Rules.

• Successful defense and dismissal, on insufficient pleading and other legal grounds, of individual and class action personal injury and property damage toxic tort claims under various state common laws arising from alleged migration of contamination from landfill, following multiple motions to dismiss and for other relief (Bellafaire v. Town of Wheatfield, 401 F.Supp. 3d 405 (W.D.N.Y. 2019);
• Successful defense and dismissal, on insufficient pleading and pre-emption grounds, of individual and class action personal injury and property damage toxic tort claims under various state common laws arising from alleged failed remediation of adjacent landfill (Salerno v. City of Niagara Falls, ___ F.3d ___ (2d Cir. 2021));
• Successful joint defense and dismissal of state tort claims by adjacent property owner on statute of limitations and pre-emption grounds (EPK Props., LLC v. Pfohl Brothers Landfill Site Steering Comm., 159 A.D.3d 1567 (4th Dep’t 2018);
• Successful challenge of town’s failure to act with respect to telecommunications tower under Telecommunications Act of 1996 (New Cingular Wireless PCS, LLC v. Town of Fenton, 843 F. Supp. 2d 236 (N.D.N.Y. 2012));
• Successful settlement of government CERCLA claims following intervention by non-party to appear and oppose entry of consent decree (United States v. ExxonMobil Corp., 264 F.R.D. 242 (N.D.W.V. 2010));
• Successful recovery of allocable share of response costs under CERCLA following bifurcated trials on liability and response cost allocation, including an appeal, involving remediation of landfill used by chemical manufacturer and cosmetics formulator (W.R. Grace & Co. – Conn. v. Zotos Int’l, Inc., 2000 Westlaw 1843258 and 1843282 (W.D.N.Y. Nov. 2, 2000), W.R. Grace & Co. – Conn. v. Zotos Int’l, Inc., 559 F.3d 85 (2d Cir. 2009) W.R. Grace & Co. – Conn v. Zotos Int’l, Inc., 2013 Westlaw 5488939 (W.D.N.Y. Sept. 30, 2013));
• Successful settlement of neighborhood toxic tort claim involving solvent (VOC) contamination of groundwater and long-term remediation solution, following bifurcation of liability from damages (Raiport v. Gowanda Electronics Corp., 739 N.Y.S.2d 811 (Sup. 2001));
• Successful recovery of allocable share of response costs under CERCLA following corporate successor liability trial, equitable allocation trial, extensive motion practice and multiple appeals in matter involving historic manufactured gas plant operations, contamination of surface water sediments and remediation bifurcated between riparian and terrestrial components (State of New York v. Westwood-Squibb Pharmaceutical Co., 737 F. Supp. 1272 (W.D.N.Y. 1990), 767 F. Supp. 456 (W.D.N.Y. 1991), aff’d, 964 F.2d 85 (2d Cir. 1992), 981 F. Supp. 768 (W.D.N.Y. 1997), modif’d, 62 F. Supp. 2d 1035 (W.D.N.Y. 1999), and 138 F. Supp. 2d 372 (W.D.N.Y. 2000));
• Summary dismissal from private CERCLA cost recovery action (Town of Wallkill v. Tesa Tape, Inc., 1997 Westlaw 666271 (S.D.N.Y. 10/27/97));
• Reversal of dismissal on appeal following adverse bankruptcy ruling and trial court affirmance of private cost recovery and declaratory judgment claim under CERCLA (AL Tech Specialty Steel Corp. v. Allegheny Int’l Credit Corp., 104 F.3d 601 (3d Cir. 1997));

Counsels clients involved in transactions, including purchasers, sellers, lenders and borrowers, on potential liabilities identified in Phase I and Phase II Environmental Site Assessments, regulatory compliance audits, and asbestos, lead paint, vapor intrusion and mold assessments. Frequently assists clients in analyzing CERCLA All Appropriate Inquiries defenses and navigating risk associated with potential successor liabilities. Clients include publicly-held corporations, private and family-owned businesses, lenders, developers, property owners, and commercial landlords and tenants.

Under federal and state statutory and regulatory programs concerning management of solid and hazardous waste, advises clients on overall compliance, represents clients in state and federal administrative enforcement actions and voluntary remedial programs, assists clients in the preparation and submittal of Beneficial Use Determination petitions to the New York State Department of Environmental Conservation for the beneficial reuse of solid waste materials, and counsels clients on potential liabilities associated with asbestos, lead-based paint and PCBs.

Assists clients on compliance with federal and state underground storage tank regulations, including registration, overfill protection, release detection, inventory monitoring and testing requirements, and advises clients on potential liabilities associated with redevelopment of gasoline stations and other sites with existing and removed underground storage tanks.

Extensive experience counseling clients on the benefits of participating in the Brownfield Cleanup Program, including liability releases and tax credits, assisting clients in the preparation of applications for participation in the Brownfield Cleanup Program and representing clients in meetings with the New York State Department of Environmental Conservation to discuss application requirements, citizen participation, brownfield agreements, remedial investigation work plans, remedy selections, completions and liability releases.

Assists clients in preparing potential takings claims under the Fifth Amendment for litigation.