Mary Katherine Stukes

Co-head of Environmental, Moore & Van Allen PLLC

Mary Katherine regularly leads real estate developers, governmental entities, and non-profit corporations through the process of obtaining Brownfields agreements for redevelopment of contaminated properties. She negotiates agreements with environmental agencies and counsels clients on eligibility, assessment, tax benefits, and effective structuring of associated real estate and financing transactions. Her projects include agreements for the development of various multifamily residential, hotel, office, governmental, hospitality, community development and industrial projects, including the transformation of former landfills, drycleaners, and gas stations into high-density developments in the urban cores of the major cities in the Carolinas, a minor league baseball stadium, a free-standing emergency department, a police station, a large-scale youth soccer complex, a national craft brewery, and other adaptive reuse projects.

In addition, Mary Katherine helps manufacturers, real estate developers, lenders, renewable energy companies, automotive dealerships, local governments, and other clients find creative solutions in real estate, financing, and corporate transactions involving environmental risk. She routinely negotiates agreements to allocate environmental responsibility and risk between multiple parties and also provides support in due diligence reviews and assistance with permit transfers on such transactions.

She also counsels manufacturers, lenders, and other corporate clients on a broad range of environmental risk and compliance issues. Her work in this area includes release investigation and remediation oversight, incident closure, environmental permitting, audits, reporting, and self-disclosure, responses to CERCLA (Superfund) Section 104 information requests, participation in CERCLA potentially responsible party (PRP) negotiations, appeals of agency orders, defense of notices of violation and enforcement actions, waste and materials handling and disposal practices, stormwater and wastewater management issues, state and federal wetlands and other natural resource issues, and other aspects of regulatory compliance across a variety of state and federal regulatory programs.

Mary Katherine is an experienced litigator in federal, state, and administrative courts. She has represented clients in disputes over contamination, asbestos-containing materials, underground storage tanks, landfills, water quality, and other environmental issues.

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Navigating Risks Posed by Immediate Action Standards for TCE

While chlorinated solvents have long been an area of focus for environmental agencies, one contaminant has risen in prominence following a now-controversial study indicating serious health effects following even short term exposure: trichloroethylene, or TCE. Following the publication of the 2003 Johnson study, which concluded that short-term inhalation exposure to TCE during the first trimester of pregnancy could cause fetal heart malformation, parts of EPA and a number of state agencies moved to issue guidance or rules prescribing immediate response action requirements when TCE is detected in indoor air above a certain level. These immediate action standards can require operators to vacate buildings, immediately implement mitigation measures, and provide employees with access to toxicologists to explain potential risks resulting from the exposure.

This discussion will examine the potential ripple effects of such TCE immediate action levels for the regulated community, ranging from potential litigation risk for employers to lost operating hours and increased compliance and mitigation costs for operating facilities. For example, what duties do operators have to screen for TCE in indoor air when known groundwater contamination is present? How should operators deal with potential indoor sources of TCE and the intersection of OSHA and environmental rules? How can employers best manage communications with members of the “sensitive population” in light of privacy concerns? How does the action level correlate to other TCE standards and substantive risk, and what about temporal and seasonal variability between sampling events? Can other forms of testing be used to understand and control risks posed by subsurface contaminants? Unfortunately, uncertainty seems to be the constant when navigating these issues until EPA and the scientific community provide certainty on the reliability of testing methods and the substantive risks posed by TCE inhalation.