Mr. Giannotto advises and litigates on behalf of numerous domestic and international corporations and trade associations involved in hardrock mining, manufacturing and defense contracting in connection with all of the major federal environmental laws and their state analogues. These include the Resource Conservation and Recovery Act, Clean Water Act, Comprehensive Environmental Response, Compensation and Liability Act, Toxic Substances Control Act, National Environmental Policy Act, Emergency Planning and Community Right To Know Act, and Federal Land Policy and Management Act.
Mr. Giannotto was part of a team that successfully litigated the first CERCLA case brought by a State to go to trial (Colorado v. Idarado Mining Company). He has represented the mining industry or individual mining companies in connection with every significant rulemaking by the EPA or the Department of the Interior, and every significant legislative proposal by Congress, since the early 1980s relating to the environmental obligations or liabilities of hardrock mining companies.
Mr. Giannotto also litigates toxic tort and complex insurance matters. He represents insurers throughout the country in mass tort bankruptcies and in class- and mass-actions alleging insurer bad faith. He also litigates coverage disputes and disputes with governmental entities over reimbursement of insurance costs under the National Defense Projects Rating Plan. Mr. Giannotto's toxic tort cases have involved product-created toxic torts (such as asbestos-related injuries) as well as environmental toxic torts (such as releases to the environment from manufacturing facilities and Superfund sites).
Mr. Giannotto’s representations include:
Mining and Environmental
- The National Mining Association in litigation in the DC Circuit successfully upholding EPA’s determination not to impose billions of dollars of financial assurance requirements on the hardrock mining industry. Idaho Conservation League v. Wheeler (No. 18-1141) 930 F.3d 494 (D.C. Cir. 2019).
- Nevada Gold Mines, LLC in an ongoing lawsuit challenging the Department of Energy’s designation of a private facility for the long-term storage and management of mercury generated by gold producers and the user fees promulgated by DOE for such storage and management. Nevada Gold Mines v. Brouillette, No. 1:20-cv-141 (D.D.C.).
- A U.S. based multinational mining company in connection with enforcement proceedings initiated by EPA for alleged violations of the RCRA hazardous waste program in Nevada. This matter involved cutting-edge issues relating to the application of the RCRA Bevill Amendment to secondary streams from air pollution control facilities associated with beneficiation activities.
- A Fortune 50 multinational manufacturing company in connection with the investigation and remediation of a landfill site in upstate New York operated by an entity with which the client formerly did business.
- Mitsubishi Corporation and Mitsubishi Materials Corporation in connection with natural resources damages claims brought by the federal and New Mexico NRD Trustees arising out of a mining operation in New Mexico in which a Mitsubishi subsidiary was formerly a partner.
- Antofagasta Minerals (a Chilean mining conglomerate) in connection with the purchase and sale of contaminated property in Nevada undergoing reclamation pursuant to state and federal law.
- National Mining Association in connection with: (i) preparation of an amicus brief before the United States Supreme Court in Perez v. Mortgage Bankers Association (Nos. 13-1041 & 13-1042), dealing with the ability of an Agency to change its interpretation of a regulation without going through public notice and comment procedures; and (ii) briefing and argument before the D.C. Circuit In Re: Idaho Conservation League (No. 14-1149) opposing a petition for mandamus filed by various citizens groups seeking to require EPA to promulgate financial assurance requirements for the hardrock mining industry.
- Several national trade organizations in connection with preparation of an amicus brief before the Ninth Circuit on Pakootas v. Teck Cominco Metals (No. 15-35228), dealing with whether industrial air emissions can trigger CERCLA liability.
- Several multinational companies and trade organizations in EPA rulemakings and other proceedings dealing with the definition of solid waste under RCRA, legitimacy criteria that should be applied to recycling of wastes under Subtitle C of RCRA, the scope of EPA jurisdiction under the Clean Water Act and the need for increased financial assurance requirements for mining companies pursuant to Section 108(b) of CERCLA.
- Numerous manufacturing companies with respect to their obligations under the SEC’s Conflict Minerals Rule, including setting up protocols to assure compliance.
- Several mining clients in connection with proposed federal legislation, including (i) amendments to TSCA relating to mercury management, enacted as part of TSCA reform legislation; and (ii) proposed Mining Law Reform legislation and Good Samaritan legislation pending in the Congress.
Insurance Bankruptcy and Bad Faith Litigation
- A major Comprehensive General Liability (CGL) and Workers’ Compensation carrier in an adversary proceeding in federal Bankruptcy Court for the District of Delaware seeking a declaration as to whether hundreds of tort suits filed against it in Montana are barred by the channeling injunction issued as part of the Plan of Reorganization of W.R. Grace.
- A major CGL carrier in connection with defense and coverage issues relating to over 1,000 asbestos related personal injury claims asserted against BNSF Railway in Montana.
- A major CGL carrier in connection with the W.R. Grace bankruptcy, involving briefing and trial of objections to the proposed Grace plan of reorganization. Through negotiations with all relevant parties, potential coverage liability as well as liabilities arising out of over 1,000 “independent actions” brought against the carrier were resolved.
- A major CGL carrier in nationwide class action alleging bad faith and violations of Unfair Trade Practices Acts in connection with its settlements of thousands of asbestos cases nationwide, and in a separate mass action brought on behalf of hundreds of individuals claiming bad faith in connection with resolution of their asbestos claims in West Virginia.
- A major CGL carrier in the bankruptcy proceeding of an Ohio company facing potential mass tort liability due to alleged pollution emissions, and in subsequent Declaratory Judgment actions in Ohio and West Virginia regarding the carrier’s defense and indemnity obligations for any such liabilities.
- A major CGL carrier in connection with three coverage actions by insureds deriving from hundreds of personal injury and property damage claims brought against the insureds due to alleged environmental contamination in three different counties of West Virginia.
- A major aviation workers compensation insurer and government contractor in government contracts lawsuit with U.S. relating to the National Defense Projects Rating Plan.