Philip Comella is a Partner in the Litigation Practice Group and Leader of the Environmental Law and Toxic Torts Practice Group. Phil's practice spans both regulatory counseling and environmental-based litigation. With over three decades of experience in environmental law, and a focus on the solid and hazardous waste industry, he regularly counsels owners and operators of landfills, treatment facilities, recycling operations, and waste generators on compliance and permitting matters arising under the environmental laws. Phil began his legal career by spending seven years as in-house counsel for a major waste management company, where he had responsibility for hazardous and solid waste issues arising across the country.
Solid and Hazardous Waste Industry
Phil has wide-ranging and deep experience in solid and hazardous waste matters arising under the Resource Conservation and Recovery Act (RCRA), including citizen suits, enforcement actions, permitting, and compliance. He has represented generators, transporters, and fixed facilities on a myriad of issues arising under this statute and state counterparts, including solid waste, hazardous waste, TENORM (technologically enhanced naturally occurring radioactive materials), used oil, and clean-up standards. Phil has also worked on numerous PCB matters over the last 30 years, including those involving disposal clean-up requirements, dilution, and coordinated waste approvals. He has worked on multiple facets of the Comprehensive Environmental Compensation and Liability Act (CERCLA or Superfund), including defending enforcement actions, responding to information requests, negotiating ROD amendments, and heading up PRP groups. With a long history in both Superfund and Brownfields, he is experienced in applying clean-up standards across regulatory fields, and negotiating contract conditions and insurance provisions to reduce environmental liability.
Enforcement Actions and Litigation
Phil has defended clients in a broad array of enforcement actions and compliance matters brought under virtually every environmental law. These matters have ranged from claims of improper waste disposal, faulty waste characterization, and closures of treatment, storage and disposal facilities, to landfill odors, TENORM management, and unauthorized PCB treatment. He has negotiated settlement agreements on these matters with environmental regulatory agencies in virtually every EPA region and in over twenty different states. He has a long history of defending companies from toxic tort lawsuits relating to the release of hazardous chemicals, including groundwater contaminants, odors, and air pollutants, including sulfuric acid, sulfur trioxide, landfill gas, and phosphoric acid.
Landfill Gas and Renewable Energy
He has represented landfill owners, developers, and end-users on all aspects of landfill gas projects, including contract drafting, negotiation, regulatory compliance, enforcement action defense, and litigation to enforce contract rights. He also has experience with the permitting of hydropower plants under the Clean Water Act.
Environmental-Based Construction and Engineering Claims
Phil's practice also encompasses construction claims with an environmental component. For example, he has defended clients on construction claims involving mold contamination and asbestos removal. He has worked extensively in the area of classifying construction and demolition debris in numerous projects, including stadium demolition and electrical installations. He also has extensive experience defending environmental and engineering professionals against negligence and contract claims.
Landfills and Landfill Gas
Represented Michigan landfill in class action brought by neighboring homeowners seeking damages for diminution in property value and nuisance. Settled with 2000 class members.
Represented Illinois landfill in mass tort action against neighboring homeowners who claimed odor diminished home values and interfered with use and enjoyment of property. Obtained summary judgment on diminution of value claim and jury verdict on nuisance claim.
Represented different Illinois landfill in mass tort action stemming from alleged off-site odors.
- Represented landfill owner in action to terminate contract with bankrupt landfill gas developer which had history of non-performance. Obtained verdict at trial based upon developer’s failure to pay royalties and comply with environmental laws. Federal district court and Seventh Circuit affirmed.
- Represented landfill owner in lawsuit brought by State of Illinois for alleged violations of New Source Performance Standards for landfill gas emissions. Settled for $2,000 and agreement to modify gas collection system.
- Represented landfill owner in bankruptcy proceeding to approve settlement with Bankruptcy trustee over objection of major post-petition creditor. Bankruptcy court approved settlement after trial. Federal district court and Seventh Circuit affirmed.
- Represented landfill owner in proceeding to approve termination of gas collection contract and sale of assets over objection of major post-petition creditor. No appeal taken.
- Represented landfill owner (Illinois municipality and county) in State court proceeding to terminate longstanding receivership order under which receiver for bankrupt landfill gas developer exerted authority to operate landfill gas collection system over objection of landfill owner. Obtained order granting summary judgment terminating receivership and turning operation over to municipal and county.
- Represented different landfill owner in action by State court receiver for bankrupt landfill gas collection developer to take over control of gas system. Obtained summary judgment dissolving receivership on basis that collateral underlying receivership had been sold to third party.
- Represented landfill owner against separate actions by host community and State of Illinois claiming that offsite migration of landfill gas generated odors constituting a nuisance and violation of the New Source Performance Standard under Clean Air Act.
- Represented corn starch manufacturer in negotiating three-party contract with county landfill and natural gas company to substitute landfill gas for a portion of natural gas resulting in significant cost savings.
- Represented major southeastern university in contract negotiations to install and operate gas collection system at local county landfill for purposes of converting gas to energy usage and to promote carbon neutrality.
- Represented landfill owner in contract negotiations with landfill gas and renewable energy developer.
- Represent different landfill owner in contract negotiations with renewable natural gas developer.
- Defended television manufacturer against lawsuit by private landfill company which unknowingly allowed broken TV tubes from a truck accident and claimed that client failed to notify landfill that broken tubes constituted hazardous waste. Following one mistrial and three mediations, matter settled on favorable terms.
- Represented landfill owner in administrative claim proceeding in bankruptcy of landfill gas developer. Successful both in obtaining allowed claim for costs of reconstructing gas system and in objecting to competing claim of nearby hotel owner, which was upheld by the Seventh Circuit.
Represented Michigan landfill against state and federal actions for landfill gas and garbage odors. Settled federal action after agreeing to Compliance Plan.
- Represented landfill owner in negotiations to amend record of decision at adjoining Superfund site to allow for improved remedy and landfill expansion at same time.
Represented Missouri landfill in negotiating landfill gas to convert gas to pipeline quality.
Represented landfill against claim that it illegally accepted technologically enhanced, naturally occurring radioactive material (TENORM) generated from fracking operators. Assisted in negotiating clean-up order with state and also defending penalty lawsuit brought by host county.
Represented landfill owner against claim that leachate polluted river leading to contamination of drinking water of plaintiffs living downstream.
Represent Alabama transfer station against odor nuisance claims brought by neighboring homeowners. Case settled following arbitration.
- Represented used oil broker against claim that it delivered PCB-contaminated oil to used oil refinery resulting in multi-million dollar cleanup.
- Represented advertising agency in claims against former property owner and environmental consultant for undisclosed environmental contamination. Settled on favorable terms.
- Represented chemical manufacturer in two mass tort actions – each including more than 2000 plaintiffs – involving release of sulfur trioxide. Obtained summary judgment in one action and settled other case on favorable terms.
- Represented chemical manufacturer in class action arising from release of sulfur dioxide that drove residents out of their homes, damaged vehicles, and exacerbated medical conditions. Settled at class action notice stage.
- Represented chemical distributor against claim that plaintiff sustained nervous system disorder from exposure to benzene-containing products. Obtained summary judgment based on statute of limitations and product identification.
- Represented landfill owner against claim by neighboring hotel that odors decimated business and permanently reduced value of business.
- Represented landfill owner in mass tort action by neighboring residents who claimed that landfill odors caused personal injury, property damage, and diminished value of property.
- Represented landfill owner in suit and injunction by seller, which maintained responsibility for closed area of landfill, that expansion of open area encroached upon Seller's property rights. Obtained denial of injunction and dismissal of lawsuit.
- Represented landfill owner in an arbitration brought by seller of landfill that sought to assign gas rights and liabilities for active areas of landfill to new owner after having already taken benefits of tax credits and locked gas rights into long-term contracts. Obtained judgment denying assignment and ordering seller to comply with contract.
Enforcement Action Defense
- Represented oil recycler against EPA claim that it improperly accepted and treated PCB- contaminated oil and distributed processed oil in commerce.
Represented oil recycler against extensive EPCRA and SPCC claims arising.
Represented printing company against EPA enforcement action alleging that its failure to track recycle site-generated spent solvents subjected it to permitting requirement for a hazardous waste facility. Settled for 40% of demand.
- Represented food supplier that inadvertently accepted PCB-contaminated animal feed. Case involved interplay of TSCA and FDA regulations.
- Represented recycler against claim that its recycled products did not satisfy RCRA re-use standards and hence, was a hazardous waste. Settled on favorable terms with EPA.
- Represented landfill owner in enforcement action concerning inadequate Tier III test under New Source Performance Standards for landfill. Matter resolved without penalty.
- Represented used equipment re-furbisher against claim that it illegally discharged oil into sewer lines. Case settled for modest penalty.
- Represented recycler which failed to obtain state permit to operate process. Matter settled.
Represented used oil recycler against claim that it failed to properly complete and file toxic release forms under the Energy Planning and Community Right-to-Know Act. Settled for 50% of demand.
Represented used oil recycler against claim that it had failed to rebut used oil rebuttable presumption under 40 C.F.R. Part 279, making contacts of several used oil tanks a hazardous waste.
Represented used oil and solvent recycler in multiple enforcement actions involving manifesting, waste characterization, storage, transportation and siting.
- Represented general trades contractor against claim that mold-contaminated wood and faulty construction practices led to pervasive mold infestation at nursing home. Obtained favorable ruling before three-member arbitration panel.
- Represented General Contractor for "peaker" power plant against extra cost claim of electrical subcontractor. Subcontractor claimed that contract was a time-and-materials arrangement and that poor engineering drawings resulted in $7.5 million in added costs over estimated budget. Obtained partial summary judgment that contract, taken as a whole, was for a fixed fee, not time and materials. Case ultimately settled in mediation for a fraction of the original extra cost claim.
- Represented structural steel designer against claim that negligent design caused temporary beams supporting upper road deck to shift, crushing worker. Settled favorably after filing motion for summary judgment.
- Represented architect against claim that negligent design led to significant cost overruns in construction of commuter train station. Settled favorably following mediation.
Environmental Consultants and Fixed Facilities
- Represented environmental consultant against claim that its failure to identify total quantity of asbestos-contaminated siding caused purchaser to substantially overpay for building. Obtained summary judgment based on limitations of liability clause.
- Represented environmental consultant for failure to discover presence of underground storage tank during Phase I Assessment. Accelerated acquisition schedule caused consultant to issue Phase I report prior to receipt of local FOIA response, which would have revealed old underground tanks. Later assessment found tanks, property sale fell through, and lawsuit ensued. Case settled favorably in mediation.
- Represented environmental consultant for alleged negligence in advising on methods for removing fireproofing materials that created conditions for mold outbreak in university library. Case settled favorably in mediation.
- Represented environmental consultant for alleging worsening contamination during investigation of chemical release arising from train derailment. Case voluntarily dismissed following discovery.
- Represented dry cleaner for allegedly causing release of PCE that contaminated groundwater underlying shopping center and extending off-site into neighboring community, causing planned property sale to fall through. Litigation stayed pending cleanup of site under state voluntary remediation law. Persuaded neighboring community to pass ordinance barring use of groundwater for drinking, greatly reducing expected remediation costs.
- Represented soap manufacturer against RCRA citizens suit for allegedly polluting Chicago River. Case voluntarily dismissed with prejudice following Rule 30(b)(6) deposition.
Hazardous Waste and Superfund
- While in-house, worked on rulemaking comments for all phases of RCRA’s land disposal restrictions program.
Advise off-site hazardous waste facilities on compliance and defense of enforcement actions.
Defend solvent and oil recycler against claims of sham recycling.
Advise clients on e-manifest system.
Represented owner of co-disposal landfill (past acceptance of hazardous waste and current solid waste) to exempt hazardous leachate from RCRA under Clean Water Act rules.
Represented TV manufacturer in closure of hazardous waste storage pad for which the client mistakenly filed a RCRA interim status Part A application.
Advise solid waste landfill on means to ensure special waste customers do not wrongly classify their waste as non-hazardous.
Acted as head of PRP group for Indiana Superfund site in which EPA agreed to accept, as part of past costs, proceeds from insurance lawsuit.
Represented waste companies in major Superfund sites, including Cannons Engineering, Stringfellow, San Gabriel Valley, and Lake Calumet Cluster.
- Chambers-USA Guide to America's Leading Lawyers for Business - Environment: Litigation - 2018 (cited in multiple years)
- Illinois Leading Lawyers (multiple years)
- Solid Waste Management Association of North America
- “Fracking, Earthquakes & TENORM,” Air & Waste Management Ass’n., Lake Michigan States Section Newsletter (August 2017)
- "Avoiding Disputes Down the Road: The Top Ten Problems with Landfill Gas Contracts," MSW Management (September/October 2015).
- "The Unique Regulatory Niche of Electronic Waste," Gradient Trends (Spring 2014).
- "Nine Tips for Taking an Effective Deposition in an Environmental Case," ABA - Environmental Litigation and Toxic Torts Committee Newsletter, Vol. 13, No. 2 (July 2012).
- "Environmental Auditing in a Recession," Lake Michigan State Section Newsletter, Air & Waste Management Association (Summer 2009)
- "Co-Author, "Will New Illinois Right-to-Know Law Protect Communities or Stifle Voluntary Cleanups and Breed Litigation?" Seyfarth Shaw LLP One Minute Memo (November 10, 2004)
- "New Brownfields Law Clarifies Liability of Purchasers of Contaminated Property," Lake Michigan State Section Newsletter, Air & Waste Management Association (Spring 2002)
- "New RCRA Variances Stretch Remediation Options," Brownfield News (December 1999)
- "Sellers Beware: 'As is' clauses are not always what they appear," Brownfield News (April 1998)
- "Environmental Issues and Liability Considerations," Acquiring or Selling the Privately Held Company, Practicing Law Institute (1998-2011).
- "Stop Making Sense - Do 'no further action' letters provide peace of mind?," Brownfield News (November 1997)
- "Who Pays When?," Brownfield News (June 1997)
- "Let's Not Kill All the Lawyers," Brownfield News (April 1997)
- "Legal Legacy - To Move Forward on Brownfields, Governments Need to Freshen State Environmental Law," Brownfield News (Feb/March 1997)
- "HWIR: A New Era in Hazardous Waste Management?" Environmental Law Reporter News & Analysis, Vol. 26, Issue 10304 (June 1996).
- "EPA Cancels Invitations to Its Own Program: The Agency's New Hazardous Waste Combustion Strategy," Environmental Law Reporter News & Analysis, Vol. 24, Issue 10380 (July 1994).
- "Understanding a Sham: When is Recycling, Treatment?", Boston College Environmental Affairs Law Review, Vol. 20, Issue 415 (1993).
Air and Waste Management Association, Lake Michigan Section, Environmental Enforcement Under the Trump Administration – Is Objectivity Possible? (May 23, 2018).
WasteExpo, Las Vegas, TENORM: The Waste that Falls Between the Cracks (April 25, 2018).
EPA’s New E-Manifest: Understanding the Changes to RCRA’s Cradle-to-Grave System (March 28, 2018).
E-Manifest Podcast for EHS Media, BLR® – Business & Legal Resources (March 6, 2018).
“TENORM: A Crack That Falls Between The Cracks,” Lake Michigan Air & Waste Management Association (May 8, 2017).
- "Hazardous Waste Recycling - Cost Effective & Compliant Strategies," Business and Legal Resources Webinar (February 9, 2016).
- Speaker, "What Engineers Need to Know about Fracking," Professional Development Seminars (October 6, 2014).
- Speaker, "Background on PCBs and Their Impact on Illinois," PCB Workshop, Illinois Sustainable Technology Center (September 17, 2014).
- "Environmental Issues in Hydraulic Fracturing," HalfMoon Education Seminar (January 21, 2014).
- "Mitigating Environmental Liability from Construction Debris and Contaminated Soil," Strafford Webinar (December 18, 2013).
- "The EPA’s New E-Manifest: Understanding the Changes to RCRA’s Cradle-to-Grave System," Bloomberg BNA Webinar (November 19, 2013).
- "Avoiding Disputes Down the Road: The Top Ten Problems with Landfill Gas Contracts," SWANA's 34th Annual Landfill Gas Symposium, Dallas, TX (March 21-24, 2011).
- "The Definition of Solid Waste Made Easy," Chemical Industry Council of Illinois's Annual RCRA Update Seminar (November 16, 2010).
- "Fundamentals of RCRA," Solid Waste Management Association Webinar (April 2008).
- "SB 241: Illinois's Controversial New Right-to-Know Law," Seyfarth Shaw Webcast (September 2005)
- "Hazardous Waste Issues in Real Estate Transactions," The John Marshall Law School Visiting Lecturer (1997-2001)
- "Environmental Issues in Mergers and Acquisitions," Practicing Law Institute, Chicago, IL (Presented annually: 1998-2007, 2009-2011).