About Thomas L. Van Wyngarden
Tom Van Wyngarden has successfully defended many Fortune 100 companies against claims involving the release of hazardous chemicals and alleged violations of state and federal environmental laws. He also represents clients in connection with regulatory investigations and litigates allegations of workplace safety violations. Tom has established a long record of success in high-stakes, high-profile and highly publicized environmental matters, including the largest appeals to ever come before the California Occupational Safety and Health Appeals Board (Cal OSHA).
Trusted on high-stakes environmental issues
Clients repeatedly trust Tom to guide them through situations with potentially severe business implications. Fortune 100 energy companies call on him when accused of violating environmental statutes. He also represents major energy clients in regulatory investigations initiated after industrial fires, explosions or routine inspections — and successfully defends them in related litigation. For major retailers, Tom defends claims brought under California's Unfair Business Practices Act and Proposition 65 and provides environmental compliance counseling.
Underlying all of Tom's work is a deep understanding of the technical subject matter, his clients' businesses and their motivations. He seeks to resolve all matters efficiently, and all of those factors impact the approach he takes in any given dispute. Representing an energy client before the Cal OSHA, for instance, Tom’s understanding of the client's business made it apparent that one seemingly inconsequential citation would have required the needless annual replacement of certain valves at a cost of millions of dollars a year. With so much at stake, he put on a vigorous defense — and won.
In addition to his significant litigation experience, Tom is also well versed in the fields of epidemiology, toxicology, contaminant fate and transport, health risk assessment, groundwater and air dispersion monitoring, and drinking water distribution, having worked extensively with nationally renowned experts in these disciplines. He has provided expert testimony regarding the justification and reasonable resolution of related mass tort litigation.
- Defense of claims involving alleged violations of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), the Resource Conservation and Recovery Act (RCRA), the Clean Air Act (CAA), Risk Management Plans (RMPs), the Clean Water Act (CWA) and the Petroleum Marketing Practices Act (PMPA)
- Defense of alleged workplace safety violations
- California’s Proposition 65 and Unfair Business Practices Acts
- Responding to Process Safety Management (PSM) and Program Quality Verification (PQV) investigations by the US Environmental Protection Agency (EPA), the US Chemical Safety Board (CSB), the Occupational Safety and Health Administration (OSHA), the Air Quality Management District (AQMD) and other state regulatory agencies
Chevron | National Consent Decree
Tom Van Wyngarden led the Katten team which represented Chevron USA in connection with a nationwide civil settlement with the Department of Justice, Environmental Protection Agency (EPA) and Mississippi Department of Environmental Quality that effects operations at all Chevron US petroleum refineries. Initiated as a result of hundreds of alleged findings issued by EPA under the Clean Air Act Risk Management Program, Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), and Emergency Planning and Community Right-to-Know Act (EPCRA) following its Risk Management Program (RMP) inspections of all Chevron's US refineries, this matter involved EPA's Regions 4, 8 and 9 and had been ongoing for four years. Tom was the lead negotiator throughout the pendency of this important negotiation, and the District Court approved the parties' negotiated Consent Decree in March 2019. The value of the settlement is approximately $200 million and was one of the company's most important pending matters.
Burbank Superfund Site
Tom represents Ralphs, The Kroger Company and Food4Less (collectively, Ralphs) in connection with ongoing Superfund matters in the vicinity of their Distribution Center in Glendale, California (Distribution Center).
- The Superfund site involves contaminated groundwater covering an area of roughly 6,680 acres in Los Angeles and Glendale, near the Crystal Springs Well Field. Approximately 50 public drinking water supply wells are located within Area 2.
- Historically, solvents were widely used in the San Fernando Valley by a wide array of industries, including aerospace and defense manufacturing, dry cleaning, metal plating, and machinery degreasing. In 1980, concentrations in groundwater of volatile organic compounds, including trichloroethylene and perchloroethylene, were found to be above federal and state standards for production wells.
- In the mid-1980s, it was determined through an extensive groundwater monitoring program that a large percentage of the groundwater supply in the eastern part of the San Fernando Valley was contaminated. As part of an interim remedy, in 2000, a 5,000-gallon-per-minute treatment plant began operation. The plant is funded by the Glendale Respondents Group and operated by the City of Glendale with EPA oversight.
- The EPA is also investigating the presence of hexavalent chromium in groundwater. In 2007, EPA established the Glendale Chromium Operable Unit to characterize chromium contamination within Area 2 and select an appropriate remedial action. A remedial investigation was initiated in 2011. Activities are being led by the EPA, with assistance from the California Department of Toxic Substances Control (DTSC) and the Los Angeles Regional Water Quality Control Board, with the investigation being performed by several PRP groups.
ExxonMobil | Torrance Cal OSHA 2015 Fire Appeal
Katten represented ExxonMobil in connection with its defense against 19 citations issued by Cal OSHA following the highly publicized explosion at the Torrance refinery on February 18, 2015. The citations alleged violations of California's workplace safety regulations and included six "serious willful" citations. Lead counsel Tom Van Wyngarden represented the company in its appeal of the 19 citations before the Occupational Safety & Health Appeals Board.
Following a dispute with the Division regarding the discoverability of the Willful Elements Worksheets, ExxonMobil received a favorable decision from the Appeals Board finding that the willful worksheets are not protected and required their production by Cal OSHA. Following this interlocutory determination, and after several years of litigation, Tom negotiated a very favorable settlement for the Company—all six willful designations were withdrawn, 11 of the 19 citations were vacated, and the classification of many of the remaining eight citations were downgraded.
Chevron | Richmond Cal OSHA Leak Seal Appeal
Katten represented Chevron USA in connection with the environmental, health and safety responses to a highly publicized August 6, 2012 fire at the Richmond Refinery located in Richmond, California. Twenty-five citations were issued as to Chevron's process safety management, incident response and leak seal procedures, many designated "serious willful" or "serious" and all of which Katten, led by Tom Van Wyngarden, thereafter appealed.
The initial hearing concerned eight citations, two of which were designated "serious willful." After a nine-day hearing, the administrative law judge reduced the penalties by almost 99 percent, vacated most of the citations, and eliminated all "willful" designations and "serious" classifications. The Appeals Board—on its own motion—overturned the Administrative Law Judge's (ALJ's) decision. Its resulting Decision After Reconsideration (DAR) reinstated many of the violations, and about half of the penalties. On Chevron's behalf, Tom filed a writ of mandate seeking to compel the Appeals Board to reinstate the ALJ's decision. During the hearing on the writ, Tom was approached by the head of Cal OSHA's Process Safety Management Division and the two negotiated a favorable settlement on behalf of Chevron, which significantly narrowed California's prior interpretation of a regulatory requirement regarding inspections and testing. The settlement agreement prevents wasteful, unnecessary and costly valve replacements that would have been required under the October 2015 DAR.
Under the terms of the March 2017 settlement agreement, two "serious" citations were reduced to "general," one "willful general" citation was vacated, and the Section 6845(a) "serious willful" citation was reduced to "general" for the two instances related to clamp repairs. The reduction of the "serious willful" citation to "general" undercuts the argument made by the Division that exposure to fugitive emissions presents a workplace safety hazard. The settlement reinstates the fact that fugitive emissions from packing material and flanges are environmental issues governed by local air quality management districts, and are not workplace safety hazards.
The Appeals Board issued a new DAR which will expressly supersede the October 2015 DAR and incorporate the terms of the settlement agreement. The new DAR will eliminate the Appeals Board's substantial loosening of the burden on the Division to establish employee exposure, "serious" classifications, and "willful" designations and eliminates adverse implications on the energy industry.
Entertainment Distribution Litigation
In connection with a highly contested business dispute for clients engaged in the entertainment distribution industry, Tom negotiated a three-panel arbitration mechanism designed to expedite resolution and conserve the parties' resources that would typically be consumed in a trial in Superior Court. Tom obtained a defense verdict on behalf of his clients following a three-week trial, and was subsequently awarded the recovery of all fees and costs, in an amount just under $1,000,000. The matter was expeditiously resolved, all claims brought against Tom's clients were dismissed, and his clients recovered all of their fees and costs.
Snyder, et al. v. City of Fallon, et al.
Tom defended Kinder Morgan Energy Partners against a class action brought as a result of the documented leukemia cluster in Fallon, Nevada. This case implicated KMEP, Naval Air Station Fallon, ExxonMobil Corporation and the City of Fallon. The cancer incidents have been the subject of congressional testimony, investigations by the Center for Disease Control and other agency investigations, The Donahue Show, almost daily news-media coverage and an award-winning documentary. Tom obtained a dismissal at the pleading stage of the litigation.
Eugenio Galaz, et al. v. United States of America, et al.
This class action followed the highly publicized leukemia diagnoses in Fallon, Nevada (the location of the US Navy's Top Gun School), and asserted claims of negligence, strict liability, nuisance and battery against the United States, fuel transportation companies, fuel refiners and manufacturers, among others. Plaintiffs asserted that the release of jet fuel and other contaminants into the environment of Fallon resulted in the diagnosis of acute lymphocytic leukemia in 17 children and sought funding for an elaborate medical monitoring and research program.
Based on plaintiffs' failure to demonstrate causation, Tom Van Wyngarden obtained a complete dismissal of the action at the initial pleading stage of the litigation following the District Court's rulings on several motions to dismiss. Plaintiffs appealed the ruling to the US Court of Appeals for the Ninth Circuit which, based on Tom's briefing and argument, affirmed the lower court's dismissal.
There were seven additional cases brought against Kinder Morgan in connection with the cancer cluster identified in Fallon, Nevada. Tom was lead counsel for the company in each of these cases—all of which were dismissed at various stages of litigation.
Allen, et al. v. McDonnell Douglas Corporation, et al.Adams, et al. v. McDonnell Douglas Corporation, et al.
Tom represented McDonnell Douglas Corporation against hundreds of personal injury and property claims brought by Rancho Cordova, California residents. These claims were based on allegations that defendants caused neighborhood exposures to ammonium perchlorate (solid rocket fuel) in drinking water via contamination resulting from rocket engine testing in the 1950s and 1960s. After vigorously litigating the matter with other defendants, a favorable, global settlement was agreed upon.
Del Monte Fresh
Tom, with another law firm, defended claims made by more than 6,000 plaintiffs—former agricultural workers resident in Honduras, Panama, Nicaragua and Guatemala—asserting the use of nematode pesticides in foreign jurisdictions caused sterility and birth defects. The numerous claims were consolidated into four cases filed in California Superior Court and, following significant discovery and motion practice, were dismissed on a variety of both procedural and substantive grounds. *
Salashour Afshin, et al. v. Browning-Ferris Industries of California, et al.
This matter presents a textbook example of how experienced counsel can successfully implement defense strategies. As initially filed, this highly publicized neighborhood toxic tort action alleged personal injuries, including cancer, emotional distress, property damage (specifically "stigma," "advertising injury" and loss of use) and fear of cancer as a result of the operation of the Sunshine Canyon Landfill located in Sylmar, California. According to the approximately 160 initial plaintiffs, their injuries were caused by exposure to airborne hazardous and biotoxic dust and debris, groundwater contamination and the contamination of Los Angeles' potable water stored in a nearby reservoir. The court issued Tom's proposed case management order early in the litigation, which required plaintiffs to respond to a lengthy and detailed questionnaire or be subject to automatic dismissal. Thereafter, the court dismissed approximately 40 plaintiffs for failure to provide responses and another 15 plaintiffs for failure timely to provide complete responses.
Depositions of the remaining 105 plaintiffs proceeded and, as anticipated, many plaintiffs voluntarily dropped out of the litigation rather than be further burdened by actively participating. Tom obtained approximately 40 such dismissals in this manner, leaving around 60 plaintiffs.
During discovery, the court granted Tom's motion for summary adjudication, dismissing in their entirety plaintiffs' claims for "advertising injury" and all permanent property damage, as well as dismissing many plaintiffs' claims for fear of cancer, emotional distress and personal injury. Further, Tom was able to limit plaintiffs' ability to proceed on the majority of their remaining claims by obtaining verified statements through discovery from each plaintiff relinquishing his or her right to make certain claims. Tom requested such claims be dismissed, and the court agreed. As a result, the few claims that remained included approximately 12 personal injury claims; 35 continuing nuisance and trespass claims; 28 fear-of-cancer claims; and 40 claims for emotional distress. At this juncture, the court set a hearing on general and specific causation pursuant to the terms of the case management order and under Cottle v. Superior Court, which required plaintiffs to demonstrate, among other things, that (1) the alleged contaminants existed at the landfill; (2) such contaminants were delivered to plaintiffs through the air, soil and/or groundwater; (3) plaintiffs were exposed to the contaminants; (4) the contaminants are able to cause the personal injuries and property damage complained of; and (5) the contaminants did, in fact, cause each plaintiff's alleged personal injury and property damage. While these hearings were pending, the court dismissed all remaining claims with prejudice.
Proposition 65 Litigation and Counseling
Tom has favorably resolved over 100 cases brought under California's Proposition 65 alleging violations of warning requirements for chemicals such as lead, cadmium, diesel exhaust, DEHP, DNIP and acrylamide, among many others. Tom regularly defends brick and mortar and online retailers, as well as product suppliers against claims brought under Proposition 65 and California's unfair business practices law, Business and Professions Code section 17200.
Tom also regularly counsels landowners regarding compliance with Proposition 65's new regulations, appropriate lease terms and conducts general Proposition 65 audits.
Connie Han v. Mobil Oil Corporation, 73 F.3d 872 (9th Cir. 1995)
In a noteworthy defense of an oil company client, Tom obtained the dismissal of claims made under the Petroleum Marketing Practices Act (PMPA) and, in so doing, established the application of a contractual limitations period to claims asserted under the federal statute. The dismissal of his client was affirmed by the US Court of Appeals for the Ninth Circuit in a reported decision affording the downstream oil industry the opportunity to negotiate (and limit) the time period under which PMPA claims may be asserted.
Alice J. Bradfield, et al. v. China Shipping (North America) Holding Co., Ltd., et al.
This toxic tort and property damage action was brought against virtually all operators at the Ports of Los Angeles and Long Beach, including shipping companies, terminal operators, trucking companies, and railroads. Tom Van Wyngarden defended clients including more than 35 vessel and terminal operators, and was appointed by the court to act as liaison counsel for all pretrial and trial proceedings. When filed, the complaint sought compensation for alleged violations of Proposition 65, personal injuries, emotional distress, property damage, and fear of cancer purportedly arising from the release of diesel exhaust and volatile organic compounds into the San Pedro and Wilmington communities surrounding the ports. Specifically, plaintiffs claimed that the construction and operation of the China Shipping Holding Co., Ltd. Terminal, vessel traffic, hoteling, terminal operations and diesel trucks resulted in the emission of diesel exhaust and other chemicals. Claims of nuisance, negligence and violation of Proposition 65, among others, were asserted in the initial complaint and plaintiffs pursued the recovery of punitive damages.
Tom unified the defense on behalf of more than 120 defendants and filed various motions attacking the pleadings. Following several favorable court rulings, the claim for punitive damages was dismissed, as well as claims under theories of negligence and violation of Proposition 65. Significantly, plaintiffs' personal injury claims were also barred. As a result, plaintiffs dismissed all trucking and shipping defendants in their entirety. The case against terminal operators remained only on a theory of common law nuisance seeking property damage, which was also subsequently dismissed.
Joint Consolidated Groundwater Cases in CaliforniaSantamaria, et al. v. Suburban Water System, et al. Anderson, et al. v. Suburban Water System, et al. Brooks, et al. v. Suburban Water System, et al. Alexander, et al. v. Suburban Water System, et al. Alvarado, et al. v. Suburban Water System, et al. Arenas v. Suburban Water System, et al. Adams, et al. v. Aerojet-General Corp., et al. Adler, et al. v Southern California Water Company, et al. Boswell, et al. v. Suburban Water Systems, et al. Bowers, et al. v. Aerojet-General Corp., et al. Celi, et al. v. San Gabriel Valley Water Company Criner, et al. v. San Gabriel Valley Water Company Demciuc, et al. v. Suburban Water Systems, Inc., et al. Dominguez, et al. v. Southern California Water Company, et al.
These consolidated actions were brought by thousands of plaintiffs and arose out of alleged drinking water contamination throughout the San Gabriel Valley in Southern California. The cases uniformly asserted claims by residents for personal injury, property damage, wrongful death, fear of cancer, medical monitoring, punitive damages, and penalties and damages under California's Proposition 65 and Unfair Business Practices Act. More than 100 defendants were named, comprised of chemical and other manufacturers, waste management companies, and water purveyors. Tom Van Wyngarden was appointed to act as liaison counsel by other defense counsel and the court on issues concerning pretrial and trial proceedings. The court's rulings on four phases of demurrers resulted in the dismissal of claims brought under theories of alleged violations of Proposition 65, ultrahazardous activity, negligence per se, public nuisance, fraudulent concealment, civil conspiracy, battery, alleged violations of the Unfair Business Practices Act, stigma damages, negligent infliction of emotional distress and plaintiffs' requests for the recovery of punitive damages.
After focusing the litigation on the selection, discovery and trial of bellwether and preference plaintiffs, discovery commenced in earnest. Faced with significant discovery burdens, potential further dismissals, and a united defense, plaintiffs made a de minimis settlement demand on our client, which ultimately resulted in a settlement of all claims of remaining plaintiffs for less than $1,500 per plaintiff.
Chevron | Richmond Cal OSHA 2012 Fire Appeal
Katten represented Chevron USA in connection with the environmental, health and safety responses to a highly publicized August 6, 2012 fire at the Richmond Refinery located in Richmond, California. Following the fire, Cal OSHA issued 17 citations, heralded in the media as the largest penalty it had ever imposed.
Katten conducted witness interviews, analyzed potential environmental liabilities, minimized risks and advised the company on its potential responses. Numerous witness interviews were undertaken by the CSB, EPA, Bay Area Air Quality Management District (BAAQMD) and Cal OSHA; physical evidence was marked and collected; and thousands of documents were produced in response to agency requests. Katten participated in and managed the interviews, initiated fact-finding, responded to numerous requests for production of documents, assisted the client with media and agency relations, and began the permitting process to restart the refinery following the incident.
Seventeen citations were issued as to Chevron's process safety management and incident response procedures, all but one designated "serious willful" or "serious" and all of which Katten, led by Tom Van Wyngarden, thereafter appealed. These citations—with significant penalties and process safety implications for the energy industry—were resolved after almost four years of litigation, and again, with Tom as lead counsel for Chevron. The settlement was highly publicized, after being approved by the Governor of the State of California. Cal OSHA withdrew 9 of the 17 citations and significantly downgraded the classification of the remaining accepted citations.
Westfield | Cal OSHA Appeal and Related Civil Claims
Tom represented Westfield LLC in connection with two citations issued by Cal OSHA based on the allegation that gas lines were improperly cut and capped during construction activities. Tom expeditiously settled the matter—one citation was withdrawn, and the other "serious" citation was re-classified general.
Within six months of the settlement, the Santa Clara District Attorney filed a complaint against the company—based on the same underlying event—alleging violations of the Dig Safe Act of 2016 and California's unfair competition law. Again, Tom represented the company. And again, Tom negotiated a very favorable and expeditious settlement of all claims asserted.
June 11, 2019
August 15, 2016
August 17, 2015
August 18, 2014
August 15, 2013
July 24, 2017
June 5, 2017
October 15, 2015
Presentations and Events
March 25 and 26, 2019
February 6 and February 8, 2018
February 21 and February 23, 2017
April 26, 2016
National Business InstituteJune 1, 2008
Effectively Managing Toxic Tort LitigationJune 1, 2008
Los Angeles County Bar Association Environmental SectionJune 1, 2007